THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW liSili A TREATISE ON THE AMERICAN LAW OF VENDOR AND PURCHASER OF REAL PROPERTY. GEO. W. WARVELLE, LL.D., Author of a Treatise on Abstracts of Title; Principles of THE Law of Real Property, Etc. VOLUME I. SECOND EDITION CHICAGO: CALLAGHAN AND COMPANY 1902 T COPYRIGHT, 1890, BY GEO. W. WARVELLE. COPYRIGHT, 1902, BY GEO. W. WARVELLE. COMPOSITION BT BROWN-COOPER TYPESETTING CO., CHICAGO. TO HON. BENJAMIN D. MAGRUDER, Justice of the Supreme Court of Illinois, this work is Respectfully Inscribed by THE AUTHOR. G43S53 PREFACE. In presenting to the profession a second edition of this work I desire also to exiness my deep sense of appreciation of the favorable manner in which the first edition has been received by both the bench and bar. In many resp|ects it was a pioneer effort, for, while the topic was old, its treatment was essen- tially a new venture in American legal literature. The English works, excellent in themselves, furnished little by way of suggestion and nothing of practical aid. The Ameri- can land system, different from that which prevails in every other country, rendered the English precedents, in many instances, comparatively valueless, while the spirit of Ameri- can law has produced such radical departures from the pro- cedure observed on the other side of the Atlantic that the methods of the English commentators could not be employed. I may, therefore, claim for my work, however defective other- wise, the merit of originality in compilation and method of treatment. It would seem that a subject of such importance as Vendor and Purchaser should have early engaged the pen of the legal essayist in England, where property, for many years, could hardly be said to have an existence detached from land. But while land was the highest type of property, and while the first legal treatise^ was confined to an exposition of the man- ner in which it was held, it was yet not a commercial prop- erty, and the English lawyer was concerned only with the estates that could be raised with respect of it or the manner in which it might be recovered from a disseizor. It is only of late years that freedom of alienation has been permitted in England and land become a marketable commodity, and a 1 Littleton's Tenures. V vi PREFACE. century has not elapsed since the first distinctive treatise upon this subject appeared. About the year 1800, one, Lord St. Leonards, then, how- ever, only plain Mr. Sugden, became imbued with the purpose of writing a book. He cast around for a subject and event- ually hit upon the title with which his name has long been associated. When he had announced his purpose he was ad- vised by judicious friends to abandon his design as the nearly universal opinion was that the work would be a failure, for the reason, that the subjects to be considered were too multi- farious for one treatise. But nothing dismayed he labored on, and in 1805 the first book on the law of Vendor and Purchaser was published. A second edition was issued the year follow- ing and from thence until the year 1862 a succession of edi- tions appeared, culminating with the fourteenth in the year last mentioned. Its depth of learning found an appreciative audience on both sides of the ocean, and in the United States it passed through no less than eight editions, the last being issued in 1873, with a valuable annotation by J. C. Perkins. To this edition the references in the present work are made. In the year 1851 a further addition to the literature of our subject was made by an English lawyer, Mr. J. Henry Dart. His work, both in style and arrangement, was, in some respects, an improvement on Sugden. The book was well received by the English bar and passed through six editions, the last appearing in 1888. The same year of the original publication (1851) an American edition was produced under the editorship of Thomas W. Waterman. The editor's addi- tions and annotations are interesting and valuable, but, while the work was well received, it does not seem to have displaced the earlier work of Sugden and no subsequent editions seem to have been issued. The first work by an American writer was a thin octavo by Francis Hilliard, which was published in 1858. Mr. Hil- liard's book, while not without originality, seems to have PREFACE. vii consisted largely of abridgments of the prior works of Sugden and Dart. It does not seem to have had a large circulation and is seldom alluded to at the present time. A second, and last, edition was issued in 1868, This, practically, completes the bibliography of the sub- ject. It will be seen that, as a distinctive topic, it is still comparatively new, and the same diflSculties that beset the first compiler are still present. The lapse of a century has not rendered the subject any less multifarious than when Mr. Sugden's friends advised against publication for that reason, and the present writer has had to wrestle with the problem of producing a work that shall be compendious, and, at the same time, adapted to convenient use by the profession. I have endeavored to present, in as compact and comprehen- sive form as the topics would admit, everything that seemed germane to a work which assumed to be an exposition of the relation of vendor and purchaser. On the other hand, I have endeavored to discriminate, as far as possible, between topics which, while incidentally connected with our subject, do not partake of its essential character. These latter I have excluded. The arrangement of the first edition has been retained intact, the various sub-heads seeming to follow in a sort of natural sequence. In response to numerous sugges- tions I have adopted the now very prevalent practice of num- bering the sections seriatim from the beginning. The changes in the text are mainly by way of amplification, with the addition of a few topics that have been developed since the publication of the first edition. The citation has been largely increased by late decisions. In my treatment of the subject I have further endeavored to produce a treatise rather than a digest and while the necessary consequence has been to introduce some of my own personality I have advanced no conclusions that are not supported by authority, and in cases where doctrines are conflicting have tried to present both sides in a fair and impartial manner. viii PREFACE. TluiL my work shall be found altogether free from defects would be, perhaps, to expect too much. I can only say that I have brought to it a painstaking care, both in the arrange- ment of the text and the selection of the cases by which it is supported. In this revision I have re-examined and weighed every proposition stated, noting every change or modification made by the courts since the first edition appeared. I may further say that all of the work is my own. I have delegated nothing to others. The labor of its compilation has been a pleasant task and I present it to the profession in the hope that it may prove as acceptable as its predecessor. Chicago, Sept. 1, 1901. G. W. W. PREFACE TO FIRST EDITION. The law of Vendor and Purchaser, once replete with many subtle qualifications and distinctions, has in the United States been reduced to a comparatively simple code. Restraints on alienation have been generally abolished; land is no longer held by precarious tenures; and the rules which govern the sale and transfer of real property, reflecting the enlighten- ment of this commercial age, have been made to conform more closely to those which prevail in other commercial trans- actions. Much of the simplification of this subject has been accomplished in recent years, and in this worlc an attempt has been made to compile the cases which illustrate the de- velopment of the distinctively American phases of the law. In the performance of this task the author realizes the grave responsibility of the duties he has assumed. The American law of real property has passed through many changes during the brief period of our national existence, and, as yet, can hardly be said to have emerged beyond a formative period. The varying devices of state and national policy, as well as the ever-changing complications which arise in the ordinary affairs and transactions of the people, are constantly produc- ing new combinations and presenting new features for adjust- ment and determination. Thus it is that old doctrines become obsolete, and new applications of legal principles must be made to meet the exigencies of the times. Uniformity in legislation and harmony in judicial construction would render light the burdens of the codifier; but, uufortunatelj', the spirit of national unity does not extend beyond the scheme of gov- ernment, and in the enactment and interpretation of the laws which regulate and control the disposition of real property no two of tlie states are exactly alike. ix X PREFACE TO FIRST EDITION. The very flattering reception that has been accorded to the author's former efforts emboldens him to hope that this work may be equally acceptable, and with the expression of this hope he presents it for the judgment of an indulgent pro- fession. G. W. W. Chicago, Feb. 1, 1890. TABLE OF CONTENTS. PARI^ I. THE CONTRACT OF SALE. CHAPTER I. THE SUBJECT-MATTER. Abt. I. The Pbopebty. PAGE. 1. Introductory 1 2. Real property generally considered 2 3. Land 3 4. Minerals 4 5. Growing crops 6 6. Trees and herbage 7 7. Manure 7 8. Aerolites 8 9. Houses and buildings 9 10. Fixtures 9 11. Continued — Rule for determination 11 12. Mortgaged chattels affixed to realty 16 13. Chattels left upon land 19 14. Aqueducts, conduits and pipes 20 15. Submerged lands 21 16. Water 23 17. Ice 25 18. Oils and gases 26 19. Church pews 27 20. Burial lots 28 21. Appurtenances 29 22. Easements 29 23. License 31 24. Franchises 32 25. Property in adverse seizen of third person 33 Art. II. The Estate. 26. Definition 36 27. Estates at common law 36 28. Estates under the statute 38 29. Fee-simple 39 30. Fee-tail 40 xi Xii TABLE OF CONTENTS. PAGE. § 31. Estates for life 42 32. Dower 43 33. Curtesy 45 34. Homesteads 47 35. Estates for years 48 36. Estates at will and by sufferance 50 37. Joint estates 50 38. Estates by entirety 52 39. Contingent interests and estates 55 40. Expectancies and naked possibilities 56 41. Powers 57 Art. III. The Title. § 42. Title generally considered 58 43. Classification 59 44. Acquisition and disposal 60 45. Derivation and nature of title 61 46. Marketable title defined 62 47. Derivative titles — Descent 62 48. Continued — Purchase 63 49. Tax titles 64 50. Color of title 66 51. The right to the possession of title deeds. 66 CHAPTER II. THE PARTIES. Art. I. Persons Sui Juris. § 52. Generally 68 53. Vendors 68 54. Vendees 69 55. Parent and child 70 56. Expectant heirs 71 57. Co-tenants 73 58. Partners 75 59. What shall be considered partnership property 76 60. How affected by death of partner 78 61. Real estate partnership 80 62. "Widow's dower in partnership realty 80 63. Syndicates — Joint stock companies 81 64. Corporations 82 65. Municipalities 83 66. Assignees 83 67. Assignors 84 68. Death of contracting party 85 Art. II. Persons Under Disability. § 69. Aliens 86 70. Infants 88 TABLE OF CONTENTS. xiii PAGE 71. Married women 92 72. Husband and wife 93 AuT. III. Persons Incompetent. 73. Lunatics 96 74. Imbeciles 98 75. Drunkards 100 76. Convicts 102 Art. IV. Fiduciaries. 77. General principles 103 78. Trustees 103 79. Mortgages 105 80. Executors and administrators 106 81. Continued — Executors 106 82. Continued — Administrators 107 83. Guardians 109 84. Trustees as purchasers — The rule stated 110 85. Continued — Exceptions to and qualifications of the rule. . 112 CHAPTER III. THE MEMORANDUM. 86. Contract and memorandum distinguished 114 87. Statutory requirements 115 88. The signature 117 89. Signature of one party only sufficient 120 90. Signature by agent 121 91. Signature by corporation 122 92. The contracting parties 123 93. The terms 124 94. The consideration 125 95. The purchase price 127 96. Description of the property 128 97. The interest to be conveyed 129 98. Time 130 99. Receipts 132 100. Letters 132 101. Telegrams 137 102. Delivery 137 103. Continued — Undelivered deeds 138 CHAPTER IV. CONSTRUCTION OF LAND CONTRACTS. 104. General principles ' 141 105. When construction is for the court 143 XIV TABLE OF CONTENTS. PAGlC § 106. When for the jury 144 107. Intention of the parties 145 108. Construction deduced from acts 146 109. When construction should favor either party 147 110. Entire and separate contracts 148 111. Implication 148 112. Mutual and dependent undertakings 149 113. Precedent and contemporaneous acts 150 114. Admission of parol evidence 150 115. Continued — Collateral matters and conditions 153 116. Surrounding circumstances and pre-existing relations 154 117. Usage and custom 155 118. Ambiguities 156 119. Technical phrases 157 120. Contemporaneous writings 159 121. Continued — When variant from each other 161 122. Unintelligible expressions 162 123. Printed blanks 162 124. Interlineations — Erasures 163 125. Proposals and offers — Options 164 126. Continued — Option in lease 166 127. Acceptance 168 128. Operation and effect 170 129. Recitals 172 130. Contracts for repurchase 172 131. Bond for conveyance 174 132. The description 174 133. Continued — Unlocated land 177 134. Continued — History of title 178 135. Description by designation 180 136. The medium of payment 181 137. Conditions in avoidance 184 138. Time of performance 184 139. Computation of time 185 140. Assignment of contract for security 186 CHAPTER V. VALIDITY OF LAND CONTRACTS. Art. I. Generally Considered. § 141. Preliminary remarks 187 142. Conflict of laws 188 143. Executed contracts 188 144. Agreements prohibited by statute 189 145. Agreements against public policy 191 146. Agreements void in part 193 147. Allotments by chance 194 TABLE OF CONTENTS. XV PAGE 148. Sunday contracts 194 149. Agreements to convey by will 197 150. Contracts procured by fraud 198 151. Ante-nuptial contracts 198 152. Post-nuptial contracts 199 Art. II. As Affected by the Statute of Frauds. 153. General effect of the statute 200 154. Conflict of laws 201 155. Entire contract, void in part 201 156. Defense of the statute — By whom available 202 157. What contracts must be in writing 202 158. Incorporeal hereditaments 203 159. License to flood lands 204 160. License for right of way 205 161. The produce of land 205 162. Standing trees 206 163. Growing crops 209 164. Ruined walls and buildings 210 165. Buildings to be removed 210 166. Partition fence 211 167. Parol reservations 211 168. Agreements to exchange 212 169. Collateral agreements 212 170. Partnership agreements for dealing in lands 213 171. Memorandum for sale of partnership lands 215 172. Ante-nuptial agreements 216 173. The description 217 CHAPTER VI. THE RELATION OF THE PARTIES. 174. Generally considered 218 175. Option of purchase 220 176. When equitable title vests 221 177. Death of one of contracting parties 222 178. Subsequent insolvency of the parties 224 179. Payment of taxes 225 180. Interest — Rents and profits 226 181. The risk of loss 229 182. Duty of repairing buildings 229 183. Right of possession 230 184. Delivery of possession 231 185. Rights of vendee in possession 231 186. Vendee's assertion of hostile title 232 187. Vendee's possession not adverse 235 188. Vendee may attorn to stranger 238 xvi TABLE OP CONTENTS. PAGE) § 189. Judgments against vendor 238 190. Judgments against vendee 239 191. Vendor's possession after sale 240 192. Vendor's possession after conveyance 240 193. Destruction of property — Proceeds of insurance 241 194. Continued — Rights of option holder 243 195. Continued — Effect of proviso respecting insurer's interest 243 196. Effect upon insurance of proviso against sales 244 197. Continued — Assignment of policy 245 198. Condemnation proceedings 245 199. Mechanics' liens 246 CHAPTER VII. AGENTS AND BROKERS. § 200. General principles 247 201. Who may act as agent 248 202. Continued — Trustee as agent 249 203. Appointment and authority 249 204. Proof of authority 252 205. Authority resting in parol 253 206. Authority in writing 254 207. Telegram as authority 255 208. General and special agents 255 209. Implied powers 257 210. Agent must pursue his authority 257 211. Agent's liability for breach of instructions 258 212. For misconduct 259 213. Not liable for errors of judgment 259 214. Ratification 259 215. Effect of ratification as respects purchaser 261 216. Effect of ratification as respects principal 262 217. Agent's signature 262 218. Revocation of authority 263 219. Agency coupled with interest 264 220. Agent's authority terminates with principal's death 265 221. Undisclosed principal 265 222. When agent becomes personally liable 268 223. When principal chargeable with agent's acts 270 224. Fraud of agent 271 225. Notice to agent binds principal 272 226. Agent dealing for his own benefit 274 227. Continued — Effect of laches of vendor 278 228. The right to commissions 278 229. Continued — Agent must produce actual purchaser 280 230. Continued — Sale must result from broker efforts 281 231. Continued — Where more than one broker is employed. . . . 284 232. Continued — Sale by owner without broker's interference. 286 TABLE OF CONTENTS. xvii PAUE 233. Continued — Failure to close within time stipulated 288 234. Continued — Revocation of broker's authority 289 235. Continued — Sale by unlicensed broker 289 236. Continued — Agent as purchaser 291 237. Sale by agent above stipulated price 292 238. Double agency 293 239. The measure of compensation 295 240. Sub-agents — Delegation of authority 296 CHAPTER VIII. SALES BY AUCTION. 240. Generally 297 241. The sale 298 242. Sale "without reserve" 298 243. Particulars and conditions of sale 298 244. Sale by plat 299 245. Auctioneer's relation to the parties 299 246. Auctioneer cannot delegate authority 301 247. Withdrawing bid 301 248. Refusing bid 301 249. Auctioneer's statements and representations 302 250. Puffers and by-bidders 302 251. Vendor as bidder 305 252. Combinations among bidders 305 253. Auctioneer's memorandum 307 254. "Who may make the memorandum 310 255. Auctioneer's receipt as memorandum 311 256. The deposit 311 257. Resale 312 PART II. INCIDENTS OF THE CONTRACT. CHAPTER IX. INVESTIGATING THE TITLE. 258. General principles 314 259. Caveat emptor 316 260. Doctrine of notice 316 261. Constructive notice 318 262. When purchaser is chargeable with notice 320 263. What notice sufficient 321 264. What will put a party on inquiry 323 265. Notice from registration 325 266. Recitals in deeds 326 267. Inquiries in pais 327 Xviii TABLE OF CONTENTS. PAOB §268. Notice of unrecorded instruments 328 269. Notice of parol agreements 328 270. Notice of fraud 328 271. Possession as an evidence of title 329 272. Continued — Character of possessor 330 273. Continued — Possession of prior vendors 330 274. Liens and incumbrances 334 275. Mortgages 334 276. Judgment liens 335 277. Decrees 338 278. Mechanics' liens 338 279. Vendors' liens 338 280. Real estate charged with legacies 339 281. Real estate charge with debts 340 282. Easements and servitudes 342 283. Pending litigation 342 284. Partnership property 344 285. Notice to agent 345 286. Joint purchasers 345 287. Rebutting presumption of notice 346 CHAPTER X. THE ABSTRACT. § 288. General principles 347 289. Duty of furnishing abstract 348 290. When the abstract is made a condition 349 291. Right to time for examining title 350 292. Good and sufficient abstract 351 294. Originals and copies 352 295. "What the abstract should show 354 296. Root of title 356 297. Perusing the abstract 357 CHAPTER XI. OBJECTIONS TO TITLE. § 298. Generally considered 359 299. A marketable title 361 300. "Satisfactory" title ^ 364 301. "Good" title ~ 367 302. Title as affected by attorney's opinion 368 303. Claims of title 368 304. Title of record 369 306. Title by adverse possession and limitation 371 307. Ancestral titles 372 308. Spurious deeds 372 TABLE OF CONTENTS. xix PAGE 309. Hazard of litigation 373 310. Pending litigation 374 311. Unsatisfied judgments 375 312. Outstanding incumbrances 376 313. Continued — Unsatisfied mortgage 379 314. Unpaid taxes 380 315. Unreleased dower rights 380 316. Dowress' death 382 317. Title subject to defeasance 382 318. Trusts and other equities 382 319. Equitable estates — Legal titles outstanding in trustee 383 320. Title acquired in violation of trusts 383 321. Party-walls 385 322. Unopened streets 386 323. Clouds upon title 386 324. Purchase with notice of defects 388 325. Variance and discrepancy 388 326. Stipulation for failure of title 389 327. Agreement to furnish abstract, when an undertaking in respect to title 390 328. Immaterial defects 391 329. Waiver of objections to title 391 330. Effect of delay in making objections 393 331. Defects in the subject-matter 394 PART III. THE CONVEYANCE. CHAPTER XII. THE MEDIUM OF TRANSFER. 332. Deeds — Defined and distinguished 396 333. Forms of conveyance 397 334. Deeds of bargain and sale 399 335. Warranty deeds 399 336. Quitclaim deeds 400 337. Release 401 338. Confirmation 402 339. Surrender 403 340. Assignment 403 341. Defeasance 404 342. Covenant to stand seized 405 343. Imperfect deed — Operation and effect 406 344. When vendee entitled to deed 407 345. Time to prepare deed — Demand for same 407 346. Vendee's right to inspect deed 408 347. Vendee not required to take deed from third party 409 XX TABLE OF CONTENTS. PAGE § 348. When contract has been assigned 409 349. Objections to deed 409 350. Duty of preparing deed 411 351. "What conveyance is sufficient 412 352. Re-execution of lost deeds 414 CHAPTER XIII. CONSTRUCTION OF DEEDS. § 353. General rules 416 354. Construction in favor of grantee 418 355. Ambiguities and inconsistencies 418 356. The premises 419 357. Recitals 421 358. The parties 421 359. Presumption as to grantee — Persons of same name 424 360. Consideration 425 361. The habendum 427 362. Testamentary writings 428 363. Deed construed as a mortgage 431 364. Doctrine of relation 433 365. Lost deeds 433 366. Forged deeds 434 CHAPTER XIV. THE LAND CONVEYED. § 367. General principles 435 368. Ambiguous descriptions 438 369. Inconsistent descriptions 439 370. General and special description 440 371. Specific parts 444 372. Identification after conveyance 446 373. Extrinsic evidence 446 374. Construction by the parties 447 375. Reference to plat 448 376. Survey governs plat 449 377. Identification of boundary lines 450 378. Marked lines 452 379. Boundary by "parallel lines" 453 380. Estoppel in pais 454 381. Statements of quantity 454 382. Streets and highways 455 383. Continued — Unopened streets 457 384. Continued — Exclusion from grant 458 385. Continued — Where grantor is without title 459 386. Effect of grant bounded on highway 460 TABLE OF CONTENTS. tti PAGP 387. Exception of highway 460 388. Streams and water-ways 461 389. Continued — Construction of descriptive terms 492 390. Lakes and ponds 464 391. Continued — Artificial waters 466 392. High-water mark 466 393. Tidal waters 467 394. Riparian boundary as affected by plat 468 395. Exception from riparian grant 468 396. Mines and minerals 469 397. Operation of erroneous deeds 470 CHAPTER XV. THE ESTATE CONVEYED. § 398. Generally 471 399. Rule of construction 472 400. Legal and equitable estates 473 401. Words of inheritance and limitation 473 402. Effect of absolute conveyance 475 403. Effect of release and quitclaim 477 404. Conveyance of estates in fee 478 405. Creation of life estate 479 406. The rule in Shelley's case 480 407. Creation of co-tenancies 483 408. Future estates 483 409. Perpetuities 485 410. Entailments 486 411. Homesteads 488 412. Incidents to the grant as connected with the use intended. 489 CHAPTER XVI. THE COVENANTS. § 413. General observations 490 414. Creation of covenants 491 415. Rules of construction 492 416. Inuring of title 492 417. What covenants a purchaser has a right to expect 493 418. Contract for conveyance with "usual covenants" 495 419. Contract to convey with warranty 496 420. Covenants limited to estate actually conveyed 498 421. Covenants running with the land 498 422. Effect and extent of restrictions 501 423. Conveyances by attorney 502 424. Covenant of seizin 502 xxii TABLE OF CONTENTS. PAGE § 425. Covenant for quiet enjoyment 503 426. Covenant against incumbrances 504 427. Further assurance 504 428. Covenant of non-claim 505 429. Covenant of warranty 506 430. Continued — Extinguishment of the covenant 506 431. Cancellation of corresponding covenants 507 432. Implied covenants 507 433. Statutory deeds 509 434. Where wife refuses to join 510 435. Value of covenants 510 436. Defective covenants — Operation and effect 511 437. Quitclaims 515 CHAPTER XVII. CONDITIONS, LIMITATIONS AND RESTRICTIONS. 438. General principles 517 439. Conditions 519 440. Continued — Classification 521 441. Operation and effect 523 442. Construction 524 443. Continued — Conditions in avoidance 524 444. Continued — When construed as covenants 524 445. Creation of conditions 526 446. Revesting of title 528 447. Who may take advantage of condition broken 529 448. Who may perform 530 449. Prevention of performance 530 450. Time of performance 530 451. Conditions in restraint of alienatioh 531 452. Continued — With respect to persons 533 453. Continued — With respect to time 533 454. Continued — In connection with prescribed and prohibited uses 534 455. Continued — Intoxicants 535 456. Conditional limitations 536 457. Restrictive stipulations 536 458. Restrictions on use 537 459. Building restrictions 538 460. Prohibited employments 540 461. Enforcement of restrictions 542 462. Avoidance of restrictions 543 463. Conveyances for support 543 464. Conveyance for specific use 545 465. Resume 547 TABLE OF CONTENTS. XXIU CHAPTER XVIII. RESERVATIONS AND EXCEPTIONS. PAOB § 466. Definatory 552 467. Creation of reservation 553 468. Construction 554 469. Certainty an essential 555 470. Must be grantor 556 471. Right of way 557 472. Right of flowage — Water privilege 559 473. Light and air 559 474. Use and occupancy 560 475. Reserved rights in the soil 560 476. Standing timber 562 477. Reserved rights lost by disuse 563 CHAPTER XIX. EXECUTION. Art. I. Generally Considered. §478. Definition 564 479. Execution by corporation 564 480. Variations and discrepancies 566 481. Execution in blank 567 482. Attesting witnesses 569 Art. II. Signing. § 483. General principles 571 484. Method of signing 572 485. Signature by mark.' 573 Art. III. Sealing. § 486. General views — Definition 575 487. Necessity of a seal 576 488. Method of sealing 577 489. Omission to seal 579 Art. IV. Delivery. § 490. General principles 581 491. The theory of delivery 583 492. Intention the vital principle of delivery 584 493. Presumption of time of delivery 585 494. Presumption from recording 586 495. Presumption from possession of instrument 589 496. Presumption in case o€ voluntary deeds 589 xxiv TABLE OF CONTENTS. PAGE § 497. No presumption from execution 590 498. Sufficiency of proof of delivery 591 499. Delivery to infant 592 500. Delivery to third person 593 501. Delivery to take effect after death of grantor 594 502. Continued — Testamentary deeds 595 503. Deed retained by grantor 597 504. "When grantor will be estopped 598 505. Revocation and redelivery 599 506. Delivery in escrow 601 507. Acceptance 605 CHAPTER XX. ACKNOWLEDGMENT. 508. General principles , 607 509. Who may take 608 510. Form 611 511. Venue 612 512. Date 613 513. Party acknowledging must be sufficiently identified 613 514. Fact of acknowledgment must be stated 615 515. Party acknowledging must understand purport of act. . . . 616 516. Acknowledgment by corporation 616 517. Conveyances by married women 616 518. Conveyances of the homestead 619 519. Authentication by officer 621 520. Clerical errors — Surplusage — Omissions 621 521. Proof of official character 622 CHAPTER XXL REGISTRATION. 522. General principles 625 523. Effect of registration 626 524. What instruments must be recorded 626 525. Equities and equitable interests 627 526. Forged instruments 628 527. Governmental conveyances 628 528. Prerequisites of registration 628 529. Registration as affected by defective execution 629 530. Imperfect description 630 531. Failure to record by recording officer 631 532. Effect of erroneous registration 631 533. Instruments recorded in wrong book 633 534. Index entries 633 TABLE OF CONTENTS. XXV PAGE 535. Failure to index 634 536. Deed withdrawn after filing 634 537. Priority 635 538. Destruction of record 636 539. Unrecorded instruments 636 540. Continued — As between the parties 638 PART IV. INCIDENTS OF THE CONVEYANCE. CHAPTER XXII. EASEMENTS AND APPURTENANCES. 541. Easements 641 542. Appurtenances 642 543. "What passes as appurtenant 643 544. Theory of appurtenant easements 644 545. Profits a prendre 646 546. Incidents to a grant as connected with intended uses 647 547. Restrictions operating as easements 648 548. Servitudes by reservation 649 549. Grants in fee construed as easements 649 550. Easement distinguished from natural right 650 551. Rights of way 651 552. Ways by necessity 652 553. City streets 654 554. Unopened streets and roadways 654 555. Riparian rights 656 556. Right of flowage 656 557. Light and air 657 558. Extinguishment 658 CHAPTER XXIII. USES AND TRUSTS. 559. General principles 660 560. What trusts allowed 662 561. The subject-matter 662 562. The parties 663 563. Creation of trusts 663 564. Trusts ex malificio 665 565. Words of limitation 666 566. Declaration of trust 667 567. Execution of trust by trustee 668 568. Execution of trust by statute 669 569. Trust of rents and profits 670 xxvi TABLE OF CONTENTS. PAGE § 570. Duties and obligations of trustees 670 571. Disposition of trust property 672 572. Purchaser of trust estate 673 573. When purchaser must see to application of purchase money 673 574. Trustee's deed as color of title 675 575. Resulting trusts 675 576. Conveyance taken by one where consideration is paid by another 677 577. Continued — Payment must be of the whole or some ali- quot part of the consideration 679 578. Purchase by fiduciaries 679 579. Joint purchase in the name of one 680 580. Fraudulent grantee, when a trustee 680 581. Purchase in name of wife or children 681 582. Voluntary conveyance 682 583. Loans — Title taken as security 682 584. Parol evidence to show resulting trust 683 585. Parol proof in rebuttal 684 586. Removal or substitution of trustee 684 587. Reservation of verbal and secret trusts 685 CHAPTER XXIV. POWERS. 588. General rules and principles 687 589. Powers given to several 688 590. Powers of attorney 688 591. By several persons 689 592. Construction 689 593. The subject-matter 691 594. Defective execution of power 691 595. Registration of power 692 596. Power of infant 692 597. Power of lunatic 693 598. By husband and wife 693 599. Revocation 694 CHAPTER XXV. FRAUDULENT CONVEYANCES. 600. General principles 698 601. Fraud — Of what consisting 701 602. Conveyance on secret trust 703 603. Subsequent validation of fraudulent grants 704 604. Valid conveyance invalidated by subsequent acts 706 TABLE OF CONTENTS. Xxvil PAQB 605. When deed permitted to stand as security for sum paid. . . 706 60G. Purchaser without notice 707 607. Purchaser with notice from one who purchased without notice 708 608. Purchaser without notice from one who purchased with notice 709 609. Must have purchased in good faith 710 610. Must have paid value 712 611. What constitutes value 713 612. Purchaser with notice 718 613. Purchaser by quitclaim 720 614. Purchaser from grantee by quitclaim 721 615. A debtor may prefer one creditor 722 616. When declarations of vendor are evidence against the vendee 723 617. Exempt property — Conveyance of the homestead 726 618. Heirs of fraudulent grantee 726 619. Voluntary conveyances 727 620. Operation and effect — As betwee'n the parties 729 621. Continued — As between the parties and third persons. . . . 730 622. Conveyances on inadequate consideration 732 623. Conveyances from husband to wife 732 624. Continued — Purchaser from wife 734 625. Conveyance to wife upon consideration 735 626. Conveyance to wife — Consideration paid by husband.... 738 627. Continued — Purchaser from wife 739 628. Expenditures and improvements upon wife's land by hus- band 740 629. Property paid for by wife's earnings 741 630. From parent to child 743 631. Parol gifts 745 632. Deed made to perfect title of parol gift 746 633. Ante-nuptial settlement 747 634. Ante-nuptial conveyances in fraud of intended consort — By wife 748 635. Continued — By the husband 749 636. Pleading and proof 752 637. Effect of adjudication of fraud 754 638. Conveyances of expectancies 754 CHAPTER XXVI. INCUMBRANCES. 639. General observations 756 640. Duty of purchaser of mortgaged property 759 641. Continued — Release furnished by vendor 763 642. Conveyance subject to mortgage 764 XXviii TABLE OF CONTENTS. PAGE § 643. As between vendor and vendee 766 644. Assumption of mortgage by purchaser 768 645. Contract of assumption 771 646. Proof of assumption — Acceptance of deed binds grantee. . 773 647. Assumption by parol 773 648. Assumption of entire debt by purchaser of part of mort- gaged property 774 649. Effect of assumption where grantor is not liable 775 650. Effect of extension to purchaser upon mortgagor's liability 778 651. Vendor's right to compel payment of mortgage 779 652. Unauthorized introduction of assumption clause 780 653. Stipulation inserted through mistake 781 654. Purchaser subject to mortgage cannot assert paramount title 781 655. Purchaser cannot deny validity of mortgage 782 656. Continued — When purchaser may set up defenses 784 657. Continued — Removal of purchaser's disability by acts of grantor 785 658. Stipulation making whole debt due on default of partial payment 786 659. Effect of release of portion of mortgaged land 786 660. Vendor's right of subrogation 787 661. Presumption of payment 788 662. Continued — Admission of lien and promise to discharge same 788 663. Order of sale of mortgaged property 789 664. Contribution among purchasers 792 665. Purchaser's right to redeem 793 666. Continued — Costs on redemption 794 667. Mortgage estate converted into money 794 668. Mortgages given prior to investiture of title 795 669. Estoppel of mortgagee 795 670. Effect of unrecorded mortgage 796 671. Lands held under contract 798 672. Merger 798 673. Deed with contract to reconvey 800 674. Absolute conveyance, when treated as a mortgage 801 675. Property subject to judgment 802 CHAPTER XXVII. VENDOR'S LIEN. Akt. I. By Implication. a. Where the Vendor Parts with Title. § 676. General principles 804 677. Derivation of the lien 80o TABLE OF CONTENTS. xxix PAGE § C78. Nature and operation 807 679. Effect and extent of the lien 808 680. Extends to subsequent purchasers with notice 810 681. Does not affect purchasers without notice 811 682. What constitutes notice 812 683. Is not impaired by death 813 684. Effect as against creditors 813 685. When enforced in favor of one not the grantor 815 686. Continued — Purchase money paid by a third party 817 687. Title made in name of third person 818 688. Recital of payment in deed 818 689. Money expended by vendor for improvements 819 690. Only lies for a debt 819 691. Entire and severable contracts 821 692. In sales induced by fraud 822 693. Land claimed as homestead 823 694. Improvements by vendee 824 695. Minerals 824 696. Rights of way 825 697. Assignment of the lien 825 698. Waiver of lien 827 699. What amounts to waiver or abandonment 828 700. Continued — Effect of contract 832 701. Continued — Effect of judgment 832 702. Continued — The English doctrine 832 703. Vendee cannot deny vendor's title 833 704. Proceedings for enforcement 834 705. Burden of proof 835 706. Purchaser's defenses 835 707. Rents and profits 836 708. Concurrent remedies 836 709. As affected by the statute of limitations 837 710. Vendor's lien and mechanic's lien 838 711. Vendee's lien 839 b. Where the Vendor Retains Title. § 712. The theory 840 713. Nature of the lien 841 714. Limitation of right to foreclose 842 715. Implied waiver 843 716. Effect of assignment 844 Art. II. By Contract. § 717. General principles 845 718. By express reservation 846 719. Formality of expression 847 720. Recital of the fact of unpaid purchase money 848 XXi TABLE OF CONTENTS. PAGE § 721. Assuming incumbrance as part of the purchase money... 849 722. Vendor's lien on crops 849 723. Reservation by separate instrument — Equitable mort- gages 850 724. Not affected by subsequent mortgage 852 725. Not affected by independent security 852 726. Not affected by action at law 853 727. As affected by limitation — Presumption of payment 853 728. Assignment and transfer 854 729. Subrogation of co-purchaser 854 PART V. REMEDIES AND PROCEEDINGS. CHAPTER XXVIII. SPECIFIC PERFORMANCE. Art. I. Of Contracts in Writing. 730. General principles 857 731. What contracts may be enforced 859 732. Can only be of ascertained and existing contract 862 733. The parties 863 734. Agents 864 735. Subsequent purchasers 864 736. When minors are interested 865 737. Jurisdiction — Land in another state 865 738. As dependent on conditions 867 739. Mutuality — Unilateral contracts 868 740. Indefiniteness — Uncertainty 869 741. Fraud 872 742. Contract induced by misrepresentation 873 743. Concealment of material facts 874 744. Hardship — Oppression 875 745. Misapprehension — Mistake 877 746. Laches and delay 879 747. Continued — Notice to perform 883 748. Defective title 883 749. Deficient quantity 885 750. When the vendor cannot produce title contracted for.... 887 751. Inadequate consideration 887 752. Inability to perform 890 753. Where wife refuses to join in conveyance 892 754. Incapacity of parties 894 755. Gifts and donations 894 756. Tender of performance — By vendee 897 757. Continued — By vendor 898 TABLE OF CONTENTS. XXXl PAGE 758. Where contract has been rescinded 899 759. Verbal abandonment of contract 900 700. Though performance be refused other relief may be granted 901 761. Restoration of lost deed 903 762. Auxiliary remedies — Ne exeat 903 763. Submissions and awards 904 Akt. II. Of Pakol Contracts. 764. General principles 905 765. The contract 907 766. Payment of the purchase money , 908 767. Possession 909 768. Expenditures and improvements 910 769. Verbal agreement to procure title and convey 911 770. Parol promise to purchase for another 912 771. Compensation for improvements 913 772. Parol gifts 915 773. Against vendee 916 774. Marriage — Ante-nuptial agreements 916 775. Continued — Post-nuptial agreements 917 776. Parol variation of written agreements 919 777. Parol license 919 CHAPTER XXIX. REFORMATION. 778. General principles 921 779. Of deeds 922 780. Of contracts 923 781. Of voluntary conveyances 924 782. Deeds of married women 925 783. Defective execution 925 784. Clerical errors and omissions 926 785. Parties 926 786. Subsequent purchasers 927 787. Judgment creditors 928 788. For mutual mistake 929 789. Continued — For mistake of one party only 931 790. Mistake occasioned by fraud 93" 791. Mistake resulting from negligence 933 792. Mistake of the draughtsman 934 793. Mistakes of law 936 794. Mistakes as to estate 938 795. Mistakes as to identity of property 939 796. Description with definite quantity 941 797. Description without specification of quantity 941 Xxxii TABLE OF CONTENTS. PAGK §798. Description with estimated quantity 941 799. False enumeration of quantity 942 800. Mistake induced by misrepresentation 942 801. Mistake of law induced by misrepresentation 943 802. Grantee in default 943 803. As affected by delay 944 804. As affected by the statute of frauds 945 805. Reformation will not lie after an action at law 948 806. Re-execution of deeds 948 CHAPTER XXX. FORFEITURE. 807. General principles — Definition 950 808. Construction 952 809. Forfeiture against persons incapacitated 952 810. Right of forfeiture a privilege of the vendor 953 811. Continued — When contract contains mutual covenants.. 954 812. Vendor entitled to the fruits of forfeiture 955 813. Vendor must have ability to perform 955 814. Fraud of vendor 956 815. How made 956 816. When vendor must first offer to perform 957 817. Forfeiture and resale — Rights of second purchaser 958 818. Lapse of time does not work forfeiture 959 819. Waiver 959 820. Effect of indulgence 962 821. Acquiescence by the vendee 963 822. Relief in equity 964 823. Annexations by purchaser 965 824. Forfeiture of option 966 CHAPTER XXXI. RESCISSION. 825. General principles 967 826. Mutual agreement 969 827. Novation 970 828. Non-compliance 970 829. Continued — Failure of consideration 971 830. Estoppel by acquiescence 971 831. Mistake 971 832. Deficiency in quantity — Contract executory 974 833. Continued — Contract executed 976 834. Continued — Sales in gross 977 835. Continued — Sale of specific quantity 978 TABLE OF CONTENTS. XXxiii PAGE i 836. Defective title 97'J 837. Inadequacy of price 981 838. Continued — Sales of the equity of redemption 983 839. Laclies and delay — Contract executory 984 840. Continued — Contract executed 986 841. Abandonment — Failure to perform 986 842. Destruction of the subject-matter 987 843. Fraud 990 844. Fraud on joint purchaser 994 845. Concealment 994 846. Misrepresentation 996 847. Continued — Statements of opinion 999 848. Continued — Statements as to character of land 1001 849. Continued — Statements respecting future acts 1002 850. Continued — Misstatement of law 1003 851. Continued — Evidence 1004 852. Fraudulent or improper acts of agent — Rescission by vendor 1004 853. Continued — Rescission by vendee 1005 854. Recriminatory fraud as a defense 1006 855. Duress 1007 856. Undue influence 1010 857. Unforeseen events 1013 858. Gifts and donations 1014 859. Mental weakness 1015 860. Infancy 1019 861. Illegality 1023 862. Instruments signed without reading 1024 863. Recission after conveyance with covenants 1024 864. When recission must be entire 1025 865. When recission may be partial ' 1026 866. As affected by limitation 1026 867. Duty of rescinding party 1027 868. Necessity of notice 1030 869. Rights of the parties on rescission 1031 870. Of parol contracts 1033 871. Renewal after rescission 1034 872. Revocation of license 1034 CHAPTER XXXII. USE AND OCCUPATION. 873. General principles 1036 874. Contract to convey does not confer right to possession.. 1037 875. Where contract fails through fault of vendor 1038 876. Where contract fails through fault of vendee..... 1039 877. Occupation by vendee after abandonment of contract.... 1040 878. Occupation under void contract 1041 XXxiv TABLE OF CONTENTS. PAGE § 879. When vendee enters as tenant 1041 880. Possession acquired by fraud 1042 881. Allowance to fraudulent grantee 1042 882. Compensation recovered by assumpsit 1043 883. Compensation as for trespass 1043 844. Against the vendor 1044 CHAPTER XXXIII. ACTIONS FOR POSSESSION. § 885. General principles 1045 886. By the vendor 1047 887. By the vendee 1048 888. By third parties 1049 889. Notice to quit 1050 890. Peaceful entry and repossession by vendor 1051 891. Forcible detainer 1051 892. Improvements by purchaser — After conveyance 1053 893. Continued — Before conveyance 1055 894. Defenses to the action 1056 895. Conclusiveness of judgment in ejectment 1058 CHAPTER XXXIV. ACTIONS FOR THE PURCHASE MONEY. Art. I. Vendor's Action for Price. § 896. General principles 1060 897. As affected by the statute of frauds 1062 898. Continued — Contract executory 1063 899. Collateral and superadded agreements with respect to purchase money 1063 900. Where acts are concurrent 1064 901. Payment of money into court 1064 902. Liability of assignees 1065 Art. II. Vendee's Defenses. § 903. Fraud 1067 904. Defective title — Executed contract 1069 905. Continued — Executory contract 1072 906. Deficiency in quantity 1074 907. Defective quality 1078 908. Personal disability 1079 909. Unconscionable bargains 1079 910. Non-tender of performance 1080 911. Agreements to forbear 1081 912. Agreements to rescind 1082 TABLE OF CONTENTS. xxxv PAGE § 913. Purchaser may defend with cross-action pending 1083 914. Set-off 1084 915. Assignees of the purchase money 1085 916. Where vendor repossesses himself of the land 1086 917. Relief by way of injunction 1088 Art. III. Vknuee's Action to Recover Back Price. § 918. When the action lies 1092 919. Failure of consideration — Defective title 1093 920. Continued — Defective quality 1095 921. Incumbrances 1095 922. Erroneous deed 1098 923. Right to deduct for waste and spoliation 1099 924. Voluntary rescission 1099 925. Vendor's inability to perform 1100 926. Vendee's refusal to perform 1101 927. Recovery of the deposit 1102 928. Vendee under quitclaim deed 1104 Art. IV. Parol Contracts. § 929. Actions by the vendor 1105 930. Actions by the vendee 1106 931. Failure of consideration 1107 932. Recovery of the value of consideration — Work and labor 1108 933. Demand for deed 1108 CHAPTER XXXV. ACTIONS FOR DAMAGES. Art. I. On the Contract. 934. General principles 1109 935. Continued — When right of action accrues 1112 936. Failure to perform — Vendor's refusal 1113 937. Continued — Vendee's refusal 1116 938. Continued — Auction sales 1118 939. Failure to perform collateral agreements 1120 940. Illegality precludes recovery 1121 941. Mutuality 1122 942. Deceit or fraud — False representation 1122 943. Continued — Measure of Damages 1125 944. Continued — Fraudulent concealment 1126 945. False statements without fraud 1126 946. False representations as to value 1127 947. Continued — Statements of opinion and fact distinguished 1130 948. False representations as to rentals 1131 949. False representations as to appurtenances 1132 XXXvi TABLE OF CONTENTS. PAGE § 950. False representations as to extraneous facts 1133 951. False representations as to the condition of tlie property. 1133 952. False representations as to the quantity 1134 953. Misrepresentations by third party 1135 954. Failure to assign insurance policy 1136 955. Failure to perform collateral promise 1136 956. Waste 1136 957. Injuries to lands 1138 958. Deprivation of possession 1138 959. As affected by limitation 1139 960. Penalties and liquidated damages 1139 961. Continued — Non-performance of stipulation 1143 962. Damages by way of recoupment 1143 963. Compensatory damages in equity 1145 964. Damages for breach of parol agreement 1146 965. Slander of title 1148 Art. II. On the Covenants. § 966. General principles 1150 967. Seizin — Total breach 1151 968. Continued — Nominal breach 1154 969. Continued — Partial breach 1156 970. Right to convey 1156 971. Incumbrances 1156 972. Continued — Extent and operation 1158 973. Continued — Existing easements 1162 974. Continued — Unpaid taxes 1165 975. Continued — Dower rights 1166 976. Quiet enjoyment 1166 977. General warranty 1168 978. Continued — Measure of damages 1171 979. Limited warranty 1175 980. Attorneys' fees 1175 981. Actions by remote vendees 1176 982. Condemnation of property sold 1178 983. Further assurance 1179 984. Division of covenants 1179 985. Set-off by covenantor 1180 986. Covenants of married women 1180 987. Parol evidence of warranty 1181 988. Parol contract of indemnity 1183 THE LAW OF VENDOR AND PURCHASER PART I. THE CONTRACT OF SALE. CHAPTER I. THE SUBJECT-MATTER. Art. I. Thi : Property. Art. II. The Estate. Art. III. The Title. • Art. I. The Property. §1. Introductory. §14. Aqueducts, conduits and 2. Real property considered. pipes. 3. Land. 15. Submerged lands. 4. Minerals. 16. Water. 5. Growing crops. 17. Ice. 6. Trees and herbage. 18. Oils and gases. 7. Manure. 19. Church pews. 8. Aerolites. 20. Burial lots. 9. Houses and buildings. 21. Appurtenances. 10. Fixtures. 22. Easements, 11. Continued — Rule for deter- 23. License. mination. 24. Franchises. 12. Mortgaged chattels aflSxed to 25. Property in adverse seizin of realty. third person. 13. Chattels left upon land. § 1. Introductory. Land, in the United States, is justly rej^arded as an ai'ticle of commerce. It is said to represent the basis of all values and to form the foundation of all secu- rities. Capital seeks it as an investment. Purchasers acquire it as well for the purposes of speculation and trade as for X 2 THE SUBJECT-MATTER. permanent improvement or domicile. The absence of the old rostric'tious on alienation makes transfer easy and safe, while the vast extent of country that is open to settlement and sale, the marvelous growth of great cities and the comparative cheapness of land in all parts of the country, have all com- bined to build up a great traffic in real property, and, as a corollary, an extensive code of laws for its regulation. In considering the subject of real pro^ierty from the stand- point of a vendor or vendee, it will be found that, while the land is what is used and enjoyed, it is the interest in the land, or the duration and extent of the enjoyment, that actually forms the basis of a sale. The former may therefore be aptly described as the property;^ the latter is covered by the com- prehensive term estate, while the right or authority for the exercise of property rights is embodied in the term title. In the succeeding paragraphs of this chapter it is proposed to briefly enumerate and discuss the various subdivisions of these three elementary classes, and in the remaining chapters of the work the incidents that attach to each and the methods of their acquisition and disposal. § 2. Real property generally considered. Under the gen- eiic terai "real property" is included not only land, but all rights and profits arising from or annexed to the same that are of a permanent and immovable nature. These latter are frequently classed as tenements and hereditaments. Tene- ment is said to be a word of greater extent than land, signi- fying everything that may be holden by a tenure; while here- ditament, it is asserted, is still more comprehensive, including both lands and tenements, and in addition whatever may be 1 For many years legal writers to indicate incorporeal as well as have been seeking a compendious corporeal hereditaments is fre- expression that shall fully cover quently confusing and misleading, the corpus, or thing, to which pro- Under a choice of difficulties I prietary rights attach, but thus far have therefore adopted a generally without success. The term "land" received colloquialism. In common has been employed to indicate not speech we speak of property in a only the soil of the earth and its sense which indicates not only the increment, but also those Intangi- ownership of the thing but also the ble things which pass under the thing itself, and this use of the name of "appurtenances." But as term seems to meet the approval "land" has also a definite and re- of the legal profession, stricted meaning, its employment THE PROPERTY. 3 inherited.^ This, however, is one of the abstractions of the medieval Enf!;li.sli lawyers, and has little meaning or signifi- cance in this country at the present time. Land, in its legal signification, comprehends the entire ground or soil of the earth, together with its produce or incre- ment, as vegetation, waters, etc., and has an indefinite extent upwards as well as downwards. It further includes all houses, buildings and structures standing thereon,^ and all minerals, fossils or gases beneath the surface.'* For convenience of classification, real propert}' has further been divided into what is known as corporeal and iiicorporeal; the former consisting wholly of substantial and pennanent objects, and the latter of rights and interests annexed thereto or arising therefrom. Incorporeal property, in the sense in which that term is used in the English law,^ finds but few examples in the United States; and, although the term is in common use, it is mainly confined to that class of rights denominated easements. § 3. Land. In its popular, but at the same time more restricted, signification, land is the solid material of the earth, without reference to the character of the ingredients of which it is composed, whether soil, rock, or other substance; and though for many purposes every species of annexation or appurtenance will be considered under the same head, yet whenever a question has arisen upon such annexations or appurtenances the foregoing definition has always been adopted by the courts, and has even found expression in direct statutory enactment. In some instances state legislatures, with a laudable but misdirected desire to simplify the law 2 Sacket v. Wheaton, 17 Pick. The legal maxim being "cujus est (Mass.) 105; 2 Black Com. 17; 1 solum, ejus est usque ad coelum." Prest. Est. 12; Canfield v. Ford, 2S Broom, Leg. Max. 289. Barb. (N. Y.) 336. s Under this term was included •■5 Sudbury v. Jones, 8 Cush. advowsons and rents, which were (Mass.) 189; Dooley v. Crist, 25 held to be of a real nature. OflSces 111. 551; Green v. Armstrong, 1 exercisable within certain places, Denio (N. Y.) 554. though not annexed to land, were * Kier v. Peterson, 41 Pa. St. said to savor of the realty; and 362; Caldwell v. Fulton, 31 Pa. St. dignities or titles of honor, having 475; Adams v. Briggs Iron Co. 7 been originally annexed to land. Cush. (Mass.) 361; 2 Black. Com, were also considered as real prop- 18; Mott V. Palmer, 1 N. Y. 569. erty. 4 THE SUBJECT-MATTER. and codify elementary principles, have gone so far as to declare that the term "land" includes not only lands, tene- ments and hereditaments, but all rights thereto and interests therein; but, as a rule, these incidents are usually covered under the generic term "real property," and the word "land" is restricted in its signification to the definition first above given. § 4. Minerals. Coal, metals, and minerals of every descrip- tion, while in place, are regarded as land; but, under the system adopted in the United States, mineral deposits and seams beneath the surface may be sold and conveyed by deed entirely distinct from the surface rights. Such a procedure was impossible under the old English system of conveyancing, at least so far as unopened mines were concerned, because livery of seizin was an inseparable incident of every convey- ance, and could not be had of a separate interest in land beneath the surface. Hence, notwithstanding such interests were not, in the proper acceptation of the term, rights issuing out of the land, but the very substance itself, they were usually regarded as incorporeal hereditaments.^ But regis- tration having taken the place of the ancient livery, there is nothing incongruous in considering a grant of the substratum a grant of land as much as a conveyance of the surface itself."^ The general subject of mines and mining is still in a transi- tion stage, and the exigencies of modern methods with respect thereto are constantly developing new questions. In the old days the attention of vendors and purchasers was directed only to the surface, and, as a consequence, the adjudications of the courts related only to such matters as this contempla- tion involved. The owner of the surface was also the owner of everything above and below it, his dominion, or right of property, extending from the zenith to the nadir. The value of the land was usually determined by the arable qualities of the surface or its adaptability for erections thereon. But with the advancement of the science of geology and the devel- c The same view has been taken 475; Knight v. Indiana Coal Co. in some of the states. See Arnold 47 Ind. 110; Marble Co. v. Ripley, V. Stevens, 24 Pick. (Mass.) 109; 10 Wall. (U. S.) 363; Adams v. Thompson v. Gregory, 4 Johns. Briggs Iron Co. 7 Cush. (Mass.) (N. Y.) 81. 361; Riddle v. Driver, 12 Ala. 590. 7 Caldwell v. Fulton, 31 Pa. St. THE PROPERTY. 5 opment of mechanical appliances for penetrating and work- ing below the surface, have come great changes in the stand- ard of values relating to land and a new adjustment of the rights which may be had and exercised therein. Now the surface may be separated from the strata beneath it and there may be as many different owners as there are strata,^ Where the owner of laud sells the iron, or coal, or other mineral con- tained therein, the severance becomes complete for all legal purposes and each separate layer or seam becomes invested with practically the same legal attributes and subject to the same legal incidents as the surface.^ A right to enter upon the lands of another and raise min- erals at a stii)ulated i)rice per ton, or upon any other terms which do not comprehend a sale in gross or for a round sum, stands upon a different footing, and falls strictly within the definition of an incorporeal hereditament.^^ Such a privilege confers no exclusive right and must be exercised in common with the grantor. It is much in the nature of a license, even though, it be irrevocable, and is not equivalent to a sale,^^ even though it is stipulated that the privilege shall be accorded to no one else.^- An incorporeal hereditament, how- ever, can only be transferred by deed with all the formalities required by law for the conveyance of a corporeal right.i^ An express grant of all the minerals or mineral rights in a tract of land is, by necessary implication, the grant also of the right to work them, unless the language of the grant itself rei)els this construction.^-* It also involves the inci- dental right to penetrate the surface of the soil for the min- erals, and to use such, means and processes for the purpose of mining and removing them as may be reasonably necessary, in the light of modern inventions and of the improvement in 8 Lillibridge v. Coal Co. 143 Pa. ^- Johnston Iron Co. v. Cambria St. 293. Iron Co. 32 Pa. St. 241. 9 Chartiers Coal Co. v. Mellon, i3 Thompson v. Gregory, 4 Johns. 152 Pa. St. 2S6. (N. Y.) 81. 10 Johnston Iron Co. v. Cambria n This is the result of the fa- Iron Co. 32 Pa. St. 241; Carnahan miliar maxim that, "when any- V. Brown, 60 Pa. St. 24; Melton v. thing is granted, all the means of Lombard, 51 Cal. 258; Ryckman v. obtaining it, and all the fruits and Gillis, 57 N. Y. 68. effects of it. are also granted." 1 11 Funk V. Haldeman, 53 Pa. St. Shep. Touch. 89. 243. 6 THE SUBJECT-MATTER. the arts and sciences, but without injury to the support for the surface or superincumbent soil in its natural state.^^ § 5. Growing crops. Although growing crops are ordina- rily regarded as personal ])roperty, yet as between vendor and vendee they are held to be realty, and, unless reserved, j^ass to the purchaser of the land as being annexed to and forming a part of the freehold. ^'^ Wliere the vendor has made a sale of all his right, title, interest and estate in the land, it is but fair to suppose that the growing crops entered into the view of the purchaser, and formed part of the consideration for the purchase price which he paid for the land; and this con- struction is the one generally adopted by the courts.^'^ Whether the reservation, as above indicated, must be in writing is a question upon w'hich there seems to be some dis- pute; for, while the rule is undoubtedly absolute that the natural products of the earth, as trees, etc., can only be reserved in writing, it seems that grain, vegetables, and other growing crops that come within the definition fructus indus- triales, may be prevented from passing as realty by a parol reservation.^^ But this doctrine is in direct antagonism with the settled principles of law governing the construction of deeds; and if it is conceded, as it must be, that growing crops, unless reserved, pass as part of the land, and no reser- vation is made in the deed of conveyance, it would naturally follow that parol evidence would be inadmissible to show that an interest did not pass by the deed which the law says did pass. A distinction is made, however, betw^een growing crops and ripened crops, and it has been held that the rule above stated applies only where the crops are immature and have not ceased to draw nutriment from the soil at the time of sale. The ripened crop is said to possess the character of personalty and the fact that it rests upon the land unsevered is of no consequence. In such event the crop is no longer regarded 15 Marvin v. Mining Co. 55 N. Y. i^ Talbot v. Hill, 68 111. 1,06; Bull 538; Wilms v. Jess, 94 111. 464; v. Griswold, 19 111. 631. Turner v. Reynolds, 23 Pa. St. 199. is Backenstoss v. Stahler's Ad- 16 Bear v. Ritzer, 16 Pa. St. 178; m'rs, 33 Pa. St. 251; Johnston v.. Mcllvaine v. Harris, 20 Mo. 457; Tautlinger, 31 Iowa, 502. See, Gibbons v. Dillingham, 10 Ark. 9; contra, Mcllvaine v. Harris, 20 Mo. Smith V. Leighton, 38 Kan. 544. 457. THE PROPERTY. 7 as part of the realty, and hence will not pass to the purchaser of the land.'" § 6. Trees and herbage. As has been shown, the term "land" embraces not only the soil, but its natural produce growing upon and affixed to it.^o Trees and herbage, in place, are therefore integral parts of the realty,-' and pass with a grant of the laud.-- Trees and shrubbery grown upon prem- ises leased for nursery purposes would probably be held to be personal i»roi)erty, as between landlord and tenant; but between vendor and vendee they would pass with the laud unless specially reserved. It is further necessary that suck reservation, if made, shall be in writing. It is no uncommon thing in sales of improved property to make verbal arrange- ments, contemporaneous with the written contract, whereby a reservation is made, or attempted to be made, of fruit trees, ornamental shrubbery, etc.; but, whatever may be the rule in regard to annual crops, it seems certain that with regard to trees the reservation must be in writing, and parol proof of contemporaneous verbal agreements is inadmissible to impair the effect of a written contract. § 7. Manure. In sales of agricultural lands it is a gener- ally accepted rule that manure lying upon the property passes to the vendee as an incident of the land,-^ unless specially reserved in the deed.^^ In a few instances a distinction has been made between manure Ijing in heaps in a barnyard and where it has been placed or spread upon the land,-^ the former being regarded as personalty; but this distinction, which originally was made in favor of tenants, is not gener- ally recognized.-'^ The rule as just stated, however, does not 10 Garanflo v. Cooley, 33 Kan. 23 Kittredge v. Woods, 3 N. H. 137; First Nat. Bank v. Beegle, 52 503; Sawyer v. Twiss, 26 N. H. Kan. 769. 345; Goodrich v. Jones, 2 Hill 20 Harrell V. Miller, 35 Miss. 700. (N. Y.), 142; Fay v. Muzzey, 13 21 Claflin V. Carpenter, 4 Met. Gray (Mass.), 53; Haslem v. Lock- (Mass.) 580; Rich v. Zielsdorf, 22 wood, 37 Conn. 500; Chase v. Win- Wis. 544; Slocum v. Seymour, 36 gate, 68 Me. 204. N. J. L. 139; Carpenter v. Medford, 24 Kittredge v.Woods, 3 N. H. 503. 99 N. C. 495. 2.-, Ruckman v. Outwater. 28 N. J. 22 Smith V. Price, 39 111. 28; L. 581. Sparrow V. Pond, 49 Minn. 412; Mc- 2c The reason for the rule, it is Kenzie v. Shows, 70 Miss. 388; said, is that it is for the benefit Matter ot Chamberlain, 140 N. Y. of agriculture that manure, which 390. is usually produced from the drop- 8 THE SUBJECT-MATTER. apply to manure made in livery-stables, or in buildings uncon- nected with aj^riculturul property and out of the course of husbandry ;-'' nor even in the business of stock-raising, the stock not being fed upon the products of the land.^s In such cases the manure is not considered as incident to the land, and does not pass by a conveyance of it.-'* Nor will the rule apply in sales of agricultural land where only a small portion of the farm is sold, although the manure happens to be piled upon that part.^^ § 8. Aerolites. We have scientific authority for the asser- tion that from six to seven hundred stones, presumably departures from other planets, fall annually upon the surface of the earth. In their general features they may fairly be classed as "accretions," and as such would become the prop- erty of the owner of the fee. The fact that an aerolite is, in one sense, a "lost" or "abandoned" article, does not militate against the position above taken, nor will it belong to the first finder under the general rules of law relating to per- sonalty. Nor will the fact that it is deposited through the medium of air and not of water make it any the less an accre- tion, for every wind is performing the same oflice and remov- ing particles from the land of one proprietor and depositing them on that of another. In their original location aerolites would undoubtedly be classed as realty — integral portions of some planetary' land, and by disintegration and removal through natural causes they become parts of the new location on which they fall. When in place they are as much a part of the land they rest upon as any other natural object and pass by a sale of the freehold. When severed by the owner they are not distinguishable from other stones or mineral deposits.^^ pings of cattle or swine fed upon questions. Fay v. Muzzey, 13 Gray the products of the farm, and (Mass.), 53. composted with earth or vegetable 27 Needham v. Allison, 24 N. H. matter taken from the soil, and the 355; Parsons v. Camp, 11 Conn. 525. frequent application of which to 28 Snow v. Perkins, 60 N. H. 493. the ground is so essential to its 29 Plummer v. Plummer, 30 N. H. successful cultivation, should be 558. retained for use upon the land. •"'o Collier v. Jenks, 19 R. I. 137. Such undoubtedly is the general 31 The subject of ownership in usage and understanding; and a aerolites is comparatively un- different rule would give rise to touched in jurisprudence. The many difficult and embarrassing only case which has come under THE PROPERTY. 9 §9. Houses and buildings. ^Villlin the term "land" are inchidcd all houses and l)iiildiii<;s s(an Goddard v. Chase, 7 Mass. 432; Blethen v. Towle, 19 Me. 252; Stockwell V. Campbell, 39 Conn. 362. 4" See Towne v. Fisk, 127 Mass. 125. 4- Petengill v. Evans, 5 N. H. 54; ings B"k v. Stephens Tool Co. 130 Fratt v. Whittier, 58 Cal. 126. Mass. 547). ^s Peck v. Batchelder, 40 Vt 233. 12 THE SUBJECT-MATTER. vvitlisstauding the connection between tbem may be such that it may be severed without physical or lasting injury to either.-*^ The mode of annexation, while of controlling efficacy as between landlord and tenant, and possibly between executor and heir, is of comparatively small moment as between vendor and vendee — the purposes of the annexation and the intent with which it was made being, in most cases, the important consideration/'^ Physical annexation is not indispensable provided the article is of an accessory character, and in some way in actual or constructive union with the principal sub- ject,''*^ and not merely brought upon it/^ jt ig true the mode of annexation, in the absence of other proof of intent, may become controlling, as where it is in itself so inseparable and permanent as to render the article necessarily a part of the realty ;^^ and even in case of a less thorough method, the man- ner of attachment may still afford convincing evidence that 40 Green v. Phillips, L6 Gratt. (Va.) 752; Smith v. Common- wealth, 14 Bush (Ky.), 31; Par- sons V. Copeland, 38 Me. 537 Keeler v. Keeler, 31 N. J. Eq. 191 Bishop V. Bishop, 11 N. Y. 123 Pea V. Pea, 35 Ind. 387; Philipson V. Mullanphy, 1 Mo. 620; Cohen v. Kyler, 27 Mo. 122; Wadleigh v. Janvrin, 41 N. H. 503; Corliss v. McLagin, 29 Me. 115; Bringhoff v. Munzenmaier, 20 Iowa, 513. Pon- derous articles, although only an- nexed to the land by the force of gravitation, if placed there with the manifest intent that they shall remain, may be fixtures. Wolford V. Baxter, 33 Minn. 12. soMcRea v. Bank, 66 N. Y. 489; Wheeler v. Bedell, 40 Mich. 693; Richardson v. Borden, 42 Miss. 71; Eaves v. Estes, 10 Kan. 314; Leon- ard V. Stickney, 131 Mass. 514; Close V. Lambert, 78 Ky. 229; Thomas v. Davis, 76 Mo. 72; R. R. Co. V. Morgan, 42 Kan. 23. 51 A thing may be said to be constructively attached where It has been annexed, but is separated for a temporary purpose, as in the case of a mill-stone removed for the purpose of being dressed; or where the thing, although never physically fixed, is an essential part of something which is fixed, as in the case of keys to a door, or loose covers to fixed kettles. It is perhaps somewhat on this prin- ciple observes Mitchell, J., that the permanent and stationary machin- ery in a structure especially erected for a particular kind of manufacturing has been held fix- tures, although very slightly or not at all physically connected with the building, because without it the structure would not be com- plete for the purpose for which it was erected. Wolford v. Baxter, 33 Minn. 12; R. R. Co. v. Morgan, 42 Kan. 23. 52 Wolford V. Baxter, 33 Minn. 12. 5:5 Lyle V. Palmer, 42 Mich. 314; Warner v. Kenning, 25 Minn. 173. Poles adapted and used for culti- THE PROPERTY. 13 the intention was to make the article a permanent accession.'** Still there is no universal test; and neither the mode of annex- ation nor the manner of use can ever be said to be entirely conclusive, the express or implied understanding of the parties being usually the pivot on which the question tums.'^^ The greatest ditliculty in the application of the rules for determining fixtures occurs in the case of what may, under ordinary circumstances, be fairly classed as furniture; as, con- trivances for heating and illumination. Lamps, chandeliers and gas-fixtures, generally, are usually regarded as furniture. True, they are often sold with the house, which can hardly be said to be complete without them; but, unless there has been vating hops on a farm have been held to be part of the realty, equally while in use and while lying piled upon the premises. Being intended for permanent use upon the land and necessary for its proper improvement, by simply being placed in heaps for a tem- porary purpose, they would not lose their distinctive character as appurtenant to the land. Bishop v. Bishop, 11 N. Y. 123. 54 Wheeler v. Bedell, 40 Mich. 693; Funk v. Brigaldi, 4 Daly (N. Y.), 359. 55 As, for instance, where the building is constructed expressly to receive the debatable articles, machinery, utensils, etc., and they could not be removed without ma- terial injury to the building; or, where the article would be of no value except for use in that par- ticular building, or could not be removed therefrom without being destroyed or greatly damaged. Mc- Rea V. Bank. 66 N. Y. 489. A rule for determining whether a chattel is so annexed to the realty as to become a part of it is laid down by Bartly, J., in Teaff v. Hewitt, 1 Ohio St. 511, as follows: "From the examination I have been en- abled to give this subject, and a careful review of the authorities, I have reached the conclusion that the united application of the fol- lowing requisites will be found the safest criterion of a fixture: 1, actual annexation to the realty or something appurtenant thereto; 2, appropriation to the use or pur- pose of that part of the realty with which it is connected; 3, the inten- tion of the party making the an- nexation to make the article a per- manent accession to the freehold — this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose or use for which the annexation was made. This criterion furnishes a test of gen- eral and uniform application — one by which the essential qualities of a fixture can, in most instances, be certainly and easily ascertained, and tends to harmonize the appar- ent conflict in the authorities re- lating to the subject. It may be found inconsistent with the rea- soning and distinctions in many of the cases, but it is believed to be at variance with the conclusion in but few of the well-considered ad- judications." 14 THE SUBJECT-MATTER. a special agreement in regard to them, they will not pass under the general clauses of the deed.^^ Mirrors are ordina- rily regarded only as furniture; nor will the fact that they are fastened to the walls for safety or convenience deprive them of their character as personal chattels and make them part of the realty ;^'^ but if they are set in the walls, with frames cor- responding to the cabinet-work, and their removal would leave the walls in an unfinished condition, the rule is other wise-''^ Portable hot-air furnaces have been held to come within the same rule,^'' and would, doubtless, be governed by the same principles; but in this, as in every case involving the questions just discussed, the intention of permanent annexation must decide the matter; and where it appears that either gas-fix- tures'^*' or furnaces ^^ were considered as integral parts of the realty, and as such were to pass with the buildings, effect will be given to such intention, notwithstanding no mention has been made in the deed; and, generally, in all cases of doubt, the rule for determining what is a fixture should be construed most strongly against the vendor.^^ Machinery, though essen- tially of a personal nature, yet when put into a building for manufacturing purposes, becomes part of the realty and passes by a conveyance; and the true criterion in such case is not whether it may be detached and removed from the prem- ises without injury .63 It will, of course, be understood that parties themselves may, by express agreement, fix upon chattels annexed to realty whatever character they may see fit.^"* Hence, property which the law regards as permanent fixtures may be by them 56 Vaughn v. Haldeman, 33 Pa. stones and even the bolting cloth St. 522; Rogers v. Crow, 40 Mo. 91; are parts of the mill and of the McKeage v. Ins. Co. 81 N. Y. 38; freehold, and cannot be levied on Jarechi v. Philharmonic Soc. 79 as personal property (Gray v. Pa. St. 403. Holdship, 17 S. & R. (Pa.) 413; 57 McKeage v. Ins. Co. 81 N.Y. 38. while the mill chains, dogs and 58 Ward V. Kilpatrick, 85 N. Y. bars, being in their appropriate 413. places at the time of conveyance, 59 Towne v. Fiske, 127 Mass. 125. have been held to pass by a deed GO Fratt V. Whittier, 58 Cal. 126. of the mill. Farrar v. Stackpole, G 61 Stockwell V. Campbell, 39 Greenl. (Me.) 154. Conn. 362; Thielman v. Carr, 75 e^ Fratt v. Whittier, 58 Cal. 126; 111. 385. Bartholomew v. Hamilton, 105 62 Fratt v. Whittier, 58 Cal. 385. Mass. 239. 63 Thus the wheels of a mill, the THE PROPERTY. 15 c-oiisiderod as pcr'sonal chatU'ls, and that which, in contempla- tion of law, is regarded only as personalty they may regard as a lixdire; and, whatever may be tlieir agreement, courts will enforce it."'' If the deed is silent in respect to same, or conveys only the realty and its appurtenances, the prior agreement is (•()iiil)etent to show intention and lix the character of annex- ations. On the contrary, if the deed mentions specific fix- tures and personal property, none other, as a rule, will pass tliereby.'^" But while the agreement of parties may, to a certain extent, supersede the general rule of law, such agreements cannot be made to injuriously' affect the interests of third parties who buy without notice. A purchaser of realty, in the absence of notice to the contrary, has a right to presume that he takes the estate with every appurtenance which, under the general rules of law^, passes by a grant of land."^ As to him every permanent improvement or annexation to the land becomes a 03 Smith V. Waggoner, 50 Wis. 155. <<*> It is not contended that par- ties may, by contract, make per- sonal property real or personal at will, but that where an article personal in its nature is so at- tached to the realty that it can bo removed without material injury to it or to the realty, the intention with which it is attached will gov- ern; and if there is an express agreement that it shall remain personal property, or if, from the circumstances attending, it is evi- dent or may be presumed that such was the intention of the parties, it will be held to have retained its personal character. Ford v. Cobb, 20 N. Y. 344; Eaves v. Estes, 10 Kan. 314; Coleman v. Lewis, 27 Pa. St. 291; Hunt v. Iron Co. 97 Mass. 279; Richardson v. Copeland, 6 Gray, 536; Haven v. Emery, 33 N. H. 66. CT Hopewell Mills v. Bank, 150 Mass. 519; Tibbets v. Home, 65 N. H. 242; Union etc, Ins. Co. v. Tillery, 152 Mo. 421. As where a party, under a parol permission or a license, places upon the land of another a permanent improvement, with the right, when he desires, to enter and take it therefrom, he may exercise that right at any time before the permission or license is revoked by the land- owner, and probably would have the right to enter and remove the fixture within a reasonable time after the revocation, and it would seem that any subsequent vendee, who purchased the land with no- tice of such parol agreement or license, and of the Interest of the parties in the fixture, would be bound by such agreement. But this is the limit of the doctrine, and it cannot be carried to the ex- tent of binding or affecting inju- riously third parties to whom the land has been conveyed without reservation and to whose notice the parol license had not been brought. Rowland v. Anderson, 33 Kan. 264. 16 THE SUBJECT-MATTER. lixture, which cannot be withheld or removed; and though there are cases which seem to hold a contrary doctrine, they are not sustained by the volume of authority.*'^ § 12. Mortgaged chattels affixed to realty. Very intricate questions will sometimes arise between vendees of realty and third persons claiming rights or equities in what are ordinarily termed fixtures. As between vendor and vendee the law is now well settled, and the same principles that apply to contro- versies between the parties will usually be effective as between the parties and third persons where nothing has occurred to impart notice of outstanding rights and interests. But where third persons, prior to the purchase by the vendee, have acquired substantial rights, such as would be protected and enforced w^ere it not for the purchase, the law is not so clear. With respect to the integral parts that go to make up a building — the bricks, boards, etc. — it is doubtful whether even direct and positive notice would avail to preserve the cred- itor's rights or liens of third persons, except as they might be saved by a properly secured mechanic's lien; as these things, by being incorporated into the building, lose their individual- ity and identity, and become absorbed in and made a part of the realty rather than a simple annexation to it. With respect to ponderous and bulky articles, or articles which, after annexation, still preserve their original form and identity, and are capable of severance, a different rule would seem to pre- vail. Articles of this kind are legitimate subjects for fixtures, and are of that class of property about which the law permits parties to contract so as to control, as between themselves, their character after being affixed, making them either per- sonal property or real estate. The mortgaging of such articles as personal property would, as between the parties and those having notice thereof, make them such. Hence it has been 68 Haven v. Emery, 33 N. H. 66; nances without reservation to one Dostal V. McCaddon, 35 Iowa, 318; who continues the business of Houx V. Seat, 26 Mo. 178; Rowand hotel-keeping upon the premises, if V. Anderson, 33 Kan. 264; Powers such sign is attached so as to be V. Dennison, 30 Vt. 752; Westcott immovable without force, and was V. Delano, 20 "Wis. 541. A hotel so placed with the intent of its sign is a fixture and appurtenant remaining a permanent sign for to a hotel, so as to pass by a con- the hotel. Redlon v. Barker, 4 veyance of the hotel and appurte- Kan. 382. THE PROPERTY. 17 held that where the owner of land executes a mortgage upon chattels which may properly be made fixtures, and subse- quently aflixes them to the laud, no [M^^rson having knowledge of such facts can, by purchase of the realty or otherwise, ac(iuire from the mortgagor any title to such chattels para- mount to the lieu created by the mortgage thereof.*^''* «'J Sowden & Co. v. Craig, 26 Iowa, 156; and see Denham v. Sankey, 38 Iowa, 271. In the case of Ford V. Cobb. 20 N. Y. 344, salt kettles were bought by the owner of the fee and mortgaged to the seller as personalty to secure the purchase money, and were after- ward affixed to the freehold by being set in brick foundations, from which they could be re- moved only at an expense of $50. It was held that such salt pans re- tained their character as personal chattels as against the subsequent purchaser of the realty who had no notice of the chattel mortgage other than that constructively given by the filing of the chattel mortgage for record. Eaves v. Estes, 10 Kan. 314, arose between the vendee of the freehold and a chattel mortgagee, the purchaser of the freehold having no notice of the chattel mortgagee's lien. The property mortgaged was an engine put into and used as motive power in a mill. The court say: "But when we consider the purpose of the parties as evinced by the mort- gage to make the engine retain the character of a chattel regardless of its attachment to the mill, and as the mortgage violated no prin- ciple of law, wrought no injury to the rights of others, and was in the interest of trade, we have no doubt that the engine continued to be personal property." But see Voorhees v. McGinnis, 48 N. Y. 278. In Tifft V. Horton, 53 N. Y. 377, 2 the New York court of appeals held that neither a prior nor sub- sequent mortgagee of land can claim, as subject to the lien of his mortgage, chattels brought upon and affixed to the lands under an agreement between the owner of the fee and the owner of the chat- tels that the character of the latter as a personal chattel is not to be changed. Folger, J., in delivering the opinion of the court, said: "While there can be no doubt that the intention of the owner of the land was that the engine and boil- ers should ultimately become part of the realty and be permanently affixed to it, this was subordinate to the prior intention expressed by the agreement. That fully shows her intention and the intention of the plaintiff that the act of an- nexing them to the freehold should not change or take away the char- acter of them as chattels until the price of them had been fully paid; and as parties may, by their agree- ment expressing their intention so to do, preserve and continue the chattels as personal property, there can be no doubt but that, as between themselves, the agreement in this case was fully sufficient to that end." See, also, Sheldon v. Edwards, 35 N. Y. 279; Shell v. Haywood, 16 Pa. St. 523. The fol- lowing cases also tend to support the doctrine of the text: Russell v. Richards, 10 Me. 429; Hensley v. Brodie. 16 Ark. 511; Crlppen v. Morrison, 13 Mich. 34. 18 THE SUBJECT-MATTER. This doctrine has been expressly controverted, however, fn other eases, where it has been lield that, where the articles in question are actually and firmly annexed to the freehold in as permanent and substantial a manner as is usual and as is adapted to the nature and objects of their employment, though capable of being- removed without injury to the building, they thereby become, and are presumed to be, a permanent acces- sion to the freehold; and that the execution of a chattel mort- gage thereon prior to annexation is not sufficient to overthrow this presumption and raise the contrary one of an intent to preserve their personal character. Hence, it is contended, such articles, becoming a part of the realty, will pass to a vendee upon his purchase of same, while the remedy of the mortgagees will be against those who wrongfully converted the personal into real propertyJ^ So, also, it has been held that, although the parties concerned may make a binding agreement that what would otherwise be a fixture shall be regarded as personalty, such agreement will not affect the rights of a subsequent vendee or mortgagee of the realty with- 70 As where K., being the owner large portion of the engine was of a mill, erected a substantial there being repaired, K. gave a building adapted to contain ma- chattel mortgage upon them to W., chinery; he placed therein a steam and, after the repairs were com- engine, boilers, shafting, etc.; the pleted and the machinery in run- boilers were set in brick, while the ning order, gave another upon shafting and gearing were con- them and other property to M. structed with special reference to After the repairs and before the the place, were adapted to the na- last chattel mortgage he gave an- ture and objects of their employ- other real-estate mortgage upon ment, and were firmly fastened to the premises. The plaintiff ac- the building, but could be removed quired title upon foreclosure and without injury to the walls. They sale under the two real-estate were put up without special intent mortgages. W. and M. subsequently on the part of K. either of making removed the machinery covered by them a part of the freehold or of the mortgages. In an action to removing them at a future time, recover possession, held, that the K. borrowed the money to make property was part of the freehold the improvements, giving a mort- and passed to plaintiff upon his gage on the property. Soon after, purchase. Voorhees v. McGinnis, the old boilers were taken out and 48 N. Y. 278; and see Pierce v. replaced by new ones. While the George, 108 Mass. 78; Tibbetts v. new boilers were at the shop in Moore, 23 Cal. 208; Curry v. process of construction, and a Schmidt, 54 Mo. 517. THE PROPERTY. 19 out notice of it/^ and that Ihi' delivering and filing of a chat- tel mortgage upon the property which is the subject of the agreement does not constitute the required notice.'^- The weight of authority fully supports the rule last stated; and it is believed that the wisdom of such latter rule will be manifest ujton careful investigation, as being more in accord- ance with the policy of our laws relative to notice, registration, etc." ^ 13. Chattels left upon land. It will hardly be eon- tended by any one that detached articles, distinctively per- sonal in their nature, left upon realty by the vendor at the time of a sale, would, by the conveyance, pass to the vendee, unless the articles were such as had been or were intended to be actually employed in connection with the land. In this lat- ter event they might, without doing violence to any known precedent or rule of law, be properl}' classed as fixtures; as where poles used during the season for supporting vines were at the time of sale piled up and unemployed."^ But generally a chattel must be actually or constructively affixed to the hind to permit it to pass by a deed of the land without special men- tion.'"' Hence, where wood, rails, timber, stone or other articles of a strictlj' personal nature are upon the land at the time of sale, they will, notwithstanding, retain their character, and, unless mentioned in special terms, will not pass by the deed.'^® The rule alstr seems to be settled that the title to chattel prop- erty lying upon land at the time of sale, but reserved by 71 See Case Mfg. Co. v. Carver, 752; Hunt v. Iron Co. 97 Mass. 13 N. B. Rep. (Ohio) 493; Ridge- 279; Trull v. Fuller, 28 Me. 545; way Stove Co. v. May, 141 Mass. Haven v. Emery, 33 N. H. 66; 557; and see Fortman v. Goepper, Prince v. Case, 10 Conn. 375; Dos- 14 Ohio St. 565; Hopewell Mills v. tal v. McCaddon, 35 Iowa, 318; Bank, 150 Mass. 519. Throop's Appeal, 70 Pa. St. 395. 72 On the principle that an in- ^4 Bishop v. Bishop, 11 N. Y. 123. strument, to afford constructive ^r. Woodman v. Pease, 17 N. H. notice by registration, must appear 282; Peck v. Brown, 5 Nev. 81; among the records of interests af- Carpenter v. Lewis, 6 Ala. 682; fecting real estate, see Case Mfg. Teaff v. Hewitt, 1 Ohio St. 511. Co. v. Carver, 13 N. E. Rep. (Ohio) to Cook v. Whiting, 16 111. 480; 493; Brennan v. Whitaker, 15 Ohio Woodman v. Pease. 17 N. H. 282; St. 446. Peck v. Brown, 5 Nev. 81. 73 See Powers v. Dennison, 30 Vt. 20 THE SUBJECT-MATTER. the vendor from the conveyance, does not become vested in the grantee of the hind by mere lapse of time and neglect of the grantor to remove it, however long continued. So long as the landowner merely suffers it to remain without demanding a removal or setting up any adverse claim, no title vests in liim through delay. Even if the delay amounts to an abandon- ment, this does not necessarily pass title to the land-owner.'^''' § 14. Aqueducts, conduits and pipes. The exigencies of modern commerce have introduced many appliances that, from the nature of their use or the manner of their construc- tion, can properly be classed only as real property notwith- standing their apparent similitude to those things which usually pass under the name of personalty. The authorities w^hich tend to fix the status of these aijpliances deal mainly with the subject on questions raised under the taxing power of the state, but are equally effective in declaring the rule which shall apply between vendor and vendee. Under the broad principle that ''land" includes all increments, fixtures and tenements of every kind connected therewith and all rights thereto as well as all interests therein, it has been held that conduits and pipes used to distribute water, gas, oil, etc., partake of the nature of realty and are properly classed as such. While such pipes are the property of the owner of the soil in or upon which they rest, no question will probably arise. In such event they may properly be regarded as fixtures, perma- nent in character and a part of the land which sustains them. But where they are constructed and operated by parties who have no title to the soil, or at most but a license for their occu- pation, their classification becomes one of doubt. In England it would seem that such property would be regarded as per- sonalty,^^ and in this country they have in several instances been classed as chattels.''^'' So far as the subject has been con- sidered with respect to the purposes of taxation, the general tendency seems to be to regard them as realty. As to whether they are to be considered as appurtenant to the place of sup- T7 Noble V. Sylvester, 42 Vt. 146. 78 Waterworks v. Bowley, 17 In this case a quantity of building Q. B. (Eng.) 358. stone was left upon the land, but 79 See, Commissioners v. Gaslight a special reservation of same was Co. 12 Allen (Mass.), 75; Gaslight made in the deed. Co. v. State, 6 Cold. (Tenn.) 310. THE PROPERTY. 21 plj, i. e., reseivoir, pumping station, power house, etc., there is some difference of opinion. The cases which so contend,^'* and yet chiss them as realty, seem to be founded on a wrong l)rinciple, as hind cannot be appurtenant to land, nor should they be considered in the same light as house drains or erec- tions of that character. While the question is yet one of doubt, particularly when applied to the relation of vendor and vendee, the better solution seems to be that mains, i^ipes, con- duits, etc., in place, may be considered real property and sub- ject to the rules which govern in this branch of the law.^^ §15. Submerged lands. The question as to the owner- ship of soil covered by water, particularly in the case of nav- igabh' lakes or rivers, is one which each state its at liberty to determine for itself in accordance with its local law and public policy; and though, such ownership is a right which properly Ix'longs to them in tlieir sovereign capacity, they have, in many instances, conceded it to the riparian proprietor. By the civil law, the soil of a navigable stream covered by water, as well as the use of the stream, belongs to the public, while the common law^ vested in the sovereign, for the public use, the title to the soil under all waters where the tide ebbs and flows. The doctrine of the common law, together with its test of navigability-, having been found unsuitable to the wants of our large and extensively watered country has, in a majority of the states, been superseded by rules based upon the civil-law doctrine. By these rules the state retains, as a prerogative right, the title to the soil under its navigable waters, as well as the use of these waters, w'hich it holds in a fiduciary rela- tion for the public use. This right is usually jealously guarded by the state, and private ownership upon navigable waters has been rigorously restricted to the low-water line;^^ yet courts of high authority and undoubted learning have not hesitated to say that land under navigable water may be held in j)rivate ownership, subject to the public rights of navigation 80 See, Oskaloosa Water Co. v. 2 R. 1. 15 ; Water Co. v. Lynn, 147 Board of Equalization, 51 N. W. Mass. 31; People v. Casslty, 46 Rep. 18; Hutchins v. Masterson, 46 N. Y. 46. Tex. 534. ^- Goodwin v. Thompson, 15 Lea 81 See, Pipe Line Co. v. Berry, (Tenn.), 209; Lincoln v. Davis, 53 52 N. J. L. 308; Gas Co. v. Thurber, Mich. 375. 22 THE SUBJECT-MATTER. and fishery ;S3 and in many instances the state has voluntarily surrendered to the riparian proprietor all its rights not incon- sistent with public navigation. Where the rule last stated is permitted to obtain, the rights of the riparian owner, in the case of rivers, are regarded as extending to the center or thread of the stream,^* ad filum aqua; and the same rule would doubtless apply in the case of lakes and ponds of circumscribed area and regular shore lines.^^ But while the rule is unquestioned that grants which bound upon a river or stream extend to the center line, provided there be no limitation in the terras of the grant itself, it is equally well settled that the principle does not apply to grants bounding on the great inland lakes or other large bodies of standing fresh water. In this respect a new rule of law has been enunciated, differing radically from that laid down by the common law. In England, where the common law had its origin, there were no great inland seas, and consequently no precedent can be found in the jurisprudence of that country which determines the applicability of the common-law doc- trine of riparian rights to questions of this character. A slight analogy will be found in the resemblance of the great lakes to the seas which surround the island of Great Britain; and it has been said that this would seem to call for the appli- cation of the same principles as to boundaries w^hich were applied to lands bordering on those seas, with this difference : 83 Hogg V. Beeman, 41 Ohio St. precision, says: "But if the water 81. This case referred to one of continues so shallow as to render the navigable bays of Lake Erie, the lands under it susceptible of where the soil was claimed under beneficial private use to the center a grant made or sanctioned by the line of the narrow lake, then I general government. have no hesitation in saying that 84 Rice V. Monroe, 36 Me. 309; I think the riparian ownership ex- Luce V. Carnley, 24 Wend. (N. Y.) tends to such center line. If the 451; State v. Canterbury, 28 N. H. water becomes so deep as to render 195; Cox V. Freedley, 33 Pa. St. the lands under It incapable of 124. such individual use, the question 85 In Rice v. Rudiman, 10 Mich, of ownership beyond where it is 139, in speaking of Lake Muskegon, available for s jch purpose becomes the court, after stating that the as barren as the use itself, and is real question is not whether the of no practical importance what- outward limits of private owner- ever." ship in the lake can be defined with THE PROPERTY. 23 as there is no periodical ebb and (low of tide in llic walcrs of the lakes, tlie limit should be a low-water instead of lilj^h- vvatcr mark.'**' Where the ruh' i)r('vails that the title of a riparian owner on a na\ijiable stream is bounded by oi'dinary hij^h- water mark, while he still has certain riy,hts in the land between high and low-water mark, yet these rights are peculiar to himself, and cannot be sold or transfei'red by him indei)end- ently of a conveyance of the land to which they are appur- tenant.^^ On the other hand, where the right of a rii)arian proprietor u])on navigable waters to imi)rove and reclaim submerged lauds to the point of navigability is recognized, it would seem that notwithstanding this right was originally incident to the riparian estate it may yet be separated there- from and transferred to another.^'"* § 16. Water. It has been said to be vitally essential to the public peace and to individual security that there should be distinct and acknowledged legal owners for both the land and water of the country,^'' and that property in w ater, and in the use and enjoyment of it, is as sacred as in the soil over which it Hows."'' But water, from its peculiar nature, is not susceptible of the same use or possession as land, and prop- erty therein is at best a mere usufructuary right; and in every case, where of snliicient volume and dej)th, such right is sub- servient to the public right of navigation. If the water is not navigable it is, for all practical purposes, the property of the owner of the subjacent soil; and in any event he is entitled to every beneficial use of the same w^hich can be exercised with a due regard for the rights of the public."^ In the case of running water the riparian proprietor has a right to the use and enjoyment of it and the benefits to be 80 Lincoln V. Davis, 53 Mich. 375. ker v. Bates, 13 Pick. (Mass.) The subject will receive further 255; Pike v. Munroe, 36 Me. 309. consideration in treating of the **» Gavitt v. Chambers, 3 Ohio, construction of grants. 497. «7 Steele v. Sanchez, 72 Iowa, 65; »o Lorman v. Benson, 8 Mich. 32; Musser v. Hershey, 42 Iowa, 356; Wadsworth v. Tillotson, 15 Conn. Phillips V. Rhodes. 7 Met. 322. 366. sn Hanford v. Ry. Co., 44 N. W. oi Gary v. Daniels, 5 Met. (Mass.) Rep. (Minn.) 1144; Gilbert v. Em- 236. erson, 55 Minn. 254, and see,. Bar- 24 THE SUBJECT-MATTER. derived from it as it flows tln'oii<;li his own land; but, as this right is common to all throiirobably because the soil, not being named and not being incident to water, cannot be considered as embraced by that word.^ By the laws of some of the western states, ditches for min- ing and irrigation purposes are declared real propeii:^', and the laws of these states relative to the sale and transfer of land are made applicable thereto.- § 17. Ice. While ice is only water in a congealed state, it nevertheless luiHakes largely of the general characteristics of land, and is capable of an ownership not unlike that by which land is held. It has been held to be connected with, and in the nature of, an accession to the land, being an increment arising from formations over it, and belonging to the land properly, as being included in it, in its indefinite extent upwards j-"^ and such, no doubt, must be the character accorded to it so long as it remains in place upon the soil.* In this condition it would certainly pass as a portion of the realty upon a sale of the land to which it is attached. The general rules which govern riparian proprietors in the use and enjoyment of water apply with, practically the same force and effect in respect to ice. That is, if the policy of the state permits ownership beyond the bank of a navigable water way the ice which forms upon the stream contiguous to his land will be the property of the adjacent land owner ;^ if, on •the other hand, the local public policy restricts ownership to the shore instead of the thread of the stream, then the ice 122; White v. Chapin, 12 Allen registration, probably it does. (Mass.), 516; Steffy v. Carpenter, Gest v. Packwood (U. S. C. Ct. 37 Vt. 41. Oreg. 1888). 9« Domat, b. 1, tit. 1, sec. 1 ; Rrac- •» Washington Ice Co. v. Shortall, ton. b. 4. 101. 111. 46; State v. Pottmeyer, 33 99 1 Burr. 143; 22 Edw. IV. pi. 8, Ind. 402. p. 24. 4 Hydraulic Co. v. Butler. 91 Ind. 12 Bl. Com. 19. 134; Woolen Mill Co. v. Smith, 34 2 Whether this includes the reg- Conn. 462; Lorman v. Benson. 8 istration of deeds or conveyances Mich. 18; Brown v. Brown, 30 N. Y. of such ditches may be a ques- 519; Brooklyn v. Smith, 104 111. tion; but, as the effect or operation 429; Pine v. Woods, 108 Mass. 160. thereof depends to some extent on ''> Washington Ice Co. v. Shortall, 26 THE SUBJECT-MATTER. which forms theroou would undoubtedly be public i^roperty which might be made the subject of private ownership by simple appropriation.*^ Ice has not been much dealt with as property, however, until very modern times, and for this reason no settled body of legal rules has been agreed upon concerning it. In the determination of questions which have arisen in regard to it, recourse has usually been had to common-law principles; yet these principles, in the main, are not strictly applicable. So far as the principles of the common law go, they have usually if not universally treated nothing movable as realty unless either permanently or organically connected with the land; while the tendency of modem authority, especially in regard to fixtures, has been to treat such property according to its purposes and uses as far as possible. In its essentials, ice is only the product of water which has become fixed by freezing; in this condition it draws nothing from the land, and if removed will lose its identity by melting. It has no organic connection with the land, and if severed can only be joined to it again by the alternate process of melting and freezing. It is, in many cases, liable to disruption and con- sequent loss to the freeholder by being swept away, while its ephemeral character renders it-incapable of any pennanent beneficial use as part of the soil, and it attains its greatest value onl}^ when removed from its original position. Kegard- ing it, therefore, in this light, and with reference to its uses in fact as a commercial commodity, while it may for many purposes justly be regarded as part of the realty when resting in place, yet a sale of ice already formed, as a distinct and specific article, may properly be regarded as a sale of per- sonalty, whether in or out of the water.''^ § 18. Oils and gases. Earth oils and volatile gases occupy 101 111. 46; Brooklyn v. Smith, 104 authority upon the question of the 111. 429; State v. Pottemyer, 33 validity of contracts for future Ind. 432. uses or interests in ice not yet 6 Wood V. Fowler, 36 Kan. 682; formed; and whether such deal- Woodman V. Pittman, 76 Me. 456. ings are to be regarded as leases T Higgins v. Kusterer, 41 Mich, or licenses, or executory sales, 318; and see Washington Ice Co. v. may still be considered as an open Shortall, 101 111. 46. The writer question, has been unable to find any direct THE PROPERTY. 27 miu'li the same positiou in the hiw of real property as water. They are usually classed as minerals, possessing, in some de.uree, a kindred nature. They are fully included in the comprehensive term "land," and ai-e a part of the soil in which, they are found so long as they remain in place.** Being thus regarded as land it follows that they may be made the subject of special agreements and sold separate from the soil in which they are confined. They possess, however, substan- tially the same general attributes as water, and therefore cannot be, in any just sense of the term, the subject of a grant as of a cori)oreal interest. In this respect they differ materially from coal, ores, etc. At best, the grant of oils or gases, or of the right to sink shafts and extract same, is a license, and is governed by the rules which apply to licenses.^ T^nllke otJier minerals they have the power as well as the tendency to escape without the volition of the owner and when this occurs the title is lost.'° § 19. Church pews. Inclosed seats in churches do not appear to have been known, according to the modern use and idea, until long after the Reformation, and were not in gen- eral use until about the middle of the seventeenth century. Prior to that time no separate seats were allowed except in a few instances, and the body of the church was common to all. They constitute a subject of very peculiar ownership, and have given rise to some very remarkable decisions. According to the English idea the interest of a pew-holder is of an incorporeal nature only — an easement, as it were — and consists mainly of the right to enter and occupy during the celebration of divine service. In this country, in the absence of a statute declaring their status, they are generally considered as partaking of the nature of realty ;^^ and the owner has been held to have an exclusive right of possession sGerkins v. Salt Co.. 100 Ky. Vt. 593; Barnard v. Whipple, 29 Vt. 734; Peoples' Gas Co. v. Tyner, 131 401; Sohier v. Trinity Church. 109 Ind. 277; Williamson v. Jones, 43 Mass. 1; Bnimfleld v. Carson, 33 W. Va. 562. Ind. 94; Presbyterian Church v. 9 Dark v. Johnston, 55 Pa. St. Andruss, 21 N. J. L. 325; and see 164. Church v. Wells. 24 Pa. St. 249; JO Westmoreland Gas Co. v. De Price v. Lyon, 14 Conn. 279; Third Witt, 130 Pa. St. 235. Presby. Church v. Andrus. 21 N. iiO'Hear v. De Goesbriand, 33 J. L. 325. 28 THE SUBJECT-MATTER. and enjojmeut, for the purposes of public worship, not as an easement, but by virtue of an individual rifiht of property.^^ This right, however, even though it be regarded as an interest in realty, does not extend to the fee,^"* and for all practical purposes is usufructuary only.^^ Though it be not an ease- ment in name, it is such in reality ;^'5 for as between the pew- owner and the church corporation, his right is simply one of occupancy, in the mode prescribed by the rules of the church or agreed upon at the time of the purchase.^ ^ It has been held that the right to a pew can only be transferred in the manner provided for the transfer of real property ;^'^ and where the rights conferred are absolute and the entire property vested in the pew-owner, such would undoubtedly be the rule; yet, as a matter of fact, the old system of pew conve3'ances has almost become obsolete. Deeds are no longer given in the majority of churches, and the sittings are let by what amounts to nothing more than a mere license, differing in no essential particular from that employed in the sale of seats in places of public amusement. It would seem also, that even when pews are regarded as realty, and as such subject to the incidents of realty, yet the rights of the pew holder are very limited in their scope and do not extend to confer a legal interest in the church edifice or the materials of which it is composed, nor to the land on which it stands.^ ^ Such interest is further limited in point of time, and if the building is burned or falls into decay which renders it useless the right of the pew holder is lost.^^ § 20. Burial lots. As a rule the purchaser of a cemetery 12 O'Hear v. De Goesbriand, 33 Me. 245; Sohier v. Trinity Church, Vt. 593; Church v. Andruss, 21 N. 109 Mass. 1. J. L. 325. 1" Barnard v. Whipple, 29 Vt. i'^ Gay V. Baker, 17 Mass. 435; 401; and see Vielie v. Osgood, 8 Baptist Society v. Grant, 59 Me. Barb. (N. Y.) 130; Brumfield v. 245; Kincaid's Appeal, 66 Pa. St. Carson, 33 Ind. 94; Livingston v. 411. Trinity Church, 45 N. J. L. 237; 1^ Craig V. Presbyterian Church, Price v. Lyon, 14 Conn. 279. 88 Pa. St. 42; Gay v. Baker, 17 is Gay v. Baker, 17 Mass. 435; Mass. 435. Matter of Reformed Dutch Church, in Union House v. Rowell, 66 Me. 16 Barb. (N. Y.) 237. 400; Van Houten v. Ref. Dutch lo Freligh v. Piatt, 5 Cow (N. Church, 17 N. J. Eq. 126. Y.) 494; Voorhees v. Presby. 16 Baptist Society v. Grant, 59 Church, 17 Barb. (N. Y.) 108. THE PROPERTY. 29 lot takes no title to the soil. The grant is in the nature of a license or privilege to make interments in the plot described, exclusive of others, so long as the ground shall remain in such use.'^ Such right is, however, real property. It may be sold and transferred to others, if nothing in the grant pre- vents, and is to be treated generally as an incorporeal here- ditament. § 21. Appurtenances. Land is ordinarily conveyed together with the hereditaments and appurtenances thereunto belong- ing. An appurtenance is described in general tenns as some- thing belonging to another thing as principal, and which passes as an incident to such principal thing.^i Thus, in a grant of lands, everything passes which is necessary to the full enjoyment thereof and which is in use as incident or appurtenant thereto. But land is never appurtenant to land.-- nor will the term carry with it any rights or interests in the property of the grantor on other lands which he owns,^^ neither can it be made to include anything not situate on the laud described in the deed, even though it belongs to the grantor and is used by him in his business.-^ It is designed only to pass rights and privileges of an incorporeal character, and of these only such as are directly necessary to the proper enjoyment of the granted estate. § 22. Easements. An easement is generall}'^ defined as a right in the owner of one parcel of land, by reason of such ownership, to use the land of anotlier for a special purpose not inconsistent with a general property in the owner i-'^ and it may still further be defined as an incorj)oreal right existing in favor of, and imposed upon, corporeal i)roperty. The con- verse of an easement is denominated a serviture. The land to which the privilege is attached is called the dominant estate, and that against which it exists the servient estate; 20 Kincaid's Appeal, 66 Pa. St. ■-•"• 2 Wash. Real Prop. 25. In the 411; Rayner v. Nugent, 60 Md. 515. old books it is defined as a priv- 21 Bouv. Law Diet. 136. ilege which the owner of one ad- 22 Grant v. Chase, 17 Mass. 443 ; jacent tenement hath of another, Leonard v. White, 7 Mass. 6; Bar- existing in respect to their several rett V. Bell, 82 Mo. 110. tenements, by which that owner 23 Frey v. Drahos, 6 Neb. 1 ; Og- against whose tenement the priv- den V. Jennings, 60 N. Y. 526. ilege exists is obliged to suffer or 24 Frey v. Drahos, 6 Neb. 1. not to do something on or in re- 30 THE SUBJECT-MATTER. and as these rights are not usually personal, and do not change with the persons who may own the respective estates, it is very common to personify the estates as themselves own- ing or enjoying the easements. An easement is technically created only by a grant or con- firmation; but such grant may be implied when the existence of the easement is necessary to the enjoyment of that which is expressly granted or reserved, upon the principle that where one grants anything to another he thereby grants to him the means of enjoying it, whether expressed or not;-^ and in pursuance of this principle the general rule is that, in every deed of a part of the grantor's land without express provision on the subject, there is an implied grant or reservation of all easements of necessity for the enjoyment of the part con- veyed or the part retained.^'^ Generally, however, the rule which creates an easement, without an express reservation, upon the severance of two tenements or heritages by the sale of one of them, is confined to cases where some apparent sign of servitude on the part of one in favor of the other then exists which would indicate itself to one reasonably familiar with the subject, upon an inspection of the premises.^^ An easement may also be established by prescriptive user from which a grant is inferred; but, in respect to the acqui- sition of easements in this manner, no universal rule of law as to the effect in evidence of particular facts can be laid down. Whether long-continued use of an easement is adverse or is in subordination to the title of the true owner is a matter of fact, to be decided, like other facts, upon the evi- dence and upon the circumstances of each particular case.^^ Where an easement is established by prescription or inferred from user it is limited to the actual user,^^ Easements are classed as appurtenant or in gross; but so far as their capacity for independent alienation is concerned the classification is immaterial. Whether an easement is gard to his own land for the ad- ^s Butterworth v. Crawford, 46 vantage of him in whose land the N. Y. 349; Providence Tool Co. v. privilege exists. Termes de la ley, Corliss Co. 9 R. 1. 564. Easements; Bouv. Law Diet. -'••Bradley's Fish Co. v. Dudley, -'« Lanier v. Booth, 50 Miss. 410. 37 Conn. 136. 27 Dillman v. Hoffman, 38 "Wis. ^'o Brooks v. Curtis, 4 Lans. (N. 559. Y.) 283. THE PROPERTY. 31 appurtenant or appendant to an estate in fee in lands, or in gross, to the person of the grantee for life or for years, it is equally incapable of alienation or conveyance in fee. When in gross it is purely personal to the holder and cannot be assigned, nor will it pass by descent; when appurtenant it is attached to, or incident to, the land and jiasses with it, whether the land be conveyed for a temi of years, for life or in fee. Being an incident to the land, it cannot be separated from or transferred independent of the land to which it inheres.^' § 23. License. In the common law the word "license" is of early, constant and well-defined use, as applied to the con- cession of certain rights by the owners of land to a third party. In this relation it imparts to the licensee rights resem- bling, though not identical with, an easement. It is generally defined as an authority to do some one act or series of acts on the land of another without passing any estate in the land;^- and the right or property thus conferred is of that class denominated incorporeal hereditaments. A license may be created by parol; but if it constitutes a permanent right or confers an}' interest in the land must be by grant,^^ and when such -license is coupled with an interest by reason of the paj'mcnt of price or other act, it has been held that the authority conferred is not a mere permission, but amounts to a grant which obliges the grantor and vests legal property in the grantee.^"* Licenses which, in their nature, amount to the granting of an estate, though for ever so short a time, are considered as leases.2^ A license, being a mere privilege founded in personal confi- dence, ceases with the death of either party, or with a sale •■ii Wash. Easements, 10; Koelle V. nances,' without being expressly Knecht, 99 111. 496. "They are in named." the nature of covenants running •''-•Cook v. Stearns, 11 Mass. 536; with the land," says the court in Mumford v. Whitney. 15 Wend. Garrison v. Rudd, 19 111. 558, "and, (N. Y.) 390. like them, must respect the thing •'•'Chute v. Carr, 20 Wis. 531; granted or demised, and must con- Cook v. Stearns. 11 Mass. 536. cern the land or estate conveyed. •'<* Rerick v. Kern, 14 S. & R. They pass by a conveyance of the (Pa.) 267; Metcalf v. Hart. 3 Wyo. land, under the term 'appurte- 513. 35 Cook V. Stearns, 11 Mass. 536. 32 THE SUBJECT-MATTER. or conveyance of the land/'" and cannot be transferred or alienated by the Hcensee,^'^ and, if executory, is revocable at an}' time at the pleasure of the grantor."'^ When executed, in whole or in part, the question of revo- cation is one of great diflSculty to properly determine and respecting which courts of the highest standing have arrived at widely ditlering conclusions. The better doctrine would seem to be that when the licensee has made valuable improve- ments or expended money in consequence of the extension of the privilege it then becomes irrevocable so far as such revo- cation may injuriously affect him,^^ and usually courts of equity will not permit the revocation of a license when it has been given to influence the conduct of another and has caused him to make large investments.'^^ A license operates as a protection for any act done under it while in force, but after revocation the licensee will become a trespasser and as such may be evicted by the land owner. A sale and conveyance of the land will itself amount to a revocation of a previous license and the purchaser may imme- diately bring his action to recover possession.^^ The main difference between an easement and a license lies in the fact that the former must arise in grant, while the latter, conveying no estate or interest in the land, may rest in parol; yet the distinction is very subtle, and it becomes difficult in many cases to discern a substantial difference between them.*^ § 24, Franchises. A franchise, in its original form, was a royal privilege or prerogative of the king, subsisting in the subject by a grant from the crown; and, except that the grant comes from the people in their sovereign capacity, the general 36 Hodgkins v. Parrington, 150 126; Baldock v. Atwood, 21 Or. 73. Mass. 19; Kremer v. Ry. Co. 51 4o Curtis v. Water Co., 20 Org. Minn. 15. 34; Thomas v. Irrigation Co., 80 3T Johnson v. Babcock, 4 Johns. Tex. 550. (N. Y.) 418; Prince v. Case, 10 4i Kremer v. Ry. Co., 51 Minn. Conn. 375; Dark v. Johnston, 55 15; Eggleston v. R. R. Co., 35 Barb. Pa. St. 164; but see, Keystone (N. Y.) 162; and see, Galway v. Lumber Co. V. Kolman, 94 Wis. 465. Ry. Co., 128 N. Y. 132; Lamm v. 38 De Haro v. United States, 5 Ry. Co., 45 Minn. 73. Wall. (U. S.) 599; Mumford v. ^2 Mumford v. Whitney, 15 Wend. Whitney, 15 Wend. (N. Y.) 380. (N. Y.) 380; Thompson v. Gregory, 38 Flicicinger v. Shaw, 87 Cal, 4 Johns. (N. Y.) 81. THE PROPERTY. 33 foaturcs have not been clianj^ed in this country. In the law of real property the term is ordinarily applied to grants for the maintenance of bridges, ways and ferries,*^ The grant of a franchise creates a vested property right, and, unless expressly restricted to the person of the grantee as an individual privilege, is alienable in the same manner as other fomis of real property.-** § 25. Property in adverse seizin of a third person. ''From an early dale," observes Mr. Washburn,^"' "the policy of the law has not admitted of the conveyance by any one of a title to land which is in the adverse seizin and possession of another;" and this has always been one of the fundamental principles of the common law.*^ As such, it has been recog- nized and enfoi'ced in all of the older states of the Union, and deeds made under those circumstances have in many instances been declared void.^^ Such deeds were considered as passing no title, but simply as the transfer of a mere right of action; and, being in violation of the early laws against champerty iind maintenance, the courts refused to sustain them.^s This doctrine prevailed for many years, and still obtains, though in a less obnoxious form, in a few of the states;^'-' but even in states where such conveyances are discouraged, they have ■*3 Under the English law the title included a large number of subjects wholly unknown in Amer- ica, as forest, chase, free-warren, fishery, etc. 4-iDufour V. Stacey, 90 Ky. 288; Lippencott v. Allander, 27 Iowa, 460. •»n3 Wash. Real. Prop. (4th ed.) 329. 4« Co. Lit. 214; 4 Kent's Com. 446. 4T Jackson v. Demont, 9 Johns. (N. Y.) 55; Thurman v. Cameron, 24 Wend. (N. Y.) 87; Early v. Garland, 13 Gratt. (Va.) 1; Michael V. Nutting, 1 Ind. 291; Dexter v. Nelson, 6 Ala. 68; Ring v. Gray, 6 B. Mon. (Ky.) 368; Way v. Ar- nold, 18 Ga. 181 ; Brinley v. Whit- ing, 5 Pick. (Mass.) 348; Betsey v. Terrence, 34 Miss. 132; Heirs v. Kidd, 3 Ohio, 541; Dame v. Win- gate, 12 N. H. 291. •*8 The ancient policy, which pro- hibited the sale of pretended titles, and held the conveyance to a third person of lands held adversely at the time to be an act of main- tenance, was founded upon a state of society which does not exist in this country. The repeated stat- utes which were passed in the reigns of Edw. I. and Edw. III. against champerty and mainte- nance, arose from the embarrass- ments which attended the adminis- tration of justice in those turbu- lent times from the dangerous in- fluence and oppression of men in power. See 4 Kent's Com. 477. ■«» See Sohier v. Coffin, 101 Mass. 179; Jones v. Monroe, 32 Ga. 188. 34 THE SUBJECT-MATTER. been held to be good against the grantor and all other persons except the adverse possessor/'*' The doctrine, however, does not tiud favor in the United States,^^ and is fast becoming obsolete. It has lost much of its force where still adminis- tered; and in most of the states, while the earlier decisions may seem to have adopted it as part of the common law of the state, it has been swept away by express statutory enact- ment. Under these statutes any one claiming title to land, although out of possession, and notwithstanding there may be an actual adverse possession may sell and convey the same as though in the actual possession, and his deed will give the grantee the same right of recovery in ejectment as if the grantor had been in the actual possession when he conveyed,^^ Where the doctrine is still recognized a deed of laud of which the grantor is disseized is not wholly void. It is good as between the parties, and it gives to the grantee the right to recover possession to his own use in the name of the grantor. So, too, while it may be that no title passes which will support a real action in the name of the grantee, or give him a right of entry against the disseizor or those claiming under him,^^ j^^ n jg settled that, if the grantee obtains possession of the land, he can unite that possession to his title acquired by such deed, and so, by way of estoppel and to prevent a circuity of action, defeat a real action brought bj the disseizor to recover the same. The disseizin is ter- minated b}' the entry and occupation of one who claims title by deed from the true owner, and not adversely, and the latter as well as all those from whom by successive deeds the title is derived are estopped by their several deeds to deny that title. So, although the deed gives to the grantee no right of entry, because such right is not assignable at common law, yet if he enters and obtains possession, even 50 University v. Joselyn, 21 Vt. ey, 14 Wis. 468; Carder v. McDer- 52; Abernathy v. Boazman, 24 Ala. mott, 12 Tex. 546. 189; Hamilton v. Wright, 37 N. Y. r,-' Chicago v. Vulcan Iron Works, 502. 93 111. 222; Crane v. Reeder, 21 51 Roberts v. Cooper, 20 How. Mich. 82; Stewart v. McSweeney, (U. S.) 467; Cresenger v. Welch. 14 Wis. 468; Roberts v. Cooper, 20 15 Ohio, 156; Drennan v. Walker, How. (U. S.) 467. 21 Ark. 539; Stewart v. McSween- f".:! Land v. Darling, 7 Allen (Mass.), 205. THE PROPERTY. 35 against the wishes of the party in possession, the title is thereby made good against the hitter, and cannot l»e dispnted in an action which pnts the title directly in issne. In an action of trespass the grantee may not be able to jnstify such eutiy, but it does not follow for that reason that he luis no defense to a real action. He does not by his tortious entry forfeit his right to recover possession in the name of the grantor, and because he has this right the demandant is not allowed to set up his claim in a real action against him.''-* •'•'See Wade v. Lindsey, 6 Met. Ill Mass. 148; Rawson v. Putnam, (Mass.) 407; Farnum v. Peterson, 128 Mass. 552. Art. II. The Estate. § 26. Definition. § 36. Estates at will and by suffer- 27. Estates at common law. ance. 28. Estates under the statute. 37. Joint estates. 29. Fee-simple. 38. Estates by entirety. 30. Fee-tail. 39. Contingent interests and es- 31. Estates for life. tates. 32. Dower. 40. Expectancies and naked pos- 33. Curtesy. sibilities. 34. Homesteads. 41. Powers. 35. Estates for years. § 26. Definition. An estate^ has been defined as the degree, quantity, nature and extent of interest which a person has in real property ;2 and in every sale of land direct reference is had to the estate to be conveyed, whether the same receives specific mention or not; and this estate, unless limited by express words, is usually held to be all that the vendor possesses. He cannot convey a greater estate, no matter w^hat language may be used; but should he assume so to do, and to warrant the interest thus purported to be sold, he will be estopped to deny that he did not so possess the same if at any subsequent period he should perchance acquire it. §27. Estates at common law. The main ingredients of estates are classified as quantity and quality. Quantity has reference to the duration and extent of estates, and occasions their primary division into such as are freehold^ and such as are less than freehold. The former has been described as an 1 In Latin, status, because it sig- one given in the text, however, is nifies the condition or circumstance its true technical meaning, in which the owner stands with •'' This was called, in the ancient regard to his property. books, liberum tenementum, frank - 1 Bouv. Law Diet. 539. The tenement, or freehold, and was for- term is also used in a general and merly described to be such an es- extensive sense as applied to lands tate as could only be created by and houses — as, "my estate at livery of seizin, a ceremony similar Blank," etc.; and in the case of de- to the investure of the feudal law. cedents this sense has acquired a Since the introduction of modern legal signification, including per- conveyancing this definition has, of sonal as well as real property. The course, no application. 36 THE ESTATE. 37 interest in lands or other real property, held by a free tenure,* for the life of the tenant or that of some other person, or for some uncertain period. The test seems to lie in its indeter- ininajte duration; for if the utmost period of time to which an estate can last is fixed and determined, or may be deter- mined by the volition of another, it is not, under the common- hnv rules, an estate of freehold.'"' Quality refers to the tenure by which the estate is held, and to the manner of its enjoy- ment, as absolutely, jointly, in common, etc. Freeholds are themselves divided into estates of inheritance and estates not of inheritance; the former comprisin^f estates of unqualified ownership and potentially infinite duration, the latter estates for life, or those of indefinite duration which may endure for a life. Allodial titles beinjjf unknown to the common law, the larj?- est estate which a subject could i)ossess in land was termed a fee, or, as usually written, a fee-simple. This term was derived from the feudal system, and oripjinally signified the tenure by which the land was held. In itself it denoted a full power of disposition during the life-time of the tenant and of descent to his heirs upon his death. But the British laud system was always highly complex and very artificial, and the fee, in many cases, was hedged about with a large number of what to us now^ seems a bewildering maze of limi- tations, conditions and restrictions, amid the subtilties of which even the astute common-law conveyancer often floun- dered in helpless confusion. The fee was divided into fee-simple absolute, fee-simple conditional and fee-simple 4 Upon the introduction of the fore, was called a freeholder, be- feudal law, all the lands in Eng- cause he might maintain his posi- land became holden either by a tion against his lord. See Cruise free or a base tenure. The tenant Dig. tit. I, s. 16. who held by a free tenure had al- •> Thus, if lands are conveyed to ways a right to the enjoyment of a man and his heirs forever, or for the land for his life at least, and the term of his natural life, or un- could not be dispossessed, even for til he is married, he has an estate the non-payment of his rent or the of freehold; but if lands are lim- non-performance of his services; ited to a man for five hundred whereas the tenant who held in years, or for ninety-nine years, if •villenage might be turned out at he shall so long live, he has not the pleasure of his lord; the per- an estate of freehold. 2 Bl. Com. son holding by a free tenure, there- 386. 38 THE SUBJECT-MATTER. qualified, or base fee, or, as sometimes called, a determinable fee.^ Growing out of these estates was a vast number of reversions, remainders, etc., in many cases very complex, and all bearing evidence of the highest degree of legal ingenuity in their several inventors. Notably among the devices con- trived to perpetuate power and wealth in the hands of certain families was the system of estates-tail, which almost wholly restrained the power of alienation, and the land continued to pass to successive heirs, in the order named by the donor, until default of issue caused a reverter. Estates were limited upon estates, apparently without end, and remainders were created upon remainders for the benefit of generations far in the future. The greatest nicety was observed in the creation of all common-law estates, of whatever kind and nature, and great stress was laid upon the employment of the language by which they were raised. § 28. Estates under the statute. In most of the states the nature and quality of estates in land have been formally defined and fixed by statute, and while in a majority of instances the common-law nomenclature has been retained, the common-law incidents have generally been greatly modi- fied or abolished. Estates of inheritance and for life are usually classed as freeholds; while estates for years, without regard to the period of duration, are denominated chattels real, and subjected to chattel incidents.'^ Estates at will or by sufferance are generally regarded as mere chattel interests. With respect to the time of their enjoyment, estates are said to be in possession or expectancy — the former being where the owner has an immediate right to possess and enjoy the land, the latter where the right to possession is postponed to a future period. Estates in expectancy are themselves divided into future estates and reversions. A future estate is an estate limited to commence in possession at a future day, either without the intervention of a precedent estate or on the determination, by lapse of time or otherwise, of a 6 The principle is still retained v. Hill, 1 N. H. 350; Spangler v. under what is termed a conditional Stanler, 1 Md. Ch. 36; Chapman v. limitation. Gray, 15 Mass. 439. 7 See 2 Bl. Com. 386; Brewster THE ESTATE. 39 precedent OHtate created at the Kame time. When a future estate is dependent upon a precedent estate it i.s called a remainder, and may ordinarily be created and transferred by that name. Reversions remain as at common law, and are the residue of estates lef( in the ^i-antor or his heirs, commenc- ing; in iK)sseHsion on the determination of particular estates granted.*^ Entailed estat<'s, with all their incidents, have been gen- erally abolished, and as a rule every future estate is void in its creation which suspends the absolute power of alienation for a longer period than during the continuance of two lives in being at tlie creation of the estate,'' except that a conting- ent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited shall die under the age of twenty- one years, or upon any contingency by which the estate of such persons may be determined before they attain their full age.i*^' The limitation of successive estates for life is no longer permitted unless to persons in being at the creation thereof; and ordinarily, when a remainder skall be limited on more than two successive estates for life, all the life estates subse- quent to those of the two persons first entitled thereto are void, and ujjon the death of those persons the remainder takes effect in the same manner as if no other life estate had been created. Usually no remainder can be created upon an estate for the life of any other person than the grantee of such, estate, unless such remainder be in fee; nor can any remainder be created upon such an estate in a term for years, unless it be for the whole residue of the term. § 29. Fee-simple. Freehold estates of inheritance are usually denominated estates in fee — a name borrowed from the ancient laud system of England, but of far greater import here than there. It signifies an absolute estate of inheritance, clear of any restrictions to particular heirs, and is the largest estate and most general interest that ean be enjoyed in land, 8 The rtpfinitions of the text ap- in being by whom an absohite fee ply generally to all of the states in possession can be conveyed, which have followed the lead of '"An exception is also made New York. when land has been granted to 8 Such power of alienation is sus- literary or charitable corporations pended when there are no persons for their sole use and benefit. 40 THE SUBJECT-MATTER. being the entire property therein, and confers an unlimited power of alienation.'! The estate is wholly comprised in the word "fee," although it is customary to describe it as a ''fee- simple," and in some instances as ''fee-simple absolute." It has been said that the term "simple" has been added for the purpose of showing that the estate is descendible to the heirs generally, without restraint to the heirs of the body, etc.;' 2 and possibly if the American estate were identical with its English prototype this explanation would have significance; but as a matter of fact as well as law the addition of the word "simple" adds nothing to the force or comprehensiveness of the term.' 3 The creation of the estate was formerly very technical, and was raised only by a grant to a man and his heirs; hence, as Littleton'^ quaintly observes, "if a man would purchase lands or tenements in fee-simple, it behooveth him to have these words in his purchase; to have and to hold to him and his heirs; for these words (his heirs) make the estate of inherit- ance." For many years the rule as stated by Littleton pre- vailed in the United States; but more recently the statute has abrogated the common-law rule, and every estate in lands w^hich may be granted, conveyed or devised is deemed a fee- simple or estate of inheritance, if a less estate is not limited by express words or created by construction or operation of law.'^ § 30. Fee-tail. Donations of land were originally simple and pure, without any condition or modification annexed to them; and the estates created by such donations were held in fee-simple. In course of time, however, it became custom- ary to make donations of a more limited nature, by which the gift was restrained to some particular heirs of the donee, exclusive of others; as, to the heirs of a man's body, by which only his lineal descendants were admitted, in exclusion of collateral heirs; or to the heirs male of his body, in exclu- sion both of collateral heirs and lineal female heirs.'® These 11 Haynes v. Bourn, 42 Vt. 686. deed purports to convey all the in- 12 1 Prest. Est. 420. terest and title of the grantor it 13 Jecks V. Toussing, 45 Mo. 167. will be given effect accordingly. 14 Lit. § 1, ch. 1, b. 1. Thomas v. Chicago, 55 111. 403. 15 Leiter V. Sheppard, 85 111. 242; 10 These limited donations seem Fash V. Blake, 38 111. 363. Where a to have come into use in England THE ESTATE. 41 estates were known as estates in fee tail, being estates of inheritance, but descendible only to some particular heirs of the persons to whom they were granted, and not to theii- heirs- general.^^ Th(,' object was to preserve great lauded proper- ties intact to particular families by restricting the power of alienation; and the estate continued so long as there was posterity in the regular order of descent, but determined as soon as it reached an owner who died without issue. One of the marked characteristics of American law is its abhorrence of perpetuities and of all devices calculated to place restraints upon free alienation. This early became man- ifest in respect to estates-tail; and while the estate cannot be said to be altogether abolished, it has been so modified that where land is given to one and the heirs of his body begotten the entail extends only for one degree. Thus, the about the end of the reign of Henry II., and were probably in- troduced for the purpose of re- straining the power of alienation, which at that time had become general in the case of fee-simple estates. But the propensity which then prevailed to favor a liberty of alienation induced the courts of justice to construe limitations of this kind in a very liberal man- ner; and, instead of declaring that these estates were descendible to those heirs only who were particu- larly described in the grant, ac- cording to the manifest intention of the donors and the strict prin- ciples of the feudal law, and that the donees should not in any case be enabled by their alienation to defeat the succession of those who were mentioned in the gift, or the donor's right of reverter, they had recourse to an ingenious device taken from the nature of a condi- tion. The estate was regarded as a conditional fee; that is, it was held to be granted to a man and the heirs of his body on condition that he had such heirs; and as soon as issue was born the estate became absolute by the performance of the condition, while the right of alien- ation might be freely exercised. From this mode of construing con- ditional fees the purposes for which they were intended were completely frustrated; and, there- fore, the nobility, in order to per- petuate their possessions in their own families, procured the statute of Westm. 2, 13 Edw. I., commonly known as the statute De Donis, which provided that the will of the giver, according to the form in the deed manifestly expressed, should be observed, "so that they to whom a tenement was so given under condition should not have power to alien the same tenement, whereby it should remain after the death of the donees to their issue, or to the donor or his heir if issue failed." See Cruise. Dig. tit. II. 17 It is called an estate-tail, or a fee-tail, from its similarity to the feodum talliatum. which appears to have been well known at that time. 42 THE SUBJECT-MATTER. douee would take a life estate, while the second taker would have the remainder in fee. § 31. Estates for life. An estate for life is a freehold inter- est in lands, both at common law and under the statute, the duration of which is confined to the life or lives of some particular person or persons, or to the happening or not happening of some uncertain event.^*^ It confers upon the tenant the jjossession and enjo^Tiient of the land during the continuance of his estate, while the absolute property and inheritance of the land itself is vested in some other person. Such estates are created in two ways: either expressly, as b}'' deed or other legal assurance, or by the operation of some principle of law;^'' but the incidents are much the same in either case. Whenever lands are conveyed to a man for the term of his own life he is called tenant for life; but where he holds for the life of another he is, in technical parlance, tenant pour aider vie; and in like manner where a person having an estate for his own life, either by express limitation or by the operation of some principle of law, grants it over, the grantee becomes the tenant pour avter vie. Estates for life will generally endure as long as the life or lives for which they are granted ; but there are estates for life which may determine upon future contingencies before the death of the person to whom they are granted. Thus, if an estate be given to a woman so long as she remains single, or during her coverture, or as long as the grantee shall dwell in a particular place, etc., — in all these cases the grantees would have estates for life, determinable on the happening of uncer- tain events. Every tenant for life has a right to the full use and enjoy- ment of the land, and of all its annual profits during the continuance of the estate. He also has the power of'alienating his whole estate and interest,^*' or of creating out of it any less estate than his own, unless restrained by positive condi- tion; and while any attempt to create a greater estate than his own must necessarily be void, upon the principle that a man cannot convey that which he does not possess, yet his 18 Cruise, Dig. tit. 3. -'o Roseboom v. Van Vechten, 5 19 Stewart v. Clark, 13 Met. Denio (N. Y.), 414. (Mass.) 79. THE ESTATE. 43 deed will nevertheless be operative and eU'ective to pass what- ever estate or interest he has.-* § 32. Dower. Among the life estates derived from the com- mon law is tliat which a widow acquires in a certain portion of her husband's lands, after his death, for her support and maintenance. This estate is known as dower, and is said to have been derived from the Germans, among whom it was a rule that a virgin should have no marriage jjorlion, but that the husband should allot a jjart of his property for her use in case she survived him.22 From an early day this seems to have been a part of the common law of England, receiving frequent mention in the royal charters and concessions, and at Littleton's time had assumed much the same condition that it retains to-day; for, in speaking of it, he says: ''Tenant in dower is where a man is seized of certain lands and tene- ments in fee-simple, fee-tail general, or as heir in special tail, and taketh a wife, and dieth; the wife, after the decease of her husband, shall be endowed of a third part of such, lands and tenements as were her husband's at any time during the coverture; to have and to hold the same to the wife in severalty, by metes and bounds, for term of her life; whether she hath issue by her husband or no, and at what age soever the wife be, so as that she be past the age of nine years at the time of the death of her husband."-^ But the common-law right of dower no longer exists in the United States, the rights of the surviving wife in the real property of her deceased husband being those created by statute alone, and whatever incidents may have attached to the ancient estate have either been swept away or incorporated in the rights derived under the statute. No uniform measure, either as to quantity or 21 This is directly the reverse of the reversion was divested, such the ancient doctrine, for fealty was conveyance was held to operate as the main tenure by which these a forfeiture of the life estate. In estates were formerly held; hence the United States this matter is they were for many years consid- now very generally regulated by ered in many respects as strict statutes which provide that no feuds, and forfeitable for many of deed of a tenant for life or years the causes for which feuds were shall work a forfeiture, or shall formerly forfeited. Hence if a ten- operate to pass a greater estate ant for life attempted to convey a than he could lawfully convey, greater estate than he possessed, -- Cruise, Dig. tit. VI. whereby the estate in remainder or -'-^ Litt. § 36. 44 THE SUBJECT-MATTER. quality, has been adopted; but in the main the estate con- ferred upon the widow conforms to that of the common law, and consists of the use, during her life, of one-third x>art of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage. During the life-time of the husband the wife has only an inchoate right, which is not an estate in the land, but a mere contingent interest that attaches to the land as soon as there is the concurrence of marriage and seizin.^^ This interest becomes fixed and certain upon the death of the husband, and after assignment of dower develops into a freehold estate in the land.25 During coverture the wife's inchoate right of dower is incapable of being transferred or released, except to one who has already had, or by the same instrument acquires, an independent interest in the land.^^ The right is not such an estate as can be leased or mortgaged;-'^ neither can a married woman bind herself personally by a covenant or contract affecting her right of dower during the marriage. Hence, a deed executed by husband and wife with covenants of war- ranty does not estop the wife from setting up a subsequently- acquired title to the same lands,^^ During the marriage, no act of the husband alone can bar or extinguish this interest but a woman may be barred of her dower by jointure, settled upon her before marriage, or by joining with her husband in a deed of conveyance, properly acknowledged. The release of dower which a woman makes by joining with her husband in a conveyance of his land operates against her only by estoppel, however, and can be taken advantage of only by those who claim under that conveyance ;29 and if the convey- ance is void or ceases to operate, she is again clothed with the right which she has released. 24 Witthaus V. Schack, 105 N. Y. 27 Croade v. Ingraham, 13 Pick. 332. (Mass.) 33. 25 Elmdorf v. Lockwood, 57 N. Y. 28 Jackson v. Vanderheyden, 17 322; Johnson v. Montgomery, 51 Johns. (N. Y.) 167. 111. 185. 29Mallony v. Horan. 49 N. Y. 2fi Robinson v. Bates, 3 Met. Ill; Locket v. James, 8 Bush (Mass.) 40; Tompkins v. Fonda, 4 (Ky.), 28; French v. Crosby, 61 Paige (N. Y.), 448; Reed v. Ash, Me. 502. 30 Ark. 775; Marvin v. Smith, 46 N. Y. 571. THE ESTATE. 45 The inchoate rij^ht of dower, tlierefoie, not being the Hubject of a conveyance in any of the usaal forms by which real proj)- erty is transferred, and the doctrine of estoppel by which subsequently-acquired titles are made to inure to the benefit of foraier grantees being inaitplicable, it follows that the grantee or mortgagee claiming under an instrument executed by a married woman during coverture acquires no title or interest in the dower of the grantor or mortgagor when the estate becomes absolute, whether dower has been assigned or not.30 But in all cases where the wife unites with her husband in a conveyance properly executed by her, which is effectual and oi>erative against him, and which is not superseded or set aside as against him or his grantee, her right of dower is forever barred and extinguished for all purposes and as to all persons.3^ Upon the death of the husband the inchoate right of the wife acquired by the marriage becomes absolute; yet she has no estate in the lands of her deceased husband until her dower has been admeasured and assigned,^- and her rights therein can| only be released to the owner of the fee or to some one in privity with the title by his covenants of war- ranty .^^ After assignment the widow acquires an estate of freehold in the land allotted in severalty, and her life estate therein possesses all the attributes of other estates for life, including the right of alienation.^"* § 33. Curtesy. Another life estate derived from the com- mon law is that which a husband acquires in his wife's lands by reason of the marital relation, called an estate by the curtesy .^^ Originally this estate was raised only when the 30 Marvin v. Smith, 46 N. Y. 571; thus prevent a breach of his cove- Carson v. Murray, 3 Paige (N. Y.), nants. La Framboise v. Crow, 56 483. III. 197. 31 Elmdorf v. Lockwood, 57 N. Y. " » Dower is probably the only ex- 322. isting use in which a title that is 32 Johnson v. Montgomery, 51 111. complete and unopposed by any ad- 185. verse right of possession does not 33 As where the former owner of confer upon the person in whom it the fee in land in which dower is vested the right of reducing it rights still exist has conveyed the to possession by entry before as- same with warranty, he may pur- signment. Hoots v. Graham, 23 111. chase the right for the benefit of 81. his grantee, however remote, and 35 The full title of this ancient 46 THE SUBJECT-MATTER. husband had issue by the wife; for before that event the husband had onh' an estate during the joint lives of himself and his wife. The law that a husband who had issue should retain the lands of his deceased wife during his life seems to have prevailed among all the northern nations;^*' and when the customs of the Normans were reduced to writing this law was inserted among them and established in England, probably during the reign of Henry I. The estate is described in the ancient books as ''where a man taketh a wife seized in fee-simple, or in fee-tail general, or seized as heir in special-tail, and hath issue by the same wife, male or female, born alive; albeit the issue after dietli or liveth, yet if the wife dies the husband shall hold the land during his life, by the law of England. "^'^ While the right of the husband as tenant by the curtesy has been expressly given by statute in some of the states, and incidentally recognized as an existing legal estate in others, yet in a majority of them tenancy by the curtesy has been abolished, the husband being given a statutory allowance from the deceased wife's estate, the quantity and quality vary- ing in the different states. In many the husband and wife are made statutory heirs to each other; and in such cases the husband takes the same share in the deceased wife's estate which she would, on surviving, take in his; in others the estate has been reduced to extremely meager propo.'tions, and accrues only in such lands as the wife owned at the time of her death, and of which she had made no valid disposition by last will and testament. By the rules of the common law, marriage, seizin of the wife and birth of living issue were absolutely necessary to the existence of this estate; but these two latter incidents are estate was "estate by the curtesy law it is not peculiar to England, of England," and was so called for but may be found, more or less the reason that, unlike dower, it modified, in the ancient laws of was not regarded as resting upon the other parts of the British any moral foundation, and was islands and the northern conti- therefore granted as a simple cur- nental nations. It has even been tesy, or an estate by the favor of held by some writers that the cus- the law of England. Cruise, Dig. tom may be traced to one of the tit. V; 2 P. Wms. 703; Litt. § 35. rescripts of the Emperor Constan- ts Notwithstanding that this es- tine. See 4 Kent's Com. 28. tate is derived from the common 37 Litt. § 35. THE ESTATE. 47 practically^ if not expressly, abolished in every state in the Union. Seizin, as formerly understood, i.s no louder necessary for the creation or descent of any estate; and marriage, witli- out respect to issiu", is sullicient to confer the riyiht if recog- nized at all. Subject to the fore^^oin*,^ it may be stated {generally that a tenant by the curtesy may convey' his estate by deed or incumber it by mortgage,^^ and it seems such estate may be seized and sokl on execution to satisfy creditors,^'* tliough this has been denied."*^ § 34. Homesteads. To the estates derived from the com- mon law the statute has added another which in its essential characteristics has no analogy in the law. It is called a home- stead, and is a constitutionally guaranteed right annexed to land, whereby' the same is exempted from sale under execution for debt. In man}' — perhaps a majority — of the states the home- stead right is but a mere privilege of occupancy against cred- itors, the continuance of which depends upon the continuance of prescribed conditions,^^ but in others it has been raised into an estate, limited only as to its value, and not by any specific degree of interest or character of title in the particular property to which it attaches; and where the worth of the property does not exceed the statutory valuation the estate practically embraces the entire title and interest of the house- holder therein, leaving no separate interest in him to which liens can attacli or which he can alien distinct from the estate of ho'mestead.'*^ As the character of the title is not usually considered material in the creation of homestead estates it follows that it may attach to an equity. Hence, if one has possession of land, under a. contract for the purchase thereof, he may impress it with the homestead character the same as if he held the fee. In such event the land in his hands will be held subject only to the lien of the vendor for the unpaid :t« Forbes v. Sweesy. 8 Neb. 525; ■*! Brame v. Craig, 12 Bush (Ky.). Deming v. Miles, 35 Neb. 739; 404; Casebolt v. Donaldson, 67 Mo. Shortall v. Hinckley. 31 111. 219; 308; Drake v. Kinsell. 38 Mich. Mettler v. Miller, 129 111. 630. 232; Hill v. Franklin, 54 Miss. 632. •■!!> Deming v. Miles, 35 Neb. 739, ■»'-2 Merritt v. Merritt, 97 111. 243. 4" Welsh V. Solenberger, 85 Va. 441, 48 THE SUBJECT-MATTER. purchase money, and should he afterwards acquire the legal title, under the terms of the contract, the homestead right will attach thereto and be superior to any claim to the land which accrued after his original acquisition.'*^ The land to which the homestead estate attaches, must, as a rule, consist of one com})act body, and while two lots imme- diately contiguous, the combined area or value of which does not exceed the statutory limit, may be regarded as coming within this rule,^' yet this is probably as far as it can be made to extend. Two tracts of land which touch only at one point will not, it seems, suffice,^^ nor can the right be claimed in a tract wholly isolated."**^ The estate of homestead, having been raised by law as a protection to the family, is personal in its character, and exists only in favor of one who already possesses some other recognized estate in the land. It is therefore incapable of alienation except in connection with other interests, but w'hen so joined may be a proper subject of sale, mortgage or release. The interest of the householder, if a married man, is always shared by the wife; and her consent, manifested by a partici- pation in the act of conveyance, is always necessary to com- plete the devolution of title. So far as the estate bears resemblance to the common-law estates, its general features are more nearly allied to estates for life; and modem writers, whenever an attempt has been made to definitely locate it, have usually classed it in that category. § 35. Estates for years. It would seem that after the Nor- man conquest, while the demesnes of the lords of manors w^ere generally cultivated by their villeins, to whom small tracts of land were allotted for their support and maintenance, to be held at the mere will of the lord, yet as to those persons whose condition was free it became customary to grant them lands for a certain number of years, to be held in consideration of a return of com, hay or other portion of their crops. By this means they acquired a certain interest in their lands, though 43 Alexander v. Jackson, 92 Cal. 229; Arendt v. Mace, 76 Cal. 315. 514; McKee v. Wilcox, 11 Mich. 45 Linn Co. Bank v. Hopkins, 47 358; Dortch v. Benton, 98 N. C. Kan. 580; Kresin v. Mau, 15 Minn. 190. 119. 44 Grimes v. Portman, 99 Mo. 4g Walters v. People, 18 111. 194. THE ESTATE. 49 much inferior to an estate of freehold; yet notwithstanding this pei-niaueut intcivst their possession was esteemed of so little consetiiieiict' that they were rather considered as bailiffs or servants of the lord than as having any estate in the land, and their interest mi«;ht be, and oft times was, defeated by a recovery in a real action.'^ A tenant fur years was not said to be seized of tlie land, the possession not having been given to him by the ceremony of livery of seizin; nor did the mere delivery of a lease vest any estate in the lessee, the interest acquired being only a right of entry; but after he had actually entered the estate became vested in him, and he was then possessed, not properly of the land, but of the term of years — the seizin of the freehold still remaining in the lessor. In its modern aspects the estate for years exhibits but few of the numerous subtleties and refinements which formerly characterized it. It is simple in form and popular in use, and with the exception of the fee is the most common estate known to our law. In its essentials it is a right to the posses- sion of land for a certain specified tinie, and, unlike estates for life, is never created by act of law, but always by the contract of the parties. It is inferior in rank to a life estate, however long it may last; and, not rising to the dignity of a freehold, is at best but a chattel interest. It is created and perfected by the execution and delivery of a lease for the term, and in this respect differs materially from the old estate of the English law,^'^ which required an actual entr}'. It may be limited to commence presently or in futiiro, and, unless restricted by the terms or conditions of the grant, may be sold and assigned the same as other real property. An estate for years may be terminated by expiration of its owm limitation, by a surrender of the term prior to that event, 4" The recoverer was supposed to years could be created by a lease come in by a title paramount, and or other common-law conveyance therefore not bound by the con- without an actual entry made by tracts of the prior possessor. See the person to whom the land was Greenl. Cruise, tit. VIII, ch. I. granted; for although the grantor <8 By the common law upon the had done everything necessary on execution of a lease the lessee ac- his part to complete the contract, quired an interest called interesse so that he might never afterwards termini, which he might at any avoid it, yet until there had been time reduce to possession by an a transmutation of possession by actual entry, but no estate for actual entry of the grantee, it §0 THE SUBJECT-MATTER. by forfeiture for condition broken, and, in some instances, by merger. § 36. Estates at will and by sufferance. A tenant at will is one who lias no .sure or certain estate, but holds at the pleasure of his lessor, who at any time may dispossess him. The tenancy is created only by the entry of the lessee, and may be terminated as soon as commenced. The terms ''at will" and '"by sufferance" are frequently employed in conjunc- tion to indicate any estate of indeterminate duration depend- ing solely on the pleasure of the landlord; yet, as a matter of law, the interests which they represent are separate and distinct. A tenant by sufferance, technically speaking, is one who, having been originally lawfully invested, continues to hold over after the determination of his estate, and is by the owner suffered to remain in possession.^^ In the former case, the tenant having acquired possession by the consent of the owner, there is between them a privity of estate ; in the latter, being much in the nature of a trespass, there is none. The interest of a tenant at will is the most precarious that can be had in real property; and, because the lessor may determine his will and oust the tenant whenever he pleases, such tenant possesses nothing that can be granted by him to a third person. But although a tenant at will can transfer no rights to another, and a person who assumes to come in under liim is only a trespasser, yet if such person claims a right of occupancy by virtue of such an assignment, and such claim is allowed or recognized by the owner of the superior estate, he then becomes a tenant at will the same as his predecessor.^^ § 37. Joint estates. With respect to the number and con- nection of the owners, lands may be held in severalty or jointly, the fonner being where a person holds the same in lacked the chief mark and indica- continue in possession after the tion of his consent, without which determination of the preceding es- he could not be said to be in pos- tate. Greenl. Cruise, tit. IX. Usu- session or liable for the use. See ally, however, the statute has re- Greenl. Cruise, tit. VIII, ch. I. versed this, and as a penalty for 49 Tenants at sufferance were not withholding the property imposes liable by the common law to pay upon the tenant double rent, any rent, because it was the folly ■'"'O Landon v. Townshend, 129 N. of the owners to suffer them to Y. 166. THE ESTATE. 61 his own rij^ht with, no other person joined or connected with him in point of interest during the estate therein; the latter wherv two or more persons take either an estate of inheri- tance, for life or for ^ears, without any restrictive, exclusive or explanatory words.'*^ Foi-'inerly joint estates w<'re divided into those of joint tenancy, coparcenary, and common. Joint tenancy was always created by ])urcliasc — that is, by act of the parties — and accrued only by one and the same conveyance; it was char- acterized by the great underlying principle of unity, which extended both to the interest, the title and possession; and this union and entirety of interest gave rise to another incident called the jus accrescendi or right of survivorship. As the right of survivorship was often attended with hardship and injustice, courts of equity at an early day took great latitude in construing against joint tenancies on the ground of intent, while by statute in the United States the general rule is that all estates vested in twoi or more persons are to be deemed tenancies in common, unless a different tenure is clearly expressed or implied in the instrument creating the estate. Estates in coparcenary are practically unknown in this country. They arose through a peculiar provision of the English law of descent, and were raised only in case of female heirs.^- A tenancy in common was formerly created where two or more persons held lands by several titles, and not by a joint title; and from the fact that they were all permitted to occupy the land, they were called tenants in common. The only unity required was that of possession, and it mattered not that one held his estate in fee and the other for life; or that one derived his title through purchase and the other through descent ; and the estates might commence at any time without reference to each other. Substantially all of these incidents have been preserved, but with the further addition f'l The law will interpret a grant land died, leaving only daughters of this kind so as to make all its or other female heirs, the estate parts take effect, which can only descended to all such daughters be done by creating an equal inter- jointly, and they were said to hold est in all the persons who take in coparcenary, and to make but under it. one heir to the ancestor. 1 Greenl. C2 As where a person seized of Cruise, tit. XIX, sec. 1. 52 THE SUBJECT-MATTER. that, by statute, in most of the states, all grants and devises of lands made to two or more persons are construed to create estates in common and not in joint tenancy .^^ Tenants in common are seized of each and every part of the property; but it is not in the power of one to convey the whole of the same, or the whole of a distinct portion thereof, or to give a license to do any act which will work a permanent injury to the inheritance or lessen the value of the estate.^* Yet~ as the freeholds are several and distinct, with no privity of estate between the tenants, each of the individual interests may be sold and conveyed to a stranger ;^^ and, as property indivisible in its character is incapable of several possession by each tenant, it therefore follows that the possession of one is a constructive possession of the others, and when one of the tenants not in the actual possession makes a sale of his interest in the property, the purchaser succeeds to all the rights of the vendor as held by him, without an actual delivery of possession.^^ As stated above, a co-tenant cannot make an effective con- veyance of any specific part of the common property. But such a conveyance, or attempted conveyance, will not be void and it has been held in a proceeding of this kind that, while the deed may be ineffectual as a conveyance of a specific part it may yet be allowed an operation as a conveyance of an undivided interest, and where the parcel designated by metes and bounds, or other specific designation, does not exceed in area and value the interest of the grantor, the deed may, as against him, be treated as a conveyance of his entire interest in the common land.^^ § 38. Estates by entirety. Another of the joint estates derived from the common law is that which is created when a convej'ance is made to husband and wife which does not state the manner in which they shall hold the land, and which 53 An exception is generally made Haverly, 70 111. 318. Compare in respect to mortgages and to de- Barnhart v. Campbell, 50 Mo. 597. vises or grants made to executors, s-"- Butler v. Roys, 25 Mich. 53; or to husband and wife. Shepherd v. Jernigan, 51 Ark. 275. •"■'■t Mattox V. Hightshue, 39 Ind. 5« Brown v. Graham, 24 111. 628; 95; Shepardson v. Rowland, 28 Fischer v. Eslaman, 68 111. 78. Wis. 108; Hartford, etc. Ore Co. v. st Young v. Edwards, 33 S. C. Miller, 41 Conn. 112; Murray v. 404. THE ESTATE. 53 is denominated at, tenancy by entirety. The conveyance in such case does not constitute them either joint tenants or tenants in common; for tliey are, in h'^al contemjdation, but one person, and hence unabh* to take l)y moieties. Hoth would therefore be seized of the entirety; neither could dispose of any j)art of the estate without the assent of the other, and upon the death of either the whole estate would remain in the survivor. This rule has not been materially changed by statute, and is accej)ted in a majority of the states.''^ In such an estate there can be no partition, as neither has any sei)arate interest. Between them there is but one owner; and that is neither the one nor the other, but both together. The common. law, it would seem, permitted the husband, for his own benefit, during their joint lives, to use, possess and control the land and take all the ^H'ofits thereof, and even to mortgage and convey an estate during such joint lives, though he could make no disposition of the land that would prejudice the right of the wife in case she survived him; but the later and apparently better-considered cases hold that, from the peculiar nature of this estate and from the legal relation of the parties, there must be unity of estate, unit}' of possession, unity of control, and unity in conveying and incumbering it.^^ In several of the states where the rule formerly prevailed it has been held that the legal unity of husband and wife has been broken by the "married women's" acts, and that they take only as tenants in common.^^' But estates which had vested j)rior to the acts in question are not affected, changed or modified by them. They remove no disabilities and confer no new rights in relation to such estates, which can only be conve^'ed or incumbered by the joint act of both ])arties, while the survivor takes an absolute title to the whole in case of death, as heretofore.^^ r>8 Arnold v. Arnold, 30 Ind. 305; Nunan, 92 N. Y. 152; Meyers v. Hemingway v. Scales, 42 Miss. 1; Reed, 17 Fed. Rep. 401. Washburn V. Burns. 34 N. J. L. 18; no chandler v. Cheney, 37 Ind. McCurdy v. Canning, 64 Pa. St. 39; 391; Hulett v. Inlon, 57 Ind. 412; Fisher v. Provin, 25 Mich. 347; McDuff v. Beauchamp, 50 Miss. 531. Garner v. Jones, 52 Mo. 68; Robin- «« Hoffmann v. Stigers, 28 Iowa, son V. Eagle, 29 Ark. 202; Mar- 302; Claris v. Clark, 56 N. H. 105; burg V. Cole, 49 Md. 402; Hulett Cooper v. Cooper, 76 111. 57; Walt- V. Inlon, 57 Ind. 412; Bertles v. hall v. Goree, 36 Ala. 728. 01 Harrer v. Wallner, 80 111. 197. '54 THE SUBJECT-MATTER. A review of the statutes shows that the legislation of the states concerning the property rights of married women has been very uniform, but the judicial construction of similar statutes has been variant and contradictory. In some instances, as has been observed, courts have decided that stat- utes making joint grantees tenants in common, and giving to married women the same rights in property as though they were sole, have effectually destroyed the common-law unity of husband and wife, and made them substantially separate per- sons for all purposes; but in a majority of the states the declared effect of these statutes has been confined to their express terms, and they have been held to have no relation to or effect upon real estate conveyed to husband and wife jointly, and that, notwithstanding these statutes, they still take as tenants by the entirety .^^^ There is nothing, however, in the theoretic unity of husband and wife which prevents them from holding moieties of the same estate. The question as to the character in which they take must be decided by the terms of the instrument, and if the intention of the donor, as appears thereby, is that they take in common such intention must prevail.*^^ A married woman may, of course, take and hold real property as a joint tenant or tenant in common with her husband,^^ and where by the provisions of the deed it clearly appears that the intent was to convey to her not merely as a wife, but to hold in her own right as an individual, then by virtue of such individual right she will have the power to dispose of her interest inde- pendent of her husband.^^ As the estate by entirety originated in and depends upon the marital relation, it logically and consistently follows that it may be destroyed by a legal separation of the spouses, and so, it has been held that where the legal unity has been broken by a divorce the title to the land theretofore acquired and held by them in entirety will thereupon vest in them as tenants in 62 See Bertles v. Nunan. 92 N. Y. 64 Robinson, appellant, 88 Me. 152; Farmers', etc. Bank v. Greg- 17; Cooper v. Cooper, 76 111. 57; cry, 49 Barb. (N. Y.) 155; Bates v. Hoffman v. Stigers, 28 Iowa, 307. Seeley, 46 Pa. St. 248; Robinson v. or. Jooss v. Fly. 129 N. Y. 17; and Eagle, 29 Ark. 202; McDuff v. Beau- see Brown v. Baraboo, 90 Wis. 15; champ, 50 Miss. 531. Hunt v. Blackburn, 128 U. S. 464. 63 Miner v. Brown, 133 N. Y. 308, THE ESTATE. 65 common.''^' This view has bL-eii oxiJiessly deuied, however, in some states and the doctrine announced that after the estate has once vested it beconics absolute and is not destroyed nor affected by tlie subsecjueut divorce of the Burleigh v. Clough, 52 N. H. 267. Art. III. The Title. § 42. Title generally considered. § 47. Derivative title — Descent. 43. Classification. 48. Continued — Purchase. 44. Methods of acquisition and 49. Tax titles. disposal. 50. Color of title — Adverse pos- 45. Derivation and nature of session. title. 51. The right to the possession 46. Marketable title defined. of title deeds. § 42. Title generally considered. The property or interest which a person may have in lands, tenements or heredita- ments, as has been shown in the preceding article, is described in the comprehensive tenn estate; the method of acquiring and right of holding same is denominated title. Title, there- fore, is properly an incident of estates; and although it is cus- tomary in speaking of the transfer of real property to allude to a sale of the title, yet as a matter of fact the title itself is not really sold, nor does it form in any proper sense of the term a subject of barter or sale. The title regularly devolves with a sale of the estate; and no matter how many outstand- ing titles or claims of title there may be, they all rest upon some species of estate, and as the estates merge the titles vest by operation of law. The title is inseparably connected with the estate, and represents the right or authority for the enjoy- ment of land, even as the estate represents the quality and extent of such enjoyment. But while title, in itself, is not the subject of conveyance by the ordinary forms prescribed by law and only follows the estate as an incident, it is nevertheless an essential and dom- inating consideration in nearly every transfer of land; and although nothing may have been said concerning the title during the negotiations attending the sale, the law presumes that it entered into the contemplation of the parties at that time, and raises an implied promise on the part of the vendor that he possesses title, and that it is of such a character as to assure the vendee of a quiet and peaceable enjoyment of the property.^ In common parlance this is called a ''market- able title." iDelevan v. Duncan, 49 N. Y, 390; Flynn v. Barber, 64 Ala. 193; 485; Holland v. Holmes, 14 Fla. Woodruff v. Thorne, 49 HI. 88; 58 THE TITLE. 59 It is competent for the parties to stipulate as to the charac- ter of tlic title, and their agreements in this respect will be given a controlling; efTicacy on all questions subsequently arising; but in the absence of such stipulations, or of proper evidence of an agreement respecting title, a marketable title is always presunu'd, and the i)urchaser will never be com- pelled to accept any other.- The right to such a title is inherent in the transaction; it does not grew out of the agree- ment, but is given by law, and such title may be demanded by the purchaser as a nuitter of legal right.-"^ § 43. Classification. Titles may be classified as legal and equitable a distinction originally applied only to estates, but now extensively used to designate the manner of acquiring and holding them as well. The equitable title usually carries with it the beneficial interest in the land, together with the incidents of ownership, the legal title being held as a mere naked trust; this is illustrated in the relations of the govern- ment and a purchaser of public land before patent issues; a grantee under a land contract after payment made and before execution of deed; or where the legal title has bcH^n conveyed to a trustee, the equitable ownership vesting in the beneficiary or cestui que trust. Custom has also introduced another species of classification, based on the impairments or defects which may exist in the title asserted by the vendor, by which the title is said to be bad, doubtful, good or perfect; the latter two classes being also known as marketable titles, or those which a court of equity considers so clear that it will enforce their acceptance by a purchaser. A doubtful title, on the contrary, is one that a court will not go so far as to declare invalid, but only that it is subject to so much doubt that a purchaser ought not to Moulton V. Chafee, 22 Fed. Rep. Mich. 396; Taylor v. Williams, 45 26. If the agreement does not men- Mo. 80; Ludlow v. O'Niel, 29 Ohio tion the title to be given, an im- St. 182; Gill v. Wells. 57 Md. 492. plication arises that it is to be free 3 Lounsbury v. Locamber, 25 N. from incumbrances; Newark Sav- J. Eq. 554; Moulton v. Chafee, 22 ings Institution v. Jones, 37 N. J. Fed. Rep. 26. Eq. 449. The reader is referred to the 2 Mitchell V. Steinmetz, 97 Pa. chapters on "Rescission" and "Spe- St. 254; Chambers v. Tulane, 9 N. cific Performance," where the sub- J. Eq. 146; Powell v. Connant, 33 ject is considered in detail. GO THE SUBJECT-MATTER. be compelled to accept it. The doctrine of marketable titles is purely equitable and of modern origin; at law every title is marketable. The terms "bad" and ''good," as used in this connection, cannot be said to have anj' legal significance, for, notwith- standing their constant employment, the law does not recog- nize any degrees of title. They may be considered as colloquial expressions which by frequent iteration have gained a certain currency in the language of the law. Title is simply title; the muniments by which it is sought to be asserted may be defective and for that reason the title may be considered doubtful, but there is no good, better or best in title, while a bad title is no title at all. § 44. Methods of acquisition and disposal. Elementary writers all agree that there exists but two modes of acquiring title, which they denominate respectively descp/nt and pur- chase; the latter term including every legal method of acqui- sition except that by which an heir, on the death of an ances- tor, succeeds to the estate of the latter by operation of law.* Descent, or hereditary succession, was by the common law considered the better title ; and when the right of inheritance is fully established by strict compliance with the law relating to descents, proof of heirship, etc., the title thus conferred is of the highest dignity and effectual for all purposes. But though the title vests in the heir by operation of law imme- diately on the death of the ancestor, yet purchasers desire and should have affirmative evidence that the person asserting the same is justified in so doing; and, in the absence of probate proceedings or a judicial determination of the rights of the heirs, titles depending on descent are to be viewed with jeal- ousy and accepted with the greatest caution, and particularly is this the case where title is asserted by descent by an heir in a remote degree from the intestate or common ancestor. Purchase, as has been stated, is a generic term which includes every mode of coming to an estate except by inherit- 4 The common-law estates of seem to favor this view. Others dower and curtesy have been re- have made a distinction in respect garded by some as properly coming to estates acquired by purchase, within the doctrine of descents; between titles created by act of law and the statutory regulations of and those by act of the parties, many of the states, would strongly THE TITLE. 61 ance,^ thoufjh in its more limited sense it is applied only to the acTniisition of lands by way of barj^ain and sale for money or other consideration." Neither law-writers nor courts seem to have ventured on a more extended definition, if indeed one can be framed; and the one above j^iven has come down unchann;ed from Blackstone, who in turn borrowed it from earlier writers. There are four princii)al methods recof^nized of acquiring title by ])ui'chase, to wi( : by deed, devise, pre- scription or limitation and escheat.^ To these may be added title accruinfj^ throufjjh operations of nature; as accretion, reliction and avulsion, as well as such as result from our polit- ical and civil relations; as eminent domain, confiscation and forfeiture. Some writers still further extend the list by the addition of abandonment, occupancy and estoppel. The two former of these are not known in the United States, while the latter is not, strictly speakinj?, a method of acquiring title at all, but simply a reco If the land claimed under such a title was subject to taxation, and the proceedings under the law have been regular, and the owner has failed to redeem within the time limited by law, then the whole legal and equitable estate is vested in the pur- chaser, and a new and perfect title is established;-^ but no presumption can be raised to cure radical defects in the pro- 20 Altes V. Hinckler, 36 111. 265; be done, and in the form, time and Hewes v. Reis, 40 Cal. 225; Rivers manner prescribed, or the title is V. Thompson, 43 Ala. 633. invalid; and in this respect the -'1 Smith V. Messer, 17 N. H. 420; statute must be strictly, if not lit- Dunlap V. Gallatin Co. 15 111. 7; erally, complied with. (2) But in Jarvis v. Peck, 19 Wis. 74; Cram determining what is required to be V. Cotting, 22 Iowa, 411. The fol- done, the statute must receive a lowing principles or rules for test- reasonable construction; and where ing the validity of tax titles appear no particular form or manner of to be fairly deducible from the re- doing a thing is pointed out, any ported cases: (1) Where the stat- mode which effects the object with ute under which the sale is made reasonable certainty is sufficient, directs a thing to be done, or pre- Hall, J., in Chandler v. Spear, 22 scribes the form, time and manner Vt. 388. of doing anything, such thing must THE TITLE. G5 ceedings, and tlio proof of regularity devolves on the person asserting; the title.-'^ A tax title, tiionj^li bearing; some resemblance to titles derived under judicial and execution sales, differs in this: that the latter are strictly derivative titles, and dependent not only on the lej'ality of the procedure of transfer but upon the acts of former owners. A tax title, on the contrary, from its very nature, has nothing to do with the previous chain of title, nor does it in any way connect itself with it. The x)erson asserting it need go no further than this tax deed, and the former title can neither assist nor prejudice him. The sale operates upon the land and not upon the title; and it matters not how many dilferent interests may have been connected with the title; if it has been regularly sold, the property, accompanied by the legal title, goes to the purchaser. No covenant running with the land, nor warranty, or other inci- dent to the title, as a title, passes to the purchaser, but he takes it by a new, independent and paramount grant, which extinguishes the old title and all the equities dependent upon it.23 The statute usually pronounces the new title thus acquired a fee; but this would legally follow, even though the statute were silent, where no other estate is reserved in the deed. It must be understood, however, that the clause of the statute which provides that a conveyance resulting f roan a sale shall vest in the grantee an "absolute estate in fee-simple" does not mean that such estate shall vest in the grantee not- withstanding the fact that the law had not been complied with in making tlie sale, but refers merely to the quantity of the estate conveyed as distinguished from a lesser estate.^* Owing, however, to the complexity of the jirocedure employed in the enforcement of tax levies, the many errors which often attend it, as well as the grave questions which may arise even on perfect service, a tax title is regarded as among the poorest evidences of the ownership of land, and is always taken with suspicion and viewed with jealousy. When 22 Oliver v. Robinson, 58 Ala. 46. stracts of Title, p. 551 et seq., for a 2'i Neiswanger v. Gwynne, 13 discussion of this subject. Ohio, 74; Ross v. Barland, 1 Pet. 24 steeple v. Downing, 60 Ind. (U. S.) 664. See Warvelle on Ab- 478. 66 THE SUBJECT-MATTER. a tax dc't'd is relied upon as the foundatiou of title, all the ante- cedent steps become material.^^ § 50. Color of title — Adverse possession. A person is prop- erly said to have color of title to lands when he has an appar- ent thonj^h not a real title to the same, founded upon a deed which purports to convey them to him;^^ and a claim to real property under such a conveyance, however inadequate it may be to carry the true title, or however incompetent the grantor may be to convey such title, is strictly a claim under color of title.-^ Possession under color of title for the period of statut- ory limitation confers upon the holder a perfect title in law; and where one takes possession under a deed giving color of title, his possession may be transferred to subsequent parties, and the possession of the different holders may be united so as to make up the statutory period, the operation being tech- nically called tacking.28 Titles acquired in this manner must, however, show connected possession and a privity of grant or descent. Those who hold lands independently of previous holders, their several possessions having no connection, can- not so tack their possession as to avail themselves of that which has gone before.^^ § 51. The right to the possession of title deeds. It was the invariable custom in former years and before the passage of the registration acts, upon all sales of real property, for the vendor to produce and give to the vendee the patents and deeds through which he deraigned title. The possession of the complete chain of title deeds was the evidence which the vendor produced of his ownership; and on a sale the entire series passed to the purchaser, as well for the purpose of showing ownership in the vendor as that the vendor should have no evidence of title remaining whereby he might be able 25 In many of the states the tax 27 Edgerton v. Bird, 6 Wis. 527; deed is now received as presump- Hinkley v. Greene, 52 111. 223; tive evidence of the regularity of Ford v. Wilson, 35 Miss. 504. the antecedent proceedings, and in 2s Cooper v. Ord, 60 Mo. 420; controversies concerning the tax Alexander v. Stewart, 50 Vt. 87; title the burden of proof is thrown Haynes v. Boardman, 119 Mass. upon the assailing party. 414. 26 Seigneuret v. Fahey, 27 Minn. 29 Crispen v. Hannavan, 50 Mo. 60; Rigor v. Frye, 62 111. 507; Hall 536; Marsh v. Griffin, 53 Ga. 320; V. Law, 102 U. S. 461. Pegues v. Warley, 14 S. C. 180. THE TITLE. 67 to effect a second and fraudulent sale. IJut the possession of the deeds of conveyance is now comparatively of small impor- tance, as the pul)lic records disclose to purchasers the true condition of the title, and furnish them, in most cases, with all the information necessary or desirable to a full and thorough understanding as to j)ast and present ownershi[). For this reason title deeds are seldom demanded and rarely' furnished; and so implicit has become the reliance of the people u\H)U the jtublic records, that only in exceptional instances are title deeds preserved. But, though the possession of deeds has become of minor importance, the legal right to them has not probably changed. From a very earl}- period chancery compelled the delivery of deeds when necessary; and there can be but little doubt that a ix?rson properly entitled to their custody may still come into equity and obtain a decree for a specific delivery of them if they be wrongfully withheld.^" 30 Wilson y. Rybolt, 17 Ind. 391. CHAPTER n. THE PARTIES. Art. I. Persons Sui Juris. Art. II. Persons under Disability. Art. III. Persons Incojmpetent. Art. IV. Fiduciaries. Article I. Persons Sui Juris. §52. Generally. §61. Real estate partnership. 53. Vendors. 62. Widow's dower in partner- 54. Vendees. ship realty. 55. Parent and child. 63. Syndicates — Joint stock com- 56. Expectant heirs. panies. 57. Co-tenants. 64. Corporations. 58. Partners. 65. Municipalities. 59. Continued— What shall be 66. Assignees. considered partnership 67. Assignors. property. 68. Death of contracting party — 60. Continued — How affected by Executors and adminis- the death of partner. trators. § 52. Generally. It is an elementary principle that to every legal contract there must be two contracting parties compe- tent to contract. This is an indispensable element; and while every other essential requisite may be present, if lacking in this particular, the contract is without validity and incapable of legal enforcement. The legal capacity rto bind oneself to do that which he has agreed to do must exist; and even where the obligation arises wholly from implication, or where only passive acquiescence is required, the capacity to act, to receive, or to become invested, agreeably to prescribed legal forms, must be present and enter into the contract as one of its constituent and indispensable elements.^ § 53. Vendors. There must be to every grant a grantor, a grantee, and a thing granted. The latter has been considered in the preceding chapter, and the former will constitute the iSee Winslow v. Winslow, 52 Ind. 1; State v. Killian, 51 Mo. 80. Ind. 8; Musselman v. Cravens, 47 .68 PERSONS SUI JURIS. 69 subject of the succeeding paragraphs of this. If a convej-ance of land has resulted as the effect of a preliminary treaty, and represents the consummation of a contract previously made and concluded, it must be the intelligent and capable act of the i>arties on either side; if it has been induced by other motives, or if the grantor has assumed to act without the actual concurrence of the vendee, it must still, so far as he is concerned, be the result of the exercise of free will, made by one who is capable of comprehending the nature and effect of what he has done. A vendor, therefore, to successfully accom- plish the contractual undertaking, must possess the mental capacity to give the necessary legal assent; should possess the requisite legal age to render his engagements binding, and should rest under no disability depriving him of legal capacity. Possessed of these qualifications he may make any disposition of his property that his judgment, fancy or caprice may prompt, provided that in so doing he contravenes no rule of law or principle of equity; and, in some cases, even though lacking in legal capacity, whether through inadequacy of age or legal disability, his grants are only voidable, and not, for these reasons, void. § 54. Vendees. The foregoing remarks concerning the vendor may in many particulars be applied to the vendee. The law presupposes that every contract is the intelligent act of the parties to it, entered into upon a fair understanding of its pui'port, and consummated with a knowledge of its effects. Yet in the conveyance of land it often happens that the vendee is but a passive recipient, with no voice, and even without mind. The conveyance may have been none of his seeking, and at the time of its execution unknown to him; and while neither the burdens nor advantages of property can be thrust upon a person without his assent, yet as the possession of property is so universally considered a benefit the absence of express dissent is ordinarily presumed to indicate assent and concurrence.- It is, of course, essential to the validity of every conveyance that it be to a grantee capable of taking and of proper identi- 2 Mitchell V. Ryan, 3 Ohio St. Davenport v. Whistler, 46 Iowa, 377; Bundy v. Iron Co. 38 Ohio St. 287. 300; Bivard v. Walker, 39 111. 413; 70 THE PARTIES. Ikation; jet far less strictness is required as to capacity, etc., in grantees than in case of grantors, and few of tke disabili- ties which may encompass the latter are applicable to the former. Coverture, infancy, lunacy, etc., while they might interfere with a contract of sale, will yet form no bar to a con- veyance, and persons laboring under such disabilities may take and hold by a grant equally with a person sui juris. § 55. Parent and child. Probably none of the relations of life are subject to greater scrutiny, in all matters relating to contracts and conveyances of land, than that existing between parent and child. The intimate character of the relationship necessarily involving many features that are utterly wanting outside of such relation, and the facility which such relation affords for the commission of fraud, both with respect to the parties and third persons, has necessitated this vigilance on the part of courts, and in some particulars created a code of law applicable to no other class. With respect to their contracts with each other, where both stand upon an equal footing and both possess the requi- site capacity, they are not distinguishable from others; and most of the decisions involving the relation have arisen in cases of tender years on the one hand or old age and decrep- itude on the other, and nearly all have turned upon the ques- tion of fraud. The law has always preserved a marked distinction between the children of a grantor and a stranger; and while the parent has no right to make voluntary gifts or donations to his chil- dren to the disadvantage of his creditors or others having legal or equitable claims upon him with respect to his prop- erty, yet he may invest them with the title to property suit- able to their circumstances and condition in life if there be no actual or constructive fraud.^ And such conveyances, not- withstanding the want of a valuable consideration, are always regarded as meritorious. So, also, though a parent is entitled to the services of his children while under age, he may nevertheless waive his right and make such services the consideration of a contract or promise, and may in good faith transfer property in the per- 3 Salmon v. Bennett, 1 Conn. 525; Nichols v. Ward, 1 Head (Tenn.), 323. PERSONS SUI JURIS. 71 forniauee of such obli^atiuu without its buiiij^ subject to a chiira on the part of the other children to consider it in the light of an advancement.* § 56. Expectant heirs. As a rule, all contin«,'ent and execu- tory interests and contingent estates of inheritance, or any other species of estate where there is a present existing right, although to take effect in the future, and even then only on a contingency, are proper subjects for contract and sale.'' But as a conveyance or grant, to be effective, must be founded on an existing right, vested or contingent, it necessarily follows that in the case of a naked or remote possibility, or what the law terms a possibility on a possibility, a grant or attemj^ted grant, as such, would be inoi)erative and void.*' The word ''possibility,'' as used in this connection, has a specific mean- ing in law, and is distinguished from its broader signification, where it might properly include contingent and executory interests which are objects of limitation, and denotes nothing more than simple expectation — a mere hope of succession, unfounded in any limitation, provision, trust or legal act of any kind. It is in this sense that the w'ord is used to charac- terize the expectancy of an heir, apparent or presumptive. From a very early day the law has refused to sanction or give effect to the conveyance of a naked possibility, or a possi- bility not coupled with an interest, even though made for a valuable consideration, and this principle has been retained in American jurisprudence.'^ Contracts or grants by an heir apparent come strictly within this rule and are denied legal effect not only for the reasons just assigned, but on the further ground that such attempted dispositions are frauds upon the ancestor and contrary to public policy.'^ That is, if the ances- tor has no knowledge of the contract he may permit his prop- erty to pass under the law of descent, believing that his chil- 4 Murrel v. Murrel, 2 Strob. Eq. Jones, Eq. (N. C.) 211; McCall v. (S. C.) 148. Hampton. 98 Ky. 166. r> Woods V. Williams, 9 Johns. t McCall v. Hampton, 98 Ky. 166; (N. Y.) 123; Pelletreau V. Jackson, Skipper v. Stokes. 42 Ala. 255; 11 Wend. (N. Y.) 110. Patterson v. Caldwell. 124 Pa. St. G Hart V. Gregg. 32 Ohio St. 502; 455; Needles v. Needles, 7 Ohio St. Boynton v. Hubbard, 7 Mass. 112; 432. Baylor v. Commonwealth, 40 Pa. « McClure v. Raben, 133 Ind. 507. 37; McDonald v. McDonald, 5 And see p. 56, ante. 72 THE PARTIES. dren or heirs will receive the benefit thereof, when, in truth, it may go to an entire stranger if the contract is allowed to have efifect. By keeping him ignorant of the facts he is thus induced to leave his property to one he never intended with- out his knowledge or consent. This, the courts hold, is a fraud upon him, and a violation of his rights of disposition, which vitiates the contract.'^ In any event all such contracts are regarded by the law with disfavor, and generally one who attempts the enforcement of same must allege and prove that there was neither fraud nor oppression.^'' Notwithstanding, however, that the conveyance of an expec- tancy, as such, is in effect a transfer of a mere naked pos- sibility, and hence inoperative at law to pass any estate or interest in the land, yet, when made bona fide and for a fair consideration, it will, it seems, be upheld in equity and enforced as an executory agreement to convey .^^ In a very few instances this has been denied,^ ^ ^^^ the growing ten- dency seems to be the other way and the weight of authority sustains the views here given. Nor is there anything incon- sistent in such rule, for if the conveyance is made fairly and without fraud; if there has been no undue influence; if the vendor was, at the time of its execution, capable of contracting in law, fully understanding its purport and meaning; and if the consideration which he received for it was, under the cir- cumstances, fair, if not fully adequate — such conveyance if properly made is in full compliance with law% and is inop- erative only because there w'as, at the time of its execution, no interest in the vendor to which it could attach. But the right to make contracts for the future conveyance of property to which the vendor has no present title must be conceded; and so, in accordance with its familiar rules, the assignment sBoynton v. Hubbard, 7 Mass. aid, 5 Jones, Eq. (N. C.) 211; 112. Mastin v. Marlow, 65 N. C. 695. 10 McClure v. Raben, 133 Ind. 507. 12 See Boynton v. Hubbard, 7 And see p. 56, ante. Mass. 112, where Chief Justice Par- 11 Variclc v. Edwards, 1 Hoff. Ch. sons refused to sanction an assign- (N. Y.) 382; Baylor v. Common- ment made by a nephew in the wealth, 40 Pa. 37; Powers' Appeal, life-time of his uncle of his ex- 63 id. 443; Lewis v. Madisons, 1 pectant interest in that uncle's es- Munf. (Va.) 303; Parsons v. Ely, tate. And see Lowry v. Spear, 7 45 111. 232; Nesmith v. Dinsmore, Bush (Ky.), 451. 17 N. H. 515 ; McDonald v. McDon- PERSONS SUI JURIS. 73 of a mere expectancy will be given effect in equity, not as a graiit,^^ but as a contract, entitling the assignee to a specific performance as soon as the assignor has acquired the power to perform it.^* So, too, an heir presumptive may release to his ancestor his expected share in the ancestor's estate and thereby become estopped from asserting any claim in the event of the ances- tor's death intestate.^ ^ § 57. Co-tenants. Joint tenants, coparceners and tenants in common have long been held to stand in such a relation of trust and confidence towards each other as to preclude them from purchasing an outstanding title or incumbrance for their own exclusive benefit, or from setting up such title as against their co-tenants. The reason for this is said to be that they come within the principle which prohibits a party from pur- chasing an interest where he has a duty to perform incon- sistent with the character of a purchaser; that their com- munity of interest produces a community of duty, and raises mutual obligations to each other. Hence, such a purchase by either will inure to the joint benefit of both, the purchaser, however, being entitled to contribution from his co-tenant for the latter's proportion of the price paid.^^ Where the estate in co-tenancy is of an inferior character, as for life or lives or a term of years, any of the tenants in common may purchase the superior estate without incurring any obligation to his co-tenants to share in the benefit of the purchase. The rule that one standing in a confidential rela- tion to another cannot be permitted to acquire an interest in property' hostile to that of the other does not apply in such a case as the rule is limited by its own terms, when applied to co-tenants, to the acquisition of property in which all of the tenants are interested. Hence, if a tenant in common of a 13 If a conveyance is made with Crum v. Sawyer, 132 111. 443; Bai- covenants of warranty it will oper- ley v. Hoppin, 12 R. I. 560. The ate to pass the title by estoppel if English cases hold the same doc- the land descends to the heir. Ro- trine. senthal v. Mayhugh, 33 Ohio St. ^^' Re Garcelon. 104 Cal. 570; 158; Bohn v. Bohn, 78 Ky. 408. Brands v. DeWitt. 44 N. J. Eq. 545. 14 Re Garcelon, 104 Cal. 570; Col- lo Swinburne v. Swinburne, 28 N. lins appeal, 107 Pa. St. 590; Ridge- Y. 568; Picot v. Page, 26 Mo. 398; way v. Underwood, 67 111. 419; Weaver v. Wible, 25 Pa. St. 270; 't!4 THE PARTIES. leasehold estate should purchase the fee from the landlord it would not inure to the common benefit nor could the others demand same by an offer of contribution. The estate so pur- chased would not be adverse to the leasehold estate held in common nor would the property acquired by the purchasing tenant be inconsistent with the terms of the lease.^'^ Tenants in common are considered as solely and severally seized, their freehold interests being distinct and with no privity of estate as regards each other.^^ Hence they may convey and dispose of their undivided interests to a stranger, the purchaser simply taking the same position in relation to the co-tenants as was occupied by his grantor.^^ But one tenant in common cannot convey any specific part of the land so as to prejudice the rights or affect the interests of the other co-tenants ;-° hence a conveyance of part of the com- mon land by metes and bounds would be practically invalid as against the other tenants unless their assent is manifested by some proper act.^i Such a deed is not wholly void, how- ever; it is operative as against the grantor, and will be effec- tive to convey such land if the other tenants shall afterwards, by release or some other act, assent, or there be a subsequent valid partition by which the land so granted is assigned to the Titsworth v. Stout, 49 111. 78; Brit- held that the absence of objection tin V. Handy, 20 Ark. 381; Dray v. is not proof of dissent. Great Dray, 21 Oreg. 59. Falls Co. v. Worster, 15 N. H. 449; 17 Ramberg v. Wahlstrom, 140 111. Duncan v. Sylvester, 24 Me. 482. 182. The doctrine that a conveyance of 18 Burr V. Mueller, 65 111. 258. a part of the common property by 19 Fisher v. Eslaman, 68 111. 78; one tenant is invalid as against Butler V. Roys, 25 Mich. 53. the others, is based, in all cases, 20 Porter V. Hill, 9 Mass. 34; Pea- upon the fact that if sustained it body V. Minot, 24 Pick. (Mass.) would seriously affect the rights of 329; Griswold v. Johnson, 5 Conn, the other tenants in respect to par- 363; Duncan v. Sylvester, 24 Me. tition; compelling them to take a 482; Stark v. Barrett, 15 Cal. 368; share in each of the several parcels Mitchell v. Hazen, 4 Conn. 495; of the common property, such as Markoe v. Wakeman, 107 111. 263; their co-tenant might choose to Shepardson v. Rowland, 28 Wis. mark out, instead of a share in 108. the whole. Bartlett v. Harlow, 12 21 Jeffries v. Radcliff, 10 N. H. Mass. 347; Duncan v. Sylvester, 24 242; Whitton v. Whitton, 38 N. H. Me. 482; Griswold v. Johnson, 5 133. What shall constitute a suffi- Conn. 363; Smith v. Benson, 9 Vt. cient assent by the co-tenants is 138; and see 4 Kent. Com. § 368. not well defined, but it has been PERSONS SUI JURIS. 75 sharo of tlu' j^rantor.-- Even tlutn^li a co-tciiaiit may be in the possession of a specific portion of the common tract, he nevertheless liokls his nndivided interest tlierein snbj<'ct to the contin<;encj of the h»ss of it, if, on partition of the general tract, the special tract should be allotted to one of his co-ten- ants. Hence, as one tenant cannot apj»roj)riate to liiniself any particular part of the common i)ropei'ty, so it follows that any conveyance of the same by him must be subject to the ultimate determination of the ri^lits of tlie otlier tenants. The gi-antee must take, therefore, subject to the contingency of the loss of the premises, if, on partition of the general tract, they should not be allotted to the grantor. Subject to this contingency the conveyance is valid, and passes the interest of the grantor.23 So also, while such a deed can have no effect on the rights of the co-tenants in respect to partition, it will yet entitle the grantee to stand in the place of his grantor in respect to the possession and profits of that part.^* § 58. Partners. Partnership holdings in realty are, in many respects, governed by the same general rules that apply to tenants in common; and for most purposes, as between the partners, this is regarded as the character of their ownership. But as between the partners and third persons, or as between themselves where the rights of third persons are concerned, the relation is strictly one of partnership, and the property is regarded as a partnership effect;-'' that is, as the property of 2:2 See Primm v. Walker, 38 Mo. partnership realty is to be treated 94; Benedict v. Torrent, 83 Mich, the same as personalty is not alto- 181; Stark v. Barrett, 15 Cal. 370. gether true. For the purpose of 23 Gates V. Salmon, 35 Cal. 576. properly adjusting the relations of 2* Ballon V. Hale, 47 N. H. 347. the partners, either as between 25 It is by reason of this principle themselves or third persons hav- that partnership realty acquires Ing dealings with them as such the character of personalty and is partners, it is allowed to assume governed in many respects by the some of the characteristics of per- general rules applicable to that sonalty; yet it must be seen that class of property. See Mauck v. no court can, by an arbitrary rule, Mauck, 54 111.281; Scruggs v. Blair, transmute real into personal prop- 44 Miss. 406; Moderwell v. Milli- erty. So far. therefore, as may be son, 21 Pa. St. 257; Arnold v. necessary to attain the ends of the Wainwright, 6 Minn. 358. But this partnership it may be treated as doctrine, manifestly incongruous, personalty, but for every other is often pushed too far; and the purpose it remains realty, and is statement, frequently made, that subject to all the principles and 76 THE PARTIES. the firm, considered as a legal entity, and not the individual property of each member of the firm. Tlie effect of this is to render them for some purposes joint tenants, with the right of survivorship for all purposes of holding and administering the estate until the obligations of the finii have been dis- charged. Again, partnership differs materially from a ten- ancy in common in reference to the power of disposal, as well as from the further fact that none of the partners have any claim to any specific share or interest in the real estate as ten- ants in common have, but only to the proportion of the residue which shall be found to be due them respectively upon the final balance and adjustment of their accounts, and the liqui- dation of all claims upon the firm. There is another principle in relation hereto which prob- ably' has received more universal assent, and, as a rule, seems to admit of fewer exceptions, than any other in this branch of the law, and that is: that one partner during the continuance of the partnership has no power to convey the real estate of the firm, either by deed or assignment; nor to make any con- tracts in relation thereto specifically enforcible against the others; and, unless expressly authorized, deeds so made which profess to transfer the property of the absent partner or incur liabilities in regard to the same are absolutely void as against the partner who did not join.^^ It is further to be observed that partners in lands have an equity against each other for the purpose of producing equal- ity among themselves. This equity fastens itself to and is a lien upon their respective interests in such lands; and neither partner, nor a purchaser from him with notice, can deprive his copartner of such lien. The lien survives the death of the partner, and may be enforced by his heirs or personal repre- sentatives where the inequality between the partners or indebtedness from one to the other arose from transactions accruing in the life-time of such partner.^^ § 59. Continued — What shall be considered partnership laws applicable thereto. See Black 212; Jackson v. Stanford, 19 Ga. V. Black, 15 Ga. 445; Scruggs v. 14; Goddard v. Renner, 57 Ind. Blair, 44 Miss. 456; Foster's Ap- 532. peal, 74 Pa. St. 391. Compare Lowe 27 "Williams v. Love, 2 Head V. Lowe, 13 Bush (Ky.), 688. (Tenn.), 80. 26 Ruffner v. McConnel, 17 111. PERSONS SUI JURIS. 77 property. It is au old and wcU-t'slablished rule that real prop- erty purchased with partnership funds, and used by the firm in its business, becomes impressed with the character of partner- ship property, and subject to many of its incidents.-^ The fact that the legal title has been taken in the names of the individual members of the firm in no way militates against this rule,-'* nor is it absolutely indispensable that the prop- erty should actually be used for partnership purposes, or that there shall have been a positive agreement making it partner- ship property; for if it has been paid for with partnership etiects, it is then a question of intention whether the convey- ance is to have its legal effect, and the parties are to be treated as tenants in common, or whether the land is to be regarded as partnership property.-''^ To solve this question of intention extrinsic evidence of the circumstances attending the purchase, or of any agreement made at the time, may always be resorted to;*" and the manner in which the accounts are kept, as whether the purchase money was severally charged to the members of the firm, or whether the accounts treat it the same as other firm property, purchase money, income, expenses, etc., are controlling circumstances, and from these circumstances an agreement may even be inferred.-"^- The question derives its main importance from the priority to be given to creditors, whether of the firm or the individuals composing it, and is essentially one of construction as to the 28 Hiscock V. Phelps, 49 N. Y. 97; Holmes v. Self, 79 Ky. 297; Provi- Fall River Co. v. Borden, 10 Cush. dence v. Bullock, 14 R. I. 353; and (Mass.) 407; Sigourney v. Munn, 7 see King v. Weeks, 70 N. C. 372; Conn. 11; Uhler v. Semple, 20 N. J. Indiana Pottery Co. v. Bates, 14 Eq. 288; Ross v. Henderson, 77 N. Ind. 9; Matlack v. James, 13 N. J, C. 170; Price v. Hicks, 14 Fla. 565; Eq. 128; York v. Clemens, 41 Iowa, Bopp V. Fox, 63 111. 540; Ludlow v. 95; Dewey v. Dewey, 35 Vt. 555. Cooper, 4 Ohio St. 1; Hunt v. Ben- ^n A different rule seems to pre- son, 2 Humph. (Tenn.) 459; Bry- vail in Pennsylvania, where it has ant V. Hunter, 6 Bush (Ky.), 75. been held that the legal effect of -"■» Page v. Thomas, 43 Ohio St. the deed cannot be affected by ex- 38; Callumb v. Read, 24 N. Y. 505; trinsic evidence. See Ebert's Ap- Sherwood v. St. Paul, etc. Co. 21 peal, 70 Pa. St. 79; Le Fevre's Ap- Minn. 127; Pugh v. Currie, 5 Ala. peal, 69 Pa. St. 122. 446. :*2 Fairchild v. Fairchild, 64 N. Y. ••"1 Fairchild v. Fairchild, 64 N. 471. Y. 471; Ware v. Owens. 42 Ala. 212; 78 THE PARTIES. intent of the partners in making the purchase. A third per- son who purchases or takes from one of the partners a mort- gage on his individual interest in the land will, if the property be partnership effects, and such purchaser or mortgagee has knowledge of the same, be postponed to the lien of a fii-m cred- itor. On the other hand, a purchaser has a right to rely upon the records; and if the purchase is made in good faith and for value, he will not be affected by any equities or even legal rights of which he has no knowledge, and which such records fail to disclose,^^ But while a purchaser or mortgagee with- out notice, finding the legal title in the names of the individual partners, will be protected as a bona fide jjurchaser, a judg- ment creditor, it seems, can make no such claim. His lien will extend only to the beneficial interest of the defendant part- ner, and this interest consists only of the residuary share of such partner after the partnership accounts are settled and the rights of parties inter sese adjusted.^^ § 60. Continued — How affected by death of partner. The death of one of the partners operates as a dissolution of the firm, and the share or interest of such deceased partner in the partnership real estate descends to his heirs or passes to his devisees as in other cases of common tenancy.^^ But, as part- nership realty possesses many of the features of personalty, and, together with other assets, is regarded as a trust fund for the payment of the debts of the firm, the legal title which descends to the heirs or passes to the devisees is impressed with the same trust. The surviving partner is clothed with the power of executing this trust, and to that end is permitted to manage and control such property'. If necessary, he may sell it and convey to the purchaser not only the legal title 33 Page V. Thomas, 43 Ohio St. Lang v. Waring, 38 Ala. 625; Davis 38; Lovejoy v. Bowers, 11 N. H. v. Christian, 15 Gratt. (Va.) 11; 404. Price v. Hicks, 14 Fla. 565; Ross v. 34 Page v. Thomas, 43 Ohio St. Henderson, 77 N. C. 170; Little v. 38; York v. Clemens, 41 Iowa, 95; Snedecor, 52 Ala. 167; Dupuy v. Scruggs V. Blair, 44 Miss. 409; Wil- Leavenworth, 17 Cal. 262; Norwalk lis V. Freeman, 35 Vt. 44 ; Blake v. Nat. Bank v. Sawyer, 38 Ohio St. Nutter, 19 Me. 16; Duhring v.Duhr- 339. Ing, 20 Mo. 174; Russell v. Miller, •is The English rule is to the 26 Mich. 1; Mauck v. Mauck, 54 111. contrary, and partnership realty 281; Fowler v. Bailley, 14Wis. 125; always retains the character and Jarvis v. Brooks, 27 N. H. 37; qualities of personalty. PERSONS SUI JURIS. 79 vested in liinisclf, but also the tMiiiitablt' estate which he liolds as such surviving partner; and if sneli sah' is made in j^ood faith and fainiess, equity will compel (lie liolders of llie out- standin<;- legal litle to convey the same to said pnrcliaser, and tluKs complete the ownership.-'"' It was formerly a vexed (piestion whether, after the disso- lution of the lirm by the death of one of the members, the debts being all settled and no purpose of the firm requiring it, the share of the deceased partner in the laud should still retain its character of personally and pass to his personal representatives, or should descend as real property to his heirs at law. The principles which -govern this branch of the law as administered by the English courts of equity would seem to regard a deceased partner's interest as personalty for all purposes,-^'^ and many of the earlier American cases hold the same doctrine; but the current of modern decisions has steadily tended in the other direction, and the rule as stated in 30 Holland v. Fuller, 13 Ind. 195; Buffum V. Buff urn. 49 Me. 108; Du- puy V. Leavenworth, 17 Cal. 262; Fowler v. Baily, 14 Wis. 129; Little V. Snedecor, 52 Ala. 167; Hewitt V. Rankin, 41 Iowa, 35; Drewry v. Montgomery, 28 Ark. 256; Willett V. Brown, 65 Mo. 138; Whitney v. Catten, 53 Miss. 689; Ludlow v. Cooper, 4 Ohio St. 9; Shanks v. Kleine, 104 U. S. 18. 37 This is one of the artificial re- finements adopted by the chancel- lors in England for the purpose of giving effect to the agreement of the partners, and is said to have originated in this wise: by the common law, on feudal reasons, land could not be sold for the pay- ment of debts. By virtue of legis- lative enactment, the writ of elegit, and statutes merchant and staple, subjected land to the claim of cred- itors in a modified way; that is, by giving the creditor a right to have the land extended at a yearly value, and to have an estate there- in, and receive the rents and prof- its thereof, until, at the extended value, the debt was satisfied. This, however, did not cause land to answer the purposes of trade and become the means of extended cred- it as fully as if it could be sold outright like personal property. Again, land held in joint tenancy was subject to the doctrine of sur- vivorship, by which, on the death of either tenant, the whole estate belonged absolutely to the surviv- ing tenant. This was a great draw- back to the formation of copartner- ships in which the business made it necessary for the firm to own land. To obviate these diflSculties, the articles of copartnership in many instances contained an agree- ment that the land required and owned as part of the stock in trade should be considered and treated as personalty, and in others the acts of the parties furnished ground for the inference that it was the intention to impress on land the 80 THE PARTIES. the oponinj? of this paragraph may now be considered as fully settled. The rules of law which gave rise to the doctrine in England, and were the foundation upon which it was built, have little oi' no ai)plication in this country. Land may be seized and sold on execution and the doctrine of survivorship is practically abolished. The reason of the rule having ceased, therefore, courts seem ever-more inclined to the opin- ion that the rule itself is no longer applicable. § 61. Real estate partnership. The subjects discussed in the foregoing paragraphs have reference mainly to conditions created by an ordinary commercial partnership and the rela- tions sustained by the parties thereto where lands have been incidentally or casually acquired during the course of the partnership business. But not infrequently partnerships are formed for the express puri)ose of dealing in lands and the buying and selling of such lands constitutes the only business of the firm. The general principles which govern the partner- ship relation do not seem to be materially different in cases of this kind from those which apply to the ordinary trading or commercial partnership.^^ § 62. Widow's dower in partnership realty. As the heirs take the legal title, so also is the widow of a deceased partner entitled to dower in lands which constitute a portion of the partnership assets; but as to her, the same as to the heirs, the property is regarded as personalty for the purpose of pay- ing debts and adjusting equities between the partners, and her rights will only attach to her deceased husband's share after the payment of such debts and adjustment of equities.^^ Courts have even held that it is unnecessary for the wives of partners to join with them in the execution of deeds or mort- gages of the partnership realty, since the dower right did not character of personalty in all such ss See Thompson v. Bowman, 6 cases; and the courts inclined to Wall. (U. S.) 316; Chester v. Dick- extend them by construction and erson, 54 N. Y. 1 ; Ludlow v. Cooper, implication. It was held in equity 4 Ohio St. 1; Rovelsky v. Brown, that the agreement and intention 92 Ala. 83. of the parties should be carried ^"Huston v. Neil, 41 Ind. 505; into effect, and to do so the land Killet v. Brown, 65 Mo. 138; Cob- must be considered and treated as ble v. Tomlinson, 50 Ind. 550; Bar- personalty, ry V. Briggs, 22 Mich. 201. PERSONS SUI JURIS. 81 attach to specific property, but only to whatever residuum might be left after final accounting.'*^ ^ 63. Syndicates — Joint stock companies. In the preced- ing panigiiiplis wf have consuh'i'cd partncrsliips of the ordi- nary character where each partner is the agent of his finn and has jxTsonal coniact with and control over its affairs and a vested right of possession, in common with his copartners, in the property of tlie finn. But of late years there has sprung np a new species of joint adventure in tlie i)ui'chase and sale of lands as a marketabje commodity, variously known as "syndicates," "land associations," etc. These associations are voluntary in character and in practice more nearly resemble what are known as joint stock companies than any other form of business relation. In some states, where the formation of such companies is expressly permitted, they are so conducted. The effect of such association both as between the adventur- ers and those with whom they may sustain business relations has freciuently occasioned much discussion. As a general proposition such associations maj' be classed as partnerships and to them many of the general rules of partnership are fully applicable,^! The articles of association will, of course, go far to deter- mine the character which the members sustain both toward each other and to the public, but where, as is generally the case, the capital is contributed on the basis of a specific sum for each share in the enterprise, the lands purchased being held and managed for the joint account by a trustee, and the interest of members or shareholders is limited to a participa- tion in whatever profits may be realized on the company's ventures, the shares are simply personal property. As a rule the holders of such shares possess no estate in or title to the land purchased by the trustee, as tenants in common or other- wise, and they can neither convey nor incumber it. In case of the death of a shareholder, his shares will go to his personal representatives, and their interest as such shareholders will be exactly the same as his was while li^ing. His widow will take no dower or other rights in the lands, and the business of the company will not be appreciably affected. So, too, a •40 Huston V. Neil, 41 Ind. 505. Spencer v. Jones, 92 Tex. 516. 41 Jones V. Davies, 60 Kan. 309 ; 6 82 THE PARTIES. shareholder may sell and transfer his holdings without con- sultation with his associates and \^thout impairing the power of the trustee or th(* existence of the company.'*^ On the other hand, if the purchase is made with a view of specific division of the land among the shareholders, then they become tenants in common and they stand toward the trustee in the relation of cestui que trusts. In such event the usual incidents follow their equitable ownership. § 64. Corporations. Among the original powers insepara- bly incident to every corporation was that of purchasing lands and of holding them for the benefit of themselves and their successors.'*^ gut this common-law right was restrained in England at a very early day by a series of laws called "stat- utes of mortmain." These laws, it is said, were designed to repress the grasping and rapacious spirit of the church, which was absorbing in perpetuity the best lands in the kingdom. They were called statutes of mortmain because their object was to prevent the holding of lands in the dead hand of ecclesiastical corporations, which, being composed of mem- bers dead in law,^^ rendered the property unproductive to the feudal lord as well as to the public.^^ This system of restraint, though originally confined to religious corporations, was subsequently extended to civil or lay corporations as well. The English statutes of mortmain have never been re-enacted in this country,-*^ though in some states they have been held to have effect so far as the changed conditions of our political system would allow; yet their policy has been retained, and is manifest in the general and special enactments of every state. The right of corporations to acquire and transmit property is now generally regarded as a statutory one in the state of their creation,*^ and in other states is based only upon the comity between the states,*^ In the latter case it is a voluntary act i2 Re Oliver's Estate, 136 Pa. St. 45 i Black. Com. 479; Co. Lit. 2 43; Jones v. Davies, 60 Kan. 309; b; Ang. & Ames, Corp. § 148. Spencer v. Jones, 92 Tex. 516. -ig Except by the state of Penn- 43 1 Black. Com. 475; 2 Kent, sylvania. Com. 281. *" State v. Marshfield, 23 N. J. L. 44 Entering a monastery or re- 510; Downing v. Marshall, 23 N. Y. ligious community was one form of 366. civil death. •"* Carroll v. East St. Louis, 67 PERSONS SUI JURIS. 83 of i,n-a((* of llu' sovcrt'iy;!! powcr,^'' and in inadmissible when contrary to its policy or prejudicial to its interests.'^'^ §65. Municipalities. A iniiiiicipal corijoration, while it may no! accjiiirc title to lands for speculative jmnhases, has a right to i)iir(has(' and hold such as it may need for the lej;it- imate uses of the jx-ople, and when such lands are no lonj^er required may sell and dispose of same in much the same man- ner as a j)rivate proprietor. Very frecpiently a municipal cor- poration in ac(iuirin Chamberlain v. Dunlop, 126 N. Mon. (Ky.) 18. Y. 45; Smith v. Wilmington, etc. 5s Thomas v. Barton, 48 N. Y. Co., 83 111. 498; McClure v. Gamble, 193. 27 Pa. St. 288. Arttple TT. Persons Under Dtsabtlttt, § 69. Aliens. § 71. Married women. 70. Infants. 72. Husband and wife. § 69. Aliens, liy the law of nations, a contract between a citizen and an alien enemy is void and incapable of legal enforcement.^ This is the universally recognized rule, and proceeds from the principle that it is impolitic and dangerous to permit an enemy to recover or obtain from a citizen money or other property which may tend to diminish the resources of the country for defense, or perhaps be used in hostility to it. But further than this it is impossible, owing to the diver- gent character of local laws, to formulate any rule in regard to aliens that shall be of general application in all parts of the Union. There are few topics which have been subjected to more legislative tinkering and laws relating thereto are constantly being changed. It was formerly held to be against public policy to allow any person owing no allegiance to the government to own lands within its jurisdiction; and this doctrine still prevails, though modified somewhat in its harshness, in a number of the states. The rule grew out of the narrow insular policy of early English law,^ but the tendency now is in the con- trary direction, and the enlightened policy of the age has been to remove all restrictions from the transfer of land. In a majority of the states aliens may take, hold, transmit and convey in the same manner as a citizen ;3 in a few the privi- 1 Brooke v. Filer, 35 Ind. 402 ; void, there are cases which hold Fisher v. Kurtz, 9 Kan. 501; Clem- that the rule of non-intercourse, ents V. Graham, 24 La. Ann. 446; as between belligerents, has no ap- McCormick v. Arnspiper, 38 Tex. plication to the conveyance of real 569; Hill v. Baker, 32 Iowa, 302. property situated in one belligerent The fact that the agent selling the territory by a citizen of another, property was within the section to Shaw v. Carlile, 9 Heisk. (Tenn.) which the vendee belonged has 594; Conrad v. Waples, 96 U. S. been held not to vary or alter the 290. rule. Dillon v. United States, 5 Ct. - Since abolished in England. of CI. 586. But while the volume ^ This is the case in Alabama, of authority holds that convey- Colorado, Florida, Illinois, Iowa, ances of land to alien enemies are Kansas, Maine, Massachusetts, Min- PERSONS UNDER DISABILITY. 87 lege is conliued specilieallv to alieu friends;' iu otliers to aliens actually resident in the state,^ or the United States.** and in some cases is only extended to resident aliens who have declared their intention of becoming citizens."^ Again, other states, while conceding the privilege of the acquisition by purchase, deny the right of inheritance,*^ or, if this is jx-r- niitted, compel the alien to make his claim of property within a limited time,^ or limit the period during which he is allowed to hold \0^ In a few states the amount and value is limited,^^ and in one an alien is practically debarred.' - The rule of the common law peraiits an alien to take land by purchase,^ 3 either deed or devise,^ ^ and to hold it against all persons but the state ;^'^ and, as the disabilities of the alien rest upon the fact of alienage and not upon his character, there is practically no distinction in this respect between an alien friend and an alien enemy.' « The title held by him is not subject to collateral attack,''^ and may be sold and con- veyed before any action has been taken by the state, and the purchaser will hold the same in all respects as though the conveyance had been made by a citizen.^^ It is a further rule, however, that an alien can acquire no title by operation of law. Having no inheritable blood he is incapable of taking by descent;'^ and where he stands in such a position that he Besota, Mississippi, Missouri, Ne- 12 Vermont. braska, North Carolina, Ohio, Ore- 13 Doe v. Robertson, 11 Wheat. gon, Rhode Island and Wisconsin. (U. S.) 332; Montgomery v. Dor- •4 This is so of New York and ion, 7 N. H. 475; Smith v. Zaner, Virginia. 4 Ala. 99; Sheaffle v. O'Neil, 1 Mass. r- As in Arkansas, Michigan and 256. New Hampshire. '* Fox v. Sauthack, 12 Mass. 143; 6 Connecticut. Guyer v. Smith, 22 Md. 239. T Delaware, Kentucky and New I'-Ramires v. Kent, 2 Cal. 558; York. Phillips v. Moore, 10 Otto (U. S.). 8 As in Kentucky. 208; Scanlan v. Wright. 13 Pick. n California requires proof in five ( Mass.) 523. years. i'' Read v. Read, 5 Call (Va.), i»As in Indiana, where he is al- 207; Stephens' Heirs v. Swann, 9 lowed only eight years after final Leigh (Tenn.), 404. settlement of the estate; and in 17 Norris v. Hoyt, 18 Cal. 217. Illinois, where he is restricted to i'* Halstead v. Commissioners, 56 six years. Ind. 363; Montgomery v. Dorion. 11 Georgia, Pennsylvania and 7 N. H. 475. Wisconsin. lo Mussey v. Pierie, 24 Me. 559 ; 88 THE PARTIES. would take as heir but for his alienage, the title vests in the next of kin capable of inheriting, or escheats to the state.^o But these rules now possess little efficacy, and are state- ments of the law as it was rather than as it is. A clearer perception of the rights of property now prevails, and a more enlightened spirit of public policy has swept away the greater portion of the arbitrary and ofttimes unjust discriminations and restrictions that formerly hampered the acquisition and sale of landed estates. In most of the states an alien is not distinguished from a citizen, so far as respects his rights of property and his ability to make and enforce contracts in regard to the same; and, generally, for the procurement of his rights or the redress of his wrongs he stands on the same ground as the citizen, equal before the law. That such should be the law seems only in consonance with modern ideas of justice, and that such is the law is attested by the statute books of many states; yet, within a very few years, a reac- tionary spirit seems to have set in, induced by the aggressive attitude of numerous wealthy foreigners, who, by purchasing and retaining large tracts of land in the western states and territories, have endeavored to plant in the United States the system of landed estates that has become so odious in many parts of Europe. The principle of ''landlordism," as under- stood by the people of Great Britain, is certainly not in accord with the genius and spirit of our institutions, and its blighting effects upon the peasantry of the old world are only too apparent even at this distance. That some of the states, alarmed at the concentration of thousands of their broad acres in the ownership of the subjects of a foreign power, and view- ing with apprehension the reduction of its own citizens to the grade of tenants of a foreign landlord, should have taken steps to check the evil, is not strange; and hence we occa- sionally find tolerant states, which for years have removed every bar to the acquisition of its lands, passing stringent laws to restrict the purchase of land by aliens.^i § 70. Infants. The age of legal competency has been gen- Orr V. Hodgson, 4 Wheat. (U. S.) 21 The federal constitution no- 453. where defines citizenship, but the 20 Jackson v. Jackson, 7 Johns, fourteenth amendment provides (N. Y.) 214; White V. White, 2 Met. that "all persons born or natural- (Ky.) 185. ized in the United States, and sub- PERSONS UNDER DISABILITY. 89 crallv fixed by the stahitc at twenty-one years ;22 and, except under certain limitations, persons who have not attained thi.s age are incapable in law of making binding contracts. By the technical rules of the common law in cases of executory con- tracts the infant may, in general, not only refuse to [MM'form them during his infancy, but may disathrm them after he comes of age, leaving the other party without a remedy; and even when the contract has been executed, the right of dis- affirmance may still be exercised either during minority or within a certain period after attaining majority. These are the universally recognized rules in regard to contracts gen- erally; and under them a contract by a minor for the jmr- chase or sale of land cannot be enforced against him, if he sees fit to repudiate it after attaining his majorit^^ That the contract has been executed does not materially alter the status of the parties; for the same reasons that permit the infant to repudiate his executory contracts allow him to disaffinn such as have been executed, and no conveyance made by him during his minority will be binding upon him after he arrives at age.23 During the interval between the execution of the instrument and the attainment of majority, the contract op conveyance can neither be said to be void or valid; nor can any act of his impart to it either character. It is simply voidable, and so remains until he shall decide the question for himself after he becomes of age.-^ The rule appears to be inflexible; and it makes no differ- ject to the jurisdiction thereof, cation of the accepted principles are citizens of the United States governing the status of infancy. and of the state wherein they re- 2,-i Harrod v. Meyers, 21 Arli. 592; side." Congress has also furnished Cummings v. Powell, 8 Tex. 80; a definition in section 1992 of the Green v. Green, 69 N. Y. 553; Bos- Revised Statutes, which says, "all ton Bank v. Chamberlin, 15 Mass. persons born in the United States, 220; Kline v. Beebe, 6 Conn. 494; and not subject to any foreign Dearborn v. Eastman, 4 N. H. 441; power.excluding Indians not taxed, Jenkins v. Jenkins, 12 Iowa, 195; are declared to be citizens of the Chapman v. Chapman, 13 Ind. 396; United States." Fergusen v. Fergusen, 17 Mo. 347; 22 A departure from this rule is "Walker v. Ellis, 12 111. 470; Dolph observed in many states in the v. Hand, 156 Pa. St. 91 ; Logan v. case of females, who are permitted Gardner, 136 Pa. St. 588; Manning to attain majority at the age of v. Johnson, 26 Ala. 446. eighteen years; but within this age 24 Dunton v. Brown, 31 Mich, there is no difference in the appli- 182; Keil v. Healy, 84 111. 104. 90 THE PARTIES. dice that the contract was honestly entered into by the adult party supposing the infant to be of full age and competent to contract, nor that his belief was created by the fraudulent representations of the infant, at the time the contract was made, that he had attained his majority. Such representa- tions would not create an estoi)pel, and the infant would, notwithstanding, still be able to disaffimi on becoming of j^rr^ 25 T|-^g ^qq^ of au iufaut, however, is by no means inoper- ative, and will suffice to transmit title with all its incidents.^^ It he takes no steps to avoid it during the period allowed by law the title becomes unassailable for this cause; and while mere acquiescence duriug this period cannot be construed into a confinnation,-'^ there are many cases where this, in connec- tion with other circumstances, have been held to establish a ratification.-^ Where no specific time is fixed by statute — and this is the case in most of the states — it has, in a number of instances, been held that silent acquiescence, unaccompanied by other circumstances, for any period shorter than that pre- scribed by the statute of limitations, would be insulficient to bar the right of disaffirmance ;29 but, on the other hand, a large and well-considered class of cases maintain that, if the 23 Merriam v. Cunningtiani, 11 Cush. (Mass.) 40; Studwell v. Baker, 54 N. Y. 249; Conrad v. Lane, 26 Minn. 389; Gilson v. Spear, 38 Vt. 311; Lackman v. Wood, 25 Cal. 147; Cook v. Toombs, 36 Miss. 685; Wieland v. Kobick, 110 III. 16. In this latter case the infant stated in her deed that she was "unmarried and of age," and indeed only lacked a few months of majority; but the de- fense of infancy was held good. Compare Kilgore v. Jordan, 17 Tex. 341. Nor is there any differ- ence in this respect between a con- veyance and a relinquishment of dower. Watson v. Billings, 38 Ark. 278. 2e Irvine v. Irvine, 9 Wall. (U. S.) 617; Worcester v. Eaton, 13 Mass. 371; Logan v. Gardner, 136 Pa. St. 588. 27 Boody V. McKenny, 23 Me. 517; Prout v. Wiley, 28 Mich. 164; Vaughn v. Parr, 20 Ark. 600; Baker V. Kennell, 54 Mo. 82. 28 See Hartman v. Kendall, 4 Ind. 405; Cresinger v. Lessee of Welch, 15 Ohio, 193; Fergusen v. Ball, 17 Mo. 374; Bostwick v. Atkins, 3 N. Y. 53. As where the infant, after his majority, has seen the pur- chaser making valuable improve- ments and said nothing in disaf- firmance. Wheaton v. East, 5 Yerg. (Tenn.) 41. Or where, after becoming of age, he receives from his grantee a lease of part of the land. Irvine v. Irvine, 9 Wall. (U. S.) 617. 29 Peterson v. Laik, 24 Mo. 541; Davis V. Dudley, 70 Mo. 236; Hale V. Gerrish, 8 N. H. 374; McMurry V. McMurry, 66 N. Y. 175; Irvine V. Irvine, 9 Wall. (U. S.) 617. PERSONS UNDER DISABILITY. 91 infant intends to avoid or di.saninn, lit' niusl niak<' his election within a reasonable time after the removal of his disability.'"' Public policy, no less than the spirit of justice between the parties, imperatively requires that one who thus possesses a right of election shall exercise it within a reasonable time or treat the right as waived, and where such person, with full knowledge of his privilege, omits or neglects to assert it, his omission may fairly be regarded as the ecpiivalent of an act of aflirmance and as amounting in fact and in law to a ratification,'*! So, too, it is a general rule that any jiersou holding an equitable right must assert same within a reason- able time if he would avail himself of it, and where one who is entitled to such right permits the holder of the legal title to perfonn acts with respect to the propertj' which he would not have done had the right been promptly asserted, this will constitute such laches as may preclude the negligent party from relief.^2 The rule applies with equal force whether the infant be regarded as a vendor or vendee, and while specific performance will not usually be enforced against one out of possession, yet, if after coming of age he has entered or con- tinues to hold and enjoy the property or has received benefits therefrom, it will amount to confirmation on his part, and he will not be permitted to avoid the sale and refuse pa^^nent or reclaim the consideration already paid.^^ 30 Thompson v. Boyd, 13 Ala. months was held to be an unrea- 419; Kline v. Beebe, 6 Conn. 494; sonable delay. What is a reason- Hastings v. Dollarhide, Z4 Cal. 195; able time, however, will, in most Richardson v. Boright, 9 Vt. 368; instances, depend upon the circum- Hartman v. Kendall, 4 Ind. 403; stances of the particular case. Harris v. Cannon, 6 Ga. 382; Amey si Dolph v. Hand, 156 Pa. St. 91. V. Cockey, 73 Md. 298; Searcy v. 32 As where the holder of the Hunter, 81 Tex. 644. In Blanken- legal title expends money in the ship V. Stout, 25 111. 132, three improvement of the property, years was held to be a reasonable thereby greatly enhancing its val- time in which to disaffirm, and the ue, see Gibson v. Herriott, 55 Ark. rule has since been followed in 85; Cox v. Montgomery, 36 111. 398. that state. In Goodnow v. Em- 3.1 Robbins v. Eaton, 10 N. H. pire Lumber Co. 31 Minn. 468, an 561; Boyd v. McKenny. 23 Me. 517; unexplained delay of three and Delano v. Blake, 11 Wend. (N. Y.) one-half years after the ceasing of 85; Callis v. Day, 38 Wis. 643; disability was held fatal to a dis- Skinner v. Maxwell, 66 N. C. 45; affirmance. In Green v. Wilding, Corey v. Burton, 32 Mich. 31 ; Barn- 59 Iowa, 679, three years and eight aby v. Barnaby, 1 Pick. (Mass.) 92 THE PARTIES. It must fui'tlier bo observed that the priyilege of infancy is not in all respects personal to the infant; and contracts, jjrants or deeds by a matter in writing, and which take effect by delivery of his hand, are voidable not only by himself during his life-time, but also by his heirs, or those who have his estate, after his decease; and his heirs may exercise the same rights of disaffirmance within the same time that the infant himself might if living.-'^ § 71. Married women. It was among the earliest formu- lated rules of the common law that the legal existence of a woman upon her marriage became suspended, and thence- forward during the coverture was merged entirely in that of the husband. As a consequence she was without capacity to take or hold real property or to make any valid contracts in respect to the same, and all her property became vested in the husband. Equity early intervened to mitigate the austerity of this rule, and the progressive spirit of the law itself did much to relax it, until finally legislation, reflecting the enlightenment of the age, abolished it altogether. The pre- vailing doctrine now is that coverture foi-ms no bar — a mar- ried woman having the same freedom of action and con- tractual liability as though she were sole. The original rule, in all its harshness, prevailed for many years in all of the older states, although from an early day a married woman was permitted to convey her lands by joining with her husband in a deed therefor, properly acknowlodged and certified; but her acknowledgment, which performed the same office as the ancient fine and recovery, was the operative act to pass the title, and not the delivery of the deed. Under these laws her contracts, whether made separately or jointly with her husband, could not be enforced against her, even though she had received the full value of the land. Later she was permitted, by joining with her husband, to conclude herself the same as a. fc mine sole; and under these laws the acknowledgment ceased to be the effective means to work the transfer of title, the certificate standing upon the same footing 221; Biglow v. Kinney, 3 Vt. 353; ner, 75 111. 315; Breckenridge v. and see the chapters on "Rescis- Ormsby, 1 J. J. Marsh. (Ky.) 248; sion" and "Specific Performance." Austin v. Charleston Seminary, 8 34 111. Land and Loan Co. v. Bon- Met. (Mass.) 203; but compare PERSONS UNDER DISABILITY. 93 with that rcqnirod in respoct of an unnianicd woman, wliile the contracts so made were capable of spccilic enforcement in equity. In still more recent years have come other changes which secure to married women tlie same rij^hts in rejiard to their separate estates as is jiossessed by their husbands in respect to their own property, and for nearly every practical purpose a married woman can no lonfjjer be said to rest under a disability from that fact alone. Such, at least, is the present condition of the law in a majorit3' of the states. But where the statute still jjrescribes recjuisites, the rule is that the deed of a nuiri-ied woman, to b(? operative as a valid legal contract or conveyance, must be executed in strict conformity with all such requirements; and, unless it does so conform, equity cannot supply the defects or omissions. At common law a wife could convey her lands only by uniting with her husband in levying a fine, which, being a solemn proceeding of record, the judges were supposed to watch over and i)rote('t her rights, and ascertain by a i)rivate examination that her participation was voluntary. The stat- ute in the United States provided a mode for the alienation of the property of a married woman consisting of certain matters of execution which were regarded as a substitute for the common-law fine, but in order that her deed should be operative to any extent the courts have uniformly held that it must conform fully with the statute.^^ § 72. Husband and wife. By the rules of the common law neither husband nor wife could contract with or convey prop- erty directly from one to the other, the theory being that because of their legal unity neither could grant an estate to the other to take effect in possession during the lifetime of the grantor. The power of the husband to take or dis])ose of property was not affected by the marriage except in the single instance of conveyance to the wife, but with respect to the wife the policy was always one of repression. The statute Jackson v. Burchin, 14 Johns. (N. Iowa, 381; Grove v. Zumbro, 14 Y.) 127; Beeler v. Bullitt, 3 A. K. Gratt. (Va.) 501; Dewey v. Cam- Marsh. (Ky.) 280. pau. 4 Mich. 565; Pratt v. Battels, ;'■'•- See Silliman v. Cummins, 13 28 Vt. 685. Ohio, 116; O'Ferrall v. Simplot, 4 9t THE PARTIES. liiiallj' came to her relief and permitted her to convey her separate property on the condition that the husband joined with her in the deed, and so the law stood for many years, and so, to some extent, it still remains. The object of the statute, it would seem, was to afford her his protection against impo- sition and fraud and to aid her by his counsel and advice.^^ But this statute, while it left her free to convey to another person, did not remove the ban of the common law which prohibited a direct conveyance to the husband, and, notwith- standing that conveyances from the husband to the wife were freely sustained in many instances, the rule with respect to the wife remained. In support of this position it was con- tended that the law having provided for the joinder of the husband in this class of conveyances, with a view of giving the wife the benefit of his protecting care and advice, it would be illogical to permit him at the same time to act in a capacity, which, in law at least, was adverse to her interests. And so it was generally held that the wife could not make a con- veyance to her husband or enter into contractual relations with him respecting her own lands.^'^ But in many of the states the conditions just considered no longer exist. Broad and comprehensive statutes have been enacted which assure to married women the same rights of 36 Meagher v. Thompson, 49 Cal. the right to receive such volun- 190. tary conveyance from the wife has 3T The general result of the rea- not been conferred upon the hus- soning of the cases may be sum- band, and he stands, as at common marized as follows: (1) These law, incapacitated from taking by statutes are for the benefit of mar- deed of gift directly from his wife, ried women, and not for that of (3) The "power to convey and de- their husbands; and any construe- vise real and personal property as tion which would result in mak- if she was unmarried" does not ing it more easy for the husband enlarge the powers of the grantees to secure control of the estate of under conveyances by her, and she the wife would tend to defeat the could not devise to a corporation very object of the law. (2) The or person incapable of taking by inhibition of the common law, as will, or convey to one incompetent applied to the husband, was that to be a grantee. (4) To render a he could neither convey to his wife, conveyance from the wife to her directly, nor be a grantee from husband valid, the husband's com- ber; and, while the right of the mon-law disability, as well as that wife to take by gift removes the of the wife, must be removed, impediment to a voluntary convey- White v. Wager, 25 N. Y. 328; ance from the husband to her, yet Brooks v. Kearns, 86 111. 547; Scar- PERSONS UNDER DISABILITY. 95 alienation of their separate property as are enjoyed by unmar- ried women, and where such hiws prevail it would seem that a married woman may now convey in the same manner and with the same effect as if sole, subject, of course, to whatever provision the laws of the locality may imj)ose with resjiect to homestead and dower. In her dealings with third persons but little question can arise under these statutes, and though some doubt may still remain willi respect to transactions directly with the husband"'^ the trend of opinion indicates that her deeds to him are to be upheld and accorded the same effect as those made to others.^" And even in those states where deeds of this character are denied eifect at law they may still be upheld in equity,^*^ particularly when shown to have been based upon a sutiicieut consideration,^^ and executed without compulsion. '■- borough V. Watkins, 9 B. Mon. Me. 371; Burdeno v. Amperse, 14 (Ky.) 545; Kinnaman v. Pyle, 44 Mich. 97; Williams v. Harris, 4 S. Ind. 275; Winans v. Peebles, 32 N. Dak. 22; Grain v. Shipman, 45 Y. 423; Sims v. Rickets, 35 Ind. Conn. 572. 181. ••"Turner v. Shaw, 96 Mo. 22; 38 See Winans v. Peebles, 32 N. Y. Darlington's Appeal, 86 Pa. St. 512. 423; Luntz v. Greve, 102 Ind. 173; ^i Winans v. Peebles, 32 N. Y. Gebb V. Rose, 40 Md. 387. 423, and see Wormley v. Wormley, 30 See Osborne v. Cooper, 113 98 111. 544; Bush v. Henry, 85 Ala. Ala. 405; Simms v. Hervey, 19 605. Iowa, 287; Robertson v. Robertson, 42 Darlington's Appeal, 86 Pa. St. 25 Iowa, 350; Allen v. Hooper, 50 512. Article III. Persons iNcoMrETENT. § 73. Lunatics. § 75. Drunkards. 74. Imbeciles. 76. Convicts. § 73. Lunatics. Tersons of unsound mind, when such un- soundness amounts to an incapacity to understand and act in the ordinary aH'airs of life, have always been held incapable of making a valid contract; for it is essential that there should be the concurring assent of two minds, and they who have no mind are unable to give true consent.^ Yet, while this is the recognized doctrine, it by no means furnishes a conclusive rule for the decision of all questions growing out of the contracts of demented persons; nor indeed can any definite rule, that can be deemed authoritative, be formulated from the reported cases. It would seem, however, that while the plea of lunacy is usually an effectual bar to the enforcement of an executory contract,- yet where a purchase has been made from an insane person, and a deed of conveyance obtained in perfect good faith, before an inquisition and finding of lunacy and with no knowledge of such lunacy on the part of the purchaser, and if the transaction has been in all other respects fair and reasonable, with no advantage taken by the purchaser, and if the conveyance was for a sufficient consideration, which was received by the lunatic, then, if the parties cannot be put in statu quo, it will not be set aside." This results, it is said, not because the contract was valid and binding, but rather for the reason that an innocent party, without fault 1 Powell v. Powell, 18 Kan. ,371; other party was non compos mentis Van Deusen v. Sweet, 51 N. Y. 378; at the time the contract was made. Dexter v. Hall, 82 U. S. 9; and see 3 Behrens v. McKenzie, 23 Iowa, Grant v. Thompson, 4 Conn. 203; 333; Gribben v. Maxwell, 7 Pac. Lang v. Whidden, 2 N. H. 435. Rep. 584; Allen v. Berryhill, 27 2 It was held in Allen v. Berry- Iowa, 534; Rhodes v. Fuller, 139 hill, 27 Iowa, 534, that where a Mo. 179; Schaps v. Lehner, 54 contract made by an insane person Minn. 208; Odom v. Riddick, 104 has been adopted, and is sought to N. C. 515; Eldredge v. Palmer, 185 be enforced by the representatives 111. 618; Bank v. Moore, 78 Pa. St. of such person, it is no defense to 407, where a lunatic was held liable the same party to show that the upon a note discounted by him at 96 PERSONS INCOMPETENT. 97 or Legligence, would hv prejudiced by setting it aside. Both parties are faultless, and therefore stand ecpial before the law; and in the forum of conscience the law will not lend its active interposition to effectuate a wrong or prejudice to either, but will suffer the misfortune to remain where nature has cast it.' It must, of course, be understood that the circumstances attending the case have much to do with the application of the rule last stated whenever it is invoked as a rule. Insanity is a mj'sterious disease, sometimes affecting the mind only in its relation to or connection with a particular subject, leaving it apparentl}- sound and rational as to all others; and many insane peisous drive as thrifty a bargain as the shrewdest business man, without betraying in manner or conversation the faintest trace of mental derangement. It would be unjust, therefore, that such persons should be allowed to retain the property of innocent parties, or to retain their own property and its price ;5 and in this light the rule, as stated, is applied. The deed of a lunatic is not void, but, like that of other persons incompetent or disabled, voidable only, and is effectual to pass title with all its incidents if unassailed.*^ The authorities are contradictory upon this point, however, and in a number of cases it has been held that the deed of an iusaue grantor, executed before an inquisition of luuacy, is not merely voidable but void,'^ though it would seem, where this view is taken, that to establish invalidity it must appear that the grantor at the time of execution was absolutely with- out capacity to understand or comprehend the nature of the the bank; Scanlan v. Cobb, 85 111. Mass. 359; Ingraham v. Baldwin, 296; Freed v. Brown, 55 Ind. 310; 9 N. Y. 45; Crouse v. Holman, 19 Young V. Stevens, 48 N. H. 133; Ind. 30; Chew v. Bank, 14 Md. 299; Eaton V. Eaton, 37 N. J. L. 108; Hovey v. Hobson, 53 Me. 451; Els- and see 2 Kent Com. (11th ed.) ton v. Jasper, 45 Tex. 409; Mohr 583. The English cases also sus- v. Tulip, 40 Wis. 66; Eaton v. tain this view. Eaton, 37 N. J. L. 108; Nichol v. 4 Cole, J., in Allen v. Berryhill, Thomas, 53 Ind. 42; Castro v. Geil, 27 Iowa, 534; and see Wilder v. 110 Cal. 292. Weakley, 34 Ind. 181; Henry v. 7 Rogers v. Walker. 6 Pa. St. Fine, 23 Ark. 417. 371; Van Deusen v. Sweet, 51 N. Y. 5 Bank v. Moore, 78 Pa. St. 407; 378; Rogers v. Blackwell. 49 Mich. Young V. Stevens. 48 N. H. 133. 192; but see Moran v. Moran, 106 6 Wait v. Maxwell, 5 Pick. Mich. 8; Eldredge v. Palmer. 185 (Mass.) 217; Badger v, Phinney, 15 111. 618. 7 98 THE PARTIES. transact iou.^ The volume of authority sustains the first proposition as stated, and, generally, where the deeds of demented persons are set aside the consideration paid therefor must be restored.^ After a person has by inquest been found to be of unsound mind, he should, so long as the unsoundness continues to exist, be regarded for most if not all purposes of business as civilly dead,'^ and a deed thereafter executed by him would be absolutely void.^i The right of disaffinnance being raised for the personal pro- tection of the insane person it follows that those who deal with him have no corresponding rights. The rule is much the same as in the case of infants and where one has con- tracted with an insane person, although unaware of his in- firmity at the time, he will be held to the performance of the contractual undertaking unless he has been misled by some fraudulent artifice or misrepresentation.^^ § 74. Imbeciles. Mere weakness of mind, when unaccom- panied by an}' circumstances showing imposition or undue advantage,^^ forms no objection to the validity of a contract,i^ for the law does not graduate intellectual differences on a nicely adjusted scale; nor does it seem that partial insanity or monomania,^^ unless it exists with reference to the con- tract,!^ will create incapacity unless coupled with other cir- cumstances. That the mental powers have been somewhat impaired by age is not sufficient to invalidate a deed,!^ unless it can be shown that the purchaser took unfair advantage of the vendor's mental incapacity; and if he be still capable of transacting his ordinary business — if he understands the sAldrich v. Bailey, 132 N. Y. 85. Young v. Stevens, 48 N. H. 133; a Eldredge v. Palmer, 185 111. 618. Cain v. Warford, 33 Md. 23. 10 McNees v. Thompson, 5 Bush i* Somers v. Pumphrey, 24 Ind. (Ky.), 686. 231; Baldwin v. Dunton, 40 111. 11 Rhoades v. Fuller, 139 Mo. 179; 188; Willemin v. Dunn, 93 111. 511; Griswold v. Butler, 3 Conn. 227; Mann v. Betterly, 21 Vt. 326. Elston V. Jasper, 45 Tex. 409. i5 Burgess v. Pollock, 53 Iowa, i2Atwell V. Jenkins, 163 Mass. 273. 362; Allen v. Berryhill, 27 Iowa, le Emery v. Hoyt, 46 111. 258; 534; Harmon v. Harmon, 51 Fed. Staples v. Wellington, 58 Me. 453. Rep. 113. i7Lindsey v. Lindsey, 50 111. 79; 13 Mann v. Betterly, 21 Vt. 326; Beverly v. Walden, 20 Gratt. (Va.) 147. PERSONS INCOMPETENT. 99 nature of the business in w liicli he is enj^aged, and the effect of what he is doing, and can exercise his will with reference thereto — his acts will be valid and binding.^'* Transactions with persons of feeble mind are always sub- ject to close scrutiny, however, and, unlike those between parties of unimpaired mental faculties, will be set aside on slight grounds after the disability has been shown to exist. Where one of the parties to a contract at the time of its exe- cution was laboring under mental weakness, a court of equity will investigate the consideration and detennine its suffi- ciency, as well as pass upon the party's mental state and con- dition; and if inadequacy of consideration and mental imbe- cility concur, although the weakness of mind does not amount to idiocy or legal incapacity, the contract will be annulled at the instance of such party. In this class of cases, it would seem, it is not necessary to show that the complaining party was actually misled by fraud or dominated by undue influ- ence.i^ Persons born deaf and dumb are, by the common law, prima facie non compos mentis, and without sufficient under- standing to know and comprehend their rights, duties and liabilities. The improved methods of educating such persons adopted at the present day develop in them a higher degree of intelligence, however, than it was formerly supposed they possessed, and to some extent has modified the ancient rule. Yet as the want of hearing and speech must necessarily pre- vent a full development of their intellectual powers, and place them at a great disadvantage in their dealings with others, the law throws around them for their protection the presump- tion of incapacity to manage their own affairs until the con- trary is shown.20 IS English V. Porter, 109 111. 285; posed upon, the statement of a con- Cadwallader v. West, 48 Mo. 483; sideration when there was none, Lozear v. Shields, 23 N. J. Eq. 509. or improvidence of the transaction, 10 Wray v. Wray, 32 Ind. 126. are circumstances which furnish a In transactions connected with the probable, though not always a cer- transfer of property, the non-in- tain, test of undue influence or tervention of a disinterested third fraud. Cadwallader v. West, 48 party or independent professional Mo. 483. adviser, especially when the con- 20 Oliver v. Berry, 53 Me. 206; tracting party is from age or weak- Brower v. Fisher, 4 Johns. Ch. (N. ness of disposition likely to be im- Y.) 441. 100 THE PARTIES. § 75. Drunkards. It is a well-established principle of the common law that intoxication does not of itself render a con- tract void or relieve the contractinj^ parties from its conse- (piences, notwithstanding it may be such as to lead them into imprudent and disadvantageous engagements.^^ Were it otherwise, drunkenness, it is said, would be the cloak of fraud. P)Ut, on the other hand, where it is such as not to leave to men the power of perceiving and assenting, they cannot be bound, because the very essence of every contract is the assent of the contractor to what he may be presumed to understand; and hence, where the power of assent is wanting, where reason, memory and judgment have been drowned, leaving such an impairment of the mental faculties as amounts to positive incapacity to act or comprehend, the transaction may be avoided for that reason.22 To avoid responsibility, however, on the ground of intoxi- cation, the proof of mental incapacity must be clear and con- vincing;-^ for a drunkard is not incompetent, like an idiot or one generally insane,^* and the proof must show that at the time of the act in question his understanding was clouded or his reason dethroned by actual intoxication ;25 while some authorities hold that, notwithstanding he may have been so drunk at the time as to be incapable of judging correctly or acting prudently, he will still be held to the contract, unless it can be shown that the intoxication was procured with the consent or by the contrivance of the other party, or that fraud or duress was employed.-^ The volume of authority, however, does not seem to sanction this view; and it may now be con- sidered a settled principle, according to the dictates of good sense and common justice, that a contract made by a person 21 Bates v. Ball, 72 111. 108; Joest Freeman v. Staats, 8 N. J. Eg. V. Williams, 42 Ind. 565; Broad- 814. water v. Darne, 10 Mo. 277; Johns 23 Bates v. Ball, 72 111. 108. V. Fritchey, 39 Md. 258; Caulkins 24 Van Wyck v. Brasher, 81 N. V. Fry, 35 Conn. 170; Peck v. Gary, Y. 260. 27 N. Y. 9. 25 Gardner v. Gardner, 22 Wend. 22 French v. French, 8 Ohio, 214; (N. Y.) 526 Peck v. Gary, 27 N. Van Wyck v. Brasher, 81 N. Y. Y. 9; Johns v. Fritchey, 39 Md. 260; Wilcox v. Jackson, 51 Iowa, 258. 208; Dunn v. Amos, 14 Wis. 106; 26 Bates v. Ball, 72 111. 108; Rod- Johns V. Fritchey, 39 Md. 258; man v. Zilley, 1 N. J. Eq. 320. Johnson v. Phifer, 6 Neb. 401; PERSONS INCOMPETENT. 101 SO destitute of reason as uot to know tlu* consequences of his contract, even though his incompetency be produced by intoxi- cation, is voidable, and may be avoided by himself; and this, too, although the intoxication was voluntary, and not pro- cured by the circumvention of the other party.^"^ Ordinarily, to defend against a contract on the ground of intoxication, it must have been rescinded by restoring, or by an offer to restore, whatever was received therefor as a con- sideration ;28 and if the drunkard, during his sober intervals and with knowledge of what he has done, keeps the consider- ation received,-"* or by other unequivocal act or declaration indicates an intention to ratify what he has done, the contract will be regarded as allirmed.-*^ A protection against waste and improvidence has been cre- ated in most of the states by a Sfjecial statute providing for a conservator or committee to manage and control the drunk- ard's estate; and when a man has been found, by inquisition duly taken in pursuance of the statute, to be incapable of conducting his own allairs in consequence of habitual drunk- enness, his property — real as well as personal — is taken out of his hands and put into the custody and control of such com- mittee. The trust thus created continues without interrup- tion until the death of the drunkard or the superseding of the commission, and all business relating to the drunkard's estate must be transacted with the conservator or committee until the inquisition has been set aside.^^ The fact that the drunk- ard has sober intervals in no way alters the case, and during such intervals he has no more authority to deal with or dis- pose of his property than while he is in a state of intoxication; nor will the further fact that the other contracting party acted 27 Broadwater v. Darne, 10 Mo. same as in cases of infancy; and 277; Miller v. Finley, 26 Mich, any distinct, unequivocal act, after 254; Mansfield v. Watson, 2 Iowa, becoming sufficiently sober to com- 111; Belcher v. Belcher, 10 Yerg. prehend the nature of the trans- (Tenn.) 121; and see Scanlan v. action, manifesting an intention to Cobb, 85 111. 296; Johns v. Fritchey, be bound by the contract and in- 39 Md. 258. consistent with its disaffirmance, sf^ Joest v. Williams, 42 Ind. 565; will amount to a ratification. Mans- Cummings v. Henry, 10 Ind. 109. field v. Watson, 2 Iowa, 111. 29 Joest V. Williams, 42 Ind. 565. ■''i Wadsworth v. Sharpsteen, 8 N. 30 The rule with respect to in- Y. 388; Redden v. Baker, 86 Ind. toxicated persons is practically the 195. 102 THE PARTIES. ill good faith and with no actual notice of the inquisition con- fer upon him any additional rights or furnish ground for equitable relief. From the very nature and object of the pro- ceeding the inquisition must be regarded as conclusive evi- dence of the incapacity of the drunkard to dispose of his prop- erty or contract obligations in regard thereto; and of this proceeding those dealing with him must take notice. This rule may sometimes be a hard one, but it can never be said to be unjust; nor does it violate the general rule that a decree or other judicial proceeding binds those only who are parties to it, as these proceedings are matters of public interest and concern, to which no one can strictly be said to be a stranger.32 § 76. Convicts. At common law a person convicted of treason or felony was placed in a state of attainder, the con- sequences of which were forfeiture of estate, corruption of blood, and a total deprivation of civil rights; in other words, he became dead in law, and this condition was termed "civil death." The exact status of a person so conditioned does not seem to be altogether clear so far as respected his contractual rights, but it would seem that in any event he was unable to invoke the aid of a court to enforce his contracts or to obtain any relief against them. The term "civil death" has been retained in the statutes and codes of a number of states, but no very definite meaning attached, and, for this reason, it has been made the subject of considerable controversy. But notwithstanding the reten- tion of the term it would seem, under the interpretation of the courts, to imply nothing more than a deprivation of political rights, leaving the civil rights of the convict in large measure unimpaired. Particularly is this true with respect to his property, and it may be said that the forfeitures and disabilities of the common law in regard to same are unknown in the United States.^^ A convicted felon may dispose of his property by wull or deed, and, it would seem, may enter into contractual relations and make effective agreements concern- ing it.^^ 32 Wadsworth v. Sharpsteen, 8 39 ; Coffee v. Haynes, 124 Cal. 561 N. Y. 388. Avery v. Everett, 110 N. Y. 317 33 They have practically been Willingham v. King, 23 Fla. 478 abolished by statute in England. Frazer v. Fulcher, 17 Ohio, 260. 34 See Davis v. Laning, 85 Tex. Article IV. Fiduciaries. § 77. General principles. § 83. Guardians. 78. Trustees. 84. Trustees as purchasers — The 79. Mortgagees. rule stated. 80. Executors and administra- 85. Continued — Exceptions to tors. and qualifications of the 81. Continued — Executors. rule. 82. Continued — Administrators. § 77. General principles. A very large proportion of the sales of real proix-rty in the United States are made through the media of fiduciaries and trustees. They include not only trustees proper, but all who act under a power, as mortga- gees, executors, guardians, etc.; and the same general prin- ciples are equally applicable to all of the ditferent classes and relations. Courts of equity will scrupulously examine the conduct of persons acting in a fiduciary or trust cai)acity, and protect the trust property from waste, whether it arises from the actual or constructive fraud of the trustee acting with the party taking the undue advantage, or from the fraud of the latter alone.^ The presumption is, however, that partii'S charged with a trust perform their duty until the contrary appears; and, when an act is susce])tible of two opposite constructions, one consistent with innocence and fidelity to duty and the other the reverse, the law presumes in favor of innocence and fidelity.^ § 78. Trustees. By the rules of the common law, as well as by statutory enactments in many states, a trustee to whom land has been conveyed is regarded as possessing the full legal title, the legal estate in his hands being attended by the same inci- dents and having the same jjroperties that it would have were he the usufructuary owner.^ In equit}' he was fonnerly treated as the legal owner, and for many ])ui'])oses is still so consid- ered, although obliged to use the land for the declared objects and avowed purposes of the trust. At the present time, and in the United States, the generally-accepted doctrine is that 1 Moore v. School Trustees, 19 3 Devin v. Hendershott, 32 Iowa, 111. 83. 192; Beach v. Beach, 14 Vt. 28. 2Munn v. Burges, 70 III. 604. 103 104 THE PARTIES. a trustee takes an estate coiiimeusuiate iu extent and duration with the object and extent of the trust. Its creation gives him not only a power but an estate; and if the trusts require an estate in fee, such will devolve on the trustee irrespective of any words of purchase or limitation.* A conveyance by the trustee has, at common law, the effect of a complete transfer, which is as effectual ordinarily as though he also possessed the beneficial estate;^ and even though the conveyance may have been in violation of the trust, his vendee will nevertheless hold the legal title, the question as to his right to convey being of equitable cogni- zance onh% and hence not to be inquired into by a court of law.6 The revised statutes of some of the states provide that, where the trust shall be expressed in the instrument creating the estate, every sale, conveyance, or other act of the trustee in contravention of the trust shall be absolutely void, the object being to protect beneficiaries from the unauthorized acts of their trustees by charging persons dealing with the latter with know-ledge of the trust. Under these statutes the courts have held that any sale or conveyance in contravention of the trust is ineffectual to pass the title, and that the legal estate, notwithstanding the conveyance, remains in the trustee."^ Independent of any statute, however, there is no doubt but that persons dealing with a trustee on the faith of the trust estate are bound at their peril to take notice of the scope of his powers;^ and where a trust deed, or other instru- ment creating the trust, minutely and particularly describes the circumstances under which and the manner in w'hich the trustee shall have authority to act, he will have no power or 4 Welch V. Allen, 21 Wend. (N. (N. C.) 155; Dawson v. Hayden, 67 Y.) 147; West v. Fitz, 109 111. 425; 111. 52. Doe V. Ladd, 77 Ala. 223; Leonard 7 Anderson v. Wood, 44 N. Y. V. Diamond, 31 Md. 536; Stock- 249; Russell v. Russell, 36 N. Y. bridge V. Stockbridge, 99 Mass. 244. 581; Douglas v. Cruger, 80 N. Y. 5 Bank v. Benning, 4 Cranch (U. 15. The statute does not seem to S.), 81; Thatcher v. St. Andrew's have been very generally enacted, Church, 37 Mich. 264; Dawson v. and appears to be confined to New Hayden, 67 111. 52; R. R. Co. v. York, California and possibly a few Green, 68 Mo. 169; Packard v. Mar- other states. shall, 138 Mass. 301. » Owen v. Reed, 27 Ark. 122; c Canoy v. Troutman, 7 Ired. L. Vernon v. Board of Police, 47 Miss. 181. FIDUCIARIES. 105 authority to dispose of the liiisl properly under auy other circumstances or in any other manner." If the power to con- vey can bo exercised only on the hap|»eniii<; of an event which is a condition precedent, the i)iii(liaser niusl ascertain at ills peril whether the condition has been fulfilled.'" Aower of sale contained in the mortgage, is chargeable with notice of defects and irregularities attend- ing the sale, and cannot evade their effect, but it would seem that, as to remote purchasers, the sale is only voidable on proof of actual knowledge of such defects.^'^ It has been held, however, that a properly executed deed reciting strict con- formity, the purchaser having no actual knowledge or notice of any irregularity, and taking such deed upon the strength of the assurances therein contained, will protect the title of such purchaser.18 § 80. Executors and administrators. Executors and admin- istrators stand in the position of trustees of those interested in the estates upon which they administer. An executor may sell and convey lands held in special trust without the inter- vention of a court, but not such lands as are sold in due course of administration to pay decedent's debts, while an admin- istrator can do no act affecting lands without special orders of a court. In case of sales by either officer, no title passes until the execution and delivery of a deed;^^ and, without such title as the deed conveys, the purchaser cannot maintain or defend ejectment against or by the heir.20 §81. Continued — Executors. A testamentary executor 15 Fowle V. Merrill, 10 Allen, 350; after claiming under the mort- Torrey v. Cook, 116 Mass. 163. gagor with constructive notice that 16 Donohue v. Chase, 11 Reporter, there had been a valid sale under 225. the power, although the deed may 17 Hamilton v. Lubukee, 51 111. be defectively executed so as not 415; but see Hosmer v. Campbell, to pass the legal title. Gibbons v. 98 111. 572. Hoag, 95 111. 45. IS Hosmer v. Campbell. 98 111. is Although it seems a properly 572. Where a deed for land sold conducted sale, after confirmation, under a power in a mortgage, re- will vest an equitable title in the citing correctly all the facts show- purchaser. ing a right to make the sale, is re- 20 Doe v. Hardy, 52 Ala. 291; corded in apt time, the record Gridley v. Phillips, 5 Kan. 349. thereof will affect all persons there- FIDUCIARIES. 107 stands iu the place of aud represents his testator, lie derives Lis power primarily from the will, and in this respect differs soniewlial from an administrator, whose sole power is derived from the law and the directions of the conrt.-' When acting under a naked testamentary appointment, his powers are coextensive with those of the administrator, and he is bound by the same rules and subject to the same restrictions. But the executor may also be a tru8tee,22 and, when acting as such, the scope of his powers is measured and limited by the will which apjioints him. Under his testamentary authority he may sell land and otherwise execute the trusts and exercise the powers enumerated and conferred in the will, subject to the general regulations of the statute, and free from the con- trol or intervention of a court ;-^ but where authority is not expressly given, or where, during the administration, he per- forms the ordinary offices of an executor, as where land is sold to pay the debts of decedent, no express power being given, he must first obtain authority or license from the pro- bate court; and his sale must be reported to and confirmed by such court before a deed can lawfully issue to the pur- chaser. § 82. Continued — Administrators. An administrator is regarded as an executive otiicer of the court, while he also occupies the relation of trustee to the estate, its creditors and distributees.24 Although he may not possess as much power .as an executor, the latter deriving his power from the testator and the law, and the administrator from the law only,-'^ he yet possesses all necessary power to sell property, negotiate secu- rities, and to settle and pay debts,-^ but under the order and 21 Walker v. Craig, 18 111. 116; to sell lands. Skinner v. Wood, 76 Van Wickle v. Calvin, 23 La. Ann. N. C. 109. 205; Gilkey v. Hamilton, 22 Mich. ^< Wingate v. Pool, 25 111. 118; 283. State v. Meagher, 44 Mo. 356. 22 Pitts V. Singleton, 44 Ala. 363. -•'; Gilkey v. Hamilton. 22 Mich. 23 Buckingham v. Wesson, 54 283. Miss. 526; Whitman v. Fisher, 74 2c Walker v. Craig, 18 111. 116. 111. 147; Cronise v. Hardt, 47 Md. Real estate cannot be sold by an 433; Jelks V. Barrett, 52 Miss. 315; administrator unless the personal Hughes V. Washington, 72 111. 84. estate is insufficient to pay the But the power must be explicit; liabilities; and, ordinarily, only so general words do not confer power much should be sold as is neces- 108 THE PARTIES. direction of the court. He takes neither an estate, title nor interest in the hinds of his intestate,^'^ but a mere naked power to sell for specific purposes.^s He takes the land as he finds it,2^ and, having no interest therein, can maintain no action to perfect the title or relieve it of any burden,3o and must sell it as he finds it.^^ The power to sell is a personal trust, which cannot be delegated ;32 and the sale, being a fiduciary act based upon statute, must strictly comply with all the pro- visions of law.33 The doctrine of caveat emptor applies to all sales by an administratorj^"* or other officer acting in a ministerial capacity; and the purchaser, who is presumed to have made all necessary inquiries, takes the title at his peril,^^ and sub- ject to all liens except those for the payment of which the land is sold.^*^ The purchaser has no right to the land until the sale has been confirmed ;^'^ but where the sale has been made under a proper order of the court, and reported to and confirmed by it, it conveys title even though the proceedings be irregular."^ It may happen that an executor or administrator, without authority, invests the funds of the decedent's estate in land; or he may take land in payment of a debt due to the estate which he represents, or may purchase it for the protection of the estate at an execution sale under a judgment belonging to the estate. Under such circumstances the executor or administrator in one sense holds the land in trust for the persons beneficially interested in the estate, and can be com- pelled to account for it. Such land, however, would not come under the same rules as if it had been the property of the sary for that purpose. Newcomer 33 Fell v. Young, 63 111. 106; V. Wallace, 30 Ind. 216; Foley v. Lockwood v. Sturdevant, 6 Conn. McDonald, 46 Miss. 238. 386; Corwin v. Merritt, 3 Barb. 27 Ryan V. Duncan, 88 111. 144; 341. Stuart V. Allen, 16 Cal. 473. 34 McConnell v. Smith, 39 111. 28 Smith V. McConnell, 17 111. 279. 135; Floyd v. Herring, 64 N. C. 35 Bishop v. O'Connor, 69 111. 431. 409. 3fi Henderson v. "Whitinger, 56 29 Gridley v. Watson, 53 111. 186. Ind. 131. 30 Le Moyne v. Quimby, 70 111. 37 Mason v. Osgood, 64 N. C. 467; 399; Ryan V. Duncan, 88 111. 146. Rawlings v. Bailey, 15 111. 178. 31 Martin v. Beasley, 49 Ind. 280. 38 Thorn v. Ingram, 25 Ark. 52; 32 Chambers v. Jones, 72 111. 275; Myer v. McDougal, 47 111. 278. Com- Gridley v. Philips, 5 Kan. 349. pare Chase v. Ross, 36 Wis. 267. FIDUCIARIES. 109 decedent at the time of his death; and the eflect of a con- veyance to the executor or administrator under circumstances simihir to those mentioned \Yould be to vest in such person the entire le^Ml title with all its incidents, including a full power of disposition, he of course remaining liable to account for its proceeds to those interested in the estate. So, too, land bought in by executors or administrators on a foreclosure of a mortgage belonging to the estate is to be treated as personal property and to be accounted for as such; and whether the deed is taken in the names of such persons in their ollicial capacity or individually is immaterial so far as respects heirs and devisees. In such event the entire title is held by such personal representatives, while the land thus purchased by them is regarded as a substitute for the mort- gage foreclosed, and takes its place for all purposes as be- tween the executor or administrator and the parties interested in the estate. The land itself may be sold by the executor or administrator in the exercise of their own discretion; while the beneficiaries under the estate having no direct inter- est in the property, cannot dispute or question the title of a purchaser.39 § 83. Guardians. The law permits conveyances by guard- ians, conservators, committees, etc., of the real estate of their wards whenever the sale of such property may be necessary or expedient for the payment of debts, the support and educa- tion of the ward, an investment of the proceeds, or other similar conditions. Such property can only be sold, however, under the order of a court of competent jurisdiction, and a confirmation after sale is necessary to give it validity.^*' A conveyance by the guardian in any other manner is unau- thorized; and where one purchases the real estate of minora from a guardian, directed by order of court to sell it, not- withstanding he takes a deed from such guardian, if the sale is never reported to or confirmed by the court, he cannot main- tain his title against a subsequent conveyance made by the minors after coming of age."*^ 30 Lockman v. Reilly, 95 N. Y. Mich. 188; Chapin v. Curtenius. 15 64; Long v. O'Fallon. 19 How. (U. 111. 427. S.) 116. ^1 Titman v. Riker. 10 Atl. Rep. 40 People V. Circuit Judge, 19 397. The guardian in such cases la Mich. 296; White v. Clawson, 79 the agent of the court, and can 110 THE PARTIES. Tlu' I'ii^lit of u guardian to thus dispose of the property of his ward is given by statute, and strict compliance with stat- utory requirements is always exacted. A person who pur- chases at a guardian's sale, or even one who purchases from the vendee of that sale, must take notice at his peril of the authority of the guardian to make same, and if any of the mandatory provisions of the statute have not been complied with the sale will be void.^^ ^^nd it seems, that even though the proceeds of the sale may have been applied toward the maintenance and education of the wards, this will not estop them from denying the validity of same,43 although, as to this point, the authorities are not agreed.'*^ § 84. Trustees as purchasers — The rule stated. As a vendee, a trustee is under stringent restrictions, so far as his dealings with the trust property is concerned; and the rule is beyond dispute that the purchase by a trustee, directly or indirectly, of any of the trust estate which he is empow^ered to sell as a trustee, whether at public auction or private sale, is voidable at the election of the beneficiaries of the trust; and this rule will be enforced without regard to the question of good faith or adequacy of price, and whether the trustee has or has not a personal interest in the property.'*^ Nor is the application of this rule confined to any particular take no lawful step without au- 42 Bachelor v. Korb, 58 Neb. 122; thority from his principal. The Williams v. Morton, 38 Me. 47; nature and extent of his authority Tracy v. Roberts, 88 Me. 310. is derived from the statute, which 13 Wilkinson v. Filby, 24 Wis, is the foundation for the whole 441; Requa v. Holmes, 26 N. Y. proceeding. As a rule the statute 338; Rowe v. Griffiths, 57 Neb. is peremptory, and its provisions 488. cannot be disregarded or avoided; 44 See Deford v. Mercer, 24 Iowa, and if, in dealing with the rights 118; Penn v. Heisey, 19 111. 265. of infants or others under dis- 45 Nor is it sufficient to enable a iibility, a guardian might in one trustee to make such a purchase particular take the law in his own that the formal leave to buy, which hands and assume prerogatives of is usually granted to the parties in the court, then he might in every a foreclosure or partition sale, has other. And the same remarks are been inserted in a judgment or applicable to the purchaser. If he decree authorizing the sale. Such a accepts title under such circum- provision is inserted merely to ob- stances he does it at his peril, and viate the technical rule that par- with every means at hand f.or the ties to the action cannot buy, and fullest information. is not intended to determine equi- FIDUCIARIES. Ill class of persons, such as }i;iiar(lians, oxeeutois, trustees, etc.; but it is a rule of universal application to all persons coming within its principle, which is that no person can be permitted to purchase an interest where he has a duty to perform that is inconsistent with the character of purchaser,^" or do any other act which has a tendency to interfere with the faithful discharge of such duty.-*'^ The reason of the rule is not because trustees might not, in many instances, make fair and honest disposition of the trust estate to themselves, but because the probability is so great that they would frequently do otherwise, without danger of detection, that the law con- siders it better policy to prohibit such purchases entirely than to assume them to be valid except where they can be proved to be fraudulent. Therefore, it is wholly immaterial that the transaction may have been fair, profitable or advantageous to the bent'ticiary. The rule forbidding this contlict between interest and duty is no respecter of persons. It imputes con- structive fraud because the temptation to actual fraud and the facility of concealing it are so great; and it imjjutes it to all alike, who come within its scope, however much or how- ever little open to suspicion of actual fraud.'*^ It is further to be observed that the principle which pro- hibits the trustee from becoming a purchaser extends to all sales of the trust property, whether made by the trustee himself under his powers as trustee or under an adverse pro- ceeding. As a general trustee of the property it is his duty to make it bring as much as possible at any sale that may take place; and, therefore, he cannot put himself in a situa- tion where it becomes his interest that the property should bring the least sum.-*'-* Agents may be quasi trustees, and so far be brought within ties between the parties to the Miss. 553; Beauvelt v. Acl^erman, action, or l)et\veen such parties and 20 N. J. Eq. 141; Campbell v. Mc- others. Fulton v. Whitney, 66 N. Lain, 51 Pa. St. 200; Dempster v. Y. 548. West. 69 111. 613; Higgins v. Cur- ■»« Blake v. R. R. Co. 56 N. Y. tis, 82 111. 28. 485; Cook v. Berlin Mill Co. 43 *? Gibson v. Herriott. 55 Ark. 85. Wis. 433; Crumley v. Webb, 44 Mo. -ts Cook v. Berlin Mill Co. 43 Wis. 444; Roberts v. Roberts, 65 N. C. 433. 27; Goodwin v. Goodwin, 48 Ind. ^o Martin v. Wyncoop, 12 Ind. 584; Sheldon v. Rice, 30 Mich. 266. 296; McGowan v. McGowan, 48 112 THE PARTIES. the priuciplc of the biuud rule applicable to trustees generally that they cannot become purchasers from their principals; but an agent generally comes within this rule only when his agency is so connected with the sale as to make it his duty to obtain the best terms for his principal, when he cannot be agent to sell and principal to buy. But after the trust is executed a trustee stands in the same position as a stranger. If, as such trustee, he has made a sale under his power, or in good faith has otherwise fully dis- charged his trust, so that he no longer occupies confidential relations to any one claiming the property, he is not by law forbidden to deal with what was the trust property the same as a stranger; and, acting in good faith, he may become the owner by purchase or otherwise.^^ § 85. Continued — Exceptions to and qualifications of the rule. Where, however, a trustee has an interest to protect by bidding at a sale of the trust property, and for this pur- pose makes a special application to the court for permission to bid, which upon the hearing of all the parties interested is granted, he may make a purchase which is valid and bind- ing upon all the parties interested, and under which he can acquire a perfect title.^^ So, also, where a trustee has purchased land at his own sale which is afterwards clearly and unequivocally aflSrmed by the beneficiary, if all parties have acted in good faith, and the beneficiary, being under no disability and with full knowl- edge of all the facts, has consented thereto, he may be con- cluded thereby, and the title in the hands of the trustee be unassailable for this cause,^^ and even though there has been no direct aflfirmance a beneficiary may still be precluded from relief by his own laches, neglect and delay. A sale of this kind is voidable at the application of the person holding the equity, provided such application is made in a reasonable time, without any showing of fraud or injury, but this right may be lost through laches. Courts of equity are slow to grant relief on stale claims and while there are no established 50 Bush V. Sherman, 80 111. 160; v. Lewis, 79 N. C. 426; Michoud v. Watson V. Sherman, 84 III. 263. Girod, 4 How. (U. S.) 503. 51 Gallatin v. Cunningham, 8 ■'- Boerum v. Schenck, 41 N. Y. Cow. (N. Y.) 361; Colgate v. Col- 182; Brantly v. Cheeley, 42 Ga. gate, 23 N. J. Eq. 372; Froneberger 209; Scott v. Mann, 33 Tex. 721. FIDUCIARIES. ii;j rules by which laches can always be determined, the matter beinj,' usually left to the sound discretion of the court/'^ yet if the beneficiary stands by and sees the property being devel- oped and augmented in value by lasting and permanent iiiiprovenients, or when from other reasons growing out of passive accpiiescence or delay it would be ineipiitable or unjust to permit Iiini to reclaim the property, the laches may furnish sufTicient grounds to preclude him from relief.-'"' A marked exception to the rule is also made in favor of guardians ad litem. Unlike other guardians and ordinary trustees, a guardian nd litem has no authority or control over the person or property of the infant for whom he acts, and no right to receive or administer the proceeds of the minor's proi)erty which may be sold in the suit or proceeding in which he acts. If he has fairly advised the court of the infant's rights, and done all for him that the facts of the case required him to do, he may purchase and hold in his own right the property of the infant, sold under an order of court in the cause in which he was appointed, provided such purchase was in good faith and for a full and valuable consideration pa' ' by him."'''^ 53 Sullivan v. R. R. Co. 94 U. S. 806; Castner v. Walrod, 83 111. 171; Spaulding v. Farwell, 70 Me. 17; Hanson v. Worthington, 12 Md. 418; Searcy v. Hunter, 81 Tex. 644. •'■'* Oil Co. V. Marbury, 91 U. S. 587; Flanders v. Flanders, 23 Ga. 249; Compare Cartwight v. Mc- Gowan, 121 111. 388. '>^' The text states the general rule but it would seem that in some states a guardian ad litem is, by statute, placed under the same disabilities as other trustees. See Boyer v. East, 161 N. Y. 580. CHAPTER III. THE MEMORANDUM. § 86. Contract and memorandum § 95. distinguished. 96. 87. Statutory requirements. 97. 88. The signature. 89. Signature of one party 98. only sufficient. 99. 90. Signature by agent. 100. 91. Signature by corporation. 101. 92. The contracting parties. 102. 93. The terms. 103. 94. The consideration. The purchase price. Description of the property. The interest to be con- veyed. Time. Receipts. Letters. Telegrams. Delivery. Continued — Undelivered deeds. § 86. Contract and memorandum distinguished. It is a familiar proposition that contracts for the sale of land, to insure legal enforcement, must be in writing. Strictly speak- ing, however, this is an error; for it must be observed that the contract itself, and the memorandum which is necessary to its validity under the statute of frauds, are in their nature different and distinct things.^ The contract, in a majority of cases, is fully made by parol before the memorandum is pre- pared, and may be perfect and complete, and under certain circumstances enforceable without having been reduced to writing. The contract itself, so far as respects its validity,^ is unaffected by the statute, and if executed the rights and 1 Lerned v. Wannemacher, 9 Al- len (Mass.), 416; Williams v. Bacon, 2 Gray (Mass.), 391; Ide v. Stanton, 15 Vt. 690; Gale v. Nixon, 6 Cow. (N. Y.) 445; and see Mont- gomery v. Edwards, 46 Vt. 151. 2 Mr. Causten Browne, in his val- uable treatise on the statute of frauds, has defined the operation of the statute as the mere pre- scription of a rule of evidence. In the last (4th) edition he recedes somewhat from his proposition, though still asserting his belief that this view is the true one. It would seem that this proposition should pass unchallenged as a rule that is fully sustained by reason and precedent, and that he truly states when he says: "The cases which are inconsistent with it rest upon uncertain ground." Whatever may be its effect in respect to its other clauses it is certain that the construction of and operation giv- en to the fourth section — the one relating to contracts and sales of lands — by the courts of the coun- try, is in full accord with Mr. Browne's first definition. 114 THE MEMORANDUM. 115 obligiitions of the parties remain the same as though a strict compliance had been made.'* The memorandum is only legal evidence of the conli'act. § 87. Statutory requirements. The question as to what con- stitutes a memorandum or note in writing, signed by the party to be charged, in comi)liance with the recjuirements of the statute, has been the sul)ject of much discussion and greatly varying decisions ever since its adoption. The natural repugnance of right-thinking men to permit the success of unfair dealings has furnished many instances where the language and meaning of the statute has been manifestly strained; and many cases have gone to the very verge, if not beyond the bounds, of a reasonable and fair construction, or rather facts have been strained to constitute a compliance with statutory requirements. The statutory directions concerning the form and contents of memoranda of sale are at best extremely meager, and questions relative to their suflticiency in this particular are largely left to the discretion of the courts. It is a peremi>tory mandate of the statute that they shall be in writing and signed by the person to be charged or his agent; but, aside from this, form is not important,^ nor need they be attended with any particular solemnities.'^ And while they must be in writing, the method employed is immaterial, for the written characters may consist of manuscript or print, or both com- bined;*^ and though made with a lead-pencil they will still be sufficient.'^ Nor is it necessary that the contract be evidenced by a single document,'^ for all the contemporaneous writings between the parties relating to the same subject-matter are admissible in evidence to show the transaction.^ It is essen- tial that all the terms of the contract be specifically and dis- 3 Ryan v. Tomlinson, 39 Cal. e But when a printed form is 639; Stone v. Dennison, 13 Pick, filled by writing, the written part (Mass.) 1. will control in construing the * Doty V. Wilder, 15 111. 407; Mc- contract. Connell v. Brillhart, 17 111. 354; 7 Merritt v. Clason, 12 John. (N. Tripp V. Bishop, 56 Pa. St. 424; Y.) 102. Jenkins v. Harrison, 66 Ala. 345. s McConnell v. Brillhart. 17 111. •• Bryne v. Marshall, 44 Ala. 355; 354; Whelan v. Sullivan, 102 Mass. Williams v. Morris, 95 U. S. 444; 204; Johnson v. Buck, 35 N. J. L. Hawkins v. Chace, 19 Pick. (Mass.) 338. 502. » Nichols v. Johnson, 10 Conn. 116 THE MEMORANDUM. tinctly set forth ;io that the subject-matter be stated or described with convenient certainty ;ii and that the parties be named or fully identified.^ ^ j^ other words, that all the essential terms and conditions of the contract shall be expressed with such reasonable certainty that the whole aj2;reement of the parties may be ascertained from the mem- orandum without any aid from parol testimony.^^ Where these particulars satisfactorily appear the manner in which they are stated makes but little difference; for the numerous cases which have arisen in every state in the Union involving the construction of the statute of frauds, and in which the principles which must control in such construction have been discussed, all unite in formulating the rule that no formal language is required,^* and that anything from which the intention may be gathered, as in other contracts, will be sufficient; and that any kind of writing, from a solemn deed to mere hasty notes or memoranda in books, letters or papers, provided they contain upon their face or by reference to other writings the essential matters just mentioned, will constitute a sufficient compliance with the statute and take the contract out of its operation.^ 5 192; Abeel v. Radcliff, 13 John. McFarson's Appeal, 11 Pa. St. 503; (N. Y.) 279; McGuire v. Stevens, Ewins v. Gordon, 49 N. H. 444. An 42 Miss. 724. instrument which contains all the 10 Davis V. Shields, 26 Wend. (N. essentials of a complete contract Y.) 341; Anderson v. Harold, 10 may be treated as such, although Ohio, 399; Phillips v. Adams, 70 in form it purports to be merely a Ala. 373; Gault v. Stormont, 51 receipt. Schweitzer v. Connor, 57 Mich. 636; Jenkins v. Harrison, 66 Wis. 177. Where a party desiring Ala. 345; Ide v. Stanton, 15 Vt. to purchase land applies to the 685. agent of the owner and makes an 11 Waterman v. Meigs, 4 Gush, offer definite as to price, terms, (Mass.) 497; O'Donnell v. Leaman, etc., and the agent submits the of- 43 Me. 158; Johnson v. Kellogg, 7 fer to his principal by letter, and Heisk. (Tenn.) 262; Smith v. Stan- afterwards writes to the purchaser ton, 15 Vt. 685. that the owner has accepted the 12 Webster v. Ela, 5 N. H. 540; offer, and the agent sends to the Eppich v. Clifford, 6 Col. 493. principal a deed to be executed by 13 Williams v. Robinson, 73 Me. him in accordance with the terms 186; Kopp V. Reiter, 146 111. 473. of such offer, which deed is exe- 14 McConnell v. Brillhart, 17 111. cuted by the principal and re- 354. turned to the agent, and the pur' 15 Wood V. Davis, 82 111. 311; Bar- chaser, upon receiving the letter ry V. Coombe, 1 Pet. (U. S.) 640; notifying him that his offer is ac- THE MEMORANDUM. 117 A substantial difTorcnce exists in some states between i\ut original phraseology of the statute and subsequent re-enact- ments. Thus, while the original provision required the mem- orandum to be signed by the person to be charged, subsequent enactments, in some instances, require it to be "subscribed by the i)arty by whom the sale is to be made."^^ Under such a statute the rulings are much more strict and arbitrary than under the statute in its original form. An express and distinct agreement in writing subscribed by the vendor or his agent is, in such a case, an absolute necessity, and a contract signed by the vendee only has no effect or validity ,1"^ notwithstanding he may be the person to be charged. § 88. The signature. The only important fonual requisite mentioned by the statute is that the evidence of the contract shall be signed by the i)erson to be charged therewith or his agent thereunto lawfully authorized. This, however, is imperative; and it is not enough that the note or memoran- dum of the agreement is in the handwriting of such party, so long as his name does not appear as a signature.^^ But just what is to be regarded as a signature is not always a matter of easy determination. In the earlier cases it has, in many instances, been held that the manner or place of signing is immaterial, provided the name is inserted with the intention of giving assent and for the purpose of completing or closing the contract.^ ^ Hence, a contract commencing, '*I, John cepted, goes to the agent to close stated, and an agreement to pur- up the transaction, and the agent chase the property upon these then refuses to consummate the terms subscribed by a purchaser, trade, these facts constitute a valid subsequently written across the contract, not within the statute, face of the paper while unrevoked for a breach of which the pur- in the hands of the broker, do not, chaser can maintain a suit for taken either separately or together, damages against the owner of the form a contract for the sale of the land. Wood v. Davis, 82 III. 311. land binding upon the owner. Hay- i« This is the language of the dock v. Stow, 40 N. Y. 363. New York statute. is Champlin v. Parrish, 11 Paige 17 Davis V. Shields, 26 Wend. (N. (N. Y.), 405; Henry v. Colby, 3 Y.) 341; Champlin v. Parrish, 11 Brews. (Pa.) 171; Anderson y. Paige (N. Y.), 406. Thus, a writ- Harold, 10 Ohio, 399; Wade v. New- ten agreement subscribed by the bern, 77 N. C. 460. owner of land, authorizing a real lo Clason v. Bailey, 14 Johns. (N. estate broker to sell it upon cer- Y.) 484; Hawkins v. Chace, 19 tain terms therein specifically Pick. (Mass.) 502; Anderson v. 118 THE MEMORANDUM. Smith," etc., but without subscription of any kind, was held to be sufRcientlj signed.^o Undoubtedly, when the name so wiitten is intended for a sij^jnature and to give authenticity to the instrument, courts, in furtherance of the ascertained inten- tion of the parties, will give effect to it as such;^! but the later and better rule would seem to be, that names in the body of an instrument are not equivalent to signature where there has been no subscription,22 for usually they must of necessity be so introduced to make the instrument intelli- gible;-'^ while in every document drawn with any degree of formality the testatum clause discloses an intention to place the signature at the end if to be appended at all.^"* A signature, ordinarily, is considered as consisting of a party's name, , or the term or appellation by which he is known and identified in society. It may, however, be a full name or simple initials,^^ or even a mark,"*' provided it Harold, 10 Ohio. 399; Fulshear v. Randon, 18 Tex. 275. 20 See Barry v. Coombe, 1 Pet. (U. S.) 640; Penniman v. Harts- horn, 13 Mass. 87; Hawkins v. Chace, 19 Pick. (Mass.) 502. "But it may be questioned," observes Mr. Browne, "whether this is justi- fied by the authorities. Where in- struments commencing in the first person have been taken to be well signed, without subsequent sub- scription, they generally appear to have been so attached, or accom- panied by acts of the party so clearly showing that he regarded the instrument as complete as to repel the presumption of an inten- tion to make a further execution." Browne Stat. Frauds, § 357. And it would seem that in cases of in- struments commencing in the third person, as "Mr. A. B. agrees," etc., such a presumption does not arise. Id. And see Adams v. Field, 21 Vt. 256; Allen v. Everitt, 12 B. Mon. (Ky.) 371; Armstrong v. Arm- strong, 29 Ala. 538. 21 Barry v. Coombe, 1 Pet. (U. S.) 640; McConnell v. Brillhart, 17 111. 354; Clason v. Bailey, 14 Johns. (N. Y.) 484; Penniman v. Harts- horn, 13 Mass. 87. This method seems to be good at common law; see 2 Kent's Com. 511; 1 Dart Vend. (6th ed.) 270. But in every in- stance, when the name is written near the beginning of the docu- ment, where, as a rule, names are inserted by way of description of the person who is to execute it, and rarely as signatures, it must, before it can be held to have been inserted for the purpose of vali- dating the instrument, be proved to have been written with that in- tent. Matter of Booth, 127 N. Y. 109. 22 Thomas v. Caldwell. 50 111. 138; Hawkins v. Chace, 19 Pick. (Mass.) 502; Wise v. Ray, 3 Iowa, 430; McMillen v. Terrell, 23 Ind. 163. 23 Matter of Booth, 127 N. Y. 109. 24 Thomas v. Caldwell, 50 111. 138. 2s Sanborn v. Flagler, 9 Allen THE MEMORANDUM. 119 serves tlic jjiirposc of idciitirKnlutii and at llic same time shows intent. Nor is it material in wluit manner the signature is ajjpended; for it makes no difl'ercuee, so fai' as the sifter's liability is concerned, whether he writes his name in script or roman h'tters, oi- wlicllicr such letters are made with a pen or with type, or wlu'thcr he has printed, cnfjraved. photo- <:;raph('d or litlioj;raphed it, so long as he adojjts the signature as his own.-^ Another i)oint in this connection, which does not seem to have arisen in this country, or at least has not been brought to the attention of the writer, consists in the character of the signature; that is, the style which the signer assumes. As previously remarked, a man's signature is generally consid- ered to be his name; yet he may sign by a mark, and formerly em])loyed only a device by way of seal, which was considered a sutticient signing. Thus, if a letter is signed "your father," or "your brother" without other words of identification, is this a signing within the meaning of the law? The English cases would imply that it is not, and that a paper so attested will not constitute a binding agreement on the part of the person so attesting. It is held that it is not enough that the party be identified, and that there may be in the instrument a very sufficient description to answer the purpose of identi- fication without a signing^ that is, without tlie party having either i»ut his name to it, or done some other act intended by him to be equivalent to the actual signature of the name;^^ yat it is difficult to ])erceive why such a subscrii)tion, evidently intended to identity the person of the writer and authenticate the paper in exactly the same manner as the written name, does not satisfy the requirement of the statute when it creates no ambiguity. A misplaced signature may usually be explained by parol testimony, as where a party by mistake signs in the place designated for witnesses. It would seem from the early English cases that in matters of this kind little or no discre- tion was pennitted in construction; and Lord Eldon is (Mass.), 474; Palmer v. Stevens, 1 -7 Weston v. Meyers, 33 111. Denlo (N. Y.), 471; State v. Bell, 424. 16 N. C. 313. -"^ See Selby v. Selby, 3 Meriv. •-« Jackson v. Van Dusen, 5 Johns. (Eng. Ch.) 2. (N. Y.) 144. 120 THE MEMORANDUM. reported as s.iying, "where a party or principal or person to be bound si^ns as, what he cannot be, a witness, he cannot be understood to sign otherwise than as principal."^^ The cor- rectness of this remark has been questioned in later English decisions, while the general tendency of the American cases has been to permit the introduction of parol evidence to show intent. Undoubtedly it is important that the signature, and also the seal, of an instrument should be in the usual place; yet the mere place of either the signature or the sealing is not conclusive as to the intent with which they are made.^o § 89. Signature of one party only sufficient. Mutuality is an indispensable ingredient of every contract; and hence, unless both parties are so bound by the agreement that each may enforce it against the other, it can have no operative effect either at law or in equity. But, w^hile this principle is indisputable, it by no means follows that a contract bearing the signature of one party only is incapable of enforcement for this reason. The statute itself only requires that the memo- randum shall be "signed by the party to be charged there- with ;" and this signature is prescribed rather as a necessary evidence of the contract than as an essential or constituent part of the engagement itself. Even if we concede that mutuality must exist at the time the agreement is entered into, the lack of one signature would not indicate anything to the contrary, but only shows that both parties have not been equally vigilant in obtaining the legal w^ritten evidence to prove it. But it is now well settled by authority that mutuality of remedy existing at the time action is brought is all that is required to sustain the contract or confer jurisdic- tion;^^ and the signature of one party only will be sufficient, pro\ided it be the one against whom enforcement is sought.^^ 29 Coles V. Trecothick, 9 Ves. Where there is a bill for specific (Eng.) 251. performance in a court of equity 30 Richardson v. Boynton, 12 Al- the exhibition of the bill makes the len (Mass.), 138; Warren v. Chap- complainant chargeable as on a man, 115 Mass. 586; and see Reed memorandum of the contract V. Drake, 7 Wend. (N. Y.) 345. signed by him, and this renders •'1 Dresel v. Jordan, 104 Mass. the remedy mutual between the 412; Thayer v. Luce, 22 Ohio St. parties at the time when the action 62; Gartrell v. Stafford, 12 Neb. is commenced. Ives v. Hazard, 4 552; Estes v. Furlong, 59 111. 302; R. I. 14. Louber v. Connit, 36 Wis. 176. ^2 Thayer v. Luce, 22 Ohio St. THE MEMORANDUM. 121 The only object of the statute is to compel the production of written evidence of tlic Icniis of the contract against the party sought to be charged 1 hereon, and its only design is to I)revent perjury and suhornalion of perjury \)\ refusing the aid of the law in the enforcement of any rights claimed under it against hiiu without such written evidence. Therefore, the end and objeet of the statute is attained by written proof of the obligation of the defendant in an action to enforce; he is tlie party to be charged with a liability dependent on and resulting from the evidence, and he is intended to be protected against the dangers of false oral testimony .^^ Specific i)erformance of a unilateral contract may always be decreed, if it is just, fair and reasonable, and the party sought to be charged has so bound himself as to meet the require- ments of the statute, and the other party has elected to treat the contract as binding and to enforce it,^^ and in such event an offer contained in a bill brought for specific performance is sufTicient to charge the plaintiff and to create a strict mutuality.3^ When it is considered that it is not the agreement which is required to be in writing, and that the agreement in fact is made before any writing is had, and that the agreement and the memorandum subsequently made to evidence it are not the same, the reason of the law becomes apparent. § 90. Signature by agent. By the first and tliird-^^ sections of the statute of frauds, as originally adopted, the writing is required to be signed by the parties to the agreement, or their agents authorized by writing; but the memoranda required by the fourth and seventeenth sections omit this latter requisite, and the note is sufficient if signed by an agent duly authorized. In the re-enactment of the statute by the states 62; Gartrell v. Stafford, 12 Neb. sa Justice v. Lang, 42 N. Y. 493; 552; Louber V. Connit, 36 Wis. 176; Ballou v. Sherwood, 32 Neb. 666; Estes V. Furlong, 59 111. 302; Penni- Ide v. Leiser, 10 Mont. 5; Miller v. man v. Hartshorn, 13 Mass. 87; Cameron, 45 N. J. Eq. 95. Ivory v. Murphy, 36 Mo. 534; Ide 34 Ross v. Parks, 93 Ala. 153; v. Stanton, 15 Vt. 687; McFarson's Peevey v. Haughton, 72 Miss. 918. Appeal, 11 Pa. St. 503; Newby v. •''r, ives v. Hazard, 4 R. I. 14; Rogers, 40 Ind. 9; Ives v. Hazard, Peevey v. Haughton, 72 Miss. 918. 4 R. I. 14; De Cordova v. Smith, 30 Relating to leases, etc. 9 Tex. 129. 12-3 THE MEMORANDUM. the laugiiage of the original has in the main been closely fol- lowed, and the authorization of the agent is not ordinarily required to be in writing in agreements for the sale of lands.^''^ A distinction seems to have been made in this particular between agreements by which an interest is intended to be actually passed and such as simply contemplate a convey- ance of such interest by other and future documents. Hence, while the agreement must be in writing, yet if executed by a I)ersou under and in pursuance of a delegation of authority, such authority need not be so evidenced; and if the agent has, in fact, been authorized to sign in behalf of his principal, and does so sign, the j)rincipal will be bound by the act.^^ Nor does it seem necessary, where the memorandum is signed by an agent, that the name of the principal should appear. It is well settled that an undisclosed principal may sue or be sued upon a contract made in the name of his agent,^^ and it has been held that the provisions of the statute are complied with if the names of competent contracting par- ties appear in the writing. In such, event the weight of author- ity sustains the proposition that the fact of agency may be shown so as to give the benefit of the contract on the one hand and charge with liability on the other, the unnamed principal.**' § 91. Signature by corporation. It is a well-established rule, governing the admissibility of extrinsic evidence to show who are the parties to be bound by a written instrument, that a party will not be permitted to show by oral testimony that his written agreement, understandingly entered into, was not in fact to be binding on him. So it has been generally held, 37 In a few of the states the rule Mon, (Ky.) 184; Curtis v. Blair, is otherwise, and the agent's au- 26 Miss. 309; Worrall v. Munn, 5 thority must be in writing. See N. Y. 229. Kozel v. Dearlove, 144 111. 23; Ala- 39 Thayer v. Luce, 22 Ohio St. 62; bama etc. R. R. Co. v. South etc. Dykers v. Townsend, 24 N. Y. 57; R. R. Co. 84 Ala. 570; Toan v. Hunter v. Giddings, 97 Mass. 41; Pline, 60 Mich. 385. Tainter v. Lombard, 53 Me. 371. 3s Shaw V. Nudd, 8 Pick. (Mass.) 4o Kingsley v. Siebrecht. 92 Me. 9; Champlin v. Parrish, 11 Paige 23; Eastern R. R. Co. v. Benedict, (N. Y.), 405; Blood v. Hardy, 15 5 Gray (Mass.), 561; Powell v. Me. 61; Gowen v. KIous, 101 Mass. Wade, 109 Ala. 95; Waddill v. Se- 454; Malone v. McCullough, 15 Col. bree, 88 Va. 1012; Conway v. Swee- 460; Jackson v. Murray, 5 T. B. ney, 24 W. Va. 643. THE MEMORANDUM. 123 where individuals have assumed obligations over their own signatures, that, notwithstanding the addition of descriptive words denoting sonic official trust or corporate dignity, ])arol evidence is inadmissible to show that it was the intention to make the instrument the obligation of the corporation which they represented, and not that of the parties executing it.^^ The question has generally arisen in the case of promissory notes and obligations of like character, but the principle is not confined in its application. Where a corj)oration is one of the contracting parties, such corporation, and not its managers, directors or trustees, should assume the obligations of the con- tract; and the name of the corporation should appear as one of the parties, both in the body of the contract and in the signature's A proper and safe mode of executing a corporate contract is for the oflScers or agents who may act in the prem- ises to subscnbe the name of the corporation, followed by their own oflQcial signatures, with apt words to show the pro- curation.'^ § 92, The contracting parties. Inasmuch as no contract can be made without parties competent to contract, so it naturally follows that no contract can be enforced unless the parties are named or designated; and, as parol evidence is inadinissible to supply the terms or cure the defects of a writ- ten agreement, the parties form the first inquiry in consider- ing a memorandum of sale. It is of vital importance, there- fore, that the memorandum should show who are the parties, either by direct designation or by reference sufficient to fully identify them;'' for, even though properly signed by the party to be charged, if it nowhere appears who the opposite party is,''^ or if though a party be named he is not with certainty 41 Nixon V. Downey, 49 Iowa, ceived to vary it. Hypes v. GrifRn, 166; Baldwin v. Leonard, 39 Vt. 89 HI. 134. 266. ■»■' Gillett v. Bank, 7 111. App. 499 42 Thus, where a note was made 44 Nichols v. Johnson, 10 Conn by parties under the style of "We, 192; Webster v. Ela, 5 N. H. 540 the trustees of the Methodist Epis- Brown v. Whipple, 58 N. H. 229 copal Church in Lebanon," etc.. and Farwell v. Lowther, 18 III. 252 signed and sealed by the several Grafton v. Cummings, 99 U. S. 100 persons composing such trustees. Gowen v. Klous, 101 Mass. 449 Jield, that the note was individual, Thornton v. Kelly, 11 R. I. 498. and parol proof could not be re- 45 a memorandum which does 124 THE MEMORANDUM. identilk'd, the wiitiug will be msuUicient to support an action brouijlit upon it.^^ In like manner, if both parties are named, yet by such ambiguous insertion that it is impossible to ascer- tain which of the parties is vendor and which vendee, the instrument will be without effeet.^'^ § 93. The terms. It is an invariable rule that every agree- ment which the law requires to be in writing must be certain in itself, or capable of being made so by reference to other writings."** Form, as we have seen, is unimportant, provided the purport of the undertaking is unmistakably expressed; and any note or memorandum which furnishes evidence of a complete and practicable agreement is sufficient to meet the requirements of the statute.'*'' Parol evidence may be received to explain latent ambiguities or to apply the instrument to the subject-matter i'^*' but the essential terms can only be ascer- tained from the writing itself, and cannot be supplied by parol.^^ Were the rule otherwise it would at once introduce all the mischiefs which the statute was designed to prevent. It is necessary, therefore, that all the terms be definitely set- tled and the contract concluded; for if any material part still rests in treaty, or remains to be settled by further negotiation, not name or describe the vendor is Ann. 54; Webster v. Ela, 5 N. H. fatally defective. Mentz v. New- 540. witter, 122 N. Y. 491. 49 Williams v. Morris, 95 U. S. 46 Osborn v. Phelps, 19 Conn. 63; 444; Hurley v. Brown, 98 Mass. Sherburne v. Shaw, 1 N. H. 157. 545. This question is very thoroughly so Barry v. Coombe, 1 Pet. (U. and learnedly reviewed in Grafton S.) 640; Clark v. Burnham, 2 Story V. Cummings, 99 U. S. 100. (C. Ct.), 1; Tice v. Freeman, 30 4T Bailey v. Ogden, 3 Johns. (N. Minn. 389; Baldwin v. Shannon, 43 Y.) 399. But in case of sales of N. J. L. 596; Lovejoy v. Lovett, chattels the late tendency of courts 124 Mass. 270. is to permit the admission of parol si Dung v. Parker, 52 N. Y. 494; evidence as an aid to interpreta- Baltzen v. Nicolay, 53 N. Y. 467; tion. Brown v. Whipple, 58 N. H. 229; 48 Abeel v. RadclifE, 13 Johns. Ridgway v. Ingram, 50 Ind. 145; (N. Y.) 279; Nichols v. Johnson, O'Donnell v. Leeman, 43 Me. 160; 10 Conn. 192; Boardman v. Spoon- Morton v. Dean, 13 Met. (Mass.) er, 13 Allen (Mass.), 353; James v. 385; Elliot v. Barrett, 144 Mass. Muir, 33 Mich. 223; Tice v. Free- 256; Kopp v. Reiter, 146 HI. 437. man, 30 Minn. 389; Norris v. Blair, An action was brought upon the 39 Ind. 90; Buck v. Pickwell, 27 following, which was signed by Vt. 167; Massey v. Hackett, 12 La. both parties: "This certifies that THE MEMORANDUM. ir. or if auy of llie teruis cauuot be ascertaiued uuder the lule first stated, the contract, for all practical purposes, is a nullity and in(ai)able of specific enforcement.^^ If the instrument is couched in language so vague as to be incapable of being understood the siuue result will follow, for a legal promise must mean something distinct and definite — something capa- ble of being understood and of being carried into eilect. § 94. The consideration. It is as true concerning agree- ments in respect to sales of land as of other commercial trans- actions, that no binding contract can exist unless based upon a sulficient consideration. Yet, notwithstanding the consid- eration forms an essential and material part of the contract, it is not necessary, as a rule, that it should be expressed in the memorandum ; for it is a general principle, applicable to all instruments or agreements, that whatever may be fairly implied from the terms or language emploj-ed is, in judgment of law, contained in them. Hence, if the agreement be so stated that a consideration may be implied or inferred, it is as I have sold" to the plaintiff "about five acres of land, more or less, be- ing the same which I bought of him, in consideration of the same sum which I paid him for the same, with interest from the time I purchased the same till I paid for it (supposed about six months), with the expense of the deed; also the taxes for one year." It was held that this was a valid con- tract for sale. Atwood v. Cobb, 16 Pick. (Mass.) 227. A writing ran thus: "Augest the 20 1850 i do herby agree tht Jonathan Phillips shall have the land wieh he is posetion of now for the labor he don for me overage, and this shall be his wrecept for all my writes and claim against the land. (Signed) David Phillips." Held, an agreement to convey sufficient for equity to execute, and not within the statute. Phillips v. Swank, 120 Pa. St. 76. ■'- McGuire v. Stevens, 42 Miss. 724; Telegraph Co. v. Telegraph Co. 39 N. J. Eq. 160. If parties ne- gotiating for the sale of a tract of land agree in writing upon a speci- fied price per acre, but that the vendor shall take in payment a house and lot of the vendee, at cash value, to be pronounced by two persons (not naming them), or the money, by certain instal- ments, in case the vendee shall prefer paying the money, and after- ward (the vendee not having elected to pay money for the land ) the parties, by indorsement on the writing, appoint two persons to value the house and lot. who at- tempt to do so but differ in opin- ion, whereupon they verbally agree to make another appointment at some other time not specified, the contract is too incomplete to be enforced in a court of equity. Ba- ker v. Glass, 6 Munf. (Va.) 212. 12G THE MEMORANDUM. effectual as if expressly appearing on its face.^^ Indeed, a contract to convey land upon payment of the stipulated price is in itself evidence of a mutual agreement of the vendor to sell and the vendee to purchase; and the agreement of one party forms a suflScient consideration for that of the other.'^^ Such consideration is ample for all purposes, i)rovided the promises are concurrent and obligatory upon both parties at the same time.^^ It does not seem, however, that it is essen- tial that both promises should be obligatory when the contract is entered into in order to render the mutual ijromise a sufiQ- cient consideration and it is no objection that one of the par- ties had no power to enforce the contract at the time it was made. It is sufficient if the unbound party subsequently ren- ders himself chargeable by a written and signed offer of per- formance.^*' Nor is it necessary that the consideration for the contract should have reference to money or even to i>ecuuiary values; it may consist of anything deemed meritorious or valuable by the parties.^^ Thus, marriage is a sufficient consideration to support a conveyance of land,'^^ and may properly form the basis of an agreement concerning the same. So, also, the adjustment of a controversy honestly inaugurated, in respect to property interests, is a sufficient consideration to support an agreement concerning the subject-matter of such contro- versy.^^ Considerations which are given for compromising 53 Adkins V. Watson, 12 Tex. 199; ss Lester v. Jewett, 12 Barb. (N. Hargraves v. Cook, 15 Ga. 321; Y.) 502. Rogers v. Kneeland, 10 Wend. (N. so As when the unbound party Y.) 252; Douglass v. Rowland, 24 brings an action for performance Wend. (N. Y.) 35; Goward v. Wa- against the party originally, ters, 98 Mass. 596; Sage v. Wil- charged. See Ives v. Hazard, 4 R. cox, 6 Conn. 81; Reed v. Evans, I. 14; Evans v. Williamson, 79 N. 17 Ohio, 128. This has been so C. 86; Vassault v. Edwards, 43 held even where the statute pro- Cal. 458; Ivory v. Murphy, 36 Mo. vides for some "note or memo- 534; Roberts v. Griswold, 35 Vt. randum, expressing the considera- 496. tion." See Eno v. Woodworth, 4 57 Charleston etc. R. R. Co. v. N. Y. 249. Leech, 33 S. C. 175. T,i Ewins V. Gordon, 49 N. H. 444 Vassault v. Edwards, 43 Cal. 458 Murphy v. Rooney, 45 Cal. 78 58 Otis v. Spencer, 102 111. 622. 59 As where a testator devised the larger portion of his estate to Pool v. Docker, 92 111. 501. a part of his children, leaving the THE MEMORANDUM. 127 doubtful i-ijrhts and settling boundaries are held to be good;«o and <;eii('ni]ly a pn-judice to the party to whom a promise is made, as well as a beiielit to the party making it, is a sutticient consideration to render the promise obligatory ."^ It is almost the universal praetic-e, however, in all formally drawn agreements, to insert a nominal consideration, usually the sum of one dollar. As a matter of fact, this sum is rarely ever paid, but the acknowledgment of its receipt amounts to an estoppel; and a valuable consideration, however small or nominal, if given or stipulated for in good faith, is, in the absence of fraud, sufficient to sustain a promise and take the case out of the ojteration of the statute.^^ § 95. The purchase price. It must be understood, how- ever, that the remarks of the foregoing section have reference only to the consideration or motive of the contract and not to the purchase price to be paid for the land; for a price, either fixed by the parties,*53 or capable of being ascertained by com- putation from some specific facts,^'* or by the appraisal of some person referred to in the memorandum,^-''' is an essential element of every contract of sale.^^^ A memorandum which, while professing to give the right to purchase, yet names no price or teiins, is too imperfect to be treated as a valid con- others but a small portion, and the c4 Atwood v. Cobb, 16 Pick, latter filed a bill in chancery to set (Mass.) 227. An agreement to sell aside the will in order to com- land for "about" $700, and a sum pel an equal distribution of the sufficient to reimburse the vendor property, an agreement between all for expenses incurred in a suit the heirs, pending the litigation, then pending concerning said land, for an equal distribution of the held sufficiently definite as to con- estate, and in adjustment of the sideration to be specifically en- controversy in respect to the will, forced. Wilbourn v. Bishop, 62 was held to be based upon a suffl- Miss. 341. cient consideration. Pool v. Dock- or. Brown v. Bellows, 4 Pick, er, 92 111. 501. (Mass.) 178. «o Zane v. Zane, 6 Munf. (Va.) go Kleinpeter v. Hannigan, 21 La. 406; Moore v. Fitzwater, 2 Rand. Ann. 196; Eppich v. Clifford, 6 (Va.) 442. Col. 493; Spangler v. Danforth, 65 «i Overstreet v. Phillips, 1 Litt. 111. 152; Grace v. Dennison, 114 (Ky.) 120; Charleston etc. R. R. Mass. 16; Huff v. Shepard, 58 Mo. Co. v. Leech, 33 S. C. 175. 242; Phelps v. Stillings, 60 N. H. 02 Lawrence v. McCalmont, 2 505; Grafton v. Cummings, 99 U. How. (U. S.) 426. S. 100. Indeed, this necessarily «3 Sales V. Hickman, 20 Pa. St. follows from the rule providing 180. that every agreement which is re- 128 THE MEMORANDUM. tract ;^' and iinloss some part of the purchase money has been paid and the purchaser let into possession,^^ i\^q contract would practically be void for all purposes.^'^ If it appears from the agreement that the price has already been jiaid, the reason of the rule does not apply, and no price need be stated.'O An exact statement of price in numerals expressive of the denominations of money is not necessary, but some unequiv- ocal and positive method of ascertaining the price must be agreed upon where the sale purports to be made for a pecuniary consideration^^ It is not necessary, however, that the price should be paid in money; it may consist of anything deemed by the parties to be of valueJ^ § 96. Description of the property. It is a familiar rule in this branch of the law that a contract which equity will specifically enforce must be certain in its tenns, and the cer- tainty required has reference both to the description of the quired to be in writing by the statute of frauds must be certain in itself, or capable of being made so by reference to something else whereby the terms can be ascer- tained. Abeel v. Radcliff, 13 Johns. (N. Y.) 297. 67 Sales V. Hickman, 20 Pa. St. 180; Williams v. Morris, 95 U. S. 444; Parkhurst v. Van Courtland, 1 Johns. Ch. (N. Y.) 273; Phelps v. Stillings, 60 N. H. 505; Phillips v. Adams, 70 Ala. 373. 6s Temple v. Johnson, 71 111. 13. Such a contract would be void, even though the purchaser had been placed in possession, where no part of the purchase money had been paid. Phillips v. Adams, 70 Ala. 373. 69 Carr v. Building Co. 19 N. J. Eq. 424. But see Ellis v. Bray, 79 Mo. 227. A writing in form: "Yates Center, Ks., June 13, 1883. Re- ceived of J. B. Fry $50, for part payment of purchase money for Sec. 1, T. 25, R. 14. Woodson coun- ty, Ks. (Signed) T. M. Eads, agent for Alex. Piatt," held too in- definite for a memorandum under the statute of frauds. Fry v. Piatt, 32 Kan. 62. '0 Holman v. Bank of Norfolk, 12 Ala. 369. 71 Thus, a contract for the sale of a village lot at whatever price the first lot sold in the vicinity should realize was held not to be void for uncertainty, an adjacent lot having been sold for $125 be- fore the action was commenced on said contract. Cunningham v. Brown, 44 Wis. 72. The defendant agreed that the plaintiff should "have the refusal of a farm bought by me for the sum of $1,940, upon his complying with certain condi- tions, which conditions he has complied with." This was held to be a valid contract, and that it ex- pressed the price for the land. Bird V. Richardson, 8 Pick. (Mass.) 252. 72 Charleston etc. R. R. Co. v. Leech, 33 S. C. 175. THE MEMORANDUM. 129 property aud the estate to be conveyed. Uncertainty as to either, not cai)able of bein^^ removed by extrinsic evidence, will invalidate the contract.''' IJiit while an une(iuivocal description, ^iviii;; location, area and l>ouii(laries, is a literal and jtcrfccl observance of the rule, a less jiarticular stalenient will usually sullice, provided it contains within itself the proper means of identification,'^* as by reference to extrinsic facts or other instruments'^'' by means of which the land can be ascertained with sudicient certainty.'^'' ^^'here the descrip- tion does not identify the land, nor state directly where it is, nor indicate any extrinsic fact from which its locality can be ascertained and fixed, specific performance cannot be decreed, nor can parol evidence be received to fix the locality .'^'^ § 97. The interest to be conveyed. The memorandum required by the statute of frauds to maintain an action on a contract for the sale of any interest in land must clearly show, either by itself or taken in connection with some other writing contemporaneous with or referred to in the memorandum, what that interest is.'^^ The estate, as well as the land, must be shown, unless by necessary legal implication the interest is the entire right of property in the bargained premises, A memorandum which does not show whether it relates to an estate in fee, for life or for j'ears has, even under recent decisions, been held insufficient ;'^''' but as the statute in most of the states now provides that in the sale of land, where no "Whelan v. Sullivan, 102 Mass. Craig, 21 Ark. 533; Taylor v. Ash- 204; Peters v. Phillips, 19 Tex. 74; ley, 15 Tex. 50; Ridgway v. In- Tice V. Freeman, 30 Minn. 389; gram, 50 Ind. 145; Jordan v. Fay, Ridgway v. Ingram, 50 Ind, 145; 40 Me. 130; Ferris v. Irving, 28 Cortelyon's Appeal, 102 Pa. St. 576, Cal. 645. 74 White V, Hermann, 51 111. 243; 77 Ryan v, Davis, 5 Mont. 505; Haven v. Richardson, 5 N. H. 113; Bishop v. Fletcher, 48 Mich. 555; Brown v. Bellows, 4 Pick. (Mass.) Tice v. Freeman, 30 Minn, 389; 179; Kay V, Curd, 6 B, Mon. (Ky.) Meyer v, Mitchell, 75 Ala. 475; 100, Jones v. Carver, 59 Tex. 293; Sher- 75 Washburn v, Fletcher, 42 Wis, er v. Trowbridge, 135 Mass. 500. 152; Tallman v. Franklin. 14 N. Y. 7s parwell v. Mather, 10 Allen 589; Norris v. Blair, 39 Ind. 70. (Mass.), 322, 70 Ryers v. Wheeler, 22 Wend. 7a Farwell v. Mather, 10 Allen (N. Y.) 148; Worthington v. Hy- (Mass.), 322; and see Abeel v. Rad- lyer, 4 Mass. 196; Warrington v. cliff, 13 Johns. (N. Y.) 297; Mor- Ayres, 40 N. Y, 357; McGuire v, ton v. Dean, 13 Mete. (Mass.) 385. Stevens, 42 Miss, 724; Johnson v. 9 130 THE MEMORANDUM. specific estate is mentioned, the interest conveyed shall be taken to be the fee, this branch of the question has lost mucb of its importance. It is customary in stipulating for the con- veyance that the land shall be conveyed by good and sufficient deed in fee-simple; but the neglect to add this description of the character of the estate would not probably affect the con- tract where the statutory provision above referred to is in force, and the intention of the parties was that the purchaser should take the fee. § 98. Time. Although it is a fundamental principle that time is a primary and indispensable element in all contracts, and at law is a controlling incident, yet, in contemplation of equity, in contracts relating to land, it is not considered as necessarily of their essence.^o It may be made essential by an express stipulation of the parties,^i or it may be deemed so from the nature of the property or the purpose for which it was purchased,s2 or from other circumstances surrounding the case f^ but, as a general proposition, where there is noth- ing in the contract attaching any particular importance to the -time of performance, time will not usually be considered material.^* Where parties intend to make time of the essence of the contract, to have that effect in equity the stipulation must be clearly and unequivocally expressed. The intention must be unmistakably apparent from the language employed; and when such language leaves no room for doubt, and the con- tract is one which the parties are competent to make, it will take effect according to its terms, and be binding in equity as well as at law.^^ To accomplish this, fonn is not material provided substance is found, and usually any language will soMilnor v. Willard, 34 111. 38; Furlong v. Barnes, 8 R. I. 226; King V. Ruckman, 20 N. J. Eq. 316; Hutcheson v. McNutt, 1 Ohio, 18. Prince v. GrifSn, 27 Iowa, 514. 84 Murphy v. Lockwood, 21 111. 81 Mason v. Payne, 47 Mo. 517; 611; Glover v. Fisher, 11 111. 666; Kirby v. Harrison, 2 Ohio St. 326; Steele v. Branch, 40 Cal. 3. Knott V. Stephens, 5 Oreg. 235; ss Scott v. Fields, 7 Ohio, 424; Reynolds v. R. R. Co. 11 Neb. 186; Phelps v. R. R. Co. 63 III. 468; Barnard v. Lee, 97 Mass. 92; Kim- Prince v. Griffin, 27 Iowa, 514; Grey ball v. Tooke, 70 111. 553. v. Tubbs, 43 Cal. 359; Morgan v. 82 Jones V. Robbins, 29 Me. 351. Bergen, 3 Neb. 209; Snider v. Lehn- 83 Hoyt V. Tuxbury, 70 111. 331 ; herr, 5 Oreg. 385. Grigg V. Landis, 21 N. J. Eq. 494; THE MEMORANDUM. 131 be sufficient wliich clcaily jnov ides that Ilic contratl shall be void in case of the non-fulfillment of the i)reHcribed condi- tions.^" Merely naniinj; the time of i)erfonnance, even witli the stipulation last stated, will not impart essential character where it clearly appears that such stipulation was simply formal,*'^ and such contract will be held to mean only that completion shall be nuule within a reasonable time and sub- stantially according to the agreement, regard being had to all the circumstances;^'^ but if the language employed expressly states that time is of the essence,'^'' or if it otherwise ajtpear that both parties intended to fix a time for completing the contract and this was to be literally complied with, neither party, in the absence of other circumstances, can obtain relief from the consequences of default. As constituting one of the terms the time of perfonnance should be stated; and as the rule is imperative that a con- tract cannot rest partly in writing and partly in parol, it necessarily follows that parol evidence is not admissible to fix the time when a written contract is to be performed. Hence, there are numerous cases which hold that specific enforce- ment cannot be decreed when the contract fixes no time for performance;'*" as where the memorandum states the purchase price but omits the time of payment.^^ It might, it would seem, be urged that, reasoning by analogy, payment should be made within a reasonable time; yet this, it is contended, would only be to introduce the forbidden element of uncer- tainty; for no rule has ever been devised to fix the limits of a reasonable time, nor is there any known or recognized cus- tom to fix what is thus left undetermined. It is believed, however, that this is a rather extreme view; for ordinarily, where no time is expressed in a contract for the piMiormance of its tenns, the law will imply that it shall be within a rea- sonable tinie,^- the circumstances of each particular case fur- so Kimball v. Tooke, 70 111. 553. 636; Gates v. Gamble. 53 Mich, 87 Barnard v. Lee, 97 Mass. 92; 346; Wright v. Weeks. 25 N. Y. Jones V. Robbins. 29 Me. 351. 153; Johnson v. Kellogg, 7 Heisk. 88 Jones V. Robbins, 29 Me. 351; (Tenn.) 262. Waterman v. Dutton, 6 Wis. 265. oi Gault v. Stormont. 51 Mich. sn Missouri, etc. R. R. Co. v. 636. Brickley, 21 Kan. 275; Stow v. i'- Driver v. Ford, 90 111. 595; Russell. 36 111. 18. Hamilton v. Scully. 118 111. 192; ,»o(jault V. Stormont, 51 Mich. Waterman v. Dutton, 6 Wis. 265. 132 THE MEMORANDUM. nisliiug the basis for deteraiining what is a reasonable time.''^ This doctrine finds its most numerous illustrations in contracts connected with cliattels, but it seems it is equally applicable to contracts for the sale and purchase of land.-'^ § 99. Receipts. As previously stated, it is immaterial what form the writing which constitutes the agreement may assume, provided it contains the essential elements of a valid contract so as to satisfy the requirements of the statute of frauds. Hence, a receipt for purchase money, specifying the terms of the agreement and signed by the vendor, will create a binding contract which may be enforced in equity against him.''5 And generally, receipts, letters and other matters in writing, though neither are of themselves sufficient, may, when taken together, constitute such a memorandum as will satisfy the statute.®^ § 100. letters. No more common method exists for the negotiation of sales of real estate tlian through the media of epistolary correspondence, and numerous examples are afTorded in the reported cases of binding and valid contracts effected in this manner. Where there is a distinct offer of sale, specifying terms and property, and the offer is at once closed by an unqualified acceptance, the contract is complete and capable of legal enforcement.'^'^ Such a contract, so made, 93 Within a month, there being 12, 1880. Received of A. B. twenty no special circumstances. Lowe v. dollars as forfeit to guaranty the Harwood, 139 Mass. 133. payment of the balance of the first 94 See Lowe v. Harwood, 139 instalment of interest within 30 Mass. 133. days from date with interest at 10 95 Raubitschek v. Blank, 80 N. Y. per cent, per annum on E. V2 of S. 478. The following memorandum W. %, S. 29, T. 9, R. 9, E., at $9 in writing, viz.: "Denver, Dec. 17, per acre, 10 years' credit. C. D.," — 1880. Received of E. the sum of held sufficient under the statute of twenty-five dollars, part payment frauds. McWilliams v. Lawless, 15 for lots 1, 2, 3, in block 28, C. & E. Neb. 131. addition to Denver. Consideration, »« Peay v. Seigler, 48 S. C. 496; $2,000. (Signed) M. C, by G. & Lee v. Butler, 167 Mass. 426. Co., Agents," — is sufficient to take «" Matteson v. Scofield, 27 Wis. the contract out of the statute of 671; Knight v. Cooley, 34 Iowa, frauds, and the contract imported 218; Thames L. & T. Co. v. Be- by said memorandum will be spe- ville, 100 Ind. 309; Otis v. Payne, cifically enforced. Eppich v. Clif- 86 Tenn. 663; Wills v. Ross. 77 Ind. ford, 6 Colo. 493. A memorandum 1; Eads v. Carondelet, 42 Mo. 113. inform: "$20. Lincoln, Neb., May THE MEMORANDUM. 133 embodies all the essential features necessary to ^ive validity, and in its operation would diller from none made by personal coniuiuuication or couched in more formal lanj^'uage/'** It is essential, however, that all the terms shall be capable of ascertainment from the correspondence to enable a court to enforce specific performance as a whole. Hence, if there are essential elements alTectinj,^ the rij^hts of the parties which are not implied by or to be inferred from what they have agreed uj)on, but left open for future consideration and adjustment, the contract as a whole lacks completeness, and no action can arise upon it.^** Again, the intention of a pres- ent contract should appear; for while men may and do con- tract by letter, and such contracts are always upheld and enforced, it is, nevertheless, a method that courts are ever inclined to scrutinize closely and construe liberally. In many instances such letters are intended merely as preliminary negotiation. Proposals are made and views exchanged; prices are discussed, and suggestions offered relative to the property under consideration. From all this a strict construction might possibly deduce a contract within the meaning of the statute of frauds, and yet such might not have been the actual intent of the parties. The question, therefore, in such cases always is: Did the parties mean to contract by their corre- spondence, or were they only settling the terms of an agree- ment into which they formally proposed to enter after all its particulars had been adjusted, and by which alone they intended to be bound ?i If upon this view it apjK'ars that the letters w^ere merely the basis for a contract, or if it is reason- ably doubtful whether what passed was only treaty, no action 08 Hickey v. Dole, 66 N. H. 336; termine their legal effect, and Urann v. Coates, 109 Mass. 581; whether they constituted a con- Kingsbury v. Burnside, 58 111. 310; tract, and if so to give construc- Austin V. Davis, 128 Ind. 472. tion to the contract; and it is er- 00 Brown v. R. R. Co. 44 N. Y. ror to submit the construction of 79; Gates v. Nelles, 62 Mich. 444. such contract to the jury. Ranney Where a contract is made between v. Higby, 5 Wis. 62. parties residing at a distance from i Lyman v. Robinson, 14 Allen each other by means of letters pass- (Mass.), 242; Carter v. Shorter, 57 ing between them, it is the duty of Ala. 253; Knight v. Cooley. 34 the court, the letters and the acts Iowa, 218; Moulton v. Kershaw, 17 of the parties being proven, to de- Rep. 606. 134 THE MEMORANDUM. can be maintained on them.^ This is particularly true if the l)arty attempting to enforce the contract has done nothing under it.^ But where the essential requisites appear, and no doubt can exist as to intention, the contract becomes complete when the answer containing the acceptance of a distinct proposition is dispatched, whether by mail or otherwise;^ provided, how- ever, that it be done with due diligence after the receipt of the communication containing the proposal, and before any inti- mation is received that the oti'er is withdrawn ;'* and pro- vided, further, that the party making the offer was alive when such offer was accepted.*' This is the rule recognized by all the leading authorities''' and adopted by the best writers.^ Nor does this rule at all contravene the primary rule that, to constitute a valid contract, the minds of the parties must meet and their joint assent be manifest; for it is not neces- sary that their wills should concur at the same moment if the will of the party receiving the proposition is declared before the will of the party making it is revoked. The con- sent of one party may properly precede the other, provided the will of the party offering continues down to the time of acceptance; and, unless the contrary appears, the presump- tion is that this will does continue, upon the principle that, wherever the existence of a particular subject-matter or rela- 2 Brrick v. Monette, 75 Ala. 75; 7th, before receiving any notice of Gates V. Nelles, 62 Mich. 444. K.'s withdrawal of his offer, C. 3 Carr v. Duval, 14 Pet. (U. S.) wrote, accepting it and arranging 77; McDonald v. Bewicli, 51 Mich, for closing the transaction at once. 79. Held, that there was a contract 4 Trevor v. Wood, 36 N. Y. 307; binding on K. Kempner v. Cohn, Washburn v. Fletcher, 42 Wis. 152. 47 Kv'k. 519. 5K. and C. had lived sixty miles e Mactier v. Firth, 6 Wend. (N. apart in cities between which was Y.) 103; Moore v. Pierson, 6 Iowa, a mail communication twice a day. 279. On January 28th C. wrote to K., 7 Wheat v. Cross, 31 Md. 99; asking terms on which K. would Hutcheson v. Blakeman, 3 Met. sell a parcel of land. K. replied (Ky.) 80; Ferrier v. Stover, 63 January 30th, stating his terms. Iowa, 484; Stone v. Harmon, 31 K.'s agent did not deliver the letter Minn. 512; Trevor v. Wood, 36 N. to C. until February 2d. C. at once Y. 307; Averill v. Hedge, 12 Conn, had the title examined, and parted 436; Levy v. Cohn, 4 Ga. 1. with securities to get money to » 2 Kent's Com. 477; Story, Sales pay for the land. On February (4th ed.), § 129. THE MEMORANDUM. 135 tioii has once been proved, its coiitiiiuaiicc is prcsiiiiKMl iiniil the contrary is shown or until a dillerent presumption is atTorded by the subjet-t matter.'' Nor will the fact that the parties each make mention of cir- cumstances remotely connected with the sale, which are to be left for future consideration, affect the contract or render it any the less complete, provided such matters do not partake of its essential terms ;•" but if the reply to an offer restates the terms thereof with some variations, however slight, it cannot l)e regarded as a completion of the contract." The proposition must be accepted upon the terms stated, and until unqualifiedly accepted it remains a mere offer ;^- on the other "Moore v. Pierson, 6 Iowa, 279; Mactier v. Firth, G Wend. (N. Y.) 103. Letters properly directed and mailed are presumed to have been received; and the same is true of telegrams given to a telegraph com- pany for transmission if properly addressed, and the presumption be- comes conclusive when not denied. Oregon S. S. Co. v. Otis, 100 N. Y. 446. 10 Moore v. Pierson, 6 Iowa, 279; Fitzhugh V.Jones, 6 Munf. (Va.) 83. As where in the letter containing the offer there is some mention of debts to be paid, of which the writer says he will speak in an- other letter, the payment of these debts not being connected with the price to be paid for the land or the terms of payment; or where the letter of acceptance says the acceptor expects to receive some personal property about which there is some dispute with the land, yet gives no intimation of waiving or delaying, for this rea- son, his acceptance of terms of trade proposed. Moore v. Pierson, 6 Iowa, 279. So, too, where a per- son disposed to purchase a tract of land wrote to the other inquir- ing whether it was for sale, and what were his terms by the acre. stating also the payments it would be convenient for him to make, one of which was to pay $1,000 immediately. The answer to this letter stated the price the owner was willing to take, but that he wished the purchaser would take upon himself the responsibility of establishing the lines. He also ac- ceded to the offered terms of pay- ment, and required the purchaser's answer. The purchaser's reply stated that he would take the land on the terms proposed, and would have the lines ascertained, though it went on to express a wish that the owner's agent should attend to the settlement of part of the bound- aries, saying nothing, however, of waiving his acceptance of the terms he had proposed. This the court held was a complete contract for the sale of the land. Fitzhugh V. Jones, 6 Munf. (Va.) 83. 11 An answer to an offer to sell land, which fixes a different place for the delivery of the deed and payment of the purchase money, is not an acceptance. Langellier v. Schafer, 36 Minn. 361; Egger v. Nesbitt, 122 Mo. 667; Northwestern Iron Co. V. Meade, 21 Wis. 474. i^Maclay v. Harvey, 90 111. 525; Bruner v. Wheatou, 46 Mo. 363; 136 THE MEMORANDUM. hand, if an answer to an offer by letter proposes modifica- tions, the party making the offer must state his acceptance of the modifications if he desires to hold the writer of the answer.^ 3 It is further to be observed that, where an offer is made by letter, askiuj^' for, or where the sender, from the nature of the business, has a right to expect, an answer by return mail, the offer can only endure for a limited time. The making of it, under such circumstances, is accompanied by an imjjlied stipulation that the answer shall be by return mail; and, if that implied stipulation is not satisfied, the person making the offer is released from it.^^ In case nothing is said in regard to acceptance, and there is nothing in the circumstances attending the offer to denote urgency, it remains open for a reasonable time;^^ and parol evidence would, in such case, be admissible to show what would be a reasonable time.^^ Further, where letters are relied upon, either independently or in connection with other writings, they must upon their face sufficiently demonstrate their reference to the agreement in question without the aid 'of parol proof, ^''^ and in this respect come fully within the rule in reference to collateral papers. This applies with particular force to letters written by the person who seeks to enforce the contract; for, not being signed by the person sought to be charged, they do not in themselves constitute a part of the memorandum required by the statute of frauds, and can only be made such by annex- ation and reference. In the foregoing paragraphs the subject has been consid- ered with special reference to letters passing between vendor and vendee. It would seem, however, if the memorandum is otherwise sufficient, that it is not necessary that the letters Kennedy v. Gramling, 33 S. C. i* Maclay v. Harvey, 90 HI. 525. 367. ^■' Wilson v. Clements, 3 Mass. 1; I'i Nundy v. Matthews, 34 Hun Martin v. Black, 21 Ala. 721. (N. Y.), 74. The offer to accept in lu But not to show that at the terms varying from those proposed time of making the proposition it amounts to a rejection of the offer was understood that it should re- and the substitution of a counter- main open for a specific time, proposition which cannot become a Stone v. Harmon, 31 Minn. 512. contract until assented to by the i7 Beckwith v. Talbot, 95 U. S. first proposer. Fox v. Turner, 1 289. III. App. 153. THE MEMORANDUM. 137 should liavi' passed hctwccii the parlies l(j the (.■onlrart. Thus, it has been hehl in a number of cases liiat llio cunlracl may be sulliciently proved by letters written by the vendor to a third party. These decisions announce the doctrine that as the only object of the statute is to prevent perjury in the setting up of contracts by parol evidence, a memorandum is equally corroborative whether it passes between the parties or between one of them and his (jwn agent.^* § 101. Telegrams. Tele;;ra[ihic correspondence communi- cating- an oUer, when acted on,''-^ forms a contract governing the acts of the parties under the stipulations of the tele- grams;-^ and when a contract has been thus made, if unam- biguous in its terms, it will not dill'er in legal eiiect from other contracts in writing.-^ There must, of course, be a dis- tinct offer on the one hand and an acceptance of it on the other, showing a concurrence of the minds of the parties upon all the terms of the contract, before either party is bound,-- while all the essential terms must ajjpear either by the telegrams or other papers which can be directly- connected with them.-3 A telegraphic message, written, signed and delivered to the telegraph company for transmission, is a suf- ficient compliance with the statute of frauds and binds the sender,24 while such message, if properly addressed, will be presumed to have been received in due course, a presumption that becomes conclusive when not denied.-^ § 102. Delivery. The general principles which govern the operation of written instruments creating obligations or im- i« Singleton v. Hill, 91 Wis. 51; saying he would take certain prop- Drury v. Young, 58 Md. 546; Lee erty for the purchase of which his V. Cherry, 85 Tenn. 707. agent had negotiated, was ?icld not I'j A telegram accepting an offer, a sufficient memorandum to satisfy if sent within the time agreed the statute of frauds where it did upon, completes the contract. The not express the terms of the con- time of telegraphing is the time tract, but these would have to be when the contract was closed, ascertained from the oral negotia- Perry v. Iron Co. 15 R. I. 380. tions between the agent and the 20 Duble V. Batts, 38 Tex. 312; vendor. McElroy v. Buck, 35 Mich. Eggers V. Nesbit, 122 Mo. 667. 434. 21 Wells V. R. R. Co. 30 Wis. 605. 24 Hawley v. Whipple, 48 N. H. 22 Deshon v. Fosdick, 1 Woods 487. (C. Ct.), 286. 2- Oregon S. S. Co. v. Otis, 100 23 A telegram from a principal, N. Y. 446. 138 THE MEMORANDUM. posing duties and burdens apply with equal force to con- tracts for the sale or conveyance of land. The delivery of a written contract is indispensable to its binding effect, and proof of same is as necessary as of execution. Kor is a deliv- ery conclusively proved by merely showing the placing of the paper by one of the alleged contracting parties in the hands of the other. Delivery is in all cases a question of intent, and depends on whether the parties at the time meant it to be a delivery to take effect presently.^" This subject is very fully considered in that part of the work which treats of the con- veyance, to which the reader is referred. § 103. Continued — Undelivered Deeds. When, in pur- suance of a parol contract, a deed has been drawn and executed, but for any reason remains in the hands of the ven- dor or his agent undelivered, such deed cannot be regarded as a "note or memorandum" within the meaning of the statute, unless it is shown that it contains the terms of the agree- ment and conditions of sale.^^ Such, at least, is the reason- able inference to be drawn from the adjudicated cases, though it must be confessed that a perusal of same leaves the ques- tion in some doubt. In those cases which seem to sustain the doctrine that an executed but undelivered deed may be resorted to and that same will furnish a sufficient memoran- dum of the contract of sale under the statute, the terms of 26 Jordan V. Davis, 108 111. 336; first payment, with directions to Cocks V. Barker, 49 N. Y. 107. Par- deliver them if the counsel ap- ties negotiated for the purchase by proved them. Plaintiff subsequent- defendant and sale by plaintiff of ly obtained one of the duplicates certain lands. They agreed upon from the clerk. Upon return of the price, and a contract was drawn counsel he disapproved the title, and signed in duplicate, to which and rejected it as defective. In an P. attached his name as a witness, action for specific performance. While the papers lay upon the held that the facts justified a find- table defendant inquired as to the ing that no contract was con- papers in respect to title. Plaintiff eluded; that all the acts of the par- replied that he had none. Defend- ties were to be regarded as parts ant then suggested that, before pro- of one transaction, which was ceeding further, the matter should never consummated, and that be submitted to his counsel for ap- there had been no delivery. Dietz proval, which was assented to by v. Parish, 79 N. Y. 520. plaintiff. Counsel being absent, 27 Cagger v. Lansing, 43 N. Y. the contracts were left with a 550; Campbell v. Thomas, 42 Wis. clerk, together with a check for 437; Dwain v. Burnette, 89 Cal. THE MEMORANDUM. 130 the orif^iual contract seem j,a'iu'rally to have been recited or the deeds to have been connected with some antecedent agree- ment. In such cases the undelivered deeds have been resorted to for the purpose of suiJiilying omissions or inaccuracies upon the principle that they constituted but part of a single transaction.^^ It has been held also, that a deed drawn and executed with the knowledge of both parties, with a view to the consumma- tion of the contract, and which embodies the substance though not all of the details or particulars of the agreement 564; Freeland v. Charmley, 80 Ind. 132; Overman v. Kerr, 17 Iowa, 485. 28 Thus, in Jenkins v. Harrison, 66 Ala. 345, a memorandum in writing, purporting to contain tlie terms of a contract for the sale of land, and signed by both of the parties, failed to describe the prop- erty with the certainty and defi- niteness, required to a specific per- formance, but deeds, inoperative for want of delivery, were exe- cuted by the parties a few days afterwards, which did correctly de- scribe the land; and it was held that such undelivered deeds, and the memorandum signed by the parties, might, when taken togeth- er, satisfy the requisitions of the statute of frauds, the court saying: "When the memorandum . . . is taken and read, as it must be, in connection with the deeds sub- sequently executed, there is no doubt or uncertainty as to the terms of the contract for the sale of the lands. True, the deeds do not expressly refer to the memo- randum, but they were all exe- cuted as parts of a single trans- action, between the same parties, having reference to the same sub- ject-matter." In Work v. Cowhick, 81 111. 317, property was struck off to appellant as the highest bidder at an administrator's sale, and the administrator's deed of the land, and a note signed by the pur- chaser, in which she promised to pay to the administrator the pur- chase money "for land purchased by Elizabeth Worth this day at administrator's sale," were left with a third person to be held until the purchaser should obtain per- sonal security on the note, and ex- ecute a mortgage, at which time the deed was to be delivered. It was held, in a suit by the adminis- trator against the purchaser for a failure to carry out the sale, that the making of the deed and the signing of the note might be re- garded as one transaction, and that together they constituted such proof as amounted to a compliance with the statute of frauds; the de- scription in the deed indicating what land was referred to by the imperfect description in the note. So. in Wood v. Davis, 82 111. 311, written authority to an agent to sell land, and the terms of a con- tract of sale were embodied in let- ters written by the owner, who also sent to the agent an executed deed to be delivered, but which was never in fact delivered, and when, after refusal by the agent to con- summate the trade, suit for dam- ages was brought by the purchaser 1-iO THE MEMORANDUM. for sale, is a "note or memorandum" sufficient to satisfy the statute.29 Tlie general and better rule, however, seems to be that an undelivered deed is not, by its own force and aside from any contract to which it may be related, a sufficient writing to meet the requirements of the statute of frauds, and that it cannot be resorted to for the purpose of aiding the statute by mere implication.^^ against the owner, it was held that deed could be referred to to supply such a contract was established as the defect. took the case out of the operation 29 Johnston v. Jones, 85 Ala. 286. of the statute of frauds, and that, so Kopp v. Reiter, 146 111. 437; although the memoranda con- Cannon v. Cannon, 26 N. J. Eq. tained no description of the land, 316; Johnson v. Brook, 31 Miss. 17. the description in the undelivered CHAPTER IV. CONSTRUCTION OF LAND CONTRACTS. 104. General principles. §120. 105. When construction is for the court. 121. 106. When for the jury. 122. 107. Intention of the parties. 123, 108. Construction deduced from 124. acts. 125. 109. When construction should favor either party. 126. 110. Entire and separable con- tracts. 127, 111. Implication. 128, 112. Mutual and dependent un- 129. dertakings. 130. 113. Precedent and contempora- 131. neous acts. 132. 114. Admission of parol evi- 133. dence. 134. 115. Continued — Collateral mat- ters and conditions. 135. 116. Surrounding circumstances 136. and pre-existing rela- 137. tions. 138. 117. Usage and custom. 139. 118. Ambiguities. 140. 119. Technical phrases. Contemporaneous writings. Continued — When variant from each other. Unintelligible expressions. Printed blanks. Interlineations — Erasures. Proposals and offers — Op- tions. Continued — Option in lease. Acceptance, Operation and effect. Recitals. Contracts for repurchase. Bond for conveyance. The description. Continued — Unlocated land. Continued — History of title. Description by designation. The medium of payment. Conditions in avoidance. Time of performance. Computation of time. Assignment of contract for security. § 104. General principles. The oblijT;ation of a contract is the legal duty of performiiifi; it according to its terms. There can be no legal duty without a remedy or means of enforcing it; for without such remedy a contract is a mere imperfect obligation, depending for its performance upon the will of him from whom performance is expected. Parties, therefore, who enter into contracts must be considered as looking to the municipal law for a remedy to enforce them; and this law, thus in the legal contemplation of the parties, enters into and forms a part of the obligation.^ It may be further stated as 1 Lessley v. Phipps. 49 Miss. 790; Where there is a conflict of appli- Miller v. Wilson, 146 111. 523; Ed- catory laws, the parties to an agree- wards v. Kearzly, 96 U. S. 595. ment are presumed to have made it 141 142 CONSTRUCTION OF LAND CONTRACTS. a fundamental proposition in tlie application of tlie principles last enunciated, that all matters bearing upon the execution, interpretation and validity of a contract are to be determined by the law of the place where it is made; that all matters con- nected with its performance are regulated by the law prevail- ing at the place of such i)ei'formance; and that all matters respecting the remedies incident to it depend upon the law of the place where the suit is brought.- It is a further proposition that all contracts must receive a reasonable interpretation according to the intention of the parties at the time of executing them, if that intention can be gathered from the language which they have employed,^ and that such intention is in all cases the controlling principle, requiring the adoi)tion of such construction as shall carry the same into effect whenever this can be done consistently with the established rules of law.^ The acts to be performed under the contract and the manner of performance may also be con- sidered,'^ as well as the acts leading to or done at the time of execution or with reference thereto; and those facts in view of the existence of which the contract was entered into may be considered in construing a clause thereof the meaning of with reference to that statute tract will bind the contracting which is most favorable to its va- party to do all such legal acts as lidity and performance. Talbot v. are necessary according to the law Trans. Co., 41 Iowa 247. of the place where they are to op- 2 Scudder v. Union Nat. Bank, erate, so that they may have their 91 U. S. 406; Morgan v. R. R. Co., full legal effect. Carnegie v. Mori- 2 Woods (C. Ct.) 244. Generally son, 2 Met. (Mass.) 381. Con- a contract which is valid in the tracts in relation to land must be state in which it was made should made in conformity to the local be enforced in another state, un- laws. And such local laws must less it is clearly contrary to good also be resorted to for the purpose morals or repugnant to the policy of determining what is to be Con- or positive institutions of that sidered real property. Chapman v. state. Phinney v. Baldwin, 16 111. Robertson, 6 Paige (N. Y.) 627. 108; Robinson v. Queen, 87 Tenn. 3 Crabtree v. Hagenbaugh, 25 111. 445. Where a contract made in 233; Goosey v. Goosey, 48 Miss, one place contemplates the execu- 210; Barlow v. Scott, 24 N. Y. 40. tion of deeds or other contracts, •* Atwood v. Cobb, 16 Pick, making payments or doing other (Mass.) 227; Hurley v. Brown, 98 legal acts in another place, the law Mass. 545; Ives v. Hazzard, 4 R. I. of the place where the acts are to 29; Stout v. Whitney, 12 111. 218; be done will govern the contract; Coey v. Lehman, 79 111. 173. and the obligation of such con- s People v. Gosper, 3 Neb. 285; CONSTRUCTION OF LAND CONTRACTS. 143 vvliicli is obscurr," while the wliolc coiilract .slKjiild always be considered in detennininj; the meaning of any of its partsJ IJut where tlie contract bears snch inherent evidence of its true nieaninj; thai i1 cari'ies a clear legal conviction, evidence of llic inteiilion of llic i)arli('s as fuiiiislied by other sources or of sui-roiindiiig circuiiislaiices is properly excluded.** A contract should be cdustrued so as not to give either jiarly an uiilair or uiircasniiablc advantage over the other, unless such was the nuinili'st inteulien of the parties at the time it was made; for it is one of the cherislied objects of the law to luaintain a recijjrocity between parties to a contract whenever it can be done without doing violence to the lan- guage used." To the end tliat etTect may be given to the intent of the parties in the inteijjretation 'of their contracts, courts may consider the circuiustances of their situation and the subject- matter of their meeting,'" as well as any practical interpre- tation of the agreement wliich they may have given to it by I heir acts;^^ and where a written contract has been fully per- formed within its ajjparent intent and reasonable require- ments, and to the evident satisfaction of the parties at the time, and it is not made to apjtear that there was any mutual error arising from mistake of fact, or any practicing of fraud, courts should not interfere.^- § 105. When construction is for the court. It is a general and well-estal)lislied rule that, wiiere the terms of a contract are undispuled, the question as to the nature, extent and elVect thereof and of the interests of the parties thereto is to Dunn V. Moore, 16 111. 151; Pollard 135; Robinson v. Fiske, 25 Me. V. Maddox, 28 Ala. 321; Sumner v. 401; Lacey v. Green, 84 Pa. St. 514; Williams, 8 Mass. 162. Pollard v. Maddox, 28 Ala. 321. <■• Stapenhorst v. Wolff, 35 N. Y. n Williamson v. McHatton, 16 Sup. Ct. 25; Parmelee v. Hamble- La. Ann. 196; Chicago v. Sheldon, ton, 24 111. 605; Strong v. Gregory, 9 Wall. (U. S.) 50. 19 Ala. 146. 12 Lathers v. Keogh, 109 N. Y. 7 People V. Gosper, 3 Neb. 285; 583; Casey v. Pennoyer, G La. Ann. Goosey v. Goosey, 48 Miss. 210. 766; Farley v. Pettes, 5 Mo. App. s Morss V. Salisbury, 48 N. Y. 262. The practical construction in 636; Coey v. Lehman, 79 111. 173; such cases is held to control as Watrous v. McKie, 54 Tex. 65. being in the nature of an estoppel. »Gale V. Dean, 20 111. 320. Citizens' Ins. Co. v. Doll, 3: Md. 10 Conwell V. Pumphrey, 9 Ind. 89, 144 CONSTRUCTION OF LAND CONTRACTS. be determined from the coutract, and is a question of law for the court, whose duty it is in every instance, where meaning or effect is called in question, to declare its legal interpreta- tion.^3 The rule is the same whatever be the character of the instrument,^ ^ and has been held to extend even to the correct reading of words as well as to their meaning and legal effect.^"' It seems, however, that although it is the special province of the court to construe and determine the nature and charac- ter of documentary evidence, which should not for this pur- pose be submitted to the jury,^« yet if it is so submitted, and the jury construe it aright, the verdict will be allowed to stand and the submission will furnish no ground for excep- tion.i7 § 106. When for the jury. While it is true, as a general rule, that the interpretation of written instruments properly belongs to the court, whose province it is to construe con- tracts, and not to the jury, yet there are many cases in which, from the different senses of the words used, or their obscure and indeteiTBinate reference to unexplained circumstances, the interpretation of the language may be left to the consider- ation of the jury for the purpose of carrying into effect the real intention of the parties.^*^ Thus, where the instrument contains terms or words used in a sense peculiar to some art or business, the determination of the sense in which such terms or words are employed may be properly left to the jury .19 In like manner, if the writing is obscure or ambig- 13 Williams v. Waters, 36 Ga. Md. 264; Woodman v. Chesley, 39 454; Kidd v. Cromwell, 17 Ala. 648; Me. 45; Morse v. Weymouth, 28 Vt. Andrews v. Telford, 37 Iowa 314; 825, Fowle V. Biglow, 10 Mass. 379; i^ Martineau v. Steele, 14 Wis. McKenzie v. Sykes, 47 Mich. 294; 272. Groat V. Gile, 51 N. Y. 431. is Brown v. McGrau, 14 Pet. (U. i^Lowry v. Megee, 52 Ind. 107; S.) 493; Jennings v. Sherwood, 8 Nash V. Drisco, 51 Me. 417; Sea- Conn. 122; Bank v. Dana, 79 N. Y, ward V. Malatte, 15 Cal. 304; Mon- 108. tag V. Lynn, 23 111. 551. i9 Goddard v. Foster, 17 Wall. 15 Lapeer Ins. Co. v. Doyle, 30 (U.S.) 123; Williams v. Woods, 16 Mich. 159. But this is hardly in Md. 220; Eaton v. Smith, 20 Pick, consonance with the volume of au- (Mass.) 156; Prather v. Ross, 17 thority, and is rather an invasion Ind. 495; Sellars v. Johnson, 65 N. of the province of the jury. C. 104; McAvoy v. Long, 13 111. 16 Warner v. Miltenberger, 21 147. CONSTRUCTION OF LAND CONTRACTS. 145 uous, when such obscurity or ambij^uity arises from unfamil- iar words or terms, or from indistinct cliiro^iapliy, or eras- ures, and, in some instances, where the meaninj^ of the con- tract depends upon facts aliunde, in connection with the writ- ten hini 109. When construction should favor either party. As previously remarked, a contract should be so construed as not to give either party an unfair or unreasonable advantage over the other, the object of the law being to maintain as far as possible an entire reciprocity between them. But if a con- tract contains ambiguous words, or words of doubtful con- struction, they should, as a rule, be construed most strongly against the party who executed the same, as the other party is not presumed to have chosen the expression of doubtful meaning.^* For this reason, where the language of a deed permits two constructions, that one should be adopted which is least favorable to the grantor ;=*■''' and the same rule would apply to his contracts for conveyance. In every instance where a party takes an agreement pre- pared by another, and upon its faith incurs obligations or parts with his property, he should have a construction given to the instrument most favorable to himself.^^ This rule, 31 Leavers v. Cleary, 75 111. 349; don, 9 Wall. (U. S.) 50; Frlgerio v. Parmelee v. Hambleton, 24 111. 605; Stillman, 17 La. Ann. 23. Nickerson v. R. R. Co., 17 Fed. »•« Livingstone v. Arrington, 28 Rep. 408; Hutchins v. Dixon, 11 Ala. 424; Noonan v. Bradley, 9 Md. 29; Jakeway v. Barrett, 38 Vt. Wall. (U. S.) 394; Massie v. Be- 316; Pate v. French, 122 Ind. 10; ford. 68 111. 290; Richardson v. O'Dea V. Winona, 41 Minn. 424; People, 85 111. 495; Gilbert v. Cobb V. McElroy, 79 Iowa 603. James, 86 N. C. 244. 3^ Purinton v. R. R. Co., 46 111. s- Hager v. Spect. 52 Cal. 579; 297. Mills V. Catlin. 22 Vt. 98; Winslow " •• Nickerson v. R. R. Co., 17 Fed. v. Patten, 34 Me. 25. Rep. 408; and see Chicago v. Shel- 3o Noonan v. Bradley. 9 Wall. (U. 148 CONSTRUCTION OF LAND CONTRACTS. however, is oue of last resort, and should be applied only where the instrument is couched in such language as to admit equally of two or more interpretations.^'^ ^ 110. Entire and separable contracts. It does not appear that any precise rule can be laid down for the solution of the question whether a contract is entire or separable, but it must be solved by considering both the language and the subject- matter of the contract. When the price is expressly appor- tioned by the contract, or the apportionment may be implied by law to each item, the contract will generally be held to be severable.^s Usually the question is regarded as a matter of intention, to be discovered in each case by a view of the lan- guage employed and the circumstances attending the subject- matter.3'"^ The consideration to be paid, and not the subject or matter to be performed, is usually the test for determining whether a contract is entire or severable; as, if the contract consists of several distinct items founded on a consideration which is apportioned to each item, it is severable. On the other hand, if the contract is for the sale of several distinct things, as for the sale of a town-lot and certain personal property, but all for one consideration, the contract is entire and not divisible, except by the consent of both parties thereto and the making of a new contract.^^ So, also, a joint contract by two persons for the purchase of land is an entirety, and cannot be repudiated by one without the assent of the other.'^i § 111. Implication. While necessary implication is as much a part of a written instrument as if that which is so implied was plainly expressed, yet omissions and defects can- not be supplied by virtue of this rule, unless the implication S.) 394; Livingstone v. Arrington, property," the "coal to be paid for 28 Ala. 424; Hoover v. Miller, 6 at the rate of half a cent a bushel," La. Ann. 204; Barney v. Newcomb, held on its face to be a divisible 9 Cush. (Mass.) 46. contract. Graver v. Scott, 80 Pa. 37 Palley v. Giles, 29 Ind. 114. St. 88. 38 Moore v. Bonnet, 40 Cal. 251; « Scheland v. Erpelding, 6 Ore. Oil Co. V. Brewer, 66 Pa. St. 351. 258. 39 Southwell v. Beezley, 5 Ore. ^i Merriman v. Norman, 9 Heisk. 458. A contract for the sale of a (Tenn.) 269. parcel of land, "also a tract of coal CONSTRUCTION OF LAND CONTRACTS. 149 results from llu- lanyiiay;e euiplovcd in the iustrument, or is iiidi.spt'usable to tai ly the intention of the parties into effect.^- ^ 112. Mutual and dependent undertakings. Undertakinj^s are said to be imitual and dependent when eaeh forms the consideration for the other; as, where a party purchases land and <;ives notes for the purchase money, and the vendor at the same time ajjrees to convey the laud by deed to the pur- chaser upon the payment of all the notes, the execution an* Black v. Bachelder, 120 Mass. omitted from the contract, the de- 171; Knox v. Clifford, 38 Wis. 651; fendant cannot avail himself of McLellan v. Bank. 24 Me. 566; Hol- them. Williams v. Robinson, 73 brook v. Holbrook, 30 Vt. 432. Me. 186. Nor can the contract be 153 CONSTRUCTION OF LAND CONTRACTS. whole agreement,^''' and that parol evidence is admissible to prove the portion which the parties omitted; and, in like manner, that it does not operate to exclude proof of collateral or superadded agreements, provided the agreements so sought to be i)roved be not inconsistent with the writing. The admis- sion of parol evidence for these purposes, it is claimed, does not constitute a real exception to the rule, as it is received on the ground that the agreement to which it relates has not been reduced to writing.^^^ In ordinary mercantile transac- tions the principle is undoubtedly correct, or when applied to any contract which, althongli ])ur})()rting to be in writing, is not one of the class which the law requires shall be evidenced by a writing. But a contract for the sale of land cannot rest partly in parol and partly in writing ;'^'^ and while parol evi- dence might be competent to show a total or partial failure of consideration of a contract, or possibly to show a considera- tion different from that expressed in the writing, it is certain that no proof of contemporaneous agreements can be received or permitted to control, where the effect of such agreements W'ould be to substitute something new or different, or vary or change the operation of the contract as expressed in the writ- ing.^^ It is to be observed, however, that the rule which forbids the introduction of parol evidence to contradict, add to or vary a written instrument does not extend to evidence offered to show that a contract was made in furtherance of objects forbidden by statute, by common law or by the general pol- icy of the law.^^ The rules of evidence are substantially the same at law and in equity; and parol evidence which tends to materially alter a written agreement cannot be received in a court of equity any more than in a court of law,^'^ except in cases of fraud, mistake, surprise or accident.^^ 55 Frey v. Vandenhoof, 15 Wis. ss Gilbert v. Stockman, 76 Wis. 397. 62; Sandage v. Studabaker, etc., 56 Hubbard v. Marshall, 50 Wis. Co., 142 Ind. 148. 322; Chapman v. Dobson, 78 N. Y. -".o Martin v. Clarke, 8 R. I. 389. 74. ^" D wight V. Pomeroy, 17 Mass. r.7 McConnell v. Brillhart, 17 111. 303; Eveleth v. Wilson, 15 Me. 109; 354; Farwell v. Lowther, 18 111. Tilton v. Tilton, 9 N. H. 392; 252. Toomer v. Lucas, 13 Gratt. (Va.) CONSTRUCTION OF LAND CONTRACTS. 153 § 115. Continued — Collateral matters and conditions. It is prt'suiiu'd that wlieu a writk'U agiecmeiit is cntcicd into it contains the vvliolc of the conditions and iindcrtakin 1 Bouv. Law Diet. 118. 70 1 Bouv. Law Diet. 118; Wi- si Brown v. Brown, 43 N. H. 25; CONSTRUCTION OF LAND CONTRACTS. 157 strictly adhered to in all cases of the construction of written ins Larmon v. Jordan, 56 111. 204; Ala. 374; Steele v. Bond, 32 Minn. Hanly v. Watterson, 39 W. Va. 214; 14; Bostwick v. Hess, 80 111. 138. Kellow V. Jory, 141 Pa. St. 144. i^ Guyer v. Warren, 175 111. 328; 11 Ross V. Parks, 93 Ala. 153; Yerkes v. Richards, 153 Pa. St Johnson v. Trippe, 33 Fed. Rep. 646; Wall v. Ry. Co., 86 Wis. 48. 166 CONSTRUCTION OF LAND CONTRACTS. beyond the time limited without a new consideration, and even though this is attempted and such extension is evidenced by a writing- it is still malum pactum and void.^'* Such extension, however, though void as an option, may still con- stitute a valid continuing offer of sale, which, if accepted before retraction with a tender of performance, will create a contract capable of specific enforcement.^^ A proposal, to be effective, must be unequivocal and clear. An offer must be fairly deducible from the writing alleged to be a proposal, or from this in connection with other writ- ings; and mere statements, not amounting to an offer or evincing a desire to sell, cannot be construed into a proposal. This is well illustrated in the case of one who writes a land- owner, inquiring the price of his land or the terms upon which he will sell it. If, in response to such letter, the land-owner names a price or even specifies terms, this will not be equiva- lent to a proposal to sell the land. The mere statement of the price at which property is held cannot be understood as an offer to sell ; for the seller may desire to choose the purchaser, and may not be willing to part with his property to any one who ofl'ers his price.i° § 126. Continued — Option in lease. A covenant in a lease giving the right to purchase the premises on specified terms is a continuing offer to sell, which, when accepted, constitutes a contract of sale. The proposition, unless otherwise quali- fied, extends through the whole period of the demise, and if the lease is under seal must be regarded as made upon a sufficient consideration, and therefore one from which the vendor is not at liberty to recede.^ '^ If the lease is not under seal the contract, if strictly interpreted, cannot be said to be mutual. The earlier cases, both in England and America, hold that want of mutuality of obligation and remedy is a bar to specific performance j^^ but modern authorities have Hide v. Leiser, 10 Mont. 5; see Coleman v. Applegarth, 68 Md. Bradford v. Foster, 87 Tenn. 4; 21. De Rutte v. Muldrow, 16 Cal. 505; le Knight v. Cooley, 34 Iowa 218. Gordon v. Darnell, 5 Colo. 304. i^ Willard v. Taylor, 8 Wall. (U. 15 Ide V. Leiser, 10 Mont. 5; in S.) 557; Guyer v. Warren, 175 111. this case the general doctrine of 328; O'Brien v. Borland, 166 Mass. options and contracts is very lu- 481. cidly and learnedly discussed. And is Parkhurst v. Van Cortlandt, 1 CONSTRUCTION OF LAND CONTRACTS. lOT narrowed this doctrine down to cases in which there is u«j other consideration. An ()i)tional aj^reenient to convey, witli- out any covenant or obligation lo piirdiase, and witliout mutuality of remedy, will now be enforced in equity if it is made uj)on proper consideration or forms part of a lease or oilier contract between the parties that may be the true con- sideration Cor it.'' Thus, it is said that in taking a lease a tenant may be willing to j)ay a hij^h rent for a number of years, provided the landlord will j^ive him an optional ri},dit to purchase at a fixed price; and it is to be presumed that the landloi-d would not aji^ree to such a concession unless he had a consideration in the lease. Any sutlicient consideration would make such unilateral contract bindin<> in equity,^" and the simple reservation of rent is enou<;h.-i An option f^iven in a lease should, however, comply with the general rules relative to agreements for the sale of land, and if indefinite or uncertain will be insufficient as a ground for specific per- formance.-- An oj)tion of this character can be regarded in no higher light than a niei'e privilege of purchase. It is binding upon the lessor and available by the lessee for the full period of the option. Beyond this it confers no rights on the lessee, creates no estate in him other than that acquired under the lease, and unless accepted expires with his term or by such other limitation as may be placed upon it.--** It has been held that a lessee with such an option, although the election to ])uichas" rests solely with him, has thereby such an equitable estate Johns. Ch. (N. Y.) 282; Smith v. 21 Gustin v. School District, 94 McVeigh, 11 N. J. Eq. 239. Mich. 502; Hayes v. O'Brien, 149 1" Backhouse v. Mohun, 3 Johns. 111. 403; Hall v. Center, 40 Cal. 63; (N. Y.) 434; Hawralty v. Warren, House v. Jackson, 24 Ore. 89; Her- 18 N. J. Eq. 124. Equity will de- man v. Babcock, 103 Ind. 461. cree specific performance of a cov- 2^ Thus, an agreement in a lease enant in a lease which provides that "if the premises are for sale that the lessee shall have the priv- at any time the lessee shall have ilege of purchasing for a fixed the refusal of them" is too indef- price on or before the expiration inite to be enforced specifically, of the term. Hall v. Center, 40 Fogg v. Price. 145 Mass. 513. Cal. 63; and see McLaughlin v. -'.•i Bras v. Sheffield, 49 Kan. 702; Perry, 35 Md. 352. Gustin v. School District. 49 Mich. 20 Hawralty v. Warren, 18 N. J. 502; Sutherland v. Parkins, 75 HI. Eq. 124. 338. 168 CONSTRUCTION OF LAND CONTRACTS. in the laud iiudei- the coutracl of optional purchase as maj be transmitted hy him,-^ but this view of the relation does not seem to rest on substantial jj;rounds and is opposed to the generally received principles which govern this branch of the law.25 § 127. Acceptance. It may be stated generally that an oral acceptance of a mere proposal or offer in writing will not satisfy the requirements of the statute of frauds, which is explicit in its provisions that the entire contract shall be evidenced by or deducible from writings. It is necessary, therefore, to create a valid obligation, that the acceptance shall itself be in writing, and unqualified or without variance of any kind between it and the proposal, so that it shall clearly appear that there has been a full accession on both sides to one and the same set of terms.^^ A conditional acceptance will not create a contract that can be specifically enforced and amounts to a practical rejection of the offer.^^ But this rule is not without apparent exceptions, and cir- cumstances will sometimes be pennitted to operate as an acceptance where fraud might be perpetrated or injustice result from a strict adherence to the rule. Thus, where offers are made or options given for the purchase of land, and certain conditions are imposed upon the party to whom the option is given, as that he shall move upon or improve the property, pay taxes, etc., upon the performance of which the owner agrees to convey on payment of a stipulated price, a valid acceptance may be created by the performance of the condi- tions so imposed.-^ In such cases the pa^Tnent of the purchase price is, of course, one of the conditions; and while there is no agreement expressed in the writing by the purchaser to pay such price, the performance of the other conditions annexed and the tender of the purchase money at or within the time stipulated will constitute a sufficient consideration to make the agreement binding upon the vendor.^^ Prior to the acts of acceptance, as the performance of conditions, etc., the 24 Kerr v. Day, 14 Pa. St. 112. 27 Egger v. Nesbitt, 122 Mo. 667. 25 See Sutherland v. Parkins, 75 2s Mix v. Baldiic, 78 111. 215; Per- 111. 338. kins v. Hadsell, 50 111. 216. 20 Lang V. McLaughlin, 14 Minn. 29 Mix v. Balduc, 78 111. 215. 72; Bruner v. Wheaton, 46 Mo. 363. CONSTRUCTION OF LAND CONTRACTS. 109 vendor mi\y withdraw Lis oiler, for up to that time there is no consideration to support the aj;reenient; but if he allows his offer to remain open until the vendee has accepted it by doing all that he is required to do by its terms, it is then too late to recede.'^^ It is sometimes urj^ed, in cases of this kind, as an excuse for non-performance by the vendor, that the vendee, even by enterinji: upon the land, incurs no oliligation that the vendor could enforce, and for that reason the ajireemcnt is not bind- ing for want of mutuality. This is undoubtedly a true con- struction of the instrument; but if the vendee does not choose to avail himself of this privilege and does perform all that is necessary to entitle him to the land, it would be inequitable to permit the vendor to refuse compliance with his ])romise on the ground that the vendee was not bound by contract to do the same. The acts having been induced by the unrevoked promise of the vendor, equity will not permit him to plead want of mutuant}' or consideration. Indeed, neither of these elements can properly be said to be wanting; for the mutual- ity and consideration in such a case consist in the vendee's having actually done, upon the promise of the other party, what he required to have done, and it is immaterial that it was done without having entered into a previous undertaking to do it.3i After the time has passed within which one is allowed the privilege of electing to purchase land on certain terms, a tender and ott'er to perform comes too late.^- The written acceptance of a verbal offer, not containing its terms, is within the statute of frauds and inoperative against the person making it; and notwithstanding that such oiler is afterwards reduced to writing in the form of a contract by the i)arty making it and off"ered to the party to whom it is made to sign, the latter may refuse and will not be bound by it.33 In the case of bilateral contracts, which contain mutual obligations and reciprocal promises, such as are ordinarily inserted in contracts of sale, if the writing fully expresses the 30 Perkins V. Hadsell, 50 111. 216; 32 Longfellow v. Moore, 102 111. Coleman v. Applegarth, 68 Md. 21. 289. 31 Perkins v. Hadsell, 50 111. 216. a,! Washington Ice Co. v. Webster, 62 Me. 341. 170 CONSTRUCTION OF LAND CONTRACTS. agreement the li^liis of the parties are fixed by it. It is oiistoinai'j aud iJiopcr to have such contracts signed by both parties, and a mutual acceptance thereof thus signified in writing; yet it is well settled that the signature of one party only is sufficient, jjrovided he be the one who is sought to be charged thereby; while in some states the rule obtains that the acceptance by one party of a contract for sale executed only by the other binds the accepting party as well, and that the instrument is regarded as being as much the written agree- ment of the latter as the former.^^ § 128. Operation and effect. The ordinary effect of an agree- ment to convey imports nothing more than an executory promise, and the operation of the instrument will not usually be extended beyond this ; yet it will often happen that parties, through ignorance of the legal effect of w^ords, inadvertence or mistake, make use of language which, standing alone, indi- cates a present grant rather than a mere agreement for some future action. The employment of the words "grant, bargain and sell," or "do sell," or "by these presents do sell and convey," or words of like character, all import a present grant,^^ and their use is by no means unfrequent in agreements for conveyance. But, notwithstanding the contract contains words of conveyance in prccsenti, still if from the whole instrument it is manifest that further conveyances were contemplated by the parties, it will be considered an agreement to convey and not a con- veyance.3^ In detennining whether an instrument is an imme- diate conveyance or only an executory contract, the intention of the parties must be sought for in every part of the instru- ment. If it contains words of present assurance, these words afford a presumption that an executed conveyance was in- tended. But this presumption is not conclusive; it may be overcome by the presence of other words which contemplate a future conveyance.^'^ Intention is so imperative in the con- struction of grants that the strongest words of conveyance in 34 See Lowber v. Connit, 36 Wis. (N. Y.) 26; Ogden v. Brown, 33 176; Hubbard v. Marshall, 50 Wis. Pa. St. 247; Broadwell v. Raines, 322. 34 La. Ann. 677. 3n Carver v. McNully, 39 Pa. St. 37 Williams v. Bently, 27 Pa. St. 484; Johnson v. Filson, 118 111. 219. 301. 38 Jackson v. Moncriet, 5 Wend. CONSTRUCTION OF LAND CONTRACTS. 171 tlio iHVSciit tense liave been Iield inoperative to pass the estate if other pails of tlie writing; evince a contrary intention or tend to show tliat the aji;reement itself was not designed to pass title.'''^ If the instrument is called hy the parties an agreement, this is a circumstance of importance; for in popular understanding there is a distinction between an agreement and a deed, the former being regarded as preparatory to the latter; and gen- erally, if by the terms of the contract any material act remains to be done, eltect will be given to the instrument only as an agreement to sell. On the other hand, courts have no right to do violence to the express terms of an instrument, and, where such instrument contains the ordinary and technical words to jjass title, cannot entirely disregard them. If there is nothing in the instrument to limit or qualify the effect of apt words of con- veyance, notwithstanding it may provide for a conveyance in the future, the writing may still have effect as a present conveyance, and the agreement to make a deed at a future day be regarded as simply equivalent to a covenant for further assurance.2^ It would seem, therefore, that, in the determination of the question as to whether an informal instrument shall be con- strued as a conveyance or only an agreement to sell, the 38 Ogden V. Brown. 33 Pa. St. 247; Jackson v. Moncriet, 5 Wend. (N. Y.) 26. A. placed B. in pos- session of a plantation and certain personal property thereon, under an agreement which stated, "I have this day bargained, sold and delivered to" B. the plantation and articles of personal property enumerated. Held, that the con- tract was evidence, not of a sale, but of an agreement to sell. Broadwell v. Raines, 34 La. Ann. 677. The following writing: "August 20, 1850. I do hereby agree that J. P. shall have the land which he is in possession of now for the labor he done for me over age; and this shall be his receipt for all my rights and claims against the land. [Signed] D. P." — does not convey the absolute title to the land for want of words of limitation, but is merely a receipt for the purchase money of the land. Such writing, however, con- stitues an agi'eement to convey sufficient for equity to execute, and is not within the statute of frauds. Phillips V. Swank, 120 Pa. St. 76. •■»> So held in Johnson v. Filson, 118 111. 219, where a written instru- ment from a father to his son re- cited, among other things, that "I, W. F., of, etc., have this day bargained and do grant, bargain, sell and confirm unto the said," etc., naming the son and describ- 17^ CONSTRUCTION OF LAND CONTRACTS. primary rule is the evident intention of the parties derived from the instrument itself, and, when that is doubtful, from the circumstances attending its execution.^o Technical words of conveyance are not necessary to constitute an executed contract, neither does their presence necessarily indicate one. Notwithstanding technical words of present grant are used, yet, if by reason of something further to be done, or from the tenor of the whole instrument, the design of the parties is manifested that the contract is executory merely, it will be so construed. § 129. Recitals. The recitals or preamble contained in or prefixed to an agreement do not of themselves have any obli- gatory force, but they may be referred to in the operative part of the instrument in such a way as to show that it was designed they should form a part of it;'*^ and where the words in the operative part of the instrument are of doubtful mean- ing, the recitals preceding the same may be used as a test to discover the intention of the parties and fix the true meaning of the words. But when the words in the operative part are clear and unambiguous they cannot be controlled by the recitals.^2 § 130, Contracts for repurchase. Conveyances of land abso- lute in form are frequently construed, in the light of attendant circumstances, as mortgages in fact, and effect is given to them as such. The questions arising under such conveyances are numerous, and decisions construing them have been multi- plied to an almost indefinite extent. It is not proposed in this connection to examine the operation or effect of such convey- ances except as regards their availability as contracts for repurchase. Contracts made contemporaneously with absolute conveyances are sometimes strong evidence tending to show that such conveyances are intended to be mortgages; and the same is true of stipulations inserted in the instrument reserving a right to repurchase, or covenanting to reconvey.'*^ ing the land, for the sum of $600 4i Trower v. Elder, 77 111. 452. in hand paid, and then bound the 42 Walker v. Tucker, 70 111. 527. father in a penal sum to make the 43 Peterson v. Clark, 15 Johns, son, by the time mentioned, a (N. Y.) 205; Hanford v. Blessing, good and suflBcient warranty deed. 80 111. 188. 40 Bortz V. Borte, 48 Pa. St. 382. CONSTRUCTION OF LAND CONTRACTS. 17b But there is uo positive rule that the covenaut to reconvey shall be regarded either in law or equity as a defeasance. The owner of lands may be willing to sell at the price agreed upon, and the purchaser may also be willing to give the vendor the right to repurchase upon specified terms; and where it appears that the parties really intend an absolute sale, and a contract allowing the vendor to rei)urchase, such intention must control. Such a contract is not opposed to public policy, nor is it in any sense illegal.^* In instruments of this character the fact that there is no continuing debt is a strong circumstance, where there is yny doubt, to show that it is a contract for repurchase.*^ Where sales are made conditionally, or with a reservation of a right in the vendor to repurchase, he must exercise promptness and j)recision on his part in the assertion of his right, or it will be lost, especially when the vendee pays a fair value for the property.*^ If no time is fixed or expressed in which such right shall be exercised, it must be performed, or an offer made to perform, within a reasonable time.*^ A long delay in offering to repurchase may be excused by and with the consent and approbation of the vendee; but such assent terminates with his death, and the right must be exer- cised within a reasonable time thereafter.^^ A mortgagor and a mortgagee may, at any time after the creation of a mortgage and before foreclosure, make any agree- ment concerning the estate they please, and the mortgagee may become the purchaser of the equity of redemption. All such transactions, however, are regarded with jealousy by courts of equity; and as a party is never allowed to take from his debtor by any form of contract his right to redeem prop- 44 Hanford v. Blessing, 80 111. depreciate in value or be injured 188; Henly v. Hotaling, 41 Cal. 22; or destroyed, he may decline to Glover v. Payn, 19 Wend. (N. Y.) repurchase, and permit the loss to 518. fall exclusively on the vendee. 40 Phillips V. Hulsizer, 20 N. J. Such being the relative situation Eq. 308. of the parties to the contract the 40 The reason for this is appar- law requires promptness on the ent. There is no obligation on the part of the vendor. Beck v. Blue, part of the vendor to repurchase. 42 Ala. 32, 4 Kent Com. 144. Should the property appreciate in ■*- Beck v. Blue, 42 Ala. 32; Lar- value, he may exercise his right mon v. Jordan, 56 111. 204. and realize the profit; should it 48 Beck v. Blue, 42 Ala. 32. 174 CONSTRUCTION OF LAND CONTRACTS. erty pledged, they will be sustained only when they are in all respects fair and sui)ported by an adequate consideration. They will be avoided for fraud, actual or constructive, or for any unconscionable advantage taken by the mortgagee in pro- curing the sale; and courts will examine the transaction to see that it is a fair and independent proceeding, entirely unconnected with the original contract of mortgage.^'^ § 131. Bond for conveyance. A bond for title is not distin- guishable in its ordinary operation and elVect from a simple agreement for the same purpose, notwithstauding it is con- ditioned under a penalty. The imposition of a penalty gives only a security for the perforaiance of the contract according to its terms, and is not intended as an option to the obligor; nor does it entitle him to convey or pay the penalty.^*' Like a simple contract, it is evidence only of an agreement of the obligee to purchase and the obligor to sell, the agreement of one party being a consideration for that of the other; and it is not material that the obligation of one party is secured by bond, and that the other is not thus secured.^^ § 132. The description. Probably more questions arise in the interpretation of contracts and deeds for land in that part technically denominated the description than in any other part of the instrument. Uncertainty, ambiguity and repugnance are common defects, all calling for a construction before the instrument can be given effect. In the West, where property can usually be easily and accurately described by the well- known terms of the government surveys or the equally familiar expressions employed in the jdatting of cities and towns, ques- tions of insufficient or faulty description are less frequent than in the East; yet the decisions of both sections are hanno nious in declaring the general rule that in agreements for the sale or conveyance of land the property is sufficiently identified 49 Odell V. Montross, 68 N. Y. the cause comes on for hearing, 499; Locke v. Palmer, 26 Ala. 312; the purchaser's part of the agree- Patterson v. Yeaton, 47 Me. 306; ment has not been performed, if Trull V. Skinner, 17 Pick. (Mass.) the fulfillment is tendered and can 213; Mills v. Mills, 26 Conn. 213; be secured by the same decree Baugher v. Merryman, 32 Md. 185; which compels specific perform- Hyndman v. Hyndman, 19 Vt. 9. ance by the vendor. Ewins v. Gor- 50 Ewins V. Gordon, 49 N. H. 444. don, 49 N. H. 444. Bi Nor is it material that, when CONSTRUCTION OF LAND CONTRACTS. 175 if so describL'd that by proof aliunde the description may be fitted to the hind/'- Tliis ruh% however, cannot be made to embrace descriptions wliicli do not properly fall within it, nor can il be extended l»y implication.'''* •'■•-• Peck V. Williams, 10 N. Y. 509; Baldwin v. Shannon, 43 N. J. L. 596; Baucum v. George, 66 Ala. 259; Hall v. Davis, 36 N. H. 569; Hotchkiss V. Barnes, 34 Conn. 27; Farmer v. Batts, 83 N. C. 387; Terry v. Berry, 13 Nev. 514; Cato V. Stewart, 28 Ark. 146; Clark v. Powers, 45 111. 283. As, for in- stance, "my Lenoir lands." Thorn- burg V. Masten, 88 N. C. 293. The "Fleming farm on French creek," held to be a sufficiently certain de- scription. Ross V. Baker, 72 Pa. St. 186. "Lot 8, sec. 19, 4, N.. 35, E." was held not uncertain under the government system of surveys. Richards v. Snider, 11 Ore. 197. A contract for sale of land described as "a tract of three acres of land, more or less, situate in the town- ship aforesaid," together with proof that the purchaser entered into possession of a certain tract of three acres under the contract, held, in ejectment, to be sufficient to take the case out of the statute of frauds. Troup v. Troup, 87 Pa. St. 149. A description of property as "a steam-mill and distillery sit- uate in the county of Smith and Elate of Tennessee, near the vil- lage of Rome, in civil district 13, on the banks of the Cumberland river, supposed to contain one and one-half acres of land," held, to be sufficient under the statute of frauds, and parol evidence to be admissible for identification of the premises. White v. Motley, 4 Bax- ter (Tenn.) 544. All the vendor's "claim or title to property bought of A. and B., and known as the Gen- tle property," held good under the statute of frauds. Smith v. Free- man, 75 Ala. 285. A written agree- ment by A. to transfer to B. a lot of land near Florence, north of the fair grounds, containing thirty-five acres, more or less, is not void for uncertainty, it appearing that A. owned but one such lot in that vi- cinity. O'Neil V. Seixas (Ala.), 4 South. Rep. 745. "A house and lot or land situated on Amity street, Lynn, Mass.," was held sufficient, the vendor only owning one house and lot of land on the street. Hurley v. Brown, 98 Mass. 545. But specific performance has often been refused of contracts contain- ing no more specific designation. See Hammer v. McEldowney, 46 Pa. St. 334; King v. Ruckman, 5 C. E. Green (N. J.) 316. Indeed, the case of Hurley v. Brown may be considered as stating an ad- vanced doctrine and at variance with well-established rules of con- struction. ••^ Thus, a contract for the sale of land described as "sixty acres Comida and Cove bottom, also ten acres hillside woodland adjoining the Mitchell tract," was held void on its face for uncertainty. Meyer V. Mitchell, 75 Ala. 475. "Forty acres off the Spring Fork end of my tract of one hundred and forty- seven acres on Beech Fork in Cal- houn county" was held too indefi- nite to be enforced. Westfall v. Cottrills, 24 W. Va. 763. "Twenty acres of land," without other de- scription, held void for uncer- tainty. Palmer v. Albee, 50 Iowa 492. A contract to convey "a piece of land supposed to be forty acres" 17C CONSTRUCTION OF LAND CONTRACTS. In construing a con>tract or deed, the description in which is doubtful, the evidence competent to be considered is the hmguage of the instrument and the surrounding circumstances at the time of its execution, including the situation of the parties and the object the}' had in view;'"'* and the practical interpretation by the parties themselves is en4:itled to great if not controlling influence.^^ But this latter rule has an appli- cation only when there is doubt as to its true meaning; for, where its meaning is clear, an erroneous consitruction of it by them will not control its effect.'^'^ is too uncertain for a decree, and too indefinite to permit the intro- duction of parol evidence to make it more certain. Jones v. Carver, 59 Tex. 293. An agreement to sell "one-half acre of land adjoining K.'s lot on the east and running due west," it has been held, does not describe the boundaries with sufficient certainty to satisfy the statute of frauds; and oral evi- dence to show the boundaries agreed upon is inadmissible. Sherer v. Trowbridge, 135 Mass. 500. A memorandum which de- scribed the land sold as a "lot on Eighteenth street, 50x180, about three hundred feet south of Her- bert street," was held not sufficient to satisfy the statute of frauds. Schroeder v. Taaffe, 11 Mo. App. 267. An agreement to convey "my land, . . . the entire tract, seven hundred and twenty-eight acres," held to be too ambiguous to be enforced in equity. Barnet v. Nichols, 56 Miss. 622; and see Thompson v. Gordon, 72 Ala. 455; Eggleston v. Wagner, 46 Mich. 610; Johnson v. Granger, 51 Tex. 42; Scarritt v. M. E. Church, 7 Mo. App. 174. A description of land as "lots Nos. 1 and 2 on F street," without reference to any plan by which the premises could be identi- fied, held not to be sufficient memo- randum under the statute of frauds. Clark v. Chamberlin, 112 Mass. 19. An agreement to sell "one-half acre of land adjoining K.'s lot on the east and running due west" does not describe the boundaries with sufficient cer- tainty. Sherer v. Trowbridge, 135 Mass. 500. A contract for the sale of "two and one-half acre tract of land, being the first half of the five-acre tract along by the fence just back of the Chicago Catholic burying ground," is not specific enough to satisfy the statute of frauds. Pierson v. Ballard, 32 Minn. 263. A description of land in an agreement to convey as five acres, lot 3, section 23, etc., there being nothing to show what five acres are intended, is not a good description, and the defect cannot be supplied by parol. Nippolt v. Kammon (Minn.), 40 N. W. Rep. 266; and see King v. Ruckman, 5 C. E. Green (N. J.) 316; Hammer V. McEldowney, 46 Pa. St. 334. ^* Preble v. Abrahams, 88 Cal, 245; Kennedy v. Gramling, 33 S. C. 367. 55 Chicago V. Sheldon, 9 Wall. (U. S.) 50; Fire Ins. Co. v. Doll, 35 Md. 89; Preble v. Abrahams, 88 Cal. 245. 56 Fire Ins. Co. v, Doll, 35 Md. 89. CONSTRUCTION OF LAND CONTRACTS. 177 As just stated, a contract cannot be extended by implica- tion; nor can it be so extended by express lan{,'uaj;e when, from the ^em-ral wording of the instriimcnit, a contrary intent is manifest or deducihh' uiKhi- I lie application of recognized le^al rules. Tlius, wliere tlie contract specifically descrilies the lauds and states the (piantity, it has been held that the contract cannot be extended to cover other lands than those thus described, althou;:,h it cdutaius a clause that the purchase is intended to be of all the lauds si ill belonging to the vendor.-''" The general rule would seem to be that, when land forms the subject-nui titer of a contract, it must be so desciibed as to leave no uncertainty as to its shape, quantity and locatictn; and if these particulars are entirely wanting, or can only be supplied by a resort to parol evidence, the memorandum is insullicient to warrant an enforcement of the contract or a decree of conveyance. Where a sufficient description is given, jiarol evidence uuiy be resorted to in order to fit the descrip- tion to the land; but where the description is insufficient or vague and uncertain, and the uncertainty is patent, or where there is no description, such evidence is inadmissible.^^ § 133. Continued — TJnlocated land. Not infrequently con- tracts are made for the sale of land in specific quantities but undesignated location, sometimes taking the foi-m of grants in proBsenti, and at others of a simple contract to convey. The exact nature of such, a contract is difficult to determine, 57 Gibbs V. Diekma, 102 U. S. owned five thousand acres instead (L. ed.) 177. In this case there of one thousand five hundred and was a contract for the sale of cer- sixty. The court held that the tain lands which were specifically clause just shown was evidently described, after which was added added by way of limitation, so as tfte following clause: "This pur- to exclude from the sale any of the chase is intended to be of all the parcels specifically described which lands still belonging to the said should be found to have been previ- Holland Harbor Board, the same ously contracted to other parties, being one thousand five hundred And see Brunswick Savings Inst. v. and sixty acres, more or less, at Crossman, 76 Me. 577. ninety cents per acre. If it shall ■''"* Hamilton v. Harvey, 121 111. be found that any of the above- 469; Miller v. Campbell, 52 Ind. described lands have before this 125; Hammer v. McEldowney, 46 date been conveyed to other par- Pa. St. 334; Jordan v. Fay, 40 Me. ties, such lands shall not be in- 130; King v. Ruckman, 20 N. J. Eq. eluded in this sale." It afterwards 316; Lynes v. Hayden, 119 Mass. appeared that the Board still 482. 12 178 CONSTRUCTION OP^ LAND CONTRACTS. whether in form a covenant to convey or a present grant. In the policy of the hind system of the federal government, grants of this nature are permitted, the grant being in the nature of a "float," which does not attach to any particular parcel until located; but upon a definite locution the title to each par- ticular parcel is held to be as complete as if it had been granted by name, number or location.^" The application of this prin- ciple to private grants is, however, radically opposed to many of the best known and most tirmly established rules of law. An executory contract for the sale of a specific quantity to be taken from a choice of designated localities, the respective localities being themselves definitely established, would prob- ably be enforced upon the exercise of the right of selection given. If in form a deed of present grant it would, of course, be inoperative to convey a legal title; but it would be doing no violence to established rules to say that it would confer an equity in the enumerated quantity of land, depending on the exercise of the vendee's right of selection.'^^ But a con- tract to convey a stated number of acres in a certain county or state, without other or further description, would be void for vagueness and uncertainty.*5i § 134. Continued — History of title. It is no uncommon practice to insert in contracts and conveyances a mention of some incident in the history of the title, as that the property is the same premises conveyed to the vendor by a certain per- 50 See 9 Opinions Att'y-Gen. 41; convey "one hundred and sixty R. R. Co. V. U. S. 92 U. S. 733. acres of land in any one of the fol- 60 See Dull v. Blum, 4 S. W. Rep. lowing counties in the state of (Tex.) 489. In this case a grant of Missouri," naming them; held, that one hundred acres to be taken in the right to demand a conveyance a rectangular form out of any of could not be enforced, the contract the four corners of a designated in reference thereto being invalid tract which the grantee might se- for want of a description. But see lect was denied operation as a Carlyon v. Eade, 48 Iowa 707, deed, but permitted to stand as an where it was held that a contract executory contract for the convey- by A. that B. might have his choice ance of the enumerated quantity of whatever land A. might have in upon the vendee's selecting same, a specified county gave B. the right And see Carlyon v. Eade, 48 Iowa to demand and receive from A. a 707. list of A.'s lands from which to 61 Newman v. Perrill, 73 Ind. 153. make the selection. The contract in this case was to CONSTRUCTION OF LAND CONTRACTS. 179 SOU at a prior date, or wlntli be a( So held where the purchasers of land deposited with a stake- holder their checks for $5,000 in favor of the vendor's agent, the parties signing an agreement that the checks should be delivered to the payee in case a vote to be taken on that day in West Chicago should be in favor of what was known as the West Park bill; but, in case the majority of the votes should be cast against said bill, then the checks were to be delivered to the drawers. Merchants', etc. Co. v. Goodrich, 75 111. 554. 2« Tatum V. Kelley, 25 Ark. 209. 27 Sprague v. Rooney, 82 Mo. 493; but compare Sprague v. Rooney, 104 Mo. 349. No nation or state is bound to recognize or enforce contracts which are injurious to its interests, the welfare of its people, or which are in 18 fraud or violation of its own laws. Hill V. Spear, 50 N. H. 253; Gaylord v. Soragen, 32 Vt. 110; Feineman v. Sachs, 33 Kan. 621. Yet the mere knowledge of the unlawful intent of the vendee would not debar a vendor from the enforcement of his contract so long as he did not in any way aid the vendee in the violation of law. This has always been the recognized rule in regard to sales of chattels, and the principle is the same in fls application to real property. Wal- lace V. Lark, 12 S. C. 576; Tracy v. Talmage. 14 N. Y. 162; Henderson V. Waggoner, 2 Lea (Tenn.), 133; Rose V. Mitchell. 6 Colo. 102; Brunswick v. Valleau, 50 Iowa, 120; Michael v. Bacon, 49 Mo. 474. The vendor must do something in furtherance of the vendee's design to violate the law; but positive 194 VALIDITY OF LAND CONTRACTS. the contract itself.^^ But if a contract, part of which is repug- nant to law and aj^ainst public policy while the other part is not, can be divided, so much as is unexceptionable may be enforced ;25> yet a separation of the good consideration from that which is illegal will be attempted only in those cases in which the party seeking to enforce the contract is not the wrongdoer. Where both parties are in equal fault, no remedy can be had in a court of justice on an illegal transaction.^'' Where the contract is for the doing of two or more things which are entirely distinct, and one is repugnant to law while the others are legal, the illegality of the one stipulation will not ordinarily affect the other.-"^! § 147. Allotments by chance. It is not uncommon for a number of persons to contribute jointly to the purchase of property to be afterwards divided between them by some form of allotment depending upon chance. Now it is quite proper for persons to agree to purchase land to be afterwards divided and distributed among them in such manner as they may thereafter agree upon,^^ 13^^ jf such contract subse- quently becomes tainted by the vice of a lottery, then, notwith- standing its innocent inception, the entire agreement becomes invalid and uneuforceable,^^ while if the original agreement is for a purchase and distribution by drawings or chance allot- ments it is void from the beginning.^* § 148. Sunday contracts. Probably no proposition of law is more widely known or generally accepted than that contained acts in aid of the unlawful purpose, 29 Hanauer v. Gray, 25 Ark. 350; though slight, are sufficient. Fisher Clements v. Morston, 52 N. H. 31. V. Lord, 63 N. H. 514. »o Saratoga Bank v. King, 44 N. 28 Kattwitz V. Alexander, 34 Tex. Y. 87. 689; Chandler v. Johnson, 39 Ga. 3i Erie R'y Co. v. Express Co. 35 85; Saratoga Bank v. King, 44 N. N. J. L. 240. Y. 87; Clements v. Morston, 52 N. 32 Emshwiler v. Tyner, 21 Ind. H. 31; Fuller v. Reed, 38 Cal. 99. App. 347. As where A. agreed to sell B. for 33 Emshwiler v. Tyner, 21 Ind.. a gross sum a lot and building and App. 347; Rothrock v. Perkinson, a quantity of liquor. The sale of 61 Ind. 29. the liquor would have been illegal. 34 Branham v. Stallings, 21 Colo. Held, that the contract being indi- 211; Den v. Shotwell, 23 N. J. L. visible, a suit for a specific per- 470; and see Dunn v. People, 40 111. formance could not be based upon 465; Thacher v. Morris, 11 N. Y. it. Gerlach v. Skinner, 34 Kan. 86. 437. GENERALLY CONSIDERED. 195 in the oft-repeated statement, "a contract made on Sunday is void." It is one of the first lejjjal ruh's tauj^ht to the student, and from frequent and long-continued iteration lias become a fixed fact in the mind of every layman. A long series of judicial decisions give stability to the proposition,-''"' and it has generally come to be considered as an unassailable, unbend- ing and impregnable rule. And yet, a contract made upon Sunday is not void at common law,-^" for by that law Sunday differed from no other day except that it was dies non juridi- cns.^'' The doctrine that contracts made on Sunday are void depends, therefore, altogether on statutory enactments. Stat- utes relating to the observance of Sunday are in force in many of the states,^** yet these statutes vary both in language and substance; and the decisions of the various courts, even though presenting an apparent uniformity, have nevertheless been based mainly on the phraseology of their owm several statutes. The statutes in force in a majority of the states are based upon the English statute of 21) Car. II., ch. 257, which l)rohibited all "worldly labor, business or work on the Lord's day," excepting only work of charity and necessity. Where this statute has been re-enacted, either in terms or substan- 35 Header v. White, 66 Me. 90; sit on Sunday. The early Chris- Tucker V. West, 29 Ark. 386; Ryno tians down to as late as the sixth V. Darby, 20 N. J. Eq. 231; Finn v. century used all days alike for the Donahue, 35 Conn. 216; Pate v. hearing of causes, even Sunday it- Wright, 30 Ind. 476; Sayre v. self; but in the year 517 a canon Wheeler, 32 Iowa, 559; Holcomb v. was promulgated exempting Sun- Donley, 51 Vt. 428; Stevens v. days. Other canons were adopted Wood, 127 Mass. 123; Ellis v. Ham- in subsequent years, setting apart mond, 57 Ga. 179; Brimhall v. Van other days. These canons were all Campen, 8 Minn. 13. observed by the Saxon kings and 3« Horacek v. Keebler, 5 Neb. through confirmation by William 355; Richmond v. Moore, 107 111. the Conqueror and Henry II. be- 429; and see the English cases, came a part of the common law of Comyns v. Bayer, Cro. Eliz. 485; England. Not only was Sunday a Rex V. Brotherton, Strange, 702; nonjuridical day but the feast of King v. Whitnash, 7 B. & C. 596; the Ascension, of St. John the Bap- Drury v. Defontaine, 1 Taunt. 136. tist, the Purification of the B. V. In this case Lord Mansfield said: M., and All Saints and All Souls "It does not appear that the com- days as well. See Swann v. Broome, mon law ever considered those con- 3 Burrow (Eng. K. B.), 1595. tracts as void which were made on s"^ In a number of western states Sunday." there are not and never have been 37 Anciently, however, courts did any Sunday laws. 19G VALIDITY OF LAND CONTRACTS. tially, the rule first stated will probably apply, and a contract executed on that day will be incapable of enforcement. But where the statute does not seek to enforce the performance of a religious duty, but simply to preserve the peace and good order of society by the prohibition of labor on Sunday, a con- tract entered into on that day would possess the same validity as one made upon a secular day; for the making of a contract is not common labor,^^ nor is it in derogation of a statute which does not in terms prohibit business as well as labor ;4o and generally, under statutes of the character just mentioned, a contract made on Sunday in matters of business other than such as prohibited by statute will be valid.^i But although contracts made upon Sunday may be illegal in the sense that no action based upon such contracts can be maintained either to enforce their obligations or to secure their fruits, they are not altogether inoperative. After they have been executed by the parties the same principle of public policy which leads courts to refuse to act when called upon to enforce them will prevent the court from acting to relieve either party from the consequences of the transaction, the pur- pose, however, not being to validate the contract, but to deprive all the parties, they being in. pari delicto, of all rights either of enforcement or relief.^^ It is further a general rule of law that void contracts are not susceptible of ratification ; but it has been held in numer- ous instances that contracts not otherwise obnoxious, but void only because made or executed on Sunday, form an excep- tion to this general rule, and may be rendered valid and effec- 39 Bloom V. Richards, 2 Ohio St. pointed out by the statute itself. 387, in which it was held that. See Love v. Wells, 25 Ind. 503 ; AI- under a statute prohibiting labor, len v. Deming, 14 N. H. 133; Towle etc., entering into a contract for v. Larrabee, 26 Me. 464. the sale of land was not, in the 4o Richmond v. Moore, 107 111. sense of the statute, common labor. 429; Roberts v. Barnes, 127 Mo. To the same effect, Horacek v. 405. Keebler, 5 Neb. 355; Richmond v. -ii See Johnson v. Brown, 13 Kan. Moore, 107 111. 429; Sayles v. 529; Moore v. Murdock, 26 Cal. Smith, 12 "Wend. (N. Y.) 57. Some 514; Hellams v. Abercrombie, 15 S. courts construe the statute prohib- C. 110; Kaufman v. Ham, 30 Mo. iting "common labor" as an inhibi- 387. tion of every description of secular 42 Meyers v. Meinrath, 101 Mass. business not within the exceptions 336; Ellis v. Hammond, 57 Ga. 179. GENERALLY CONSIDERED. 197 tive by subsequent ratification.'''* Again, a deed takes effect only from tlie time of its delivery, and in many res])ects the same rule is aitplicable to contracts and agi-eements which precede conveyance. A deed may be dated, sif^ned and even acknowledged on Sunday; but if not delivered until a subse- (lucnt day il is valid, whatever may be the elTect upon the acknowledgment.^^ § 149. Agreements to convey by will. Ordinarily when a contract of sale is entered into the intention of the parties is that it shall be consummated by the delivery of a deed. But parties may stipulate for any kind of conveyance, and an almost unbroken line of precedents confirm the doctrine that Montgomery v. Edwards, 46 Vt. 89; Buckley v. Humason, 50 Minn. 151. 195; Holderman v. Pond. 45 Kan. Wheeler v. Frankenthal. 78 111. 410. 203 VALIDITY OF LAND CONTRACTS. with the statute of frauds, the whole is void.» And this rule seems to be without exceptions.^*^ § 156. Defense of the statute — By whom available. The defense of the statute of frauds is personal, and can only be relied on by the parties or their privies.^i Strangers to the transaction cannot impeach it by showing that it is void for statutory non-compliance,^^ and the parties may waive the defense at their pleasure.^'* § 157. What contracts must be in writing. The statute in general terms provides that no action shall be brought to charge any person upon any contract for the sale of lands, or any interest in or concerning them, unless such contract shall be evidenced by a writing; and this general statement has been the subject of much comment, fine drawn distinctions, and not a little inharmonious decision. The interest thus pro- vided for extends to cover every species of claim from the full legal title to the faintest equity ,i^ while the rule applies to all 9 As where R. orally agreed with F. to give him a certain portion of the purchase money, and also a certain parcel of land for his ser- vices in effecting the sale of R.'s land, but no memorandum was made of the promise; held, that the whole contract was void, and no action would lie either for the money or the land. Fuller v. Reed, 38 Cal. 99. And so where a verbal agreement was made for the trans- fer of a farm, and it was also agreed that the wheat growing on the farm shovild be transferred, held, the former agreement being void for want of a writing, the lat- ter being connected with it, was also void, though otherwise it might not have been. Jackson v. Evans, 44 Mich. 510; Clark v. Davidson, 53 Wis. 317; Becker v. Mason, 30 Kan. 697. 10 Meyers v. Schemp, 67 111. 469. 11 Chicago Dock Co. v. Kinzie, 49 111. 289. 12 Richards v. Cunningham, 10 Neb. 417; Davis v. Inscoe, 84 N. C. 396. 13 Montgomery v. Edwards, 46 Vt. 151. 1* Holmes V. Holmes, 86 N. C. 205; Lillie v. Dunbar, 62 Wis. 198; Richards v. Richards, 9 Gray, (Mass.), 313. The sale of an equity of redemption is within the stat- ute. Scott V. McFarland, 13 Mass. 309 — an agreement for the release of dower by widow; Shotwell v. Sedam, 3 Ohio, 5; Gordon v. Gor- don, 56 N. H. 170; Wright v. De Groff, 14 Mich. 164 — an agreement to transfer a mining claim; Cop- per Hill Mining Co. v. Spencer, 25 Cal. 18 — an agreement for the as- signment of an executory land con- tract; Smith V. Burnham, 3 Sumn. (C. Ct.) 435 — an agreement for the transfer of a lease; Kingsley v. Siebrecht, 92 Me. 23. AS AFFECTED BY STATUTE OF FRAUDS. ;i03 parties who assuinc lo act, whether on their own behalf or on behalf of another.'-''' An interest in continj^cnt profits arising from a sale of real estate to be made thereafter does not amount to an interest in the land itself within the meanin<^ of the statute ;i*' and the same is true {jjenerally of aj^reemenls for the payment of money based upon the future sales or purchases of property.'^ lint even contracts for the payment of money only may and often do involve, directly or indirectly, some estate or interest in land; and when such is the case, such promises must be ev' denced by writing;, notwithstanding that they do not prof. . to be for the sale or conveyance of land.^** § 158. Incorporeal hereditaments. An easement, license or privilege may be, and often is, such an interest in land as is contemj)lated by the statute; and, unless the grant of same is 15 A contract to procure the con- veyance of an equity held by a third person is within the statute of frauds as a contract for the sale of an interest in lands, and is void if not in writing. Rawdon v. Dodge, 40 Mich. 697. An agree- ment with a debtor to purchase his land at execution sale, and then convey it to him, is within the statute. Harrison v. Bailey, 14 S. C. 334. And see Rucker v. Steele- man, 73 Ind. 396; Bauman v. Holz- hausen, 26 Hun (N. Y.), 505. A parol agreement to accept a con- veyance In trust, and to reconvey to the cestui, is within the statute, and cannot be shown by parol. Mc- Ciain V. McClain, 57 Iowa, 167. So also of an oral contract under which one is to buy land at a public auction on joint account of himself and others. Parsons v. Phelan, 134 Mass. 109. So of an agreement to procure a relinquish- ment of a wife's dower. Martin y. Wharton, 38 Ala. 637. 16 Benjamin v. Zell, 100 Pa. St. 33; Babcock v. Reed, 50 N. Y. Sup. Ct. 126. 17 As where A. promised to pay B. $100 if the latter would buy C.'s land, which B. thereupon bought, it was held, in a suit to re cover the $100, that the contract was not within the statute of frauds, either as relating to land or as a promise to pay the debt of another. Little v. McCarter, 89 N. C. 233. A parol agreement to buy a mortgage on A.'s land, sell the premises for his benefit and ac- count for the balance over dis- bursements is not within the stat- ute. McGinnis v. Cook, 57 Vt. 36. And see Mahagan v. Mead, 63 N. H. 130. i« Thus, a promise to pay a sum of money as a compensation to the plaintiff for the injury done him by the misconduct of the defendant in obtaining a patent in his own name for land which he ought to have patented in the name of the plaintiff, and in preventing the plaintiff from obtaining a patent in his own name, and in consider- ation of the defendant's having procured the patent to be issued to himself, is a contract for the 204 VALIDITY OF LAND CONTRACTS. evidenced by u writing in conformity to tlie statute, it will be unavailing to establish any legal right in the licensee. It is true that a license, in the usual and ordinary acceptation of the tenn, is simply an authority given to do some one act or series of acts on the land of another without passing any estate in such land; but licenses may sometimes practically amount to the granting of an estate, and when such is the case they are regarded in the light of leases, which, to be effectual, must be by deed.i'-^ The distinction will readily be seen. Licenses to do a particular act do not in any degree trench upon the policy of the law, which requires that bargains respecting the title of or interest in real estate shall be by deed or in writing. They amount to nothing more than an excuse for the act, which would otherwise be a trespass; but a permanent right to hold another's land for a particular purpose, with a right to enter upon it at all times, or where any interest greater than a mere temporary occupation is created, while it does not extend to the land itself, it is nevertheless a right annexed to such land, which can only pass by grant. No such interest can be assigned or granted without writing, according to the express provisions of the statute of frauds,^^ and contracts for the sale or future creation of such rights are subject to the same con- dition. § 159. License to flood lands. The right to flood the land of another, whether from the dripping from the roof of a building, the diversion of a water-course, or otherwise, is an interest in land; and a parol license or agreement giving such riffht is within the statute of frauds and void. Such a license sale of land within the statute of (N. Y.) 380. Thus, the conferring frauds, and must be in writing, of a right to enter upon lands and Hughes V. Moore, 7 Cranch (U. S.), to ere(!t and maintain a dam as 176. In this case the learned long as there shall be employment judges construed the contract to for the water-power thus created import a sale of land by the plain- is more than a simple license. It tiff, and that the sum of money is the transfer of an interest in stipulated to be paid was, in con- lands, and to be valid must be in templation of the parties, to ex- writing. Id. tinguish the title of the said plain- . 20 Thompson v. Gregory, 4 Johns, tiff. (N. Y.) 81; Mumford v. Whitney, 10 Cook V. Stearns, 11 Mass. 536; 15 Wend. (N. Y.) 380. Mumford v. Whitney, 15 Wend. AS AFFECTED BY STATUTE OF FRAUDS. 205 is revocable at any time.^i Tlie interest created by sucli a license is a freehold interest by way of easement in the laud flowed, whitli can i)ass only by deed.-^ § 160. License for right of way. A verbal license for a riglu of way over lands is obnoxious to the statute and revocable at any time.-^ § 161. The produce of land. Owinp: to the conflict in the adjudj'ed cases in regard to the interpretation of contracts for the sale of crops and the natural produce growing upon land, it is difTicult to deduce therefrom any clearly-defined rule upon the subject. A marked distinction has always been made between contracts for the natural product of land, technically tenned prima vestum, as trees, grass or other spontaneous growth, and such as relate only to crops raised by the industry of man by planting and cultivation, called fructus industriales. A further distinction is also made between the natural product when severed by the vendor or purchaser. As a genenil prop- osition, all of the produce of the earth, whether of spontaneous growth, as trees, grass, etc., or crops raised periodically and by cultivation, as grain, vegetables, etc., are part of the soil before severance; and for this reason it has been held that agreements vesting an interest in them in the purchaser before severance must, to be effective, be expressed in writing.^* But in this respect the authorities are not harmonious. It has been contended, and with mucli ai)i)arent reason, that there is noth- ing in the products of the earth wliich is an interest in or con- cerning land when severed from the soil. If, therefore, such products are sold sjx'cifically, and by tlie tenns of the contract are to be separately delivered as chattels, such sale cannot be held to be an interest in land, and would not be affected by the terms of the statute.-^ The circumstance that the ])roduce may or probably' or certainly will derive nourislunent from the soil between the time of the contract and the time of delivery is not conclusive as to the operation of the statute; and the test seems to be that if the contract, when executed, 21 Tanner v. Valentine, 75 111.624. 24 Kerr v. Hill, 27 W. Va. 576. 22 Miimford V. Whitney, 15 Wend. 2r. gee Purner v. Piercy, 40 Md. (N. Y.) 380. 212; Graff v. Fitch, 58 111. 377; 23 Forbes v. Balenseifer, 74 111. Marshall v. Ferguson, 23 Cal. 69. 183. 20G VALIDITY OF LAND CONTRACTS. is to convey to the purchaser a mere chattel, though it may be in the interim a part of the realty, it is not affected by the statute; but, if the contract is, in the interim, to confer upon the purchaser an exclusive right to the land for a time, for the purpose of making a profit of the growing surface, it is affected by the statute and must be in writing, although the purchaser is at last to take from the land only a chattel. § 162. Standing trees. Upon this subject there is a very decided conllict of authority. A large number of apparently well-considered decisions hold that a contract for the sale of trees growing upon land is within the statute of frauds, as comprehending a sale of land, "or some interest therein ;"26 and hence, to be operative or enforceable, must be in writing.^^ Under these decisions standing trees are regarded as a part of the land in which they are rooted, and from which they draw their support, and that being thus impressed with the character of real property they fall strictly within the letter as well as the spirit of the statute.^s On the other hand, there are not wanting authorities which sustain the doctrine that where timber or produce of land, or other thing annexed to the freehold, is sold specifically, whether it is to be taken by the vendee under a special license to enter for that purpose, or whether it is to be severed from the soil by the vendor, in the contemplation of the parties it is still substantially a sale of chattels only.^s It cannot be doubted that, in every sale of this description, such is the intention of the parties; and the 26 The term "land" embraces not 232; Westbrook v. Eager, 16 N. J. only the soil but its natural prod- L. 81; Cool v. Lumber Co. 87 Ind. uce growing upon it and affixed 531; Daniels v. Bailey, 43 Wis. to it, all of which pass by a grant 566; Williams v. Flood, 63 Mich, of it. Harrell v. Miller, 35 Miss. 487. 700; Kingsley v. Holbrook, 45 N. H. 28 Kingsley v. Holbrook, 45 N. H. 313. 313; Buck v. Pickwell, 27 Vt. 157; 27 Owens V. Lewis, 46 Ind. 488; Yeakle v. Jacob, 33 Pa. St. 376; Russell V. Meyers, 32 Mich. 522; Hirth v. Graham, 50 Ohio St. 57; Kingsley v. Holbrook, 45 N. H. Lillie v. Dunbar, 62 Wis. 198. 313; Buck V. Pickwell, 27 Vt. 164; 29 Smith v. Bryan, 5 Md. 141; Harrell v. Miller, 35 Miss. 700; Cain v. McGuire, 13 B. Mon. (Ky.) Jenkins v. Lykes, 19 Fla. 148; Slo- 340; Cutter v. Pope, 13 Me. 377; cum V. Seymour, 36 N. J. L. 139; Killmore v. Hewlett, 48 N. H. 569; Killmore v. Howlett, 48 N. Y. 569; Carpenter v. Medford, 99 N. C. 495; Yeakle v. Jacob, 33 Pa. St. 376; Fish v. Capwell, 18 R. I. 667; Green Knox V. Haralson, 2 Tenn. Ch. v. R. R. Co. 73 N. C. 524. In this AS AFFECTED BY STATUTE OF FRAUDS. 207 onlv (jiicslidii tiiat arises is, wlicllicr hy the principles of law sucli inti'iilion can be efrectuatcd. Tlic (incstidu has assuiiu'd iiiaiiy phases and has received nianv dill'ei-eiit interpretations. Thus, it has been held that a sale of slandiii;,' limber, in writing, by the owner of the fee in the land, has the ellect in law to sever the trees from the land, and that they then become i>ersonal chattels without any actual severance; that, after such constructive or lej^al sever- ance by the orij^inal sale, they may be conveyed like any other personal i)roperty by parol;'**' and that, when such conveyance by the owner of the fee does not limit the time for the entry of the grantee upon the land to cut and remove the trees, a rij^ht of entry i)asses for an indetinite but reasonable time. Here, therefore, there would seem to be a recognition of the princij)le that growing trees may be the subject of an ownership distinct from the ownership of the soil, and that, under the circum- stances stated, the}^ are no longer deemed as annexed to the realty, but as entirely abstracted or divided therefrom, and, hence, may be treated the same as other personal chattels which are the annual produce of labor and of the cultivation of the earth.^i While the timber remains standing it is certainly an integral part of the realty, and until severed, either actually or constructively, remains the jjroperty of the owner of the soil; but, it is contended, it is doing no violence to establisht^l legal i)rinciples to construe such contracts as passing an inter- est in the trees when severed from the freehold ;^2 while it is well settled that a license to enter on the land of another and do a ])articular act or series of acts may be valid, although not granted by deed or in writing.^^ If such a license be not revoked before the trees are severed the title in the property will become absolute in the vendee, and the license, being case the wood had been cut and as executory contracts for the sale carried away, and the action was of chattels as they shall be there- brought for the price. after severed from the real estate, 3" See Carpenter v. Medford, 99 with a license to enter on the land N. C. 495. for the purpose of removal. Poor ■ii See Warren v. Leland, 2 Barb. v. Oakman, 104 Mass. 316; Jenkins (N. Y.) 613; Cudworth v. Scott, 41 v. Sykes, 19 Fla. 148; Yale v. See- N. H. 456. ley. 15 Vt. 221. 32 White V. Foster, 102 Mass. 378. ^^ Hill v. Cutting, 107 Mass. 597; Such agreements may be regarded Sterling v. Baldwin, 42 Vt 306. 208 VALIDITY OF LAND CONTRACTS. coupled with an interest, will then be irrevocable, giving to the vendee a jierfect right to enter and remove the trees thus severed; but if, before the trees are severed, the vendor should revoke such license, no title under this line of decisions would pass to the vendee and no rights would vest by virtue of such contract.-^^ It will be seen, therefore, in this view of the case, that, notwithstanding a parol sale of timber may be void as a sale of an interest in land, it may nevertheless still be permit- ted to operate as a license to enter, cut and carry away the trees; and, if executed by cutting, the timber will be converted into personalty and the title thereto will vest in the person acting under the license, he having complied with all the con- ditions under which the same was granted.^^ The cases w^hich unqualifiedly hold that a sale of growing trees is a sale of chattels only are very few,^^ and are mainly based upon the fact that such sales were made in prospect of immediate separation from the land — the idea being that the trees sold would, on account of their immediate removal, derive no benefit from the soil. The general rule, however, and the one which seems to be sustained by the volume of authority, is as first stated; that is, that a sale of growing or standing timber is a contract con- cerning an interest in land, and, hence, within the inhibition of the statute, and it may be said further, that this rule is sus- tained by all the analogies of law. As between debtor and creditor the rule is well established that trees are a part of the realty, and may not be reached by execution against chat- tels; so in the case of an heir, they descend with the land; so as to a vendee, they pass with a sale of the land without special mention. And it may further be said, that, in a mat- ter of this kind, a sale does not depend upon the intention of the parties, but upon the legal character of the subject of the contract. It is also well settled that standing timber is an interest in lands that may be acquired by deed, and the fact 34 Owens V. Lewis, 46 Ind. 488; v. McCauley, 53 Pa. St. 210; Howe Poor V. Oakman, 104 Mass. 316; v. Batchelder, 49 N. H. 204. Delaney v. Root, 99 Mass. 546. se See Byasse v. Reese, 4 Met. 35 Jenkins v. Lykes, 19 Fla. 148; (Ky.) 372; Erskine v. Plummer, 7 Pratt V. Ogden, 34 N. Y. 23; Yale Me. 447; Purner v. Piercy, 40 Md. V. Seeley, 15 Vt. 221; Poor v. Oak- 212. man, 104 Mass. 316. And see HufC AS AFFECTED BY STATUTE OF FRAUDS. 209 that siiiiic iiiusl hv removed within a definite i>eriod does not prevent the vesting of title.^'^ i5 163. Growing crops. That j^rowinj!^ ero])H are a part of the freehokl and pass witli the laud ujjon whicli they stand is a proposition settled bevond dispute;-*** and the rule as stated b\' the earlier writers is that in contracts for the sale of thinj^s annexed to and ^rowinj; upon the freehold, if the vendee is to have the right to the soil for a time for the puii)oses of further growth and profit of that which is the subject of siile, it is an interest in land within the meaning of the statute of fi-auds, and must be proved by writing; but when the thing is sold in prospect of separation from the soil, immediatel}' or within a convenient and reasonable time, without any stipulation for the beneficial use of the soil, and with but a mere license to enter and take away, it is to be regarded substantially as a sale of goods, and so not within the statute; although an inci- dental benefit may be derived to the vendee from the circum- stance that the thing may remain for a time upon the land.3'-> Later decisions have not been in strict accord with this old rule; and while in some states it is substantially recognized and adopted, in others it has been expressly denied. In view of the American authorities on this subject no Siitisfactory rule can be framed that shall have a general application; but the test, in most cases, will depend upon the terms of sale with reference to the right of the purchaser to use the land, either for the purpose of further cultivation or possible' for the harvesting of the crop.^^ The tendency of the authorities, however, is to regard all contracts for the sale of natural pro- duce, in place, as a sale of an interest in land;^^ while culti- vated crops, or such as come within the meaning of the term 37 Johnson V. Moore, 28 Mich. 3 ; Met. (Mass.) 313; Giles v. Sim- Mae V. Benedict, 98 Mich. 260; monds, 15 Gray (Mass.), 441; Poor Magnetic Ore Co. v. Lumber Co., v. Oakman, 104 Mass. 309. 104 Ala. 465. 4i Thus, wild grass growing on 38 Kerr v. Hill, 27 W. Va. 576. unoccupied, uncultivated, land is 30 Burner v. Piercy, 40 Md. 212; part of the realty, and an attempt Graff V. Fitch, 58 111. 377. to transfer it by a parol grant is ■•0 Consult Sterling v. Baldwin, 42 void. Powers v. Clarkson, 17 Kan. Vt. 306; Whitmarsh v. Walker, 1 218. 14 210 VALIDITY OF LAND CONTRACTS. fnictus industriales, as sales of goods only — the former to be evidenced by a writint::, wliilo the latter may rest in parol.^^ § 164. Ruined walls and buildings. Complete or unfinished structures of any kind, where llu' annexation is of a perma- nent character, are properly considered as forming part of the realty so long as the materials of'%vhich they are composed remain in place. That the original building has been destroyed by fire or other casualty does not alter the rule or afford room for a different construction. The materials of which a building is composed will, so far as they may become severed by fire, become personalty, and may properly be the subject of a valid contract by parol; yet where walls remain standing, even though dilapidated and in ruins, they do not lose their essential character as realty, and contracts relating to them are for interests in land, which, under the statute, must be in writing. Hence, a contract for the sale of the debris and refuse left by a fire, while valid if relating only to the fallen and detached portions, would be incapable of enforcement as to the standing walls unless in writing; and although part of the subject-matter might have been person- alty, yet, if the contract embraced realty as well, it must be regarded as entire and governed by the statute of frauds.*^ § 165. Buildings to be removed. The sale of a building with the right of removal is not necessarily a sale of an inter- est in lands within the meaning of the statute of frauds; and if the effect of the contract of the parties is to impress upon the structure the character of personalty, it will ordinarily 42 Sterling v. Baldwin, 42 Vt. ute of frauds. Whitmarsh v. 306; Howe v. Batchelder, 49 N. H. Walker, 1 Met. (Mass.) 313. 204; Slocum v. Seymour, 36 N. J. ^^ Thayer v. Rock, 13 Wend. (N. L. 138; Owens v. Lewis, 46 Ind. Y.) 53. Where a building was 488. An oral agreement for the burned, and the owner afterwards sale of mulberry trees growing in verbally sold the bricks, some of a nursery, and raised to be sold which had been severed by the fire, and transplanted, to be delivered but the greater part remaining in on the ground where they are the walls, it was held that the growing, upon payment therefor brick in the walls was realty, and being made, is not a contract for the sale being an entirety was the sale of an interest in or con- within the statute of frauds. Mey- cerning lands, etc., within the stat- ers v. Schemp, 67 III. 469. AS AFFECTED BY STATUTE OF FRAUDS. 211 be permitted to take that character.''* If the structure is sold to remain on the land, unless of a very sliecifically locate the lands, but refers to them in general terms, as where the agreement is for the sale of a house in which the vendor resides, parol evidence may be given to locate such house. Therefore, where upon a view of the writings it ajipears that both parties referred to the same property, it would seem the requirement of the statute is fulfilled, and parol evidence may be resorted to for the ])uri)ose of designating what particular land both parties had reference to.**** In other words, if the writing itself discloses the essential fact that the minds of the parties met with resi)ect to a certain property; that one agreed to sell and the other to purchase same, then parol evidence of existing facts and circumstances is admissible for the purpose of specific designation. so McAnnulty v. McAnnulty, 120 245; Kennedy v. Gramling, 33 S. 111. 26. C. 367. 87 Preble v. Abrahams, 88 Cal. es Kennedy v. Gramling, 33 S. C. 367. CHAPTER VI. THE RELATION OF THE PARTIES. 174. Generally considered. §189. 175. Option of purchase. 190, 176. When equitable title vests. 191, 177. Death of one of contracting parties. 192. 178. Subsequent insolvency of the parties. 193, 179; Payment of taxes. 180. Interest — Rents and profits. 194, 181. The risk of loss. 182. Duty of repairing build- ings. 195. 183. Right of possession. 184. Delivery of possession. 196, 185. Rights of vendee in posses- sion. 197, 186. Vendee's assertion of hos- tile title. 198, 187. Vendee's possession not ad- verse. 199, 188. Vendee may attorn to stranger. Judgments against vendor. Judgments against vendee. Vendor's possession after sale. Vendor's possession after conveyance. Destruction of property — Proceeds of insurance. Continued — Rights of op- tion holder. Continued — Effect of pro- viso respecting insurer's interest. Effect upon insurance of proviso against sales. Continued — Assignment of policy. Effect of condemnation pro- ceedings. Effect of mechanics' liens. § 174. Generally considered. There is a marked difference with respect to the relative rights and liabilities of the parties in the case of an ordinary executory contract at law and in equity. At law the contract receives only the interpretation expressed upon its face, and confers upon the parties mere rights of action; the estate remains the property of the ven- dor, and the unpaid purchase money that of the vendee.^ But in equity the positions are reversed: the estate, from the mak- ing of the contract, is regarded as the property of the vendee, attended by most, if not all, of the incidents of ownership, while the purchase money is considered as belonging to the vendor.2 This result is accomplished by the application of 1 Lombard v. Sinai Congregation, J. Eq. 599; Kerr v. Day, 14 Pa. St. 64 111. 477. 112; Dorsey v. Hall, 7 Neb. 464; 2 Lombard V. Sinai Congregation, Pease v. Kelly, 3 Oreg. 417; Baum 64 111. 477; King v. Ruckman, 21 N. v. Grigsby, 21 Cal. 175. 218 THE RELATION OF THE PARTIES. 219 the familial' piinciiilc that (-(jiiit^' hjol^s iijKtii iliiii^s aj^rccd to be done as actually performed; and hence a contract for the sale of land is, for most purposes, regarded in ecjuity as if already specifically executed."' This doctrine, thouj^h but a legal fiction by which to work out cei-tain ends or secure the attainment of a more complete administration of justice, has raised, as a corollary of its application, the further doctrine that the vendee is to be considered as trustee of the jjurchase mone}' for the vendor, and the vendor in turn is regarded as the trustee of the land for the vendee;^ and this trust binds and adheres to the land until it passes into the hands of a bona fide- purchaser for a valuable consideration without notice.^ The relation, therefore, is analogous to that of eipiit- able mortgagor and mortgagee, the vendor holding the legal title as security for the unpaid purchase money, which secur- ity, it has been held, is essentially a mortgage interest. The vendee has an equity of redemption, and the vendor a correla- tive right of foreclosure upon default in the pajinents.*' But in this, as in all similar cases, the mortgage is the incident, the debt the principal, and the vendor has no further interest except to the extent of the security the mortgage affords for his debt.''' Subject to these rights of the vendor, the vendee has absolute control of the property, and may dispose of it or incumber it in exactly the same manner as land to which he has the legal title.^ ^ King V. Ruckman, 21 N. J. Eq. Lewis v. Hawkins, 23 Wall. (U. 599; Kerr v. Day, 14 Pa. St. 112. S.) 125; Burch v. Carter, 44 Ala. 4 Craig V. Leslie, 3 Wheat. (U. 116. S.) 578; Maddox v. Rowe, 23 Ga, o Church v. Smith, 39 Wis. 492; 431; Lombard v. Sinai Congrega- King v. Ruckman, 21 N. J. Eq. 599; tion, 64 111. 477. It is upon the Baldwin v. Pool, 74 111. 97; Fitz- principle of the transmission, by hugh v. Maxwell, 34 Mich. 138; the contract, of an actual equitable Dew v. Dellinger, 75 N. C. 300; estate, and the impressing of a Reed v. Lukens, 44 Pa. 200; Gary trust upon the legal estate for the v. Whitney, 48 Me. 516; Miller v. benefit of the vendee, that the doc- Corey, 15 Iowa, 166; Boon v. trine of the specific performance Chiles, 10 Pet. (U. S.) 177; Con- of contracts for the sale and con- ner v. Banks, 18 Ala. 42. veyance of land mainly depends. t Strickland v. Kirk, 51 Miss. Worrall v. Munn, 3S N. Y. 139; 795. Brewer V. Herbert, 30 Md. 301. •< Baldwin v. Pool. 74 111. 97; GWimbish v. Loan Ass'n, 69 Ala. Smith v. Price, 42 111. 399; Ricker 575; Baum v. Grigsby, 21 Gal. 175; v. Moore, 77 Me. 295. 220 THE RELATION OF THE PARTIES. But while the vendee may sell and dispose of the land, sub- ject to the rights of the vendor, and otherwise assert acts of absolute ownership and domiinion, he has no authority to remove annexations of a jjermanent character, whether made prior or subsequent to the contract,^ or to impair the security it affords by waste; for as long as any part of the purchase money remains unpaid, the land with its accretions of every character remains pledged for the satisfaction of the vendor's lien, and until the whole of the purchase money has been paid the vendor is not a mere naked trustee, but holds and retains an interest in the land.^^ § 175. Option of purchase. Tbe remarks of the foregoing paragraphs have reference, however, only to bilateral con- tracts; for an agreement whereby the owner of land merely gives to a prospective vendee the right, option or refusal to purchase at any time in the future, confers upon the party having such option no interest, either legal or equitable, in the land. It is not a contract of sale within any definition of the term, and at best but gives to the option-holder a right to purchase upon the terms and conditions, if any, specified in the agreement or proposal. The right, to be made available, must be exercised at or within the time specified in the agree- ment,^^ or within a reasonable time if the option is not lim- ited,^ 2 aji(j the conditions precedent, if any are annexed, must be faithfully and punctually observed.^^ ^ partial perform- ance of some of the stipulations which it is intended shall form a portion of the future contract of sale, while they may indicate an intention to make the purchase, does not confer any additional rights upon the prospective purchaser w^here the conditions upon which the option and right of purchase depends have not been complied with; and the non-com- pliance with such conditions is a sufficient ground for a denial of any claim of right in the land under the agreement.^^ But where the owner of lands gives to another an option of purchase, and imposes certain conditions upon the party to Smith V. Moore, 26 HI. 392; but 12 Larmon v. Jordan, 56 111. 204. see Raymond v. White, 7 Cow. (N. I'f Bostwick v. Hess, 80 111. 138; Y.) 319. Longfellow v. Moore, 102 IlL 289; loSwepson v. Rouse, 65 N. C. 34. Sutherland v. Parkins, 75 111. 338; 11 Martin v. Morgan, 87 Cal. 203; Gusti-n v. School Dist. 94 Mich. 502. Harding v. Gibbs, 125 III. 85. i* Bostwick v. Hess, 80 111. 138. THE RELATION OF THE PARTIES. 231 whom tbe option is given, wliicli liave been hy him duly observed and performed, a different relation is created.^ ^ The ])erformanc'e of the conditions aniounls (o an acceptance, and creates a mutuality and a consideration for the agreenu-nt to convey. The party to whom the oiler was made having actually done, upon the promise of the owner, what he required to have done, it is then too late for the owner to recede; and it is immaterial, in such event, that the acts were X)erformed without any previous undertaking on the part of the vendee.^ ^ The legal effect of an option is that of a continuing offer to sell, which is capable of being converted into a valid contract by a tender of the purchase money or performance of pre- scribed conditions, within the time stated and before the offer is withdrawn. If not based upon a consideration the offer may be withdrawn at any time before acceptance;!^ if given for a consideration it is so far a contract as to vest an inde- feasible right to exercise the privilege granted within the time limited.!^ It will further be observed that a mere offer to sell, unless otherwise expressly provided, is personal in its nature and confined to the option-holder; and hence, if the one possessing such privilege fails to exercise it during the period limited for acceptance, or dies within such period without accepting, he has no estate in the land which can descend to his heirs, nor will they have any right to accept the proposal within the time allowed their ancestor.^" Nor does an option create a transmissible right of property in the holder thereof while living or confer any substantial interest in the land which may be sold or conveyed to another.^o There are a few cases which seem to militate against this position, but they do not represent the generally received doctrines in regard to same.-^ § 176. When equitable title vests. The oft-asserted propo- sition that, from the time of the contract for the sale of land. If' As where the vendee is to im- lo Sutherland v. Parkins, 75 111. prove the tract, pay taxes, etc. 338; Newton v. Newton, 11 R. I. 10 Perkins v. Hadsell, 50 111. 216. 390. IT Gordon v. Darnell, 5 Colo. 20 Bras v. Sheffield, 49 Kan. 702. 304; Bradford v. Foster, 87 Tenn. 21 See Kerr v. Day, 14 Pa. St. 8; Larmon v. Jordan, 56 111. 204. 112; Peoples Ry. Co. v. Spencer, 18 See § 125 ante. 156 Pa. St. 85. 222 THE RELATION OF THE PARTIES. the vendor as to the land becomes a trustee for the purchaser, and the latter as to the purchase-money becomes a trustee for the vendor, who has a lien upon the land therefor, while fully expressuig the rule of equity in its j^eneral application, is nevertheless subject to some qualification under special cir- cumstances, and is not of such potency as to establish an equit- able title in the purchaser in opposition to expressed intent or clear legal implication. The essential feature of an equitable title is that it is one which appeals to equity for confirmation and enforcement. Hence, a mere contract or covenant to convey at a future time, on the purchaser performing certain acts, does not create an equitable title. It is only when the purchaser performs or tenders performance of all the acts necessary to entitle him to a deed that he has an equitable title and may compel a conveyance. Prior thereto he has, at best, only a contract for the land when he shall have per- formed his part of the agreement.22 § 177. Death of one of contracting parties. In framing agreements for the purchase of land it is an almost universal custom for the parties to contract as well for their heirs and personal representatives as for themselves; and even though this formality be omitted from the memorandum, the result will be the same; for the law presumes that the contingency of death was present in their minds, and that they intended to bind not only themselves, but those into whose hands the property might fall in the event of death prior to execution. Indeed, the executor or administrator, for all practical pur- poses, is the decedent himself and is liable in general to the extent of the assets which may come to his hands upon all contracts of the deceased remaining undischarged at his death.23 To the general proposition as last stated there is but one well-established exception, and this arises only when the per- formance of the contract is personal in its nature. Just what constitutes this exception the authorities do not inform us with any degree of certainty or particularity; but the illustra- 22ChappeIl v. McKnight, 108 111. Green v. Rugley, 23 Tex. 539; Bil- 570. lings' Appeal, 106 Pa. St. 558; Fow- 23Phalman v. King, 49 111. 266; ler v. Kelly, 3 W. Va. 71; Bell v. Brown v. Leavitt, 26 N. H. 493; Hewitt, 24 Ind. 280; Hiatt v. Will- THE RELATION OF THE PARTIES. 223 tions ordinarily put of jx'r.sonal contractH on wliicli no liability attaclu'S to the l('}j;al rcprcscntalivcs, unless a Ijrcacli occurred in the lifetime of the deceased, indicate those only which require individual skill or knowledge, or services which the contractor alone can perform."-* So far as the oblij^alion is to convey real estate, of course these would not apply; yet in cases of bilateral contracts they niij^ht i>lay an important part, the inability of perfonnance on one side excusinj^ or pre- venting performance on the other. The mere fact of jteisoiial service is not the controlling test, however, and if the i-ontcmplated services are of such a nature that they may be lu'rfonned by others, the reason of the rub- does not apply and the contract will survive;-'' yet the whole (piestion in every case, from the dilhculties which surround its solution, must necessarily depend upon attendant circum- stances and the manifest intention of the parties.^^ The vendor, being regarded simply as a trustee having an interest in the proceeds, but not in the land, this interest would pass u])on his death to his personal representatives, and not to his heirs; and, while the heirs would take the legal title by descent, yet they would hold such title only as it was vested in the ancestor, which was only as a mere securit}^ for a debt. The debt, it is true, would be payable to the executor or administrator of the vendor; but as the land is considered to be held by the heirs in trust, and simply as a pledge or security for its payment, on the payment of the debt the heirs would be compelled in equity to execute the trust by a con- veyance of the title, while the X)urchase money would go to the personal representatives.-" The theory upon which this proceeds is, that a valid contract works an equitable conver- sion of land into personalty from the time it is made, and hence the purchase money becomes a part of the vendor's iams, 72 Mo. 214 ; Stephens v. Rey- =6 Billings' Appeal, 106 Pa. St. nolds, 6 N. Y. 458; Wright v. Tins- 558. ley. 30 Miss. 389. 27 Johnson v. Corbett, 11 Paige -•4 Janin v. Browne, 59 Cal. 44; (N. Y.), 265; Moore v. Burrows, 34 Billings' Appeal, 106 Pa. St. 558. Barb. (N. Y.) 173; Craig v. Leslie, ^■''' Hawkins V. Ball's Adni'r. 18 B. 3 Wheat. (U. S.) 563; Miller v. Mon. (Ky.) 816; Janin v. Browne, Miller. 25 N. J. Eq. 354. A vendor 59 Cal. 44. may devise land contracted to be 224 THE RELATION OF THE PARTIES. estate, and is distributable upon his death among his legatees or next of kin.-^ The equity which is vested in the vendee is a proper subject of devise by him, and will descend to his heirs the same as realty. The same rights which were possessed by their ances- tor will devolve on them, and they may have an enforcement of the contract in their own favor. Hence, where there is a contract for the purchase of land, inasmuch as it descends in equity to the heirs of the vendee as real estate, they may call on the executors or administrators to discharge the con- tract out of the personal estate so as to enable them to demand a conveyance from the vendor.^^ § 178. Subsequent insolvency of the parties. If after the contract has been entered into either vendor or vendee should become bankrupt, the contract will not, for that reason, be discharged or otherwise materially affected. An adjudication In bankruptcy, as well as an assignment for creditors, has the effect of an absolute conveyance by which all the estate of the bankrupt is vested in the assignee; but the title in the hands of the assignee is relieved of none of its burdens.^*^ It is no better than that held by the bankrupt, and if sold by such assignee the purchaser takes it charged with all the equities to which it was originally subject.^i The theory is that an assignee does not take title as an innocent purchaser without notice, free from latent equities, etc., but as a mere volunteer standing in the shoes of the bankrupt, as respects the title, and having no greater rights in that regard than the bankrupt himself could assert.^^ ^s between the assignee and a vendee of the bankrupt the rights of such vendee will remain intact, notwithstanding he may have neglected to place upon record the evidence of his claim; as between him and a purchaser from the assignee his rights will still be preserved if he has taken the precaution to impart notice by any of the methods which the law directs, upon the principle that every subse- sold to another person, but the dev- -f> Champion v. Brown, 6 Johns, isee will take the title charged Ch. (N. Y.) 398. with a trust for the benefit of the so Williams v. Winsor, 12 R. I. 9. contract vendee. McCarty v. Mey- ai Walker v. Miller, 11 Ala. 1076; ers, 5 Hun (N. Y.), 83. Stow v. Yarwood. 20 111. 497; Har- 28 Miller v. Miller, 25 N. J. Eq. din v. Osborne, 94 111. 571. 365. 32 Hardin v. Osborne, 94 111. 571. THE RELATION OF THE PARTIES. 225 qucnt purchaser from the vendor, with notice, becomes subject to the same equities as the party from whom he purchased; but if the hind is conveyed to an innocent i)urchaser without notice, who places his deed upon record before that of the prior purchaser, such prior purchaser could not set up or show an unrecorded deed or agreement to defeat the title of the assij^uee's j^rantee.-"*^ § 179. Payment of taxes. The payment of taxes is a legal duty devohing ujion each and evei-y person legally or etpii- tably interested in the land charged by the tax. Primarily the duty of paying the same rests upon the person who holds the legal title, and in the assessment and levy of the tax such person is usually designated by name. In this case the duty is a direct legal obligation, enforceable, if necessary, in an action of debt; and the obligation is ecpially binding upon a vendee who has stipulated or agreed to pay the same.*^^ A vendee, prior to convej'ance, who has not so agreed, will not be directly responsible for such tax; yet if his vendor should neglect to pay the same, and to protect his equity the vendee is obliged to discharge the tax, he will be considered only as having performed a duty incumbent upon him as a party in interest. He may have recourse over against his vendor under his covenants, but as respects the title he can gain no advantage. He cannot become a purchaser at any sale held for such taxes; and, should he become such, the payment of the money will be regarded only as a payment of the tax, and not as a purchase of the property.^^ As between the parties, all paj'ments of taxes made by the vendee are pre- sumed to be made on behalf of the vendor.^*^ As between vendor and vendee, prior to conveyance, the question as to who shall pay the current taxes does not seem to be of frequent occurrence in the courts. It is usually made a matter of a special stipulation in agreements for convey- ance, and in cases where this has been omitted is regarded as a duty incumbent on the vendor, who must of necessity pay 23 Holbrook v. Dickenson, 56 111. Ballame v. Forsythe. 13 How. (U. 497. S.) 18; Fitzgerald v. Spain. 30 Ark. 34 Fitzgerald v. Spain, 30 Ark. 334; Williams v. Townsend, 31 N. 334. Y. 411. s". See Bailey v. Doolittle, 24 111. 38 Lamborn v. Dickenson County, 577; Glancy v. Elliott, 14 111. 456; 97 U. S. 181. 15 226 THE RELATION OF THE PARTIES. the taxes levied or assessed at tlie time of his deed in order to keep good the covenants therein contained. It has been held, however, that in contracts for the sale of land, silent as to the payment of taxes, the party in the actual possession of the land should keep down the taxes,^^ and that where the land is vacant a vendee, who by full performance on his part is entitled to possession by implication of law, should there- after pay the taxes."*^ In agreements for exchange it is usual to make specific mention of the taxes and to provide for their payment; but unless it clearly appears as to wiiat lands each of the parties is to assume the taxes, or where the matter is referred to only in general terms, it will be considered that the stipulation applies to the property each party is selling and not to that which each is receiving.^'-* § 180. Interest — Rents and profits. Where a speedy con- summation of the sale is contemplated it is not customary, as contracts are now drawn, to stipulate for interest on the one hand or with respect to rents and profits on the other. The vendor usually remains in the possession of the property, while the vendee, with the exception of whatever may have been paid by the way of earnest, retains the purchase money. Yet, as equity regards as actually x^erformed that which is agreed to be done, it would seem that a purchaser is entitled to the j)rofits of the estate from the time fixed upon for com- pleting the contract; and as the money from that time belongs to the vendor, the purchaser should be compelled to pay inter- est for it.^o Certainly this should be the case where unavoid- able long delays intervene, or where delay is attributable to the fault or neglect of either party, the other party being in no way blamable. As a general rule interest on the purchase money should commence when, b}' the terms of the contract, such money is 37 Farber v. Purdy, 69 Mo. 601. specific performance was after- 3s Sherman v. Savery, 2 Fed. wards entered. Rep. 505. Further held in this case '^o Morrison v. Wasson, 79 Ind. that it is no defense against such 477. obligation that the vendor refused 4o See Parke v. Leewright, 20 to convey to him, but conveyed to Mo. 85; Hundley v. Lyons, 5 Munf. another against whom a decree for (Va.) 342; Cleveland v. Burrell, 25 THE RELATION OF THE PARTIES. 227 diic;" and if I he dclav in (•(unplci in;; I he contracl is ullrib- iitiible to tlic ]»nr(lias('r, lie will he conijicllrd lo pay inlercsl from till' time (lie contracl on^lil to have In-vn carried into effect, althon^li the nH)ney may have lieen lyin^' ready and willionl inlii'fsl heinj; made upon i(. Hut if ilie delay has been occa.su)ned by (hdanll of the vendor, and the money lias been kept ready and unprodiiclive in liie hands of the puv- c'baser, he will not be ol)li;^^ed to j»ay interest.-*- It seems, however, that the inirchaser slionld, in ^^-neral, <^ive notice to the vendor that the money is icady and jiroducinj; uotli- ing;-*-' for otherwise it is said there is no eiiuity, as the one knows the estate is ]»rodncin^' profit, while the other does not know that the money does not produce interest;^* yet, even though such notice be given, if the money is noractually and in good faith ajtpropriated for the purchase — if the vendee uses it in any manner so as to gain some advantage from it — he may still be compelled to pay interest.-*^ If no time be limited for the performance of the agreement, and if the purchaser is let into possession thereunder he should pay interest on the unpaid purchase money from that time,-*^ as in contemplation of law he is in the enjoyment of the rents and profits of the land. In cases of vacant property, wild, uncultivated or unproductive land, it has been held that a contract to pay interest will not be implied where the purchaser is prevented from obtaining title by the fault or negligence of the vendor, notwithstanding such purchaser has been in possession ;^'^ but ordinarily the rule first stated will apply, and it must be a strong case, clearly made out, in w'hich the purchaser will not be obliged to i^ay interest where he has received the rents and profits.^^ \Mth respect to interest payable by the vendor the cases Barb. (N. Y.) 532; Hepburn v. 45 Davis v. Parker, 14 Allen Dunlap, 1 Wheat. (U. S.) 179. (Mass.), 104. ■»! Baxter v. Brand, 6 Dana (Ky.), <« Stevenson v. Maxwell. 2 Corast. 298. (N. Y.) 408; Ramsay v. Brailsford. •»-^ Hunt V. Brand, 1 A. K. Marsh. 2 Des. (S. C.) 592; Hundley v. (Ky.) 161; McKay v. Melvln, 1 Lyons, 5 Munf. (Va.) 342. Ired. (N. C.) 73. 47 Stevenson v. Maxwell, 2 Sandf. 43 Brockenbrough v. Blythe, 3 Ch. (N. Y.) 273. Leigh (Va.), 619. ••>* Selden v. James. 6 Rand. (Va.) 44 Selden V. James, 6 Rand. (Va.) 465; Cullum v. Bank. 4 Ala. 22; 465; Hunter V. Bales, 24 Ind. 299. Boyce v. Britchett, 6 Dana (Ky.) 228 THE RELATION OF THE PARTIES. are rai'o where this will piwvail. The deposit, by the terms of the agreement, is usually forfeited to the vendor in ease of noncompliance on the part of the vendee, and where, througii fail lire of title or other inability by the vendor to consummate the sale according to the tenns of the contract, the deposit is usually returned without allowance for its use. It has been held, however, that where a purchaser is entitled to recover at law a deposit paid by him to the vendor, he can also recover interest on it from the time it was paid, without an express agreement."*^ It would seem to be the rule in England that if a vendor cannot make a marketable title, and the purchaser's money has been lying ready without interest being made by it, the vendor must pay interest to the purchaser ;^o ^nd this has been recognized to some extent in this country.^^ The right to rents and profits accrues when the purchaser is entitled to possession,^^ ^nd a vendor retaining the posses- sion should account to the purchaser for the rents and profits from the time possession was to have been surrendered.^^ If in the contract no day is specified for delivering the deed and the surrender of possession, but the money is to be paid on delivery of the deed, it must be understood that the deed is to be delivered and possession given without delay. If, there- fore, this be not done, the vendor is bound to account for and pay over the profits of the land received by him after the contract was made — the vendee, of course, to pay interest on the money from the time it would have been payable if the deed had been immediately delivered.'^^ 231. A vendee, who enjoys the es- terest from the time the debt is tate and withholds the purchase liquidated until he makes a title; money until a dispute in the title and the vendee is accountable for is adjusted, ought to pay interest, the rents and profits from the time Breckenridge v. Hoke, 4 Bibb, the title is perfected until the con- (Ky.), 273. tract is specifically performed. 49 See Teaffe v. Simmons, 11 Al- Hepburn v. Dunlap, 1 Wheat. (U. len (Mass.), 342. S.) 179. 50 2 Sugd. Vend. 330. ^2 Baxter v. Brand, 6 Dana (Ky.), 51 See Williams v. Rogers, 2 298. Dana (Ky.), 375. Where the ven- 53 Mason v. Chambers, 3 T. B. dor is indebted to the vendee and Mon. (Ky.) 323. the sale is made in order to pay 54 Hundley v. Lyons, 5 Munf. the debt, the vendor must pay in- (Va.) 342. THE RELATION OF THE PARTIES. 220 W'licii u toiitracl fur (he sale of land, wliieh tin- jjurchasei' has paid for and was put in possession of, is rescinded for causes free of fraud, tlie use of the nionev and the use of tlie hind are held to bahince each otlier. The decree shouhl in jjeneral restore the money to the purdiaser without interest, and the hind to the vendor \vitho\it rents or profits. \Uit if the purchaser has made valuabh* and histin*; improvemenls on the hind, or if it lias suffered in his hands throu<;h nej^lect oi- misnianaj^ement, then these thinj^s are the subject of valuation, account and final settlement by the decree.'"'' V? 181. The risk of loss. As the property is regarded as belonging to the vendee from the time of the delivery and accei)tance of the written contract, it follows that any loss arising from deterioration between the agreement and con- veyance falls upon and must be borne by him.^'^' Hence, if any of the buildings or improvements are destroyed by fire during this period the vendee must bear the loss,^" unless there is an agreement to deliver possession with improvements in the same condition as at the time of sale,^'^ or unless the loss occurs by the culpable negligence of the vendor.'"'* It is the duty of the vendee to protect himself against loss, and failing in this he must bear the same if any is entailed. This rule, in its application, presupposes an ability and a willingness to convey on the part of the vendor; for the l)urchaser in a case of this kind can only be said to be owner from the date of the contract, when the vendor is prepared to convey' a clear title and is not in default. If the vendor is so situated that he cannot make title according to the contract, the purchaser will not be regarded as the owner; and if the property is damaged before the vendor is in condi- tion to convey, the loss must fall on him and not on the purchaser.*'*' § 182. Duty of repairing buildings. It would seem that a party agreeing to sell and convey premises at a future day r-"' Williams v. Rogers, 2 Dana -'^ Marks v. Tichenor. 4 S. W. (Ky.), 375. Rep. (Ky.) 225. But see, contra, r>« Reed v. Lukens, 44 Pa. St. 200. Wells v. Calnan, 107 Mass. 514. BT Snyder V. Miirdock, 51 Mo. 175; co christian v. Cabell. 22 Gratt. Bautz V. Kuhworth, 1 Mon. J. 133; (Va.) 82; and see Huguenin v. Brewer v. Herbert. 30 Md. 301. Courtenay, 21 S. C. 403. 68 Goddard v. Bebout, 40 Ind. 115. 230 THE RELATION OF THE PARTIES. does not, iu the absence of stipulations to that effect, owe the vendee any duty to keep them in good repair or to guard against the decay which is due to time and ordinary use.*'^ § 183. Right of possession. It is a rule of law that the legal title of laud draws to it the right of possession, and wherever this title rests there also lies the right of possession and occupancy. Hence, the mere purchase of land does not authorize the purchaser to enter into possession without license from the seller.*'- Such license may be express or implied from the circumstances;"-^ but a simple agreement to convey title at some future day does not in itself confer it, and if unaided by other facts is no evidence of possessory rights.''^ The purchaser may enter under such license, but his possession is after all only the possession of the vendor. By the purchase he recognizes the vendor's title, and, like a tenant, in all proceedings for the recovery of the possession by the vendor, is estopped from disputing his title. He enters and holds under the title of the vendor, and his occupancy is subservient and subordinate to that title; and from this rela- tion and for the same reason his possession becomes as fully that of the vendor as does that of a tenant become that of the landlord.*'^ Still, as the vendor, though in law the owner of the legal title, holds it in equit}^ simply as the trustee of his vendee, it has been held that he cannot turn his beneficiary out of possession so long as the latter offers to perform the contract.66 It has been held that, notwithstanding the rule whereby possession follows the legal title as an incident, if the land is vacant, and the vendee has paid the entire consideration and fully performed on his part, and all that remains for the vendor to do is to give the deed, there must be an implied agreement or license that the vendee may at once take possession and have the use of the land.^'^ An imi^lied right ci Hellreigel v. Manning, 97 N. Y. e* Chappell v. McKnight, 108 111. 56. 570; Suffern v. Townsend, 9 Johns. «a Chappell V. McKnight, 108 III. (N. Y.) 35; Erwin v. Clinstead. 7 570; Williams v. Forbes, 47 111. Cow. (N. Y.) 229; Druse v. 148; Druse v. Wheeler, 22 Mich. Wheeler, 22 Mich. 439. 439. or, Hale v. Gladfelder, 52 111. 91. G3 Chappell v. McKnight, 108 111. «''> Whittier v. Stege, 61 Cal. 238. 570. c- Miller v. Ball, 64 N. Y. 293; THE RELATION OF THE PARTIES. 231 of possession may also result Iroin a fair conslruetloii of iIil contract. Tims, a contract which reserves to the vendor the rijfht of re-entry in case the {Mircliaser niak<'s default in his payments, and a rij;ht of distress uj)ou the jiremises for arrears of interest, or provides that on default the jturchaser may be rej^arded as a tenant holdinj^ over without penuission, and for the recovery of damaj^es for waste, j,'ives tlie vendee the rii^^ht of possession by necessary implication, where it fails to do so in express terms.^^ A more radical view has been taken of the vendee's ])Osses- sory rights in some of the states, and tlie reservation of interest on the purchase money lias been offset by allowing the purchaser to use the premises/^^ § 184. Delivery of possession. No formality of any kind is now required to ]»lace a purchaser in possession. The delivery of a key by the vendor at the conclusion of a treaty for the sale of property is a snnbol indicative of the delivery of the possession of the house or lands ])urchased to which the key belongs.'^*^ This is a usual formality in sales of improved property, but is wholly unnecessary as the delivery of the deed carries with it the right of possession, and such delivery is itself an all sutticient symbol. § 185. Rights of vendee in possession. \\'here the pur chaser has been let into possession he is, in equity, the owner, subject only to the lien of the vendor for the uni)aid purchase money. lie has a right to the free use and enjoi^inent of the propertj^ and to the rents, issues and profits thereof, so long as he is not in default under the contract. He may mortgage it for the payment of his debts;"^ may sell and assign his rights to another; or may create a privilege or easement upon any part of the premises which will be valid and bind- ing, but liable to be defeated should there be a failure to pay the balance of the purchase money according to the terms and conditions of th»' contract of purchase."- The vendor, in such Sherman v. Savery, 2 Fed. Rep. t2 As where the vendee, upon re- 505. ceiving a bond for a deed, was let C8 Martin v. Scofield, 41 Wis. 167. into possession, and while so in on Drake v. Barton, 18 Minn. 462. possession, and in no respect in •70 Canal Co. v. State, 53 Ind. 575. default under the contract, con- 71 Baker v. Bishop Hill Colony, veyed to a third person the 45 111. 264. privilege or right to build a 232 THE RELATION OF THE PARTIES. 11 case, canuot interfere with tlie free use and enjoyment of the premises by the vendee, or witli any one having a privilege from sneh vendee, ])rovided tliat there is no lessening of the security for the purchase money occasioned thereby;"^ nor will he be permitted to invade the possession of the vendee or his assigns, and remove any of the natural or artificial objects ujion the landJ^ § 186. Vendee's assertion of hostile title. It may be stated as a general rule, that, while the contracting parties are in most respects supposed to stand upon a footing of equality, by which each is entitled to the benefit of his own judgment and the fruits of his own prudence and sagacity, yet with regard to the property the relation is strictly confidential, and imposes upon either party the due observance of corre- sponding duties. In furtherance of this principle we find authorities announcing the doctrine that a vendee will not be permitted to buy an outstanding incumbrance or other hostile claim, and set up an adverse title under them against his vendor,"^ and that in case he should attempt so to do such acquisition will be considered as having been, made for no other purpose than the protection of the vendor's title.^^ Indeed, under these decisions, both vendor and vendee are dam across a creek in one was a case where land had been corner of the land to draw off the sold under a contract and the pur- water in a millrace to his mill, chaser let into possession, and the Held, on a bill to enjoin him from vendor went upon the premises and digging said race-way and dam, removed young trees and orna- that the contract which he had ob- mental shrubs. In an action of tained from the vendee was a suf- trespass by the purchaser the court ficient justification as against the said: "The defendant had no acts charged in the bill, but that right of entry, and his entry was its future validity would depend a trespass; and he is liable for upon whether there should be a all injuries done to the premises, faithful compliance with the terms which was in fact the property of and conditions of the contract of the plaintiff, subject to the lien of sale on the part of the purchaser, the defendant for the unpaid pur- Baldwin v. Pool, 74 111. 97. And chase money." See, also, Stow v. see, in support of the general prop- Russell, 36 111. 23. ositions of the text. Baker v. Bishop "•'■- Cromwell v. Craft, 47 Miss. 44; Hill Colony, 45 111. 264; Whitting- Wade v. Thompson, 52 Miss. 367. ton v. Simmons, 32 Ark. 377. "o Kirkpatrick v. Miller, 50 Miss. 73 Baldwin v. Pool, 74 111. 97. 521; Wilkinson v. Green, 34 Mich. 74 Smith V. Price, 42 111. 399. This 221. THE RELATION OF THE PARTIES. 233 estopped fruin buyiuj; in a title adverse to the other uuless it be for the purpose of mutual protections^ Probably these decisions most truly exjjress the spirit of the law; for it is fundamental that no one who j^joes into possession of land under another, or acknowledj^inj; the title of another, will be heard to dispute the title of that other durinj^' the continuance of the relation. This doctrine has been extended and held to apply fully to the case of one who goes into possession of land under a contract of saleJ*^ Whatever may be his ])recise relation to the property and to the owner — for upon this point the authorities are not altogether agreed — whether a tenant or a licensee, it is generally conceded that his holding is not adverse, and cannot become so until by some unequivocal act he has repudiated the relation J" On the other hand we find apparently w'ell-considered cases which, announce that the vendee is under no obligation to maintain his vendor's title, and that there is no policy of law that forbids the vendee in possession to buy in an outstanding title to the premises and assert it against his vendor; other- wise it is said, it might be asserted by the owner, or a stranger might buy it, and it would be lost to both.^o jq most of the cases which sustain this doctnne there are peculiar circum- stances which have shaped the policy of the court, but the doctrine itself is usually announced in uuqualitied terms. In one of the earliest and probably most authoritative of these 77 Aston V. Robinson, 49 Miss. In this case the purchaser entered 353; Austin v. McKinney, 5 Lea into possession under an agreement (Tenn.), 488; Wilkinson v. Green, that the purchase money was not 34 Mich. 221. to be paid unless the vendor 7s Greene v. Munson, 9 Vt. 37; should, within three years, make Ripley v. Yale, 18 Vt. 220; Ormond him a warranty deed conveying a V. Martin, 37 Ala. 598; Stamper v. perfect title; and in case of fail- Griffin, 20 Ga. 312; Harris v. King, ure to make him such conveyance, 16 Ark. 122; Burnett V. Caldwell, 9 the purchaser was to remain in "Wall. (U. S.) 290; Austin v. Mc- possession of the premises for the Kinney, 5 Lea (Tenn.), 488; Wil- period of three years, and pay a kinson v. Green, 34 Mich. 221. reasonable rent for the same for 79 Harral v. Leverty, 50 Conn, the time he could hold peaceable 46; Burnett v. Caldwell, 9 Wall, possession, and before the expira- (U. S.) 290; Harris v. King, 16 tion of the three years he acquired Ark. 122; Kerns v. Dean, 77 Cal. the title from other parties. Held, 555. that there was nothing in the re- 80 Green v. Dietrich, 114 111. G3G. lation of the parties, under the 23J: THE RELATION OF THE PARTIES. cases^^ the proijriety of applying the doctrines which exist between lessor and lessee to vendor and vendee is doubted and denied. The title of the lessee, it is argued, is in fact the title of the lessor. He comes in by virtue of it, holds by virtue of it, and rests upon it to maintain and justify his jjossession. Having, therefore, no independent right in himself, and it being a part of the very essence of the contract under which he claims that the paramount ownership of the lessor shall be acknowledged during the continuance of the lease, and that possession shall be surrendered at its expiration, he is not permitted to controvert the title of his lessor without dis- paraging his own, and cannot set up title in another without violating tliat contract by which he obtained and holds possession. These principles, it is contended, do not apply to the relation of vendor and vendee. The vendee acquires the property for himself, and his faith is not pledged, like that of a lessee, to maintain the title of his vendor, and that the property becoming by the sale the property of the vendee, he has a right to fortify that title by the purchase of any other which may protect him in the quiet enjoyment of the prem- ises.^2 Probably no very serious objection can be made to these principles in the case of an executed contract. If the vendor has made a conveyance his title is extinguished in law as well as in equity, and the only controversy which should arise between him and his vendee relates to the payment of the purchase money. But it is difficult to perceive wherein the possession of a licensee differs from that of a lessee so far as respects his duty to his licensor. A party in possession of land under a contract of purchase is estopped from denying the title of his vendor upon the prin- ciple that he shall not use the possession acquired from an apparent owner to the injury of such owner. But the rule, it is to be observed, does not apply when the right of possession is not involved. Thus, while a tenant cannot deny the land- lord's title in an action to recover possession, or for rent, when original contract or otherwise, that Wheat. (U. S.) 535. This case prevented the purchaser from seems to make a distinction be- yielding to the superior title and tween a vendee in possession and purchasing the same, and in that one not in possession, way secure his peace. «2 See, also, Jackson v. Johnson, 81 Blight's Lessee v. Rochester, 7 5 Cow. (N. Y.) 74. THE RELATION OF THE PARTIES. 235 the lessee lias actually enjoyed the preiiiises, yet be may do so wlieu he has not been in the actual occupation;*^'' and so, in an action to recover the amount agreed to be paid on a con- tract of ])urcliase, the vendee may defend on the ground that the seller has no title and can give uone.**^ An important distinction also seems to be made where the oiiginal entry is independent of the vendor, and in these cases, while the general rule that a vendee who enters into posses- sion under a contract of purchase cannot, while so in jjosses- sion, dispute the vendor's title, is recognized, yet it is held not to apply where, at the time of the contract, the vendee is already in possession as owner claiming title. In such event, it is contended that the case lacks the essential element which creates estoppel, and that, as the vendee does not acquire possession by virtue of any consent or contractual relation with his vendor he is at liberty to purchase the land over again as often as claimants, who are not in possession, may appear, and thus quiet and fortify his title without being estopped from disputing the title of such subsequent vendors, should it afterwards become necessary for him to do so.^^ § 187. Vendee's possession not adverse. Leaving out of view the main question discussed in tlie last paragraph, it would seem certain that a vendee under a bond or contract for con- veyance, though placed in possession by the vendor, does not hold adversely to the latter. Whether the contract stipulates for possession by the vendee, or the vendor of his own motion puts him ill possession, his real holding is that of licensee. The relation of landlord and tenant does not exist between them; for the characteristic feature of that relation is want- ing, the vendee paying nothing for his enjo}^uent of the property. Such a case comes within the category of a license, and in such cases the vendee cannot dispute the title of the vendor any more than the lessee can question the title of his lessor.**^ By the very fact of taking under a bond or contract 83 Vernam V. Smith, 15 N. Y. 328. (U. S.) 290; Harris v. King. 16 84 Burwell v. Jackson, 9 N. Y. Ark. 122; Whiteside v. Jackson, 1 535; Stanley v. Stanley, 18 N. Y. Wend. (N. Y.) 422; Hart v. Bost- 508. wick. 14 Fla. 162; Browning v. 8s Greene v. Couse, 127 N. Y. 386; Estes, 3 Tex. 462; Stamper v. Grif- Bain V. Matteson. 54 N. Y. 666. fin, 20 Ga. 312; Long v. Stock 80 Burnett v. Caldwell, 9 Wall. Yards Co. 107 Mo. 298. 23G THE RELATION OF THE PARTIES. for a (Iti'd to be thereafter executed by the vendor, a purchaser recognizes the titk' of his vendor, and acknowledges himself as holding in subordination and not in antagonism to it. No length of time short of the period prescribed for the limitation of an entry into lands, or at least for the foreclosure of a mortgage, should be permitted to work an adverse holding; for if it appears that the purchaser entered into possession under an agreement for conveyance and in amity with the holder of the fee, the law will presume a continuance of that relation until the contrary appears.**'^ It is true this relation may be subsequently changed, and the purchaser may assume an adverse position; but when this is claimed it must be abundantly proved — possession alone is insufficient.'^^ The full payment of the purchase price, however, removes the reason for the rule; and hence, where the consideration is paid and the owner consents that the purchaser may enter and hold the land as his own, such entry and possession cannot be deemed subordinate to the title of the vendor, but is adverse, and a practical disseizin.^^ And it is immaterial, in a case of this kind, whether the contract be in writing or by parol, for the vendee, having discharged all pecuniary duty to the vendor, becomes clothed with an equity which renders his possession antagonistic both to the vendor and to strangers. If such possession is continued for the statutory period it will form a complete bar to the vendor's right of entry or action;^*' unless overcome by positive evidence showing a recognition of the vendor's rights or a subordination to hir legal estate,^^ Nor will such possession cease to be adverse simply because of the vendee's knowledge of defects in his title, nor by reason of his subsequent demands for a deed.^^ jf j^^ asserts a pur- pose to rely upon his possession and claim of right, it is not essential that he should believe it to be good.^^ 87 Butler V. Douglass, 3 Fed. Rep. "« Newsome v. Snow, 91 Ala. 612 ; and see Whiteside v. Jackson, 641. 1 Wend. (N. Y.) 422; Lewis v. oi Potts v. Colman, 67 Ala. 221. Hawkins, 23 Wall. (U. S.) 119; 92 Newsome v. Snow, 91 Ala. 641. Adair v. Adair, 78 Mo. 634; Chap- o^ The expression "good faith," man v. Chapman, 91 Va. 397. must not be understood to involve 88 Kerns v. Dean, 77 Cal. 555. an inquiry as to the party's belief 89 Hart V. Bostwick, 14 Fla. 162 ; in the strength of his title, or to Drew V. Towle, 30 N. H. 531; Dean mean that to constitute his posses- v. Brown, 23 Md. 11. sion adverse he must claim in good THE RELATION OF THE PARTIES. 237 There would .seem (u be some disseiil from tliis (hjctriue in some of the stales, wliere it is held that iiotwilhstaiidiiij,' that by payment of the entire purehase money the vendee has a((piii-ed the full e(piital)le title, he yet cannot be said to liold adversely to his vendcjr.'" In such case the vendee is still regarded as holding' in subordination to and under the pro- tection of the vendor's le^al title. Such possession, it is said, is in privity with and subservient to the legal title, which the vendee will not be permitted to impeach or assail, and no length of time will be sunicient for such possession to ripen into an adverse title. The question becomes important only where the vendor has made some disposition of the lands subsecpient to the entry by the vendee. In such event, under the view we are now considering, it would seem that unless the vendee has in some way dissevered the privity between himself and the vendor, by the assertion of an adverse right, and unless such assertion has been brought to the knowledge of the vendor or his grantee, no claim of adverse possession will be allowed.-'"'' These views are of doubtful utility, how- ever, for the rights of the occupant of land, where the posses- sion is open and notorious, must still be respected and such possession is notice to the world of the right or claims of the vendee."*^ The doctrine has been announced in strong terms by the federal courts that while the vendor before deed is a trustee of the vendee for the conveyance of the title, and the vendee in turn a trustee for the payment of the purchase money, yet that the vendee is in no case a trustee of the vendor as to the possession of the property sold; that the vendee claims and holds it in his own right, for his own benefit, subject to no right of the vendor save the terms which the contract imposes; and that his possession is, therefore, adverse as to th(^ })rop- erty, but frien Borland v. Magilton, 47 Cal. 485. 6 Pick. (Mass.) 71, 76. le Sherman v, Kane, 86 N. Y. 57. THE RELATION OF THE PARTIES. 241 But to enable a j^iaiilor with wanaiity lo hold adversely to his grantee, sucli holding must be established by clear and undoubted tesliruony sliowiug a change in the relations of the parlies toward the land. The mere fact of the retention of possession is in ilsell' insullicient ; for the presumption of law in such case is that he i-emains in possession by peiniission, and that his liolding is in amity with and in subservience to the tith' he has given. '^ Indeed, a gi'antor will ordinarily be estopped by his own deed fi'om claiming that his jiossession is adverse to his own grantee.''^ Where after delivery of deed the grantor remains in possession, or on demand refuses to surrender tlie same to his grantee, he assumes the attitude of a trespasser and may be dispossessed by action. He may also be treated as a tenant at will and liable to his grantee^ for rent; and tliougli he afterwards abandons the premises which the grantee proceeds to occupy, the grantee may recover for the use of the land during his exclusion, and parol evidence will not be admitted to show' a reservation of possessory rights in the grantor.^'* § 193. Destruction of property — Proceeds of insurance. Among the common questions growing out of the relation of vendor and vendee is that which arises where, subsequent to the execution and prior to the consummation of the contract of sale, the improvements u])on the land are destroyed by fire or other casualty. By the well-known rules of equity the property is regarded as belonging to the vendee, the vendor retaining the legal title simply as his trustee and as a security for the unpaid purchase money. Ordinarily, if the property has been insured by the vendor, the loss, under the strict rules of law, would be payable to him, as he is still regarded as the owner of the property. Yet as between himself and the vendee the property is not his, but that of the vendee; and the ques- tion which under these facts arises is: Can he appropriate to himself the money which the insurance company has become liable to pay on account of the loss? If it is conceded, as it must be, that tlie vendor held the property only in trust, 1" Jones V. Miller, 3 Fed. Rep. i^ McCormick v. Herndon, 67 384; Horbach v. Miller, 4 Neb. 31; Wis. 650. Schwallback v. R. R. Co., 69 Wis. lo Jones v. Timmons, 21 Obio St. 292 ; and see Abbott v. Gregory, 39 596. Mich. 68. 16 243 THE RELATION OF THE PARTIES. then it would naturally follow that the right which accrued in consequence of its destruction took its place, was held in the same way, and was liable to be enforced in a court of equity. This would seem to, be the plain result of the princi- ples governing the relations between the parties established by an ordinary contract of sale.^o So far as insurable interests are concerned, both parties possess them.-^ Either party may therefore effect insurance, but to whom the money shall be paid in case of loss seems to be a question that has been the subject of much dispute and considerable diversity of opinion. A learned writer says: ''Where the vendor, in a contract for the sale of a house which is destroyed by fire before the completion of the purchase, receives payment for the loss under a policy which existed at the date of the contract, no reference being made in the contract to the insurance, the vendee has no claim upon the f unds."22 And this doctrine seems to have received the gen- eral assent of the English courts. There is manifest injustice in this, for it practically gives the vendor his purchase money twice over — in the first instance from the purchaser, and again from the insurance company; and equity, while it enforces payment by the purchaser, who may get practically nothing, will not relieve him from the legal consequences of the con- tract and of subsequent events.^^ A more reasonable and just rule seems to have been adopted by the courts of the United States, and in many of the states it is the settled doctrine that money accruing on a policy of insurance, where the loss has occurred subsequent to the execution of the contract, will in equity inure to the benefit of the vendee^^ — the vendor still retaining his character of trustee, while the insurance money in his hands represents the property that has been destroyed.^^ 20 Reed V. Lukens, 44 Pa. St. 200; ^tna Ins. Co. v. Tyler, 16 Wend. Ins. Co. v. Updegraff, 21 Pa. St. (N. Y.) 385. 513. 22 May on Ins. (2d ed.) § 450. 21 Hough V. Ins. Co., 29 Conn. 10; 23 But see Wells v. Calnan, 107 Perry Co. Ins. Co. v. Stewart, 19 Mass. 514. Pa. St. 45; Imperial Ins. Co. v. 24 Reed v. Lukens, 44 Pa. St. 200; Dunham, 117 Pa. St. 460; Brewer Hill v. Cumberland, etc., Co., 59 Pa. V. Herbert, 30 Md. 301; Franklin St. 474. Ins. Co. V. Martin, 41 N. J. L. 568; 2r, ins. Co. v. Updegraff, 21 Pa. St 513. THE RELATION OF THE PARTIES. 243 If the vendee lias procured insurance for his own benefit, and without any agreement to insure for the bcucjit of the vendor, it seems the hitter can chiim no bcndit from the insurance.-'' In support of this it is contended tliat a c(jntract of insurance against fire, as general ruh', is a mere personal contract between the assured and the underwriter to indem- nify the former against llie loss he may sustain, and as an illustration is cited the ramiliar case of mortgagor and mort- gagee. In case a mortgagor elfects an insurance upon the mortgaged premises the mortgagee can claim no benefit from it unless he can base his claim upon some agreement; and so, in the case of vendor and vendee, it is incumbent on the vendor to show that the insurance was effected for his benefit if he would avail himself of the proceeds. Where this is satisfac- torily shown the right of the vendor is unquestionable; for where the assured has agreed to insure for the protection and indemnity of another person having an interest in the subject of the insurance, then such third person has an equit- able lien, in case of loss, upon the money due upon the policy to the extent of such interest.-' § 194. Continued — Rights of option holder. Ordinarily the holder of a mere option of purchase is not regarded in the same light as a vendee under a bilateral contract, nor will the same rules apply to him that would operate in such latter case; but where an option of purchase is regarded as a sub- stantial interest in land, as is the case in some states, if an insurance against loss by fire exists, or is subsequently effected, and a loss occurs, after which the option is exercised, it seems the purchaser will be entitled to the moneys due upon such insurance.28 § 195. Continued — Effect of proviso respenting insurer's interest. A familiar provision in most |)olicies of insurance is that if the interest of the assured in the property be other than the entire, unconditional and sole ownership the policy shall be void. This clause is important where a sale still remains executory. The (juestions which have arisen under 20 Cromwell v. Ins. Co., 44 N. Y. Pick. (Mass.) 204; Ellis v. Krent- 42. singer, 27 Mo. 311. 2T Cromwell v. Ins. Co.. 44 N. Y. 28 Peoples Ry. Co. v. Spencer, 156 42; Providence Bank v. Benson, 24 Pa. St. 85. 244 THE RELATION OF THE PARTIES. this chiiiso seem nuiiuly to relate to the interest of the vendee and to insurances which he has attempted to make for the protection of such interest. The general rule would seem to be that a vendee has an insurable interest as well as the vendor and where a vendee is in possession and exercising acts of ownership under an executory contract of purchase, notwithstanding a portion of the purchase money is still unpaid, he is yet to be regarded as the ''unconditional and sole owner," and as such entitled to recover for the loss of an insured building situated upon the land.^o The reasoning by which the foregoing rule is reached pro- ceeds upon the lines heretofore indicated, that is, that the vendee is the real owner and the vendor but a trustee of the title, and that where one person binds himself unconditionally to pay a certain price for a piece of land and takes possession thereof, and the other binds himself to make a deed upon the pajTiients being made, if nothing remains to be done but for the party taking possession to make the pa^^ments and for the other party to make the deed, then such contract consti- tutes a sale of the land within the meaning of the policy .^^ § 196. Effect upon insurance of proviso against sales. There is now usually inserted in policies of insurance a special provision which recites that the policy shall be void if the property insured is sold and conveyed without the written permission of the insurer. Inasmuch as nearly every sale of improved realty contemplates a transfer of the insurance thereon as well, this provision becomes important in this connection. The object of the proviso seems to be to protect the insurer from a continuing obligation to the assured, if the title and beneficial interest should pass to others whom he might not be equally willing to trust; therefore, its effect is to annul the contract where a sale of the proprietary interest is made to a third person.^i It would seem, however, that while a transfer of the prop- erty by the assured to a third person, unless assented to by 29 ^tna Ins. Co. v. Tyler, 16 ^o Davidson v. Hawkeye Ins. Co., Wend. (N. Y.) 385; Johannes v. 71 Iowa 532. Standard Fire Office, 70 Wis. 196; 3i Hoffman v. Ins. Co., 32 N. Y. Loventhal v. Home Ins. Co., 112 405. Ala. 108; Dupreau v. Hibernian Ins. Co., 76 Mich. 615. THE RELATION OF THE PARTIES. 24."> the insurer, will have the effect to vitiate the policy, a sale bj one joint owner to another of his interest in the property does not come within the operation of the rule, and is not a cause of forfeiture within the intent and import of the pro- vision against sales.-'- The desij:jn of the provision is not to interdict all sales, but only sales of propnetary interests by parties insured to parties not insured. A sale between joint owners makes no substantial change material to the risk, and none within the intent of a simple proviso against alienation.''^ § 197. Continued — Assignment of policy. The rule is well settled that a policy of lire iiisuiancc is a personal contract with the assured; that it does not run with the property insured, and will not pass to a p\irchaser of such property unless assigned with the assent of the insurer,''* and further, that unless so assigned it expires with the transfer of the estate of the assured.^^ The assignment of the insurance is, however, an incident of nearly every transfer of improved real property, and when the consent of the company has been given the jiractical effect is to constitute an independent contract with the purchaser and assignee, the same as if the policy had been reissued to him upon the temis therein expressed; in other words it is substantially the same as if a new policy had been issued embracing the terms of the old.^^ § 198. Effect of condemnation proceedings. Whore land is condemned after sale, such proceedings in effect operate as a sale of the condemned portion by the vendee — a forced sale, it is true, but practically the same in general effect, as though made voluntarily and through the negotiation of the vendee. The damages in such case accrue to the vendee as the real owner of the property. The legal title held by the vendor is regarded only as a security for the payment of the purchase money; and the relation of the parties, so far as respects the right to claim and hold such damages, is not substantially 32 Tillou V. Kingston Ins. Co., 7 Co. v. Gery, 112 Ind. 535; Cum- Barb. (N. Y.) 570; Buffalo Engine mings v. Ins. Co., 55 N. H. 457. Works V. Ins. Co., 17 N. Y. 412. 35 Continental Ins. Co. v. Munns, 33 Hoffman v. Ins. Co., 32 N. Y. 120 Ind. 30. 405. 30 Continental Ins. Co. v. Munns, 34ymna Ins. Co. v. Tyler, 16 120 Ind. 30; Steen v. Ins. Co.. 89 Wend. (N. Y.) 385; Nordyke, etc., N. Y. 315. 2A:6 THE RELATION OF THE PARTIES. dillerent from what it would have been if the vendor had given a deed and taken back a mortgage, except that where only a contract is given the vendor can insert terms reserving to himself a more efiicient remedy in case of default in payment. But while the damages belong in equity to the purchaser,- yet when paid in money, if the security of the vendor would be impaired by the purchaser's receipt of the same, he may insist that they shall not be paid until his security has been increased to that extent; and the purchaser will have a corresponding right to security if about to be placed in jeopardy by the payment of the damages to the vendor.^^ § 199. Effect of mechanics' liens. The adjustment of the rights of the parties and their relations, respectively, with respect to liens incurred after sale and before conveyance have been productive of considerable diversity of opinion; but in the main the rule may be stated, with regard to mechanics' liens, as follows: >Yhere the owner of land gives a contract for a deed to the purchaser, who procures a building to be erected on the premises, the lien of the mechanic attaches only upon the purchaser's interest, and the vendor cannot be required to part with his title until he first receives full pay- ment of the purchase money.^^ But the vendor must do noth- ing to authorize the vendee to improve the premises; and if improvements are made, they must, to come within the fore- going rule, be made by the vendee on his responsibility. In such event the mechanic's lien will be confined exclusively to the purchaser's interest. But where the vendor by his contract of sale expressly authorizes the vendee to make erections and improvements on the premises, and particularly if he agrees to advance money to aid in such improvements, and, before any termination of the contract and notice thereof, a mechanic perfonns labor or furnishes materials in the erection of buildings on the land, the latter will not be required to look alone to the title held by the vendee, but ma}' enforce his lien against the legal as well as the equitable title.^^ 37 Stevenson v. Loehr, 57 111. 509. Hayes v. Fessenden, 106 Mass. 228; 38 Hickox V. Greenwood, 94 111. Walker v. Burt, 57 Ga. 20. 266; Johnson v. Pike, 35 Me. 291; ■■';. Henderson v. Connelly, 123 HI. 98; Hilton v. Merrill, 106 Mass. 528. CHArTER VII. AGENTS AND BROKERS. §200. General principles. §223. When principal chargeable 201. Wlio may act as agent. with agent's acts. 202. Continued — Trustee as 224. Fraud of agent. agent. 225. Notice to agent binds prin- 203. Appointment and autliority. cipal. 204. Proof of authority. 226. Agent dealing for his own 205. Autliority resting in parol. benefit. 206. Authority in writing. 227. Continued — Effect of laches 207. Telegram as authority. of vendor. 208. General and special agents. 228. The right to commission. 209. Implied powers. 229. Continued — Agent must 210. Agent must pursue his au- produce actual purchaser. thority. 230. Continued — Sale must re- 211. Agent's liability for breach sult from broker's efforts. of instructions. 231. Continued — Where more 212. Continued — For miscon- than one broker is em- duct. ployed. 213. Not liable for errors of 232. Continued — Sale by owner judgment. without broker's inter- 214. Ratification of unauthor- ference. ized agency. 233. Continued — Failure to close 215. Effect of ratification as re- within time stipulated. spects purchaser. 234. Continued — Revocation of 216. Effect of ratification as re- broker's authority. spects principal. 235. Continued — Sale by unli- 217. Agent's signature. censed broker. 218. Revocation of authority. 236. Continued — Agent as pur- 219. Agency coupled with inter- chaser. est. 237. Sale by agent above stipu- 220. Agent's authority termi- lated price. nates with principal's 238. Double agency. death. 239. The measure of compensa- 221. Undisclosed principal. tion. 222. When agent becomes per- 240. Sub-agents — Delegation of sonally liable. authority. § 200. General principles. It is not an exaggeration to say that fully one-half of all the voluntary transfers of real prop- erty that are daily made in the Ignited States are effected through the intervention of agents and brokers. In every city of any size they form a distinct class of the business com- 247 248 AGENTS AND BROKERS. munity, while every country hamlet can show at least one or two individuals who, in addition to their other avocations, pursue this branch of trade as one of their methods of liveli- hood. It is not strange, therefore, that they have long since been recognized by the courts, nor that a vast body of case law should have been built up in the detennination of the various questions growing out of their peculiar calling. The relation of agency is created where one party is author- ized to do certain acts for, or in respect to the rights or property of, another — the former being called the agent, the latter the principal. The acts to be performed may be executed in the name of the principal or in the name of the agent for the principal, while the authority may be conferred antecedently or inferred from subsequent ratification of the agent's acts. In its broadest sense the term agent is made to cover almost every species of fiduciary; but in its strict appli- cation to sales of real property it is generally held to mean only those who assume to act in the place of another under express or implied powers, and is distinguished from broker, or other fiduciaries who simply act as middle-men or nego- tiators. In many transactions the agent acts only in the latter capacity, however, and in such event he is properly a broker and not an agent. While the powers and authority of an agent enable him to act for and in the place of his principal, the authority of the broker employed to sell real property is usually limited to the power of finding a purchaser satisfactory to the principal; and such will be implied from his vocation, although if the language of the principal used in making the employment clearly shows that he intended to give him a power more extensive than that of a mere broker, and to clothe him with authority to exercise the powers of an agent, and to bind the principal by a written memorandum of sale, the courts will enforce a written contract made by him in pursuance of the agency.i §201. Who may act as agent. Every person possessing sufficient capacity to act for himself may properly represent 1 Rutenberg v. Main, 47 Cal. 213. or "go-between." Henderson v. Strictly speaking, a broker is a State, 50 Ind. 234; and see Braun v. mere "negotiator," "middle-man" Chicago, 110 111. 186. AGENTS AND BROKERS. 249 another as an agent ;'^ and even where civil disabilities may intervene to prevent or di.s(iiialify a person from contractinj^ in his own name he may nevertheless act for one to whom such conditions do not apply;' and, as a rule, any one, except a lunatic, imbecile or child of tender years, may be an aK<^*nt for another.^ Thus, a married woman,'* even though incapaci- tated to contract for herself, or a minor," if of sullicient under- standing, may, if properly authorized, make valid and binding contracts for another; but an insane person, having neither the understanding to receive instructions nor the judgment necessary for the i)roper exercise of discretion, is for that reason incapable of assuming the relation, and the same is true of all persons similarly situated. It is essential, however, that the agent be a third person, for neither of the contracting parties can act as the agent of the other. § 202. Continued — Trustee as agent. The rule is funda- mental that a trustee is, by the general principles of law, precluded from purchasing the trust property for his own benefit, or of exercising any acts in relation thereto incom- patible with his duty as such trustee. He cannot take upon himself any adverse employment or have any antagonistic interest that would be liable to expose his trust to abuse or fraud. Hence, it has been held that, as he cannot buy on his own account, it follows that he cannot be permitted to buy as the agent of a third person.^ § 203. Appointment and authority. To effectuate a binding sale or purchase of real property, the memorandum which the law requires as an evidence of the transaction must be signed by the party to be held or by his agent thereunto lawfully 2 Lea V. Bringier, 19 La. Ann. law, may claim any interest of 197. such disabled persons after their 3 Lang V. Waters, 46 Ala. 264; death. 1 Evans' Agency, 16. Stall V. Meek, 70 Pa. St. 181. The ■» Lyon v. Kent, 45 Ala. 656. reason for this distinction between r, Singleton v. Mann, 3 Mo. 464 principals and agents is, that the (orig. pg.) ; Butler v. Price, 110 execution of a naked authority can Mass. 97; Pullman v. State, 78 Ala. be attended with no manner of 31. prejudice to the persons under such c Talbot v. Bowen, 1 A. K. Marsh, incapacities or disabilities as are (Ky.) 436. involved in coverture, infancy, ~ Building Ass'n v. Caldwell, 25 etc., or to any other person who, by Md. 420. 250 AGENTS AND BROKERS. autlioiizod. In some states, as a safe-guard against fraud and tlie unauthorized acts of jjersons claiming to represent the principals to the agreement, the authority by which the agent assumes to act must itself be evidenced by a writing; but in many — perhaps a majority — of the states this additional pre- caution is not required. Not infi'CMiuently, however, the question of authority sinks into minor importance in view of other facts and circumstances surrounding the transaction, and notwithstanding that an appointment in writing is by statute an essential requisite to enable an agent to make a valid and binding contract, its legal effect may be obviated by the attitude of the parties. Thus, the question of authority becomes immaterial where the sale is made in the presence of the principals, the money paid at the same time, and the purchaser let into possession. In such case, if a contract of sale is subsequently made in the name of the agent, the vendor would be estopped from denying the validity of the sale simply because such agent was not author- ized in writing to execute same.^ Ordinarily, if one acts for and in behalf of another it is immaterial to the question of agency, so far as third persons are concerned, whether he acts by the direction and request of his principal or by his permission merely, for he is equally an agent in both cases; yet in the construction of powers exercised by an agent in the purchase or sale of land, a stricter interpretation is usually had than prevails in other affairs of business or in transactions wholly related to chattels. Where a writing is required the authority to sell must be clear and explicit, and of such a character that a fair and candid person can see without hesitation that the authority is given. There is an important distinction between an authority to find a purchaser and an authority to execute a contract of sale, which is constantly recognized and applied by the courts, and specific performance has often been refused where the transaction disclosed that the agent's powers were limited to the mere finding of a purchaser. Thus, the expression, ''I will sell," 8 Karns v. Olney, 80 Cal. 90. It the validity of such sale. See is a well-settled rule that one who France v. ^ Haynes, 67 Iowa 139 ; with knowledge accepts the pro- Moore v. Hill, 85 N. C. 218; Good- ceeds of an unauthorized sale of man v. Winter, 64 Ala. 433; Field his property is estopped to deny v. Doyon, 64 Wis. 560. AGENTS AND BROKERS. 251 or its equivalent, acc<)iii[)anied by a siMMilication of teiiiiK, does not confer any autliority on an aj;ent to make a contiaet of sale;'' neither does a correspondence between the owner and a^ent concerninj; tlw property, or the i)rice and terms of sale confer any such auf hoiily.'" And generally, whenever a formal instrument conferring autliority n\un\ an agent is emjdoyed, it is to be strictly con- strued. It will be held to include only the powers expressly given, and such others as are necessary and essential to carry into efl'ect those which are expressed." The same general principles that relate to the ajjpointment of agents by a writing apply witli ('(pial force where the power to sign the name of a principal to a conti'act of sale ma^' be given verbally; and in every instance the words used nnist be unequivocal in their meaning and import, and should, with the requisite degree of certainty, manifest the intention of the principal^ to do something more than merely to employ a broker.^ 2 For this reason it has been held that a verbal authority given to an agent "to sell," or "to close a bargain," when applied to real property, amounts to nothing more than a mere authority to find a purchaser at the price mentioned, and confers no power on the agent to sign the principal's name.i'^ A person may as well become an agent by adoption as by original appointment; and where a person has assumed author- it}' to act, and such actions have with full knowledge of the facts been ratified or confirmed by the principal, such person will become an agent, for all practical purposes, as fully empowered as though he had been previously appointed.^* Bosseau v. O'Brien, 4 Biss. (C. agent to "hold on," in reply to one Ct.) 395; Grant v. Ede, 85 Cal. 418. from him asking if he would take 1" Bosseau v. O'Brien, 4 Biss. (C. a certain price. Albertson v. Ash- Ct.) 395. Where the authority of ton, 102 111. 50. an agent to sell land is required by n Gilbert v. How, 45 Minn. 121. the statute to be evidenced by a 12 Duffy v. Hobson, 40 Cal. 240. writing, that requirement is not i'' Duffy v. Hobson, 40 Cal. 240; fulfilled by letters written by the Milne v. Kleb, 44 N. J. Eq. 378. owner of the property to third per- i* Gulick v. Grover, 33 N. J. L. sons showing merely that a certain 463; Adams v. Power. 52 Miss. 828; real estate agent was employed by Sentell v. Kennedy, 29 La. Ann. him to solicit and negotiate for 679; Harrison v. McMurray, 71 prices; nor by a telegram to such Tex. 122. 252 AGENTS AND BROKERS. An ajxent acting under i)ai'ol autlioiity only cannot bind his principal bj a written covenant under seal, signed with the name of such principal ;^^ but should he execute a contract under seal, such seal, if not essential to the validity of the contract, should be regarded as mere surplusage, and the contract be held good as a simple contract.^^ So, also, although an authority under seal is necessary to enable an agent to bind his principal by a contract under seal, yet a sealed contract not so authorized naay be ratified by acts in pais, and so become obligatory on the principal, provided it is not one of those contracts which the law requires shall be under seal.^''^ § 204. Proof of authority. Even as an agent in order to bind his principal must have authority to act, so also jjersons dealing with him are bound at their peril to know this. Whether the authority be verbal or written they must inform themselves of its nature and extent, and must understand its legal effect.^ '^ For this reason, where the name of a party to a contract has been signed by a person representing himself to the other party as an agent, and the person whose name has thus been signed especially denies the authority in a suit to enforce it, the burden of showing authority in the agent to sign the name of the principal, or a subsequent ratification by him, falls on the party who seeks to enforce the contract.i^ As a general rule, agency may be XJi'oved either directly, as by express words of appointment, whether uttered orally or contained in some writing ;2o or indirectly, as by evidence of the relative situation of the parties, and their habit and course i'"' Harshaw v. McKesson, 65 N. C. chaser may always refuse to buy 688. until the agent produces such evi- 16 Long V. Hartwell, 34 N. J. L. dence of his authority as to leave 116; Adams v. Powers, 52 Miss, no doubt of its extent. 828; Baum v. Dubois, 43 Pa. St. lo Emmons v. Dowe, 2 Wis. 265. 322; Tribune Co. v. Bradshaw, 20 17 Adams v. Power, 52 Miss. 828. 111. App. 17. And see Baum v. Dubois, 43 Pa. St. 20 Where letters written by the 265; Riley v. Minor, 29 Mo. 439; owner of land are relied on as con- Dickerman v. Ashton, 21 Minn. 538. ferring an authority to sell the 18 Davidson v. Porter, 57 111. 300; same, they will be construed, with Ins. Co. v. Poe, 53 Md. 28; Rawson reference to the surrounding facts v. Curtis, 19 111. 456; Cooley v. Per- and circumstances, in determining rine, 41 N. J. L. 322, The pur- whether they were in fact intended AGENTS AND BROKERS. 253 of doalinj?, or it may l)c iiiiidicd from circumstances or from subsecjiiciit ratification.-^ It cannot be proved by the mere declarations of the agent, when the fad of agency is in issue.^z In every case whei-e a purcliasei-, i-elyin^ uj)on an agent's autliority, seeks to enforce a contract iiiach' under it, the proof to establish the power of the agent must be clear, certain and specifiers Tlie question as to whether an agent has the requisite authority to bind his principal is a (luestion of law for the court; and this is equally true whctlicr such authority is sought to be sustained by a jH'evious authorization or by a subsequent ratification.^* § 205. Authority resting in parol. As has been previously stated, it is one of the general doctrines of agency that the authority of an agent to act for his alleged principal may be inferred from circumstances, and does not, in the absence of statutory rules to the contrary, require direct evidence to establish it;-'' and that agency, as a question of fact, may be proved by the acts, declarations or conduct of the parties, even though the agent was appointed by power of attorney.-^ This doctrine, which had its origin in transactions concerning chattels, and which still continues to find its most numerous illustrations in matters growing out of chattel interests, should be sparingly applied when sales of land are in question; for it not only affords an avenue for the introduction of fraud, to authorize the party addressed tract of sale. Stillman v. Fitz- to make a sale. Bissell v. Terry, gerald, 37 Minn. 186. 69 111. 184. Where a real-estate 21 Mabley v. Irwin, 16 111. App. broker wrote: "We have a cus- 362; Hull v. Jones, 69 Mo. 587; tomer who would buy your lot if Harrison v. McMurray, 71 Tex. 122. offered at a fair price," and ask- "-Proctor v. Tows, 115 111. 138; ing the owner to state the best Whiteside v. Margarel, 51 111. 507; price and the terms for which he Central, etc., Co. v. Thompson, 122 would sell, and pay their commis- Pa. St. 118. sion, which was stated ; and the -^ A bare preponderance of the owner answered by letter stating evidence will not be sufficient, the price, and, in part only, the Proudfoot v. Wightman, 78 111. 553. terms for which he would sell, and -* Gulick v. Grover, 33 N. J. L. that he would pay their commis- 463. sion — the broker was not thereby 2.1 Hull v. Jones, 69 Mo. 587, constituted the agent of the owner, 20 Columbia, etc., Co. v. Geise, with power to bind him by a con- 38 N. J. L. 39. 25-1 AGENTS AND BROKERS. but, in its general features, is opposed to the policy of the law governing the disposal of real property. It applies more directly to subsequent than to antecedent circumstances, and in some cases is a rule of necessity; as where, with knowledge of the facts, the principal acquies(-es in the acts of the agent under such circumstances as would make it his duty to repu- diate them, such acquiescence is taken as a confirmation of the acts of the agent equivalent to authority antecedently con- ferred ;27 and even such knowledge may be inferred from the facts of the case.^s A single act of an assumed agent, and a single recognition of his authority, may under certain circumstances be enough to prove agency to do similar acts;^^ but agency will not generally be presumed from a previous employment in a similar matter. Authority to make a written contract is not conferred, where the thing to be sold is land, by giving an agent a mere power to sell.^^ § 206. Authority in writing. Where by law the authority of an agent must rest in writing, parol testimon}^ should be excluded for the same reasons that deny its admission when the contract itself is in dispute. The provision relative to the authorization of the agent is, in such case, as much a part of the statute of frauds as the provisions which relate to the memorandum; and, as parol testimony is refused in the one case, so also should it be in the other. And even where the written authorization of an agent is not a statutory require- ment, if there is proof that the appointment w^as in writing, land there is a question as to the extent of the power, the paper itself must be produced or accounted for. The agency cannot 'be proved by parol testimony of the contents of the paper, or by circumstantial evidence tending to show that such agency did in fact exist.^^ 27 Alexander v. Jones, 64 Iowa 3o Morris v. Ruddy, 20 N. J. Eq. 207; Goss v. Stevens, 32 Minn. 472; 238; Shepherd v. Hedden, 29 N. J. Silverman v. Bush, 16 111. App. L. 343; Duffy v. Hobson, 40 Cal. 437; Reynolds v. Collins, 78 Ala. 240. 94. aiNeal v. Patten, 40 Ga. 363; 28 Curry v. Hale, 15 W. Va. 867. compare Columbia, etc., Co. v. 20 Wilcox V. R. R. Co., 24 Minn. Geise, 38 N. J. L. 39. 269. AGENTS AND BROKERS. 255 Where the written authority of an a^u-nt to sell the lauds of his principal is required by the statute of frauds, it must receive the same strict interpretation as ordinary written X)owers — such as letters of attorney or letters of instruction — in which the authority is never extended beyond that which is given in terms, or is absolutely necessary for carrying into elfect that which is exj)ressiy given.''- v^ 207. Telegram as authority. During very recent years the introduction and general use of the telegraph has somewhat .modified the rules of law in regard to writings, and by general consent telegrams have been accorded the same relative place as letters and other writings not under seal. Hence, an authorization by telegraph may properly be considered as an authorization in writing; and where an owner of land, on being notified of an offer to purchase and learning all the facts, sends a telegram to his agent to accept the offer and make the sale, he will be bound by a contract of sale made by his agent as directed.^^ ^ 208. General and special agents. A distinction is made between general and special agents. The foraier, having a wide scope both of duty and authority, represents his ])rinci- pal in all matters within the ordinary limits of the principal's business, and this may be in one or more places; the latter is one whose authority is definitely limited, and whose duty is specified.*^^ It is said, that if a general agent, acting within the limits of his business, violates instructions received from the principal, the principal alone will be liable to third parties; but, if a special agent violates instructions, the principal will not be liable.=^^ It would seem, however, that the distinction between general and special agents is of little or no practical value as far as respects the rights of third persons. The law indulges in no presumptions respecting the char- acter of an agency, and whether an agent is general or special is a question of fact for the jury.^*' Agencies in respect to contracts for the sale or conveyance 32Bissell V. Terry. 69 111. 184; sr. Cruzan v. Smith, 41 Ind. 288; Gilbert v. How, 45 Minn. 121. Baxter v. Laniont, 60 111. 237. ■i:! Chappell V. McKnight, 108 111. 36 Dickinson Co. v. Miss. Valley 570. Ins. Co., 41 Iowa 286. 34 Cruzan v. Smith, 41 Ind. 288. 256 AGENTS AND BROKERS. of laud arc usually to be classed as special, such agencies being generally created for a particular and defined purpose; and in the construction of the powers delegated to such agents courts are e\'er inclined to be strict. The business of buying and selling realty differs in many respects from ordinary mer- cantile transactions, and many of the rules that possess eiTicacy when invoked in respect to such transactions are inap- plicable to determine questions raised by the relation which characterizes a real estate agent and his principal. This is par- ticularly true in respect to general agency, which finds but few illustrations where the subject-matter of the agency is real property. The agency may, however, be general, as in any other line of commerce where intermediaries and representa- tives are necessarily employed; and where an authority is given to an agent to buy lands in a certain locality and its vicinity, and to buy generally from whomsoever he may see fit, no single transaction being in view but a number of separate transactions, this would probably constitute, for certain pur- poses at least, a general agency .^^ If the agent is appointed only for a particular purpose and is invested with limited powers, or, in other words, is a special agent, then it is the duty of persons dealing with sucli agent to ascertain the extent of his authority; and the principal will not be bound by any act of the agent not warranted by or fairly and necessarily implied from the terms of tli.e author- ity delegated to him.^^ But in the application of this rule to cases affecting the rights of third persons who have dealt with the agent in good faith, care must be talven not to bind them by limitations placed on the authority of the agent by the private instructions of the principal, w^hich are not known to such third persons, nor properly inferable from the nature of the agent's employment.^'-^ Yet, as before remarked, it is the duty of persons dealing with an agent to ascertain the extent of his authority; and usually where an agent exceeds his powers the contract will not be binding upon the principal, and where an action is brought upon the contract the real question involved has respect only to the extent of the agent's 37 Butler V. Maples, 9 Wall. (U. 322; Baxter v. Lamont, 60 111. 237; S.) 776. Peabody v. Hoard, 46 111. 242. 38 Cooley v. Perrine, 41 N. J. L. 3o Lister v. Allen, 31 Md. 543. AGENTS AND BROKERS. 257 aiUliorit y, aud not to the other contiacliii}^ [)ar(y'H knowledge of it.-»o ij 209. Implied powers. An agent to sell, in the absence of partiriilai' insUuclions, has the power to do what is usual and necessary in elTecting such sales according to the ordinary mode of doing business.^ ^ He may enter into a contract, within the terms of his authority, which will bind his princi- pal^- — this being of the very essence of an authority to sell — and generally may i)erforni all such acts as naturally and logic- ally follow the employment.^'^ Under a power to purchase land and to subdivide and plat the same, the agent may bind his principal by the dedication of land for the uses of a street.^* § 210. Agent must pursue his authority. While all the acts of an agenl, performed under the direction of his prmcipal and within the scope of his agency, will bind the principal and be regarded as the principal's own acts, yet to effect this the agent must act within the authority conferred.^'^ If he be empowered to sell his principal's land in a specified manner, at a parlicular time and place and on certain tenns, such terms, time and place must be strictly observed.'**' Yet, though the agent departs from his instructions, if the unauthorized act is done in the execution of a power conferred, but in a mode not sanctioned by the power and in excess or misuse of it, the principal may still be bound by ratification; and this may be inferred from slight acts of confirmation on his part. His duty to disafiirm at once is imperative in sucli cases."*^ An agent's powers cannot be enlarged by implication where his authority is in writing; for every instrument by which an agency is created for a special, particular aud defined purpose •«o Dickinson Co. v. Miss. Valley scope of his authority. Brett v. Ins. Co., 41 Iowa 286. Bassett, 63 Iowa 340. 41 Herring V. Skaggs, 62 Ala. 180; ^c Thornton v. Boyden, 31 111. Mfg. Co. V. Givan, 65 Mo. 89. 200. An agent authorized to sell 42 Haydock v. Stow, 40 N. Y. for $1,500, if at once, said he could 363. not, and asked for lower terms. 43 Barteau v. West, 23 Wis. 416. After a month, with no further 44 Barteau v. West. 23 Wis. 416. authority, he sold for $1,500. Held, 4s Baxter v. Lamont, 60 111. 237; that the sale was unauthorized. Yazel V. Palmer, 88 111. 597. The Matthews v. Sowle, 12 Neb. 398. presumption is that one known to 47 Meyers v. Life Ins. Co., 32 Hun be an agent is acting within the (N. Y.) 321; Hart v. Dixon, 5 Lea (Tenn.) 336. 17 258 AGENTS AND BROKERS. i« to bo construed strictly; nor will the introduction of formal language in the letter of appoiutnieni, tending to show ample powers, \i\ry or affect the api)lication of this rule. Thus, in an appointment by letter of attorney stating the powers and duties of the agent, the formal clause, ''giving and granting unto our said attorney full power and authority to do and per- form all and every act and thing whatsoever requisite and necessary to be done in and about the premises," etc., while conferring apparently unlimited power if read by itself, must nevertheless be presumed to be used in subordination to the particular subject-matter of the power, and limited accord- ingly.-*** A substantial compliance, or a compliance which involves no material deviation from the instructions given, will usually be considered a sufficient pursuance of the authority; as, where an agent is authorized to sell land, one-half x>ayable on or before one year, a contract to sell, "one-half payable in one year," is in pursuance of the authority, the legal rights of the vendor being the same in either case.'*^ §211. Agent's liability for breach of instructions. An agent is bound to execute the orders of his i)rincipal, whenever he has undertaken to perform the same, unless prevented by some unavoidable accident without fault on his part, or unless such orders require the performance of an illegal or immoral act; and in the performance of the duty he has undertaken he is bound not only to good faith but to reasonable diligence, and to such skill as is ordinarily possessed by persons of com- mon capacity engaged in the same business.^^ He is responsi- ble for all loss occasioned by any violation of his duty, either in exceeding or disregarding his instructions ;5^ and it is no excuse that, in so doing, he intended to act for the benefit of his principal.^- A violation by an agent of the positive instruc- tions of his principal is gross negligence, and renders him lia- ble for such loss or damage as may result from it; and in such case every doubtful circumstance is construed against him.^^ 48 Jenkins v. Funk, 33 Fed. Rep. 181; Williams v. Higgins, 30 Md. 915. 404; Adams v. Robinson, 65 Ala. 49 Deakin v. Underwood, 37 586. Minn. 98. ^^ Rechtscherd v. Bank, 47 Mo. 50 Heineman v. Heard, 50 N.Y.27. 181. ei Rechtscherd v. Bank, 47 Mo. 53 Adams v. Robinson, 65 Ala. 586. AGENTS AND BROKERS. 259 § 212. Continued — For misconduct. The person who bar- gains to render sei'\ ices foi- another is deemed in hiw to under- take in ^(lod faith and inlej,nit_v the perfoiniance of liis duties, anetent to show- that one or both of the contiactinj; parties were agents for other persons and acted as such in inakin^jj the contract, so as to give the benefit of the contract to the unnamed pi-incipal."''' Nor will auy question arise, under a contract made in this manner, with reference to the statute of frauds; for the stat- ute provides that the memorandum sliall be signed by the party to be charged or his ag«'nt duly authorized, and if exe- cuted by the agent pursuant to authority it would, it seems, be a valid execution and the principal would be bound."*' A different case is i)resented when the contract is under seal. Can a contract under seal, made by an agent in his own name for the purchase of land, be enforced as the simole con- tract of the real piincipal when he shall be discovered? There are cases which hold that when a sealed contract has been executed in such form, that it is, in law, the contract of the agent and not of the principal; but if the principal's interest in the contract appears upon its face and he has received the benefit of performance by the other party and has ratified and confirmed it by acts in pais, and the contract is one which would have been valid without a seal, the principal may be made liable in assumpsit upon the promise contained in the instrument, which may be resorted to to ascertain the teniis of the agreement.'''^ OS See 1 Addison, Cont. 42. Chandler v. Cox, 54 N. H. 561, was a case in which the principals were sued upon a contract which was signed by their agent, but which did not upon its face disclose an agency. It was, however, a ques- tion of fact whether or not the principals were known to be such at the time the contract was exe- cuted. The court, in an able and elaborate opinion, which reviews all the authorities, held, that if the principals were not known when the agreement was signed, parol evidence was admissible to show the agency of the signer and to charge the principal; but that if, in point of fact, agency was then disclosed, such evidence tended to vary the writing, and could not be admitted. The ground of the rul ing upon the latter point was that if the plaintiff knew, when the con- tract was entered into, that it was made for the benefit of third par- ties, the writing showed that they had elected to look to the agent for its performance, and parol evi- dence was not admissible to vary the writing by showing that they did not so elect. 90 Lawrence v. Taylor, 5 Hill (N. Y.) 113. OT Du Bois V. Canal Co., 4 Wend. (N. Y.) 285; Lawrence v. Taylor, 5 Hill (N. Y.) 107. 268 AGENTS AND BROKERS. The rule is fundamental, however, that those persons only can be sued on an indenture who are named as parties to it, and tliat no action can lie against one person on a covenant which i)ui'ports to have been made by another/-*'^ It is also true that a seal has lost most of its former significance, yet the distinction between specialties and simple contracts has not been obliterated; and in the absence of authority it may safely be asserted that a contract under seal, in those states where a seal is still recognized, may not be turned into the simple contract of a person not in any way appearing on its face to be a party to or interested in it,^ on proof dehors the instrument that the nominal party was acting as the agent of another.2 § 222. When agent becomes personally liable. Where an agent undertakes to contract on behalf of an individual or corporation, and contracts in a manner which is not legally binding upon his principal, he will be personally responsible, as he is presumed in such case to know the exact extent of his authority.^ This is an elementary rule of the law of con- 98 Spencer v. Field, 10 Wend. (N. Y.) 88; Townsend v. Hubbard, 4 Hill (N. Y.) 351. In this case it was held that, where an agent duly authorized to enter into a sealed contract for the sale of the land of his principals had entered into a contract under his own name and seal, intending to execute the au- thority conferred upon him, the principals could not treat cove- nants made by the agent as theirs, although it clearly appeared in the body of the contract that the stipu- lations were intended to be be- tween the principals and purchas- ers, and not between the vendees and the agent. The plaintiffs in this case were the owners of the land embraced in the contract, and brought their action in covenant to enforce the covenant of the ven- dees to pay the purchase money; and the court decided that there was no reciprocal covenant on the part of the vendors to sell, and that for want of mutuality in the agree- ment the action could not be main- tained. 1 Huntington v. Knox, 7 Gush. (Mass.) 374, in which the general rule is declared that, "where a con- tract is made by deed under seal on technical grounds, no one but a party to the deed is liable to be sued upon it; and therefore, if made by an attorney or agent, it must be made in the name of the principal in order that he may be a party, because otherwise he is not bound by it." 2 This is especially the case in the absence of any proof that the alleged principal has received any benefit from it, or has in any way ratified it. Briggs v. Partridge, 64 N. Y. 357. •"i Merrill v. Wilson, 6 Ind. 426; Pierce v. Johnson, 34 Conn. 274; Mann v. Richardson, 66 111. 481. AGENTS AND BROKERS. 269 tracts; and tlioiiarol evi- dence tending to show that in signing the agreement the one who purports to sign as agent signed the name of the principal for his own benefit, and with the intention to bind himself. This, however, has always been denied as being opposed to the fundamental rule that parol evidence cannot be introduced to vary the terms of a written agreement. Nor does this rul- ing militate against the exception ordinarily allowed in the case of undisclosed principals. In the latter case parol evi- dence is admitted to show who is meant by the signature; it does not vary the written contract, but only serves to identify the real contracting party. But where the contract discloses the names and relations of the parties; where it pui-ports to be the act of the principal, and where the agent does not assume to bind himself, — to permit to be shown by parol testi- mony an intention exactly contrary to that expressed on the face of the writing w^ould be a direct violation of a cardinal rule of evidence. This rule is not without apparent McClellan v. Parker, 27 Mo. 162; exceptions; and an agent acting Royce v. Allen, 28 Vt. 234. without authority will not, it •'' Abbey v. Chase, 6 Gush. (Mass.) seems, be held personally liable 54; Gole v. O'Brien, 34 Neb. 68; when the want of authority was Hall v. Grandall, 29 Gal. 567; Dun- known to both parties, or even can v. Niles, 32 111. 532. where it was unknown to both par- c Draper v. Steam Heating Co., ties. See Walker v. Hinze, 16 111. 5 Allen (Mass.) 338; and see Bart- App. 326. lett V. Tucker. 104 Mass. 339; Graf- * See Wheeler v. Reed, 36 111. 81; ton Bank v. Flanders, 4 N. H. 239; 270 AGENTS AND BROKERS. § 223. When principal chargeable with agent's acts. As a general rnle a principal is bound by acts and representations of his ajicnt rcspectinf;- the subjcct-mattei' of the agency, if made at tlie same time as the transaction/ and is affected with all the knowledge the agent had in relation thereto.^ He is not only responsible for those contracts which have been actually made under his express authority, but will be bound as well in those cases where the agent is acting within the usual sco})e of his employment, or is held out to the public or to the other party as having competent authority, although in fact he has in the particular instance exceeded or violated his instructions and acted without authority.^ Where the agent's authority is by law required to be in writing, this rule cannot be said to apply; but if no such requirement exists, it will hold good in matters pertaining to the sale of land equally with purely chattel interests. It would seem further, that there is no distinction, in the matter of responsibility, between an agent authorized to do business generally and one employed to conduct a single transaction, if, in each case, he is acting in the business for which he was employed by the principal.^^ It is said, that the ground upon which the acts and declara- tions of an agent are admitted in evidence against his princi- pal is, that whatever he says or does in reference to the busi- ness in which he is at the time employed, and which is within the scope of his authority, is done or said by the principal. But to bring such statements, representations or admissions within the rule it is essential that they should be made by the agent at the time of the transaction, either while he was actually engaged in its performance or so soon thereafter as to be a part of it.^^ It is a further rule, however, that before one can be affected by the acts and declarations of another as his agent, the agency must be proved;^- and where the question is as to the Weare v. Gove, 44 N. H. 196; White » See Story, Agency, § 443. V. Madison, 26 N. Y. 117; Taylor v. lo Hasltell v. Starbird, 152 Mass. Shelton. 30 Conn. 122. 117. T Robinson v. Walton, 58 Mo. n Cole v. O'Brien, 34 Neb. 68; 380; Keough v. Leslie, 92 Pa. St. Hall v. Crandall, 29 Cal. 567; Dun- 424; Bennett v. Judson, 21 N. Y. can v. Niles, 32 111. 532. 238; Bank v. Gregg, 14 N. H. 331; 12 Gibbs v. Holcomb. 1 Wis. 23; Echols V. Dodd, 20 Tex. 190. Emmons v. Dowe, 2 Wis. 322. 8 Hazleton v. Agate, 11 Rep. 559. AGENTS AND BROKERS. 271 extent of the agent's powors, it iinisL lirwt be shown that they extend to the acts or dec la rations in (lueslion,'-' Thus, the owner of property is not bound by representations made con- cerning it, without his authority or knowh'dge, by one not authorized to make a sale of it, but simply to procure some per- son to negotiate with the owner.^ ' The acts and declarations of an agent, made after the trans- action to which they relate, are not admissible to bind the principal.'"' § 224. Fraud of agent. The fraud of an agent will be chargeable to the prin(ii)al whenever he has had the benefit of the fraud,!" ev( n thougli he was ignorant of it;!'^ and usually whether the agent, representing a material fact, knew it to be false, or made the as.sertion without knowing wdiether it was ■true or false, is wholly immaterial.''* But generally, to charge the principal with his agent's wrong, the special matter which constitutes the wrongful act must have reference to the par- ticular subject-matter of the employment, and fall strictly within the scope of the agent's authority.^'-* It would seem, however, that where an agent innocently makes a misrepresentation of facts while effecting a contract for his principal, it will not amount to fraud on the part of the principal, though he is aware of the real state of facts, if he was ignorant of the misrepresentaticms being made and did not diiect the making thereof.-^* And it would seem, further, that an innocent vendor cannot be sued in tort for the fraud of his agent in effecting a sale. Tn such a case the vendee may rescind the contract and reclaim the money paid, and if not 13 Coon V. Gurley, 49 Ind. 199. is Foard v. McComb, 12 Bush 1* Lansing v. Coleman, 58 Barb. (Ky.) 723. (N. Y.) 611. 1'-' Smith v. Tracy, 21 N. Y. 79; IS M. & M. R. R. Co. V. Finney, Kennedy v. Parke, 17 N. J. Eq. 415; 10 Wis. 388. Echols v. Dodd. 20 Tex. 190; Busch I'i Bennett v. Judson, 21 N. Y. v. Wilcox, 82 Mich. 336; Nichols 238; Johnson v. Barber, 10 111. 425. v. Wadsworth, 40 Minn. 547; Cris- is Presley v. Parker, 56 N. H. wold v. Gebbie, 126 Pa. St. 353. 409; Bank v. Gregg, 14 N. H. 331; 20 Kelly v. Ins. Co., 3 Wis. 254; Haskell v. Starbird, 152 Mass. 117; and see Davies v. Lyon, 36 Minn. but see Davies v. Lyon, 36 Minn. 427. 427. 273 AGENTS AND BROKERS. repaid may sue tbe vendor for it, or he imiy sue the agent for deceit.21 So, on tlie other hand, a principal may maintain an action grounded on fi-audulent representations made to his agent, whereby a transfer of his property was affected.22 An agent may be held responsible for his fraudulent actions by any person in privity with him who has been injured thereby; and where the agent of the owner of property makes representations as to its character and condition which are relied on by the purchaser to his i^rejudice, and which are in fact false and fraudulent, and unqualifiedly made by such agent as of his own knowledge, the purchaser may maintain an action against him for damages.^^ § 225. Notice to agent binds principal. The rule is general that knowledge of the agent is knowledge of the jjrincipal, who is chargeable with notice of all facts brought home to the agent while engaged in the business and negotiations of the principal.^^ The rule is based upon the jninciple that it is the duty of the agent to act for his principal upon such notice or to communicate the information obtained by him to his prin- cipal, so as to enable the latter to act upon it.-^ But to charge the principal with implied notice of facts, because they were known 'to his agent, it is essential that the knowledge shall have been acquired during the existence of the agency,-^ and in connection with the business upon which the agent is 21 Kennedy v. McKay, 43 N. J. L. 25 Frenkel v. Hudson, 82 Ala. 288. 158; Pringle v. Dunn, 37 Wis. 449; 22 Ward V. Barkenhagen, 50 Wis. Hummel v. Bank, 75 Iowa 689. 459. The rule that a purchaser is in 23 Clark V. Lovering, 37 Minn, equity chargeable with construc- 120. tive notice of the contents of a 24 Walker v. Schreiber, 47 Iowa deed which came to the knowledge 529; Bank v. Milford, 36 Conn. 93; of his agent in the investigation of Whitehead v. Wells, 29 Ark. 99; the title does not apply as between Pringle V. Dunn, 37 Wis. 449; Allen the vendor and the purchaser; it V. Poole, 54 Miss. 323; Meier v. applies only as between the pur- Blume, 80 Mo. 179; Hovey v. chaser and third persons having Blanchard, 13 N. H. 145; Farring- prior equitable rights. Champlin ton v. Woodward, 82 Pa. St. 259; v. Laytin, 18 Wend. (N. Y.) 407. Ross V. Houston, 25 Miss. 591; 2c Weiser v. Dennison, 10 N. Y. Backman v. Wright, 27 Vt. 187; 68; Pepper v. George, 51 Ala. 190; Roach v. Carr, 18 Kan. 529; Taylor Houseman v. Girard Assoc, 81 Pa. V. Young, 56 Mich. 285. St. 256; Wheeler v. McGuire, 86 AGENTS AND BROKERS. 27*3 engaged;-^ aiiroperty, labors under the same incapacity as the agent.^*^ Thus, the ])urchase of 44 Dood V. Wakeman, 26 N. J. Eq. *» Cook v. Berlin Mill Co., 43 Wis, 484. 433. •J"- Rogers v. Locket, 28 Ark. 290. ^o Miller v. R. R. Co., 83 Ala. 274; 4« Krutz V. Fisher, 8 Kan. 90. Kramer v. Winslow, 130 Pa. St. Unless he first distinctly notify the 484; and see Hegenmyer v. Marks, principal that he renounces the 37 Minn. 6. agency. McMahon v. McGraw, 26 ■<<> Coffee v. Ruffin, 4 Cold. Wis. 614. (Tenn.) 510; Wade v. Harper, 3 47 Hegenmyer v. Marks, 37 Yerg. (Tenn.) 383; Oliver v. Piatt, Minn. 6. 3 How. (U. S.) 333. 278 AGENTS AND BROKERS. land by the clerk of u broker employed to make a sale of such land will render the clerk a trustee for the vendor.^^ § 227. Continued — Effect of laches of vendor. There is no question as to llic altsolulc intc^rily of the proposition tliat no person occupyin<> a relation of confidence to another can be permitted to purchase the i)r()i)erty which forms tlie subject of the coutidence when lie has, by reason of such relation, a duty to i)erform in respect to it which is inconsistent willi the character of a purchaser. But such a sale is not void. At best it merely raises an imputation of fraudulent conduct on the part of the agent and the vendor, or those united with him in interest, would be entitled to have the sale set aside with- out showing any actual fraud or injury. But to avoid a sale of this kind application must be made within a reasonable time, and unexplained delay, coupled with other incidents, may bar the assertion of the right. Thus, if the vendor permits the holder of the legal title to expend large sums of money in improvements, or to do any other acts which tend to enhance the value of the land, which he would not have done had the right to rescind been promptly asserted, this would constitute a laches sufficient to preclude the negligent I)arty from relief. Equity will not permit a person entitled to its aid to experiment or speculate at the risk or expense of another, nor wait until the future shall detenxiine whether property will increase or decrease in value, and then elect to take it if it increases.^- The rule is more frequently applied to sales by infants, trustees, or ministerial officers, but its principles extend equally to the case of agents, and while the cardinal rule still holds good that the agent cannot become a purchaser, it is qualified by the further rule that if he does his title is not void, but voidable only, and that the right of avoidance may be lost by acquiescence or laches. § 228. The right to commissions. It requires no citation of authority to sustain the principle that w'here a sale has been made and consummated through the instrumentality of a broker or agent, he is entitled to whatever commission may •-^^i Gardner v. Ogden, 22 N. Y. Bank v. R. R. Co., 125 Mass. 490; 349; Beeson v. Beeson, 9 Pa. 284; Cox v. Montgomery, 36 111. 398; Rosenberger's Appeal, 26 Pa. 67. Bliss v. Prichard, 67 Mo. 181. 152 Gibson v. Herriott, 55 Ark. 85; AGENTS AND BROKERS. 279 lia\c' Im'cu slipLiluled iur, or, in the ubseiict' of au exprch-.s con- tract, to a reasonable compensation for his services. It is not cssciilial, however, to fix the rij^lit t(j coniniissions that a sale should in all cases result from the agent's ellorts — the obliga- tion of his undertakin}.,' is simply to brinjj; the buyer and seller lo an a*^reement ;•''•' and this he fully accomplishes when he has produced a person ready, willing and able, to purchase the property on the prescribed terms/'^ Having thus acquitted himself of the only duty which the law imjxjses his commis- sions are regarded as earned; and the principal cannot relieve himself from liability therefor by a capricious refusal to con- summate the sale,"-"' or by a voluntary act of his own disabling him from perfonnance."'" So, also, if after the agent has pro- duced an acceptable purchaser, and the contract has been signed, the latter refuses to complete the agreement on account of fraud or misrepresentation on the part of the ovvner'^^ or for defects in the title,'^'^ the right to compensation ''■'• Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; Knapp v. Wal- lace, 41 N. Y. 477; Hinds v. Henry, 36 N. J. L. 328. •"'^ Wylie V. Marine Bank, 61 N. Y. 415; Tombs v. Alexander, 101 Mass. 255; Phelan v. Gardner, 43 Cal. 306; Bell v. Kaiser, 50 Mo. 150; Edwards v. Goldsmith, 16 Pa. St. 43; Jones v. Adler, 34 Md. 440; Hamlin v. Schulte, 34 Minn. 534; Vinton v. Baldwin, 88 Ind. 104; De Laplaine v. Turnley, 44 Wis. 31; Hoyt V. Shipherd, 70 111. 309; Leete V. Norton, 43 Conn. 219; Bucking- ham V. Harris, 10 Colo. 455; Wil- son V. Mason, 158 111. 304; Gelatt V. Ridge, 117 Mo. 553; Coleman v. Meade, 13 Bush (Ky.) 358; Kim- berly v. Henderson, 29 Md. 512; Hinds V. Henry, 36 N. J. L. 328. •>^ De Laplaine v. Turnley, 44 Wis. 31; Stewart v. Murray, 92 Ind. 543; Moses v. Burling, 31 N. Y. 462; Phelan v. Gardner, 43 Cal. 306; Tyler v. Pars, 52 Mo. 249; Greenwood v. Burton, 27 Neb. 808; O'Brien v. Gilleland, 79 Tex. 602. ■'" Reed's Executors v. Reed, 82 Pa. St. 420; Lane v. Albright, 49 Ind. 275; Nesbit v. Helser, 49 Mo. 383; Campbell v. Thomas, 87 Cal. 428; Hannon v. Moran, 71 Mich. 261; Ward v. Cobb, 148 Mass. 518; Francis v. Baker, 45 Minn. 83. ■•' Glentworth v. Luther, 21 Barb. (N. Y.) 145. ss Knapp V. Wallace, 41 N. Y. 477; Love v. Miller, 53 Ind. 294; Pearson v. Mason, 120 Mass. 53; Leete v. Norton, 43 Conn. 295; Sayre v. Wilson, 86 Ala. 151; Par- ker V. Walker, 86 Tenn. 566. It has been held, however, that where a purchaser refuses to complete a sale of real estate on a flimsy ob- jection to the title, and the broker has failed to reduce the contract to writing so that no action for a specific performance will lie, the broker is not entitled to his com- missions from the owner. Gil- christ v. Clarke (Tenn.), 8 S. W. Rep. 572. 280 AGENTS AND BROKERS. will still remain unimpaired,^^ provided the agent himself is without faiilt.*'^ A{i,ain, after negotiations begun through a broker's intervention have virtually culminated in a sale, he cannot be discharged so as to deprive him of his commissions; and if it be satisfactorily shown that the broker was the pro- curing cause of the sale he will be awarded compensation not- withstanding such discharge/'^ The provisions of the contract of agency may var}- these rules, as, if the contract provides in tenns that a commission shall be paid only on the consumma- tion of a sale, and the principal, on reasonable grounds, declines to complete same, the right to compensation may not accrue.^- § 229. Continued — Agent must produce actual purchaser. It has been held that before an agent or broker can recover his commissions, where the sale has not been consummated, it must appear that the proposed purchaser was of sufficient pecuniary ability to have consummated the purchase; that it is not enough that the person procured by the agent either offered or actually entered into a contract of purchase, if he was not able to comply with his contract,''^ particularly if the vendor in accepting him as such a purchaser did not rely upon his own judgment but rather upon that of the agent. Indeed the production by the agent of a person as purchaser has been held to be an implied representation on his i)art, that such person is financially able, as w'ell as ready and willing to complete the purchase.^* Of the justness of this rule there can be no question and it has received a general acquiescence w^henever invoked.*^^ There is, however, a marked difference 59 Cook V. Fiske, 12 Gray (Mass.) Cal. 306; Bell v. Kaiser, 50 Mo. 150; 491; Desmond v. Stebbins, 140 Lyon v. Mitchell, 36 N. Y. 235. Mass. 339; Duclos v. Cunningham, 62 Flower v. Davidson, 44 Minn. 102 N. Y. 678; Edwards v. Gold- 46; but see Smith v. Schiele, 93 smith, 16 Pa. St. 43. Cal. 144. 60 As where the broker knew the cs Coleman v. Meade, 13 Bush, title was defective. Tombs v. (Ky.) 358; Kimberly v. Hender- Alexander, 101 Mass. 255; Barthell son, 29 Md. 512; Hinds v. Henry, 36 V. Peter, 88 Wis. 316. N. J. L. 328. 61 Attrill v. Patterson, 58 Md. 64 Butler v. Baker, 17 R. I. 582. 226; Keys v. Johnson, 68 Pa. St. 65 Duclos v. Cunningham, 102 N. 42; Vreeland v. Vetterlein, 33 N. Y. 678; Kimberly v. Henderson, 29 J. L. 247; Goss v. Steavens, 32 Md. 512. Minn. 472; Phelan v. Gardner, 43 AGENTS AND BROKERS. 281 of opinion as to who shall snslain ilii- h\)r(h-n of pioof in show- ing the financial ability of the proposed purchaser. One line of cases liolds that the burden is on the agent or broker suing for his coinniissions, upon the ground that it is a part of his undertaking to produce a person able to respond to the linancial demands of the contract."" On the other hand there are cases which hold with equal directness that it is to be presumed, until the contrary appears, tliat the jierson jtro- duced is solvent and jtecuniarily able to make the purchase, and hence, that the burden of showing inability rests on the defendant."' Under this line of decisions the plaintilf makes a prima facie case when he proves the introduction by him to the vendor of a jjcrson willing to purcluise on the terms at which the agent was authorized to sell. It would seem as though tlie fonner rule is founded on the better reason and is more in consonance with the principles of natural justice, while the latter is, to a large extent, technical and arbitrary. § 230. Continued — Sale must result from broker's efforts. In all cases where a sale has been ell'ected, however, in order to fix the broker's rights, it must have been the direct result of his exertions. This seems to be the indispensable condition to a right of recovery on his part; but, in regard to tlie extent or character of such exertions, there is no fixed standard or rule of measurement. Indeed, it would seem that any effort, however sliglit, which actually operatinl to induce the vendee to purchase would be sutticient to entitle the broker to remun- eration."^ On the other hand, if the services of the broker, 66 iselin V. Griffith, 62 Iowa 668; chases it from the owner directly. Zeidler v. Walker, 41 Mo. App. 118; the broker must be regarded as the Butler V. Baker, 17 R. I. 582; Leahy procuring cause of the sale, and V. Hair, 33 111. App. 461. therefore entitled to his commis- 67 Cook V. Kroemeke, 4 Daly sion, even though he may have had (N. Y.) 268; Grosse v. Cooley, 43 no personal intercourse or dealing Minn. 188. with the purchaser. Lincoln v. o"* Pope v. Beals, 108 Mass. 561; McClatchie, 36 Conn. 136; and see Jones V. Adler, 34 Md. 440; Bell v. Sussdorff v. Schmidt, 55 N. Y. 320; Kaiser, 50 Mo. 150; Lloyd v. Mat- Carter v. Webster, 79 111. 435; thews, 51 N. Y. 124. Thus, if a Earp v. Cummins, 54 Pa. St. 394— real estate broker communicate in- all of which sustain the doctrine formation regarding property in of the text. Whenever the broker his hands to one who reports it to is the "procuring cause" the right a friend, who subsequently pur- to commissions becomes fixed — as 282 AGENTS AND BROKERS. liowevt^r arduous, have failed in the accomplishment of a sale in the first instance, and as a result the negotiations have been definitely abandoned, notwithstandinji; other and supervening influences may have evenlually induced the vendee to recon- sider his resolution and make the purchase, the broker will not be able to claim commissions."'* This, however, must be taken with one important and necessary limitation; if the efforts of the broker are rendered a failure by the fault of the employer then he may still claim commissions, upon the famil- iar principle that no one can avail himself of the non-perform- ance of a condition precedent who has himself occasioned its non-performance. But this limitation is not even an excep- tion to the general rule affecting the broker's right; for it goes on the ground that the broker has done his duty, and that he has brought buyer and seller to an agreement; but that where a broker advertised property at his own expense and a third per- son seeing it directed a purchaser to the owner. Anderson v. Cox, 16 Neb. 10; but see Charlton v. Wood, 11 Heisk. (Tenn.) 19. So, also, where a purchaser attracted to the property by the broker's signs, ad- vertisements, etc., opens negotia- tions with the owner dii'ect. Suss- dorff V. Schmidt, 55 N. Y. 319. If the broker simply introduces a pur- chaser and through such introduc- tion the owner personally effects a sale afterward the right to com- missions will, it seems, accrue to the broker. Scott v. Patterson, 53 Ark. 49. It must be understood, however, that in all such cases the broker must be under due employ- ment by the owner. Hanford v. Shapter, 4 Daly (N. Y.) 243. G'J Earp V. Cummins, 54 Pa. St. 394; Lipe v. Ludewick, 14 111. App. 372; Livezey v. Miller, 61 Md. 226; Wylie v. Marine Bank, 61 N. Y. 415. As remarked by the court in Sibbald v. Iron Co., 83 N. Y. 378: "The risk of failure is wholly his. The reward comes only with suc- cess. That is the plain contract and contemplation of the parties. The broker may devote his time and labor and expend his money with ever so much of devotion to the interests of his employer, and yet if he fails, if, without effecting an agreement or accomplishing a bargain, he abandons the effort, or his authority is fairly and in good faith terminated, he gains no right to commissions. He loses the labor and effort which was staked upon success; and in such event it mat- ters not that, after his failure and the termination of his agency, what he has done proves of use and benefit to the principal. In a mul- titude of cases this must necessar- ily result. He may have introduced to each other parties who otherwise would have never met; he may have created impressions which, under later and more favorable circumstances, naturally lead to and materially assist in the con- summation of a sale; he may have planted the very seeds from which others reap the harvest — but all that gives him no claim. It was AGENTS AND BROKERS. 283 the contract is not consmnmatcd and fails through the after- fault of the seller.70 Nor is it necessary, to entitle the broker to his commissions, that the contract negotiated by him should be enforceable in hiw, provided the purchaser remains willing to comply witli same and such comi)liance is prevented by the refusal of the owner to receive the purchase price and make conveyance. If, in fact, the broker was authorized to negotiate the sale the further fact that the purchaser could not have been compelled to carry out the contract had he chosen to set up the statute of frauds, is immaterial, if, through the owner's fault, the sale was not consummated J^ As a further recpiisite to enable a broker to recover com- missions he must have been expressly employed or authorized by his iH'incipal to conduct the necessary negotiations, or such must be inferred as an implication of law from the fact that the principal subsequently avails himself of the broker's serv- icesJ2 If tiie vendor refuses to employ the broker, the mere fact that he sends a customer who eventually buys will not entitle him to compensation."'* If by a special contract the broker is not to receive any compensation unless the property is sold at a stated price, he is not entitled to commissions unless the projieity is sold at that price, or unless he produces a purchaser who is willing to pay it."^ So, too, an agent must act within the terms of his authority and a substantial variance therefrom will defeat his right to compensation,''^ but the mere fact that the broker has agreed with a purchaser to sell land on dillerent tenns from part of his risk that, failing him- Redfield v. Tegg, 38 N. Y. 212. self, not successful in fulfilling his Leaving a description of property obligation, others might be left to with a real estate broker, accom- some extent to avail themselves of panied by a request to sell at cer- the fruit of his labors." tain terms and for a certain price, 70 Sibbald v. Iron Co., 83 N. Y. is a sufficient contract of employ- 378. ment. Long v. Herr, 10 Colo. 380. 71 Holden v. Starks, 159 Mass. 73 Atwater v. Lockwood, 39 Conn. 503; Gelatt v. Ridge, 117 Mo. 553; 45. Kalley v. Baker, 132 N. Y. 1. i* Schwartze v. Yearly, 31 Md. 72 Atwater v. Lockwood, 39 Conn. 270; Briggs v. Rowe, 1 Abb. (N.Y.) 45; Hinds v. Henry. 36 N. J. L. 328; App. Dec. 189. Twelfth Co. v. Jackson, 102 Pa. St. 75 Nesbit v. Helser, 49 Mo. 383. 296; Canby v. Frick, 8 Md. 163; 284 AGENTS AND BROKERS. those contained in his instructions will not uflect his rights if the principal subsequently ratifies the agreement; for such ratification will be held equivalent to prior authority, and the princii)al will be bound for (he amount of commissions agreed uponJ*' And, in like manner, where the terms of the sale are fixed by the vendor in accordance with which the broker undertakes to produce a purchaser, yet if, upon the procure- ment of the broker, a purchaser comes with whom the vendor negotiates, and thereupon voluntarily reduces the price of the property, or the quantity, or otherwise changes the terms of sale as proposed to the broker, so that a sale is consummated, or terms or conditions are offered which the proposed buyer is ready and willing to accept, then, in either case the broker will be entitled to his commission at the rate specified in his agreement with his principal.'^''' § 231. Continued — Where more than one broker is employed. Where several brokers are avowedly employed, the entire duty of the vendor is performed by remaining neutral between them, and he will have the right to make the sale to a bu^'er produced by any of them without being called upon to decide between the several agents as to which of them was the prim- ary cause of the purchase.'''^ So, also, if a broker who first procures a purchaser reports his offers to his principal with- out identifj'ing the person from whom they came, he can- not recover commissions, in case of a subsequent sale through another broker at the same price to the same purchaser, unless it appears in evidence tliat the vendor knew this fact, or that notice was given him by the agent before the completion of the contract and payment of commissions to the second broker. If there be but one broker employed he can with safety with- hold the name of the purcliaser until the sale shall have been made; but as the emplo^Tuent of one broker does not preclude the emplojTuent of another to procure a purchaser for the same property, it becomes the duty of the broker who pro- ve Woods v. Stephens, 46 Mo. 556; 378; Reynolds v. Tompkins, 23 W. Gelatt V. Ridge, 117 Mo. 553. Va. 229. T7 Stewart v. Matlier, 32 Wis. ts Vreeland v. Vetterlein, 33 N. J. 344; Woods v. Stephens, 46 Mo. L. 247. But where the owner em- 555; see also Fisher v. Ball, 91 Ind. ploys several brokers, he is bound 243; Lockwood v. Rose, 125 Ind. to pay the one who does in fact ef- 588; Sibbald v. Iron Co., 83 N. Y. feet the sale, and cannot exercise AGENTS AND BROKERS. 285' cures one, and who looks to the sccurily of Iuh conmiissioiiH, to report the name and ollVp (o liis i)riii(ipal that the hiltci- may be nolificd in lime, and tlins put njton liis ^Miaid Ix'forc he pays the commissions (o oil her."" The forei^oin;^ principles are in full accoi-dance willi ^ood Imsiness melliods, and are such as are ^cnei'ally accejiled in real estate ti-ausactions. A more ditlicult (juestion is jiicsenled where several brokers have each endeavored to bi-inj^ about a sale, which is tinally consummated, and each has contributey his previous iinsuc- fessfiil efforts, does not give him a right to commissions."'' Xeitlier can commissions be chiimed wlien a customer is pre- sented after the j)rincipal has withdrawn his off«*r to sell.* § 234. Continued — Revocation of broker's authority. As a general rule an owner may always recall the authority he may have given to a broker, and this notwithstanding the broker may have expended time, labor and money in endeav- oring to effect a sale. The mere authorization to offer lands for sale, even though accompanied by an express promise to pay a stipulated compensation in case a sale is effected, does not, in any proper sense, constitute a contract. It purports to be nothing more than an unilateral agreement, is made with- out consideration, and lacks the important element of mutual- it3' of obligation. At best, it is nothing more than a present, but revocable, grant of authority to sell, and the mere giving and receiving of such a grant creates no contractual relation between the j)arties. So long as the power remains unexe- cuted by the broker it may, at his pleasure, be recalled by the owner, and the broker will be without remedy.^ § 235. Continued — Sale by unlicensed broker. The right of every person to pursue any lawful business, occupation or profession, is subject to the paramount right inherent in every government, as a part of its police power, to impose such restrictions and regulations as the protection of the public may require.^ This power is most frequently invoked to reg- ulate the practice of those professions where special skill and knowledge are required and which directly affect the health, property or morals of the people. The primary object of these laws is to protect the public and to regulate the practice of particular professions and while a fee is usually exacted for a certificate to the licentiate the matter of revenue is only inci- dental. There has never been any serious dispute as to the absolute right of the state to impose such restrictions and regulations as ma}' be found necessary for the protection of the health, morals, and safety of society and to prohibit the »9 Sibbald v. Iron Co., 83 N. Y. Minn. 11, for an interesting illus- 378. tration of the doctrine of the text. 1 Young V. Tranor, 158 111. 428. =' State v. Noyes. 47 Me. 189; 2 See Stensgaard v. Smith, 43 State v. Randolph, 23 Ore. 74. 19 290 AGENTS AND BROKERS. exercise of the riglit to practice by those who neglect to com- ply with the regulations. But there are many occupations which may be pursued by any person without detriment or danger to the public welfare and therefore need no regulations to control them, and in this category we may easily place a real estate agent or broker. Such business may properly be carried on by any person. It has been held, however, that the legislature, in authorizing the imposition of license fees is not restricted to any x)articular class of trades or occupations,^ and it is fundamental that where a statute makes a particular business or occupation unlawful for unlicensed persons a contract made in the course of such business is unenforceable and without legal effect.^ The occupation of brokerage has ever been held to be the sub- ject of regulation under the police power of the state, and license fees imposed upon this class of traders are regarded as a proper exercise of the power.^ In many of the decisions, where the question as to the right of an unlicensed broker to recover commissions on sales made through his instrumentality has arisen, the special law under consideration has been the internal revenue acts of the United States; but the principles involved in such cases are, in a large measure, inapplicable to state laws and local municipal regu- lations. The fact that an agent had taken out no license under a former internal revenue law of the United States was held not to affect his right to recover compensation. The sole object of that law was to raise revenue; and the question in such cases is whether the statute was intended as a protection or merely as a fiscal expedient — whether the legislature intended to prohibit the act unless done by a qualified person or merely that the person who did it should pay a license fee. If the latter the act is not illegal,''^ and the revenue laws will not affect his right to recover upon an express contract for fixed compensation.^ On the other hand, if the statute or ordi- nance is intended to regulate the business of brokerage, a con- trary rule would apply; and unless the broker, in the event of 4 Braun v. Chicago, 110 111. 186. Johnson v. Hulings, 103 Pa. St. n Eckert v. Collet, 46 111. App. 498. 361; Buckley V. Humason, 50 Minn. 7 Ruckman v. Bergholz, 37 N. J. 195. L. 437. Braun v. Chicago, 110 111. 186; 'Woodward v. Stearns, 10 Abb. AGENTS AND BROKERS. 291 such a rej^ulatiou, lias comijlicd uilh tin- lau ami hceii diilv licensed to pursue such a calling; lie cannot iccover coniniis- sions by a Ie! 238. Double agency. The undertakin}^ as well as the duty of an a^cnl is lo proiuole, by all lawful measures, (he interests of his principal. Hence, it becomes the duty of an a^^ent for the vendor to sell the properly at the hi<,'hes( attainable price; of the ag;ent for the purchaser, lo buy it for the lowest. These duties are so utterly irreconcilable and conflicting that they cannot be performed by the same person witlumt great danger that the rights of one principal will be sacrificed to jiromote the interests of the other, or that neither of them will enjoy the benefit of a discreet and faithful exercise of the trust reposed in the agent.^^ For this reason it has invariably been held that an agent cannot recover for services rendered while holding such entirely incompatible relations,^'"' unless, indeed, it clearly appears that both vendor and vendee had full knowl- edge of all the circumstances and assented to the double emplo}inent.^*' The justness of the rule is apparent, and its soundness has never been questioned; it is a rule of public I)olicy, founded upon the frailties of human nature, and it matters not that no fraud may have been meditated and no injury done, for it is not intended to be remedial of actual wrong, but rather a preventative of the possibility of it.^''' But while the rule may be considered as established beyond controversy, it has an exception, equally well established, that an agent nuiy be employed by and recover from both parties as a mere "middle-man" to bring them together.^ ^ When this has been accomplished his duty is performed, and to his 14 Farnsworth v. Hemmer, 1 Barry v. Schmidt, 57 Wis. 172; Allen (Mass.) 494; Webb v. Pax- and see Vinton v. Baldwin. 88 Ind. ton, 36 Minn. 532. 104; Rowe v. Stevens, 53 N. Y. 621. ir. Walker v. Osgood, 98 Mass. A custom among brokers that they 348; Stewart v. Mather, 32 Wis. are entitled to a commission from 344; Raisin v. Clark, 41 Md. 158; each party is invalid as against Bollman v. Loomis, 41 Conn. 581; public policy, and cannot be sus- Everhart v. Soarlc, 71 Pa. St. 256; tained by the courts. Raisin v. Lynch v. Fallon. 11 R. I. 311; Clark, 41 Md. 158. Scribner v. Collan, 40 Mich. 375; i^Rice v. Davis, 136 Pa. St 439. Lloyd V. Colston. 5 Bush (Ky.) is Stewart v. Mather. 32 Wis. 587; Bell v. McConnell. 37 Ohio St. 344; Rupp v. Sampson. 16 Gray 396. (Mass.) 398; Rowe v. Stevens, 53 16 Bell V. McConnell, 37 Ohio St. N. Y. 621; Montross v. Eddy, 94 396; Rice v. Wood, 113 Mass. 133; Mich. 100. 29-i AGENTS AND BROKERS. case the policy of the hiw which excludes double compensa- tion has been considered inapplicable. It has been held that this will be the case even where each of the principals was ignorant of his emploj'nient by the other.^'^ The rule and the exception are well established both by reason and authority. When an agent is emploj'ed by one party to sell and by the other to purchase, and is vested with any discretion or judgment in the negotiation, his duties are in conflict and in respect to adverse interests, and he cannot fairly serve both i)arties. This adverse interest of the parties, and this conflicting and inconsistent duty of the agent, forms the basis of the rule; and the exception is founded upon the absence of this adverse interest of the parties and upon the concurrence of the duty of the agent toward both jmrties alike; as where the price is fixed by the vendor, and merely accepted by the purchaser through the procurement of the agent, or where no terms are fixed by the vendor or authorized by him to be fixed by the agent, and the agent acts as the mere middle- man to bring the j^arties together for a negotiation and con- tract to be made by themselves-^*^ Again, there is nothing inconsistent with the rule as stated, in permitting two persons who desire to negotiate an exchange or a bargain and sale of property to agree to delegate to a third person in whose judgment and discretion they mutualh' repose confidence the duty of fixing terms or arranging for a jirice. Such agent may not, indeed, be able to serve each of his prin- cipals with all his skill and energy; nor obtain for his vendor principal the highest price which might be obtained, or for the purchaser the lowest price at which the land might be bought; 3'et he may still be able to render to each a sei-vice entirely free from falsehood and fraud, and in which his best judgment and soundest discretion are fully exercised. In such case such service is all that either of his principals contracted for; and when this is done, and free assent given by each principal to the double relation, the right of the agent to compensation cannot be denied on any just principle of morals or of law.2i i9Ranney v. Donovan, 78 Mich. Rupp v. Sampson, 16 Gray (Mass.) 318. 398; Walker v. Osgood, 98 Mass. zoQrton v. Scofield, 61 Wis. 382; 348; Cox v. Haun, 127 Ind. 325. Barry v. Schimdt, 57 Wis. 172; 21 Bell v. McConnell, 37 Ohio St, Bell V. McConnell, 37 Ohio St. 396; 396; and see Alexander v. Univer- AGENTS AND BROKERS. 29o Within the forcjiuiii;^ I'Xicplicnis a ii'iuvery may be* hud by an agent I'luni either or both of lii« prineiiiais, lie having acted with their full luiow ledge and c-ouseiit; yet the preeept Indds iMjuaily good in law as in morals that no servant can serve two masters, and any attempt so to do withont the full knowl- edge and free couseut of both i)arties is not to be tolerated. Unless the jirincijial contracts for less, the agent is bonud to serve him wiih all his skill, judgment and discretion; and this duty he cannot divide and give part to another. By engag- ing with a second he forfeits his right to compensation from the one who first employed him, and for the same reason he cannot recover from the second employer who is ignorant of the first engagement. Nor will the fact that the second employer has knowledge of the first engagement materially alter the case; for then both he and the agent are guilty of the wrong committed against the first employer, and the law will not enforce an executory contract entered into in violation of his rights. Neither is it any answer to say that the second employer, having knowledge of the first employment, should be held liable on his promise because he could not be defrauded by the transaction; for the contract itself is void as against public policy and good morals, and both parties thereto being 171 pari delicto the law will leave them as it finds them.22 ^ 239. The measure of compensation. Usually where ])arties stipulate for the services of an agent or broker in the purchase or sale of real estate, the com})ensation which is to be i)aid for such service is also fixed by mutual agreement; and, in the absence of any other controlling circumstances, such agree- ment will form the basis of the amount which the agent shall be entitled to receive. Where no such arrangement has been made, a well-established and uniform custom or usage may be relied n])()n as a ])ro])er criterion for fixing the value ;--^ and sity, 57 Ind. 466; Joslin v. Cowee, long established and so well known 56 N. Y. 626; Fitzsimmons v. S. W. as to acquire the force of law, un- Ex. Co., 40 Ga. 330; Adams Mining contradictory and distinct. The Co. V. Senter, 26 Mich. 73. rule applied in a case where the '•2- 1 Bell V. McConnell, 37 Ohio evidence was held not sufficient to St. 396; Rice v. Wood, 113 Mass. support a custom to pay brokers' 133. commissions, where the sale was 2't A custom, to vary a settled effected through the instrumen- rule of law, must be reasonable, tality of another. Pratt v. Bank, 29G AGENTS AND BROKERS. ill the absence of such imifoi'iu custom or usage, the measure of the broker's compensation should be the value of the ser- vices rendered, to be ascertained as in other cases of einploy- meut.-^ J:; 240. Sub-agents — Delegation of authority. The general rule of law is that a delegated power cannot be delegated; therefore an agent has no right to transfer his authority to a sub-agent v^^ithout the consent of his piincipal. If, in the absence of such consent, he does delegate his authority, the sub-agent whom he appoints will be regarded as his agent and not the agent of the principal ;-■'' and if an agent in the con- duct of his agency employs a sub-agent without authority to bind his principal, either expressly given or fairly presumptive from the particular circumstances or the usage of the busi- ness, the sub-agent must look to his immediate employer for his pay, and has no claim for compensation against the agent's principal, between whom and the sub-agent no privity exists.^^ 12 Phil. (Pa.) 387. Usage is not readily adopted by the courts; therefore the proof of usage must be clear and explicit, and the usage so well established, uniform and notorious that parties may be pre- sumed to have known it, and con- tracted in reference to it. Hall v. Storrs, 7 Wis. 253. It being the es- tablished usage of land agents in Milwaukee to charge and receive three per cent of the amount of the purchase money on sales effected through their agency, held, in a suit brought by P., a land agent there, against K. for the three per cent, to which he claimed to be en- titled according to such usage, where K. had employed him to sell certain lands for him at a certain price, and P. found a person ready and willing to purchase the lands on K.'s terms, but K. refused to sell, that P. was not entitled to recover on such implied contract until the consummation of the sale, and it made no difference whether the sale was prevented by K. himself or the want of a pur- chaser; whether P. could recover on a quantum vieruit, guere. Power v. Kane, 5 Wis. 265. 24 Potts V. Aechternacht, 93 Pa. St. 138. 25 Davis V. King, 66 Conn. 465 Wright V. Boynton, 37 N. H. 9 Connor v. Parker, 114 Mass. 331 Loomis V. Simpson, 13 Iowa 532. 26 A special agent acting simply by virtue of a power of attorney to sell and convey certain real estate cannot employ a bioker to procure a purchaser and negotiate a sale, so as to raise a privity between his principal and the broker, and give the latter a right of action for his compensation directly against his principal. Jenkins v. Funk, 33 Fed. Rep. 915; and see Hand v. Conger, 71 Wis. 292; Corbett v. Schumacker, 83 111. 403. CHArTER VTTT. SALES BY AUCTION. t 240. Generally. § 250. 241. The sale. 251. 242. Sales without reserve. 252. 243. Particulars and conditions of sale. 253. 244. Sale by plat. 254. 245. Auctioneer's relations to the parties. 255. 246. Auctioneer cannot delegate authority. 256. 247. Withdrawing bid. 257. 248. Refusing bid. 249. Auctioneers' statements and representations. Puffers and by-bidders. Vendor as bidder. Combinations among bid- ders. Auctioneer's memorandum. Who may make the memo- randum. Auctioneer's receipt as memorandum. The deposit. Refusal to comply with bid — Resale. § 240. Generally. An auction is generally defined as a com- petitive sale at which the highest bidder becomes the pur- chaser. As a mode of sale it is of very great antiquity,^ and, in some cases, is the only method of disposition which the law permits. Real property is very often sold at auction, not only in pursuance of the judgment or decree of some legal tribunal and as the result of some proceeding theretofore had, but also by the mere volition of the vendor. It is a method frequently resorted to as a means of inaugurating settlements in sparsely- populated districts, opening new subdivisions adjacent to cities, or for the more speedy disposal of i)roperty in any locality, or with a view to an increased jjiice by reason of competitive bidding. 1 The Romans had their auctions, outcries, and port sales, which were performed by the public crier, and called sub hasta, from their being in early times the sale of the spoils taken in war, and a spear being erected as the signal of the auction. The same signal was aft- erwards used in other sales, which were made under the superintend- ence of particular tribunals. It was termed audio, q. d. increase because the goods were sold to him qui plurimum rem augerit, who bids most for them. A spear was fixed in the Forum, by which stood a crier, who proclaimed the arti- cles intended to be sold. A cata- logue was made in tables called auctionariae. The seller was called auctor, and the bidders sectores, who signified their biddings by 297 298 SALES BY AUCTION. lu all its essential features au auction sale differs in no respect from a sale made through private negotiation, and consists only of au invitation for proposals, an offer and an acceptance. The same rules that apply in the one case are of equal force in the other; the only difference lies in the method, and this has called forth a few rules which it is proposed to brielly discuss in this chapter. § 241. The sale. A sale by auction may be made on the premises or at any other place desi<;iuited in the notice thereof, and must be conducted fairl}' and honestly. The terais and conditions must be made known before the biddings have commenced, and in ordinary cases the auctioneer will have the right to prescribe the rules of bidding and the terms of sale; provided he does not contravene the written particulars and conditions, if there are any. When the biddings have once commenced they should be continued as long as any person will increase upon the previous bidding. § 242. Sales "without reserve." It is not an uncommon practice to announce a sale "without reserve;" and while this would probably be implied by law where no reservation was made by the vendor, yet when so stated it has the effect of creating an express contract between the vendor and the high- est bona fide bidder that the sale shall be so conducted.^ If under these circumstances a bid is made by or on behalf of the vendor, he thereby becomes responsible in damages to the highest bidder for a breach of the conditions of sale, or the sale may be avoided at the option of sucli purchaser.^ § 243. Particulars and conditions of sale. In every sale of real property at public vendue there should first be prepared a notice of sale which, as a rule, should describe the property to be sold, and state the time, place, and terms of sale. In all judicial and execution sales this is an indispensable require- lifting up their fingers. The high- 2 The term "without reserve" est bidder became the purchaser, is understood to exclude all inter- and the term auctoritas denoted ference by the vendor or those com- the right of property, which the ing in under him with the right of sale vested in the purchaser. The the public to have the property at phrase suh hasta venire (literally, the highest bidding. to be sold under the spear), there- :' Flannery v. Jones, 180 Pa. St. fore, denoted a sale by auction. 338. Bateman, Auctions, 1. SALES BY AUCTION. 299 incut aud in private sali's its ('iiuivalcnt slionld be rcpresc^nted in some manner. The i»ariicular.s of sale hiMoinc a part siGulick V. Webb, 41 Neb. 706; auctioneer. Doty v. Wilder, 15 111. Breslin v. Brown, 24 Ohio St. 565; 407. Barling v. Peters, 134 111. 606; -i^ This is very important and Smith V. Ullman, 58 Md. 183. a matter that is often neglected, *»> Kearney v. Taylor, 15 How. particularly with respect to the 308 SALES BY AUCTION. and purcliasci', the price and terms, is a sufficient memoran- dum in ^^I•itin;,^ within the intent of the statute of frauds, aud binds both parties. ^^ But to effect this the memorandum must on its face, or in connection with some writing,^-* contain everything necessary- to show the contract between the parties with such reasonabh^ certainty that its terais may be under- stood from the writing itself without recourse to parol proof. ^^ With regard to the form of the memorandum, it would not seem that it is necessary that in case of sales of several parcels a special note embodying all the foregoing features should be made for each parcel sold; nor is this the general practice of auctioneers. As a rule, a general memorandum entered in a book by the auctioneer at the commencement of an auction sale, showing the name of the person on whose account the vendor. An auctioneer's memo- the signed memorandum contains randum will not satisfy the re- such reference to the other papers quirements of the statute of frauds as to make the latter part of the unless it names or describes the former; but the connection be- vendor. Thus, where a sale was tween the signed and unsigned pa- made at public auction, and the pers cannot be made by parol advertisement of same stated the evidence that they were intended sale to be made "to settle the es- by the parties to be read together, tate of John Higgins," a memo- or of facts and circumstances from randum made by the auctioneer, which such intention may be in- neither naming the vendors nor ferred. Johnson v. Buck, 35 N. describing them, except to desig- J. L. 338. Thus, an indorsement nate them as the "sellers" was on an order of sale by a sheriff, held fatally defective, although the as follows: "Sold to A. B. for parties for whom the sale was $2,400, Oct. 16, 1869," signed "C. made were the devisees of John D., sheriff," was held not a suffi- Higgins. McGovern v. Hern, 153 cient contract or memorandum of Mass. 308; Mentz v. Newwitter, sale within the Indiana statute 122 N. Y. 491; but compare Lee of frauds. The fact that such v. Cherry, 85 Tenn. 707. memorandum was indorsed on the 43 Doty v. Wilder, 15 111. 407; order of sale, but without any Walker v. Herring, 21 Gratt. (Va.) reference to it for the ascertain- 678; Morton v. Dean, 13 Met. ment of the thing sold, is no bet- (Mass.) 385; Johnson v. Buck, 35 ter than if indorsed on any other N. J. L. 342; Stadleman v. Fitz- paper. Ridgeway v. Ingram, 50 gerald, 14 Neb. 292; Pike v. Balch, Ind. 145. 38 Me. 302. <5 Doty v. Wilder, 15 111. 407 44 To satisfy the statute of frauds Gwathney v. Cason, 74 N. C. 5 it is sufficient that the terms of Ridgeway v. Ingram, 50 Ind. 145 the bargain may be gathered from McGovern v. Hern, 153 Mass. 308 two or more separate papers, if Mentz v. Newwitter, 122 N. Y. 491 SALES BY AUCTION. 309 sale is iikmIc, the naliirc <•!' tlic iir(i|) Rafferty v. Longee, 63 N. H. to the conditions of sale, it did 54. pot take the case out of the stat- 310 SALES BY AUCTION. of liis own sale. It requires uo deiuoustration to show that the mischief intended to be prevented by the statute of frauds would still continue to exist if one party to a contract could make a memorandum of it which could absolutely bind the other. If such were the case the statute would furnish no security ajiainst fraud; for the vendor could fasten his own terms on his vendee, and, the contract being in writing, the vendee would be unable to show by parol evidence that the temis of the bargain were incorrectly or imjterfectly stated. He could not vary or alter it by the testimony of those pres- ent at the sale, and the publicity of a sale by auction would be no safe-guard against false statements of the terms of sale made in the written memorandum signed by a party acting in double capacity of auctioneer and vendor. Nor can it make any difference as to the ])ower of the vendor to make the memorandum binding on the vendee that the sale is made by the foraier in his representative or fiduciary character as executor, administrator, guardian, trustee, etc. He is still the party to the contract; the price is to be paid to him; he is to deal with the purchase money ; his interest and bias would naturally be in favor of those whom he represented; and, what is more material, in case of dispute or doubt as to the terms of the contract, his duties and interests would be adverse to the vendee. He would, therefore, stand in a rela- tion which would necessarily disqualify him from acting as the agent of both parties.^^ § 254. Who may make the memorandum. It goes without saying that an auctioneer's memorandum should be made by the auctioneer, yet in many cases this is not actually done, and where the auctioneer plies the hammer it is usual to commit the clerical part of the work to others. This has resulted in some conflict of authority as to who may legally make the memorandum of sale. The doctrine may now be considered as fairly settled, however, that entries of auction sales made by the auctioneer's clerk, if he is a disinterested person, will be sufficient to bind the parties when the property exposed for sale is finally knocked down.'^i But this is the 50 Bent V. Cobb, 9 Gray (Mass.), Smith v. Jones, 7 Leigh (Tenn.), 397; Tull v. David, 45 Mo. 444. 165. 51 Howell V. Shewell, 96 Ga. 454; SALES BY AUCTION. 311 limit, and tlic fact of di.siiiU'rcKU'dneKs is an esHenlial factor of validity. Hence, neither the vendor nor his a{j;ent may act as snch clerk, and in the event that thev should assume such emi»loyment the memorandum would not bind the pui'chaser''- unh'ss he also signed it.""' ij 255. Auctioneer's receipt as memorandum, ^^'here, as is the ahnost universal jtractice, a (leposit is recjuired at the time of sale, a receipt therefor <;iven by the auctioneer will in many cases amount to a valid agreement on the part of the vendor within tlie statute. §256. The deposit. An almost invariabh* rule in sales by aucti(ui is for the purchasei' to pay souiethin«^ at the time of sale; and the amount or the nu*thod of its ascertainment is always nuide a part of the t(Mins and conditions iipon which the sale is nuide. This payment, which is technically termed a deposit, is considered as a part of the purchase money, and not as a mere j)ledge.^^ Usually where the purchaser fails or refuses to perform the contract the deposit is forfeited to the vendor,^^ althoujrh this is a matter lar<;ely dejtendent on intention; and, while this result is allowed to prevail in all cases where it forms a special clause in the conditions of sale, it will also follow in other cases if it can be imj)lied from the contract that such was the intention of the parties. A stipulation that the deposit shall be forfeited to the vendor in case the vendee fails to comply with the residue of the terms of sale is not unreasonable,'"''' and numerous cases announce the rule that one who so pur- chases and then makes default will be precluded from recover- 'm<^ the sum so paid.^''' It has been held, however, that the deposit will not be forfeited upon the purchaser's failure to comply where there is no provision to that effect in terms.^" f'- Howell V. Shewell, 96 Ga. 454. Thompson v. Kelly, 101 Mass. 299; S3 See Bamber v. Savage, 52 Wis. McKinney v. Harvie, 38 Minn. IS; 110. Cobb V. Hall, 29 Vt. 510; Galway 5* Kelly V. Thompson, 101 Mass. v. Shields, 66 Mo. 313. 291. •'^■'^ Bleeker v. Graham, 2 Edw. Ch. S5 Curtis v. Aspinwall, 114 Mass. (N. Y.) 647. The English cases 187. announce a different rule, see Ex no Donahue v. Parkman, 161 parte Barrell, L. R. 10, ch. 512; Mass. 412. Howe v. Smith, 27 Ch. Div. 89. S7 Sage V. R. R. Co. 99 U. S. 334; 312 SALES BY AUCTION. If the title prove defective, or if the contract is rescinded on the ground of fraud or misrepresentalion on the part of the vendor, or if the vendor refuses or is unable to jjerform it, or if for any other reason the sale be avoided without fault on the part of the purchaser, the dei)osit must be returned. Where land is sold at auction and a deposit is re(iuired, the auctioneer is the proper custodian thereof; he should safel.v keep it and pay it to neither party without the consent of the other until the sale is completed.'"'" The auctioneer, in this event, is regarded as a stakeholder for both parties. r>ut where the purchaser suffers a long time to elapse, and by other acts there appears to be an intention on the part of the pur- chaser to consider the owner of the jn'operty entitled to it, a recovery will not be permitted as against the auctioneer in a suit by the purchaser for the deposit after the latter luii? paid it over to the owner.*'^ As a rule, however, he should not ijart with the deposit until the sale has been either rescinded or carried into effect; if both parties claim it he may file a bill of interpleader and pa}' the money into court. § 257. Refusal to comply with bid — Resale. One of the most common features insx^rted in conditions of sale, where property is exposed at public auction, consists in the provision for resale in case of purchaser's default. By this provision the purchaser is usually allowed a limited time within which to comply with the terms of sale, and in case of his neglect or refusal so to do within the time limited the property may then be resold on account of the first purchaser. Where the terms of sale presented by the auctioneer as forming the conditions of the contract contain a provision of this character the legal effect of the same is to extend to the vendee an option of taking the estate after it is bid off by him or having it sold again on his account. If upon resale it produces more than on the first sale the surplus would belong to him; if, on the other hand, it should sell for less, the difference would form a loss to 59 Teaffe v. Simmons, 11 Allen the deposit money, and the pur- (Mass.), 342. chaser through whose acts the '''I Ellison V. Kerr, 86 111. 427. In auctioneer had been induced to this case nearly five months after pay the deposit to the vendor suf- an auction sale of land the vendor fered two years to elapse after gave the purchaser a contract of the sale before making demand sale acknowledging the receipt of for the deposit. Held, that the Sales ry auction. 313 which he wuuUl be cxijosi-d. and lor \vhu:h an aclion wouhJ lie aj^ainst him by the vendor ;'"*i but, it seems, no action could be maintained b.v the vendor a Moss v. Atkinson, 44 Cal. 317; held to take subject to the lien. Strickland v. Kirk, 51 Miss. 795; Major V. Bukley, 51 Mo. 227; and but see Rogers v. Hussey, 36 Iowa, see Clark v. Fuller, 39 Conn. 238. 664. 40 Green v. Early, 39 Md. 223. INVESTIGATING THE TITLE. 325 invalid deed, when such ^mmiUoi- was out of and never liad been in possession, and olheis had controlled the property in many ways for yeais, and when an examination of the rej;is- try of deeds wonhl have shown conveyances inconsistent with the full validity of the deed under whi( li the grantor claimed. That under stuh circumstances the duty of incjuiry is imjtera- tive, and the facts suHicient to put a i)rudeut man on his ^uard. And so it is, perhaps, in nearly every case where the vendee l)uichases on the basis of a merely nominal title.^*' Mere runH)rs are not notice, nor do tliey impose upon a jtui-- chaser the duty of inquiry." To alTect him the information should come from some one interested in the estate, or from some authoritative source,''^ and sliould be of such a charac- ter as to impress a prudent jx-rson with the duty of further investigation.-*" To set on foot an incpiiry into the foundation of mere rumors would, in most cases, be a vain and imprac- ticable pursuit ;•''•" and unless there is some act or declaration from an authentic source, the purchaser will not be held to the duty of in(iuiry, nor will he be charj^eable with dereliction in this respect because he has failed so to do.^^ !5 265. Notice from registration. In the United States it has been uniformly hebl that the record of a conveyance, exe- cuted in conformity to law, oi)erates as constructive notice to all subsequent purchasers and incumbrancers claiming under the same grantor of any estate, either legal or equitable,'^- in the same i)roperty, provided the conveyance be one which the law requires or authorizes to be recorded.^^ The doctrine of constructive notice under registration laws •i«'Knapp V. Bailey, 79 Me. 195. 14 Ga. 166; Van Duyne v. Vree- 47 Churcher v. Guernsey, 39 Pa. land, 12 N. J. Eq. 142. St. 86; Hottenstein v. Lerch, 104 '•- The earlier cases held that the Pa. St. 460; Hall v. Livingstone, 3 recording acts did not contemplate Del. Ch. 348; Shepard v. Shepard, conveyances of equitable rights or 36 Mich. 173; Butler v. Stevens, interests, and consequently that 26 Me. 484. record of such a conveyance would •«s Satterfield v. Malone, 35 Fed. not be notice; but this position Rep. 445; Mulliken v. Graham, 72 has long been abandoned. Pa. St. 484. s.-iTilton v. Hunter, 29 Me. 29; •«» Chicago v. Witt, 75 111. 211. Crockett v. McGuire, 10 Mo. 34; ■■oMaul V. Rider, 59 Pa. St. 167. Meni v. Rathbone. 21 Ind. 454; ni See Curtis v. Mundy. 3 Met. Irvin v. Smith, 17 Ohio, 226; Mal- (Mass.) 405; Rogers v. Hoskins, lory v. Stodder, 6 Ala. 801. 326 INVESTIGATING THE TITLE. lias, however, always been regarded as a harsh necessity, and the statutes which create it have always been subjected to the most rijj;id construction.-'^^ Hence only the facts as they appear on the face of the record are deemed binding on subse- quent purchasers; and if from any cause the real facts are there misstated — as if the wrong land is b}' mistake described, or the sum for which a mortgage is given is omitted or incor- rectly recorded — a subsequent purchaser in good faith, rely- ing ujjon what is shown, will not be affected by the error or omission."'''''^ There is a line of cases in apparent conflict with this doctrine, so far at least as respects errors occurring, in trauscrii)tion and occasioned by the neglect of the recording officer ;•"'•■• but the general doctrine is as first stated. Again, the old doctrine that the record of a deed is con- structive notice to all the world has been expressly denied in recent cases, and the rule has been laid down that such record is constructive notice only to those who are bound to search for it — as subsequent purchasers and incumbrancers, or others who deal with or on the credit of the title in the line of which the recorded deed belongs.^^ But strangers to the title are in no way affected by the record.^^ § 266. Recitals in deeds. The recitals of a deed in the chain of title are such notice to a purchaser as would put him on Inquiry as to the nature and extent of the matters referred to in the recitals,^'' and all persons dealing with the property are bound at their peril to take notice of the facts as stated ;^o 54 Chamberlain v. Bell, 7 Cal. s? Maul v. Rider, 59 Pa. St. 167; 292. Straight v. Harris, 14 Wis. 509; 55 Sanger v. Craigul, 10 Vt. 555; Birnie v. Main, 29 Ark. 591; Igle- Frost V. Beekman, 1 Johns. Ch. hart v. Crane, 42 111. 261; McCabe (N. Y.) 288; Chamberlain v. Bell, v. Grey, 20 Cal. 509; Hoy v. Bram- 7 Cal. 292 ;| Terrell v. Andrew hall, 19 N. J. Eq. 563. County, 44 Mo. 309; Pringle v. 58 Maul v. Rider, 59 Pa. St. 167. Dunn, 37 Wis. 465; Barnard v. 5n Chicago, etc. R. R. Co. v. Ken- Campau, 29 Mich. 164; Miller v. nedy, 70 111. 350; Deason v. Taylor, Bradford, 12 Iowa, 14; Peck v. 53 Miss. 697; Morrison v. Morri- Mallams, 10 N. Y. 519; Dean v. son, 38 Iowa, 73. Anderson, 34 N. J. Eq. 508. co ^tna Ins. Co. v. Corn, 89 111. 56 See infra, "Registration," 170; White v. Kibby, 42 111. 510. where the subject is discussed and Technically speaking, a reciial of the authorities on either side col- one deed in another operates as an lated. estoppel and binds parties and INVESTIGATING THE TITIJ3. 327 but the recitals in a deed of a fact which may or may not, accordinj^ to circuiiistaiiceH, amount to fraud, will not affect a purchaHer for a valuable couHideration denyinj; actual notice of the fraud; nor will circuinstanccs amount iii^^ to mere huk- picion be deenu'd notice.''' A^ain, while tlic iiilc that if a purcliasci- (tf land lias knowl- cdf^e of any facts sullicicnt (o put a pnnicnt man on incpiiry, which, if prosecute; 271. Possession as an evidence of title. Every purchaser of land is charj^id with the duty of exercising; dilij;ence in niakin Woodward v. Woodward, 39 S. sideration, who retains open and C. 259; King v. Harris, 34 N. Y. undisturbed possession for four 330; Bank v. Wells, 12 Mo. 361. years, holds the land discharged ?3 338 INVESTIGATING THE TITLE. relying upon the record, purchases the hind which might have been ali'ected thereby, such purcliaser will be i)rotected even though it afterwards may appear that such satisfaction was improperly entered.^^ Indeed, as has been well said, any other view would shake confidence in the public records and jeopardize titles acquired upon the faith of what such records show.^- § 277. Decrees. A decree being a matter of public record, a third person, having x)urchased of one of the parties to the record, is presumed to have done so with full knowledge of the decree.i"^ § 278. Mechanics' liens. Aside from the actual or con- structive notice furnished by a Us pendens, the subject of which has been sufficiently considered, a party purchasing lands on which buildings are in process of erection, having knowledge of the same, is bound to observe this fact, and to make inquiry as to the rights of parties furnishing materials or performing work thereon; and such person is charged with constructive if not actual notice of their lien.^^ The general doctrine of mechanics' liens provides that the lien shall take effect from the time of the commencement of the work, and that no sale or transfer of the land thereafter made is suffi- cient to divest it.^^ As statutes relating to mechanics' liens are constantly being subjected to legislative tinkering no posi- tive rules of general observance can be formulated, but the foregoing have received a general recognition. § 279. Vendors' liens. In the absence of an agreement to the contrary, the vendor retains a lien on the bargained lands for the unpaid purchase money, notwithstanding he has made an absolute conveyance in fee to the vendee and put him in possession.!^ X purchaser from the vendee, with notice of the 11 Charleston v. Ryan, 22 S. C. Y.), 367. A mechanic may file his 339. lien against the person who held 12 Wheeler v. Alderman, 34 S. C. the legal title when the work was 533. commenced, and he is not bound 13 Loomis V. Riley, 24 111. 307. to inquire further or take notice 14 Austin V. Wohler, 5 111. App. of any subsequent conveyances of 300. the property. Fourth Ave. Church isDunklee v. Crane, 103 Mass. v. Schreiner, 88 Pa. St. 124. 470; Thielman v. Carr, 75 111. 385; lo The lien is not of universal Mehan v. Williams, 2 Daly (N. observance. See "Vendor's Lien," INVESTIGATING THE TITLE. 339 vendor's t'* Murray v. Lylburn, 2 Johns. Edwards v. Banksmith. 35 Ga. 215; Ch. (N. Y.) 444. Leitch V. Wells, 48 N. Y. G08; Tut- J's Parks v. Jackson, 11 Wend, tie V. Turner, 28 Tex. 773. (N. Y.) 459. 33 Rollins V. Henry, 78 N. C. so Murray v. Ballon, 1 Johns. Ch. 342; Smith V. Cottrell, 94 Ind. 381; (N. Y.) 566; Leitch v. Wells, 48 Meux V. Anthony, 11 Ark. 422. In N. Y. 608. contemplation of law every man is 3- Allen v. Morris, 34 N. J. L. presumed to be attentive to what 161. passes in the courts of the state. S44 INVESTIGATING THE TITLE. j^ive a purchaser notice that the pr()])er(y which he buys is that iuvolved in the suit/"^'^ and that tlie doctrine of constrQC- tive notice arising? from Us pendens is not to be extended beyond the immediate subject-matter of the suit.^-* Tlie prop- erty involved must, it is said, be so pointed out in the proceed- ings as to warn the public that they intermeddle at their peril. It is further to be observed that the rule applies only to persons dealing with the defendant in the action, and has nothing to do with independent parties asserting their own adverse rights in the j^'operty. Hence, a purchaser of the very land described in the pleadings from one who is not a party to the suit, or a privy to such party ,^o is never charge- able with the constructive notice of lis pendens.'^^ § 284. Partnership property. In a fonner chapter'*^ occa- sion was had to discuss the general i)rinciples of law in respect to partnership holdings, so far as they affect the relation of vendor and vendee; and what is there stated may be profit- ably read in connection with this chapter. It is unnecessary to recapitulate such former statements; and, in this connec- tion, it will be sufficient to observe that, where purchasers of real estate have actual or constructive notice at the time of 38 Badger v. Daniel, 77 N. C. and parties to a decree, in the eye 251; Allen v. Poole, 54 Miss. 333; of the law, are those only who are Miller v. Sherry, 2 Wall. (U. S.) named as such in the record, and 237; Brown v. Goodwin, 75 N. Y. are properly served with process 409. or enter their appearance. A privy 33 Shearon v. Henderson, 38 Tex. in blood or estate is one who de- 264. Compare Green v. Slayter, 4 rives his title to the property in Johns. Ch. (N. Y.) 38. In this case question by descent or purchase; the bill described the property as and a privy to a judgment or de- "divers lands in Cosby's manor, cree is one whose succession to the in the paftnt of Springfield, and rights of property thereby affected certain tracts or parcels of land in occurred after the institution of Oriskany patent;" and the court the particular suit and from a held that the purchaser was party thereto. chargeable with notice of the pen- ^i French v. Loyal, 5 Leigh dency of the suit and of all the (Va.), 627; Parsons v. Hoyt, 44 facts stated in the bill, and that Iowa, 154; Clarkson v. Morgan, 6 the description of the lands, B. Mon. (Ky.) 441; Herrington v. though general, was sufficient to Herrington, 27 Mo. 560; Scarlett put him on inquiry. v. Gorham, 28 111. 319; Miller v. 40 It is only parties and their Sherry, 2 Wall. (U. S.) 250. privies in blood or estate that are '»2 See chapter II, sec. 58, ante. estopped by a decree or judgment INVESTIGATING THE TITLE. •'^io tiu'ii* piirchiiHc (hill saiiie is jjailncrsliip piopcrt v, it will !)•- fluirj'<'al)l«' in llu-ii' liands with the pavnicnt of the partucisliip debts, althouj^h tlic.v iiiav have had no notice of the existence of tliosc debts. If they hatl no notice (hat it was partnership property, they will be exonerated to the extent of the pnrchase money paid by them, and so far as the purchase money has not been paid, it will be re^Mided as a substituted fund charge- able in their hands with the same burdens as the laud.^^ § 285. Notice to agent. The authorities seem to be united upon the pioitosition that notice to the agent of a purchaser is notice to the purchaser;'* and, in like manner, notice to a ])art- ner in a purchase of lands of prior riglits or ecpiities is notice to the other partner.'*^ So, also, notice to the attorney is as effect ual as to the client i^*^ yet it does not seem that a ])arty is chargeable with notice of facts within the knowledge of his attorney which became known to him while acting as the attorney of another person.^'^ § 286. Joint purchasers. While it seems to be the rule that a notice to a partner in a purchase of lands of prior rights or equities is notice to the other partners, yet in the case of a purchase made by several jointly or as tenants in common, if there is in existence an incumbrance or conveyance affecting the title to the land, those who have notice of the same will hold their title in suboi-dination to it, while those who did not have such notice will hold their title free from the claim to which their co-tenants are subjected. This, it is held, will always be the case where there is no proof that the parties ailected with notice were not acting as the agents or attor- neys of the others, or by virtue of a partnership.^^ The rule that notice to a co-tenant is not, by mere force of the relation, notice to any of his companions, unless in case of notice to quit, seems to be fully applicable to a case of this kind.^'-^ •»a Hoxie V. Carr, 1 Sumn. (C. ^" Herrington v. McCollum. 73 Ct.) 173. 111. 476; Campbell v. Benjamin, 69 44 Bigley v. Jones. 114 Pa. St. 111. 244. 510; Meier v. Blume, 80 Mo. 179; 4"* Wait v. Smith, 92 111. 385; Smith V. Dunton, 42 Iowa. 48. Snyder v. Sponable. 1 Hill (N. Y.), 4-. Rector v. Rector, 3 Gilm. (111.) 5G7. 105. •;. Wait V. Smith. 92 111. 385. 40 Williams v. Tatnall, 29 111. 553. 'MG INVESTIGATING THE TITLE. v^ 287. Rebutting presumption of notice. Where circunl- staut-es are br()ii<;ht diiectiy home to the knowledge of a pur- chaser, sufficient in hiw to put him on inquiry and thus amount to notice, he will be entitled to rebut the presumption of notice which would otherwise arise by showing the exist- ence of other attendant circumstances of a nature to allay his suspicions, and lead him to suppose the inquiry was not nec- essary.^*^ So, also, where the circumstances relied on as suffi- cient to charge a party with notice by requiring him to make inquiry may be equally as well referred to a different matter or claim as to the one he is sought to be chargeable with notice of, they will not be sufficient/'^ 50 See Rogers v. Jones, 8 N. H. " Chadwick v. Clapp, 69 111. 119. 264; Williamson v. Brown, 15 N. Y. 354. CHAPTER X. THE ABSTRACT. 288. General principles. §292. 289. Duty of funiisliing ab- stract. 294. 290. When the abstract is made a condition. 295. 291. Right to time for examin- 296 ing title. 297, Good and suflBcient ab- stract. Originals and copies. What the abstract should show. Root of title. Perusing the abstract. >j 288. General principles. It has now become an almost universal custom in all cases of transfer of real property for the vendor to furnish to the vendee satisfactory evidences of the soundness of the title which he asserts and of his ri; 290. When the abstract is made a condition. \Yhile the furnishing of an abstract cannot be said to be demandable as a matter of legal right, even where a custom to that effect may prevail, it is nevertheless a condition precedent in most •■'Little V. Paddleford, 13 N. H. 308; Daily v. Litchfield, 10 Mich. 167. 38. ■* Espy V. Anderson, 14 Pa. St. •'• Easton v. Montgomery, 90 Cal. 350 THE ABSTRACT. sales b}' tlio express agreemeut of the parties. W4iere parties make a eontraet for the sale or exehanj^e of lands which pro- vides for the exhibition of an abstract showing title in the proi)osin<; parties b.v a day named, this is a condition prece- dent to be performed before either party in case of an exchange, or the vendor in case of sale, can call upon the other to perform the aj;reement; and, if the abstract is not satis- factory or fails to show the title agreed to be made, the other may elect to consider the contract at an end." The party required to furnisli the abstract has no right to dtnnaud an extension of time in which to furnish an additional abstract, the first not showing title as agreed; and if the other party refuses to give such extension or refuses to jjerform for want of an abstract in proper time showing title, this will put an end to the contract.'^ But where the contract provides that the vendor is to fur- nish an abstract, and notice is given where such abstract may be found and inspected, it would seem that failure of the vendor to furnish the same, when no objection is urged at the time, will not authorize the purchaser to rescind.^ § 291. Right to time for examining title. Usually the time allowed for an investigation of the title is fixed by the pro- visions of the contract, and this is almost invariably the case where the vendor also agrees to furnish or exhibit an abstract. But even in the absence of such stipulations the purchaser is entitled to a reasonable time for such examination before making payment;'* and a stipulation to this effect may be implied where the conditions of the contract i^rovide for a 307; Espy v. Anderson, 14 Pa. St. objection was made to this; but 308. subsequently the vendor was noti- c Howe V. Hutchison, 105 HI. 501. fled by the puixhaser that he de- 7 Howe V. Hutchison, 105 HI. 501. clined to carry out the contract be- « Papin V. Goodrich, 103 HI. 86. cause it was then too late, but this The abstract in this case was in objection the court held to be un- the hands of a third party who tenable; and as the purchaser's re- then held a loan upon the property fusal to perform was placed on an- which the purchaser, by the terms other ground than the failure to of the contract, was bound to pay. furnish the abstract, it was held The purchaser was notified where that no right of rescission existed. the abstract was, and that it could o Allen v. Atkinson, 21 Mich. 351. be examined there at any time. No THE ABSTRACT. 351 return of the deposit in case the title should be found defec- tive.io § 292. Good and sufficient abstract. It has now become eoiiimou to inscil in nj^rcciiu'iits for sale and conveyance not only a .stipulation for a "^ood and Hunicicnl" deed of convey- ance of the property in (juestion, but also, where the vendor undertakes and aj^rccs to exhibit his title, a clause providiuj; for the furnisliinj^ of a "good and sullicicnt" or "luerchantable" abstract of title. In many localities this clause, if employed, would occasion no controversy, and local custom would prob- ably be sutlicient to indicate what was meant. Yet in other places which have come under the observation of the writer the proper answer to ''What constitutes a 'ut in addition to these forms it is not uncom- mon for owners of subdivisions and others to multiply copies of the original through the media of manuscript copyists, the "hectograph" aud the printing press, with certifications by the writers or the printer, certificates of comparison by notaries, and often with no certification whatever. All of these forms are bad; they differ only in degree, not in kind. It has been claimed that i^rinted copies are far more reliable and trustworthy than where a number of written copies are made from the same original. Undoubtedly this is true; and where the work is properly and conscientiously performed, a printed copy is much to be preferred. But the fact remains that attorneys frequently refuse to accei)t them or predicate o]»inions upon them, and the general impression seems to pre- vail that they are inherently vicious. The reason for this lies mainly in the fact that the temptation for the interpolation of foreign matter or the suppression or expurgation of original matter is so great that unscrupulous parties not infrequently do not hesitate to resort to such expedients to conceal the defects of imperfect titles. A printed copy, if nmde by an honorable and responsible i)erson, who at the close of such co])y appends a certificate of verification, loses some of its objectionable features; yet this is but a poor protection, as the printer merely presents what he finds, and if foreign mat- ter has been introduced into the original it will of course be reproduced in the duplicate. Nor does the fact that a com- parison of such duplicate with the original has been made by a notary, and of which fact a certificate under his hand and official seal accouipauies the copy, make the copy much if any more reliable. In both of these instances the opportunities for 23 354 THE ABSTRACT. fraud and imposition arc present; while ignorance, careless- ness, mistake and accident may all conspire, where no bad faith exists, to render .such copy inaccurate and unreliable. The forej^oing- remarks have reference to printed copies i)re- pared by the owners of subdivisions and issued on their authority only. This has been a very common practice in every city of importance in many states, particularly in the West, and the prejudice against this form of copy has arisen through the fraudulent practices which often accompanied the method. If a printed copy is properly certified as correct by the person who prepared the original, or by some other trustworthy person of financial responsibility, it is not to be distinguished from an authentic copy in any other form. § 295. What the abstract should show. The primary office of the abstract is to save time and facilitate labor. Its object is to relieve intending purchasers from the necessity of exam- ining the public records, and inspecting such portions thereof as may affect the title wiiich forms the object of the sale. This burden is imposed by law, and cannot be avoided; and hence the abstract should be so compiled as to fully apprise the purchaser of every incident connected with the title as disclosed by the records. This would include the material and operative parts of all instruments of conveyance of every kind and nature, together with full and lucid statements of all liens, charges or liabilities to which the land might be sub- ject; and the synopsis should be so arranged, with reference to chronological sequence, as to properly show the origin, course and incidents of the title, without the necessity of referring to the original sources of information. For all j)rac- tical purposes of examination the abstract takes the place of the records, and presumably obviates all necessity of reference thereto; hence it should be full and explicit, with liberal quotations from the instruments whenever a presentation of the exact language employed is necessary to a better under- standing of its import, and not, as is too often the case, merely a sparsely-filled and imperfectly-w'oven chain, which usually serves no better purpose than a mere index, throwing upon the purchaser all the labor of direct examination whenever questions of moment are raised. Nor should the abstract be confined to the elucidation of a THE ABSTRACT. 355 single issue, as the mere tracing of tiie title of the vendor to the exclusion of adverse titles, or claims, or evidences of title. This is or was formerly the English practice; and, as the American abstract is only an avv('r of jtronouiicinji his (lissatisr;uti(»ii is subject to an arbitrary exercise by tlie party in whose favor it is extended, or exists only where in reason and j^ood conscience he may be dissatistied. The autliorilies upon tliis point are contlictiu}^, and tlie (pieslion may fairly be said to be one of doubt. In a majoiily of the most pronounced cases llie (piestion Las arisen in connection witli sah'S of chattels or the fabrica- tion of aiticles of a j)ersonal nature largely dependent upon sl;ill an I'uiiiitl his objcctiuiiH wholly upon the record. He is not required to go outside and investigate the evidence upon which the action is based and then determine whether it can be maintained. It is euou<;h that action, apparently well laid, is pendinj^."*' j5 311. Unsatisfied judgments. if an examination of the title ; 328. Immaterial defects. It has been held that immate- rial defects and nu'rely technical objections will not defeat a sale, and that a court will not permit a puicliaser to avoid his contract without seeinj? that the object of the purchase is defeated and that it would l)e injurious to him to enforce the contract.''^ This is particularly true where the purchaser con- tracts with full knowdedge of the situation of the premises or the condition of the title;-'- and if lie {^ets substantially what he bar<;ained for, he must complete the ]iurchase and take his deed. This is a matter, however, which rests in the sound discretion of the court, who should weij^h the object and inducement of the purchaser, and, looking to the merits and substantial justice of each particular case, if the sale be fair, relieve or not from the purchase, accordinji as the character of the transaction and circumstances may seem to require.^^ As the law does not regard trifles, a reservation of a pe])])er- corn or any other rent which is merely nominal is not a valid objection to the title of the vendor, who holds subject to the payment of such nominal rent; and so, in like manner, it has been held that it is no valid objection to the title of the vendor that the conveyance under which lie holds contains a reserva- tion of mines and minerals and water privileges, if from the evidence there is no reason to suppose there are any minerals or water privileges on the premises.^^ §329. Waiver of objections to title. It may happen that the purchaser is satisfied with the title without investigation, or that he ])refers to take the same and rely upon the cov- enants of his deed for protection against adverse claims; and if for any reason he sees fit to forego examination and waive 30 Fitch V. Willard, 73 111. 92. 33 Riggs v. Pursell. 66 N. Y. 193; 31 Riggs V. Pursell, 66 N. Y. 193. King v. Bardeau. 6 John. Ch. 3-'Cradaock v. Shirley, 3 A. K. (N. Y.) 38. Marsh. (Ky.) 288; Winne v. Rey- 34 winne v. Reynolds. 6 Paige nolds. 6 Paige (N. Y.). 407; Tomp- (N. Y.), 407. kins V. Hyatt, 28 N. Y. 347. 392 OBJECTIONS TO TITLl^. all objections to title, and this intention is unequivocally expressed, there can be no doubt that he will be held to the tenns of his aj;reenient, even thoufth there is provision for an abstract of title, and by the abstract serious defects and imperfections are disclosed. The mere fact of takinj]^ possession and exercising acts of ownership over the land will not preclude the purchaser from his right to investigate the title, unless it clearly appears that he intended to waive and has actually waived such right. The waiver is always a question of intention, and one of fact from all the circumstances, and not an arbitrary presumption of law from the mere fact of taking possession; and where by the terms of the contract the vendor was to give immediate possession, and also to furnish an abstract of the title, but with no time fixed for the latter, this will have an important bearing upon the question of waiver of objections to the title by the vendee in taking possession, as possession in such case is consistent with the contract.^^ It is better, however, that the purchaser should not take possession until every objection to the title has been removed, lest the act should be deemed an acceptance of the title; and the rule deduced from the English cases is that, if the purchaser take possession of and enjoy the property, it is the duty of the court to make every reasonable presumption in favor of the contract.^'^ Still, the current of English decisions coincides with the views first stated, and announces the doctrine that a purchaser may with the concurrence of the vendor safely take possession of the land at the time the contract is entered into, as he cannot be held to have waived objections of which he was not aware; and if the purchase cannot be completed on account of objec- tions to the title, he will not be bound to pay rent for the prop- erty, even though the occupation of it has been beneficial to him.37 Yet, while the mere fact of taking possession does not in itself amount to a waiver of objections to title, and while other circumstances are usually required to raise the pre- sumption of waiver, if the purchaser does enter into possession 35 Page V. Greeley, 75 111. 400. •'" See 1 Sug. Vend. 12, and cases 30 And see Richmond v. Gray, o cited. Allen (Mass.), 25. OBJECTIONS TO TITLE. 393 Under the contract with knowlcdj^'c of a slij^ht defect in the vendor's title or a slij^lit incuinliiaiice iij)on it, he will be hehl in many cases to have waived his objections, and will be deemed to have accepted the title as he knew it existed, intend- in;,' to rely, in ease of failure, upon the covenants of warranty for redress.-''** §330. Effect of delay in making objection. Where the jjur- chase of land is made upon condition that a perfect title shall be shown, the jjurehaser, in the absence of any stipulation as to time, is only entitled to a reasonable j)eriod in which to determine whether he will take the title the vendor has or reject it. He cannot keep the contract open indefinitely, so as to avail of a rise in the value of the property, or relieve him- self in case of a depreciation.^^ Hence, any unreasonable delay by the purchaser in the exercise of his option to avoid the contract for objections to the title will defeat his right to a specific performance.*^ If a day has been fixed for the conveyance of the property, the vendee, if he wishes to object to the title, must give notice of his objections a reasonable time previous thereto, to enable the vendor to remove the objections if possible, and to make conveyance at the time specilied; and in case of his neglect so to do, a court of equity may consider a strict performance of the contract by a conveyance on the specified day as waived. And where the vendor has not been guilty of gross ni'giigenee in perfecting his title, equity may decree a specific perform- ance upon a bill filed by him, although the title was not i»er- fected on the specified day, unless the time of perfecting the same is, by the terms of the agreement, made an essential part of the contract.'** 38 See Jones v. Taylor, 7 Tex. himself as to the title and make 240; Winne v. Reynolds, 6 Paige payment within two weeks, but (N. Y.), 407; Riggs v. Pursell, 6G failed to do so, and more than a N. Y. 193; Craddock v. Shirley, 3 year afterwards tendered the pur- A. K. Marsh. (Ky.) 288. chase money and demanded the 30 Hoyt V. Tuxbury. 70 111. 331. conveyance, held, that he was 40 Unusual delay, unexplained by guilty of laches, and not entitled equitable circumstances, will ordi- to conveyance. Lanitz v. King, 6 narily bar any claim for relief in S. W. Rep. (Mo.) 263. equity. Walker v. Douglass, 70 111. that by the common law lands rive their operation from the could not be passed by will, but statute of uses. The first class only by livery of seizin; but that consists of those which create a divers subtle practices had been use alone, without any transmuta- introduced in the form of fraudu- tion of possession under the com- lent conveyances and assurances mon law. The second class con- and of last wills, whereby heirs sists of those conveyances which were disinherited, lords deprived transfer the land as by a common- of their dues, husbands and wive.s law assurance, and in addition of curtesy and dower, and perju- thereto raise or declare a use upon ries committed. The statute then the legal estate vested in the proceeds to enact that, where any grantee. To the former class be- person was or should be seized of long a bargain and sale, and a any honors, manors, lands, tene- covenant to stand seized to uses; ments. rents, services, reversions, to the latter, a feoffment and a fine remainders or other heredita- 400 THE MEDIUM OF TRANSFER. The operative words of conveyance in this class of deeds are "grant, bargain and sell," and these words in many states are declared to be covenants of seizin, freedom from incum- brances and quiet enjoyment, unless their statutory effect is rendered nugatory or limited by express words contained in such deed.-' It is still a common practice for the conveyancer to insert in warranty deeds, as well as in other classes of con- veyances, all the operative terms used in transferring lands; as, "grant, bargain, sell, remise, release, alien, convey and confirm," though their presence, save where they imply cove- nants, is no longer necessary. This was formerly done that the instrument might take effect in one way if not in another, and in such case the party recc^iving the deed had his election which way to take it. Thus, according to the words used, he might claim either by grant, feoffment, gift, lease, release, confirmation or surrender. The majority of the foregoing words of grant are now superfluous, except that in a few states the words "grant, bargain and sell" must, under the statute, be construed as express or implied covenants for seizin, against incumbrances, etc.;^^ yet the rule that the law of the state where the land lies governs the interpretation of the deed does not warrant the implication of personal cov- enants not authorized by the law of the state where the deed was made. The question whether the words shall import covenants must be decided by the law of the latter state.^^ It must also be understood that some words evidencing an inten- tion to convey must appear; but the conveyancer has a choice of a number, and the word "convey," which is most in use, fully expresses the intent, and is effectual for all purposes.^^ § 336. ftuitclaim deeds. There is in common use in the United States a species of conveyance derived from the deed ments to the use, confidence or them, the latter alone should have trust of any person or body politic, the seizin and possession. The the latter should have the legal statute has been substantially re- seizin and possession, nominally enacted in many states. given to the former, and corre- o Finley v. Steele, 23 111. 56. sponding to the use, trust and con- lo Brodie v. Watkins, 31 Ark. fidence held previously to the 319; Finley v. Steele, 23 111. 56. statute in lands so limited; and, n Bethel v. Bethel, 54 Ind. 428. where lands were limited to sev- 12 An extremely simple form of eral persons to the use of a part of a deed in fee is given in 4 Kent, THE MEDIUM OF TRANSFER. 401 of bargain and sale under the statute of usi'S, but bearing a strong aflinity to the old common-law deed of release, called a quitclaim. Its import is a conveyance or release of all present interest in the grantor; but, unlike the common-law release, which was only ellectual in favor of some i)ersou in posses- sion, or who claimed or had some interest in the land, it is equally available as a mode of conveying an independent title, and for all practical purposes is regarded as an original con- veyance. A quitclaim deed is as effectual for transferring the title to real estate as a deed of bargain and sale, and jtasses to the grantee all the present interest or estate of the grantor, together with the covenants running with the land, unless there be special words limiting and restricting the conveyance. But while a quitclaim deed is as effectual to pass title as a deed of bargain and sale, still, like all other contracts, it must be expounded and enforced according to the intention of the parties as gathered from the instrument; and if the words used indicate a clear intention to pass only such land or inter- ests as the grantor then owns, lands embraced in a prior valid deed have been held to be reserved from its operation, even though such prior deed remains unrecorded. The authorities in respect to the operation and effin-t of quitclaim deeds are conflicting, the obsolete doctrines of the old common law release being still retained in some measure in a number of states. The tendency of the decisions, how- ever, is, that a quitclaim is not merely a release, but a sub- stantive form of conveyance, and that a purchaser thereunder, who takes without notice of latent equities is not distinguish- able from one who takes under a deed of bargain and sale.^^ § 337. Release. The term ^'release," in its popular and lim- ited signilication, is used to denote the instrument whereby the interest conveyed by a mortgage is reconveyed to the owner of the fee, and it is also used generally to designate Com. 461; and see Hutchins v. Merrill v. Hutchinson. 45 Kan. 59; Carleton. 19 N. H. 487; Bridge v. Brown v. Banner Coal Co. 97 111. Wellington, 1 Mass. 219. 214; but see contra, Peters v. Car- i.iWilhelm v. Wilken. 149 N. Y. tier, 80 Mich. 124; Smith v. Bank. 447; Graff v. Middleton. 43 Cal. 21 Ala. 125; Richardson v. Levi. 341; Chapman v. Sims, 53 Miss. 67 Tex. 359; Steele v. Bank, 79 154; Willingham v. Hardin. 75 Mo. Iowa 339. 429; Cutler v. James, 64 Wis. 173; 26 402 THE MEDIUM OF TRANSFER. the conveyance of a right of anj kind to a person in posses- sion. In England it obtains in a fourfold form, and is one of the most important of the common-law forms of conveyance. In the United States the technical principles relating to deeds of this character are wholly or in a great measure inapplica- ble, while the conveyance which corresponds to a release at common law is the popular quitclaim deed — the operative words of conveyance being the same in both deeds. Where a deed remising and releasing premises contains a covenant of warranty of title, either general or simply as against the claims of all persons claiming under the grantor only, and l)articularly if the "habendum be to the grantee, his heirs, etc., it will not be a simple release, but a conveyance of the fee; and a title subsequently acquired by the grantor will inure to the grantee unless it is derived from sale under an incum- brance assumed by the grantee.^^ § 338. Confirmation. The term ^'confirmation" is used to designate that species of conveyance whereby an existing right or voidable estate is made sure and unavoidable or where a particular interest is increased. The appropriate technical words of confirmation are "ratify, approve and con- fii-m," but "grant and convey" or similar terms will have the same effect. Deeds of confirmation are not in general use, as a "quitclaim" is effective for almost every purpose which might be accomplished by the former. Frequently, however, recitals 14 People ex rel. Weber v. Herbel, operating by way of enlargement. 96 111. 384. There is a mode of After the statute of uses, and the conveyance operating in part under subsequent statute requiring en- the statutes of uses which at one rollment of deeds of bargain and time was often recognized in the sale, it became an object to trans- United States and is said to be the f er the use in land by some method common mode of conveyance in not requiring the publicity of such England. This species of convey- enrollment or of actual possession, ance is called a lease and release; The latter statute being held in- and while it seems to have been applicable to conveyances for employed in this country during years, this method was found in the latter part of the last century making a bargain and sale for a it is now unknown, having been year, and subsequently a common- superseded by the deed of bargain law release enlarging the estate of and sale. A lease and release Is the bargainee into a fee. The re- in fact a bargain and sale for a lease would take effect though the year, and a common-law release bargainee never had actual posses- THE MEDIUM OF TRANSFER. 403 in deeds show them to be given in ratification or confirmation of previous acts and to correct errors, irreguhirities or infirm- ities in former deeds, in which event they take effect by rela- tion as of the date of the former act or deed, and tlie con- firmatory words become material to inteiTiret and explain the undisclosed intention or correct the irre Turner v. Dawson, 50 111. 85; v. Montgomery, 20 Johns. (N. Y.) and see § 117, supra. 15. 3r> Papin v. Goodrich, 103 111. 86. 37 Hussey v. Roquemore, 27 Ala. In this case the purchaser de- 281; but see Dresel v. Jordan, 104 manded inspection of the deed on Mass. 407. the day fixed for the payment of -^^ Crabtree v. Levings. 53 111. purchase money and delivery of 526; Rudd v. Savelli, 44 Ark. 145. deed. 39 Gibbs v. Blackwell. 37 111. li)l. 30 Terry v. George. 37 Miss. 539; 410 THE MEDIUM OF TRANSFER. upou lender of deed, to luise aud urge wluitever objections he may have either as to form or substance; and although the deed tendered by the vendor may not conform to the terms of the contract, yet if the vendee makes no objection to the same, but merely declares his inability to pay for the land, it seems that he thereby waives all objections to the deed and cannot raise the objections upon a suit afterwards brought,'^*^ It has also been held that where the deed presented is objectionable in substance, or fails to conform to the agreement, the vendee should prepare a deed and present it to the vendor for execu- tion before the vendor can be put in default.'*^ The foregoing principles are more particularly applicable to a purchaser who has been let into possession, and against such the rule will usually be strictly enforced; nor can a pur- chaser who has had possession sustain his refusal to take a deed by the fact that it was not tendered punctually .^^ where a purchaser goes into possession under an agreement to pur- chase, and some of the pa^Tnents are deferred, the title papers remaining in escrow until the payments are made, after an occupation of several years, knowledge that the papers are in escrow, and payment of part of the purchase money without o'bjection, will be deemed a waiver of all formal exceptions to the regularity of the papers."*^ Nor do the foregoing remarks apply exclusively to the vendee. By the English practice the duty of preparing the *o Moak V. Bryant, 51 Miss. 560. consideration did not appear, the In this case the vendee was in pos- court refused to set aside a nonsuit session, and the objections were which had been ordered, and inti- raised for the first time when sued mated their opinion that, to put for the possession of the land. And the vendor in default, the vendee see Kenniston v. Blakie, 121 Mass. should have prepared a deed con- 552. formable to the agreement and 41 Where a vendor of real estate, presented it to the vendor for exe- who was under a contract to exe- cution, who, on refusal, would cute and deliver a deed by a day have been liable to an action, certain, executed and tendered a Hackett v. Huson, 3 Wend. (N. Y.) deed which the vendee refused to 249. accept, on the allegation that the 42 Curran v. Rogers, 35 Mich. 221. true consideration of the convey- 43 Thayer v. Torrey, 37 N. J. L. ance was not expressed in it; and 339. In this case the vendee re- where, from the evidence^produced tained possession for four years on the trial, the true sum which before making objection, ought to have been inserted as the THE MEDIUM OF TRANSFER. 411 (Iced devolves on I lie vendee, wlio is ie(|nire(l, in due time, io pivsi'iil the Himie to the vendor for execntion. This cuHtoni does not and never has prevaih'd in the I'nited Stales, wliere the tender of a properly execnted deed is a jKiit of the oblif^a tiou of the vendor-. l»iil it would Heeni that if tlie vendee, citlier in iiursiiance of the a^reenient or aw a voluntary act, a.ssnmeH such duty, a correspondinj; duty of seaHonable objec- tion thereto rests ui)on the vendor; and where, in pursuance of an aj^reenient, the vendee tenders for execution by the vendor a ditVerent deed from that called for by the contract, the vendor must make his objections, if he has any, at the time of presentation or within a reasonable time thereafter. He cannot be i)ermitted to retain the proposed deed without objection, or reservation of the right to object, and afterwards, when sued for a breach of contract, set u]) the objection for the first time in answer to the action.^* A failure to object to a deed when tendered cannot be said to be conclusive on the question of waiver of objections, how- ever; but it is a signiticant circumstance strongly tending to indicate waiver, and when taken in connection with other facts may have an important bearing upon the question when presented.^^ The obligation of the vendee cannot be enlarged by impli- cation, nor can he be made to assume burdens which have not been distinctly and specitically enumerated in the contract. For this reason a tender of a deed reciting that the grantee assumes the pa^^nent of a mortgage therein described is not a compliance by the vendor with a contract that the convey- ance should be made subject to the incumbrance of tlie mort- gage: nor will such tender relieve the vendor from his obliga- tion under the contract.'*' § 350. Duty of preparing deed. It seems that in England the duty of preparing and presenting the deed devolves upon tlie purchaser;"*" and this fact is sometimes cited in tin* United States as an excuse for negU'ct or delay on tlie jtart of the •«< Morgan v. Stearns, 40 Cal. 434. 449; Kohner v. Higgins, 42 N. Y. Compare Dresel v. Jordan, 104 Sup. Ct. 4. Mass. 407. '■ 1 Sug. on Vend. 3G6 (8th Am. 4'' Gault V. Van Zile. 37 Mich. 22. ed.) and cases cited. Nicholson v. Caress. 45 Ind. «< Johnston v. Mendenhall, 9 W. 479: Carter v. Wise, 39 Tex. 273. Va. 112. «>• Brady v. Spfuck. 27 111. 478. 414 THE MEDIUM OP TRANSFER. particularly in sales of land, courts have sometimes interposed to supply deficiencies or omissions in such contracts; and it has been held that under a contract for conveyance which is silent as to the character of the deed to be given, the pur- chaser is entitled to a deed with such covenants as are usual by the custom of the place where the land lies;®'' and the prin- ciple is also recognized in many of the states that a vendor who makes a sale of lands for his own benefit can, in general, be required to give a covenant of general warranty/'*' But these decisions do not affect the general principle first stated, and notwithstanding they have been made in the interests of justice and fair dealing their propriety may well be ques- tioned. Where parties desire and intend that the conveyance shall be with covenants they should so stipulate; for if a con- veyance is tendered in all respects eflficient to convey the title and all the grantor's interest in the property, the imposition of any further duties in respect thereto or the assumption of any burdens in connection therewith should be the subject of a distinct and clearly expressed agreement. Where the contract provides for a warranty deed this is generally understood as meaning the five covenants now usually inserted in deeds of bargain and sale. A contract to give a "good and sufficient" deed of convey- ance, whether with or without warranty, calls for an opera- tive conveyance — one not merely good in form, but in sub- stance as well, and which carries with it the title to the land; and even though the deed may be with covenants of warranty it seems that it is not sufficient if the vendor has no title or only an imperfect one.^'' The mere giving of a warranty deed is not regarded as a compliance with a covenant to convey by that form of deed where the title is incumbered or otherwise defective. § 352. Re-execution of lost deeds. Under the operation of our recording laws, deeds and other instruments of convey- ance are not guarded with the same care as in England and 65Gault V. Van Zile, 37 Mich. 22. ford v. Turner, 67 Mo. 296; John- esFaircloth v. Isler, 75 N. C. 551; ston v. Piper, 4 Minn. 195; Witter Allen V. Hazen, 26 Mich. 143; Linn v, Biscoe, 13 Ark. 422. V. Barkly, 7 Ind. 70; Vanda v. Hop- e? Everson v. Kirtland, 4 Paige kins, 1 J. J. Marsh. (Ky.) 293; (N. Y.) 628. Clark V. Lyons, 25 111. 105; Herry- THE MEDIUM OF TRANSFER. 415 other countries where no general system of public registration prevails. Indeed but few proprietors can produce other of the title deeds of their lands than the immediate instrument by which they accjuired same and, in many cas«*s, whcie long possession has intervened, even this not infrequently becomes lost. If the instrument has been recorded no evil effect will usually result from the loss unless the record is itself destroyed. P>ut it may happen that after the purchase i)rice has been paid, and the purchaser let into possession, the operative instrument of conveyance is lost or destroyed without having been placed of record. In such event, the vendor having dis- charged the legal duties imposed upon him, what remedy is left to the vendee who by accident or misfortune is thus unable to assert a paper title? Undoubtedly he might resort to the aid of equity to restore the lost deed,*^^ but this, it seems, will not be the only way of escape from his dilemma, for, as it would be inequitable in such a case for the vendor to retain the record title, a court of chancery, acting within its general jurisdiction, may compel the vendor to execute a new deed.^^ «HSee Hord v. Baugh, 7 Humph. so Kent v. Church, 136 N. Y. 10; (Tenn.) 576; Lancy v. Randlett, 80 Cummings v. Coe, 10 Cal. 259. Me. 169; Griffin v. Fries, 23 Fla. 173. CHAPTER XIII. CONSTRUCTION OF DEEDS. § 353. General rules. § 360. Consideration. 354. Construction in favor of 361. The habendum. grantee. 362. Testamentary writin 355. Ambiguities and encies. inconsist- 363. Deed construed as gage. 356. The premises. 364. Doctrine of relation. 357. Recitals. 365. Lost deeds. 358. The parties. 366. Forged deeds. 359. Presumption as to grantee — Persons of same name. mort- § 353. General rules. It is a fundamental rule in the con- struction of deeds that effect must be given to the intent of the parties when it is plainly and clearly expressed, or can be collected or ascertained from the instrument, and is not repugnant to any rule of law.^ Technical rules of construc- tion are never to be resorted to where the meaning is plain and obvious ;2 and in the exposition of deeds the construction must be upon the view and comparison of the whole instrument, and with an endeavor to give every part of it meaning and effect.3 So, too, while courts cannot give effect to an instru- ment in writing so as to do violence to the rules of language or to the rules of law, yet they are to give it such a construc- tion as will bring it as near to the actual meaning of the parties as the words which they have seen fit to employ and the rules of law will permit.* 1 Flagg V. Eames, 40 Vt. 16; Car- son V. McCaslin, 60 Ind. 337; Lehn- dorf V. Cope, 122 111. 317; Bent v. Rogers, 137 Mass. 192. 2Noyes v. Nichols, 28 Vt. 159; Huntington v. Lyman, 138 Mass. 205; Kimball v. Semple, 25 Cal. 449. 3 Jackson v. Meyers, 3 Johns. (N. Y.) 383; Dickens v. Barnes, 79 N. C. 490; Jackson v. Sharp, 27 Wis. 472; Higginbothan v. Stod- dard, 72 N. Y. 99; Cooper v. Cooper, 76 111. 60; Pike v. Monroe, 36 Me. 309. * It not infrequently happens that instruments cannot have the effect intended by the parties, but effect is given to them in another way consistently with such intention. The rule is "that they shall operate according to the intention of the parties, if by law they may, and, if they cannot operate in one form, 416 CONSTRUCTION OF DEEDS. 417 A deed will be construed according to its apparent intent where the language is defective,'^ and, if necessary, the clauses of a deed may be rejected or transposed so as to give it its apparent construction.''' As a general rule, the rights of the parties to a deed must be ascertained from the words of the instrument; but this rule is subject to the moditication that surrounding circum- stances may be taken into consideration,'^ the particular sit- uation of the parties, and the state of the thing granted.^ Where vagueness or uncertainty may seem to exist, evi- dence aliunde may be resorted to; and if with the aid of extrin- sic facts and circumstances'-^ the intent of the parties can be ascertained with reasonable certainty, the conveyance will be sustained.^'' On the other hand, where the language employed is so uncertain that the intention of the parties cannot be dis- covered, the deed is void; and this whether the uncertainty has reference to the person of the grantee or the description of the thing granted. Questions of construction arise most frequently with respect to the property conve^-ed and the extent and duration of the estates therein created; and as these matters are made the subjects of subsequent chapters, where they are treated in they shall operate in that which by « Batavia Mfg. Co. v. Newton law shall effectuate the intention." Wagon Co. 91 111. 230; Hadden v. Peckham v. Haddock, 36 III. 38; Shoutz, 15 111. 581; Mulford v. Le Litchfield v. Cudworth, 15 Pick. Franc, 26 Cal, 88; Dunn v. Eng- (Mass.) 23. lish, 23 N. J. L. 126; Abbott v. 5 Cumberland, etc. Ass'n v. Ara- Abbott, 53 Me. 356; Pollard v. mingo, etc. Church, 13 Phil., (Pa.) Maddox, 28 Ala. 325. 171; Lehndorf v. Cope, 122 111. 317. 'Jit has been held that, in con- « Staton V. MuUis, 92 N. C. 623; struing the language of a deed, the Anderson v. Baughman, 7 Mich. 69. court must assume that the par- 7 Courts must give a common- ties to the deed stood upon the sense construction to grants, and ground and had all the lands and will consider the state of things boundaries, natural and artificial, and the considerations in view of as well as lands of adjoining own- the parties at the time the grant ers, in full view at the time. Wen- is made, which move them to its dell v. Jackson, 8 Wend. (N. Y.) execution and acceptance. Louis- 183. ville, etc. R. R. Co. v. Koelle, 104 lo Peck v. Mallams, 10 N. Y. 532; 111. 455; and see Treat v. Strick- Walch v. Ringer, 2 Ohio, 327; Gano land, 2 Me. 234; Truett v. Adams, v. Aldridge, 27 Ind. 294; Anderson 66 Cal. 218. v. Baughman, 7 Mich. 69. 27 418 CONSTRUCTION OF DEEDS. detail, do attempt will be made in the subsequent paragraphs to elucidate any points or determine any questions growing out of the descriptions of lands or the creation of estates. § 354. Construction in favor of grantee. It will sometimes happen that, by reason of peculiar circumstances and condi- tions which practically preclude any other view, a deed must be construed most strongly in favor of one of the parties in respect to the thing granted and the estate conveyed, and the rule is that in such cases such a construction shall be had as is most favorable to the grantee.^ ^ But such construction is the last one to which courts apply, and ought never to be resorted to so long as a satisfactory result can be reached by other rules ;i 2 ^nd is not applicable to any case but one of strict equivocation, where the words used will bear either one of two or more interpretations equally well.^^ The rule is based upon the principle that a deed should never be held void when the words may be applied to any intent to make it good, and to that end they are to be taken most strongly against the grantor; for he should not be allowed to say a description framed by himself was so inde- finite that no title to the property could be acquired.^* The rule governing controversies between grantor and grantee, by which the language of a conveyance is required to be taken most strongly against the grantor, has no appli- cation when the dispute occurs between parties claiming under the same conveyance and who are each entitled to the benefit of the same rule of construction.^^ Nor is it applicable to a deed with statutory and express covenants, as it is a rule of equal force that all statutes in derogation of the common law must be construed strictly.^ ^ § 355. Ambiguities and inconsistencies. The proposition is fundamental that the construction of all deeds must be favor- able and as near the minds and intents of the parties as the rules of law will admit,i^ the entire instrument being duly 11 People V. Storms, 97 N. Y. 364; " Albee v. Huntly, 56 Vt. 458. Hager v. Spect, 52 Cal. 579; Mills v. i* People v. Storms, 97 N. Y. 364. Catlin, 22 Vt. 98; Winslow v. Pat- is Coleman v. Beach, 97 N. Y. 545. ten, 34 Me. 25; Watson v. Boylston, I'i Finley v. Steele, 23 111. 56. 5 Mass. 411. 17 Fish v. Hubbard, 24 Wend. i2Flagg V. Eames, 40 Vt. 16. (N. Y.) 654; Brookman v. Kurz- CONSTRUCTION OF DEEDS. 410 surveyed and the various parts so adapted and construed that the whole, if possible, may stand.^* Where the description of the parties or [jropci'ty \» ainbi^nioiiw, or where there is iucou- sisteiicy in the several particiiUuH, words, if necessary, may be supplied by intendment, and particular clauses and pro- visions (jiialified, ti-ansposed or rejected in order to give effect to apparent intention.'"-' What words or clauses shall be rejected or qualified in case of uncertainty is frequently deter- mined by giving effect to those parts or clauses which are most certain, and to particulars in respect of which the parties would be least likely to have made a mistake.^o It is an old rule that, in the construction of deeds, the earlier clauses control the later ones; but this rule, in effect, is practically abrogated, or if employed is only resorted to when reconcilement becomes impossible. The later and better rule would seem to be that inconsistencies are to be recon- ciled if possible ;-i and while the former rule may still be applied where a subsequent clause would defeat the grant, it is never permitted to prevail where there is room for con- struction.22 If it is the clear intent of the grantor that appa- rently inconsistent provisions of a deed shall all stand, such limitations upon and interpretation of the literal signification of the language used will be imposed as will give effect, if possible, to all of its provisions.^^ On the other hand, where the intention of the parties is decisively shown from one clause, the intention thus shown will control, notwithstanding ambiguities and inconsistencies in other dauses.^^ It is a further rule, of general application, that a manifest general intent will control a particular intent. § 356. The premises. Technically the premises of a deed is man, 94 N. Y. 273; Bent v. Rogers, 20 Case v. Dexter, 106 N. Y. 548; 137 Mass. 192; Waterman v. An- Bent v. Rogers, 137 MasS. 192. drews, 14 R. I. 589; Bryan v. Brad- 21 Waterman v. Andrews, 14 R. I. ley, 16 Cond. 474. 589. i« Booth V. Mill Co. 74 N. Y. 21; 22 Tucker v. Meeks, 2 Sweeney Parker v. Nichols, 7 Pick. (Mass.) (N. Y.), 736. Ill; Salisbury V. Andrews, 19 Pick. 2:1 Coleman v. Beach. 97 N. Y. (Mass.) 250. 545; Salisbury v. Andrews, 19 Pick, i» Hathaway v. Power, 6 Hill (Mass.) 250. (N. Y.), 453; Anderson v. Baugh- 24 Bent v. Rogers, 137 Mass. man. 8 Mich. 60; Riggin v. Love, 192. 72 111. 556. 420 CONSTRUCTION OF DEEDS, everything which precedes the habendum, and includes the most material and operative parts of the instrument. The date, where the instrument takes the form of an indenture, is always placed at the beginning of the premises, but is gen- erally regarded as the least material part. It is customary to insert it, and good conveyancing requires that it should be stated; yet, as a matter of law, the date is no part of the substance of the deed and is not necessary to its operation or effect.-^ Though the expressed date of a deed is immaterial to its operation and effect, and may under ordinary circum- stances be contradicted and explained, yet, when taken in connection with conditions or stipulations annexed to the grant, it may become important in fixing the time for the performance of any act by grantor or grantee, and in such case cannot be varied by parol.^^ The date of a deed, in the absence of other proof, is presumed to be the true date of its execution27 as well as delivery ;28 but should the instrument be without date, the date of acknowledgment may be pre- sumed as indicative of the time of the performance of those acts.29 The premises also contain the names of the parties, the consideration recitals, the operative words of conversance, and the description of the property conveyed, each of which will be duly considered in its appropriate place. In common parlance the lands conveyed are frequently spoken of as the premises. This expression has obtained currency largely through a misapprehension of its import by the laity. The description being placed in the premises it has long been customary for lawyers, whenever occasion arose for a reference to the description, instead of repeating the verbiage of the grant to refer to it simply as the premises. 25 Jackson v. Schoonmaker, 2 ever since Edward II. it has been Johns. (N.Y.) 234; Meach v. Fowler, customary to date them. 4 Cruise, 14 Ark. 29; Costigan v. Gould, 5 216. Denio (N. Y.), 290; Blake V. Fish, 2g Joseph v. Biglow, 4 Cush. 44 111. 302; Thompson v. Thomp- (Mass.) 82. son, 9 Ind. 323. It is said that 2" Darst v. Bates, 51 111. 439; formerly deeds were not dated, for Smith v. Porter, 10 Gray (Mass.), the reason that a deed dated before 66. the period of prescription, which 28 Hardin v. Crate, 78 111. 553. was constantly changing, was sup- 29 Gorman v. Stanton, 5 Mo. App. posed not to be pleadable. But 585. CONSTRUCTION OF DEEDS. 421 The laity, observing the cusloin but not understanding its meaning, then came to regard it as indicating hind itself, and so the phrase passed into common speech. Thus, it is by no means infre(iuent to see a card in the window of a house which announces that the "premises" are to let. The author would not have volunteered this bit of elementary law were it not that many lawyers seem to be t^mploying the term in the .same incorrect manner. The word "premises" when used in legal phraseology relating to land always refers to the description of the land and not to the land. That is, it is not synonym for land, but only of the land as described in the deed, and is practically meaningless if used in any other way. However, as custom makes law, and as the expression is most convenient and comi)endious, it may be that it will eventually come to represent not the terms by which land is described but land itself, without reference to its description. Indeed, we occasionally find the word used in this manner by courts. vi 357. Kecitals. The recitals of a deed being unnecessary to its validity, cither at law or in equity, are never permitted to control its operation or limit its construction.^"^ They may be of use to explain a doubt of the intention or meaning of the parties, but the deed must have the etTect which its oper- ative words import regardless of any language inserted merely by way of recital.-''^ The most that can be claimed for them is an operation by way of esto])pel, and in this particular they are generally held to be effectual.^- >; 358. The parties. Considerable space has already been devoted to a consideration of the subject of the parties to a conveyance of land, and as to who are and who are not capable of contracting, as well as the manner in which a valid contract may be made. It is not intended, therefore, to repeat here any part of what has been said with respect to the capacity of parties or methods of contracting, but to point out the essentials of the conveyance with respect to the manner in 30 Huntington v. Havens, 5 Johns, which formed the inducement of Ch. (N. Y.) 23. the conveyance, by way of recital. 31 Moore v. GrifRn, 22 Me. 350; At present such recitals are almost Clark V. Post, 113 N. Y. 17; Walker wholly confined to official deeds. V. Tucker, 70 111. 527. It was for- ''^ Stow v. Wise, 7 Conn. 214. See merly customary to insert a his- Peck v. Hensley, 20 Tex. 673. tory of title, or special matters 422 CONSTRUCTION OF DEEDS. which such contracting parties should be distinguished and identified. To make a valid and effectual conveyance by grant it is essential that the name of the grantor shall be inserted in the premises, together with apt words showing an intention to convey, and it seems that merely signing a deed is not sufficient if the name of the person so signing appears nowhere else.33 On this point, however, the authorities are not agreed and some cases announce a contrary rule.^^ It is further essential to the validity of every conveyance that it be to a grantee capable of taking and of proper identi- fication; and while it is not essential that the grantee shall actually be named, yet if not named he must be so described as to make him capable of designation.^^ There is perhaps a necessary uncertainty in writings, involved in their applica- tion, both as to persons and things described therein, and parol proof is sometimes absolutely indispensable to fix the identity of the person intended or the thing concerning which the parties propose to contract; yet a written contract, in order to comply with the statute, must be in some sense self- sustaining. *'It would be mere folly," as was said in one case, '•^to make a conveyance to my next-door neighbor, or to the person now sitting at the table with me, by this description instead of by name, and the law could hardly be expected to enforce such a conveyance." The description of the parties, therefore, is equally as important as that of the property, and should be of such a character as to leave no doubt as to Ihe person or persons intended. The rules relating to designation and capacity are funda- mental, and hence a deed to the heirs of a living person named therein, without giving the names of the heirs, would be a nullity and pass no title to any one;^^ so, too, of a deed to a 33 stone V. Sledge, 87 Tex. 49; Morris v. Stephens, 46 Pa. St. 200. Peabody V. Hewitt, 52 Me. 33; Pur- In a similar case in Tennessee, cell V. Gashorn, 17 Ohio, 105; Har- however, it was held that the word rison v. Simmons, 55 Ala. 510. "heirs" should not be taken in its 34 See Armstrong v. Stovall, 26 technical signification, but to mean Miss. 275; Elliot v. Sleeper, 2 N. H. "children," and that the deed took 525. effect as a present grant. See 35 Simmons v. Spratt, 20 Fla. Grimes v. Orrand, 2 Heisk. (Tenn.) 495; Newton v. McKay, 29 Mich. 1. 298. So, too, it has been deter- 36 Hall V. Leonard, 1 Pick. 27; mined in a number of cases, that Winslow V. Winslow, 52 Ind. 8; the word "heirs," notwithstanding CONSTRUCTION OF DEEDS. 423 corporation which hiiH no h'gal existence."'" Hut coiirtH, in the application of these rules, are ever iuclincd to a liberal interju'ctation; and although no giaiitcc be named, if the grant he made for a spccilic use, a trust will often be created which a court of equity will protect, and, if necessary, appoint a trustee and compel a conveyance to him of the legal title.^"* A conveyance to John Smith & Co. would at law have the effect to vest title in John Smith alone; for the several mem- bers of a firm cannot be regarded, in the view of a court of law, as holding real estate as tenants in common, unless it be conveyed to them as such by name.^^ So, also, a conveyance to Thomas Harnett & Bro. has been held to vest title in Thomas Harnett only, and that a conveyance from him would give to his grantee a valid title to the entire estate."*® It is not contended, however, that such a deed would be altogether void in respect to the unnamed members of the partnerehip, but simply that it would be without legal operation as to them; for it seems that while a finn name is not usually considered a sufficient designation of unnamed parties in law, it may nevertheless be regarded as a latent ambiguity which, may be explained by parol ;^^ while in ecjuity the i)artner thus specifically named would be treated as holding the legal title in trust for the partnership.^^ ^ grant to John Smith & Son, however, would be effective as in this instance one of the grantees, though, not specifically named, is yet sufficiently described to admit of identification,^^ and, upon the same ])rin- ciple, a grant to one by name and his "Bro." would seem to its primary meaning, is susceptible fs Bailey v. Kilburn, 10 Met. of more than one interpretation, (Mass.) 176. and while the rule, as stated in •'•» Arthur v. Webster, 22 Mo. 378; the text still holds good, yet when Winter v. Stock, 29 Cal. 407; Gas- it is apparent from the instrument sett v. Kent. 19 Ark. 607; Moreau itself and the surrounding circum- v. Saffarans, 3 Sneed (Tenn.), 595. stances that in using the word the ^" Barnett v. Lachman,12Nev.361. grantor meant children, courts may and it devolves on the son or the party claiming under him to introduce evidence sutlicient prima facie to overcome or rebut this presumption. Should this be done, however, the oniLS will be shifted to the party claiming under the father, and he will be bound to i)roduce proofs sufiicient to overcome or at least equal in probative force the case of the adverse party.'^*' Where a deed has been made to one of two persons of the same name — the one tlie father and the other the son — both living together and occupying the lands conveyed, the character and circumstances of the occupancy, as bearing upon the question as to who was intended to take the grant, are proper subjects for consideration.^^ § 360. Consideration. It was essential to the validity and operation of deeds of bargain and sale under the statute of uses that they should be given for a pecuniary consideration, which was required to be expressed in the deed or proved independently of it. In modern conveyancing the principle has to a great extent been retained; but any consideration that is valuable, though merely nominal, will be sutlicient, nor is it necessary that it take the shape of money.'^- Gratuitous or voluntary conveyances are valid and effective as between the parties and all others whose rights are not injuriously affected thereby; but whenever a deed is assailed by one who lawfully claims a right or interest in tlie jtrojierty conveyed adverse to the grantee, it must, to insure validity, be supported by an adequate consideration. "Good" cousider- <»Graves v. Colwell. 90 111. 612; ^-2 Smith v. Allen. 5 Allen (Mass.) Padgett V. Lawrence, 10 Paige 454; Charleston, etc. R. R. Co. v. (N. Y.), 170; Stevens v. West, 6 Leech, 33 S. C. 175; Pool v. Docker, Jones, L. (N. C.) 49. 92 111. 501; Zane v. Zane. r. Munf. f'» Graves V. Colwell. 90 111. 612. (Va.) 406; Pierson v. Armstrong, 61 Graves v. Colwell. 90 111. 612. 1 Iowa. 282. 4^6 CONSTRUCTION OF DEEDS. ations, as those of blood, natuial allcction, etc., although meritorious, are not usually permitted to be effective in such cases; and, as a rule, to maintain a deed against the attack of creditors, owners of prior equities, etc., it must be founded upon some consideration which the law deems valuable. The value consists of some benefit conferred upon the party by whom the promise is made or upon a third party at his request, or some detriment sustained at the instance of the party promising, by the party in whose favor the promise is made. Money is always considered a valuable consideration; but marriage,^^ agreements for support,-'^^ past illicit cohabita- tion,'^^ extinguishment of antecedent debts^^ — although with respect to this many authorities are to the contrary^'^ — and generally any act or thing which comes within the definition first given and is adequate or commensurate with the value of the land conveyed, will be sufficient to give effect to the deed.^^ The subject is of vital importance whenever a conveyance is assailed as fraudulent, and its different phases will be considered in detail when we shall come to treat of that class of conveyances. It is customary and proper to recite in the deed the consider- ation paid for the land and the rules of good conveyancing would be infringed were such recital omitted. Such recital, however, is not conclusive either as to the amount paid or its receipt by the vendor. It may be shown that the real consider- ation was of a different amount from that expressed in the deed,^^ or even of an entirely different character.^o ^g between 53 Smith V. Allen, 5 Allen lor, 93 Ind. 431; Safford, v. Wade, (Mass.), 454; Verplank v. Sterry, 51 Ala. 214. 12 Johns. (N. Y.) 536; Whelan v. 57 See Johnson v. Graves, 27 Ark. Whelan, 3 Cow. (N. Y.) 537; Ellin- 557; Chance v. McWhorter, 26 Ga. ger V. Crowl. 17 Md. 361. 315; Brown v. Vanlier, 7 Humph. 5* Hutchinson v. Hutchinson, 46 (Tenn.) 249; Wood v. Robinson, 22 Me. 154; Exum v. Canty, ^4 Miss. N. Y. 564; Mingus v. Condit, 23 533; Shontz v. Brown, 27 Pa. St. N, J. Eq. 313. 123. sswood V. Beach, 7 Vt. 522; 55 Doe V. Horn, 1 Ind. 363. Jackson v. Leek, 19 Wend. (N. Y.) 50 Ruth V. Ford, 9 Kan. 17; Love 339; Busey v. Reese, 38 Md. 264. V. Taylor, 26 Miss. 567; Frey v. 59 Bowen v. Bell, 20 Johns. Clifford, 44 Cal. 335; West v. Nay- (N. Y.) 338. CONSTRUCTION OF DEEDS. 427 the partii'K it may be shown lliat the vcndfc has failed to pay the sura expiessed/'^ or that ho has aj;reed to pay an addi- tional amount contingent upon some future event or trans- action.*'- This results from the fact that the aj^jrccment by the vendee to pay for the land sold is not within the statute of frauds,"^ and hence, the vendor, althouj^'h the contract has been executed on his part by conveyance, may still maintain an action upon the agreement and establish his claim by parol testimony. § 361. The habendum. The office of the habendum in a deed is to limit with cei-tainty the estate previously conveyed by the jtremises. It cannot be made to effect the conveyance of anything not mentioned in the premises; nor can it change the character of the estate thereby convened, or divest an estate already vested; and, in general, is void if repugnant to the estate granted. But where no estate is mentioned in the granting clause, then the habendum becomes efficient to declare the intention of the parties, and will rebut any implication which would otherwise arise from the omission in this respect in the pre- ceding clause. So, also, where the granting clause in a deed merely describes the property and does not define the nature or character of the estate granted, and is not followed by language assuming to supply what is thus omitted, it results by legal implication under the statute relating to conveyances, as enacted in most of the states, that the estate is a fee; but where the habendum describes what estate is conveyed, it does not contradict the language of the granting clause, but simply supplies what is omitted therefrom and removes all necessity for resorting to implication to ascertain the intention of the parties.^'^ When it is clear from the whole instrument and attendant circumstances that the grantor intended the haben- dum to operate as an addendum or proviso to the granting «o McCrea v. Purmort, 16 Wend. Kendig, 55 Iowa 174; Linscott v. (N. Y.) 460. Mclntire, 15 Me. 201; or even the «i Shepard v. Little, 14 Johns, whole of such proceeds; Hall v. (N. Y.) 210. Hall. 8 N. H. 129. '■>- As that upon a resale he would '■ > Thomas v. Dickerson, 12 N. Y. pay a portion of the proceeds that 364. might be received in excess of «* Riggin v. Lowe, 72 111. 553. amount paid by him; Miller v. 428 CONSTRUCTION OF DEEDS. clause, and to control the same to the extent of limiting the estate conveyed, the hahendum must control/'^ So, too, while no person can take a present estate under a deed unless named therein as a party, and while the habendum can never introduce one who is a stranger to the premises to take as grantee,®** yet, where the grantee's name has been omitted in the premises, if the hahendum be to him by name, he takes as a party and the defect is cured.°^ § 362. Testamentary writings. While it is a generally- conceded rule that a grantor may make a valid present con- veyance of an estate to commence in futuro, yet such deeds must be carefully distinguished from instruments of a testa- mentary character and revocable at the option of the grantor. A will which is effective as a conveyance only at the maker's death is, from its own nature, ambulatory and revocable during his life; and it is this ambulatory quality which forms the chief characteristic of wills; for though a disposition by deed may postpone the possession or enjoyment, or even the vesting of an estate, until the death of the disposing party, yet the postponement in such case is produced by express terms, and does not result from the nature of the instrument. The reported cases have a tendency to leave this subject somewhat in doubt, the more advanced cases assuming posi- tions greatly in derogation of common-law rules, and opposed in many instances to decisions arrived at upon substantially the same facts. The volume of authority, how^ever, sustains the doctrine that an instrument in form a deed and purport- ing to convey land, but providing that the property shall remain the grantor's during life, the deed taking effect only at his decease, is a mere devise, revocable at will, and passes no title.68 65 Bodine's Admrs. v. Arthur, 91 be a deed, but to be testamentary Ky. 53. in its character. Cunningham v. 60 Blair v. Osborne, 84 N. C. 417. Davis, 62 Miss. 366. So, too, a con- 67 Lawe V. Hyde, 39 Wis. 346. veyance in the usual form, but 68 Bigley v. Souvey, 45 Mich. 370. containing the words "to com- An instrument in form a deed, and mence after the death of both of providing that "this deed not to said grantors," and "it is hereby take effect until after my death," understood and agreed between the and directing the beneficiary to grantors and grantee that the pay the maker's debts, held not to grantee shall have no interest in CONSTRUCTION OF DEEDS. 429 The form of the iustruineut is of coinijarativclj little moment for almost every conceivable form of writing by which men have attempted to convey, bind, or declare the legal status of property have been adjudged to be wills, and in arriving at a conclusion as to whether a written instrument, doubtful in its character, but posthumous in its ojieration, is a deed or will, the controlling imjuiry is the intention of the maker,'''' to be gathered primarily from the language of the instrument itself. The attending circumstances may also be shown in evidence as aids in determining whether the maker intended that the paper should operate as a deed or a will,"^^ and if from all such evidence it appears that the maker did not intend that any interest should vest before his death, the instrument should be deemed a will. It is the application of this fundamental rule, however, which has produced the larger part of the uncertainty which surrounds conveyances of the character now under consideration, and while all courts and jurists are agreed upon the primary proposition that the mani- fest intent of the grantor must govern and that the language used must fix and determine this intent, yet in its practical ap])Iication to conceded facts a wide diversity of opinion is shown. Where a deed conveys a present interest in land, such deed cannot be treated as of a testamentary character and its limi- tations revoked by the grantor.^i Nor will the fact that the right of possession is postponed until after tlie grantor's the said premises as long as the the grantors, or either of them, grantors or either of them shall shall live," and it was held that live," held not to create a present the provision in that instrument estate to commence in futuro, but was testamentary in its character, to be in the nature of a will revo- and revocable at any time by the cable at the grantor's option, grantor. Leaver v. Gauss, 62 Iowa 314. ''O Simon v. Wildt, 84 Ky. 157; And see Watkins v. Dean, 10 Yerg. Sharp v. Hall, 86 Ala. 110. Inten- (Tenn.) 320; Evans v. Smith, 28 tion is an inferential act. and, un- Ga. 98; Craven v. Winter. 38 Iowa less announced at the time the act 478. The case of Leaver v. Gauss, is done, is not susceptible of direct 62 Iowa 314, used the language, "to proof. commence after the death of the '" Oilman v. Master, 42 Ala. 365; grantors, it being understood be- Gage v. Gage, 12 N. H. 371. tween the grantors and the grantee "' Mattocks v. Brown, 103 Pa. St. that the grantee shall have no in- 16. terest in the premises as long as 430 CONSTRUCTION OF DEEDS. decease affect its openitiou as an absolute j^rautJ- There are authorities which hold that a writiuj^ may be partly a deed and partly a will/^ but, as a rule, any instrument which passes the rij^lit of propert}' durinji; the donor's life time, althouj^h of an alleged testamentary character, being not absolutely a will, must be regarded as a deed, for there is no middle ground.'^^ There is another class of cases which hold that, inasmuch as livery of seizin has been abolished and deeds of feoffment have fallen into disuse, the reason for the rule which formerly prevented the creation of estates in. futuro without some inter- mediate estate to support them has ceased, and with it the rule itself has practically ceased to have any effectJ'^ Under these decisions, where there has been a delivery of the deed, notwithstanding that by express terms it is to have no effect until the grantor's death, it will still be considered as a valid and operative conveyance, the fee in remainder vesting on delivery. The theory upon which these decisions proceed is that, where parties have clearly expressed their intentions by their written contract, and it is based on a sufficient consider- ation, and no rule of public policy has been contravened, such agreement should be enforced unless some stern and inflexible rule of law prevents.'^*^ It is further held that by giving effect to such conveyances the grantor is estopped by his covenants, and stands seized to the use of the grantee as in other deeds of bargain and sale; that such a course simply carries into 72 A conveyance to a trustee, the highly artificial rules which then property to be applied to the grant- prevailed there can be no doubt or's support and maintenance dur- that there should be not only a ing life, and at his death to be particular estate to support the re- divided among certain named per- mainder, but livery of seizin to the sons, is a deed and not a will, and tenant. As a remainder-man was cannot be revoked. It takes effect not entitled to possession, and the at once. McGuire v. Bank of Mo- fee could not vest without livery, bile, 42 Ala. 589. to avoid the difficulty by a fiction 73 See Burlington University v. the livery was made to the tenant Barrett, 22 Iowa 60. holding the particular estate; and '■^ Hileman v. Bouslaugh, 13 Pa. that was held to be livery of seizin St. 344. to the remainder-man. '■' If, as it was at the ancient ^o Shackelton v. Sebree, 86 111. common law, livery of seizin were 616; Ferguson v. Mason, 60 Wis. indispensable to the investiture of 377. title in the grantee, then under the CONSTRUCTION OF DEEDS. 431 effect (lie intention of the jtaitics, working injury to none and iufrin^inji n(t i-iilc of jiulilic jiolicyj^ •5 363. Deed construed as a mortgage. The authorities all ai^ree in dcclaiinj; that a deed absolute upon its face, but intended as a security for the payment of money, is only a mortj^age. This rule is allowed to prevail, even at law, where the deed is accompanied by a separate contemporaneous agree- ment in writing to recouvey upon the payment of the debt,'^'* while in equity parol evidence may be resorted to to prove the facts which establish the true nature of the transaction.'^'' It is to be observed, however, that the rule of equity which admits parol evidence in cases of this kind prevails only to the extent of allowing evidence of the intention of the parties at the time of the execution of the deed, and the proof must establish an agreement substantially contemporaneous there- with.'^'^ The i)roof of such agreement cannot rest merely on the subsequent admissions of the mortgagee ;**i nor does it seem that a subsequent mutual agreement to that effect is enough unless it be in writing and formally executed.^^ 77 Shackelton v. Sebree, 86 111. C16. It has been held that where a deed contains a provision that it is not to take effect and operate as a conveyance until the grantor's decease, and not then if the grantee does not survive him, but if the grantee does survive it is to con- vey the premises in fee-simple, with words appropriate and con- sistent with this provision in the habendum and covenants, it will be upheld as creating a feoffment to commence in futuro, and will give the estate in fee-simple to the grantee on the happening of the contingency named; the execution and record of the deed operating in the same manner as a livery of seizin at the grantor's decease. Ab- bott V. Holway, 72 Me. 298. 7sTeal V. Walker, 111 U. S. 242; Lanahan v. Sears, 102 U. S. 318; Haines v. Thompson, 70 Pa. St. 434. But on a sale and deed of lands an agreement, which is only an independent contract by the vendee to reconvey the lands to the vendor on certain conditions, does not make the deed a mortgage. Horbach v. Hill, 112 U. S. 144. 71' Raynor v. Lyons, 37 Cal. 452; Moffitt v. Rynd, 69 Pa. St. 380; Lindman v. Cummings, 57 111. 195; Morris v. Nixon, 1 How. (U. S. ) 118; Pugh v. Davis, 96 U. S. 332; Freeman v. Wilson, 51 Miss. 329; Campbell v. Dearborn, 109 Mass. 130; Perkins v. West, 55 Vt. 265. ^'^ Barrett v. Carter, 3 Lans. (N. Y.) 68; Baugher v. Merryman, 32 Md. 185; Sharp v. Smitherman, 85 111. 153; Frink v. Adams, 36 N. J. Eq. 485; Reed v. Reed, 75 Me. 264. 81 Plummer v. Guthrie, 76 Pa. St, 441. **- Barrett v. Carter, 3 Lans. (N. Y.) 68. 432 CONSTRUCTION OF DEEDS. If the couveyance is in fee, with a covenant of warranty, and there is no defeasance, either in the conveyance or a colhiteral i)ai)<'r, parol evidence to show that it was intended to secure a debt and to operate only as a mortgage must be clear, unequivocal and convincing, or the presumption that the instrninciit is what it ])urj)orts to be must prevail.^^ In considering the question whether an instrument in the form of a deed is not actually a mortgage, it is important to inquire whether the consideration was adequate to induce a sale;^' and the presumption in favor of the conveyance will be greatly strengthened where it appears that there is no considerable disproportion between the price paid and the value of the property.'*"' The true test in the determination of questions of this char- acter seems to be w'hether the conveyance was made as a security for the payment of money or the performance of any act or condition; and if the transaction resolves itself into a security it is in equity a mortgage, whatever may be its form.^^ If an agreement for resale is made contemporaneously with the conveyance, coupled with express conditions, the transac- tion may be either a mortgage or a conditional sale, dependent on the intention of the parties. Usually, if there has been an extinguishment of a pre-existing debt, or where no debt existed or continued between the parties, an agreement to repurchase within a given time constitutes a conditional sale and not a mortgage.^^ The language which the parties have seen fit to employ furnishes the best evidence, as a rule, as to the real character of the transaction; but if the language is equivocal the attend- ing circumstances may be resorted to, and in many cases they 83 Cadman v. Peter, 118 U. S. 73; 186; Cooper v. Brock. 41 Mich. 488 Hyatt v. Cochran, 37 Iowa 309; Hooper v. Bailey, 28 Miss. 328 Sinclair v. Walker, 38 Iowa 575; Slowey v. McMurray, 27 Mo. 113 Haynes V. Swann, 6 Heisk. (Tenn.) Carr v. Carr, 52 N. Y. 251; Mont- 560; Helm v. Boyd, 124 111. 370. gomery v. Spect, 55 Cal. 552; Mc- 84 Russell V. Southard, 12 How. Namara v. Culver, 22 Kan. 661; (U. S.) 139; Helm v. Boyd, 124 111. Freeman v. Wilson, 51 Miss. 329. 370. 87 Mitchell v. Wellman, 80 Ala. 85 Coyle v. Davis, 116 U. S. 108. 16; Murray v. Riley, 140 Mass. 490; 86 Sutphen v. Cushman, 35 111, Johnson v. Clark, 5 Ark. 340; CONSTRUCTION OF DEEDS. 433 will fiirniHli (he line ciitf rioii l»y wliicli to jiidj^c whether it is an absolute coiiveyauee, a conditional Hale or a inortjxage.*'^ § 364. Doctrine of relation. The doctrine of relation is aj)j)lied in conveyances of land lo ((juitable titles which suh- seciuentlj mature, either by operation of law or act of the parties, into lej^al titles; and where several acts concur to make a conveyance, estate or other thinj;, the orij^inal act will be preferred, and to this th(? other acts will have relation. The fiction of relation is that the intermediate bona fide alienee of the incipient interest may claim (hat the jrrant inures to his benefit by an ex post facto operation. In this way he receives the same protection at law that a court of equity could alTord him. Thus, the assij^nee of a certificate of purchase of school land, the purchase money bein<^ all i)aid, conveyed the premises by quitclaim deed; a few days after- ward he received the patent, and it was held that the le<;al title passed to his grantee. So, where a deed is made in pursnance of a recorded land contract, it relates back to the date of the contract and conveys the title as it stood at the time the contract was recorded.^^ The same doctrine also a]»plies to grants of unlocated land, the subsequent location operating by relation to the original grant.*'^ The doctrine of relation is a fiction of law adopted by the courts solely for the purpose of justice; and, where several proceedings are reiiuired to perfect a conveyance of land, it is only applied for the security and protection of persons who stand in some privity with the party that initiated the proctvdings and accpiired the (Mjuitable claim or right to the title. It does not affect strangers not connecting themselves with the equitable claim or right by any valid transfer from the original or any subs('(iu('nt lioldiM'.'-'^ § 365. lost deeds. A lost deed can only be established by clear and satisfactory proof."^ Where the deed has been record- Henly v. Hotaling, 41 Cal. 22; Logwood v. Hussey, 60 Ala. 417; Price V. Karnes, 59 111. 276; Wilson Slowey v. McMurray, 27 Mo. 113. V. Carpenter. 62 Ind. 495. sn Welch v. Dutton. 79 111. 465; 8." See Pitts v. Cable, 44 111. 105; Snapp v. Pierce. 24 111. 156. Cornell v. Hall, 22 Mich. 377; »•> Deqiiindre v. Williams, 31 Ind. Rockwell V. Humphrey, 57 Wis. 444. 414; Hughes V. Sheaff. 19 Towa »i Gibson T.Chouteau. 13 Wall. 92. 343; Rich v. Doane, 35 Vt. 125; »■; Loftin v. Loftin, 96 N. C. 94. 28 434 CONSTRUCTION OF DEEDS. ed, such record or a certified copy thereof is generally the best evidence that can be procured f^ while in case of the loss or destruction of both deed and record, an abstract of title, made in the regular course of business, has, under the aid of stiit- utes, been frequently held to be competent proof."^ It has also been held, in such latter event, that a copy of the original deed may be proved by the person who made the copy.-'^' § 366. Forged deed. Any document relied upon as a muni- ment of title must, as a rule, be susceptible of being proved, unless it ante-dates the period of limitation, in which case, in the absence of other controlling circumstances, it may be offered under the rules relating to ancient deeds. A forged deed, having never had a legal inception, is abso- lutely void.''^ It conveys no right, title or interest, nor will the recording of same affect the legal rights of the parties concerned.^^ Where the forgery is established the question of good faith is not involved,*^* and it is immaterial that a pur- chaser may have entered thereunder without notice of the infirmity. Yet where there has been an actual adverse posses- sion, commenced without notice and in good faith, and such possession has continued uninterruptedly for the statutory period, such deed may be effective as an estoppel considered in connection with the statute of limitations. 93 The record of a deed is prima as Fletcher v. Home, 75 Ga. 134. facie evidence of the genuineness, 9« Haight v. Vallet, 89 Cal. 245; due execution and delivery of the Meley v. Collins, 41 Cal. 663. original. Burroughs v. De Couts, o^ Haight v. Vallet, 89 Cal. 245; 70 Cal. 361. Pry v. Pry, 109 111. 466. 94 Heinson v. Lamb, 117 111. 549. 98 McGinn v. Tobey, 62 Mich. 252. CHArTER XIV. THE LAND CONVEYED. i367. General principles. §384. Continued — Exclusion from 368. Ambiguous descriptions. grant. 369. Inconsistent descriptions. 385. Continued — Where grantor 370. General and spdcial descrip- is without title. tion. 386. Effect of grant bounded on 371. Specific parts. highway. 372. Identification after convey- 387. Exception of highway. ance. 388. Streams and waterways. 373. Evidence aliunde. 389. Continued — Construction of 374. Construction by the parties. descriptive terms. 375. Reference to plat. 390. Lakes and ponds. 376. Survey governs plat. 391. Continued — Artificial 377. Identification of boundary waters. lines. 392. High-water mark. 378. Marked lines. 393. Tidal waters. 379. Boundary by "parallel 394. Riparian boundary as af- lines." fected by plat. 380. Estoppel in pais. 395. Exception from riparian 381. Statements of quantity. grant. 382. Streets and higliways. 396. Mines and minerals. 383. Continued — Unopened streets. 397. Operation of erroneous deed. § 367. General principles. The object of a description in a deed is to detine what the parties intend, the one to convey and the other to receive, by such deed; and the intention of the parties is to be deduced from the instrument of convey- ance, as in the case of any other contract.^ The true location of the premises ma3' be ascertained from the references of the deed — the monuments, points and lines expressly called for, which are fixed and well known, or are capable of being fixed with certainty, the courses and distances, and the whole description p;enerally; while evidence extrinsic from the deed is admissible under certain circumstances, and may be employed.2 1 Long V. Wagoner, 47 Mo. 178; Kimball v. Semple, 25 Cal. 440. ■■i Fuller V. Carr, 33 N. J. L. 157; Kronenberger v. Hoffner, 44 Mo. 185; Jackson v. Barringer, 15 Johns. (N. Y.) 471; Child v. Picket, 4 Me. 471 ; Green v. Jordan. 83 Ala. 220. 435 436 THE LAND CONVEYED. A grant must describe the land to bo conveyed, and the sub- ject granted must be identified by the description given of it in the instrument itself; if the land be so inaccurately described as to render its identity wholly uncertain, the grant is void.^ Where deeds or other writings are referred to as parts of the description in a deed, they may be used in evidence in aid of the description;* and in like manner, where a map or plat is referred to, the effect is the same as if it were copied into the deed/' A grant of land will not be held void for uncertainty of description if, in the nature of things, it seems possible to obtain testimony by means of which the particular parcel granted may be determined;*^ and where the different parts of a description are repugnant and contradictory to each other, such parts may be rejected and such retained as will leave enough to designate plainly and clearly the land intended to be conveyed J Where the parties, by their subsequent acts, have given a practical construction to a deed having in some particulars a false or indefinite description, such practical construction by the parties themselves will be considered by courts in construing a doubtful clause.^ The location of land as gathered from the description is governed (1) by natural objects or boundaries, such as rivers, lakes, creeks, mountains, etc.; (2) by artificial monuments, such as marked trees, lines, stakes, etc.; and (3) by course and sBoardman v. Reed, 6 Pet. Ct.), 494; Murry v. Hobson, 10 (U. S.) 328; Campbell v. Johnson, Colo. 66; Deal v. Cooper, 94 Mo. 62; 44 Mo. 247; Dull v. Blum, 68 Tex. Wade v. Deray, 50 Cal. 376; White 299; Williams v. R. R. Co. 50 Wis. v. Gay, 9 N. H. 126. 71; People V. Klumpke, 41 Cal. 263. s Hamm v. San Francisco, 17 •1 Cleveland v. Simnfis, 69 Tex. Fed. Rep. 119; Lovejoy v. Lovett, 153; Powers v. Jackson, 50 Cal. 124 Mass. 270; Simpson v. Blais- 429; Waterman v. Andrews, 14 dell, 85 Me. 199. The rule of in- R. I. 589. terpretation which rejects errone- 5 Noonan v. Braley, 2 Black ous particulars of description, (U. S.), 499; Burbach v. Schwein- where what is left sufficiently ler, 56 Wis. 386; Penry v. Rich- identifies the subject of the grant, ards, 52 Cal. 496. is adopted in aid of the intention c Blake v. Doherty, 5 Wheat, of the grantor as gathered from the (U. S.) 359; Harkey v. Cain, 69 instrument itself, read in the light Tex. 146; Nixon v. Porter, 34 Miss, of the circumstances in which it 697; Pursley v. Hayes, 22 Iowa 11. was written; and does not apply 7 Jackson v. Sprague, 1 Paine (C. where the description of the land THE LAND CONVEYED. 437 diHtancf.'' The ti'uc local ion of land is asccrlaiiifd by the ai)j)licalion of ail or any of llicsc rules to llic jjaiticiilai" case. And when (lic.y lead lo conlrary rcsnits or confusion, that rule must be adojjled whicli is most consistent with the intention apparent upon the face of the - Where a man conveyed a town stream. Nicolin v. Schneiderhan, lot according to a certain plat, 37 Minn. 63. which represented the lot as 53 Masterson v. Munro, 105 Cal. bounded on the north by a street, 431. and on the south by a stream, and THE LAND CONVEYED. 449 if not always, words of description only and not of quality. They serve to connect the deed with the plat, so that by apjilyinj;: the one to the other the foiiner may be rendered intcili'^ibk'; but while they j,'ive effect to the expressions of Ihc deed they do not limit them.^^ § 376. Survey governs plat. The remarks and conclusions of the fore^oin^ i)aiaj^iaph are made upon the presumption that the plat truly represents the survey. The marks and lines on the ground constitute the actual survey of land, while the draft or projection is merely evidence of such survey;'''^ and where any (juestion arises with regard to the plat or the actual location of the lots as parceled by the survey, the marks, stakes and monuments upon the land, according to which purchasers have bought and taken possession, will con- trol and govern the plat.^*^ The actual survey rather than the plan fixes the location and boundaries of the lot.'^'^ Hence, ])urchasers of town lots have the right to locate their lot lines according to the stakes set by the platter or subdivider of the lands, and no subsequent survey can, it seems, be introduced to unsettle such lines. The question afterwards is, not whether the stakes w^ere where they should have been in order to make (liem correspond with the lot lines as they should be if the I)latting had been done with absolute accuracy, but whether they were placed by authority and the lots were purchased and taken possession of in reliance upon them. If such was the case they must govern, notwithstanding any errors in locating them.'^^ In cases of deficiency or excess a rule has been fornmlated in some states which, to a certain extent, may seem to mili- tate against that last stated. Thus, if the lines of a survey are, found to be either shorter or longer than stated in the 5* Alton v. Illinois Trans. Co. 12 taken actual possession of any spe- 111. 88. cific part of the land as and for 55 Riddlesburg, etc. Coal Co. v. that lot. Marsh v. Mitchell, 25 Rogers, 65 Pa. St. 41G; Bean v. Wis. 706. Bachelder, 78 Me. 184. "'T Bean v. Bachelder, 78 Me. 184. '"••The rule applied to a case ^s Heaton v. Hodges, 14 Me. 66; where the evidence did not show Mills v. Penny, 74 Iowa 172; John- that a lot interpolated upon a plat son v. Archibald. 78 Tex. 96; Flynn had ever been sold by the proprie- v. Glenny. 51 Mich. 580. tors, or that any one had ever 29 450 THE I^ND CONVEYED. plat or field notes, the causes contributing to such mistake u ill be presumed to have operated equally in all parts of the original survey, and every lot or parcel must bear the burden or receive the benefit of a corrected survey, in the proportion which their respective frontages, as stated in the original plat or field notes, bears to the whole frontage as there set forth.-''^^ § 377. Identification of boundary lines. The primary rule in the construction of descriptions in conveyances of lands is that whenever fixed and known monuments as w'ell as courses and distances are given to describe the same line, and there is a discrepancy between the two, the monuments so called for must prevail over the courses and distances,*'^ upon the t heory that it is more likely that there would be a mistake or a misunderstanding about the course or the distance than about the monument.*5i Tj^jg theory proceeds on the assump- tion that in all cases of division or subdivision there has been an actual survey and the reason of the rule is therefore ap- parent. Slo, also, it has been held that points and lines ex- pressly called for, w^hich are fixed and well known, or are capable of being fixed with certainty, should govera and con- trol the courses and distances ;^2 ^nd further, that where there are no express calls that determine a line with certainty, evidence aliunde is admissible to show where the line was act- ually run to which the deed alludes or to which it must have reference; and its location so fixed by extrinsic evidence will control the courses and distances named in the deed.^^ 59 Pereles v. Magoon, 78 Wis. 268. As a general rule, in the lo- 27; James v. Drew, 68 Miss. 518. cation of lands described in a deed, 60 Kronenberger v. Hoffner, 44 natural objects called for therein Mo. 185; Keenan v. Cavanaugh, ■ — such as mountains, lakes, rivers, 44 Vt. 268; Welder v. Hunt, 34 rocks and the like — control artifi- Tex. 44; West v. Shaw, 67 N. C. cial objects, such as marked lines, 489; Barclay v. Howell, 6 Pet. (U. marked trees, stakes, etc. Ayers v. S.) 498; Morrow v. Whitney, 95 Watson, 113 U. S. 594. U. S. 551. Thus, if marked trees «- Kronenberger v. Hoffner, 44 or corners be found conformably Mo. 185; Howell v. Merrill, 30 to the calls of a deed, or if other Mich. 283; Hoar v. Goulding, 116 natural objects be called for, dis- Mass. 132; Ayers v. Watson, 113 tance must be lengthened or short- U. S. 594. Compare Kellogg v. ened and courses varied so as to Mullen, 45 Mo. 571; Walsh v. Hill, conform to those objects. Mclver 38 Cal. 481. T. Walker, 9 Cranch (U. S.) 173. e3 Kronenberger v. Hoffner, 44 61 Keenan v. Cavanaugh, 44 Vt. Mo. 185; Hoar v. Goulding, 116 THE LAND CONVEYED. 451 ir no moiiiiiiiciits ai'f iiiciilioiicd in a deed, or ii' montionod tlicif cxislence and location ai-c not jji-ovcd. courses and din- lanccs will j;()V<'rn;'" and so in respect to lines, foi- it is only wlien lines called for in a deed ai-e actually marked and can be ideiitifl"d that they control calls tor course and distance; and when the lines called foi' are of doubtful identity, course and distance should be resorted to as furnishing- the bcs^-t evi- dence the ease is susceptible of."-'' But while the rule is un- doubted that monuments, natural or artificial, rather than courses and distances, control in the construction of a deed of conveyance, such rule will not be enforced when the instru- ment would be thereby defeated, and when the rejection of a call or monument would reconcile other parts of the descrip- tion, and leave enough to identify the land.^'^' Such rule, when apjilied as a rule of construction, must be considered as (piali- lled by the further rule that the entire description must b(; read, and, if there are words of qualification or explanation, they must be considered in order to arrive at the intention of the parties.^^ In all disputes respecting boundaries of governmental divisions the lines established by the original survey must be followed, even though made on a wrong magnetic variation, and it is only when lost lines and corners are to be restored that allowance can be made for variation from the true meridian.^'^ It is often stated, as a general proposition, that course con- trols distance, yet there is no universal rule that obliges us to jtrefer one to the other; and when natural and ascertained objects are wanting, and the course and distance cannot be reconciled, one or the other may be preferred according to cir- cumstances.'^^ Mass. 132; Deery v. Cray, 10 Wall, and must be used. Chinoweth v. (U. S.) 263. Compare Putnam v. Haskell. 3 Pet. (U. S.) 92. Bond, 100 Mass. 58. "''Browning v. Atkinson, 37 Tex. ••■1 Bagley v. Morrill, 46 Vt. 94. 633. As where a grant is made which '■'< White v. Luning, 93 U. S. 515. describes the land by natural ob- ><'' Higginbotham v. Stoddard, 16 jects not distinguishable from N. Y. Sup. Ct. 1. others of the same kind, course •'« Taylor v. Fomby. 116 Ala. 621. and distance, though not safe "!> Preston v. Bowmar, 6 Wheat, guides, are the only ones given (U. S). 580. 452 THE LAND CONVEYED. If the starting-point of the boundaiy line cannot be identi- fied from the description given in the deed the conveyance is voidjo Where lands are described as being bounded on any side by the land of a third person, the laud conveyed will be bounded by the true boundary line between it and the land of such third person, and not by the line that was understood or suj)- posed to exist when the deed was given, if the two lines are not the sa.me;'^^ and a conveyance by a boundary, on a speci- fied course and distance, "more or less," from a given point to lands of a third person named, will be governed by the true line of such lauds, and not b}' the specified distanceJ^ Where the cardinal i)oiuts of the compass are mentioned they must be understood and construed in their true technical meaning. Custom and usage in all parts of the country have to a certain extent sanctioned the employment of the terms ''Northerly," "Westerly," etc., in the description of lines and courses. For this practice, however, there is no precedent in law and where such terms are used they must be construed to mean due North or West, as the case may be.'''^ So, too, where the words "North-easterh'," or similar expressions are employed, such words must be construed with reference to the true meridian and held to mean North-east, etc. Where a course is desired which deflects from any of the cardinal points its inclination should be ascertained and properly ex- pressed, as, "North, ten degrees East," if the course is in- tended to be relied on as a guide for fixing the boundaries of the tract. The mention of cardinal points may, however, be controlled or qualified by other words of description used in connection with them and such will generally be the case when it is necessary to harmonize a line run on such course with the points given for the beginning and ending of such line.'^^ § 378. Marked lines. Courts have ever been inclined to re- gard with favor the lines actually run in all cases of surveys, 70 Le Franc v. Richmond, 5 Saw- ••'^ Brandt v. Ogden, 1 Johns. (N. yer (C. Ct.) 601. Y.) 156; Fratt v. Woodward, 32 -1 Umbarger v. Chaboya, 49 Cal. Cal. 220. 256. T4 Currier v. Nelson, 96 Cal. 505. T2 Howell v. Merrill, 30 Mich. 283. THE L.\ND CONVEYED. -ioJ and ((> pcniiit .such lines, when ascci'taincd, to control other descriptions J"'"' So, wlicrc il ( an be proved that a line was act- ually run and marked and a cc^rncr made, such line will be taken as the true one, allliou<;h the deed calls for a natural object not reached by such line."" I?ul while marked lines are usually ])ermitted to control less delinite means of location, it is only when the line can be identified on the ••round as the one made by the surveyor that it will control a call for course and distance.'^'^ v; 379. Boundary by "parallel lines." No ti-rni is more commonly employed in the calls of a deed than that which describes a course as running "parallel" to some other line used as a boundary. Parallel lines, by strict mathematical definitions, are usually to be regarded as straight lines, and in the employment of such terms in deeds and other instruments straight lines are usually contemplated. I»ut in common speech about boundaiies, or in a geographical sense, the words are often used to represent lines which are not straight. The term is used for want of a better, and not because it in all respects fits the use to which it is applied. It is used in many instances to avoid excessive verbiage; and while such use may not be technically exact it is not obscure, and usually there is no difficulty in understanding what is m( ant.''^^ If a boundary line is described in a deed as being parallel with the general course of a stream whicli does not run straight, but meanders, a line is meant which runs parallel with the stream in all its meanderings; and notwithstanding that a call for direction is given as ''running easterly parallel "■'' Where a deed described the not conform to the course and dis- line in dispute as running from a tance given in the deed; and that corner on a given course a given the fact of the existence of said number of rods to a corner, but line of marked trees was legitimate did not state whether the corners as tending to show the marked cor- were marked on the land or not, ners as called for by the deed, and it appeared by parol that they Clary v. McGlynn, 46 Vt. 347. were in fact marKed by means of ~''> Baxter v. Wilson', 95 N. C. monuments, and that there was a 137. straight line of marked trees from "7 Fagan v. Stoner, 67 Tex. 286. one corner to the other, Jield, that ^s See Fratt v. Woodward, 32 Cal. the authentic line would be a 219; Williams v. Jackson, 5 Johns, straight line from one corner to (N. Y.) 306; Winthrop v. Curtis, the other, notwithstanding it did 3 Me. 103. 454 THE LAND CONVEYED. with," etc., the case will not be changed, for while such words as "easterly," when used alone in calls from one monument to another, would presume a straight line, yet the law will not so declare where, as in the case of a sinuous water-course, the language of the deed shows that a different line was in- tended.'^ S 380. Estoppel in pais. Questions arising out of disputed boundary lines are frequently settled by estoppels in pais growing out of the acts or declarations of the party who after- wards asserts rights in respect to such boundaries. Thus, where one is negotiating for the purchase of a piece of land adjoining the lands of another, and the latter points out to him a line which he says is the division line between the two pieces, he will be estopped b^' such statements from showing the line to be further over on the same tract, where the party making the purchase relies or acts upon these representa- tions.^*^ It is essential, however, to the creation of an estoppel of this character, that the party to whom the representations are made should rely and act upon them; he must have been induced to believe in the existence of a certain state of facts, and to act upon that belief so as to alter his condition.^! In this all the authorities agree; and hence, if subsequent cir- cumstances tend to disprove any such belief, or to show that it was not relied upon, the party making the representations will not be estopped, and may set up a claim inconsistent with his former statements.^^ § 381. Statements of quantity. Where the quantity of a tract of land is stated in the deed as well as the metes and bounds, the latter, if they can be ascertained with certainty, will control the location, although they contain less than the given quantity — the designation of quantity never being per- mitted to control the boundaries where they are clearly Indi- '0 Fratt V. Woodward, 32 Cal. S2 As where the purchaser after- 319; Hicks v. Coleman, 25 Cal. wards enters into agreements with 143. such coterminous proprietor to 80 Spiller v. Scribner, 36 Vt. 247. have a line run with a view to 81 Martin v. Zellerbach, 38 Cal. establishing where it ought to be. 300; McCabe v. Raney, 32 Ind. 309; Russell v. Maloney, 39 Vt. 579. Horn V. Cole, 51 N. H. 287. THE LAND CONVEYED. ioo catod.^'^ liiit where tliei-c is doubt aw to the true description, such designation of (juautitv nuiy be pioperly coiisidered.*^^ As a rule, however, a recital in a conveyance of land that the tract contains a certain number of acres will always, un- less there is an express covenant as to (piantity, be regarded as part of the description merely, and will be rejected if in- consistent with the actual area as ascertained by known monuments and boundaries. Such recital aids but does not control the description of the granted premises.**''^ The word "about," so frecjuently employed in connection with state- ments of (piantity, is generally i-egarded as a word of approxi- mation only; it will not cover any material deficiencies. § 382. Streets and highways. The general rule is now well settled that a grant of land bounded by a street or highway, whether the same be public or private, carries the land to the middle of such way; and such is the established presumption, governing the construction of a contract or deed, in the ab- sence of controlling words.*^*"' This presumption has in a num- ber of instances been held to be so strong that it is not re- butted even where the calls of the deed describe a line as running from a fixed point a ceriain distance to the highway and thence along the same, and the distance, upon measure- ment, carries the line only to the side of the highway;'*'^ for by the well-known rules of construction, calling for localities, measurements must yield to monuments. Where lands are de- scribed as bounded on lands of another or upon roads, ways, «■■! Ayers v. Watson, 113 U. S. 594; N. Y. 251; Bissell v. R. R. Co., 23 Fuller V. Carr, 33 N. J. L. 157; N. Y. 64; Taylor v. A'rmstrong, 24 Campbell v. Johnson, 44 Mo. 247. Ark. 107; Marsh v. Burt, 34 Vt. »< Field V. Columbet, 4 Sawyer 289; Kimball v. Kenosha 4 Wis. (C. Ct.) 523. 331; Warbritton v. Demorett. 129 8s Fuller V. Carr, 33 N. J. L. 157; Ind. 346; Florida, etc. R. R. Co. v. Campbell v. Johnson, 44 Mo. 247; Brown, 23 Fla. 104; Salter v. Clark V. Scammon, 62 Me. 47. Jonas, 39 N. J. L. 469. !<« Newhall v. Ireson, 8 Cush. ^' Paul v. Carver, 26 Pa. St. 225; (Mass.) 595; Motley v. Sargent, Motley v. Sargent, 110 Mass. 235; 119 Mass. 235; Champlain v. Pen- Oxton v. Groves, 68 Me. 371; Gould dleton, 13 Conn. 23; Buckman v. v. Eastern R. R. Co. 142 Mass. 85; Buckman, 12 Me. 463; Low v. Tib- Matter of Robbins, 34 Minn. 99; betts, 72 Me. 92; Moody v. Palmer, Livingston v. Mayor, S Wend. tN. 50 Cal. 37; Paul v. Carver, 26 Pa. Y.) 85; But see. contra. Sibley v. St. 225; Dunham v. Williams. 37 Holden, 10 Pick. (Mass.) 249. 456 THE LAND CONVEYED. waters, etc., such abuttals are monuments;**^ and where there is a conflict between courses and distances on the one hand and monuments on the other, the description by monuments must control. Nor does it seem essential, in order to carry a grant to the center of a highway, that the laud should even be described as abutting or bounding thereon; and whenever land is sold bordering on a highway, the mere fact that it is not so de- scribed in the deed will not vary the construction. The grantee will still take the fee to the middle of the highway, on the line of which the land is situated.^^ It has been stated, as a reason for the rule, that the adjoin- ing proprietors are presumed to have originally furnished the land in equal proportions for the sole purpose of a highway ;°^ and hence in a grant of the adjacent land the soil to the cen- ter of the highway passes as a parcel of the land and not as an appurtenant.''^ Ordinarily the ownership of the soil of the street or road is of no practical use to the grantors of the ad- jacent property; and usually there is no purpose to be served in the retention by them of narrow strips or gores of land be- tween the land conveyed and that of other proprietors, while for many purposes such ownership is of special importance to the purchaser.'-'^ n [^ presumed, therefore, that the grantor's 88 Wilder v. Davenport, 58 Vt. 642; Davis v. Rainsford, 17 Mass. 207; Boston v. Richardson, 13 Al- len (Mass.) 152. 89 Gear v. Barnum, 37 Conn. 229; Stark v. Coffin, 105 Mass. 328; Hawesville v. Lander, 8 Bush (Ky.) 679. 90 Dunham v. Williams, 37 N. Y. 251. This presumption yields when a different intention is clearly man- ifested, or when the evidence shows there could be no founda- tion for it; as, where the grantor at the time owned no part of the street, the same being laid out wholly on the land of another. Kings Co. Ins. Co. v. Stevens, 87 N. Y. 293; Champlin v. Pendleton, 13 Conn. 27. Entire street in such case passes to abutting lots under the general description in deed to original proprietor. Taylor v. Armstrong, 24 Ark. 107. 9iBissell V. R. R. Co. 23 N. Y. 64. 92 And so it has been held that, where the owner of a tract of land laid out a street on the outer edge thereof, and then conveyed lots bounding on the street, his gran- tees took the fee in the whole width of the street. Re Robbins, 34 Minn. 99. On the 'question whether, under a particular de- scription, land passes to the cen- ter of a highway or to the thread of a stream, the trivial benefit to the grantor of the fee in the road- way or stream, and the great' pos- THE LAND CONVEYED. 457 land in a street passes iiiuh r tin- ^ciicial description in his deed of the adjoiniii^^ land with whidi it is connected or lo which it l)('h)nj;s, as part of tiie same tract, subject, of course, to the public use.''"' § 383. Continued — Unopened streets. Nor does the mere fact that a street may be uuopeued vary the rule as above stated, for as between grantor and grantee a street is created where land clearly defined as to its extent and location is de- voted to that end by the grant, although it is not then in con- dition to be used as a street. In such event it may with jjropriety be referred to in the dcH'd as an intended street; the reference being to physical condition, not to title. The pre- sumption in such case is that the conveyance carries the fee to the center of such proposed street.^^ sible injury to the grantee from the want of it, are often circum- stances of controlling weight. "Ordinarily," says Ladd, J., in Woodman v. Spencer, 54 N. H. 512, "the benefit to the grantor of retaining his right in the soil of the road would be so small as to be almost or quite inappreciable. Ordinarily, the present actual in- convenience to the grantee, to- gether with the possible and even probable damage that may in the future result to him upon a dis- continuance of the road, would be a matter of very considerable im- portance — enough to interfere seri- ously, in most cases, with the price which could be obtained for the land. It Is improbable that a man will insist on an exception the only and certain effect of which must be to materially diminish the sala- ble value of his land, when he is to gain nothing by it. It is im- probable that two men have under- standingly entered into a bargain which contains a stipulation plainly and clearly to the disadvan- tage of both. A priori they would not be likely to do such a thing; therefore a posteriori it is not likely that they would have done it. The language of their deed is to be read in the light of this im- probability." »■' The presumption is so strong that even express measurements have been held not to defeat it. Thus, the owner of land laid out streets and passage-ways, divided it into lots, and caused a plan thereof to be made. He conveyed these lots to different grantees by deeds bound- ing on the streets and passage-ways, and describing the lots by meas- urements which excluded them. The deeds referred to the plan, and conveyed a right, as appurtenant to the lot, to use the passage-ways in common with the grantor and his assigns. Held, that each grantee took the fee to the center of the street. Gould v. Eastern R. R. Co. 142 Mass. 85. '■>* As, where the owner of land conveyed a portion thereof by a deed which bounded the land con- veyed by a street described as laid out upon a map, and provided that it should actually be laid out of a given width, in a subsequent pro- 458 THE LAND CONVEYED. § 384. Continued — Exclusion from grant. There can be no doubt that the grantor of land abutting on a highway may except the same from his grant. The general presumption in every case is, however, that he did not intend to retain it;'-*^ and such exception will never be adjudged unless it clearly appears from the language employed that such a course was intended. What language shall be sutlicient to exhibit such intention is the point of difficulty upon which courts have dififered. The description of the jiremises in connection with other parts of the grant, and by reference to the situation of the lands and the condition and relation of the parties to the lands conveyed and to other lands in the vicinity, may further be resorted to as an aid in arriving at a solution of the ques- tion; and these will often have a very important bearing upon the points involved.^^ Taken in connection with sur- rounding circumstances, streets will sometimes be excluded from ithe operation of the grant even without express words of exception or reservation — the language, in the light of the facts, being construed so as to demonstrate an intention that they should not fjass.^^ Another phase of the subject is presented where the con- tention of the full extent of the grant is raised by the vendor and not by the purchaser. The application of the rule in such case may be productive of results which were not actually contemplated when the agreement was entered into, but ceeding by his vendee to compel v. Dougherty, 33 Me. 502; Paul v. a purchaser to take title under a Carver, 26 Pa. St. 223. contract to convey to him to the 96 This is particularly true in the center of the road it was held that case of private ways, such deed gave title to the center, '■>' The New York cases favor the and that the vendor (the original construction that where the de- vendee) had title thereto and that scription commences or carries the the contract should be specifically land to the side of the road, with enforced against his vendee. Mat- specified courses and distances, the ter of Ladue, 118 N. Y. 213. soil of the street is by necessary 05 Bissel V. R. R. Co. 23 N. Y. 64 Kimball v. Kenosha, 4 Wis. 331 Chatham v. Brainerd, 11 Conn. 60 implication excluded; that the points thus established are con- trolling monuments, and that all and see 3 Kent's Com. 433; 2 lines must conform to the points Wash. Real Prop. 635; Matter of thus designated. See Jackson v. Ladue, 118 N. Y. 213; Silvey v. Hathaway, 15 Johns. 447; English McCool, 86 Ga. 1; Thomsen v. v. Brennan, 60 N. Y. 609. The same McCormick, 136 111. 135; Palmer construction has been had in Mas- THE L.\ND CONVEYED. 459 which, nevertheless, k'^iliiiiaU'lv How Iruiii it. Tlius, when an agreement for the puicliase of land at u certain price per acre, after survey made, calls for a street or highway as one of the boundaries, the purchaser must pay for the land to the middle line of such street or highway, unless a contrary inten- tion plainly appears. It is presumed that in fixing a price per acre of land abutting upon a street, all matters which increased or diminished its value were considered and allowed their proper influence. Sales of this kind are not unusual, and in such cases the acreage must be ascertained by a survey in accordance with the boundaries called for, while the fair and just conclusion is that, in arriving at the price per acre, the public easement and other matters affecting the value of the property received such consideration as they were entitled tO.«8 § 385. Continued — Where grantor is without title. While the rule is well settled that general terms of description in a deed, like ''to," "upon" or "along the highway," raises a presumption that the parties intended the conveyance to be to the middle or center line, and that such, operation will be permitt(»d for the deed notwithstanding that the portion of the land embraced in the limits of the road is not covered by the description in express terms, it must nevertheless be remem- bered that the rule is one of construction only, and is limited to those cases where the grantor owns the fee of the highway. The grantor owning the fee, the law presumes he intended to convey it and not retain a narrow and ofttimes long strip of land, which, for all practical purposes, would be of no value to him. But where the grantor does not own the fee of the land the law will not presume that he intended to convey that which he did not own; and a deed bounded on a highway would, in such case, be satisfied by title extending to the side of the road. The grantee would have all the land described in the deed, and the grantor would not be liable for a breach of his covenants.^ sachusetts. See Sibley v. Holden, as it is opened and built upon will 10 Pick. 249; Smith v. Slocomb, be held to be the line intended. De 9 Gray 36; and see Cottle v. Veny v. Gallagher, 20 N. J. Eq. 33. Young, 59 Me. 105. Where a deed "-^ See, Firmstone v. Spaeter, 150 calls for the line of a street as the Pa. St. 616. monument, the line of the street » Dunham v. Williams, 37 N. Y. 460 THE LAND CONVEYED. j5 386. Effect of grant bounded on highway. Wlioro land is ^rauted bounded upon a street or lu<^hvvay, such form of expression in the deed is not merely a description, but an implied covenant that there is such a street j^ and such descriptive words, particularly if the deed refers to a plat, are not to be understood as merely signifying that the street in question is co-extensive with the lot conveyed, but that its extent, direction and termini are to be such as are delineated on the plat or otherwise indicated by the deed.^ But this is practically the full effect of such a description. The recital of a street as a boundary cannot be understood to be an assur- ance or implied covenant that it has been constructed and put into condition for present use as a passage-way;* nor will it imi)0se upon the grantor any obligation to grade and construct it at his own expense. The most that can be said is tliat it amounts to an appropriation or setting apart of a portion of the adjacent land to that use.^ § 387. Exception of highway. Ordinarily a grant of land bounding upon a highway carries the estate of the vendee to the center line thereof, and that he should so take is usually the intention of the parties. Where highways and roads are excepted, as is frequently the case, the deed is always construed strongly against the grantor;^ and unless it is unmistakably apparent by the express terms of the exception, or the language employed in describing the grant, that the soil of the road-bed was intended, such exception will be held to apply only to the easement of the public incident to the uses of a public way, while the grant will be held to convey the locus to the center of the road.'^ This is particularly true where the exception describes the road as "laid out over said 251; Church v. Stiles, 10 Atl. Rep. s Hennessey v. R. R. Co. 101 674 (Vt.). Mass. 540. 2 Parker v. Smith, 17 Mass. 413; c Worthington v. Hylyer, 4 Mass. White V. Smith, 37 MicE". 291; 196; Wyman v. Farrar, 35 Me. 64. Transue v. Sell, 105 Pa. St. 604. 7 Kuhn v. Farnsworth, 69 Me. 3 Thomas v. Poole, 7 Gray 404; Moulton v. Trafton, 64 Me. (Mass.) 83. Compare Walker v. 218; Richardson v. Palmer, 38 N. Worcester, 6 Gray (Mass.) 548. H. 212; Jamaica Pond, etc. v. 4 Loring V. Otis, 7 Gray (Mass.) Chandler, 9 Allen 159; Elliot v. 563. Small, 35 Minn. 396. THE LAND CONVEYED. 461 laud;" for tlii clearly iiKlitalcs ilial it is the easemcul of I)ublic user, ami uot the land itself, that is in fact excepted.^ § 388. Streams and water-ways. The same principle which in a <;raut of laud boiindi'd iijion a highway carries the fee to the center line thereof api)lies with equal force to fresh-water streams; and when such stream is designated as the boundary the jieneral principle is that there must be a res<'rvation or restriction, expressed or necessarily imi)lied, wliich controls the operation of the j^^eueral presumption and makes the par- ticular iijrant an exception, or else the deed jiasses the fee to its center.-' In such cases the j^eneral rule is that the grantee takes to the thread of the ativum— usque ad filum aqiuie; and this is usually regarded as the middle line between the shores, irrespective of the depth of the channel, taking it in the natural and ordinary stage of water.^*^ An imi)ortant distinction is to be observed, however, when the channel, and not the river, forms the designated boundary. The channel is regarded as the deepest part of the river — ^the navigable part — and is something entirely distinct aud differ- ent from the thread. The thread has been construed to mean the center, whereas the channel may be on one side or the other; and when the grant bounds the land by the channel, the thread of the channel, and not the river, constitutes the boundary.^ 1 The foregoing remarks apply without exception to all streams unnavigable in fact, and generally to water-courses 8 Wellman v. Dickey, 78 Me. 29. the portion of the stream adjoining Rice V. Monroe, 36 Me. 309; the grantee's land is necessary for Luce V. Carley, 24 Wend. (N. Y.) the enjoyment of the same, and 451; State v. Canterbury, 28 N. H. as such portion of the stream is 195; Cox V. Friedley, 22 Pa. St. of no value to the grantor, it must 124; Child v. Starr, 4 Hill (N. Y.) be presumed by granting the land 369; Seaman v. Smith, 24 HI. 521; to grant also the portion of the Braxon v. Bressler, 64 HI. 488; stream adjoining said land; and Lunt v. Holland, 14 Mass. 149; the law can fix no line between Bradford v. Cressey, 45 Me. 9; opposite owners except the middle Boom Co. V. Smith, 84 Ky. 375; of the stream. Carter v. R. R. Norcross v. Griffiths, 65 W|s. 610; Co. 26 W. Va. 644; and see Houck Watson V. Peters, 26 Mich. 508. v. Yates, 82 HI. 179; Cobb v. La- 10 Warren v. Thomaston, 75 Me. valle, 89 HI. 331. 329. The theory on which this n Warren v. Thomaston, 75 Me. law is based seems to be that, as 329. 462 THE LAND CONVEYED. of every description; but in a very few states the statute has in some measure changed the common law, and created a rule that is at variance with the generally-received doctrine in this country. In those states^- the general principles above stated have been declared inapplicable to the great inland water ways which are used as arteries of commerce and upon which a free navigation is permitted, and grants of land bounded on them extend only to the water's edge.i^ In the federal courts it has been also held that proprietors of lands bordering upon navigable rivers under title derived from the United States hold only to the stream, as by express provisions of the national statutes such rivers shall be deemed to be and remain public highways.^* § 389. Continued — Construction of descriptive terms. In the construction of grants of the character now under consid- eration, the words ''to,'' ''on," "by," "along," "down" and other words of like import have always been held to carry title to the thread or center of the stream.^^ On the other hand, such words as to, on or along "the bank" have been held to indicate a restiiction, and to exclude the idea of extending the grant further than the water's edge.^^ Where lands are conveyed bounding upon a water-course or other varying limit, and reference is also made to a plan, the date of the conveyance, and not the date of the plan, is to be considered in determining the question of the true bound- ary of the land upon the water limit.^'^ 12 The states in which a positive Wend. (N. Y.) 451; Phinney v. statute has changed the common Watts, 9 Gray (Mass.) 269. law are Alabama, Iowa, North ig Bradford v. Cressey, 45 Me. 9; Carolina, Pennsylvania and Ten- Child v. Starr, 4 Hill (N. Y.) 369; nessee. Rockwell v. Baldwin, 53 HI. 19. 13 See Brown Oil Co. v. Cald- i^ Jones v. Johnston, 18 How. well, 35 W. Va. 95. (U. S.) 150. The right which the 1* See R. R. Co. v. Schurmeir, 7 owner of a water lot has to the Wall. (U. S.) 272; Forsyth v. accretions in front of it depends Small, 7 Biss. (C. Ct.) 201; State on its condition at the date of the v. Milk, 11 Fed. Rep. 389. deed which conveyed him the legal 15 Pike V. Munroe, 36 Me. 309; title, and cannot be carried back Warner v. Southworth, 6 Conn, by relation to the date of the title 470; Magnolia v. Marshall, 39 Miss, bond under which he procured his 109; Thomas v. Hatch, 3 Sumner deed. Id. (C. Ct.) 170; Luce v. Carley, 24 THE LAND CONVEYED. 463 A grant bounded by the "shore" of a stream or river does not receive the same construction as a similar grant where the land in (juestion abuts upon the sea or any of its arms or estuaries; for upon an inland river there is no shore in the legal sense of that tenn — that is, a margin between high and low tide.^^ The banks of a river belong to the ripanan owner, and he possesses the absolute fee down to low-water mark. It may be said, however, that the word "shore" has been productive of more diversity of opinion, with respect to its effect and interpretation, than any of the other tenns above mentioned. A number of the authorities regard it, when emi)loyed to indicate a boundary, as conveying the entire riparian interest and, hence, the boundary of a tract so described is held to be the thread of the stream.^^ But in some cases the tenn has been construed to mean only the point of contact of the bank with the water — the low water mark,-" while in one case it has been given a still more restricted meaning which virtually excludes the whole shore from the land conveyed.21 If we shall adopt in this connection the generally received rules relating to grants of land abutting or bounding on highways, and the analogy between the two descriptions is very strong, then the first mentioned view must be taken as correct and tlie latter as wrong. Yet as this is a matter wholly within state control, and as the policy of the states with respect to riparian rights is not uniform, we must continue to expect contrary decisions. But while the proprietor of land situated upon a non-navi- gable stream or river is presumed to own to the center or thread thereof, and a conveyance by him bounding upon such stream is presumed to carry the grant to such center, it must be remembered that the pnncii)le is only a ])resumption, for one man may own the bed of such a stream and another may own the banks; and where in a deed conveying land the boundary is limited to the "bank" of the stream iustcad of bounding it "on" or "along" the stream, the i)resumption, it isBainbridge v. Sherlock, 29 Ind. bers, 3 Ohio 495; Handly's Lessee 364. V. Anthony. 5 Wheat. (U. S.) 384. 19 Sleeper v. Laconia, 60 N. H. -'" Stevens v. King, 76 Me. 197. 201; Starr V. Child, 20 Wend. (N. -i Storer v. Freeman, 6 Mass. Y.) 149; Gavit's Admrs. v. Cham- 435. 464 THE LAND CONVEYED. has been held, must fail.-- Such a description, it is held, necessarily excludes the stream itself, upon the familiar prin- ciple that every express grant fixes its own limits and deter- mines the rights of the parties; and as an owner may sell his land without the privilege of the stream, he will be presumed to do so if he bounds his grant by the bank.^^ There is also a marked exception in respect to the rules of construction relating to lines and courses, as usually applied, when the grant bounds on a water-way. Ordinarily where a course is indicated from one fixed point to another a straight line is intended, but in riparian grants where a certain dis- tance is called for from a given point to another given point on the stream, to be ascertained by measurement, such measurement must be taken by the meanders of the stream and not in a straight line.^^ § 390. Lakes and ponds. The principles which have been discussed in the preceding section must be understood as applying only to rivers, streams and ponds of circumscribed area. They do not apply to grants bounding on the great inland lakes or other large bodies of standing fresh water. The word "stream" has a well-defined meaning, wholly incon- sistent with a body of water at rest; it implies motion — a flowing current — and contemplates a comparatively narrow channel into which the liues of riparian owners can be extended at right angles without interference or confusion, and without serious injustice to any one. It is but natural, therefore, when such streams are called for as boundaries, to hold that the real line between opposite shore-owners should be the center or thread. But when this rule is attempted to be applied to lakes and ponds, numerous practical difficulties are encountered. They have no current, and, being more or less circular, it is hardly possible to run the boundary lines beyond the water's edge so as to define the rights of shore- owners in the beds. There may be instances where, from the contracted area or peculiar character of the configuration of a pond, a grant will be presumed to include it;-^ indeed, this 22 Rockwell V. Baldwin, 53 111. 19. 85; McCuUoch v. Aten, 2 Ohio 425. 23 Hatch V. Dwigh't, 17 Mass. 298; 24 Brown Oil Co. v. Caldwell, 35 Child V. Starr, 4 Hill (N. Y.) 369; W. Va. 95. Bradford v. Cressey, 45 Me. 9; and 25 Ledyard v. Ten Eyck, 36 Barb, see Daniels v. R. R. Co. 20 N. H. (N. Y.) 102. In this case a grant THE LAND CONVEYED. 46; in the established doctrine in some states,-'' and the rules relating to grants upon streams are held to apply i^^" but ordinaiily. where a grant is bounded on a natural lake or ])ond, the title extends only to low-water mark, or to that line where the water usually stands wlnn unaffected by any disturbing cause.^^ The riparian rights of the adjoining pro- prietor are all preserved intact, and any privilege which he possesses distinct from the rest of the public may be retained by him or conveyed to others; but his ownership in the abutting land terminates at the water's edge.^s The distinction between a stream and a jjond or lake seems to be, as above indicated, that in the one case the water has a natural motion or current, while in the other the water is. in its natural state, substantially at rest. And this is so inde- pendent of the size of the one or the other. The fact of some current in a body of water is not, however, of itself sufficient in every instance to make it a stream; nor will the swelling out of a stream into a broad sheet necessarily make it a lake.2» While the foregoing expresses the general doctrine of the volume of authority upon the subject there are yet many cases holding to the contrary and which refuse to make anv dis- bordering on a pond five miles long and three-fourths of a mile wide, with no current and no main channel, and not generally naviga- ble, was held to carry title to the center. 2« Particularly in New York and those states which adopt the New York rule. The Massachusetts rule holds to the contrary and this rule seems to have the largest adher- ence. 20a Smith v. Rochester. 92 N. Y. 463; Gouverneur v. Ice Co. 134 N. Y. 355. -" Lincoln v. Davis. 53 Mich. 375; Wheeler v. Spinola, 54 N. T. 377; (This case, involving special fea- tures, has been much criticised in New York.) Robinson v. White, 42 Me. 209; State v. Gilmanton. 9 N. H. 461; Jakeway v. Barrett, 33 Vt. 30 316; Seaman v. Smith, 24 111. 521; Paine v. Woods, 108 Mass. 160; Mariner v. Schulte, 13 Wis. 775; Wood V. Kelley, 30 Mo. 47; Ka- nouse V. Stockbower, 48 N. J. Eq. 42; Boorman v, Sunnuchs, 42 Wis. 233; Trustees v. Schroll, 120 111. 509. -■''Bradley v. Rice, 13 Me. 201; Waterman v. Johnson, 13 Pick. (Mass.) 261; Wheeler v. Spinola, 54 N. Y. 377; Warren v. Chambers, 25 Ark. 120; Nelson v. Butterfield, 21 Me. 229; Primm v. Walker, 38 Mo. 99. -3 A body of water five or six miles long, and In some places a mile in width, which is fed by springs, and has no connection with a river or other stream ex- cept by a slough, which is dry dur- ing the summer, and the body of 4(iG THE LAND CONVEYED. tinction betwoen non-navigable lakes and streams in respect to constrnction and extent of grants bounding upon them.^o § 391. Qontinued — Artificial waters. While the rule is general that land bounded uj)on a natural lake or pond extends only to the water's edge, particularly when so described, a different rule seems to prevail in respect to the construction of grants bounding lands on a lake or pond created by artificial means. If the pond is caused by dam- ming back the waters of a natural stream, the grant extends to the middle of the stream in its natural state,-"*^ unless the pond has been so long kept as to become permanent, and to have acquired another well-defined boundary ."^^ § 392. High-water mark. Where the land conveyed is described as extending to or bounded by "high water-mark," this is considered an explicit boundary — a fixed and perma- nent line as it existed at the time of the acceptance of the deed, and does not follow the after-changes of the water line;33 and it seems that a grant of land bounded by or along a "beach," ordinarily, and in the absence of any language in other clauses of the deed, or of anything in the situation of the lands granted, or other circumstances authorizing a differ- ent interpretation, conveys title only to high-water mark.^^ Ordinarily in a grant of lands under the name of a "beach" or a boundary of lands upon or by or along a "beach," the word would be held synonymous with the shore or strand, and as having reference to and including only the lands washed by the sea, and between high-water mark and low- water mark. "In the case of a boundary," observes Allen, J., "it would be necessary so to restrict the meaning of the word in order to have a certain and definite limit to the lands water in its natural state has no -^^ Commissioners v. People, 5 current, is a lake and not a stream Wend. (N. Y.) 447; State v. Gil- of water. Trustees of Schools v. manton, 9 N. H. 463; Lowell v. Schroll, 120 111. 509. Robinson, 16 Me. 360; Fletcher v. 30 See Gouverneur v. Ice Co. 134 Phelps, 28 Vt. 257; and see Ang. N. Y. 355; where the subject is Waters, § 44. exhaustively discussed; also, Har- 32 Waterman v. Johnson, 13 Pick, din V. Jordan, 140 U. S. 371; In- (Mass.) 265. diana v. Milk, 11 Fed. Rep. 389; 3.". Cook v. McClure, 58 N. Y. 437. Ridgway v. Ludington, 58 Ind. 3 1 Trustees of East Hampton v. 248. Kirk, 68 N. Y. 459. THE LAND CONVEYED. 467 p;rant('(l. If held to mean tho sandy land or flats botwoon the iijjland and the shore, which is frequently formed by a change of the shore line, and is not unfrequently called a 'beach,' it would be quite too uncertain and indefinite to constitute a line bounding lands granted. "^^ It may sometimes happen, however, that the situation of the lands j^ranted, or other circumstances, may authorize a ditTerent interpretation, and the word "beach" may be taken to mean the sandy plain or flat which lies between the upland and the actual shore line; and this view has been adopted in some cases where a substi- tution of the word "flat" has been made for "shore" in order to give effect to the manifest intention of the parties.^^ § 393. Tidal waters. By the rules of the common law only those waters where the tide ebbs and flows are deemed navi- gable in law, notwithstanding they may be so in fact; and it is to the influence of this rule that the general doctrine of riparian titles on non-navigable w'ater-courses owes its origin and continued existence. Grants of land bounded on tidal or navigable waters are deemed to extend only to high-water mark,^^ which is the line defined by the usual high tide,^^ while the title to the strip of land which lies between high and low-water mark remains in the government for the use of the public.^'* ■is Trustees of East Hampton v. Kirk, 68 N. Y. 459. 3'i In Storer v. Freemafi, 6 Mass. 435, Chief Justice Parsons in inter- preting a deed substituted the word "flats" for "shore," in the descrip- tion, to give effect to the intent of the parties, and held that the land conveyed extended to the "flats," but did not include any part of them. The reasons given by the chief justice in this case for re- stricting "shore" to the ground be- tween ordinary high-water mark and low-water mark are equally ap- plicable to a boundary upon or by or along a beach. He says: "It cannot be considered as including any ground always covered by the sea; for then it would have no definite limit on the sea-board. Neither can it include any part of the land, for the same reason." The definition of the shore is an accurate definition of a beach, hav- ing respect to the nature and situ- ation of both. Both words denote land washed by the sea. See Lit- tlefield V. Littlefield, 28 Me. 180; Phillip V. Rhodes, 7 Met. (Mass.) 322. ■'•Adams v. Pease, 2 Conn. 481; Canal Com'rs v. People, 5 Wend. (N. Y.) 423; Haight v. Keokuk, 4 Iowa, 199; Mayhew v. Norton, 17 Pick. (Mass.) 357. ss Seaman v. Smith, 24 111. 521. 30 Seaman v. Smith, 24 111. 521; Chapman v. Kimball, 9 Conn. 38. 4G8 THE LAND CONVEYED. The terms "high" and "low" water mark were first used with reference to tidal waters and have little significance when applied to inland streams or standing bodies of water. High water mark on fresh water rivers and lakes is practically the point when the water impresses upon the soil in such a manner or for such periods as prevent vegetation, and has no reference to the lines reached in case of freshets or other temporary disturbing circumstances.**^ § 394. Riparian boundary as affected by plat. The ques- tions just discussed and the conclusions reached are subject' to some modification when considered in connection with subdivisions and plats. It is conceded that the owner of lands bounded by water may confine his grant of same within such specific limits as he may choose, and hence, a plat, which unequivocally fixes the dimensions of the land conveyed, may exclude the stream and the ground contiguous thereto. But where a plat shows the water as a boundary, notwithstanding that the land has been divided into lots with distinct lines and distances marking their external dimensions, the rule yet seems to be that the water must still be regarded as the true boundary, for the law, in such case, will not presume that the grantor has reserved any proprietary rights in front of the land conveyed."*! § 395. Exception from riparian grant. No question can ordinarily arise with respect to the ultimate line of riparian ownership along the high seas or great inland lakes, as the universally conceded rule makes it extend only to high-water mark, whether abutting upon tidal waters, an inland sea or the great lakes, while the title to all lands beyond high-water mark or under water is vested in the state. But with respect to the "shore," and the extent of proprietorship therein, serious and complicated questions will frequently arise out of the language employed by the parties in describing the subject-matter of the grant. It cannot be doubted that a riparian owner, conveying lands adjacent to navigable waters, may so limit his grant as to reserve to himself not only his riparian privileges in the water, 40 Dow V. Electric Co. 69 N. H. Co. 56 Minn. 513; Houghton v. R. 498; In re Minnetonka Lake Impt. R. Co. 47 Iowa 370. 41 Watson V. Peters, 26 Mich. 508. THE LAND CONVEYED. 469 but also sul»s('(ni('ii( accictions to the soil formed by the oper- alioii of iialural causes.'- This, it is said, follows necessarily from the absolute ri^^ht whicli the owner has to impose such terms and conditions ujion his "grants as he may deem neces- sary or expedient. A reservation or excej)tion of this character may result from the terms used without an express declara- tion of intention — as where a line is extended to the "shore" or "beach," and then projected in a direct coui'se to some other point, not following the natural sinuosities of the shore or water-front, the land so described forminj^ a matliematical parallelojiram or other i)lane tigure distinctly op[)osed to the theory of a diversion to accommodate the irregularities of a varying line.'-' § 396. Mines and minerals. As has been shown, an estate of inheritance in mines may be conveyed distinct from the fee of The land, which may remain in the vendor or another. Such an estate is not inconsistent with the general title to the lands, in which the mines are situated, remaining in the vendor. When not thus severed from the general title of the lands in which they are situated they are part of the lands themselves, and will pass with such without being expressly mentioned in the instrument of conveyance. Yet in the con- struction of grants of "mines and minerals" courts have often experienced great embarrassment in giving satisfactory answers to the questions raised by the employment of those terms. Ordinarily in such a grant it is clear that the vendor did not intend to include everything embraced in the mineral kingdom as distinguished from what belongs to the animal and vegetable kingdoms; for, if he did, he i)arted with the soil itself. Such a construction, therefore, would be inconsist- ent with and repugnant to the tenor of the grant. On the other hand, there exists no more propriety in confining the meaning of the terms to any one or more of the subordinate divisions into whidi the mineral kingdom has been divided by chemists — either earthy, metallic, saline or bituminous minerals.'^ ••^People V. Jones, 112 N. Y. 597. ■»* Mineral has been defined: •»•'> See People v. Jones, 112 N. Y. "Those bodies which are desHtute 597; Higinbotham v. Stoddard, 72 of organization, and which natu- N. Y. 94; and see Wharton v. rally exist within the earth or at Brick, 49 N. J. L. 289. its surface." Cleveland's Mineral- 470 THE LAND CONVEYED. In such a case the ordinary rules of construction must govern. The circumstances surrounding the parties, and relating to the subject-matter at the time the grant was made, may be shown as an aid to interpretation; but no extrinsic evidence is admissible for the purpose of showing that the vendor intended to confine the operation of the words to any particular class of minerals or to limit or define their meaning for the purposes of that particular agreement. Parol evidence may be introduced to show the scientific and popular meaning of the words "mines," ''minerals," etc., under an exception to the general rule; for where any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument itself. In some cases parol evidence is admissible ex necessitate: as, where an ambiguity is created by extrinsic evidence, it may be removed in the same manner.'*^ § 397. Operation of erroneous deed. While a deed cannot be given legal effect as a conveyance for any other or different property than that which it purports to convey, nor be extended by implication, yet a deed misdescribing the land conveyed will still be sufficient to give an equitable title there- to, and a subsequent deed correcting the mistake will perfect the same into a legal title.^*^ ogy, p. 1. "Substances dug out question. The parties must there- of the earth or obtained from fore give evidence as to the char- mines." Bakewell's Mineralogy, acter of the material, and they p. 7. may show that it is or is not em- 45 As where the allegation is that braced in the scientific and popu- the defendants are removing from lar use of the terms employed by complainant's soil a particular the vendor. See Hartwell v. Cam- substance or material. The an- man, 2 Stock. Ch. (N. J.) 128. In swer is that the defendants have this case complainant claimed that a right to remove it because it was the grant only included copper; conveyed to them under the term the defendant that it included "mines and minerals." The com- paint clay. The court held with plainant rejoins that those terms the defendant, did not include the substance in 46 Fitch v. Gasser, 54 Mo. 267. CHAPTER XV. THE ESTATE CONVEYED. § 398. Generally. § 405. Creation of life estate. 399. Rule of construction. 406. The rule in Shelley's case. 400. Legal and equitable estates. 407. Creation of co-tenancies. 401. Words of inheritance and 408. Future estates. limitation. 409. Perpetuities. 402. Effect of absolute convey- 410. Entailments. ance. 411. Homesteads. 403. Effect of release and quit- 412. Incidents of the grant as claim. connected with use in- 404. Conveyance of estates in tended. fee. § 398. Generally. While it is customary, and not alto- gether improper, to speak of the land as the subject-matter of the sale, yet in strict legal contemplation it is the vendor's rights and interests therein as comprehended in the generic term '^estate" that are actually bought and sold. The primary object of the deed of conveyance is to evidence such sale, and in former times no little ingenuity was displayed by convey- ancers in framing grants of estates to meet and keep ])ace with the refined subtilties of courts, and the English works as well as a few of the earlier American treatises are rei)lete with much curious but now practically obsolete information upon this point. The real reform in American convej'ancing has been effected during the last fifty years; and while the marked ditferences in the land system of the United States, as compared with European nations, have at all times been conducive to simpler methods of conveyancing than were elsewhere employed, the earlier repoi-ts still show that the "rule in Shelley's case," and kindred legal abstractions, were at one time potent factors in the jtroduction of much learned discussion, profound opinions and deep ;ind exhaustive reasoning. The sjiirit of "reform," which from the inception of the government has been most active in tlu^ abrogation of old laws, customs and usages, lias made the creation of estates a most sinijile and in a majoiity of cases easily understood 471 472 THE ESTATE CONVEYED. matter, and conveyancing has lost its position as an intricate and highly refined science. Technical words of grant and limitation were formerly a necessity to measure and define the nature and extent of the estate conveyed, but so com- paratively valueless and without effect have they become that the highest estate known to our law may be created and trans- ferred without them. Covenants that formerly called for highly artificially constructed sentences may now be raised by a single word, and in every other department of convey- ancing the departure from old methods is equally noticeable. Good conveyancing still calls for apt language in the fram- ing of deeds to raise and convey estates; and notwithstanding that the law will supply by implication many of the draughts- man's omissions, yet it will not raise or create estates in opposition to expressed intent, however erroneous such expression may be; nor will it cut down estates which result by implication because of a neglect to insert the proper language to create such lesser estates. Circumstances may induce a modification of this rule where equity is appealed to for relief in cases of fraud, accident or mistake, but at law the rule holds good without exception. § 399. Rule of construction. The legitimate purpose of all construction of instruments in writing is to ascertain the intention of the parties making the same; and, when this is determined, effect must be given thereto accordingly, unless to do so will violate some established and dominating rule of law. This is so as well in respect to the estate granted as to the parties, the thing granted, or the title. As it cannot be presumed that words or terms in a deed of conveyance were used without a meaning, or without an intention of having some effect given to them, therefore, if it can be done consist- ently with the rules of law, that construction will be adopted which will give effect to the instrument and to each word and term employed, rejecting none as meaningless or repugnant. So, in the construction of estates, the nature and quantity of interest or estate granted by a deed is to be ascertained from the deed itself, and is to be detennined by the court as a matter of law.' 1 Lehndorf v. Cope, 122 111. 317; v. Sisson, 13 N. J. Eq. 178; Bond v. T.ippett V. Kelley, 46 Vt. 516; Cald- Fay, 12 Allen (Mass.) 88. well V. Fulton, 31 Pa. St. 489; Price THE ESTATE CONVEYED. 473 §400. Legal and equitable estates. Estates an* classed a« lo«jal and (MiuLlabIc, the foiiiier beinj; lliose whicli have their oii^'in and derive their qualities and incidents from the com- mon law, and the latter those which are derived from the rules and principles which ])revail in courts of equity. Formerly every estate was le^jal, in the proper acceptation of that term, and in the contemplation of law there is and can be but one estate, which may properly be denominated the legal estate. But the introduction of what were known as uses, and the subsequent origination of trusts, where one party held the title but upon some trust or contidence for another, early led the court of chancery to take cognizance of the rights of the beneficiary, and thus there grew up a double ownership of lands thus situated,- the interests whicli were cognizable as such only in a court of equity taking the name of equitable to distinguish them from legal estates. As a rule any legal conveyance will have the same effect upon an equitable estate that it would have upon the like estate at law; and whatever is true at law of the latter is true in equit}^ of the former. Thus, the rule in Shelley's case, where it is peraiitted to operate as a rule, applies alike to equitable and legal estates, and an equitable estate-tail may be barred in the same manner as an estate-tail at law."^ § 401. Words of inheritance and limitation. It is an un- varying rule of the common law that an estate of inheritance cannot be created by deed without the employment of the word ''heirs ;"^ and in those states where this rule has not been altered by statute, or modified or relaxed by judicial construction, no synonym can supply the omission of this word, nor can the legal construction of the grant be affected by the intention of the parties.'' In conformity to this rule it is customary to insert words of limitation in the premises of the deed; and this practice, which is sanctioned if not enjoined by all the rules of good conveyancing, is a desirable - Upon the principle that he for as has been said, "a fee-simple whose use the land was designed doth pass by the intent of the de- was the rightful owner thereof. visor; but in feoffments and grants •■> Croxall V. Shererd. 5 Wall. (U. the word 'heirs' is the only wor 1 S.) 268. that will make an estate of in- * In this respect deeds differ from heritance." Coke. Litt. S. r-tJ. testamentary papers; for in a will. '■ Kearney v. Macoml). IG X. J. 474 THE ESTATE CONVEYED. one to follow, even where its necessity is no longer recognized. But it is also a maxim of the highest antiquity in the law that all deeds shall be construed favorably, and as near the appa- rent intention of the parties as is possible, consistent with established legal rules; and hence while to create a fee the limitation must be to ''heirs," it seems that this may be accom- plished either in direct terms or by immediate reference, and that it is not essential that the word be located in any par- ticular part of the grant.^ The practical application of the foregoing rules, however, is now very much restricted in the United States; for while words of limitation were once of the very essence of the deed, yet by reason of sweeping statutory provisions, generally enacted throughout the Union, they are now comparatively without value or legal effect. Although invariably inserted by careful conveyancers, they are, in most of the states, no longer necessary to create or convey a fee;'^ and, as a general rule, every grant of lands will pass all the estate or interest of the grantor, unless a different interest shall appear b}' express terms or necessary implication — the question of the estate transferred being determined rather by the end sought to be attained by the grantor than by the language employed.''' In order to create a less estate than a fee, it is not necessary that there should be express words of limitation, either under the statute or at common law. It is sufficient for that pur- pose if it appear, by necessary implication, that a less estate Eq. 189; Adams v. Ross, 30 N. J. North Carolina, Oregon, Tennessee, L. 505. See, also, Jackson v. Mey- Texas, Virginia and Wisconsin, ers, 3 Johns. (N. Y.) 388. They would seem to be necessary 6 See 4 Kent, Com. 6; Shep. in Connecticut, Delaware, Florida, Touch. 101. Where words of in- Kentucky, Louisiana, Maine, New heritance appear only in one part Jersey, Ohio, Rhode Island and of the deed, which is inartificially Vermont. In some states, while worded, but the intention to pass there is no express provision, the a fee appears from the entire in- statutory forms would imply that strument, it will be so construed, words of inheritance are unneces- Hicks V. Bullock, 96 N. C. 164. sary. 7 Words of inheritance are no s Hawkins v. Chapman, 36 Md. longer necessary in Alabama, Ar- 83; Kirk v. Burkholtz, 3 Tenn. Ch. kansas, California, Dakota, Colo- 425; Lehndorf v. Cope, 122 111. 317. rado, Georgia, Illinois, Indiana, And see Hicks v. Bullock, 96 N. C. Iowa, Kansas, Maryland, Minne- 164; Henderson v. Mack, 82 Ky. sota, Mississippi, Missouri, Mon- 379. tana, Nebraska, Nevada, New York, THE ESTATE CONVEYED. 47o WuH <;rant('(l.'' The better aud safer way, however, is to expressly liiiiil a lesser estate and this becomes almost an iinj)erallve iiile in those states where a deed is ])resunied to convey a Ice nnless some inferior- <'state is exi)ressly men- tioned or results by necessary iniplication. Corporations, like natnral j)ersons, may lake land by every method of conveyance known to the law. Having no "heirs'' it is customary to insert the term "successors" as a word of limitation, and the employment of such term has been held to create and pass a fee.'" It does not seem, however, that such word is necessary to convey a fee, independent of the statute which i)rovides for a fee unless restrained by express terms or necessary implication; for admitting that such a grant is strictly only a life estate, yet as a corporation, unless of limited duration, never dies,^' such estate for life is perpetual or e(|uivalent to a fee-simple, and therefore the law allows it to be one,'- while it has been held that a deed to a corpor- ation is presumably a conveyance in fee, although the corpor- ation is chartered only for a term of years.' ^ § 402. Effect of absolute conveyance. It is now a general statutory rule that every conveyance of real property shall pass all the estate of the grantor therein, unless a different intent shall appear by express terms or necessary implication. So where a deed purports to convey all the interest and title of .the grantor, effect will be given to it accordingly, although he actually held a greater interest than he at the time of the conveyance supposed he owned.'-* So, too, it has been held that if the terms of a deed clearly show that it was meant to pass an absolute estate in the land, and not merely the estate which the grantor had at the time, it will bind and pass every estate or interest which may vest in him subsequently to its execution, and this though it contain no warranty.'^ This, » Lehndorf v. Cope, 122 111. 317. is Asheville Division v. Aston, 92 1" Storrs Agricultural School v. N. C. 578. Whitney, 54 Conn. 342. i* A party is bound to know 11 In a majority of the states enough about his title not, by commercial manufacturing and his want of knowledge of it, to mis- trading corporations are now char- -lead a purchaser. Thomas v. Chi- tered for a term of years. cago. 55 111. 403. 12 Overseers v. Sears, 22 Pick. i'- Taggart v. Risley, 4 Oreg. 235. (Mass.) 122; Congregational So- By statute, in some states, this re- ciety V. Stark. 34 Vt. 243. suit follows. 4TG THE ESTATE CONVEYED. however, is contrary to .the general policy of the law which confines the oflBce of a conveyance to the transmission of what- ever estate the grantor may possess; and while after-acquired title is permitted to inure on the principle of estoppel, it is usual only when covenants of sufificient capacity have been inseited in the deed. But this latter rule, while of general application and observance, is not without exception; and under the doctrine of relation, as applied for the protection of bona fide purchasers, if a party having the equitable title to land and being entitled to the legal title thereof, conveys the same by a deed purporting to transfer the entire estate, and subseipiently acquires the legal title, it will inure to his grantee, notwithstanding such deed was made without cove- nants of warranty or further assurance.^ *^ This doctrine pro- ceeds upon the principle that, where there are divers acts concurrent to make a conveyance, estate or other thing, the original act will be preferred, and to this the other acts will have relation.^'^ It is a further rule that a grantor cannot destroy his own grant, however much he may modify it or load it with condi- tions, and, where an estate has once b^en granted in the deed, no subsequent clause can operate to nullify it. Thus, if the deed purports to convey all of the interest of the grantor, but a clause is also inserted stating that the interest conveyed is only that acquired by the grantor in some particular man- ner or from some particular person, the conveyance should be interpreted in the light of the extrinsic facts, and the grant would be a conveyance of whatever interest the grantor had, whether acquired as stated or otherwise ;i^ and if it should 16 Welch V. Button, 79 111. 465; i^ Miner's Appeal, 61 Pa. St. 283. Jackson v. Ramsay, 3 Cow. (N. Y.) In this case the grantor, describing 75. See, also, Crowley v. Wallace, herself as J., the widow of M., con- 12 Mo. 145, veyed to T., "his heirs, executors, 17 The fiction of relation is that administrators and assigns, all her an intermediate hona fide alienee estate, right, title, interest, claim of the incipient interest may claim and demand whatsoever" in a cer- that the deed issued to pass the tain piece of land, "to have and to legal title inures to his benefit by hold the premises hereby granted," . an ex post facto operation, and etc., unto T., his heirs, etc., "for thus he receives the same protec- and during the life of the said J.; tion at law that a court of equity the interest hereby conveyed being could afford him. Lessee of French an estate of freehold for and dur- V. Spencer, 21 How. (U. S.) 228. ing the life of said J., and being THE ESTATE CONVEYED. m appear thai llic ^ranloi- hail acqiiiicil no iiitiTi'Sl iu the man- ner specified or from the pi rsdii named, but did own an interest a((|iiii('d fiom another person, the interest thus acquired would jjass.^-' This is upon the principle that a deed is to be so construed as, if possible, to j^ive eil'ect to it as a convt^jance; and if it contains a clause which is repu<;iuint to the general intention of the deed, this clause is void.-'^ liut where the deed specifically purijorts to convey only a certain interest or an interest ac(piired in a certain manner, this has been heUl to exclude any interest acquired iu any other man- nei-. Thus, if the deed purports to convey the interest devised to the {grantor in certain property, it does not convey an inter- est descending to him.^^ As a general proposition, a deed will not operate to convey a greater interest than it purports to, although the grantor has a power to convey more than is described. -- ^ 403. Effect of release and quitclaim. A deed by way of release and quitclaim of all the grantor's right and title, pur- ports to convey nothing more than the interest or estate of which the grantor is seized or possessed at the time, and does not operate to pass or bind an interest not then in existence.^^ It has been held, however, that this principle is applicable only to a quitclaim deed iu the strict and proper sense of that species of conveyance, and that if the deed bears on its face evidence that the grantor intended to convey, and the grantee expected to become invested with, an estate of a particular description or quality, and that the bargain had proceeded upon that footing between the parties, then, although it may all the interest of her, the said J., in the estate of the said M., de- ceased, as his widow, of, in and to the premises above described." Held, that the grant was a con- veyance of whatever interest the grantor had as widow or otherwise. And see Little v. King, 64 N. C. 361 ; Green Bay, etc. Co. v. Hewett, 55 Wis. 96: Maker v. Lazell. 83 Me. 562. 10 Maker v. Lazell, 83 Me. 562. 2" Wilcoxson v. Sprague, 51 Cal. 640. -■1 Munds v. Cassidey, 98 N.C. 558. -■- As where A., holding in his own right a moiety of the property in question, and having a power of attorney to convey the interest of B., the owner of the other moiety, made a deed of mortgage of the whole, without in terms undertak- ing to convey the interest of B. Held, that the deed conveyed only the interest of A. Shirras v. Caig, 7 Cranch (U. S.) 34. - ' Van Rensselaer v. Kearney, 11 How. (U. S.) 297. 4^8 THE ESTATE CONVEYED. not contain covenants of tide in the leclinical sense of the term, still the le^al operation and efi'ect of the instrument will be as bindinj? on 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 estop them from ever afterwards denying that he was seized of the particular estate at the time of the conveyance.^^ In construing releases, especially where the same instru- ment is to be executed by various persons standing in various relations and having various kinds of claims against the releasee, general words, though the most comprehensive, are to be limited to particular demands where it manifestly appears, by the consideration, by the recitals, and by the nature and circumstances of the demands, to one or more of which it is proposed to apply the release, that it was so intended to be limited by the parties.^^ § 404. Conveyance of estates in fee. The highest estate in land known to our law is called the fee, or, as it is sometimes written, the fee-simple — a term indicative of absolute and unqualified ownership with all its incidents.^^^ The name itself is borrowed from the feudal system of England, and originally denoted the tenure by which the land w^as held; but aside from this there is nothing feudal about it, while the title to all lands in the country is strictly allodial. In all sales of land, unless some lesser estate is specifically mentioned, the subject of the sale is understood to be the fee. Formerly much care and circumspection was required in drawing conveyances of the fee, and parties not infrequently defeated their own intentions by the ignorant or negligent omission of words which were considered essential to the creation of this estate. These were known as words of limi- tation, and consisted of the words "heirs" or "heirs and assigns forever." Great importance was attached to their use, and, notwithstanding the parties may have intended to convey the 21 See Van Rensselaer v. Kear- ditional and fee-simple qualified or ney, 11 How. (U. S.) 297. base fee, and to some extent this ^n Rich V. Lord, 18 Pick. (Mass.) classification seems to have been 322; Lyman v. Clark, 9 Mass. 235. recognized by American courts dur- 26 The fee-simple was divided by ing very recent years; yet, as was Coke and the earlier writers into observed by Mr. Preston (1 Prest. fee-simple absolute, fee-simple con- Est. 429), in point of accuracy it THE ESTATE CONVEYED. 479 fee. courts refused to give effect to such intention where all mention of the heirs was omitted. It is still customary to insert these words in deeds of conveyance, but they are no louj,'er necessary to create or transfer a fee; and as a rule every grant of lands will pass all the estate or interest of the grantor, unless a different interest shall ajijx-ar by express terms or necessary implication.-^ v? 405. Creation of life estate. The authorities are not in accord with respect to the creation of life estates, nor in the construction to be placed n})on the operative words of i>ur- chase or limitation employed in conveyances. The rule in Shelley's case is frequently resorted to as an aid in construc- tion; yet as this rule do(\s not have a uniform operation in all of the states, and is denied in a few, it does not furnish a safe guide, and being at best but a technical rule is never allowed to control a manifest and clear intent. In a majority of the states special statutes have been enacted with reference to the creation of estates and the manner of their conveyance; and while these statutes preserve a general resemblance to each other and operate mainly in a uniform manner, yet slight divergences exist among them all. and for this reason the reported cases are not always reliable as rules unless the particular statutes to which they refer or which control their inclination are also known and understood. P>y the i-ule of the common law a grant to one with no words of limitation, that is no words of inheritance, has the effect of raising a life estate in the grantee, but in most of the states this rule has been changed by statute, and now. in the absence of an express limitation for life, the question is largely one of intention and judicial construction. The proper course is to expressly limit the estate and this may be accomplished by a grant to one *'for and during the tenu of his life."-^ Where the grant is to two or more and it is intended that the estate shall cease on the death of either, then the estate should cannot be properly a fee-simple if practice is to limit the estate for it is either base, conditional or the natural life of the grantee, qualified. This is a survival of archaic Eng- ■-' Merritt v. Disney, 48 Md. 344. lish law. As we have no civil This is a statutory rule in most death in this country this form of the states. of limitation is meaningless. 28 A common, but erroneous, 480 THE ESTATE CONVEYED. be expressly limited for tbeir joint lives; if it is iiiteudi d that the estate shall continue to the survivor it is well so to limit it, but words of survivorship are not essential as a grant to the tenants generally for their lives would have the same effect. A conveyance of land directly to a woman and her childi-en, without other words, she then having children, will usually have the effect to vest the title in her and her children equally,-'^ such construction being in strict accordance with the rule of the common law which provides that where a conveyance is made to two or more, with no specification of the estate or interest which each shall have, they shall all share equally."^" It would seem, however, that a very slight indication of an intention that the children shall not take jointh^ with the mother will suffice to give the estate to the mother for life, with remainder in fee to her children ;"^i and even though she may have no children living, as if she is unmarried, she will yet take but an estate for life, while a contingent remainder will be created in favor of her children, who when born will take an absolute fee.^^ § 406. The rule in Shelley's case. Among the early legal abstractions which grew out of the efforts of jurists to carry into effect the general intent of a grantor or testator by annexing particular ideas of property to particular modes of expression was the adoption of the principle that, where a conveyance is made to a person for life, remainder to his heirs or the heirs of his body, instead of giving him a life estate and a contingent remainder to the heirs, it vests a fee-simple or an estate-tail in the first grantee. This construction is said to have been adopted for the purpose of saving to the lord the profits or perquisites incident to inheritances, and also upon 29 Hickman v. Quinn, 6 Yerg. -i Moore v. Simmons, 2 Head (Tenn.) 96; Loyless v. Blackshear, (Tenn.) 506; Blair v. Vanblarcum, 43 Ga. 327; King v. Rea, 56 Ind. 1; 71 HI. 290. As where the deed is Barber v. Harris, 15 Wend. (N. Y.) to one and "the heirs of her body.' 615. Frazer v. Supervisors, 74 HI. 282 30 As where a deed conveyed land ■^■■^ Frazer v. Supervisors, 74 HI to A. as trustee for his wife and 282. The grantor in such case "her present heirs;" held, that she thereby deprives himself of all es and the children that she then had tate but a contingent reversion de were tenants in common. Chess- pendent upon the grantee dying Carley Co. v. Purtell, 74 Ga. 467. without issue. THE ESTATE CONVEYED. 481 the general ground of preventing an abeyance of the fee, which would ivuder it inalienable during the life of llir first taker. The principle was recognized from a very early period, but only became finally established in a proceeding called "Shelley's case;" and from the notoriety which the case has received from i(s subsetiuent frecjuent citation in connection with the application of the rule therein laid down, it has acquired a world-wide renown as "the rule in Shelley's case."-'-' This remarkable rule has been productive of an almost incredible amount of controversial disquisition and an appa- rently innnmeiable number of decisions both in England and the Tnited Slates; and, notwithstanding the fact that in this country there can be no entailed estates, strictly speaking, the rule still has a modified force, and is often resorted to as a rule of construction, particularly in cases where the ques- tions involved turn upon the point as to whether the convey- ance which forms the foundation of title passed only a life estate or a fee. The rule as defined by Kent is as follows: "When a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs or heirs of his body, as a class of persons, to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate."^^ Mr. Preston, in his essay on the rule in 33 The facts of this celebrated first son of E. Shelley, took by case were as follows: E. Shelley, purchase and not by inheritance, tenant in tail, suffered a recovery then no other son of E. Shelley and declared the uses of it to him- could ever take the estate, which self for life, without impeachment would disappoint the word "heirs" of waste, remainder to a trustee (of E. Shelley) in the deed; and for twenty-four years, remainder that the limitation to the heirs to the heirs male of the body of male of the heirs male of E. Shel- E. Shelley and the heirs male of ley did not control the prior lim- the body of such heirs male, re- itation, but was merely declara- mainder over. Held, by the chan- tory, because every heir male of cellor and all the judges except the heir male of E. Shelley was an one, that E. Shelley took an es- heir male of E. Shelley himself. 2 tate-tail. The decision rested upon Hill. Abridg. 22. the ground that if R. Shelley, the 34 4 Kent, Com. 225. When the 31 483 THE ESTATE CONVEYED. i^lielley's case/'"' among several definitions, gives the following: "In any instrument, if a freehold be limited to the ancestor for life, and the inheritance to his heirs, either mediately or immediately, the first taker takes the whole estate; if it be limited to the heirs of his body he takes a fee-tail ;^^*' if to his heirs, a fee-simple."-*'^ The definition by Kent is that which is generally received as an authoritative exposition of the doctrine; and as estates-tail have been generally abolished in this country, the rule thus stated applies generally to all cases where there is a grant of a particular estate to the grantee with remainder over to a class of persons designated as heirs. In such cases, under the rule, the words "heirs" or "heirs of the body'' are regarded as words of limitation and not of purchase.^^ In some states, however, while estates-tail as they existed under the old law have been abolished, yet the statute has saved the entail to the first degree, thus giving a life estate to the first taker and vesting in the second taker a remainder in fee. In those states, therefore, when the remainder is to the "heirs of the body" the estate thus con- ferred is in the nature of, if not an estate-tail, to which the rule in Shelley's case does not apply. The words of heirship and procreation, in such event, will be regarded as words of purchase and not of limitation, and the first taker will take rule applies the ancestor has the Com. 115. This point becomes im- power of annihilation, for he has portant in this connection where, the inheritance in him; and when as in some estates, the entail is it does not apply the children or saved to the first degree. See But- other relations, under the denom- ler v. Huestis, 68 111. 594. ination of heirs, have an original 37 i Prest. Estates, 263. title in their own right and as pur- 3s See. Bradford v. Howell, 42 chasers by that name. The policy Ala. 422; Forrest v. Jackson, 56 of the rule was that no person N. H. 357; Smith v. Block, 29 Ohio should be permitted to raise in an- St. 488; King v. Rea, 56 Ind. 1; other an estate of inheritance and Butler v. Huestis, 68 111. 594 ; Baker at the same time make the heirs v. Scott, 62 111. 86. Thus, a deed of that person purchasers. 4 Kent, which "conveys and warrants" cer- Com. 216. tain real estate to the grantee "dur- 35 1 Prest. Est. 263. ing her life, in remainder to the 3retation of the deed.^8 It would seem, however, that in the absence of any Turner, 67 Mo. 296; Taul v. Brad- i- See Oliver v. Piatt, 3 How. (C. ford, 20 Tex. 264; Witter v. Biscoe. Ct.) 410. 13 Ark. 422; Johnson v. Piper, 4 is a usage, if it be ancient. no- Minn. 195; Hedges v. Kerr, 4 B. torious. and reasonable, may enter Mon. (Ky.) 528. into and become part of a con- 496 THE COVENANTS. siu-b usage, or of any attempt to rely on local usage, the true construction would be that the purchaser might insist upon the personal covenants now generally inserted in deeds of conveyance in this country, viz.: that the grantor is lawfully scnzed; that he has good right to convey; that the land is free from incumbrance; that the grantee shall quietly enjoy; and that the grantor will warrant and defend the title against all lawful claims.^'' The authorities practically agree that all of these covenants, except the last, are the usual covenants in a conveyance of the fee. In England, in lieu of the covenant for warranty, the usual covenant is a covenant for further assur- ance ;2o but as this covenant is seldom used in the United States it cannot with propriety be classed as a "usual cov- enant," and the list is as first stated.^i § 419. Contract to convey with warranty. While it w^as formerly a very common practice for parties to contract for conveyance by ''good and suflficient deed," it is now a more general custom to stipulate for a deed with warranty; and while .there are a few decisions which hold that this clause is satisfied by the production of a deed regular in form and con- taining the usual covenant of general warranty, the prevailing doctrine would seem to be that the stipulation is only satis- tied by an operative conveyance, sufficient both in form and substance, and conveying a valid title to the land which the covenantor has agreed should be conveyed;-- that the agree- ment is not complied with by the mere giving of a warranty deed, where the grantor has no title to the land or where his title is imperfect.23 But this result follows, perhaps, as much from the general rules of law in respect to the right of the purchaser to demand a clear title before parting with his money as from any prin- ciple or rule of construction. Indeed, it is an admitted doc- tract; it may even add incidents 22 Lewis v. Boskins, 27 Ark. 61; to it, if they are not inconsistent Haynes v. White, 55 Cal. 38; Clark with its terms; but it cannot be v. Craft, 51 Ga. 368; Brown v. Gam- set up to annul or defeat the provis- mon, 13 Me. 276; Luckett v. Will- ions of a special contract. Coxe v. iamson, 31 Mo. 54; Dodd v. Sey- Heisley, 19 Pa. St. 243. mour, 21 Conn. 480; Morgan v. la 4 Kent, Com. 471. Smith, 11 111. 199, 20 2 Sugd. on Vend. 701. 23 Everson v. Kirtland, 4 Paige 21 Wilson V. Wood, 2 Greene (N. (N. Y.) 638. J. Eq.) 216, THE COVENANTS. 497 trine that the ri^ilil to a clear and uniminiircd tille does not ^rovv out of the ajj;i'eement of the parties, but is a guaranteed le},'al right, and the purchaser may insist upon this irre- spective of any agreements for covenants unless by an express stipulation of the contract such right has been waived. Among the earlier decisions there are a number of authori- ties, emanating from courts of the highest standing, to the effect that a contract to give a good and suflicient warranty deed of the land sold is to be regarded as relating only to the instrument of conveyance and not to the title; that the words "good and sutticient" in such connection relate only to the validity of the deed and its efficacy to pass the title which the vendor has, and that they do not imply that the vendor's title is valid, or that it is free from incumbrances; that the covenant of warranty was provided for merely to guard against any defect of title, and that its insertion clearly shows that the agreement was so understood by the parties.^* It is to be observed, however, that even these decisions rec- ognize the necessity of title in the vendor whenever the agree- ment contains a stipulation for title, and hold, generally, that in such cases the contract is not perfonned unless a market- able title to the laud passes by the deed. The general prin- ciple to be collected from these decisions seems to be that, when the contract stipulates for a conveyance of land, or estate, or for title to it, performance can be made only by the conve^-ance of an unimpeachable title; and when it stipulates only for a deed, or for a conveyance by- a deed described, per- formance is made by giving such a deed as the contract describes, however defective the title may be.^^ But these decisions, either expressly or in effect, have all been generally overruled; and the later and better rule would seem to be that, when a man buys land and contracts for a conveyance in gen- eral tenns, the ])resnnii)tion is that he exj)e(ts title, and his vendor is under obligations to furnish him with a perfect title.26 If the contract provides for a warranty deed tlie ven- dor is bound to make a marketable title to the land, and the purchaser will not be compelled to complete his jjurchase, -•^ See Tinney V. Ashley. 15 Pick. ^■'' Hill v. Hobart, 16 Me. 1(J4: (Mass.) 546; Parker v. Parmlee, 20 Aiken v. Sanford, 5 Mass. 294. ' Johns. (N. Y.) 130. -'i Carpenter v. Bailey, 17 Wend. (N. Y.) 244. 32 498 THE COVENANTS. upon receiving such warranty deed from the vendor, when it appears that the title is not clear or that the land is incura- bered.27 It is also held that an agreement to convey with warranty contemplates a conveyance from the vendor himself and not from a third person, and that, under such an agreement, the vendee will not be compelled to accept a deed made by a third party who iu fact possesses the title; but it seems that such an agreement is sufficiently performed where the vendor, hav- ing only an equitable title, procures the person having the legal title to convey to the vendee, and thereupon executes a deed with warranty himself.^s § 420. Covenants limited to estate actually conveyed. No rule is better established or more generally recognized than that which provides that the estate granted by a deed is neither enlarged nor diminished by the covenants for title therein contained, whether express or implied.^^ Such cove- nants are but simple assurances of the title. If the grantee takes but a life estate, the covenants assure that estate ;3^ if he takes the fee, but subject to an incumbrance thereon, the covenants of warranty of title, and even those against incum- brances, if such are inserted, will extend only to the estate actually conveyed, which is practically an equity of redemp- tion.3^ § 421. Covenants running with the land. A covenant runs with the land when either the liability for its performance or the right to enforce it passes to the assignee of the land it- 2T See Mead v. Fox, 6 Cush. of title, and that the premises con- ( Mass.) 199; Stow v. Stevens, 7 Vt. veyed were free and clear from 27; Little v. Paddleford, 13 N. H. all incumbrances, containing no ex- 167; Story v. Conger, 36 N. Y. 673; ceptions. Held, that the covenants Taft V. Kessel, 16 Wis. 273. applied only to the estate conveyed, 28 Barnett v. Morrison, 2 Litt. which was not the lots absolutely, (Ky.) 71. but subject to the incumbrances, 29 Lehndorf v. Cope, 122 111. 317. and that the real covenant was 30 Lehndorf v. Cope, 122 111. 317. that, otherwise than subject to in- 31 A deed for lots, after the de- cumbrances named, the lots were scription, contained the following free from all incumbrances, and clause: "subject to the following in- the grantor would warrant and de- cumbrances on said described prem- fend the title. Drury v. Holden, ises," describing them; after which 121 111. 130. followed full covenants of warranty THE COVENANTS. 499 self ;32 but in order that the covenant may run with the land, its performance or non-performance must affect the nature, quality or value of the property demised independently of col- lateral circumstances,'^^ or it must affect the mode of enjoy- ment, and there must be a privity between the contracting parties.''^ This latter is an essential element, hence, notwith- standin}^^ a wife may join in her husband's deed or a husband may join in a conveyance of his wife's separate property, yet the respective spouses, havinji; no title or possession in their own rif^ht, will be held upon the covenants, if at all, only as for a personal undertakinjj^ with the immediate grantee. Such a covenant does not run with the land and cannot be taken advantage of by a subsequent grantee.^^ As a rule, all covenants which relate to and are for its bene- fit run with the land, and may be enforcc^d by each successive assignee into whose hands it may come by conveyance or assignment.^^ Where, however, the covenant relates to mat- ters collateral to the land, its obligation will be confined strictly to the original parties to the agreement,^^ the covenant in such case being personal. So, too, there is a wide difference between the transfer of the burden of a covenant running with the land and of the benefit of the covenant; or, in other 32 Dorsey v. R. R. Co. 58 111. 65; of estate existing between the cove- Brown V. Staples, 28 Me. 497; nantor and covenantee, or is cre- Clarke v. Swift, 3 Met. (Mass.) ated at the time of making the 390. covenant, runs with the land, and 33 Norman v. Wells, 17 Wend, is binding upon subsequent grant- (N. Y.) 136. ees. See Bronson v. Coffin, 108 34 Wiggins V. R'y Co. 94 111. 83; Mass. 175; Hazlett v. binclair. 76 Norcross v. James, 140 Mass. 188. Ind. 488; Kellogg v. Robinson. 6 When the relation of tenure is ere- Vt. 276; Easter v. R. R. Co. 14 ated by a grant, all the covenants Ohio St. 48; St. Louis, etc. R. R. of the grantee for himself and his Co. v. Mitchell, 47 111. 165. A cove- assigns which affect the land nant not to establish another mill- granted will be a charge upon it site on the same stream has been and bind every one to whom it may held to have this effect. Norman subsequently come by assignment, v. Wells, 17 Wend. (N. Y.) 36. Or Wiggins v. R'y Co. 94 111. 83. not to engage in offensive trades 35 Myatt v. Coe, 152 N. Y. 427. upon the premises. Barron v. 3« Sterling Hydraulic Co. v. Will- Richard, 3 Edw. Ch. (N. Y.) 96. iams, 66 111. 393. In several of the 37 Gibson v. Holden, 115 111. 199; states it has been held that a cove- Parish v. Whitney, 3 Gray (Mass.) nant to erect and maintain a parti- 516. tion fence, where there is privity 500 THE COVENANTS. words, of the liability to fulfill the covenant and of the right to exact its fulfillment. The benefit will pass with the land to which it is incident, but the burden or liability will be con- fined to the original covenantor, unless the relation of privity of estate or tenure exists or is created between the covenantor and the covenantee at the time when the covenant was made.^s This naturally follows from the principle that the obligation of all contracts is ordinarily limited to those by whom they are made, and if privity of contract be dispensed with, its ab- sence must be supplied by privity of estate. Where a covenant is not of such a nature that the law per- mits it to be attached to the estate as a covenant running with the land, it cannot be made such by agreement of the par- ties.39 It is a further rule that covenants will run with incorporeal as well as corporeal hereditaments.'*^ The covenant of warranty is always held to be prospective, and to be unbroken until eviction. This covenant, therefore, always runs with the land for the benefit of any and all suc- cessive grantees.'*^ The same is true of the covenant for quiet enjoyment; and while covenants for seizin and against incum- brances are generally held to be in present!, and broken, if at all, at the time they are made, and hence becoming mere cJioses in action enforceable only by the original covenantee,'*^ yet in some of the states it is held that they too run with the land so far as to permit an action to the particular successive grantee on whom the damage occasioned by their breach act- ually falls.43 In estates not of inheritance or less than the fee, all cove- nants which come within the general rules first mentioned are 38 Cole V. Hughes, 54 N. Y. 444; Mitchell v. Warner, 5 Conn. 497 Weld V. Nichols, 17 Pick. (Mass.) Flaniken v. Neal, 67 Tex. 629 .543; and see Hurd v. Curtis, 19 Montgomery v. Reed, 69 Me. 510 Pick. (Mass.); Harsha v. Reid, Wyman v. Ballard, 12 Mass. 306. 45 N. Y. 415. -^^ Blondeau v. Sheridan, 81 Mo. 39 Gibson v. Holden, 115 111. 199. 545; Davenport v. Davenport, 52 40 Fitch V. Johnson, 104 111. Ill; Mich. 587; Real v. Hollister, 20 Van Rensselaer v. Read, 26 N. Y. Neb. 112. 558; Hazlett v. Sinclair, 76 Ind. 43 See Allen v. Kennedy, 91 Mo. 448; but see Mitchell v. Warner, 5 324; Cole v. Kimball, 52 Vt. 639; Conn. 497; Wheelock v. Thayer, 16 Knadler v. Sharp, 26 Iowa 232. In Pick. (Mass.) 68. Massachusetts and Maine this is ^1 Chase V. Weston, 12 N. H. 413; made so by statute. The matter THE COVENANTS. 501 (Iccmod to nm with tlic land. Thus, a covenant to rcijair^' is icj^arded as a continuing; covenant. 422. Effect and extent of restrictions. Notwithstanding that the covenants arc thcm.seives general and unlimited, their eflect and operation may be restrained by an agreement of the i)arties inserted in the deed, or by special covenants in resjx'ct to the land, estate or title. It would seem, however, that a special exception or restric- tion annexed to one covenant will not have the effect to qualify the others;^'' and that it is only when the words of exception or qualification are not annexed to any one of the covenants, but are part of the description of the property granted, that they apply to all of the covenants alike.^^ As, where a cove- nant against incumbrances except a certain mortgage pre- cedes a general covenant of warranty without exception or qualification, the mortgage, it is held, will not be excepted from such covenant of warranty.^" So, also, if covenants of warranty are introduced, but with restrictive words confining their operation to the covenantor's own acts, and a general covenant for quiet enjoyment is also made with no qualifying words, the covenant for quiet enjoyment will not, it seems, be restrained by the words of restriction applied to the other covenants, for the reason that this covenant is distinct from the covenant of title, and a man may not choose to guaranty his title generally, and yet may readily undertake that the possession shall not be disturbed.-*^ Where restrictive words are inserted in the first of several covenants having the same object, they will be construed as extending to all the covenants, although they are distinct.-*" will receive further treatment in lish cases (see 2 Siigd. on Vend, that part of the work relating to 281, and cases cited), and which damages. has been approved by some Amer- 4< Demarest v. Willard, 8 Cow, ican decisions. See Eastabrook v. (N. Y.)206. Smith, 6 Gray (Mass.) 572. But •«5 Eastabrook v. Smith, 6 Gray in the United States the covenant (Mass.) 572; Freeman v. Foster. 55 of warranty and of quiet enjoy- Me. 508. ment are practically the same. ^••> Freeman v. Foster. 55 Me. 508. tn Sumner v. Williams, 8 Mass. 47 Sumner v. Williams. 8 Mass. 202. But where the covenants are 202; but compare Drury v. Holden, of divers natures and concern dif- 121 111. 130. ferent things, restrictive words 48 This is the doctrine of the Eng- added to one will not control the 502 THE COVENANTS. But whore the first covenant is general, a subsequent limited covenant will not restrain the generality of the preceding covenant, unless an express intention to do so api)ear, or the covenants be inconsistent, or unless there appear something to connect the general covenant with the restrictive covenant, or unless there are words in the covenant itself amounting to a (]ualitication. And as, on the one hand, a subsequent limited covenant does not restrain a preceding general covenant, so, on the other, a preceding general covenant will not enlarge a subsequent limited covenant. § 423. Conveyances by attorney. It would seem to have been formerly held, where an attorney in fact was authorized to sell land and execute conveyance thereof, but no author- ity was given to bind the principal by covenants, that no covenants could be demanded by the purchaser. The theory upon which these cases proceeded was that a conveyance or assurance is valid and perfect without either warranty or personal covenants, and therefore they are not necessarily im- plied in an authority to convey; that such authority is to be strictly construed, and any act varying in substance from it is void.'^*' But this doctrine has long since been denied; and, as the right of the purchaser to covenants of title from his grantor is now unquestioned, so the law will not permit this right to be defeated simply because the grantor has delegated to a third person a ministerial authority to consummate the contract.'^ § 424. Covenant of seizin. The first of the five covenants usually inserted in deeds of conveyance is that the grantor is well seized of the premises conveyed and has good right to convey same. This is called the covenant of seizin. It is a covenant in presen.ti, and broken, if at all, when the deed is delivered. Nothing arising after delivery can be assigned as a breach.52 if the grantor is not well seized, or if he has not the power to convey at the time of delivery of the deed, an action at once accrues, and a recovery may be had.^^ generality of the others, although (Mass.) 410; Bronson v. Coffin, 118 they all relate to the same land. Mass. 161; Vanda v. Hopkins, 1 ■''>See Nixon v. Hyserott, 5 J. J. Marsh. (Ky.) 293. Johns. (N. Y.) 58; Mead v. John- "'-'Jones v. Warner, 81 111. 343; son, 3 Conn. 592. Messer v. Oestreich, 52 Wis. 684. 51 Ward V. Bartholomew, 6 Pick. 53 King v. Gilson, 32 111. 348. THE COVENANTS. 503 The covenant of seizin extends to all titles existing,' in thiid persons which may defeat the estate granted by the cove- nantor, bill not to a title set up by the ^M-antee, the vendee beinj^ estopped from settinj^ up a previously-ac(iuired title to defeat his vendor."'* The exact scojje of this covenant does not seem to be well defined in this country, nor is it permitted to have the same effect in all of the states. In Massachusetts, and the states which have followed the construction which there obtains, these covenants do not express or imply a warranty of any absolute title; they relate to the actual seizin of the grantor, and that he has such possession of the premises as that he may execute a deed thereof.^^ On the other hand, the expres- sions that the grantor is well seized of the land conveyed and has good right to convey, or those of similar import, are con- sidered in many states as amounting to a covenant of title.''*' j^ 425. Covenant for quiet enjoyment. This covenant goes only to the possession and not to the title,^^ and does not ex- tend so far as the covenant of warranty. It is broken only by an entry, or lawful expulsion from, or some actual disturbance in, the possession.'^s It requires no precise or technical lan- guage to raise it, and will be created by any words which amount to or import an agreement to that efifect.^^ In its prac- tical operation it is prospective, runs with the land, descends to heirs, and vests in assignees and purchasers. •'•* Furness v. Williams, 11 111. sons. But it is now well settled 229. that a covenant for title gives the •'■••'■' Raymond v. Raymond, 10 grantee a claim against the grantor Mass. 134; and see Backus v. Me- only where the former is disturbed Coy, 3 Ohio 211; Boothby v. Hath- by one having a good adverse away, 20 Me. 255; Watts v. Parker, claim unless tortious evictions are 27 111. 229. included by express words. This •10 Richardson v. Dorr, 5 Vt. 21; principle is founded upon the pol- Lockwood V. Sturdevant, 6 Conn, icy of preventing any connivance 385; Parker v. Brown, 15 N. H. 186. between the grantee and a stranger And see Rawle on Govts., § 45 without title for the purpose of re- et seq., for a discussion of the sub- covering damages from the ject. grantor, and also upon the consid- •'■'' Beebe v. Swartwout, 3 Gilm. eration that one wrongfully dis- (111.) 162. turbed has a remedy against the •'-8 This covenant was formerly wrong-doer, held to embrace wrongful as well '>!' Midgett v. Brooks, 12 Ired. (N. as lawful evictions by third per- C.) 145. 504 THE COVENANTS. It is regarded as one of the five covenants to which a pur- chaser is entitled under a contract for a deed with covenants; and notwithstanding that the covenant of general warranty is in effect a covenant for quiet enjoyment, it is customary to specifically insert this covenant as well. § 426. Covenant against incumbrances. Among the "usual covenants" which a purchaser has a right to demand is that against incumbrances, or any right or interest in the land which may subsist in third persons to the diminution of the value of the land, but consistent with the passing of the fee by conveyance. In its operation it is practically a covenant for indemnity. It is considered to be in presenti, and broken, if at all, as soon as made."^o A vendor who desires to avoid the effect of this covenant should, for his own protection, specially and expressly except from its operation all known incumbrances of every kind; for, by the ruling of recent decisions, an incumbrance is not only such matters as merely affect the title, but includes many things that affect only the physical condition of the property as well. The fact that such incumbrances are known to the vendee in no way affects the liability of the vendor or impairs the vendee's right to recover, the question of notice in such cases being immaterial.^^ § 427. Further assurance. In addition to the familiar cov- enants to which allusion has already been made there are others of primary importance to intending purchasers, and to which they are frequently entitled. The chief of these less known covenants is that called a covenant for further assur- ance, which relates both to the title of the vendor and to the instrument of conveyance, and operates as well to secure the performance of all acts necessary for supplying any defect in the former as to remove all objections to the sufficiency and security of the latter. It is less extensively used in the United States than any of the other covenants for title; but this would seem, says Mr. Rawle, "to be owing rather to custom and the inartificial character of early conveyances than to any 60 For a further discussion of 431; Snyder v. Lane, 10 Ind. 424; this subject with reference to Smith v. Lloyd, 29 Mich. 382; breach and damages, see "Actions Worthington v. Curd, 22 Ark. 285; for Damages," in^ra. Ladd v. Noyes, 137 Mass. 151; Wil- ei Hubbard v. Norton, 10 Conn, liamson v. Holt, 62 Mo. 405. THE COVENANTS. 505 want of usefuliK'SH in (he covenant itself or (rini; 431. Cancellation of corresponding covenants. Where, after a conveyance with covenants, the same lauds are re- convej'ed to the grantor by his grantee with like covenants, the law construes such covenants as mutually canc(dling each other, so that no action can be maintained on them by either of the parties or their assignees.'^- § 432. Implied covenants. Implied covenants, or, as they are also teinied, covenants in law, are those which the law im- plies or infers from the nature of the transaction, although not expressed by direct language in the instrument containing them. They are raised by the employment of certain words having a known legal operation in the creation of an estate, and are a secondary force, as it were, given by law, consti- tuting an agreement on the part of the grantor to protect and preserve the estate so by those words already created. In their origin they are distinctly traceable to the feudal consti- tutions, and grew out of the reciprocal relations of the feudal lord and his tenant."-* The covenant or promise was raised from the words of grant, the fact of feofiment carrying with it the correlative duty of protection, and this j)rinciple has been retained and forms the basis upon which inij)lied cove- nants rest wherever they are permitted to obtain. The strong tendency of modern legal policy has been to limit 71 Brown v. Metz, 33 111. 339. to B., to avoid circuity of action. 72 As where A. conveys land to B. Silverman v. Loomis, 104 111. 137. upon which there is an incum- ^.s "The lord was bound," ob- brance, with covenants against in- serves Mr. Rawle, "to warrant or cumbrances and warranty, and B. insure the fief against all persons subsequently reconveys to A. with whomsoever claiming by title, and like covenants, the several convey- in case of loss to replace it with an- ances between them will by opera- other; and when later it became tion of law cancel or extinguish the usual to authenticate the creation covenants in B.'s deed as to all in- or transfer of estates by charters cumbrances covered by A.'s deed or deeds, a warranty was in the 508 THE COVENANTS. and restrict the operation of covenants implied from the use of words of grant. In many states they have been expressly abrogated by statute/^ and in the other states receive their main efficacy from statutory provisions. The emijloyment in a deed of the words ''grant, bargain and sell," as the equiva- lent of the ancient expression "dedi, concessi, demisi," etc., have, by statute in the states which still recognize implied covenants, been declared to be an express covenant to the grantee that the grantor was seized of an indefeasible estate in fee-simple, free from incumbrances done or suffered from the grantor, and for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed; and the grantee may in any action assign breaches as if such covenants were expressly inserted."^^ But while these words are permitted to exert a certain effi- cacy in the absence of other and more direct expressions, yet their employment will not create covenants against the mani- fest intention of the parties. The covenants raised by law from the use of particular words in the deed are only intended to be operative when the parties themselves have omitted to insert covenants, and the use of almost any language from which it appears that the parties intended that these words should not have such an efi'ect will destroy the force of the implied covenants.'^^ Hence, it has been held that, where a deed contains an express covenant, the statutory covenants are not implied. As previously remarked, however, the doctrine of the com- mon law, that certain words in the conveyance of real property of themselves import and make a covenant in law, has been abrogated by statute in a number of states, and enactments have been had which declare that no covenant shall be implied in any conveyance of lands, whether such conveyance contain case of a freehold implied from the Texas. In Montana, Nevada, Da- word of feoffment, dedi. Rawle kota and New Mexico these words on Govts., § 270. are permitted by statute to imply 7* Such is the case in New York, covenants of seizin and against in- Michigan, Minnesota, Oregon, Wis- cumbrances. consin and Wyoming. "'"• Finley v. Steele, 23 111. 56 T3 A substantial transcript of the Stewart v. Anderson, 10 Ala. 504 statutes in force in Illinois, Penn- Winston v. Vaughan. 22 Ark. 72 sylvania, Arkansas, Alabama. Call- Weems v. McCaughan, 7 Smedes & fornia, Mississippi, Missouri and M. (Pa.) 427. THE COVENANTS. 509 Special covenants or not. It is believed tiiis view in supported by the sounder reason, and tbat in time it will receive uni- versal recoj;ni(ion. A vendee, wbeu be ])urcba8e8, may insist on tbe general covenants and sucb special covenants as will secure to bim a perfect indemnity for any loss or injury be may sustain by reason of an intrusion or eviction, and if be neglects so to do be sbould not be beard to complain. § 433. Statutory deeds. An attempt bas been made in many states to simplify llie forms of conveyancing by stat- uloi-y enactments presciibin^^ models or prec«Mlents for tbe ordinary deeds in common use and declaring tbeir elfect. Tbe radical dilTerence between tbese forms and tbose derived from, tbe common law lies in tbe fact tbat tbey are entirely witbout habendum, and tbat tbe force and effect of tbe covenants, wben tbe deed is intended to carry covenants, bas been trans- ferred to and merged into tbe operative words of grant."'^ Tbese words are usually "convey and warrant," and in legal effect tbey imply tbat the deed shall be deemed and held to be ;i conveyance in fee-simple to tbe grantee, bis heirs and assigns, with covenants from tbe grantor for himself and bis heirs that he is lawfully seized of the property, has good right to convey tbe same, and guarantees tbe quiet possession there- of; tbat tbe same are free from all incumbrances, and tbat he will warrant and defend the title to the same against all law- ful claims."^ In a few states tbe spirit of "reform" bas evi- dently clouded the judgment of tbe legislators, and tbe desire to "simplify" has cut down tbe verbiage to the fewest words possible to effect a conveyance. In tbese forms there is no habendum and no attempt at express covenants. Tbe opera- tive word of conveyance is "grant," which is held to have ef- fect as a covenant against the grantor's own acts."'-' Statutory deeds of tbe latter class are substantially tbe same as common-law deeds with implied covenants, the general effect of tbe words "grant, bargain and sell" being to raise an implied covenant against tbe acts of tbe grantor unless re- strained by special statute or a general statute abrogating all ^~ In some respects this is a re- statute of Illinois, Indiana, Michi- turn to the medieval system of im- gan. Mississippi and Wisconsin, plied warranty as discussed in the "« This form is adopted in Cali- preceding paragraph. fornia. Dakota, Maryland and '» A substantial transcript of the Texas. 610 THE COVENANTS. implied covennuts in convcvances. Deeds of the former class, made in conformity to the statute, have all the force and ett'ect of the special covenants that are usually contained in the com- mon-law deeds of conveyance. All the covenants mentioned in the statute are to be regarded and treated as though they were incorporated in the deed, of which they constitute a part ecjually as though they were written therein.^^ § 434. Where wife refuses to join. In the absence of an express stipulation providing for a release of dower it w'ould seem that a vendor who has covenanted to convey by '*a good and sufficient deed of general warranty" is regarded as having fully performed his part of the agreement if he tenders a deed executed by himself alone, and containing the covenants stip- ulated for.^^ Such a covenant to convey amounts to nothing more, it is said, than an engagement that it shall bar the cov- enantor and his heirs from ever claiming the land, and that he and his heirs shall ever undertake to defend it when assailed by paramount title.^^ gbould the wife of the grantor in the deed containing such a covenant, but whose right of dower was not released thereby, become a widow and claim and re- cover her dower in a mode by which the grantee might be injured, he would be able to obtain recompense on the cove- nant in his deed,^3 The courts announcing the foregoing doctrine proceed upon the theory that a covenant of general warranty does not of itself include a covenant against incumbrances, and that even if a contract to convey with warranty can be construed into a contract to make a deed free from incumbrances, yet that a possibility of dower is not, within the sense of such a covenant, an incumbrance.^^ § 435. Value of covenants. Mr. Preston, an English writer of eminence, seems to think that purchasers in general attach more value to covenants for title than they are really worth. and that considering the property of parties, the chances of eventual insolvency, etc., covenants rarely produce the benefit which is expected from tliem.^^ He further observes that, when 80 Carver v. Louthain, 38 Ind. ^^ Bostwick v. Williams, 36 111. 530. 65. 81 Bostwick V. Williams, 36 111. S4 See Powell v. Monson, etc. Co., 65. 3 Mason (C. Ct.) 355. S2 Bostwick V. Williams, 36 111. ><■> 3 Prest. on Abstracts, 57. 65. THE COVENANTS. 511 tlu' projx riv is subdivided by sales, it seems to folldw fr(»iii a maxim of law tliat (lie purchasers lose the beiidit of former covenants, on the ground tliat tlie remedy canntjt be ajipoi- tioned, or, in inoi-e corieel Icriiis. tlie coveiumlor cannot be subjected to several actions. W i(li respect to the latter obser- vation, however, the rule now seems to be settled that where a covenant runninj^ with the land is divisible in its nature, if the entire interest in different parcels of the land passes by assi^niment to separate individuals, the covenant will attach on each separate parcel ijro raia,^^' and while it is true that the financial responsibility of covenantors is liable to be ren- dered valueless by subseciuent insolvency, yet this is one of the risks which men are necessarily obliged to assume in all transactions involving personal credit and financial reliance. Aside from their financial featui'es as guaranties of indem- nity, covenants have many other excellent attributes which render them desirable to the purchaser and which give to them an actual value. They act as estoppels and j)ermit the subse- (luent inurement of title; they are also prima fade evidence of legal good faith in real estate transactions, often affording protection against latent equities; and in examinations of title a long series of warranty deeds tends to give a stability to the title that no other agency can produce. A chain of title comj)osed mainly of quitclaims or deeds with limited cove- nants carries suspicion on its face, and under the rulings of some courts is a direct notification to the purchaser that his title is doubtful, and that in accepting the same he assumes the risk of having it defeated b^' some existing but latent equity. For this reason, then, if for no other, should a per-' chaser insist upon the assurance of his title by ])i'oper cove- nants; and notwithstanding the fact that his covenantor is l)ecuniarily unable to respond in damages for any breach, the covenants themselves may be a tower of defense in case the title should be subsequently assailed. >; 436. Defective covenants — Operation and effect. The in- troduction of labor-saving blanks has been a prolific source of error in the draughting of conv(\vances. Not only have they served to beget habits of carelessness and inattention in regular practitioners, but by furnishing in an abstract form the technical knowledge requisite to the draughting of instru- »6See Aster v. Miller. 2 Paige (N. Y.) 68. 512 THE COVENANTS. ments, the art of conveyancing- has become debased, and the oflBce of the convej-ancer has lost its dignity in the frequent nsurj)ati<)ns to wliich it has been subjected. Ignorant officials, as well as ambitious but economical individuals, each in turn assume the duties of the conveyancer, and, with the aid of the accommodating blank, all'ect to perform the functions of his office. As a natural result, we frequently meet with nuiny atrocious examples of conveyancing, and courts are often called upon to interpret the efforts or construe the inartificial expressions of the unskilled draughtsman. The very liberal construction now awarded deeds and other instruments, as well as the operation of statutes, which in a large measure have destroyed the effect of common-law rules, serves in some degree to counteract the errors, omissions and defects of the ■amateur conveyancer; yet such is the ignorance prevailing among the classes named of the nature and effect of the opera- tive parts of deeds, that parties are frequently surprised into contracts they have not made and never intended. Particu- larly is this true in respect to the expressed covenants, the technical nature of which is but slightly understood by the masses, and vital defects are more frequently met with in these clauses than in any other part of the deed. The printed covenant clause ordinarily commences somewhat as follows: ''And the said , for heirs, etc., does covenant," etc. Through ignorance or carelessness, the draughtsman sometimes neglects to fill either of these blank spaces, the first of which is intended for the names of the covenanting parties, and the second for personal pronouns indicative of the same. The effect of an omission to fill these blanks is to render the entire clause nugatory, for where these spaces are not filled by the insertion of any names, the inference naturally arises that no such covenant was intended to be made; nor can the context, by construction, supply the omission.^^ This is, how- ever, an extreme case, for the use of the first space is so ob- vious that few persons of ordinary comprehension will mistake its purport; but the rock on which the amateur conveyancer usually splits is the second space. This, when properly filled, contains two pronouns, as ''himself, his," or, "themselves, their;" but the draughtsman, misled, perhaps, by the context, and of course ignorant of the legal effect of the expression, 87 Day V. Brown, 2 Ohio 345. THE COVENANTS. 513 usually inseit.s only tlie word "his" or "their," as the case may be, and in this condition the deed is delivered and accepted. The freciucncy willi which this error is found justifies an inciuiry into its legal effect. In this instance, not only is there no direct covenant on the part of the granting party, but there is an une(iuivocal covenant for the heirs of such jiarty; and though courts are ever inclined to construe evident errors and omissions of the clerk liberally, and to give effect to the instrument according to the uumifest intenticui of the i)arties,®'^ yet the principle is well settled that the liability of parties under a contract must depend upon the terms they have seen fit to use, and not upon those they might have used;^'^ while mistakes of law never afford ground for equitable relief.^"' Now, in the example under consideration, there is neither uncertainty' nor manifest error, and the legal effect of a cove- nant of this character is, not that the grantors will defend the title, but that the same shall be defended by their heirs, etc. It does not give a right of action against the grantors on the loss of title, but provides a remedy against their heirs and legal representatives; it exempts the grantors from personal liability, but binds their descendants in respect of the estate that may be cast upon them. It is not like a covenant that a person who is not a party to the deed shall warrant and de- fend the title, for in such case, upon the eviction of the grantee, and the failure of such third person to comply with the terms of the covenant, an action might be maintained against the grantors, on the familiar principle that what a party undertakes shall be performed by another he must him- self perform on the default of that other. In this case the covenant is that the act shall be performed by parties who can have no legal existence during the life of the grantors, and until their decease there is no person living who can be called upon to avouch the title.'^i Such are the views expressed by the supreme court of Illi- nois, and they would seem to be founded in reason and upon «8Callins V. Lavalle, 44 Vt. 230; Walker v. Tucker, 70 111. 527. Churchill v. Reamer, 8 Bush (Ky.) oo Hayes v. Stiger. 29 N. J. Eq. 256; Peckham v. Haddock. 36 HI. 196; Morris v. Hogle. 37 111. 150. 38. "1 Traynor v. Palmer, 86 111. 477; soDay V. Brown, 2 Ohio 345; Ruffner v. McConnell, 14 111. 168. Bobb V. Bancroft, 13 Kan. 123; 33 514 THE COVENANTS. sound principle, and in states where by statute no covenants can be implied in deeds or other instruments the conclusions above stated would appear to be irresistible; yet in Wiscon- sin, where a statute similar to that just mentioned has long been in force, and where this question has twice been pre- sented, a result diametrically opposed to that above given has been reached. In the first case'-'^ it was held that although the covenant might be defective in law, yet equity would always supply the omission in conformity with the evident intention of the grantor; while in the second"^ the covenant was sustained as that of the grantor, notwithstanding the omission. In neither case, however, do the decisions appear to have been reached by much reasoning, nor do the learned judges fortify the same with any citation of authority. The reason assigned in the first instance is obviously defective and incorrect, for the ^'evident intention of the grantor" cannot be better determined than from the language of the conveyance;^* and where the language is unambiguous, although the parties may have failed to express their real intention, there is no room for construction, and the legal effect of the agreement must be enforced.^^ Words and phrases are always to be taken in their commonly accepted sense, unless a different in- tent plainly appears;, and where words have a well-defined, specific meaning, importing intention, they cannot be altered, limited or enlarged in their meaning by implication or extrin- sic evidence.^^ It is a rule of universal recognition that when parties de- liberately put their engagements in writing, in such terms as import a legal obligation, without any uncertainty as to the object or the extent of such engagement, it is conclusively presumed that the whole engagement of the parties, its ex- tent and manner, is thereby expressed. To add to it by impli- cation would be to vary its terms,*^^ and though contracts must alwaj's receive a liberal interpretation, yet courts are power- less to disregard the terms of a contract plainly expressed, 92 Stanley v. Goodrich, 18 Wis. Callender v. Dinsmore, 55 N. Y. 505. 200; Fire Ins. Co. v. Doll, 35 Md. 93 Hilmert v. Christian, 29 Wis. 89. 104. 96 Galena Ins. Co. v. Kupfer, 28 94 German Ins. Bank v. Nunes, 111. 332. 80 Ky. 334. 97 Merchants' Ins. Co. v. Morri- 9' Walker v. Tucker, 70 111. 527; son, 62 111. 242. THE COVENANTS. 515 and their only duty is to enforce the .same according to the intent of the parties as shown by the hinj,Miaf;e u.sed.'*^ The omission, it is true, mi;^ht readily he inferred with ref«'r- enee to the established custom of drawin;( eonvevances and the insertion of covenants; but the i-ule still remains that where parties have settled the terms and. conditions of a con- tract by ajjreement, which has been reduced to writing, they must be }2:overned by its provisions, and will be concluded by it rej^ardless of any usage or custom.^'" A dillerent case is i)resented by an imperfectly-filled blank, but which still indicates an intention. Thus, a covenant by j^rantors "for them, — heirs," etc., has been construed "themselves, their heirs," etc., and held to be the covenant of the grantors;^ but in this instance the intention is clearly manifest and the error of the clerk very palpable. The ques- tion of construction in such a case is comparatively simple, and the imperfect words show the intention of the grantor. The neglect to insert the word "their" was also immaterial, as would have been the word "heirs," for the legal effect of the covenant would have been the same if all reference to the heirs, executors and administrators had been omitted.^ § 437. Quitclaims. A quitclaim deed will as effectually pass the title and covenants running with the land as a deed of bargain and sale if no words restrict its meaning;-^ and, where such deed contains a covenant for further assurance, will conv(\v a subseciuently-acquired title as well as a covenant of warranty.^ P>ut where one accepts a deed without covenants for title he takes the hazard of the same, and, in the absence of fraud, cannot recover back the purchase money on failure of titkv' The operative words usually employed in deeds of the char- acter under consideration are "convey and quitclaim;" but it has been held that a deed which "grants, bargains and sells all of the right, title and interest" of the grantor is merely a t"*Coey V. Lehman. 79 111. 173; ^ Hall v. Bumstead. 20 Pick. 2; Kimball v. Custer, 73 111. 389. Bell v. Boston. 101 Mass. 506. !'» Corbet v. Underwood, 83 111. ••» Morgan v. Clayton, 61 111. 35; 324; Kimball v. Custor. 73 111. 389; Saunders v. Flaniken, 77 Tex. 662. Moran v.Prather, 23 Wall. 492; Cal- ' Bennett v. Waller. 23 111. 97. lender v. Dinsmore. .'i.') N. Y. 200. r. Botsford v. Wilson. 75 111. 132. 1 Baker v. Hunt. 40 111. 264. 616 THE COVENANTS. quitclaim conveyance, and inoperative to convey an after- acquired title.^ Where implied covenants are permitted to obtain, and where such covenants are held to be raised by the employment of the words "grant, bargain and sell," it may be a question whether this rule would hold good, notwith- standing that the estate purported to be conveyed is only the "right, title and interest" of the grantor. It is a most unusual proceeding, however, to insert cove- nants of any kind in a mere quitclaim or a conveyance of the grantor's ''right, title and interest" in the land described. In- deed, the i)rimary object of a conveyance of this character is a simple transfer of whatever right may exist in the vendor, unaccompanied by any assurances or agreements with respect to such right, the vendee taking such naked interest at his own risk. But occasionally deeds of this kind are made with covenants and a question is thereby presented with respect to the legal import of such covenants. The general opinion seems to be that they are limited by the subject matter of the conveyance, that is, the grantor's naked interest, and hence, are not broken by the enforcement of a paramount title out- standing against the grantor at the time of the conveyance.'^ 6 Butcher v. Rogers, 60 Me. 138. a conveyance of "land" and of the This rule is not founded in legal grantor's "interest" in land, and reason as the grantor's interest is doubtless the distinction will con- all that is conveyed in any deed, tinue to be observed despite its yet for many years courts seem to highly unscientific character, have made a distinction between " Reynolds v. Shaver, 59 Ark. 299. CnAPTEK XVII. 438. General principles. §452. 439. Conditions. 440. Continued — Definition and classification. 453. 441. Continued — Operation and effect. 454. 442. Construction of conditions. 443. Continued — Conditions in 455. avoidance. 456. 444. Continued — When con- 457. strued as covenants. 458, 445. Creation of conditions. 459. 446. Forfeiture — Revesting of 460. estate. 461. 447. Who may take advantage of condition broken. 462. 448. Who may perform. 463. 449. Prevention of performance. 464. 450. Time of performance. 451. Conditions in restraint of alienation. 465, CONDITIONS, LIMITATIONS AND RESTRICTIONS. Continued — With respect to persons. Continued — With respect to time. Continued — With respect to prescribed and prohibited uses. Continued — Intoxicants. Conditional limitations. Restrictive stipulations. Restrictions on use. Building restrictions. Prohibited employments. Enforcement of restric- tions. Avoidance of restrictions. Conveyances for support. Conveyances for specific use. Resume. § 438. General principles. It is now well settled that every owner of real property has the ri^ht so to deal with it as to re- strain its use by his fjrantces within sucli limits as to i)r('vent its apjtrojH-iation to i)urposes which will inii)aii' the value or diminish the pleasure of the enjoyment of the land which he retains. The only limitation on this rif^ht is that it shall be exercised reasonably with due re<;ard to public policy, and without creating any unlawful restraint of trade; and, kcepinj; within the limitation, there is no longer room for a doubt that in whatever shape such restraint is placed on land by the terms of the grant — whether it is in the technical form of a condition or covenant, or of a resei'vation or exception in the deed, or by words which give to the acceptance of the deed by the grantee the force and effect of a parol agreement — ^it is binding as between the grantor and the immediate grantee, and can be enforced against him both at law and in equity.^ 1 Whitney v. Union R'y Co.. 11 bree, 103 Mass. 372: Linzle v. Gray (Mass.) 359; Gannett v. Al- Mixer, 101 Mass. 512; Harriman v. 517 518 CONDITIONS, LIMITATIONS AND RESTRICTIONS. A more difficult question is presented when we come to con- sider to what extent and in what cases such stipulations are binding, if at all, on those who take the estate under the grantee, either directly or by a derivative title. The better opinion, however, seems to be that such agreements are valid and capable of enforcement in e(]nity against all who acquire the title with notice of the restriction. This opinion seems to rest on the principle that as in equity that which is agreed to be done shall be considered as performed, a purchaser of land, with notice of the existing rights of another, is liable to the same extent and in the same manner as the person from whom he made the purchase, and is bound to do that which his vendor had agreed to perform.^ It seems, also, that such agreements have been upheld in equity as against subsequent purchasers with notice, on the ground that such stipulations create an easement or privilege in the land conveyed for the use and benefit of the grantor and those who might after- wards claim under him as owners of the adjacent land of which the land granted originally formed a part.^ In neither of the foregoing cases are the agreements re- garded as real covenants running with land, nor is it contended that they are of such a nature as to create a technical quali- fication of the title conveyed by the deed. Indeed, they do not affect the title, but only the mode of use. Strictly speak- ing, they amount to no more than personal contracts, and at law would be binding only on the original parties. But in equity those claiming title under them may resort to the whole instrument, including the covenants and agreements in gross, for the purpose of ascertaining the nature of the right in- tended to be conveyed; and, when ascertained, the court will enforce in favor of such persons that use or mode of enjoy- ment which the grantor has seen fit to impress upon it, and thus the effect of a grant may be given to that which is in the form of an agreement, binding at law only between the original parties.^ Park, 55 N. H. 471; Emerson v. 2 Whitney v. Union R'y Co., 11 Mooney, 50 N. H. 315; Plumb v. Gray (Mass.) 359; Schwoerer v. Tubbs, 41 N. Y. 442; O'Brien v. Market Association, 99 Mass. 298. Wetherill, 14 Kan. 616; Collins v. 3 parker v. Nightingale, 6 Allen Marcy, 25 Conn. 242; Stines v. Dor- (Mass.) 345. man, 25 Ohio St. 580. ^ Schwoerer v. Market Ass'n, 99 Mass. 298. CONDITIONS, LIMITATIONS AND RESTRICTIONS. il'J It will be seen, thcii'fijrc, tliat the precise foiiu or nature of the covenant or aj^reement is ininiatei-ial; n«'itlier is it essen- tial that it should run with the land. A itcrsonal covenant or ajfreenient will be ludd valid and bindinj^ in e(iiiity on a pur- chaser takinj; the estate with notice, not niercdy because he stands as assignee of the party who made the agreement, but because he has taken such estate in full view of an agreement concerning it which he cannot e(]ui(ably refuse to jierform; or, on the other hand, in order to carry out the plain intent of the original parties, it will be construed as creating a right or interest in the nature of an incorporeal hereditament or ease- ment appurtenant to the remaining land belonging to the grantor at the time of the grant, and arising out of and at- tached to the land, part of the original parcel, conveyed to the grantee.^ § 439. Conditions. Probably the most familiar and widely- employed method of imposing burdens on the grantee, or of subjecting the estate conveyed to some particular restriction or limitation, or of contining the enjoyment of the granted premises to some specific use, is by the insertion in the deed of a recital technically known as a condition, the effect of which, in case of breach, may be to modify or defeat the grant with which it is connected.*' r- Whitney v. Union R'y Co., 11 Gray (Mass.) 359. •■• Conditional estates are an in- heritance from the feudal law, and originally grew out of the condi- tions upon which fiefs were granted. They imply a holding by tenure, and for this reason, if none other, are not in accord with the genius of our institutions, which recognizes no superior lord hold- ing reversions or other paramount rights, and are fundamentally op- posed to the principles of owner- ship under allodial titles. For- feiture, which is the inseparable legal incident to such estates, is not compatil)le with the modern American idea of full and complete ownership. It originated and was developed under a system radically different from that which obtains in the United States, and which recognized as the highest type of property in the subject only a leasehold interest; and although this interest might continue for an indefinite period of time and was dignified with the name of freehold, it was still dependent on conditions, and the reversion could never be lost to the ultimate lord. The principle of forfeiture came to us with other inapt and incon- sistent doctrines on the separation of the colonies, and has been re- tained through a series of years mainly because of a slavish and, in many cases, blind adherence to the formidable array of English 520 CONDITIONS, LIMITATIONS AND RESTRICTIONS. But what will or will not constitute a condition is often a matter of nice discrimination and const ruction, and, as great property interests frequently depend upon the value to be given to stipulations and recitals, it is to be regretted that a full review of the adjudicated cases leaves the matter, if not In doubt, at least in such a state that but few rules can be de- duced for the benefit of the practitioner. In theory, perhaps, there should be little difficult}' in properly construing recitals of the character under consideration, if technical words and forms of expression were always accorded the meaning and signification which long usage and judicial interpretation have given them, or if the legal consequences which flow from the employment of such terms could always be determined by ar- bitrary rules. But in practice the questions thus raised are often difficult and perplexing. No standard is available to determine their value, for the modern rules of construction have materially changed the effect of technical words, while special clauses indicative of a particular intent must give w'ay to the general intent as developed by the entire instrument, read in the light of extrinsic facts; and thus conditions in form may be construed as covenants in effect, or as simple stip- ulations operating neither as conditions or covenants. The object of this chapter, therefore, will be briefly to consider the precedents which American jurists the construction of mortgages; and have falsely endeavored to apply to the operation and effect now ac- our system of titles and estates, corded to technical recitals import- But the original and inherent prin- ing conditions in deeds of realty, ciples of allodial ownership, when From every side come indications unaffected by the doctrines of the of a reversal or denial of the com- common law, afford no room for re- mon-law canons of forfeiture; and versionary rights in one who has as the bench and the ran"ks of the parted with his title by an absolute elementary writers continue to be conveyance; and the doctrine of recruited from men imbued with conditional estates, so far as it is American ideas of American law, administered in this country, forms and freed from the influence of the an anomalous proceeding, unsup- harsh and inappropriate rules of ported by principle and authorized our English inheritance, forfeit- by very doubtful precedent. ure of a fee-simple estate once That these sentiments are not vested will become an impossibil- shared alone by the writer is evi- ity, and the more just and enlight- dent from the uniform tendency of ened rule of compensation or per- modern judicial decision; the formance will provide an adequate great change, which, particularly remedy for all breaches of cov- in the west, has been wrought in enants and conditions. CONDITIONS, LIMITATIONS AND RESTRICTIONS. :>2l operation ol" special conditions and stijmlations in convey- ances by deed, and (lie elTecj Ihey may have iijxin the estate conveyed. 55440. Continued — Definition and classification. Conditions are classed as precedent and subseiiuent, Conditions pi-ecedeni are such as must hajjpen or be perfoi-med before the estate can vest or be enlar<^ed; they admit of no latitude, and must be strictly, literally and punctually perfonned." Ordinarily no questions can arise as to their construction, save only whether they should not be construed as subsequent rather than ijrece- dent, for no precise lanji;uaj?e is necessary to constitute them when the intent is fully disclosed; and whether a condition is precedent or subsequent depends upon the intention of the parties as shown by a proper construction of the whole in- strument.^ Conditions subsequent indicate somethinji: to be performed after the estate has vested, the continuance of the estate depending? upon its performance. It is this class of conditions which has given rise to most of the litigation on the subject as well as to the many embarrassing questions of construction. The legal effect of a condition precedent is to withhold the estate until performance; the legal effect of a condition sub- sequent is to defeat the estate already vested upon a breach or non-performance. But although the several effects of these two classes are so divergent, it is not always easy to deter- mine whether the condition is precedent or subseijuent from the language employed. If, however, the act or condition re- quired does not necessarily precede the vesting of the estate, but may accompany or follow it, and if the act may as well be done after as before the vesting of the estate, or if, from the nature of the act to be performed and the time required for its performance, it is evidently the intention of the parties that the estate shall vest and the grantee perform the act after taking possession, then the condition is subsequent.*^ Subsequent conditions, as they tend to defeat estates, are 7 Van Home v. Dorrance, 2 Dall. Sheppard v. Thomas, 26 Ark. 617; (U. S.) 317; Moakley v. Riggs. 19 Underhill v. Saratoga. 20 Barb. Johns. 71; Bostwick v. Hess, 80 111. 455; Finlay v. King's Lessee. 3 Pet. 138; Taylor v. Bullen. 6 Cow. (N. (U. S.) 346; Gardiner v. Corson, 15 Y.) 627. Mass. 500. « Rogan V. Walker, 1 Wis. 527; ''Underhill v. Saratoga. 20 Barb. 522 CONDITIONS, LIMITATIONS AND RESTRICTIONS. not favored by the courts/^ and are always to be strictly con- strued as against the grantor/^ and with liberal intendments as regards the grantee.^- Forfeitures are said to be odious ;^-'' and unless the conditions are clearly and minutely expressed/'* the courts will, as a rule, eagerly lay hold of any plausible feature to sustain the grant,^'"' and for this purpose will always, when tlie import of the language used is doubtful, incline to interpret the recitals as covenants rather than conditions.^ ^ AYhere a conveyance of land in fee is made upon a condi- tion subsequent, the fee remains in the grantee until breach of condition and a re-entry by the grantor. The condition has no effect to limit the title until it becomes operative to defeat it; and the possibility of reverter, which is all that remains in the grantor, is not an estate in the land.^^ The estate held by the grantee will, of course, remain defeasible until the condi- 455; Nicoll v. R. Co., 2 Kernan (N. Y. 121; Finlay v. King's Lessee, 3 Pet. (U. S.) 374. 10 Palmer v. Ford, 70 111. 196; Warner v. Bennett, 31 Conn. 478; Craig V. Wells, 11 N. Y. 315; Paden V. R. R. Co., 73 Iowa 328; Curtis V. Board of Education, 43 Kan. 138; Higbee v. Rodeman, 129 Ind. 244; compare Mott v. Danville Sem- inary, 129 111. 403. 11 Gadberry v. Sheppard, 27 Miss. 203; Hoytv. Kimball, 49 N. H. 322; Moore v. Pitts, 53 N. Y. 85 ; Duryea V. Mayor, 62 N. Y. 592. 12 Palmer v. Ford, 70 111. 369; Woodworth v. Payne, 74 N. Y. 196; Glenn v. Davis, 35 Md. 208; Merri- field V. Cobleigh, 4 Cush. (Mass.) 184; McQuesten v. Morgan, 34 N. H. 400. It is upon this principle that it has been held that where a condition applies in terms to the grantee, without mention of his heirs, etc., the condition cannot be broken after the death of the grantee. So, also, although the heirs, etc., are named, yet if as- signs are not, it will not be broken by any act of an assignee. Emer- son v. Simpson, 43 N. H. 475. 13 Warner v. Bennett, 31 Conn. 478; Ins. Co. v. Pierce, 75 111. 427; Rowell V. Jewett, 71 Me. 408. 14 Woodworth v. Payne, 74 N. Y. 196. The extent and meaning of a condition and the fact of a breach are questions strictissima juris; and a plaintiff, to defeat an estate of his own creation, must bring the defendant clearly within its letter. Lynde v. Hough, 27 Barb. (N. Y.) 415; Hunt v. Beeson, 18 Ind. 380; Taylor v. Sutton, 15 Ga. 103; Page v. Palmer, 48 N. H. 385; Weir V. Simmons, 55 Wis. 637. i-> Hammond v. R. Co., 15 S. C. 10; Jackson v. Harrison, 17 John. 66. iG Board of Education v. Trus- tees, 63 111. 204; Hoyt v. Kimball, 49 N. H. 322; Wheeler v. Dascomb, 3 Cush. (Mass.) 285; Thornton v. Trammell, 39 Ga. 202; Packard v. Ames, 16 Gray (Mass.) 327. 17 Shattuck V. Hastings. 99 Mass. 23; Vail v. R. R. Co., 106 N. Y. 283; Spect V. Gregg, 51 Cal. 198; Ale- many V. Daly, 36 Cal. 90. CONDITIONS, LIMITATIONS AND RESTRICTIONS. o2'3 lion be pcifoi'iiicd, dcstiovcd or harrcd by the sfntntc of limi- lati(Jiis or by ('stop])!'].''^ Conditions are further classed as expressed and implied, the former bein<( those which are declared in express terms in the deed creatinfj; the estate, and the latter those which the law implies, either from their being always understood to be an- nexed to certain estates or as annexed to estates held under certain circumstances. § 441. Continued — Operation and effect. A covenant, con- dition or stipulation inserted in a deed delivered to and ac- cepted by the grantee, will bind him to a due observance of the covenant or performance of the condition, whenever the same directly relates to the land embraced in the conveyance,^'' or is connected with such lands and those immediately adjoin- ing.2o Such agreements may be collateral to the conveyance, but they must relate to the premises wiiose title is transferred, and an agreement touching alien lands will never be imputed to the grantee. The grantor may impose a restriction, in the nature of a servitude or easement, upon the land which he sells for the benefit of the land he retains; and if that servi- tude is imposed on the heirs and assigns of the grantee, and in favor of the heirs and assigns of the grantor, it will be bind- ing upon, and may be enforced against, any subsequent pur- chaser of the property with notice.-^ So also the grantor may impose a servitude or condition upon the land which he retains and in favor of the land he sells, but the principle is the same; and when an owner sub- jects his lands to any servitude and transmits them to others charged with the same, any one taking title to such lands with notice of the conditions or restrictions affecting their use or the method of their enjoyment takes subject to the burdens thus imposed^ and, as standing in the place of his grantor, is 18 M. & C. R. R. Co. V. Neighbors, 580; Dismukes v. Halpern. 47 Ark. 51 Miss. 412; Osgood v. Abbott, 58 317. Me. 73; Hubbard v. Hubbard, 97 20 Burbank v. Pillsbury. 48 N. H. Mass. 188; Guild v. Richards, 16 475; Bronson v. Coffin, 108 Mass. Gray (Mass.) 309; Chalker v. 175; Hazlett v. Sinclair, 76 Ind. Chalker, 1 Conn. 79; Willard v. 488; Walsh v. Barton, 24 Ohio St. Henry, 2 N. H. 120. 48; Kellogg v. Robinson, 6 Vt. ii'Kimpton v. Walker. 9 Vt. 191; 276. Clark V. Martin, 49 Pa. St. 289; ••;i Whitney v. R. R. Co., 11 Gray Stines v. Dorman, 25 Ohio St. (Mass.) 359; Clark v. Martin. 49 624 CONDITIONS, LIMITATIONS AND RESTRICTIONS. boimd to do or forbear from doing whatever Lis grantor should do or should not do.22 § 442. Construction of conditions. In the construction of conditions, limitations and restrictions there cannot be said to be any technical rule, but courts are bound in every case to ascertain the Intent of the parties and give effect to the in- strument accordingly.23 A special intent will not usually pre- vail over a general intent; but, it seems, whenever limita- tions, carefully stated, and a general expression are applied in the same instrument to the same subject-matter, the former are made the superior and controlling words of the deed-^-* § 443. Continued — Conditions in avoidance. The rule is well established that a condition to avoid an estate must be taken strictly. It cannot be extended beyond its express terms, and a party who insists upon the forfeiture of an estate under a condition of his own creation must bring himself clearly within the letter.^s No act not embraced within the language can be said to be within the spirit of the condition, nor will such act be substituted for the act prohibited by its terms.^^ In every case the language should be strictly construed, and the limitation or condition have only a literal interpretation. § 444. Continued — When construed as covenants. The tend- ency of modern times is to relax the stricter rules which raise and govern conditions and to construe recitals which limit or restrict the use of property as covenants rather than conditions. Covenants, like conditions, do not depend upon Pa. St. 289; Thurston v. Minke, 32 for a term of years prior to a cer- Md. 487. tain day named therein, and the -- Trustees v. Lynch, 70 N. Y. grantee afterwards and within the 440. limited period executed to a party 23 Hoyt v. Kimball, 49 N. H. 322; a lease of the premises for ninety- Packard v. Ames, 16 Gray (Mass.) nine years, and also, at the same 327. time, gave to him a bond for the 24 Bailey v. Close, 37 Conn. 408. conveyance of the property in fee 25 Jackson v. Silvernail, 15 Johns, after the expiration of the limita- (N. Y.) 278; Snyder v. Hough, 27 tion, and received from the pur- Barb. (N. Y.) 415; Emerson v. chaser the price therefor, held, Simpson, 43 N. H. 473; Voris v. that these acts of the grantee were Renshaw, 49 111. 425. not prohibited by the condition, ^fi Where the grantor in a deed and hence worked no forfeiture of annexed to the grant a condition the estate. Voris v. Renshaw, 49 that the gr.antee should not con- 111. 425. vey the property except by lease CONDITIONS, LIMITATIONS Aimj rtESTRICTIONS. .52.") precise or technical words ;^^ and whatever shows the intent of the parties to bind themselves to the performance of a stipu- lation may be deemed a covenant without i'eji;ard to the form of expression.^*^ A covenant or condition may be created by the same words.-" It is a well-established rule that the recitals in a deed will never be permitted to control the operation of the instrument if the plain intent would be thereby defeated; and, further, that courts are bound in every case to ascertain the intent of an instrument and <;ive it effect accordingly. Hence if a con- dition is plainly manifest it must prevail; but the authorities are united in declaring that a recital only operates as a condi- tion when it is apparent from the whole scope of the instru- ment that it was intended to so operate. But if it be doubtful whether a clause in a deed be a covenant or a condition, courts will incline against the latter construction ;2'J and if the lan- guage employed is not in form either a covenant or condition, the clause will be construed as a covenant rather than a con- dition. A conditional stipulation expressing an agreement, as ''it is expressly agreed and understood," will usually, although operating as a restriction, produce also a covenant personal to the grantee if there be no clause uniting his heirs,^! or run- ning with the land and binding the successors, according to the spirit of the agreement.^- Notwithstanding that the re- striction may be in the most positive and emphatic terms, if it clearly imports an agreement and does not provide for re- entry or forfeiture, it is always to be construed as a covenant 2T Newcomb v. Presbrey, 8 Met. Rep. 175; Parmelee v. R'y Co.. 2 (Mass.) 406; Davis v. Lyman. 6 Seld. (N. Y.) 80; Chapin v. Harris, Conn. 252; Meyers v. Burns, 33 8 Allen (Mass.) 594. Barb. (N. Y.) 401. 'if Gallagher v. Herbert, 117 111. 28 Taylor v. Preston, 79 Pa. St. 160; Hoyt v. Kimball, 49 N. H. 322; 436; Hallet v. Wylle, 3 Johns. (N. Thornton v. Trammell, 39 Ga. 202. Y.) 44; Bull v. Fallett. 5 Cow. -ti Skinner v. Shepard. 130 Mass. (N. Y.) 170. But where a covenant 180; Norris v. Laberee, 58 Me. 260; in form is followed by a clause of Emerson v. Simpson, 43 N. H. forfeiture it will be construed a 475. condition. Moore v. Pitts. 53 N. Y. •'- St. Andrew's Church Appeal. 85; Gray v. Blanchard. 8 Pick. 67 Pa. St. 512; Trustees, etc. v. (Mass.) 284. Cowen. 4 Paige. Ch. (N. Y.) 510. 2» Hartung v. Witte, 18 N. \V. 526 CONDITIONS, LIMITATIONS AND RESTRICTIONS. and never as a condition.^^ On the other hand, although the stipnhition is a covenant in form, yet if followed by a clause of forfeiture it will be construed a condition.^-* § 445. Creation of conditions. A condition must be distin- guished from a merely restrictive stipulation; yet, as has been said, this is not always an easy matter to do. The recital may in effect produce a condition or a covenant, or it may amount to no more than a prohibitory stipulation, which, although partaking somewhat of the nature of each of the two former classes, operates in a manner different from either.^s By long and almost immemorial usage and the repeated adjudications of courts, a condition may be raised by the employment of that term, the usual formula being: ''provided always, and this deed is upon the express condition."^^ These terms, "provided always," "upon the express condition," etc., have frequently been held to create an estate upon condition,^^ unless the context or something in other parts of the deed tends to negative this idea. So, also, the words "if," '*if it shall so happen," or other equivalent expressions, when relat- ing to conditions depending on contingencies, have been taken and held to operate in the same manner. These expressions are given as examples by the elementary w'riters,^^ and are also in common use by the profession.^^ The language em- ployed, however, except as it may tend to disclose intention, is comparatively of little moment; for the intention of the par- ties when apparent will alw^ays control technical terms,^** 33 Anthony v. Stevens, 46 Ga. being such as has a qualification 241; Fuller v. Arms, 45 Vt. 400; subjoined thereto, and which must Thornton v. Trammell, 39 Ga. 202; be determined whenever the quali- Leach v. Leach, 4 Ind. 628. fication annexed to it is at an end. 34 Moore v. Pitts, 53 N. Y. 85; It is a fee because it may possibly Gray v. Blanchard, 8 Pick. (Mass.) endure forever; and it is qualified 284; Ayer v. Emery, 14 Allen because its duration depends upon (Mass.) 69; Hoyt v. Ketcham, 54 collateral circumstances which Conn. 60. qualify and debase the purity of ss Conditional limitations are not the donation. "Wiggins Ferry Co. included in the scope of these para- v. O. & M. R'y Co., 94 111. 83. graphs, and will be treated sepa- 334 Kent, Com., 122; 2 Wash, rately. Real Prop., 3. 3'-' See 4 Kent's Com., 122; 2 39 Hammond v. R'y Co., 15 S. C. Wash. Real Prop., 3. 10; Sohier v. Church, 109 Mass. 1; 3v The estate so granted is some- Hooper v. Cummings. 45 Me. 359. times called a base or qualified fee, 40 Callins v. Lavalle, 44 Vt. 230; CONDITIONS, LIMITATIONS AND RESTRICTIONS. 527 greater regard being had to the manifest intention than to an}' particular words which may have been used in expressing it; and when it is ch'ar that teclinical words liave been used to express ideas different from their technical signification, courts are ever inclined to construe them according to such intent.-*! The use of technical words which in themselves import con- ditions will ordinarily be held to create the same, for teclinical words are presumed to be used in their legal sense unless there is a plain intent to the contrary ;^2 ^viiile the addition of a clause of re-entry or forfeiture unmistakably discloses the nature of the recital.^^ But this clause is by no means neces- sary if the character of the condition is otherwise estab- lished, for forfeiture follows a condition subsecjuent upon its breach by operation of law;"*^ yet the presence or absence of this clause has an important bearing upon the question wheth- er the recital constitutes a condition or a covenant or simply a stipulation, and may be considered with other matters in so determining.'*^ It may be stated, therefore, that no particular form of words is necessary to create a condition, and that the only essential feature is that the intention so to create shall be clearly ex- pressed in some words importing ex vi termini that the vesting or continuance of the estate or interest is to depend upon a contingency provided for,^^ The provision for re-entry is the distinctive characteristic of an estate upon condition; and when it is found that by any form of expression the grantor has reserved the right upon Episcopal City Mission v. Apple- lowed that effect when the inten- ton, 117 Mass. 326; Krantz v. Me- tion of the grantor, as manifested Knight, 51 Pa. St. 232; Saunders v. by the whole deed, is otherwise. Hanes, 44 N. Y. 253. Episcopal City Mission v. Appleton, 41 R. R. Co. V. Beal, 47 Cal. 151; 117 Mass. 326. Churchill v. Reamer, 8 Bush (Ky.) « Emerson v. Simpson, 43 N. H. 256. 475. •«2 Butler V. Huestis, 68 111. 594; •»< Jackson v. Allen, 3 Cow. ( N. France's Estate, 75 Pa. St. 220. Y.) 220; Gray v. Blanchard. 8 While the words "upon condition," Pick. (Mass.) 284; Osgood v. Ab- in a conveyance of land, are apt bott, 58 Me. 73. words to create a condition, any 4' Hartung v. Witte, 18 N. W. breach of which will forfeit the Rep. 175. estate, yet they are not to be al- ^^ Lyon v. Hersey, 103 N. Y. 264. 528 CONDITIONS, LIMITATIONS AND RESTRICTIONS. tlie haj)])ouin^ of any event, to re-enter and thereby revest in himself his former estate, it may be construed as such.'*'^ Where certain clauses clearly constitute conditions, other stipulations, not put in the form of conditions, will generally be taken as merel^^ constituting covenants;'*^ and the rule is that, in deciding between covenants and conditions in doubtful cases, the writing shall be held to be a covenant, upon the theory that a condition, as tending to destroy the estate, would be less favorable to the grantee. But where the terms are dis- tinctly and plainly terms of condition, where the whole pro- vision precisely satisfies the requirements of the definition, and where the transaction has nothing in its nature to create any incongruity, there is no room for refinement and no ground for refusing to assign to the subject its predetermined legal character.^*^ The law attaches to the act and ascribes to it a definite significance; and the parties cannot be heard to say, where there is neither imposition, fraud nor mistake, that, al- though they deliberately made a. condition and nothing but a condition, they yet meant that it should be exactly as a cove- nants*^ § 446. Forfeiture — Revesting of estate. A mere breach of any or all of the conditions upon which an estate has been conveyed will not have the effect to revest the title in the grantor.51 He has an option to declare a forfeiture, but this right he may waive either by express act or passive acquies- cence.s2 ^he authorities are unanimous in declaring that to render the breach effectual and revest an estate forfeited as for conditions broken, requires some action on the part of the grantor. If he is not in possession he must make an entry, or by some act equivalent thereto assert a continual claim, 47 Atty-Gen'l v. Merrimack Co., "^i M. & C. R. R. Co. v. Neighbors, 14 Gray (Mass.) 586. 51 Miss. 412; Kenner v. American 4s St. Louis V. Ferry Co., 88 Mo. Contract Co., 9 Busli (Ky.) 202; 615. Guild V. Richards, 82 Mass. (16 49 Merrit v. Harris, 102 Mass. Gray) 309; Osgood v. Abbott, 58 326; Allen v. Florence, 16 Johns. Me. 73. (N. Y.) 47; Blanchard v. R. R. Co., •'',2 Coon v. Brickett. 2 N. H. 163. 31 Mich. 51; Wheeler v. Walker, 2 The waiver of a forfeiture may be Conn. 196; Mead v. Ballard, 7 inferred from the failure of the Wall. (U. S.) 290. party entitled to the estate to re- T'O Blanchard v. R. R. Co., 31 enter or assert some claim in a rea- Mich. 43. sonable time after the termination CONDITIONS, LIMITATIONS AND RESTRICTIONS. 529 manifest iug a determination to take advantage of the breach ;'^3 if in possession, he must in some manner evidence an intent to hold possession by reason of the breach/'^ lentil this has been done the grantee holds his estate, liabh' only to be de- feated, but not actually determined by a forfeiture/'"'' A simple entry ujton the land, made with intent to forfeit the grant, accompanied by some unequivocal act or statement, will be sufficient to work a forfeiture;'"''^ but, as the intention to forfeit is the vital and controlling principle, such intention must in every case afiirmatively appear/''^ An actual entry, however, does not seem to be essential; for the breach of con- dition has the etfect to create a right of action which the grantor, even without an actual entry or a previous demand, can enforce by a suit for the land.''^ § 447. Who may take advantage of condition broken. By the rules of (he common law, which discourages maintenance and litigation, nothing that lies in action, entry or re-entry, can be granted over; and while this rule has in many instances been greatly relaxed and changed, it still holds good with re- gard to conditions, and no grantee or assignee of a reversion can take advantage of a re-entry by force of a condition broken. The privilege is confined to the grantor and his heirs, who alone may take steps to forfeit the estate; and if they neglect or refuse so to do, the title remains in the grantee for all j)ractical purposes unimpaired.^^ of the estate; and particularly broken, and there notified the where the grantee is permitted to grantee that possession would be make valuable improvements after taken for the breaking of a con- the condition is broken. Kenner v. dition in the deed, held, that these American Contract Co., 9 Bush acts were a sufficient entry to re- (Ky.) 202. vest the estate in her. Jenks v. 53 M. & C. R. R. Co. V. Neighbors, Walton, 64 Me. 97. 51 Miss. 412; Osgood v. Abbott. 58 st Thus, it was held that the sim- Me. 73. pie act of turning cattle upon land ^* Hubbard v. Hubbard, 97 Mass. while unimproved and uninclosed. 188. and using the land while in that 55 Stone V. Ellis, 9 Cush. (Mass.) state as a means of access to ad- 95: Memphis, etc., R. R. Co. v. joining land, was not such an entry Neighbors, 51 Miss. 412; Spofford for breach of condition as would V. True. 33 Me. 283; Spect V. Gregg, revest the estate in the grantor. 51 Cal. 198. Guild v. Richards. 82 Mass. 309. .'.o Where a grantor in a condi- 5s R^eh v. Rock Island, 97 U. S. tional deed went upon the land 693. with two witnesses for condition 5o Smith v. Brannan, 13 Cal. 107; 34 530 CONDITIONS, LIMITATIONS AND RESTRICTIONS. § 448. Who may perform. Generally, any one may perform a condition who Las an interest in it, or in the land whereto it is annexed;''*^ and when a condition is once performed, unless it is one which recjuires coutinuous performance, it is tlience- forth entirely gone, and the thing to which it was before an- nexed becomes absolute and wholly unconditional.^^ § 449. Prevention of performance. The rule at law is that if a condition subsequent be possible at the time of making it, and becomes afterwards impossible to be complied with by the act of God, or the law, or the grantor, the estate, once vested, is not thereby divested, but becomes absolute.^^ g^^ equity maA^ apply this rule in the interests of justice merely to the extent of enlarging the time for performance, where it has been hindered at the time when it should have been exe- cuted.'^s If performance is prevented by the act of the grantor the grantee is excused.*^* § 450. Time of performance. If no time is mentioned for the performance of the condition the general rules relating to agreements would seem to properly apply, and, notwith- standing that it has been intimated the grantee under such circumstances might have his whole life-time,^^ it would ap- pear that the act should be performed within a reasonable time.^^ The circumstances of the grant and the situation of the parties will, in most instances, be a sufficient guide to point out what is a reasonable time.^^ Where compliance with the condition requires a continuous performance, and such per- formance is discontinued, the same must be resumed within Gray V. Blanchard, 8 Pick. (Mass.) 64 Houghton v. Steele, 58 Cal. 284; Merritt v. Harris, 102 Mass. 421; Jones v. R. R. Co., 14 W. Va. 328; Hooper v. Cummings, 45 Me. 514; Ellthart Car Works v. Ellis, 359; Norris v. Milner, 20 Ga. 563; 113 Ind. 215. Towne v. Bowers, 81 Mo. 491. 65 Hamilton v. Elliott, 5 Serg. & CO Joslyn v. Parlin, 54 Vt. 670. R. (Pa.) 383. 61 Vermot v. Gospel Society, 2 es Hayden v. Stoughton, 5 Pick. Paine (C. Ct.) 545. (Mass.) 528; Ross v. Tremain, 2 62 Hughes V. Edwards, 9 Wheat. Met. (Mass.) 495. (U. S.) 489; Merrill v. Emory, 10 67 Land was devised to a town Pick. (Mass.) 507; Gadberry v. for the purpose of building a Shepard, 27 Miss. 203. schoolhouse, and upon condition «■! Davis v. Gray, 16 Wall. (U. S.) subsequent that it should be built 203, upon a certain spot. Held, that CONDITIONS, LIMITATIONS AND RESTRICTIONS. 531 a reasonable time in order to prevent a forfeiture of the es- tate.«8 Where a ^^rant is made for a specific purpose, not creating a teclmical condition, as wlicre no words of forfeiture or re- entry are used, it would seem that where the grant is uncon- ditional as to tile lime when the land granted must be used, and without limit as to the time when tlie use must begin, it cannot be forfeited for non-user, for the parties not having annexed any conditions to the grant in this r(^sj)ect at the time it was made, courts will not undertake to supply them by implication.''^ § 451. Conditions in restraint of alienation. By the iron rule of the feudal law the grantee of a feud possessed no power of alienation, and upon his death the land reverted to his superior lord. This rigorous rule in time became modified so as to permit an inheritance by the grantee's heirs, but with the right of reversion on the extinction of his blood; and as there always remained in the grantor a possibility of a re- verter, this was considered such an interest in the land as entitled him to restrict the power of alienation. And so the law remained until the enactment of what is known as the statute quia eniplores.'^^ This statute cut off the possibility of reverter by giving to ever}- freeman the right to sell his lands at his ow^n pleasure, so that his feoffee should hold them of the chief lord by the same service and customs as the feoffor held them before. The possibility of reverter having thus been destroyed, the grantor's interest in the land ceased, and he was no longer able to prohibit the right of alienation. this condition was broken by a neg- church lot to remain vacant for lect for twenty years to comply more than three years. Held, that with the condition. Hayden v. the condition was broken, although Stoughton, 5 Pick. (Mass.) 528. the proprietors voted that the tiJ^ Adams v. Copper Co., 7 Fed. church lot should be reserved for Rep. 634. A lot of land was granted the erection of a church whenever on condition that it should be held they might deem it expedient, for the support of the minister Austin v. Cambridgeport Parish, preaching in a certain church, or 21 Pick. (Mass.) 215. in any church subsequently to be "o Raley v. Umatilla County, 15 erected upon the same site; the Ore. 172. proprietors of the church took it to Enacted in 1290, 18 Edw. I., down and erected a new one upon ch. 1. a different lot, and allowed the 532 CONDITIONS, LIMITATIONS AND RESTRICTIONS. Since the enactment of the statute quia emptor es, therefore, no conditions or restrictions in a conveyance of the fee which prohibits tlie alienation of hind have been allowed to have any effect, and, being- repugnant to the estate granted, are consid- ered void upon that ground alone."^! This principle is well establislied in the jurisprudence of every xVmerican state, and has on several occasions been re-affirmed by the supreme court of the United States. But while no dissent has been expressed to the rule in a general sense, an entire harmony does not prevail on the sub- ject of partial restraints — that is, restraints against alienation for a limited time, or to certain persons, or to any but certain persons; and while some cases strenuously insist that the power of disposal cannot be arrested for a single day ,"^2 others insist that such restrictions, if reasonable, are valid and of binding effectJ^ This latter class of cases follow mainly the modern English precedents, and are available, if at all, only in case of gift or devise; but it is diflScult to perceive, on principle, why a partial restraint is not just as incompatible with the idea of complete ownership as a general restraint. To render a restraint of this character effective it is always necessary that there be a reversion or limitation over, for otherwise there would be no one to enforce obedience, and the prohibition would be wiiolly nugatory.^* So, too, the intention to create a condition must be apparent; the words "upon con- dition," or other words of equivalent meaning, should appear, or there should be a clause providing for forfeiture and re- entry, these being the usual indications of an intent to create 71 For a very elaborate and ex- '2 Mandlebaum v. McDonnell, 29 haustive discussion of this ques- Mich. 78; and see Oxley v. Lane, 35 tion, see Mandlebaum' v. McDon- N. Y. 347; Anderson v. Cary, 36 nell, 29 Mich. 78. The same sub- Ohio St. 506. ject is very fully considered also in "3 Cowell v. Springs Co., 100 U. S. De Peyster v. Michael, 6 N. Y. 467. 55; Hunt v. Wright, 47 N. H. 396; See, also, McCullough v. Gilmore, Langdon v. Ingram's Guardian, 28 11 Pa. St. 370; Bank v. Davis, 21 Ind. 360; Simmonds v. Simmonds, Pick. (Mass.) 42; McCleary v. 3 Met. (Mass.) 562; and see Gray Ellis, 54 Iowa 311; Norris v. Hens- v. Blanchard, 8 Pick. (Mass.) 284; ley, 27 Cal. 439; Anderson v. Carey, Dougal v. Fryer, 3 Mo. 40. 36 Ohio St. 506; Doebler's Appeal, 7» Pace v. Pace, 73 N. C. 119; Til- 64 Pa. St. 623; Smith v. Clark, 10 linghast v. Bradford, 5 R. I. 205, Md. 186. CONDITIONS. LIMITATIONS AND RESTRICTIONS. 533 a couditiou «ub.se(]iKUt. If none of these ciicuinstances are present, the mere fact that the deed is made in whole or in part upon the tousideration that the j^rantee shall not for a certain period sell or convey the property, would not be suffi- cient to create a condition. § 452. Continued — With respect to persons. While the general principle thai the conveyance of an estate in fee- simple imports absolute ownership in the grantee, and that any restriction or condition imposed inconsistent with or re- pugnant to the estate so granted is void, seems to have been adojited as a universal rule of law, it has nevertheless been held in England from very early times that partial restraints may properly be annexed to a grant of the fee, and that the grantee may not disregard such partial restraint under pen- alty of forfeiture of his estate. This doctrine has also been recognized in some of the American states, and in a number of instances it has been held that a condition not to alien to a particular person or persons is valid,''^^ though it would seem that a condition not to alien except to particular persons would be inoperative and void.'" From these authorities the rule would seem to be that a condition is valid if it permits alienation to all the world with the exception of selected indi- viduals or classes, but is invalid if it allows of alienation only to selected individuals or classes."^ The authorities, how- ever, are not agreed even upon these propositions, and the re- ports abound in many conflicting decisions. § 453. Continued — With respect to time. Restraints with resi)ect to time have in several instances been held good and the conditions sustained,"^ provided the restriction is limited to a "reasonable period ;"^^ but the weight of authority would seem to be against the validity of restraints upon alienation, however limited in time.'^*^ 75 Cowell V. Col. Springs Co., 100 ts Stewart v. Brady. 3 Bush U. S. 55; Gray V. Blanchard. 8 Pick. (Ky.) 623; Dougal v. Fryer. 3 Mo. (Mass.) 284; Jackson v. Schutz, 18 40; Langdon v. Ingram, 28 Ind. Johns. (N. Y.) 174; Jauretche v. 360. Proctor, 48 Pa. St. 466. '••> Gray v. Blanchard, 8 Pick. 284. TO Anderson v. Cary, 36 Ohio St. so Roosevelt v. Thurman, 1 Johns. 506; McCullough v. Gilmore. 11 Pa. Ch. (N. Y.) 220; Oxley v. Lane. 35 St. 370. N. Y. 340; Mandlebaum v. McDon- '' See Gray, Restraints on Alien- nell, 29 Mich. 78; Anderson v. Cary, ation, 22, 36 Ohio St, 506. 534 CONDITIONS, LIMITATIONS AND RESTRICTIONS. But while the rule prohibiting restraints on alienation is well established it is not without apparent exceptions, and one of the most marked of these exceptions occurs where the grant is for a charitable use. In such a grant the rule against per- petuities will not apply and the donor may impose any condi- tion which shall prevent the diversion of the trust estate from the uses upon which it was given, even though he thereby ren- ders the land inalienable.^i This result follows, however, only when the grant or trust is made by way of gift. The trust, in such case, being the creation of the donor, he may impose upon it such character and qualifications as he may see fit, and equity will protect and enforce same. But when the grant is made upon adequate consideration, as where conveyance is made to a religious society for a fair price paid, notwith- standing that the habendum of the deed be to hold for specific uses with a restriction against alienation, the inseparable incidents of a fee will attach and the condition will be void.^^ § 454. Continued — With respect to prescribed and prohib- ited uses. A grant of laud for a prescribed use does not nec- essarily imply a condition, although such grants are usually coupled with conditions, and not infrequently with stipula- tions for re-entry and forfeiture. But the rule is fundamental that an estate upon condition cannot be created by deed, ex- cept where the terms of the grant will admit of no other rea- sonable interpretation; therefore, merely reciting in a deed made upon an expressed consideration, however small, that the grantee is to do certain things or that the property is to be used for certain specified purposes, is not an estate upon condition, not being in terms upon condition, nor containing a clause of re-entry or forfeiture.^^ Numerous cases may be found in the books where this doctrine has been recognized and applied; and while courts will usually lend their aid to effectuate and carry out expressed intentions, yet as the rule 81 Perin V. Cary, 24 How. (U.S.) use of school purposes only was 465; Jones v. Habersham, 107 U. S. held not to create a condition; Car- 174; Mills v. Davision, 54 N. J. Eq. ter v. Branson, 79 Ind. 14, where 659. property was deeded to the use of 82 Magie v. Church, 13 N. J. Eq. Society of Friends as long as 77. needed; and see Packard v. Ames, s'' Taylor v. Binford, 37 Ohio St. 16 Gray (Mass.) 327; M. E. Church ?62, where a conveyance for the v. Public Ground Co., 103 Pa. St. CONDITIONS, LIMITATIONS AND RESTRICTIONS. 53.j iu I't'j^ard to lortVitures for bri'iicli of condiliou is ouc of the teclmical rules of the common law which has uever been favored by the courts of this country, and which has always been strictly construed whenever invoked, unless it clearly appears that the prescribed use was intended to be a condi- tion subseciuent created by apt words, courts will refuse to entertain jurisdiction for forfeiture or re-entry, and in like manner will refuse to supply conditions by implication when they were not annexed at the time the *,'rant was made.''* Where, however, the deed provides that the land shall be forfeited and revert if used for other puri)0ses than those specified, a condition is thereby created,^'' and upon i)roof of breach the j^rantor may re-enter and repossess the land,**** § 455. Continued — Intoxicants. The current of modern au- thority sustains the proposition that, where a deed conveys land in fee, but upon the express condition that neither the grantee nor his heirs or assigns shall ever sell or permit to be sold any intoxicating liquors upon the premises, and that the grant shall be forfeited and the land revert back to the grantor whenever such condition shall be broken, the estate so convej'ed is an estate upon condition subsequent; that the condition is valid, and until broken runs with the laud, and is binding not only upon the grantee himself but also upon his assigns, and that the land may be recovered back by the grantor from the grantee or from any assignee of his who may commit a breach of said condition.*^" The general theory upon which restrictions of this character are sustained seems to be, that a grantor in disjtosing of his property has a right to imj)ose such conditions as shall pre- vent its use by the grantee iu a manner calculated to diminish the value of his remaining land or impair its eligibility for other purposes. It would follow, therefore, that the grantor 608; Brown v. Caldwell, 23 W. Va. -^fi phunb v. Tubbs. 41 N. Y. 442; 187; Thornton v. Trammell. 39 Ga. Collins v. Marcy, 25 Conn. 242; 202. Gray v. Blanchard. 8 Pick. (Mass.) S4 Raley v. Umatilla County, 15 284; Sperry v. Pound, 5 Ohio 189. Ore, 172; and see Emerson v. Simp- »<" O'Brien v. Wetherell, 14 Kan, son, 43 N. H. 475; Gadberry v. 616; Plumb v. Tubbs, 41 N. Y. 442; Sheppard. 27 Miss. 203; Wood- Cowell v. Colorado Springs Co., 100 worth V, Payne. 74 N. Y. 196. U. S. 55; Collins v. Marcy. 25 Conn. «•'• Hoyt V. Ketcham, 54 Conn. 60; 242; Sioux City, etc.. R. R. Co. v. Gilbert v. Peteler, 38 N. Y. \65, Singer. 49 Minn. 301; Chippewa 53G CONDITIONS, LIMITATIONS AND RESTRICTIONS. should preserve a consistency in disposing of tlie remaining land, and that all deeds of contiguous or adjacent property should contain the same restrictions. Hence, if a deed with restrictive conditions has been made the grantor should not bv' permitted to afterwards sell an adjoining parcel without re- strictions and thereby diminish the value or impair the eligi- bility of his former grantee's property by insisting upon the observance of the restriction, and it has been held, that should such deeds be made, even though the restriction may have been omitted from such subsequent deeds by mistake, their efifect would be to create a waiver of the right of forfeiture as for condition broken.^^ § 456. Conditional limitations. An estate upon condition differs from what is known as a conditional limitation, or, as it is sometimes called, a determinable fee. The estate in either case is conditional, but the distinction is that the former, while liable to defeat, yet requires some act to be done by the per- son who has the right to avail himself of the condition, and is not in fact determined until there has been an entry or some other equivalent demonstration; the latter, on the con- trary, is determined by operation of law without any act by any person, and ceases to exist upon the happening of the event by which its limitation is measured.^'' In the former the reservation can only be made to the grantor or his heirs, who alone can take advantage of a breach of the condition,^^ while a stranger may have the benefit of a limitation.^^ § 457. Restrictive stipulations. There is another class of recitals, which, although partaking of the nature and employ- ing much the same language as both covenants and conditions, has yet been accorded an operation and effect different from either. Neither legislative nor judicial learning has yet given them a distinctive name, and perhaps they cannot be better Lumber Co. v. Tremper, 75 Mich. 58 Me. 73; Wheeler v. Walker, 2 36; Bad River Lumbering Co v. Conn. 196. Kaiser, 82 Wis. 166. < fo Smith v. Brannan, 13 Cal. 107; 88 Jenks V. Pawloski, 98 Mich. Gray v. Blanchard, 8 Pick. (Mass.) 110. 284; Hooper v. Cummings, 45 Me. 89 Brattle St. Church v. Grant, 3 359. Gray (Mass.) 146; Miller v. Levi, si Southard v. R. R. Co., 26 N.J.L. 44 N. Y. 489; Henderson v. Hunter, 1; Owen v. Field, 102 Mass. 90. 59 Pa. St. 340; Osgood v. Abbott, CONDITIONS, LIMITATIONS AND RESTRICTIONS. 537 described than as .slipulalujus operatiiij^ by way ol" restricliou. In some instances such recitals have the eilect of real or per- sonal covenants, but more freciuently they are taken as part of the description of tlie estate granted, and which preclude the grantee and those claiming under him from doing any act in violation of the restrictions.-'- This is particularly true where the recital creates rights in the nature of easements for the benefit of the land retained."'-^ In such recitals the use of the technical words "conditioned," "provided, however," etc., have no other or further eilect than to produce a restric- tion whicli those who take the estate are bound to observe. No forfeiture follows upon the violation or breach of the stip- ulation; nor will the grantor ordinarily have a right of action, as for covenant broken, but equity will restrain the violation or enforce the performance of the stipulation according to its terms."^ This procedure is most in accordance with the sjjirit of the times, and is manifestl}' the true remedy for the breach of even an acknowledged condition subsecpient. The general effect of this class of stipulations, together with their practical application, will be treated in the subsequent paragraphs in connection with the other phases of the subject. 55 458. Restrictions on use. As has been shown, so long as the benelicial enjoyment of an estate conveyed is not mate- rially impaired, an}^ reasonable condition prescribing the mode of its use will be valid. A covenant in restraint of trade is valid if it imposes no restriction upon one party which is not beneficial to the other, and was induced by a consideration which made it reasonable for the parties to enter into; and the covenant will be enforced if a disregard thereof by the covenantor will work injury to the covenantee."^ And so, where a grantee binds himself by a covenant in his deed limit- ing the use of land purchased in a particular manner so as not to interfere with the trade or business of the grantor, the cov- enant is valid and binding not only as between the parties but "2 Fuller V. Arms. 45 Vt. 400; "^ Trustees v. Cowen. 4 Paige. Ch. Warren v. Meyer. 22 Iowa 351. (N. Y.) 510; Ayling v. Kramer. 133 »•' Dorr V. Harrahan, 101 Mass. Mass. 12. 531; Phoenix Ins. Co. v. Continental o'' Chappel v. Brockway. 21 Wenrl. Ins. Co.. 14 Abb. Pr. (N. Y.) N. S. (N. Y.) 157: Parker v. NiRhtineri'o. 26G; Seymour v. McDonald. 4 (5 Allen (Mass.) 341; Burhank v. Sandf. Ch. (N. Y.) 502. Pillsbury. 48 N. H. 475. ^38 CONDITIONS, LIMITATIONS AND RESTRICTIONS. liit'ir privies as well, uud may be eul'orced against a grantee of the covenantor taking title with notice of the restriction; and this although the assignees of the covenantor are not mentioned or referred to.'^" Nor does it seem necessary, in order to charge third parties, that a covenant of this character should be one technically running with the land; it is suliicient that subsequent pur- chasers have notice of it. It is said that this doctrine and the cases which support it proceed upon the principle of prevent- ing a party having knowledge of the just rights of another from defeating such rights, and not upon the idea that the engagements enforced create easements or are of a nature to run with the land; and in the exercise of its ample powers a court of equity may impose the burden of a covenant relating to lands on the alienee of such lands, on a principle altogether aside from the existence of an easement or the capacity of such covenant to adhere to the title.^"^ One of the difficulties connected with this branch of the subject is the indefinite character frequently given to restric- tions of this kind. Thus, it is common to stipulate that the premises shall not be used for any ''nauseous" or ''offensive" trade, or in a manner calculated to "disturb the quiet of the neighborhood." This leaves a wide margin for construction and has resulted in a number of seemingly contradictory de- cisions.^^ § 459. Building restrictions. An important class of the stipulations now under consideration is found in the clauses 96 Trustees v. Lynch, 70 N. Y. 440. other without covenants on the As where N. was the owner of cer- part of the latter, who, however, tain lands containing deposits of had noticebeforetakinghis deed of building sand, and the sale of the the covenant in the deed to his sand constituted his only business, grantor. Said third person opened S. offered to purchase a small par- a pit on his land and sold sand eel of the land, but N. declined to therefrom. Held, that an action sell on the ground that it would was maintainable to restrain such interfere with his business. S. sale. Hodge v. Sloan, 107 N. Y. agreed to purchase, covenanting 244. not to sell any sand from off the 97 Hodge v. Sloan, 107 N. Y. 244. parcel. N. thereupon sold and con- ss See Tobey v. Moore, 130 Mass. veyed, his deed containing such a 448; Dorr v. Harrahan, 101 Mass. covenant on the part of the grantee. 531. S. subsequently conveyed to an- CONDITIONS, LIMITATIONS AND RESTRICTIONS. MO often inserted in deedK to hcciiic iiiiiroriuilv in strc<-i fronts, a pleasing correspondence in the aicliitect iiic of rontiguous buildings, or to secure liglit, ventilation oi- unobst lucled views of a neigliborliood. Sucli clauses liave a wide lange of oj)ei-a- tion and a great diversity of cliaradei-, luil all conu' as a rule under the generic term "building restrictions." They are de- signed ordinarily to i)revent such use of the j)reTnises by the grantee and those claiming under him as might diniinisli tlic value of the residue of the land belonging to the gi-antor (tr impair its eligibility for particular i)urposes, and in this re- spect they partake somewhat of the character of a reservation annexed to and forming a part of the description of the estate. In framing such clauses provision is rarely made either for forfeiture or re-entrj, and even where such provision is made, its operation will usualh' be denied where other ade(]uate rem- edies exist. The exact effect to be given to this class of stipulations is not well determined, but it seems clear that they do not fall within the true definition of a condition, which, on breach, carries with it the right of reverter. They have been held to constitute neither a condition precedent nor subsecpient, nor a covenant that the grantee would abide by their terms; but to be rather a part of the description of the estate, and to pre- clude those claiming under the grantee from making erections on the land in violation of the restrictions.^ The general tendency of the decided cases seems to lean toward the adoi)tion of a strict rule of construction of all clauses of this character, and many instances may be found in the books where apparently small and trivial violations of im- posed restrictions lunc been rigidly corrected,- Indeed, the 1 So held with reference to a cupied by" the grantor. But this clause in a deed of warranty con- decision seems to have been veying land by metes and bounds, reached largely on the principle "conditioned that no building or that the obstruction of the view erection is ever to be made on said from the grantor's dwelling-house land except a dwelling-house, and was a proper subject of reserva- out-buildings for the same; . . . tion, and such effect is given to the also that no building is to be stipulation. Fuller v. Arms, 45 Vt. erected on said land which shall 400. extend more than twenty feet - Thus, under a stipulation that southerly of the main body of the a passage-way shall be kept open dwelling-house now owned and oc- and maintained of a certain width, 540 CONDITIONS, LIMITATIONS AND RESTRICTIONS. question of injury or damage does not enter into the enforce- ment of a building restriction; it is enough that there has been a violation of the terms of the agreement, and courts will grant relief against same without inquiring whether the erec- tion will be injurious or beneficial, on the ground that a cove- nantee has a right to have the actual enjoyment of property as stipulated for by him.^ Building restrictions are usually inserted at the instance of the grantor, and, in effect, serve to impose a condition in the nature of a servitude or easement upon the land that is sold for the benefit of the land which the grantor still retains; but the condition may be and sometimes is imposed upon the land that is retained and in favor of the land that is sold; and where an owner creates a servitude of this character on his own lands, binding by express words his heirs and assigns, such restriction is in the nature of a contract, and may be enforced against any assignee with notice.* § 460. Prohibited employments. Conditions imposing lim- ited restrictions upon the use of granted property or the method of its enjoyment, however much they may allect the value or the nature of the estate, are generally upheld and enforced where they do not tend to limit or destroy its alien- able or inheritable character. This is particularly true with reference to the employment of the premises for purposes obnoxious to the senses or to health. In this way slaughter- houses, soap factories, distilleries, livery-stables, tanneries and machine-shops have in a multitude of instances been excluded from particular localities, which, thus freed from unpleasant sights, noxious vapors or disturbing noises, have become de- bay windows may not be erected 140 Mass. 76. And see Buck v. over the passage-way. Attorney- Adams, 45 N. J. Eq. 552. Gen. V. Williams, 140 Mass. 329. 3 Cornish v. Wiessman. 56 N. J. So, also, land was conveyed with Eq. 610; Atty-Gen. v. Algonquin the restriction that no building Club, 153 Mass. 447. should be erected "within twenty * Thus, a covenant with the feet of C. street." The front wall grantee, "his heirs and assigns" in of a building erected was twenty a deed of conveyance, binding the feet from C. street, but a part of grantors, "their heirs and assigns," the roof and a dormer window not to build any improvement in- were less than twenty feet from ferior to certain specified qualifica- the street. Held, a violation of tions on any of certain lots retained the restriction. Bagnall v. Davies, by the grantors, constitutes an in- CONDITIONS. LIMITATIONS AND RESTRICTIONS. 541 sirable as i)lacc'H for residence of families.'' Thai such a pur- pose is a lej^ilimate one, and may be carried out consistently with the rules of law by reasonable and proper covenants, conditions or restrictions, cannot be doubted.^ Purchasers may acquire by their deeds tlie right to insist upon the ()bs< Jackson v. Stevenson, 156 87 N. Y. 311; Jackson v. Stevenson, Mass. 496. 156 Mass. 496; Page v. Murray, 46 's See Walters v. Bredin, 70 Pa. N. J. Eq. 325. St. 235; Tracy v. Hutchins, 36 Vt. 17 Amerman v. Deane, 132 N. Y. 225; Berryman v. Schumaker, 67 355. Tex. 312; Hubbard v. Hubbard, 97 Mass. 188. 54-1 CONDITIONS, LIMITATIONS AND RESTRICTIONS. agreement will be construed a covenant, sounding in damages only.2o Attempt is sometimes made to give to conveyances of this character the operation and effect of mortgages, upon the theor^^ that any conditional convej'ance given for the perform- ance of an obligation partakes of the essential character of a mortgage; but the better and prevailing opinion would seem to be that the rules of law relating to mortgages have little or no application to them. It is said that wherever the condi- tion, when broken, gives rise to no claim for damages what- ever, or to a claim for unliquidated damages, the deed is not to be regarded as a mortgage in equity, but as a conditional deed at common law. It has the incidents of a mortgage only to a limited extent; and the party, if relieved by a court of equity from forfeiture resulting from the non-performance of the condition, will not be relieved as in case of a mortgage. It is not, however, intended to say that the same principle of justice which has led courts of equity to establish the system of relief from forfeiture in the case of mortgages will not entitle a party to analogous relief in a case where the design of the parties is to make a conveyance by w^ay of security. Yet, even where a bond or other writing is executed contempora- neously with the conveyance, the grant is not regarded as a mortgage, but effect is given to it according to its manifest intent, which is a conveyance with condition subsequent. Where the agreement is construed to be a condition subse- quent a breach of the same carries with it the usual conse- quences that follow other conditions subsequent, and entitles the grantor to enter and reclaim i)ossessiou after demand of performance and a failure to comply.^i A demand is usually an essential prerequisite,^^ for mere neglect to perform the condition does not of itself determine or defeat the estate. At best such a course only exposes it to be defeated and deter- mined at the election of the grantor; for the rule is general that, to effect a forfeiture, there must be a demand on the part of the persons entitled to insist upon its performance, whether the condition consists in the payment of money or the per- 20 Martin v. Martin, 131 Mass. 21 Lindsey v. Lindsey, 45 Ind. 547; Bortz v. Bortz, 48 Pa. St. 386; 552; Bradstreet v. Clark, 21 Pick. Harris v. Shaw, 13 111. 456; Galla- (Mass.) 389. her v. Herbert, 117 111. 160. 22 Risley v. McNiece, 71 Ind. 434. CONDITIONS, LIMITATIONS AND RESTRICTIONS. 545 formauce of hoiiic other act, and a refunal on the part of the person in whom the title is vested.^s The hmjjjiiage used in such deeds will, liowever, be; deemed to have created a covenant I'alher than a condition whenever such construction is practicable,^-* while the rule is general that a coui-t of ('(piily will never lend its aid to divest an estate for a breach of a condition subse(]nent, but where a conijx'nsa- tion can be made in mone}' will relieve against such forfeit- ui-es and compel the coniplainlii^' piU'ty to accept .1 reasonable conii)eusation in money. Where, therefore, the language is reasonably susceptible of the construction that the parties intended to secure the jiayment of stipulated or ascertainable sums of money during the life-time of the grantor, no condi- tion subsequent will be deemed to have been created. If a stipulated amount and the manner of its paj'ment formed one of the clauses of the deed the grantor would be entitled to have a lien declared in his favor for the payment of such amount by the grantee or his assigns, the record of the deed being notice to all persons of the reservation contained therein in favor of the grantor.^^ A substantial compliance with the terms of a contract of maintenance is all that is usually required of the grantee,-*' while the beneficiary may waive performance by refusing to receive the support.-^ In such event the grantee will be re- leased from the obligation of further performance.-^ § 464. Conveyance for specific use. Aside from the re- strictive stipulations often inserted in deeds of absolute con- veyance, the effect of which has been considered, grants are often made upon an express limitation or a specific designa- tion of the use for which the property is to be employed, and either expressly or by implication prohibiting its use for other purposes. Such conveyances are clearly in the nature of con- ditional grants. It would seem, however, where property has been conveyed for a specific purpose, that an hahcndum, "to have and to hold,'' etc., "for the use aforesaid," cannot be con- 23 Cory V. Cory, 86 Ind. 567. 26 Bresnahan v. Bresnahan, 46 24Gallaher v. Herbert, 117 111. Wis. 385; Joslyn v. Parlin, 54 Vt. 160. 670. 25 Gallaher v. Herbert, 117 111. 27 Boone v. Tipton, 15 Ind. 270. 160; and see Berryman v. Schu- 2s Clark v. Barton, 51 Ind. 165. maker, 67 Tex. 312. 35 5-lG CONDITIONS, LIMITATIONS AND RESTRICTIONS. strued as a condition in the grant or a limitation of the.es- tate^"; nor will the addition of words to the description of the property indicating the character of the use to which the property is to be put of themselves create a condition subse- quent.30 Where a conveyance of land to a religious or eleemosynary corporation is absolute, without condition or reservation, it creates no trust beyond that general duty which the law puts upon a corporation of using its property for the purposes con- templated in its creation. That sort of trust is not one which fastens upon the land and inheres in the title, going with it where it passes, or restraining alienation, but is founded solely upon the corporate character of the grantee. The title being absolute, the corporation may transmit it to its own vendee. When this occurs the proceeds take the place of the 29 Ward V. Screw Co., 1 Cliff. (C. Ct.) 565; Raley v. Umatilla County, 15 Ore. 172; Farnham v. Thomp- son, 34 Minn. 330. In Harris v. Shaw, 13 111. 456, a deed was made to certain persons therein named as county commissioners. The consideration was the location, on the land therein described, of the county seat. The habendum clause was in these words: "To have and to hold the same, and all and singular, the premises above men- tioned, and every part and parcel thereof, with the appurtenances, unto the said county commission- ers for Tazewell, or their success- ors in office, and to the only proper use and behoof of the said county of Tazewell, forever." The court held that the deed conveyed an absolute fee-simple. ■io As where, in a conveyance of land to a religious corporation, the words "for the purpose of erecting a church thereon only" followed the description of the property. Farnham v. Thompson, 34 Minn. 330. In Brown v. Caldwell, 23 W. Va. 187, a grant of land for a con- sideration to a trustee, upon trust that the trustee "shall at all times permit all the white religious so- cieties of Christians, and the mem- bers of such societies, to use the land as a common burying ground, and for no other purpose," is not a grant upon condition. In City of Portland v. Terwilliger, 16 Ore. 465, the defendant agreed to. con- vey land to the plaintiff, and plaint- iff agreed that one-fourth of the land should be used as a cemetery, and to expend $400 in building a road to the same; that the pro- ceeds of the sales of burial lots should be used in improving the grounds; and that one burial lot be conveyed to each of the grant- ors. A deed was executed pursuant to the agreement, upon the "ex- pressed terms, conditions and res- ervations," and in consideration that plaintiff perform such stipu- lations; but no right of entry was reserved, nor was it provided that said estate should cease on non- performance. The grantee was put in possession. Held, that such deed conveyed an absolute estate. CONDITIONS, LIMITATIONS AND RESTRICTIONS. 547 land aud become the corporate property, vvhith, if necessary, a court may devote to the proper uses and purposes which the coi'ijoration was framed to subserve, and to ac(omj)lish which the property was bestowed. It is in no respect diverted from the corporation, or even from denominational or other pre- scribed uses; and, so far as there is an element of trust, a sale is consistent witli and not destructive of it.^^ § 465. Resume. It would seem, therefore, from a review of the foregoing paragraphs, that there are three well-defined species of conditions now employed in conveyances in this country, all having for an object the same general purpose, but in each instance with a different operation and effect, viz.: (1) Conditions technically so called, operating as a defeasance upon breach; (2) covenants proper, operating as promises merely, and giving a right of action for damages in case of breach; and (i^) conditional covenants or stipulations, operat- ing by way of restriction and enforceable according to their terms on breach or violation. In the creation of each of these special classes the same operative words may be employed, but their value and effect is to be determined rather from the spirit than the letter of the text. They must be interpreted in the light of the other provisions of the deed, while the attendant circumstances, the situation of the parties and the state of the property conveyed are competent to aid in esti- mating their effect.32 yi Matter of First Presbyterian conveyed until after an adjoining Church, 106 N. Y. 251; Rawson v. owner had ceased to keep open a School Dist., 7 Allen (Mass.) 125. contiguous strip of land, or until In Episcopal City Mission v. Ap- after such time as the chapel pleton, 117 Mass. 326, land was should cease to be used as a chapel conveyed for nominal considera- in accordance with the above pro- tion to a religious society, its sue- vision. It was held that the deed cessors and assigns, "upon and did not create a condition, but that subject to the condition" that the the grantees got a title in fee. In society was to continue to hold, Taylor v. Binford, 37 Ohio St. 262, occupy, and improve the land and C, being the owner of land, con- chapel standing thereon, for the veyed it, for a valuable considera- support of religious worship in tion, to a township board of edu- conformity with the usage of the cation, its successors and assigns, Protestant Episcopal Church, "and "for the use of school purposes also upon the further condition" only." Held, that the grantees ac- that no building should be erected quired an absolute fee-simple, upon a certain portion of the land 22 u. S. Mfg. Co. v. Grass, 93 111. 548 CONDITIONS, LIMITATIONS AND RESTRICTIONS. Tlie subject of conditional covenants and stipulations, al- though as old as our law, would still seem to be a vexed ques- tion in this country. The works of the leading elementary writers shed but a faint and uncertain light upon it, and in some instances the subject is expressly avoided or passed with briefest niention.^^ The utterances of the courts are in the main characterized by a cautious timidity, and, except in reference to the broad and commonly accepted principles, are discordant and often contradictory. Few if any positive rules can be laid down as a result of their perusal; but it is believed that the following deductions and inferences are supported by the volume of authority: First. Where the recital is in form a condition — as where the grant is expressly made upon condition, and no words other than the granting clause control or modify the apparent effect of the recital or tend to negative the idea therein ex- pressed — such recital should be construed as a condition; and the estate, under a deed containing the same, will remain defeasible until the condition be performed, destroyed or barred by the statute of limitations or by estoppel,^* except (1) when the condition imposed is impossible^^; (2) requires the performance of what is contrary to law or good morals,^^ or (3) is repugnant to the estate granted.^"^ Second. Where the recital, whatever may be the technical language employed, has added a conclusion with a clause of re-entry; or, without such clause, if there be a declaration of defeasance or forfeiture, in case of the performance or non- performance of some particular act, the recital should be con- strued a condition, for the breach of which the grantor or his 483; Batavia Mfg. Co. v. Newton 198; Ruch v. Rock Island, 97 U. S. Wagon Co., 91 111. 230. 693; Cowell v. Col. Springs Co., 100 ;*3 See 2 Wash. Real Prop., 4; 1 U. S. 55; Hammond v. R'y Co., 15 Hill, Real Prop., 526. They are S. C. 10. very learnedly and logically dis- •''s Jones v. R. R. Co., 14 W. Va. cussed in Bingham on Real Prop- 514; Hughes v. Edwards, 9 Wheat. erty, but mainly with reference to {U. S.) 489. the validity of conditions in abso- ^'s Taylor v. Sutton, 15 Ga. 103; lute conveyances. See Bing. Real Bank v. Davis, 21 Pick. (Mass.) Prop., 270 et seq. 42. 34 Sperry v. Pond, 5 Ohio 389; 3? Gadberry v. Sheppard, 27 Miss. R. R. Co. V. Neighbors, 51 Miss. 203; De Peyster v. Michael, 2 Seld. 412; Chapman v. Pingree, 67 Me. (N. Y.) 467. CONDITIONS, LIMITATIONS AND RESTRICTIONS. 519 heirs may enter and repossess the hind to the exclusion of the grantee, his heirs or assigns.-'^'* Tliird. ^\'here the recital, alt]i()ii«,'li unaccompanied with any proviso, the woi'd "condition"" not being mentiimed, yet clearly shows that the performance or non-performance of the act named is the only consideration or inducement for the deed, it should ordinarily be construed a condition.'*'' These three deductions may easily be made from the precedents, but in the opinion of the writer are opposed to principle and in contlict with American legal theory, as are also the prece- dents on which they are based. Indeed, it is difificult to under- stand how any instrument of conveyance which carries the full title and all the estate, leaving no reversion in the grantor, or which upon its face distinctly negatives all idea of tenure, or of the relation of landlord and tenant, or of ultimate title in others, can by any conditions inserted be operative to defeat the grant, for a right of re-entry always supposes an estate in the grantor.^o Fourth. Analogous to the last deduction is that of a grant upon the "express condition" that the property shall be used only for a certain and specified purpose, with a clause of re- verter, or of limitation over, upon breach. In such cases, and particularly when the condition partakes of the consideration, the recital must be construed a condition. But this class of cases is essentially different from those previously considered in that the condition annexed is a part of or defines the estate granted, and the breach does not in fact work a forfeiture, but limits the estate, which ceases and determines without any entry or other act on the part of the reversioner, the con- dition being a conditional limitation,^^ Fifth. Where a recital, although importing a condition, a-^Collis V. Marcy, 24 Conn. 242; 580; Austin v. Cambridgeport, 21 Emerson v. Sirason. 43 N. H. 473; Pick. 215. Thomas v. Ricord, 47 Me. 500; ^" Scott v. Lunt. 7 Pet. 606; Jackson v. Topping, 1 Wend. (N. Blight v. Rochester, 7 Wheat. 547; Y.) 388; Van Rensselaer v. Hays, and see Osterhout v. Shoemaker, 3 19 N. Y. 95; Plumb v. Tubbs, 41 Hill (N. Y.) 518; De Peyster v. N. Y. 442; Adams v. Lindell, 5 Michael, 6 N. Y. 467; Van Rensse- Mo. App. 197; Cowell v. Col. laer v. Reed, 26 N. Y. 558. Springs Co.. 3 Colo. 82. "Hunt v. Beeson, 18 Ind. 380; 30 Railroad Co. v. Hood. 66 Ind. Hooker v. Turnpike Co.. 12 Wend. (N. Y.) 371. 650 CONDITIONS, LIMITATIONS AND RESTRICTIONS. does not expressly and in terms declare the same, and pro- vides only for the performance of some act, or imposes some burden or duty upon the grantee, but does not stipulate for a re-entry or declare a forfeiture, the acceptance of the deed is in effect an agreement to perform the act or assume the bur- den, and the recital should be construed a covenant.*- This deduction, while supported by precedent and in consonance with reason, is yet subject to more doubt than any which have preceded. The courts usually seem to incline to this view under a choice of difficulties, and more because "forfeit- ures are odious" than for the application of any positive prin- ciple. In discussing the subject there is a manifest constraint in most cases, and in many instances the subject is disposed of summarily by the application of the familiar doctrine that where doubt or ambiguity exists recitals should be construed as covenants rather than conditions. The authorities are in- harmonious and often contradictory, but the majority support the proposition. Sixth^ Where the recital, although importing a condition, provides for its breach a penalty or compensation other than forfeiture, the recital should be construed a covenant.'*^ Seventh. Where the recital, although importing a condi- tion, has added no clause of re-entry or declaration of defeas- ance, but clearly indicates a charge upon the estate, the ac- ceptance of the deed creates a duty the due observance of which is obligatory on the grantee and those claiming under him. The recital in such case does not create a condition and takes effect only by way of restriction. Though full effect is to be given to it according to its terms its operation cannot be extended by implication, and it should be construed only as part of the description of the estate granted.** This proposi- tion is not only supported by ample authority, but is in full harmony with our theory of titles and estates. In its general features it resembles the fifth deduction above made, and 42 Conger v. R. Co., 15 111. 366; Packard v. Ames, 16 Gray (Mass.) Thornton v. Trammel, 39 Ga. 202; 32.5; Fuller v. Arms, 45 Vt. 400; Randall v. Latham, 36 Conn. 48; Skinner v. Shepard, 130 Mass. 180; Laberee v. Carleton, 53 Me. 213. Trustees v. Cowen, 4 Paige, Ch. 43 Board of Ed., etc., v. Trustees, (N. Y.) 510; Dorr v. Harrahan, 101 etc., 63 III. 204; Hartung v. Witte, Mass. 31; Seymour v. McDonald, 4 18 N. W. Rep. 175. Sandf. Ch. (N. Y.) 502. 44 Warren v. Meyer, 22 Iowa 351; CONDITIONS, LIMITATIONS AND RESTRICTIONS. .551 somctinu's juirtakcs of its nature in so far that the rcstric- tionw niaj also lake effect as a covenant. lint no forfeiture follows a breach as a consequence, nor will any action ordi- narily result for damages. The fundamental idea of condi- tions annexed to estates is to restrain the commission of an act on the one hand or compel its performance on the other; forfeiture affects neither of these ends, but simply provides a penalty, which, in a majority of instances, is not in further- ance of the true intent as expressed in the instrument, and, except in case of conditional limitations, is repugnant to the grant. Eighth. The test for determining between a condition and a covenant is in the application of the language employed. A condition can only be made by the grantor; the language must be his. A covenant may be made by the grantee, and when the language used amounts to an agreement on the part of the grantee a covenant is raised. A covenant is a contract; a condition, something affixed by way of penalty for the non- fulfillment of the terms im])osed. In the former case the grantee agrees to do or refrain from doing some specific thing; in the latter he makes no agreement, but takes subject to the terms of the condition. If the clause be doubtful it will always be construed a covenant. If clearly expressed, effect must be given to it according to its terms. When forfeiture is not distinctly expressed or necessarily implied, and no spe- cial agreement is stated or imported, the clause creates a charge upon or incident of the estate; but the question in most cases will depend upon the apparent intention of the parties rather than any fixed rules of construction, and, until clearer ideas of title, tenure and estate are made to prevail, uncer- tainty and doubt will attend the creation or attempted crea- tion of reversionary rights and forfeitures, or the annexation of conditions to vested estates. CHAPTER XVIII. RESERVATIONS AND EXCEPTIONS. §466. Definatory. §473. 467. Creation of reservation. 474. 468. Construction. 475. 469. Certainty an essential. 470. Must be to grantor. 476. 471. Rights of way. 477. 472. Right of flowage — Water privileges. Light and air. Use and occupancy. Reserved rights in the soil. Standing timber. Reserved rights lost by dis- use. § 466. Definatory. A reservation is technically defined as the CFeation of a right or interest in land which had no prior existence as such a thing or as part of a thing granted;^ an exception, on the other hand, being the exclusion of something from the effect or operation of the deed, is always a part of the thing granted.2 Both a reservation and an exception must be a part of or arise out of that which is granted in the deed; but the difference is that an exception is something taken back or out of the estate then existing and clearly granted, while a reservation is something newly created and issuing out of what is granted.3 Thus, a right of way may be excepted from 1 A reservation may extend to al- 10; Shep. Touch. 80; Coke Litt. most any right or interest in lands 47b. previously owned by the grantor. 3 Adams v. Morse, 51 Me. 497; 2 To make a valid exception the Kister v. Reeser, 12 Rep. 377; following matters must concur: Hurd v. Curtis, 7 Met. (Mass.) 94. (1) The exception must be created An exception frequently proceeds by apt words; (2) must be a part upon the theory that it is a re- ef the thing previously described; grant by the grantee to the grantor (3) must be a part of the thing of the estate described in the ex- only, and not of all; (4) must be of ception; but this view is better such a thing as is severable from adapted to reservations. See dis- the demised premises, and not of cussions in the following cases: an inseparable incident; (5) must Roberts v. Robertson, 53 Vt. 690; be of such a thing as he that ex- Adams v. Morse, 51 Me. 497; and cepts may have; (6) must be of a see Marshall v. Trumbull, 28 Conn, particular thing out of a general, 183; Munn v. Worrall, 53 N. Y. and not of a particular thing out 44; McDaniel v. Johns., 45 Miss. of a particular thing; and (7) 632; Klaer v. Ridgway, 86 Pa. St. must be particularly described and 529; Leavitt v. Towle, 8 N. H. 96; set forth. Woodfall, Landl. & Ten. Rich v. Zeilsdorff, 22 Wis. 544. 552 RESERVATIONS AND EXCEPTIONS. 553 a grant, or it may be reserved at llic (iinc of anut as a person through whose lands a highway is laid out may convey the land on each side, retaining the fee of the land covered by the roadway,^^ this result will follow where proper and apt words to except such land from the premises conveyed by the general description are inserted in the deed. Hence, if the exception does not purport to be of any partic- ular estate or interest in the land, but is in terms of a cer- tain part and parcel of the premises embraced within the boundaries set forth in the deed, effect must be given to it as such.26 It is competent for the parties to agree upon a general res- ervation and effect, in such cases, will be given to their agree- ment. Usually, however, reservations are made for specific purposes or with respect to specific things, and the rights thus acquired will continue to subsist only so long as the things shall remain and the specific user is reasonably neces- sary and convenient for the purpose for which it was cre- ated.27 Thus, a reservation of a right of way to the stables of the vendor will continue only so long as the buildings are used for such purpose, and will cease whenever the specific user ceases.28 Where a right of way is not bounded by the grant the law will bound it by the line of reasonable enjoyment, and, it seems, even where specific dimensions are stated, as where the w-ay is over a space twenty feet in width, this does not imply an absolute right to use every part of the twenty feet, but is merely a grant of a convenient way within those lim- itS.29 24 In Peck V. Smitii, 1 Conn. 103, The court held that "a road" was which is the leading case in sup- a right of passage merely, and the port of this position, the language soil over which it passed would of the exception was, "saving and not be transferred by a conveyance excepting the road or highway laid of the road. out," etc.; and the court held 2n Jackson v. Hathaway, 15 that the term "highway" or "road" Johns. (N. Y.) 447. did not necessarily mean the land 20 Munn v. Worrall, 53 N. Y. 44. over which the road passed, and Compare Elliott v. Small, 35 Minn, that therefore only the easement 396. was excepted. But in this case 27 Bliss v. Greeley, 45 N. Y. 671. there were three dissenting opin- 2,s Grafton v. Moir, 130 N. Y. 465. ions. In Leavitt v. Towle, 8 N. H. 2!) See Johnson v. Kinnicutt, 2 96, the exception was of a "road" Cush. (Mass.) 153. laid out through the premises. RESERVATIONS AND EXCEPTIONS. ooO §472. Right of flowage — Water privilege. Where a ^rant is uiade of kind bounded on or near a pond or Htreani, but reserving the mill and water privilege, this is a reservation of the right of llowing the land so far as may b(? necessary or ccnveuient or so far as it has been usual to How it for that parpose;^'^ and such liowage will not constitute an incum- brance within the meaning of the covenants of the deed.^i § 473. Light and air. It is beyond dispute that an existing easement cannot strictly be made the subject either of excep- tion or reservation in a deed or conveyance of land; for it is neither parcel of the land granted, which circumstance is requisite to enable a thing to be excepted, nor does it issue out of the land, as it should to render it capable of being the sub- ject of a reservation. Hence, where an existing easement is incorrectly reserved to a grantor, or excepted from tlie land conveyed, its legal effect will be to operate as a grant of a newly created privilege or easement by the grantee of the land to the grantor."^- These principles apply to reservations of light and air; and where a deed contains stipulations for the preservation of the then conditions of buildings standing upon land retained by the grantor, or even with reference to future erections, and provides for the free and unobstructed right of light and air by means of windows overlooking the tract con- veyed, such reservation will be construed as a newly created easement of light and air from the vendee's property, and any interference by him which would result in a substantial loss of these privileges will be restrained by injunction.^^ 30 Pette V. Hawes, 13 Pick, build on the common line between (Mass.) 323. the pai'ties, and the right to put 31 Pette V. Hawes, 13 Pick, windows in said building overlook- (Mass.) 323. ing the tract above described," etc. 32 Rosenkrans v. Snover, 19 N. J. He afterwards built upon the com- Eq. 420. mon line between the lands of B. 33 A., who was the owner of a and himself, and put in his build- strip of land fifty feet wide and ing several windows overlooking two hundred and twenty feet deep, B.'s land. B. is about to erect a sold the westerly half of that land building on his land that will close to B., by a deed which contained two of A.'s windows, and partially the following reservation: "Re- close two others. Held, that the serving the right to the free use of reservation operates as a grant of the light and air over the tract a newly-created easement, at least above described in case he should to light and air from B.'s premises. 560 RESERVATIONS AND EXCEPTIONS. § 474. Use and occupancy. A reservation of a right to use and occui)y the granted premises, either for a stated term of years or for life, is ordinarily created by the employment of those words; and unless there is some special stipulation tend- ing to show that such reserved right of occupancy is personal to the grantor or the person for whom the reservation was created, it will be regarded as a general right with all its ordinary legal incidents.-^^ If it is intended to make the res- ervation personal in its character, limiting the use to the grantor, the language employed should be reasonably clear and explicit to that effect; otherwise no such limitation will attach.35 § 475. Reserved rights in the soil. While in a majority of cases reservations or attempted reservations of personal rights in the grantor are made with reference to some specific use in the nature of an easement, yet it not infrequently hap- pens that substantial rights in the soil are also w ithheld from the grant in this manner. Strictly speaking, these latter would be exceptions and not reservations, yet where the term ^'reservation" is employed with apparent intent to create an exception, effect will be given to it as such. Among the most common of this class is the right to take minerals. Some- times the reservation or exception is clearly expressed as to the nature or character of the minerals thus excepted, as coal, stone, iron, etc., but more frequently parties are content with general references; and the word most commonly employed is the general term "minerals." Allusion has been made in other parts of this work to the embarrassment which the em- ployment of this term often occasions, and the difficulty which courts have experienced in placing upon it a proper and that, if it had been made to premises for five years, if we appear that the interference with choose to do so for that length of A.'s windows would result in his time from the date of this deed; substantial loss of light and air, he but if we leave the possession and would have been entitled to an in- occupancy of said premises before junction. Hagerty v. Lee, 15 Atl. the expiration of said five years, Rep. 399. Compare Wilder v. then this reservation shall be at Wheeldon, 56 Vt. 344. an end and determine, and the 34 Cooney v. Hayes, 40 Vt. 478. grantee shall have full possession 35 Thus, a clause in a deed "re- thereof," held not to be a limita- servins to ourselves the right to tion personal in its nature, but use and occupy the said granted general, and imports the right to RESERVATIONS AND EXCEPTIONS. 661 construction when used uh a dcscriptiuu in u grant. Such an exception would certainly carry veins and beds of ore, and usually deposit H of coal and other fossils; while it would not be doing violence to language to ijerniit it to include strata of rocks, chalk or salines, all of which may be obtained by the various processes known as mining. Possibly, and under certain cireunistances, it might be made to include clays and other earths. Such an exception, however, has been held not to include gases or earth oils,*^" but the volume of authority now places these products in the category of min- erals,^^ and makes them a part of the land while in place, hence it would seem that under a deed excejjting or reserving the minerals, natural gas or petroleum oil will not pass.-''^ Exceptions and reservations of this character are frequently so broad as to be repugnant to the grant, though it would seem that great latitude is to be allowed in construction.-''^ An exception of mines, minerals, ore-beds, etc., where the specific thing is taken out of the grant, must be distinguished, however, from the mere reservation of a right to enter and take the same. Thus, a reservation of "the right of mining on the granted premises" a certain quantity of ore annually would operate only as a license to enter and mine; it would give no title to the land or to the ore before it should be mined; nor would it restrict the grantee from mining at the same time, even to the exhaustion of the ore.^^ A reservation of the right of mining, and incidentally of sinking sliafts, etc., also gives to the grantor the right to place buildings on the surface, to use part of the same for a dump, occupy personally or by tenants, of compositions, combinations and Cooney v. Hayes, 40 Vt. 478. compounds of any or all the fore- ■to Durham v. Kirkpatrick, 101 going substances, and also all val- Pa. St. 36; but see Marshall v. uable earths, clay, stones, paints Mellon, 179 Pa. St. 371. and substances for the manufac- 37 Kelly V. Ohio Oil Co., 57 Ohio ture of paints upon or under the St. 317; Williamson v. Jones, 39 said tract of land," held to reserve W. Va. 231. clay suitable for making bricks; «s Murray v. Allred, 100 Tenn. and that the reservation was not to 100. be construed as being as broad as 38 Thus, a reservation, "excepting the grant, the grant passing the or- and reserving thereout unto A. dinary glebe, timber and waters. . . . all and all manner of met- Poster v. Runk, 109 Pa. St. 291. als and minerals, substances, coals, lo Stockbridge Iron Co. v. Hud- ores, fossils, and also all manner son Iron Co., 107 Mass. 290. It 36 563 RESERVATIONS AND EXCEPTIONS. and generally to do all needful and proper things connected with the exercise of the right.^^ § 476. Standing timber. A very common example of res- ervation or exception is presented in manA' parts of the coun- try where stipulations are inserted in deeds of conveyance with reference to trees or "timber" then growing upon the granted land. Such stipulations are generally intended for exceptions, but their legal effect is more often only that of res- ervations. In some cases the timber itself is reserved; and the courts hold that this is strictly an exception, since it is a part of the realty or the land, and would have passed to the grantee but for the exception. In such case the property in the timber continues in the grantor, with a right to so much of the soil as is necessary to sustain it.*^ Usually, however, the stipulation only provides for a right to cut and remove the timber — a fixed time being ordinarily named as the limit in which the right is to be exercised. In this event the stipula- tion does not have the effect to except the w^ood from the grant, but merely reserves a right to enter, cut and remove it, or so much as the grantor may be able to cut and remove within the time specified in the deed.*^ In case of the neglect of the grantor to cut and remove the timber within the time specified, the reservation would lapse and the estate become absolute in the vendee.^* But where, in a deed granting land, the timber thereon is expressly excepted from the grant, the title to the timber remains in the vendor, who, by virtue of the exception, has an implied power to enter, fell and take it away.^^ His title to the timber ai'ising from the exception in the deed is of the same binding force and effect as if the whole estate had been originally granted and a deed had been executed to him from was held in this case, however, 544; Wait v. Baldwin, 60 Mich. that such a deed might be reformed 622. in equity, for variance through 43 Pease v. Gibson, 6 Me. 81; mutual mistake from the previous Reed v. Merrifield, 10 Met. (Mass.) oral contract of the parties, as 155; Martin v. Gilson, 37 Wis. being a reservation and not an ex- 362. ception, and therefore not within 44 Rich v. Zeilsdorff, 22 Wis. 544. the statute of frauds. -is Boults v. Mitchell, 15 Pa. St. 41 Warden V. Watson, 93 Mo. 107. 371; Pierrepont v. Barnard, 6 N. 42 Howard v. Lincoln, 13 Me. Y. 279. 122; Rich v. Zeilsdorff, 22 Wis. RESERVATIONS AND EXCEPTIONS. 563 his grantee of all the timber upon the laud.^® In such event the rij^lit to enter upon the land and cut and remove timber at pleasure would have passed as an incident of the grant and as essential to the enjoyment of the right of property, and the right is e(iually as well assured in an exception. Such a right, where there are no words showing a limitation of the time of enjoyment or within which it shall be exercised, is not revo- cable; nor can it be terminated at the will of the owner of the land, nor by notice to remove the timber in a reasonable time. The right does not rest upon the notion of a license from the grantee, but as being conncuted with the exception as an inci- dent to its enjoyment, and is an interest in the land itself to that exteut.^^ § 477. Reserved rights lost by disuse. A reserved right may be lost by long negligence and disuse; and the presump- tions of their release or discharge are favored for the sake of quieting possessions.^** Thus, reservations in the nature of a right of common, or other easements of like character, may be deemed to have been relinquished where there has been no exercise of the right for a long period of time, particularly where, by a fair construction of the language of the deed, it is apparent that it was not the intention of the parties as ex- pressed by the reservation that the laud should always con- tinue subject to the servitude, however appropriated by the owner.^'-* Long disuse, in such a case, will let in the presump- tion of a release or other discharge; and such presumptions are to be favorably received in opposition to dormant claims, because they conduce to the repose of titles and the security of estates. 40 Wait V. Baldwin, CO Mich. 622. right reserved ceased as soon as 47 Rich V. Zeilsdorff, 22 Wis. 544; the premises were fenced in by the Wait V. Baldwin, 60 Mich. 622. grantee, especially where it ap- ■»« Broeck v. Livingstone, 1 peared that the premises had been Johns. Ch. (N. Y.) 357. inclosed for about thirty years, and '« As, where a deed in fee con- the right during that period had tained a reservation of the right of not been claimed or exercised, "cutting and hewing timber and Broeck v. Livingstone, 1 Johns. Ch. grazing in the woods not appro- (N. Y.) 357. priated or fenced in," held, that the CHAPTER XIX. EXECUTION. Art. I. Generally Considebed. Art. II. Signing. Art. III. Sealing. Art. IV. Delivery. Aet. 1. Generally Considered. § 478. Definition. § 481. Execution in blank. 479. Execution by corporation. 482. Attesting witnesses. 480. Variations and discrepan- cies. § 478. Definition. The term "execution" primarily means the accomplishment of a thing — the completion of an act or instrument; and in this sense it is used in conveyancing to denote the final consummation of a contract of sale. The term properly includes only those acts which are necessary to the full completion of an instrument of conveyance, which are: the signature of the disposing party, the aflSxing of his seal to give character to the instrument, and its delivery to the grantee. Acknowledgment is sometimes included in the term, but as a matter of fact the act of acknowledgment is no part of the execution of a deed, which, if in all other respects regu- lar, is perfect and complete without it; nor is the certificate of acknowledgment any part of the deed. The different acts of execution are so essential to each other that neither can be dispensed with; but under the current of modern decisions sealing is perhaps of the least importance, and though this is still an indispensable requisite at law, in equity the deed may be effective without it, § 479. Execution by corporation. Practically there is no difference between the deeds of corporations and those of ordi- nary individuals, and the solemnities attending their execu- tion differ only in the fact that they are necessarily the work of agents. Originally a corporation could speak only by its corporate seal, and by this it authenticated all of its acts;^ 1 Thus, Blackstone says: "A cor- cannot manifest its intentions by poration being an invisible body any personal act or oral dis- 564 GENERALLY CONSIDERED. 565 but modern commerce and business methods have preatly chauj,'ed this rule, and corporations may now act by their aj^ents the same as natural persons. In grants of lands it is still customary to use the corj)orate seal, but in addition thereto the hand of some of its oHicers or agents is recjuired, either with or without the affixing of the corporate name. It is customary and proper to sign a deed with the name of the corporation;-' but unless this is a special statutory recpiire- nient,3 such a method is not necessary to impart validity,* for by common law the common seal is itself the signature of the corj)oration/' The seal, when afhxed to a deed or contract by proper authority," is not distinguishable in its legal effect from that of an individual, and renders the instrument a spe- cialty.^ It has been held that the president of a corporation has no power as such, without ex{)ress authorization from the direct- ors, to purchase or sell real proi)erty in the name of the cor- poration, and that an instrument executed by him for such purpose, in the name of the corporation and under its common seal, without the authorization of the directors, may be shown to be void: and further, that a corporation is not estopped course; it therefore acts and speaks only by its common seal. For, though the particular mem- bers may express their private con- sents to any act by words or sign- ing their names, yet this does not bind the corporation; it is the fix- ing of the seal, and that only, which unites the several assents of the individuals who compose the community, and makes one joint assent of the whole." 1 Black. Com., 475. And see Brown v. Wes- terfield, 47 Neb. 399. ^ Flint V. Clinton Co., 12 N. H. 430; and see Ang. & Ames on Corp. §225. 3 See Isham v. Iron Co., 19 Vt. 251. ^ Osborne v. Tunis, 1 Dutch. (N. J.) 633. •'■ Beckwith v. Windsor Mfg. Co., 14 Conn. 594; Frankfort Bank v. Anderson, 3 A. K. Marsh. (Ky.) 932. The seal is itself prima facie evidence that it was affixed by proper authority. Solomans Lodge V. Montmallin, 58 Ga. 547; Sheehan V. Davis, 17 Ohio St. 571; Lovett v. Saw-mill Ass'n, 6 Paige (N. Y.) 54. And that in affixing such seal and the hands of the officers, such officers did not exceed their au- thority. Kansas v. R. R. Co., 77 Mo. 185. 7 Clark V. Mfg. Co., 15 Wend. (N. Y.) 256; Benoist v. Carondelet, 8 Mo. 250. In the absence of the com- mon seal, or of proof of facts whence the authority of the of- ficers of a corporation to execute a conveyance may be inferred, such authority can only be established by resolution of the directors or trustees entered in the proper book 5GG EXECUTION. from denying the validity of an unauthorized contract made by its president where it has never availed itself of the benefits of such contract.^ As a general rule, however, the president of a corporation has power to bind it within the scope of its powers; and as its rules and by-laws are not usually open to public inspection, particularly where the home office is in a distant state, such rules and by-laws can have no appreciable effect upon persons having no knowledge of their existence; and notwithstanding such officer may have no power to make contracts or conveyances under the private rules and regula- tions of the corporation, yet as to strangers without notice it would be estopped to deny the powers of its officers to per- form the specific acts.^ § 480. Variations and discrepancies. As deeds are usually drawn by a conveyancer, it will often happen that a variance will occur between the name inserted in the body of the instru- ment and that affixed by the grantor in execution. One of the most common discrepancies of this' character is the omis- sion of all or part of the middle name or initials or the substi- tution of other middle names. This is but a slight defect, however, for the law knows but one Christian name, and the omission or insertion of a middle name is usually an imma- terial circumstance.^^ Discrepancies in the orthography of the name as written by the scrivener and by the parties upon execution are common; but as these matters derive their main importance from the effect they may have upon the title when forming the subject of future sales, and as the subject has already been considered in treating of objections to title, no further allusion will be made to it at this time. It sometimes happens that, through inadvertence or mis- of the corporation. Southern Cal. sale of land owned by the company. Colony Ass'n v. Bustamente, 52 The rule is the same where a pur- Cal. 192. chaser receives a bond from a cor- "< Bliss V. Kaweah, etc., Co., 3 poration for a deed for land pur- West Coast Rep. (Cal.) 571. chased; and he will be entitled to 9 Life Ins. Co. v. White, 106 111. the deed according to the provis- 67. A purchaser of land from a ions of the bond, notwithstanding corporation, being a stranger to the there was no order of the board of corporation, is not bound to know directors authorizing the sale, that there is a by-law of the com- Wait v. Smith, 92 111. 385. pany requiring an order of the lo James v. Stiles, 14 Pet. (U.S.) board of directors to authorize a 322; Dunn v. Gaines, 1 McLean (C. GENERALLY CONSIDERED. 56'}' take, the name of tlic ^^liiiilor lias been ciilircly omitted in the body of the deed; and wliile it lias been held that one who sif^nH, seals and delivers a deed is ])ound by such acts as grantor, altliouj,^li not named as such tlicrein,'' the current of later decisions would indicate that such a deed is ineffectual to convey any interest or jjass tille.'^ Where only a i)ortion of the j^rantors named in a conveyance si<;n and acknowledjjje the same, the authorities are somewhat divided as to the effect of the deed — some holdin.u: that, where the deed shows that it was intended to be jointly executed by all the parties, an exe- cution and delivery by a portion only is incomplete and does not bind theni.^'^ A majority of the cases, however, favor the contrary doctrine, and seem to sustain the principle that the parties executing will be bound thereby, and the deed be suf- ficient to pass their interests.^* § 481. Execution in blank. It is axiomatic that to every deed there must be at least two parties, the one capable of conveying and the other of receiving, and that a deed without a grantee is practically no deed at all. The exigencies of modern commerce, aided to some extent by the familiar prin- ciples of estoppel, have in a measure and in some localities created an apparent anomalous exception to this rule; and while no court has gone the length of asserting that a deed in blank is oi)erative at the time of its execution, yet the con- struction of instruments of this character has formed the sub- ject of a number of decisions tending to uphold the same where the grantee's name has been subsecjuently inserted. Thus, it has been held that one who has signed and acknowl- edged deeds in blank, and furnished them to an agent to fill the blanks according to such sales as he may make for the grantor, and deliver the deeds to the purchaser, is estopped to deny that a deed filled up and delivered to a purchaser in good faith and for value is a valid deed and conveys title.^^ Upon Ct.) 321; Erskine v. Davis, 25 111. 322; Peabody v. Hewitt, 52 Me. 33; 251; Scofield v. Jennings, 68 111. Bank v. Rice, 4 How. 225. 232. i"* Arthur v. Anderson, 9 S. C. 11 Elliott v. Sleeper, 2 N. H. 525; 234. Thompson v. Lovrein, 82 Pa. St. ^ Story, Part, § 119; Parsons, 432. Part.. § 369. 12 Harrison v. Simmons, 55 Ala. i'' Pence v. Arbiickle, 22 Minn. 510; Laughlin v. Fream, 14 W. Va. 417; Ragsdale v. Robinson, 48 Tex. 568 EXECUtlON. this point the courts seem to be mainly united, and though the doctrine has received some dissent tlie volume of authority fairly establishes the general rule as stated. Such a deed, however, passes no title upon delivery until the blanks are filled by the grantor or his agent by his authority ;i<^ and it has been held that, if the name of a grantee is afterwards inserted without his authonty, such deed will not become suf- ficient for the purpose of passing the legal title merely from the fact that the grantee enters into possession and pays the purchase price.^^ It seems the agent of the grantor may insert as grantee, the name of one who has contracted with him after the execu- tion of a deed, upon the grantor's authority ;i^ but it would further seem he has no right, even upon request of the grantee whose name he was instructed to insert, to insert instead the name of another ;i^ and, w^hile an innocent purchaser will in most instances be protected, a deed so signed may always be avoided, when filled out by one not duly authorized by the grantor, as against a grantee with full knowledge of the facts.2o There is another phase of the subject which, while properly falling within the principle under discussion, is nevertheless regarded in a very different light. This occurs in the case of the insertion of some matter having reference to the grantee, usually for the purpose of better identification; and where an attempt has been made to convey to a designated grantee, but for any reason such grantee has been imperfectly described, named or designated, it has been held that the execution of a deed is not invalidated by the insertion of a part of the grantee's name by his attorney after delivery ,21 The objection that a deed was executed in blank, and the name of the grantee inserted after delivery, can only be made by the grantor or one claiming through or in right of him.22 379; Owen v. Perry, 25 Iowa 412; i« Schintz v. McManny, 33 Wis. Swartz V. Ballou, 47 Iowa 194; 299; McNab v. Young, 81 111. 11. Schintz V. MoManny, 33 Wis. 299; i" Schintz v. McManny, 33 Wis. McNab V. Young, 81 111. 11. 299. icAdamson v. Hartman, 40 Ark. -'« Cooper v. Page, 62 Me. 192. 58. -1 Devin v. Himer, 29 Iowa 17 Dearguello v. Bours, 67 Cal. 297. 447; and see Disen v. Rice, 33 Tex. 22 McNab v. Young, 81 111. 11. 139. GENERALLY CONSIDERED. 509 It would seem that tlu' Hainc rules which {^overu. the inser- tion of the names of grantees in deeds of conveyance executed in blank may also be applied to insertions of subject matter, llence, where a principal executes and delivers to his aj^ent a deed without description and with instructions to till same in, the deed will be fully 0})erative as against the grantor when this has been done; and even though the agent exceeds or disobeys his instructions in filling in the blanks, substitut- ing other i)roperty than that originally intended, the grantor will still be bound if the grantee was himself without fault and acted in good faith.^^ The principle upon which these rules rest is to place the loss, if there be a loss, upon the per- son who endowed the agent with apparent authority, and not u])on an innocent third person who trusted to such apparent authority, and parted with his money or property in conse- quence of such trust. It is a princij)le that has long obtained in transactions relating to negotiable securities, but it seems is equally applicable to real estate sales and conveyances. §482. Attesting witnesses. A deed is fully executed in the proi)er sense of the term when it has been signed, staled and delivered. No other acts were required at common law, and the deed was considered complete when this had been accomplished. Attesting witnesses were sometimes employed, but this was only for the purpose of preserving the evidence ;2'* they were not considered necessary to give validity to the deed, and proof of the handwriting of the grantor was con- sidered sufficient when the execution of the instrument was called in question.^^ In many of the states the rule of the common law has been retained, and no attesting witnesses are required;-^ in others a witness or witnesses are necessary where the deed has not been acknowledged,-"^ or to make proof of deed;28 while in others a peremptory mandate of the 23 Nelson v. McDonald, 80 Wis. Nevada, New Jersey, North Caro- 605. lina, Pennsylvania, Rliode Island, 24 2 Black. Com. 307. Tennessee, Texas and West Vir- s"' See Meuley v. Zeigler, 23 Tex. ginia. 88; Thacher v. Phinney, 7 Allen 2- As in Alabama, Idaho, Kcn- (Mass.) 149; 1 Wood's Conv. 239. tucky, Montana, North Carolina, -« Such is the case in California, Tennessee. Texas, Virginia and Dakota, Illinois, Indiana, Iowa, West Virginia. Kansas (except to prove deed), -'s All of the above and Kansas. Maine, Massachusetts, Missouri, 570 EXECUTION. statute requires one or more witnesses to impart legal valid- ity to the c'ouveyance.29 With respect to the method in which an attesting witness should evidence that fact, it does not seem that the rules are any ditierent from those which govern the affixing of the grantor's signature; hence it has been held that a person who cannot write, but who makes his mark or uses any other device by which he or others may identify him with the trans- action, is a competent attesting witness to the execution of a deed.3o A deed attested by subscribing witnesses will be presumed to have been duly witnessed ;3i and if it has been duly acknowledged, although there appears to have been subscrib- ing witnesses, it is not necessary to call them for the purpose of proving its execution.^^ In the absence of acknowledg- ment subscribing witnesses are material, whenever the deed is called in question, for the purpose of proving execution; and in such event the testimony of the witness authenticating his own signature is usually all that is required.^s 29 This is the law in Arkansas, 33 in Russell v. Coffin, 8 Pick. Connecticut, Delaware (one wit- (Mass.) it was held that the execu- ness), Florida, Georgia, Louisiana, tion of a deed was sufficiently Maryland (one witness), Michigan, proved for the purpose of reading Minnesota, Mississippi (one or it in evidence, where one of two more), Nebraska (one witness), witnesses deposed that he knew the New Hampshire, New York (one), attestation to be in his handwrit- Ohio, Oregon, South Carolina, ing, though he did not recollect Utah (one), Vermont, Wisconsin. witnessing it, and that he thought 30 Tatom v. White, 95 N. C. 453. the signature of the other witness, 31 Hrouska v. Janke, 66 Wis. 252. who was out of the commonwealth, 32 Simmons v. Haven, 101 N. Y. was the handwriting of such ab- 427. sent witness. Article II. Signing. § 483. General principles. 484. Method of signing. 485. Signature by mark. § 483. General principles. While all of the different acts of ('.xcculion jire to a greater or less extent necessary to the validil.y of a deed, vet it derives its main enicaev from the si};- nature; for an nnsijj^ed instrument, tliou^^h duly attested, acknowledged and delivered, is a nullity.^ There are decisions in some localities which seem in a measure to militate aj^ainst this doctrine, and to indicate that a deed is not necessarily void because the <;rantor's name is not subscribed to it, pro- vided it is written in his own handwriting, and so placed in the body of the deed as to control the grant.^ The question in such case becomes one of intention, and may be considered by a jury in lonnection with other circumstances. The prin- ciple, however, is not affected by these decisions, and all the authorities concur that a signinj? of some sort is absolutely necessary to impart vitality to a j^rant by deed. By the old rules of the common law a signature was not considered essential to the validity of a deed, the seal being suflHcient to show assent and execution. This was doubtless occasioned by reason of the very general inability of the mass of the i)eople to read or write,^ and the importance which was formerly attached to seals as the signets of their owners.^ It would seem, however, that under the Saxon rule signing was 1 Goodman v. Randall, 44 Conn, volving the execution of instru- 325; Jones v. Gurlie, 61 Miss. 423. ments and it would seem that when - Saunders v. Hackney, 10 Lea a king's hand was necessary to the (Tenn.) 194. execution of a charter, grant or :< See 1 Reeve's Hist. Eng. Law, treaty, he simply smeared his right 184. hand with ink, and. making his * For many years the use of the impression upon the parchment, pen was practically unknown both said, "Witness my hand," and exe- to prince and peasant; but few cution was complete. Later the could read and still less could ancient seal, then usually set in a write, yet at a very early day the finger ring, was again brought into efficacy of sealing and signing was use, and this was impressed in- recognized in legal transactions in- stead of the hand, but oftener be- 571 S72 EXECUTION. in gentu'al use, provided the parties were able to write, and whether they could write or not it was customary to affix the sign of the cross; but on the Norman conquest waxen seals, usually of specific device, were introduced and took the place of the Saxon method of signing by writing the name and mak- ing the sign of the cross. By the statute of 29 Charles II., for the prevention of frauds and perjuries, all transfers of land were required to be put in writing and signed by the parties making the same; and this statute is the foundation of all the American laws upon the same topic.^ § 484. Method of signing. While the law is strenuous in its demands that the deed of a grantor must be attested by his signature, it is equally lenient as to the method by which such signature shall be applied. Thus, the deed may be signed by the grantor himself or by some other person acting for him. In the latter event the person so assuming to act must, of course, have a proper authorization so to do ; and this authority must be of a character equal in dignity to the instru- ment to which the principal's name is appended. In case of a deed, being an instrument under seal, the authorization mus-t itself be under seal. But to the rule last stated an important exception has been made in many states, by which, if the name of the grantor is affixed by some other person, at his request and in his pres- ence, such a signing is made as effectual for all intents and purposes as though it had been the grantor's personal act.^ It is contended in support of this doctrine that the disposing capacity and the act of the mind are the only essential and efficient ingredients which go to constitute the act of grant. Hence, if these are present, though the name be written by another hand, yet, if in the presence and at the request of the grantor, it is his act. The simple fact that, through inca- side the hand; and from the lat- should seal, and now, in most cases, ter we derive the phrase "Witness I apprehend, should sign it also." my hand and seal." c Gardner v. Gardner, 5 Gush. 5 In Blackstone's time signing (Mass.) 483; Frost v. Deering, 21 does not seem to have been essen- Me. 156; Goodell v. Bates, 14 R. I. tial, although he says (1 Com. 6.5; Jansen v. Cahill, 22 Cal. 563; 305): "It is said to be requisite Conlan v. Grace, 36 Minn. 276; that the party whose deed it is Lewis v. Watson, 98 Ala. 479. SIGNING. 573 pacity, or weaknoss. or any other reason, the grantor uses the hands of anollier instead of his own to do the jjhysical acts of making ti written sij?n is of no .onsequonce, and the sij^ning is as much his act as if he held the pen and his liand was guided by another. To hold otherwise, it is said, would be to decide that a person having a full mind and clear capacity, but through jihysical inability inca]»able of making a mark, could never make a conveyance or execute a deed; for the same incapacity to sign and seal the principal deed would pre- vent him from executing a letter of attorney under seal.'^ In opposition to this doctrine there are a few cases which have arisen in the construction of local statutes ;8 but the entire current of modern authority is in support of the rule that a deed is properly and sulliciently signed where the grantor's name is athxed by another, if done at his request and in his presence, and the question of i)hysical incapacity is imnia- terial.'-' A still further exception has been made in some states, where a signature, though subscribed by another hand and in the absence of the grantor, is nevertheless subsequently recog- nized and adopted by the grantor as his own;^" and a j)erson who a]»pears before a magistrate and duly acknowledges the execution of a deed to which his name has been appended by another in his absence is held to recognize and adopt such sig- nature. ^^ A deed so ratified has been held to be valid and eil'ectual for all ])ur])()ses.'- 55 485. Signature by mark. As the true meaning of a sig- nature is to evidence the disposing purpose of the grantor, it follows that any act of his plainly evincing intention will be binding upon him; and while his name appended by his own hand is the highest and best evidence of such intention, yet any other unequivocal act done or directed by him will be T Gardner v. Gardner, 5 Cush. deed is valid. Clough v. Clough, (Mass.) 483; Life Ins. Co. v. 73 Me. 487. Brown, 30 N. J. Eq. 193; and see lo Greenfield Bank v. Crafts, 4 Bartlett v. Drake. 100 Mass. 174; Allen (Mass.) 447; Bartlett v. Forsyth v. Day, 46 Me. 17G. Drake, 100 Mass. 174; Forsyth v. ^< See Wallace v. McCullough, 1 Day. 46 Me. 176. Rich. Eq. (S. C.) 426. n Bartlett v. Drake. 100 Mass. " If a grantor acknowledges and 174; Lewis v. Watson, 98 Ala. 479. delivers a deed to which his name '2 White v. Graves, 107 Mass. 328. has been aflSxed by the grantee the 574 EXECUTION. equally efifoctive. Honco it is that a person physically unable or too illiterate to write his name may sign by any arbitrary symbol — a cross,^^ a crooked line, or any other device intended by him as a sign-manual; and the adoption of such mark or device, if the deed is in other respects regular, will be as effective to transfer the estate as if his name had been written thereon in full by himself.^^ A grantor's mark may be made by himself, or by merely touching the pen in the hands of another.i^ A grantor may sign by a mark, even though able to write; and instances are frequent where parties have resorted to a mark as the result of temporary causes, difficulty in writing, or other reasons, and not from inability to write. The only serious consequence arising from such a practice is the apparent want of identity where a mark is used in one case and a written signature in another; but this is but a slight circumstance where both instruments are properly acknowl- edged.i® It is customary and proper to write the w^ords ''his mark" over or near the device made or adopted by the marksman, yet this is not essential; it is sufficient in every case if it appears that he in fact made the mark or adopted it.^''^ 13 It was a custom among the of Italy (A. D. 455-526), who had early Britons, prior to the Norman done the same thing, in the same conquest, to authenticate all im- way and for the same reason. From portant documents with a signa- this ancient custom of preceding ture preceded by the sign of the the signature by the sign of the cross. Those who could not write cross comes the modern practice simply affixed the cross. Indeed, of making a "mark" in that form it is said that Caedwalla, one of the by those who are unable to write. Saxon kings, at the end of one of i* Truman v. Love, 14 Ohio St. his charters, honestly and frankly 144; Life Ins. Co. v. Brown, 30 says, "With my proper hand I have N. J. Eq. 193; Sellers v. Sellers, 98 made and subscribed the sign of N. C. 13. the sacred cross, on account of my ^^ Harris v. Harris, 59 Cal. 620. ignorance of letters;" and for this le Mackay v. Easton, 19 Wall, he had the royal precedents of the (U. S.) 619. Emperor Justin I. (Byzantine A. i^ Seller? v. Sellers, 98 N. C. 13. D. 450-527) and of King Theodoric Article III. Sealing. § 486. General views — Definition. § 488. Method of sealing. 487. Necessity of seal. 489. Omission of seal. i:; 486. General views — Definition. A seal, as definod by all of the earlier eomnieiilatois aud legal lexicographers, is "an impression upon wax, wafer or some other tenacious sub- stance capable of being impressed." Originally wax was exclusively employed for this purpose,^ which subsequently became in a measure supplanted by a composite wafer having the same general characteristics. At the present time neither wax nor wafer is in general use, as paper has been found to possess all the essential qualities of both of these articles, and to be fully as cai)able of being impressed by the devices now in common use. The convenience of wax was its first and only recommendation; but as it is the impression and not the wax which constitutes the seal, any other adhesive substance capa- ble of receiving an impression is held to come within the defiuition.- But while any impression is good as a common-law seal, the general disuse of i)rivate seals has led to the substitution of other methods to indicate the fact of sealing; aud courts, con- forming to the changed conditions of the people, have relaxed the ancient rules in this respect. A piece of colored paper 1 It would seem that in England eating contracts and writings ap- the wax originally employed was pears to have been almost un- white but subsequently, when vari- known in England prior to the con- ous colors were introduced, the quest. Under the Anglo-Saxon gov- king alone was entitled to seal in ernments, contracts, written dec- red, and from this circumstance laratlons and memorials were sol- comes the traditional use of red in emnly ratified with the sign of the the seals of courts and departments cross in the presence of numerous of government. witnesses, and derived all their - Pillow V. Roberts, 13 How. (U. force and efficacy from their pub- S.) 473; Carter v. Burley, 9 N. H. licity. The general practice of 558. Although the custom of using sealingwas introduced and brought a seal seems to have prevailed in into use by the Normans after the oriental nations from the most re- conquest, who caused the ancient mote antiquity down to the present Saxon contracts and writings to be time, yet this method of authenti- sealed with waxen seals in the 575 576 EXECUTION. apparently aflSxod as a seal, but without impression or device of any kind, lias been held to be a sufficient sealing.^ So, also, a direct impression on the paper which contains the writing is now regarded as a good and sufficient seal; while it is a com- mon provision in the statutes of many states that every instru- ment to which the maker affixes a scroll by way of seal shall be of the same force and obligation as if it were actually sealed, provided the maker shall in the instrument recognize such scroll as having been affixed for such purpose.^ It ma}' be stated, however, that the world has outgrown the necessities of an age when men affixed their seals because •they could not write. What then, from necessity, attested the very act of execution and the genuineness of it, is now but a mere arbitrary form, preserved only as a technical require- ment in support of the long-established distinction between writings ''under seal" and those which are not/' A seal does not in any way affect the substance of the instrument or add to or detract from the obligation which it purports, and in a number of states its use has been discontinued. But in those states where the distinction between sealed and unsealed instruments has been preserved, while the law has become relaxed in favor of custom and convenience in doing business, yet this relaxation is confined to the manner of making the seal only. Sealing and delivery is still the criterion of a spe- cialty. § 487. Necessity of a seal. Notwithstanding that sealing has now become a matter of minor importance, both as to the seal itself and the method of its affixment, yet, except where it has been expressly dispensed with by law, it is still one of presence of witnesses, and gave cient to comply with the technical them the names of charters or requirement of law. deeds. * See Haseltine v. Donahue, 42 "Turner v. Field, 44 Mo. 382. Wis. 576; Hudson v. Poindexter, 42 This is a very instructive case on Miss. 304; Glasscock v. Glasscock, this subject and contains some 8 Me. 577; Cummins v. Woodruff, 5 very ingenious arguments; as, for Ark. 116; Carter v. Penn. 4 Ala. instance, the court holds that in- 140; Flemming v. Powell, 2 Tex. asmuch as the colored paper, which 225. was applied to a wafer and caused ^ The reasoning of the old law to adhere, must from a physical ne- writers was, that a seal attracts cessity have made an impression, attention and excites caution in such impression would be sufE- illiterate persons and thereby op- SEALING. 577 the essential acts of execution. It is immaterial how the par- ties may expresH the act, whether by a device on wax or wafer, or an impression on the paper, or simply an arbitrary mark with the ])en upon the loci sigUlum, provided it is intended for a seal, and to pve elTect to the writin<; as a sealed instru- ment. It is the seal, however, which imparts special char- acter to the conveyance, and makes it in fact a deed." But while a paper purport in<,' to be a deed may not be valid for the purpose of conveying title unless it is under seal, yet it seems that when a person enters into possession under such a ])aper, it is admissible in evidence for the purpose of showing the extent of his possession, and what he claims by his posses- sion.'^ In a number of states seals, except to authenticate the acts of corporations and ministerial officers, have been dispensed with;« while in those states in which a seal is still required to deeds of conveyance the old doctrine in relation to their use has been greatly relaxed. Nor is it essential, in case of more than one grantor, that every person signing the deed shall also formally seal it; and a neglect in this particular will not have the effect to vitiate the deed, provided there is evidence of an intention to seal. In such case the grantor neglecting to seal is presumed to have adopted any seal or scrawl that may be annexed to the name of one of his co-signers. i$ 488. Method of sealing. Wax has long since fallen into disuse even in the execution of documents of the highest char- acter, while the old-time ''signet" is preserved only as a memento of the past, the same as any other interesting relic of a by-gone age. The mass of the people have no distinctive devices by way of seals which they may use by hereditary right, and few have cared to adopt such devices. Nor is any attempt ever made to fulfill the common-law condition that a erates as a security against fraud, derwood v. Campbell, 14 N. H. 393. Taylor v. Morton, 5 Dana (Ky.) ^ Barger v. Hobbs, 67 111. 592. 365; Alexander v. Polk, 39 Miss. » Seals are no longer required in 737; Taylor v. Glaser, 2 S. & R. Alabama, Arkansas, California, Da- (Pa.) 502; and see McCabe v. kota, Indiana, Iowa, Kansas, Ken- Hunter, 7 Mo. 355; Jackson v. tucky, Louisiana, Mississippi, Mis- Wood, 12 Johns. (N. Y.) 242; souri, Montana, Nebraska, Ohio, Floyd V. Ricks, 14 Ark. 286; Un- Tennessee and Texas. 37 578 EXECUTION. seal must be an "impression;" while the statute has practic- ally abrogated the last vestige of common-law private seals by declaring that a "scrawl" or "scroll" shall be of the same effect and obligation as a seal whenever it appears from the body of the instrument, the scrawl itself, or the place where it is affixed, that such scrawl was intended for a seal. The word "seal" at the end of the grantor's signature, the letters "L. S.," or any other device manifesting intent, will have the same effect; and generally an instrument will be treated as sealed where evidence of the intent to affix a seal is clear,^ As to what shall be considered a "scroll," there is no rule or precise definition. It may consist of a mere outline without any inclosure; may have a light ground or a dark one; may be in the form of a circle, an ellipse or an irregular figure; or it may be a simple dash or flourish of the pen. Its precise form cannot be defined, and in each case depends wholly upon the taste or fancy of the person who makes it.^^ It is customary and proper to recite that the grantor has affixed his seal, and a well-informed conveyancer will always insert such a recital in the testimonium clause. While the attestation clause usually consists of the words "signed and sealed," yet it is not necessary to state in the deed or in the witnessing clause that the grantor has affixed his seal, in order to make a scrawl a seal, if it is apparent from the instru- ment and the circumstances under which it was executed that it was intended to adopt the scrawl as a seal;^^ and where a scrawl is allowed for a seal, a writing having the word "seal" against the maker's signature is a sealed instrument — ^the word "seal" in such a case being equivalent to a scrawl.^^ 9 Burton v. Le Roy, 5 Sawyer West Virginia and Wisconsin, and (C. Ct.) 510; McCarley V. Supervis- in the territories generally. It ors, 58 Miss. 483; Groner v. Smith, would seem, however, that in 49 Mo. 318; Lewis v. Overby, 28 Maine, Massachusetts, New Hamp- Gratt. (Va.) 627; Hudson v. Poin- shire. New York, Rhode Island, dexter, 42 Miss. 304. But not merely South Carolina and Vermont a because it contains a recital that common-law seal is still required, it is sealed. McCarley v. Super- lo See Long v. Ramsey, 1 S. & R. visors, 58 Miss. 483. A scrawl is (Pa.) 72. sufficient in the states of Colorado, n Burton v. Le Roy, 5 Sawyer Connecticut, Delaware, Florida, (C. Ct.) 510. In this case a scroll Georgia, Illinois, Maryland, Mich- made with a pen inclosing the let- igan, Minnesota, Missouri, Nevada, ters "L. S." was held to be a seal. New Jersey, North Carolina, Ohio, i-' Lewis v. Overby, 28 Gratt. Oregon, Pennsylvania, Virginia, (Va.) 627. SEALING. 570 Notwithstandiuj; that the iustruiiieiit UHUulIy recites that the grantor or person executing has affixed his seal, it very rarely hapiieiis that the i)arty executing Heals the wi'iting with his owu hands or witli his own seal, the wafer or scrawl being usually appended by the scrivener as part of the clerical labor of i»repai"ing the deed. It would seem, therefore, that the method of sealing is wholly immaterial, provided the deed purports to be a sealed instrument, and atfords evidence that it was executed and delivered as such; and usually, although not technically under seal, if it is otherwise in form it will at least be sufficient to convey an etjuitable title, and, if recorded, affect those inter- ested with constructive notice of its contents as fully as if sealed.^ ^ It has been held that where the record, made at a time and under a law i)ermittiug the registration only of sealed instru- ments, showed an instrument in fonn a proper deed, the con- clusion, attestation and certificate of acknowledgment all speaking of it as under seal, it will be presumcHi that the orig- inal was sealed ;^^ and generally, where a deed has been duly recorded, the existence of the seal to the original will be pre- sumed from the statements in the concluding clause of the instrument that the grantor affixed thereto his seal, and in the attestation clause that the instrument was sealed in the pres- ence of the witnesses ;^^ and whether or not it was the legal duty of the recorder to indicate upon the record whether the instrument was sealed, his omission to do so will not overcome the i)resumption.'*'' § 489. Omission to seal. A deed without a seal is technic- ally defective, yet not so much so as to render it nugatory; for the rule is well settled that a defective conveyance is still sufficient to bind the lands conveyed in the hands of the grantor and his heirs, and that e(piity will interpose for the relief of a vendee who has taken under a defective convey- ance, and compel tlie grantor and all who claim under him through operation of law, as well as subsetpu-ut purchasers 13 Grandin v. Hernandez, 29 Hun i"' Le Franc v. Richmond, 5 Saw- (N. Y.) 399. yer (C. Ct.) 601. i< Starkweather v. Martin, 28 i« Starkweather v. Martin, 28 Mich. 471. Mich. 471. 580 EXECUTION. with notice, to make good the title.i'^ Such an instrument would not in many cases be allowed to operate as a deed, but it would in all cases be construed as a valid written contract conveying an equitable title ;'^ and where it appears that the seal was omitted by mistake, or where a plain intent to affix a seal is manifest, it has been held that a court of equity, in order to carry out the intention of the grantor, will, at the suit of those who are justly and equitably entitled to the benefit of the instrument, adjudge it to be as valid as if it had been sealed, and will grant relief accordingly, either by compelling the seal to be affixed, or by restraining the setting up of the want of it to defeat a recovery at law.^^ 17 Mastin v. Halley, 61 Mo. 199. Haughton, 7 Conn. 543 ; Green v. isBrinkley v. Bethel, 9 Heisk. R. R. Co. 12 N. J. Eq. 165; Rut- (Tenn.) 789. land v. Paige, 24 Vt. 181; McCarley 19 Bernard's Township v. Steb- v. Supervisors, 58 Miss. 486. bins, 109 U. S. 349; Montville v. Article IV. Delivery. 490. General principles. §498. Sufficiency of proof of de- 491. Theory of delivery. livery. 492. Intention the vital princi- 499. Delivery to infant. ple of delivery. 500. Delivery to third person. 493. Presumption of time of de- 501. Delivery to take effect after livery. death of grantor. 494. Presumption from record- 502. Continued — Testamentary ing. deeds. 495. Presumption from posses- 503. Deed retained by grantor. sion of instrument. 504. When grantor will be es- 496. Presumptions in case of topped. voluntary deeds. 505. Revocation and redelivery. 497. No presumption from exe- 506. Delivery in escrow. cution. 507. Acceptance. § 490. General principles. It is a fundamental rule, estab- lished and confirmed by the entire current of ancient and modern authority, that to constitute a valid transfer of the title to land by grant there must be a delivery of the deed or instrument purporting to convey the same.^ That is, the deed must pass from the grantor to the grantee, or to some third person for him, in such a manner as to preclude the grantor from recalling same and with the intent that it shall pres- ently operate as a transfer of the grantor's rights. This is regarded as the final act which consummates and confirms the conveyance, without which all other formalities are inef- fectual;- and though a deed may be duly executed, and in all other respects i)erfect, yet, while remaining undelivered in the hands or under the control of the grantor, it passes no title.^ 1 Mitchell v. Bartlett, 51 N. Y. 447; Stiles v. Brown, 16 Vt. 563 Tisher v. Beckwith, 30 Wis. 55 Oliver v. Stone, 24 Ga. 63; Arm strong V. Stovall, 26 Miss. 275 Overmann v. Kerr, 17 Iowa 486 Rountree v. Little, 54 111. 323; Can non v. Cannon, 26 N. J. Eq. 316 Jones V. Jones, 9 Conn. Ill; Critch field V. Critchfield, 24 Pa. St. 100; Barr v. Schroeder, 32 Cal. 610. 2 Williams v. Baker. 71 Pa. St. 476; Borland v. Walrath, 33 Iowa 130; Rowland v. Blake, 97 U. S. 624; Brown v. Brown, 66 Me. 316; Tisher v. Beckwith, 30 Wis. 55; Cook V. Brown, 34 N.H. 476; Fisher V. Hall, 41 N. Y. 421; Hoboken Bank v. Phelps, 34 Conn. 103; Por- ter V. Woodhouse, 59 Conn. 568. •■' Byars v. Spencer, 101 111. 427; Egery v. Woodard, 56 Me. 45; 581 582 EXECUTION. To impart validity there must be a manifestation, either by act or declaration, of an intention on the part of the grantor to give, and a reciprocal intention on the part of the grantee to take, and it is only by the joint concurrence of these inten- tions that the devolution of title becomes complete.* Yet though delivery is essentially a solemn observance it is by no means a formal one,^ and no particular act or set phrase of speech is necessary to constitute a legal transfer. A valid delivery may be effected by simply handing the instrument to the grantee,^ or to some third person for him,"^ or it may be legally delivered without being actually handed over, provided by declaration or other act it may be inferred that the grantor intended to part with the title ;^ and if once delivered its retention by the grantor will not invalidate the conveyance nor affect the title of the grantee.^ A delivery will be presumed where the deed has been left by the grantor with the proper officer for record,^ ^ q^ j^^y -^q. inferred from the fact that it is found in the possession of the grantee, unat- tended by any controlling circumstances to the contrary j^^ Fisher v. Hall, 41 N. Y. 416; Bur- other is not absolutely essential in ton V. Boyd, 7 Kan. 17; Duer v. any case. Weber v. Christen, 121 James, 42 Md. 492^; but see Wall v. Wall, 30 Miss. 91; Prutsman v. Baker, 30 Wis. 644; Alsop v. Swat- hel, 7 Conn. 503. ■tCline V. Jones, 111 111. 563; Bears v. Spencer, 101 111. 433; Woodbury v. Fisher, 20 Ind. 388; Parker v. Hill, 8 Met. (Mass.) 447; Parmlee v. Simpson, 5 Wall. (U. 111. 91. c Bogie V. Bogie, 35 Wis. 659. 7 Henrichsen v. Hodgen, 67 111. 179; Stephens v. Rinehart, 72 Pa. St. 434; Brown v. Brown, 66 Me. 316; Hinson v. Bailey, 73 Iowa 544; Hamilton v. Armstrong, 120 Mo. 597. 8 Tallman v. Cooke, 39 Iowa 402; S.) 81; Eames v. Phipps, 12 Johns. Walker v. Walker, 42 111. 311; Mar- (N. Y.) 418; Bullitt v. Taylor, 34 tin v. Flaherty, 13 Mont. 96; Comp- Miss. 708; Rittenmaster v. Bris- ton v. White, 86 Mich. 33; Fisher bane, 19 Cal. 371. 5 The ordinary and simplest mode of delivery is the actual tra- V. Hall, 41 N. Y. 416. 9 Wallace v. Berdell, 97 N. Y. 13; Burkholder v. Cased, 47 Ind. 418; dition or manual transfer of the Albert v. Burbank, 25 N. J. Eq. instrument from the grantor to the 404 ; Thomas v. Groesbeck, 40 Tex. grantee for the purpose and with 530; Reed v. Douthit, 62 111. 348. the intention of passing the title lo Himes v. Keighblinger, 14 111. from the former to the latter, and 469; Counard v. Calgan, 55 Iowa of relinquishing all power and con- 538; Mallett v. Page, 8 Ohio St. trol over the instrument itself. But the actual passing of the deed 367. Ji Newlin v. Beard, 6 W. Va. 110; from the hands of the one to the Brittain v. Work, 13 Neb. 347. DELIVERY. 583 and, ji^cncrMlly, aiiytliin<; done by tlic j^rantoi- from which it is ai)itar('ii( that a delivery was iiiteudod, either words or acts or both combined, is sutlicient,^^ To the foregoing j;eneral rule there is, however, one excep- tion, and this occurs in the case of conveyances of orij^inal title by the state or general governments. In such instances, unlike conveyances between individuals, a formal delivery of the patent is not essential to its validity, nor will the non- delivery defeat the grant. When a patent has been duly exe- cuted and recorded in the general laud oHlce, it becomes a soleimn public act of the government and needs no fui-ther delivery to make it perfect and valid, and the title to the land conveyed passes by matter of record to the grantee.^ ^ Nor is it necessarj' in such case that there should be a formal accept- ance on the part of the grantee, for the acts required to be done by him in the preparation of his claim are equivalent to a positive demand for the patent; and although no one can be compelled by the government, any more than by an indi- vidual, to become a purchaser, or even to take a gift, yet, where there is no dissent, the assent and acceptance of the patentee are always presumed from the beneficial nature of the grant.i* Where no place is fixed for the delivery of the deed by the articles of agreement, the vendor is bound to seek the vendee and make a tender, or, if the vendee appoint a place, the vendor may tender it there.^'"' V? 491. The theory of delivery. No small degree of the im- portance attached to the delivery of the deed in modern con- veyancing arises from the fact that the deed has taken the 12 Burkholder v. Cased, 47 Ind. Saw. (C. Ct.) 369; Houghton v. 418; Tallman v. Cooke, 39 Iowa Hardenberg, 53 Cal. 181; Gilmore 402; Duer v. James, 42 Md. 492; v. Sapp. 100 III. 279. Warren v. Sweet, 31 N. H. 332; n Le Roy v. Jamison, 3 Saw. (C. Brown v. Brown, 66 Me. 316; Ct.) 369; Green v. Liter, 8 Cranch Thatcher v. St. Andrew's Church, (U. S.) 247; Gilmore v. Sapp. 37 Mich. 264; Cannon V. Cannon. 26 100 111. 279; Pierre Mutelle N. J. Eq. 316; Hatch v. Hatch. 9 Case, 3 Op. Atty.-Gen. 654; and Mass. 309; Rivard v. Walter, 39 111. see Warvelle on Abstracts of 415; Mitchell v. Ryan, 3 Ohio St. Title. 127, for an exposition of the 377. doctrine of governmental grants. i« United States v. Schurz, 102 m Fanchot v. Leach, 6 Cow. (N. U. S. 378; Le Roy v. Jamison, 3 Y.) 506. 584 EXECUTION. place of the ancient livery of seizin in feudal times, when, in order to give effect to the enfeoffment of the new tenant, the act of delivering possession in a public and notorious manner was the essential evidence of the investure of the title to the land. This became gradually diminished in importance until the manual delivery of a piece of turf, or any other equally symbolical act, became sufficient. When all this jiassed away, and the creation and transfer of estates by a written instru- ment called the act or deed of the party became the usual mode, the instrument was at first delivered on the land in lieu of livery of seizin,^^ until finally any delivery of the deed, or any act which the party intended to stand for such delivery, became effectual to pass the title.^'^ § 492. Intention the vital principle of delivery. The ques- tion of the delivery of a deed is always one of intention ;^^ and the mere fact that an instrument of conveyance has passed from the hands of the owner of the property to the party named therein as grantee does not in itself constitute or establish a delivery .^^ There must exist as well the intention to convey,2o and this intention seasonably manifested must always control. So again, the simple fact that the instrument still remains in the possession of the grantor does not neces- sarily imply that there has not been a delivery, for here, as in the former case, the question of intent comes in to govern; and where the circumstances show unmistakably that the grantor intended to divest himself of title and to invest the same in the grantee the delivery will still be complete.^i Indeed, anything which clearly manifests the intention of the grantor and the person to whom it is delivered that the deed shall presently become operative and effectual will constitute 16 Shep. Touch. 64; Coke on Litt. Ruckman, 32 N. J. Eq. 259; Hast- 266b. ings v. Vaughn, 5 Cal. 315; Martin 17 Church V. Oilman, 15 Wend. v. Flaherty, 13 Mont. 96. 656; Warren v. Levitt, 11 Foster if Henry v. Carson, 96 Ind. 412; (N. H.) 340; Hatch v. Hatch, 9 .Jordan v. Davis, 108 111. 336; Wil- Mass. 306. son v. Wilson, 158 111. 567. 18 Walker v. Walker, 42 111. 311; -'o Wilson v. Wilson, 158 111. 567. Nicol V. Davidson, 3 Tenn. Ch. 547; -i Ruckman v. Ruckman, 32 N. Gregory v. Walker, 38 Ala. 26; J. Eq. 259; Scrugham v. Wood, 15 Somers v. Pumphrey, 24 Ind. 231; Wend. (N. Y.) 545; McLure v. Col- Rogers v. Cary, 47 Mo. 235; Duer clough, 17 Ala. 96; Otis v. Spencer, V. James, 42 Md. 492; Ruckman v. 102 111. 622. DELIVERY. 585 a sufficient delivery even though retained by neither party to it.22 Act and intention are the two elements or conditions essen- tial to a deli wry of a deed. The act may be a niauual transfci' of the instrument, with or without accompanying words, or it may be a purely verbal act, as when the grantee is siinj)ly directed to go and get the deed already prepared for him; but it is the intention which gives vitality to the act, whatever that may be.-"^ The crucial test in all cases is the intent with which the act or acts relied on as the ecpiivaleut or substitute for actual delivery were done; and this intent is to be gath- ered from the conduct of the parties, particularly of the grantor, and all the surrounding circumstances.-^ § 493. Presumption of time of delivery. It is not custom- ary to insert in the draft of a deed the time of its delivery; and this essential point has, from necessity, been made to depend largely on presumption. Ordinarily a deed will be presumed to have been delivered on the day of its date,^^ or, 22 As where a deed has been prop- erly signed, sealed, attested and acknowledged in the presence of both parties and the certifying of- ficer, and then left by the grantor with such officer and never called for (Jamison v. Craven, 4 Del. Ch. 311), or where a grantee to whom and in whose presence a deed had been made directed the notary who drew it to send it to the recorder for registration, but the notary put the deed in his safe and forgot about it (Adams v. Ryan, 61 Iowa 733), held good deliveries on the day the deeds were made. So, too, where the grantor in a deed lying in the presence of the parties to it, with the intention of passing the estate and of divesting himself of all power over the instrument it- self, directs the grantee to take possession of it, and the latter sig- nifies his assent, the delivery will be complete without either party actually touching the deed. Weber V. Christen, 121 111. 91. And see Jackson v. Sheldon, 22 Me. 569; Walker v. Walker. 42 111. 311; Arm- strong v. Stovall, 26 Miss. 275; Burkholder v. Casad, 47 Ind. 418; Dayton v. Newman, 19 Pa. St. 194; Martin v. Flaherty, 13 Mont. 96; Woodward v. Comp. 22 Conn. 459; Rosseau v. Bleau, 131 N. Y. 177. ^^Cline V. Jones, 111 111. 563; Ruckman v. Ruckman, 32 N. J. Eq. 259; Warren v. Swett, 31 N. H. 332; Stevens v. Hatch, 6 Minn. 64; Por- ter V. Woodhouse, 59 Conn. 568. 24 Weber v. Christen, 121 111. 91. where a deed executed to a bank was handed by the notary to one of the directors, who was instructed by the grantor that the deed was not to be delivered to the bank until certain disputes between grantee and grantor were settled. Held, that there was no delivery. Healdsburg v. Bailbachi, 65 Cal. 327. 25 Billings v. Stark, 15 Fla. 297; 586 EXECUTION. in the absence of any date, at the time of its acknowledgment. This presumption, however, is one of convenience only — it is never conclusive,-*^ and the true date of delivery may always be shown by evidence aliunde, ^7 the testimony of a single witness being sufficient for this purpose. It has been held that, where the date of the acknowledg- ment is subsequent to the date given in the body of the deed, there is no presumption of delivery prior to the acknowledg- ment;-^ and it is not to be denied that such decisions rest upon plausible grounds, but the volume of authority does not sustain this doctrine. The date of execution, therefore, in the absence of other proof to the contrary, and except where con- trolled by local decisions, may still be taken as the true date of delivery, and not the date of acknowledgment, which, as a matter of convenience, may well have been made afterwards.^^ An acknowledgment subsequent to the date of the deed is not inconsistent with the theory of a prior delivery ,3<^ for it may often happen that a deed is delivered and accepted with intent to have it acknowledged at some future time;^^ and in one instance a court has gone so far as to say that a subsequent acknowledgment is of itself evidence of a prior delivery .^2 § 494. Presumption from recording. The vital principle of delivery is the reciprocal intention to give and to receive; Meach v. Fowler, 14 Ark. 29 ; Dein- lings v. Stark, 15 Fla. 297. inger v. McConnell, 41 111. 228; so Raines v. Walker, 77 Va. 92; Treadwell v. Reynolds, 47 Cal. 171; Clark v. Akers, 16 Kan. 166. Harman v. Oberdorfer, 33 Gratt. -i Harmon v. Oberdorfer, 33 (Va.) 497; Raines v. Walker, 77 Gratt. (Va.) 502. Va. 92; Ellsworth v. R. R. Co. 34 ^2 pord v. Gregory, 10 B. Mon. N. J. L. 93; Wheeler v. Single, 62 (Ky.) 180. The fact of delivery Wis. 380; Robinson v. Gould, 26 is usually mentioned in the attes- lowa 89. tation of witnesses, but is not, as 26 Whitman v. Henneberry, 73 a rule, alluded to in the certificate 111. 109. of the officer who takes the ac- 27 Treadwell v. Reynolds, 47 Cal. knowledgment; yet as the parties 171; Eaton v. Trowbridge, 38 Mich, acknowledge "execution," and as 454. delivery may properly be held to 28 Fontaine v. Savings Institu- be a part of the execution, and tion, 57 Mo. 553; Brolasky v. Fu- necessary to its validity, the reason rey, 12 Phil. (Pa.) 428; Johnson of the last citation may be seen. V. Moore, 28 Mich. 3; Henry v. As certificates are sometimes Bradshaw, 20 Iowa 255. drawn the facts of execution are 20 People V. Snyder, 41 N. Y. 402; stated, as, that the grantor ac- Hardin v. Osborne, 60 111. 93; Bil- knowledged that he "signed, sealed DELIVERY. 58'}' hence, as has been hIiowii, actual iiiauiial delivery \h not essen- tial to a valid lej^al act, and cireunistances which tend to show this intention may be received as evidence of the fact. For this reason the re<;istry of a deed by the j^rantor is entitled to great consideration, and may, under favorable circumstances, or in the absence of opposing evidence, justify the presump- tion of a delivery.^"' The j)reHumption is not conclusive, how- ever, and may be repelled by any inconsistent facts, as where the grantee had no knowledge of the existence of the deed, and the property which it i)urported to convey always remained in the possession and under the control of the grantor ;•''•* yet, ordinarily, the recording of the instrument not only affords prima facie evidence of delivery, but, when i)roperly executed and acknowledged, raises a legal presumption of that fact;^"' and generally a delivery will be presumed, in the absence of direct evidence of the fact, from concurrent acts of the parties recognizing a transfer of title.^® The record of a deed not only indicates delivery, but, where to the grantee's advantage, an acceptance as well;^'^ and where the grantor in a deed not actually delivered causes the same to be recorded, this will constitute a sufficient delivery to enable the grantee to hold the land as against the grantor.^^ But while the recording of a deed may ailord at least prima facie evidence of delivery and acceptance, this must be under- and delivered" the deed. In such 3.'; Kille v. Ege, 79 Pa. St. 15; event the certificate may fairly be Alexander v. Alexander, 71 Ala. said to evidence a prior delivery. 295; but see Boyd v. Slayback, 63 33 Younge v. Guilbeau, 3 Wall. Cal. 493. (U.S.) 636; Himes v. Keighblinger, 3o Thus, where a deed had been 14 111. 469; Burkholder v. Cased, 47 executed and recorded without the Ind. 418; Kille v. Ege. 79 Pa. St. knowledge of the grantee, who sub- 15; Counard v. Colgan, 55 Iowa sequently executed a conveyance to 538; Elsberry v. Boykin, 65 Ala. a third party, this recognition by 336; Moore v. Giles, 40 Conn. 570; both parties of the transfer of the Rowell V. Hayden, 40 Mo. 582; title would be suflBcient evidence Wellborn v. Weaver, 17 Ga. 267; that at the time a delivery of the Bullitt v. Taylor, 34 Miss. 708. deed had been made. Gould v. Day, f* Younge v. Guilbeau, 3 Wall. 4 Otto (U. S.) 405. (U. S.) 636; Wiggins v. Lusk, 12 st Metcalfe v. Brandon, 60 Miss. 111. 132; Leppack v. Union Bank, 685; Masterson v. Cheek. 23 111. 73; 32 Md. 136; Knolls v. Barnhart, 71 Cecil v. Beaver, 28 Iowa 241. N. Y. 474; Jefferson, etc. Assoc, v. ^s Kerr v. Birnie, 25 Ark. 225; Hell, 81 Ky. 513. Dale v. Lincoln. 62 111. 22; Kings- 688 EXECUTION. (stood as iipplyiug- only to ii deed simply conveying tlie prem- ises, and not to one whiitli imposes an obligation on the grantee or creates an assumption on liis part in regard to pre- existing incumbrances.*^'^ As before remarked, however, the recording of a deed raises no conclusive presumption ;*" and where a grantor has, with- out the knowledge of the grantee, caused a deed to be recorded, which afterwards has been returned to him and by him retained, the question as to whether, as a matter of law, there has been a delivery, is one which it seems has puzzled courts to decide.^i The voluntary record of a deed, absolute in form and beneficial to the grantee, is ordinarily a good delivery; yet, as delivery is essentially a question of intent, and as a delivery without an intent to deliver is no delivery in law,^- the embarrassment of the question is manifest.^^ The presumption of delivery of a deed arising from its being recorded is rebutted by proof that the grantee never was in possession nor claimed under the deed; that the land was valuable only for its use and occupation; and that the grantor, his heirs and representatives have remained in undis- turbed possession for more than the period covered by the statute of limitation, without recognizing any rights under the deed. Non-delivery by the grantor, or a reconveyance, is then presumed;'** or it may be presumed, either that the bury V. Burnside, 58 111. 310; wife did not sufficiently appear Palmer v. Palmer, 62 Iowa 470. from these facts. McGraw v. Mc- ao Thompson v. Dearborn, 107 Graw, 79 Me. 257. So, also, in a 111. 87. case where the grantor, for the 40 Jefferson, etc. Assoc, v. Heil, purpose of placing his land beyond 81 Ky. 513. the reach of his creditors, made a 41 See Vaughn v. Goodman, 94 deed to his nephews, one of whom Ind. 191; Alexander v. Alexander, was an infant. There was no man- 71 Ala. 295. ual delivery, although the neph- 42 Jordan v. Davis, 108 111. 336. ews, when informed of the trans- 43 A., for the purpose of protect- action, assented thereto; the grant- ing himself against judgments, con- or, however, retained the custody veyed land through a third person and control of the deed. Held, that to his wife. A. caused the deeds there was no delivery. Weber v. to be recorded and kept them him- Christen, 121 111. 91. self until he died. Held, in a suit 44 Knolls v. Barnhart, 71 N. Y. between A.'s wife and A.'s children, 474. that a delivery of the deed to the DELIVERY. 680 <;raiilt'(* never accei)ted the deed or liad reliuquiHlied any claim thereuuder,^"' § 495. Presumption from possession of instrument. Pos- session has ever been rej^arded as one of the strongest evi- dences of owuersliip. The principle is practically unlimited in its application, and carries with it as a corollary the further principle that such ownership had its origin in a claim of right. Acting upon this principle the possession and produc- tion of a properly-executed deed by the grantee therein named raises a presumption, in the absence of any controlling cir- cumstances to the contrary, that the same was legally deliv- ered j^** and only clear and convincing evidence can overcome this presumption.^^ Still the question of delivery is a ques- tion of intent, and a delivery without the intent to deliver is not a delivery in law;"*** therefore, where it is found as a fact that a deed was never delivered, it is void although it came into the possession of the person named therein as grantee and was recorded.^'-* Cases very frequently arise where the deed is handed to the grantee for inspection, or for some tem- porary purpose, where there is no completion of the transfer and no intention of giving the deed effect, and in such cases there is no valid delivery.^<* § 496. Presumptions in case of voluntary deeds. It would seem that the law makes stronger presumptions in favor of the delivery of deeds in cases of voluntary conveyance than in ordinary cases of bargain and sale,^i and the authorities go ■45 TrafEord v. Austin, 3 Tenn. Ch. evidence of its delivery was inap- 492. plicable, plaintiff not appearing to 40 Wallace v. Berdell, 97 N. Y. 13; be the grantee.^ Newlin v. Beard, 6 W. Va. 110; 47 McCann v. Atherton, 106 111. Brittain v. Work, 13 Neb. 347; 31; Simmons v. Simmons, 78 Ala. Tunnison v. Chamberlin, 88 111. 365. Jhe presumption may be 379; Butrick v. Tilton, 141 Mass. overcome by proof of fraud, but 93; Simmons v. Simmons, 78 Ala. such proof must be clear and ex- 365. ^^In Andrews v. Dyer, 78 Me. plicit. Cover v. Manaway, 115 Pa. 427, which was a real action St. 338.' brought by the plaintiff Melissa A., *« Jordan v. Davis. 108 111. 336; who claimed title under a deed Cherry v. Herring. 83 Ala. 458. from her deceased husband run- •»» Dwinell v. Bliss, 58 Vt. 353. ning to Mercy A., it was ?icld that '-o Gilbert v. Ins. Co., 23 Wend, the rule that the production of a (N. Y.) 43. deed by the grantee is prima /acie m Reed v. Douthit. 62 111. 348; 500 EXECUTION. far to establish the proposition that au iustriiment may be good as a voluntary settlement even though it be retained by the grantor in his possession until his death.^^ j>^q cases in this respect, however, are generally attended with the quali- fication that there shall be no circumstances besides the mere fact of retaining the instrument to show that the executing party did not intend it to operate immediately, or to denote an intention contrary to that appearing upon the face of the deed. But notwithstanding the deed purports to be an abso- lute conveyance of the grantor's entire interest in presenti, if it nevertheless appears that such deed was not intended to be absolute, but to be qualified in effect ;^3 or if it appears that it was not intended to convey the grantor's whole interest, but to leave in him a life estate or some other interest; or that it was not intended to operate presently, but only upon the grantor's death,^^ or the doing of some particular act or happening of a certain contingency — then the presumption ceases, and the fact that the grantor has kept the deed in his own possession becomes indicative of non-delivery .^^ § 497. No presumption from execution. Simply executing Walker v. Walker, 42 111. 311; Sou- out of the grantor's control, but verbye v. Arden, 1 Johns. Ch. (N. was placed by him in a bureau in Y.) 240. his house with other papers, where 52 Bunn V. Winthrop, 1 Johns, it remained until his death. He Ch. (N. Y.) 329; Scrugham v. expressed to the justice who took Wood, 15 Wend. (N. Y.) 545; Otis his acknowledgment his intention V. Beckwith, 49 111. 121, that the land should go to these 53 Jones V. Loveless, 99 Ind. 317. children, saying that he had given 54 Williams v. Schatz, 42 Ohio St. his older children, who were grown 47; Davis v. Cross, 14 Lea (Tenn.) and had left him, a good farm. In 637. reply to the suggestion that it 55 Cline V. Jones, 111 111. 563; should be delivered and recorded, Goodlett v. Kelly, 74 Ala. 213. In he replied that, being the natural Byars v. Spencer, 101 111. 429, it guardian of the children, he was appeared that one Thomas Whit- the proper person to have custody son, a widower, who had been of the deed; but that he objected twice married, had two minor to recording it at that time, be- children by the second marriage, cause if he could sell the land for Before he died, he executed and $6,000 he wished to do so and di- acknowledged a deed conveying to vide the money between the chil- them the farm on which he lived, dren, and if it was on record it It was never delivered to the grant- would not be possible to make a ees, nor to any one for them, nor good title, since his children were ever recorded, and did not pass minors. But some time before DELIVERY. 591 and acknowledging a deed pursuant to previous agreement, while it may be evidence which, when taken in connection with other circuinstances, may tend to disclose intent, will not of itself amount to a delivery j"^" and no legal presumption will arise from such acts." A party claiming under a deed must always jtrovc its delivery; and this is not accomi)lished by a simple showing of the fact of execution, nor even by such fact and the further circumstance that it has passed from the grantor's hands; for a delivery to a third person, or even to the grantee, may be made for other purposes than to give the deed effect, and the mere fact that it is put into their hands, if not as a completed transfer, will not bind the grantor.^^ § 498. Sufficiency of proof of delivery. To constitute the act of a grantor a delivery of a deed, it must be such as to manifest an intention on his part to make a delivery, and to part with the possession and control of the instrument. Yet, as previously remarked, this intention may be gathered from acts or words, or from both; and it is not essential that the deed be delivered to the grantee, or indeed that it ever actually pass from the hands of the grantor.^^ Any com- petent testimony which clearly and unmistakably tends to show the essential facts will, in the absence of any evidence his death he offered to sell the it to one N. to hold subject to corn- farm, and on several occasions plainant's order. It was under- called it his. The court held there stood between complainant and the was no delivery. See also Stinson person who drew the deed that V. Anderson, 96 111. 373. complainant could rescind or alter 60 Turner v. Carpenter, 83 Mo. it at will. Complainant gave de- 333. fendant an order on N. for the 57 Boyd V. Slayback, 63 Cal. 493. deed in order to show it to defend- 68 Jackson v. Phipps, 12 Johns, ant, and to induce him to secure (N. Y.) 418; Prutsman v. Baker, certain payments to complainant's 30 Wis. 644; Bovee v. Hinde, 135 other heirs — the deed, in such case, 111. 137. The deposit of a properly- to be operative at complainant's executed deed with a public ofhcer, death. Defendant took the deed but not for record, and with no and put it on record. Held, that purpose of giving the deed effect, there was no delivery of it, and was held no delivery. Austin v. complainant could rescind it and Register, 41 Mich. 723. Complain- have it canceled of record. Pen- ant made a deed of his land, in- nington v. Pennington (Mich.) 42 eluding his homestead, to defend- N. W. Rep. 985. ant, with intent to have the same so Munoz v. Wilson, 111 N. Y. delivered after his death, and gave 295, 592 EXECUTION. contradicting or impeaching it, or of any circumstances which, may throw suspicion upon it, be sufficient to establish a valid delivery ,^<^ and the court may instruct the jury to find a deliv- ery where the whole testimony shows a state of facts from which delivery is a positive inference of law.*^^ But the testi- mony should be of such a character as to leave no doubt as to the grantor's intention that the deed should at the time become operative and effectual. Upon this point all the ques- tions relative to delivery turn, and the proof must satisfac- torily establish this fact before the deed can be regarded as evidence of a conveyance.^^ § 499. Delivery to infant. Deeds to infants of tender years are governed by somewhat different rules than those which, prevail in case of adults. Thus, if a parent executes a deed to an infant child and in his interest, and manifests by words and conduct an intention that the deed shall operate at once, a delivery will be presumed, and proof of an actual delivery will be unnecessary. The duty of the parent, in such a case, to accept and preserve the deed for the infant until he arrives at majority, is sufficient to warrant the presumption of delivery, and, when the grantor is also the father of the grantee, to 60 Otis V. Spencer, 102 111. 622; claim that it had previously been Stinson v. Anderson, 96 111. 373; delivered; and the grantor, in his Cover V. Manaway, 115 Pa. St. 338; answer to a bill in equity, denied McLaughlin v. Manigle, 63 Tex. that it had been delivered. Held, 553. that a delivery had not been 61 Jones v. Swayze, 42 N. J. L. proved. Mills v. Gore, 20 Pick. 279. (Mass.) 28. A father executed and 62 See Gorman v. Gorman, 98 111. acknowledged a deed purporting to 361; Benneson v. Aiken, 102 111. grant an estate to his three adult 284. A grantor upon signing a deed sons, to take effect presently, and put it before the grantee, saying, then delivered the deed to one of "There is no go back from th'at," them, saying, "Take this deed and and the witnesses then subscribed put it in our box at the bank." He their names. A note, which was did no other act showing an inten- to be the consideration of the deed, tion to formally deliver the in- was not handed to the grantor, but strument and himself retained pos- the two papers were taken up by session of the land granted, ra- the grantee, and the parties went ceiving the rents and profits, dur- to a magistrate, by whom the ac- ing his lifetime; held, that the in- knowledgment was taken and certi- strument was inoperative for want fied ; but the grantor withheld the of a sufficient delivery. Hayes v. deed from the grantee, and the Boylan, 141 111. 400. grantee did not then assent or DELIVERY. 593 evince an unmistakable intent on hin part to j^lve the deed effect and pass title."-* § 500. Delivery to third person. It is not necessary, to ellect a valid delivery, that the instrument should pass from the hand of the grantor to the grantee,*** for the law only re(iuires some act that shall preclude a revocation, and hence such delivery may be made to a third party authorized to receive it,^° or even to a stranger for the use of the grantee,"" provided, of course, there is a subsequent ratification ;"' and generally a delivery to any third person, intended to give the deed effect and to make the conveyance operative, is a legal delivery,***^ and will operate to transfer title to the grantee therein named by relation as of the time it was received by such third person.**^ But a delivery to a third person made for other purposes than to give the deed effect will be inoperative, and the mere fact that it is put into the hands of such third jierson, if not as a completed transfer, will not bind the grantor.'^" So, also, where a deed was intrusted to grantor's agent to be delivered after death, it was held there could be no continuance of agency after death, and that there was no valid delivery,"^! 63 Bryan v. Wash, 7 111. 568; Masterson v. Cheek, 23 111. 72; Colee V. Colee, 122 Ind. 109; New- ton V. Dealer, 41 Iowa 334. But compare Byars v. Spencer, 101 111. 429. 04 Cooper V. Jackson, 4 Wis. 537; Weber v. Christen, 121 111. 91. c-' Duer v. James, 42 Md. 492; Eckman v. Eckman, 55 Pa. St. 269; Hatch V. Bates, 54 Me. 136; Hinson V. Bailey, 73 Iowa 544; Fisher v. Hale, 41 N. Y. 416; Ashford v. Prewitt, 102 Ala. 264. c; Duer v. James, 42 Md. 492; Hosley v. Holmes, 27 Mich. 416; Souverbye v. Arden, 1 Johns. Ch. (N. Y.) 240; McCormick v. McCor- mick, 71 Iowa 379; Munoz v. Wil- son. Ill N. Y. 295. •'"Brown v. Brown, 66 Me. 316; Fisher v. Hall, 41 N. Y. 423. o"* Hosley v. Holmes, 27 Mich. 38 416; Owen v. Williams, 114 Ind. 179; Rosseau v. Bleau. 131 N. Y. 177; Parker v. Parker, 56 Iowa 111; Hatch V. Hatch, 9 Mass. 307; Peavy V. Tilton, 18 N. H. 151. 60 Munoz v. Wilson, 111 N. Y. 295. 70 Jackson v. Phipps, 12 Johns. (N. Y.) 418; Austin v. Register. 41 Mich. 723. A deed in a third person's hands subject to the grantor's orders was held not deliv- ered. Prutsman v. Baker, 30 Wis. 644. Ti Wellborn v. Weaver, 17 Ga. 267; McElroy v. Hiner. 133 111. 156: Anderson v. Anderson, 126 Ind. 62. But see Foster v. Mansfield. 3 Met. (Mass.) 412, where it was held that if a grantor, at the time of his giving directions for the mak- ing of a deed, and after the deed is drawn and presented to him, di- 594 EXECUTION. notwithstanding the instrument had been actually transmit- ted pursuant to such instruction^^ But such rule must be considered as having application only where the grantor assumes to still control the deed;'^^ for the cases are numer- ous where deposits made with third persons for transmittal to the granttH' after the grantor's death have been sustained as valid deliveriesJ* § 501. Delivery to take effect after death of grantor. Closely connected with the subject discussed in the preceding paragraph is the character to be given to instruments left with a third person to hold until the death of the grantor and then to be delivered to the grantee. Notwithstanding some of the earlier decisions to the contrary, the current of later authority seems to establish the doctrine that, where the grantor reserves no privilege of revoking or recalling the deed, its legal effect is that of an escrow, which, upon the happen- ing of the contingency of death, relates back to the first deliv- ery and becomes effective to convey the grantor's title.''^^ The reasonings by which these deliveries have been sup- rects and intends that from and after its execution it shall be taken and retained by the scrivener until after the grantor's death, and then be delivered to the grantee, all of which is afterwards done, the es- tate vests in the grantee from the time of the execution of the deed. See, also, Shackelton v. Sebree, 8B 111. 616. 7^ Weisinger v. Cock, 67 Miss. 511; Cook v. Brown, 34 N. H. 460; Brown v. Brown, 66 Me. 316; and see Wellborn v. Weaver, 17 Ga. 267, where such a delivery was denied effect even as an escrow, but, en semhle, might be proved as a testamentary paper. ■?••> It has been held that if a per- son executes a deed of land and places it in the hands of A., with directions to keep it during the grantor's life, and on his death to deliver it to the grantee, A. holds it as an agent of the grantor and not as agent of the grantee, and that the grantor may revoke it at any timei Hale v. Joslin, 134 Mass. 310. T4 As where a woman went with her daughter to a justice of the peace and signed and acknowl- edged before him a conveyance of land to the daughter. The mother told the justice to keep the deed until she died, and then to record it. Held, that the deed should be deemed to have been delivered when signed and acknowledged. Hinson v. Bailey, 73 Iowa 544. See, also. Smiley v. Smiley, 114 Ind. 258; Foster v. Mansfield, 3 Met. (Mass.) 412; Shackelton v. Sebree, 86 111. 616. TsHockett V. Jones, 70 Ind. 227; Stephens v. Huss, 54 Pa. St. 20; Howard v. Patrick, 38 Mich. 805; Wall v. Wall, 30 Miss. 91; Thatcher V. St. Andrew's Church, 37 Mich. 264; Owen v. Williams, 114 Ind. DELIVERY. 595 ported have not always been the same; indeed, they are very diverse, but the conclusions arrived at all sustain the doctrine that, when a <,n'antor phues in the hands of a third party his written deed with instructions to hold until the grantor's death and then to deliver it to the grantee, if such deposit is made with no other condition or reservation, and if the grantor by such act absolutely parts with all control or domin- ion over it, with no right to recall it or alter its provisions, or to have or enjoy any other or further interest in the lands conveyed than to hold the use thereof until his death, a valid delivery is established when consummated by the final act of transference to the grantee. The essential requisite in such case seems to be, that when placed in the hands of the depos- itary the instrument shall at once pass beyond the control of the grantor for all time, and his intention in the matter is a question of fact to be ascertained by the light afforded by all the circumstances surrounding the transaction.''^^ The general theory involved in the discussions of the foregoing conclusions seems, in the main, to be, that the grantor, in effect, by the absolute delivery to the depositary, converts his estate into a life tenancy, the remainder in fee vesting in the grantee.'^'^ There is some confusion in the reported cases as to when the deed talvcs effect, but, while some hold that it becomes opera- tive only upon the delivery by the depositary after the death of the grantor, such second delivery relating back to the first so as to divest title, the better and more logical rule, passes the title, full and complete, upon the first delivery. Indeed any other rule infringes upon the law relating to devises and produces an incongruity that is difficult to reconcile with the settled principles which govern the disposition of property by deed and will. § 502. Continued — Testamentary deeds. The question usually raised in matters of the kind discussed in the preced- ing paragrai)h is one of construction, the point to be decided being whether the instrument is to be considered as a deed or a will. It is well established that neither the form nor man- ner of execution of an instrument will affect its character, as 179; Hinson V. Bailey. 73 Iowa 544. 439; Prutsman v. Baker, 30 Wis. TO Bury v. Young, 98 Cal. 446; 650; Cook v. Brown, 34 N. H. 460. Sneathen V. Sneathen, 104 Mo. 201; 77 See Prutsman v. Baker, 30 O'Kelly V. O'Kelly, 8 Met. (Mass.) Wis. 650. 51)6 EXECUTION. this must be determined from its operation. If it takes effect in presenti it is a deed; if, on the other hand, it does not become operative until the death of him who makes it, it is a will, whatever be its form. Thus a deed, if made with a view to the disposition of a man's estate after his death, will inure in law as a devise or will.^^ A deed must take effect upon its execution or not at all.'^" Again, a deed, when once passed, cannot be revoked; a will remains ambulatory to the day of the testator's death. Applying these principles, the charac- ter of instruments under consideration can soon be deter- mined. If the delivery to the depositary be absolute, the grantor surrendering all power or control over the instrument, effect should be given to it as a deed of conveyance.^^ But a party cannot make a deed for land and retain its custody, and have it operate as a conveyance only at or after his death ;^i nor can he effect such a result by simply depositing the deed with a third person if he continues to have the right to recall it;^- and in such event, even though he dies without recalling it, a delivery by the depositary to the grantee would be with- out effect.®^ The lodgment of a deed, properly executed and acknowl- edged by the grantor, in a place to which the grantee has 7^ Wellborn v. Weaver, 17 Ga. ness within a few days, and C. then 267. handed the deed to B. Held, that 70 Cline v. Jones, 111 111. 563. there was no delivery. Williams v. 80 Prutsman v. Baker, 30 Wis. Schatz, 42 Ohio St. 48. S3 The grantor in a deed, fearing the approach of death, called her attendant to bring out a certain 644; Brown v. Brown, 66 Me. 316 Ball V. Foreman, 37 Ohio St. 139 Baker v. Haskell, 47 N. H. 479 Hinson v. Bailey, 73 Iowa 544. box and told her to take it into her 81 Cline v. Jones, 111 111. 563; lap; that she put it into her pos- Goodlett v. Kelly, 74 Ala. 213; Mil- session; that it contained her will, ler V. Lullman, 81 Mo. 311; Ball deeds to two houses and a thousand V. Foreman, 37 Ohio St. 139. dollars in gold; that on the deeds 82 This is so even though the were the names of the persons who grantor may not have intended to were to have the houses; that the retain such right and does not ex- box should be delivered to her ex- ercise it. Williams v. Schatz, 42 ecutor; that if she lived she would Ohio St. 47. A., while sick, exe- talk further about the contents of cuted a deed of gift to his son B., the box, but in any event not to and gave it to C, saying, "Take open it until after the funeral, this deed and keep it. If I get It further appeared that her atten- well I will call for it. If I don't, dant accordingly took charge of give it to B." A. died of that sick- the box, and she soon after died. DELIVERY. 597 access, and from which h<' can withont hindrance transfer it to his own possession, willi intent on the iiart of tlie j^rantor that the grantee may after his death take it and have it recorded, does not constitute a dclivery.'^^ V]Hm this point, however, the autliorities aic somewhat (liscordant — not as to the law, but in the application of tlie law to particular facts; and nunicrons decisions ajiix'ar to militate in some measure against the pr(»[)()sition last stated.'^-'' § 503. Deed retained by grantor. The fact that the grantor retains the custody of the deed does not in any way alVect the operation of a former delivery; and there are numerous cases where deeds found to have been in the custody of the grantor at his death have been held valid on proof, or facts amount- ing to proof, that he had made an eflectual delivery, and become a mere custodian of the deed thereafter.***^ Nor is it necessary that the grantee or his agent should be present at the execution of a deed, or himself actually manually receive the instrument, to render it operative; but it should be placed within the power of some other person for the grantee's use, or the grantor should clearly indicate it to be his intention that the instrument should take efl'ect as a conveyance of the property, so that if he retain the possession of the deed it should appear to be merely as bailee of the grantee; and in every instance where a deed is retained in the grantor's cus- tody there must be unequivocal proof of a legal delivery intended to be operative.**^ Held, that there was no sufficient Souverbye v. Arden, 1 Johns. Ch. delivery of the deed to pass a title. (N. Y.) 240. Porter v. Woodhouse, 59 Conn. 568. " Fisher v. Hall, 41 N. Y. 416. 84 Scott V. Scott, 95 Mo. 300. Thus, where a conveyance of real 85 As where a father duly exe- estate has been subscribed and cuted a deed to his son with intent sealed by the grantor, attested by that his son should assume control witnesses under a clause stating of his property after his death, but that it had been sealed and deliv- fearing that his son's wife might ered in their presence, but the dispossess him if she knew of the grantee was not then present, and conveyance he placed the deed in remained ignorant of the existence his son's trunk, where it was found of the deed until long after the after the grantor's death. Held, death of the grantor, and the that there was a delivery. Hill grantor continually remained In V. Hill, 119 111. 242. the possession of the premises until ■^oReed v. Douthit, 62 111. 348; his death, when the deed was 598 EXECUTION. A deed duly executed, but retained by the grantor until the land should be paid for, and he dying before payment, was held inoperative ;S'^ and in like manner a deed made by the grantor, and retained by him with the distinct understanding that it would become operative at his death, and found among his papers with a will which it was designed to alter, was held void for want of delivery during life.*^ Where the grantor has by will or otherwise asserted that an actual delivery has taken place, such deeds have been maintained, as they have also been in some cases where there was a previously-recognized obligation to make them and they purport to have been made in execution of it; but the reten- tion of control of title has always been held inconsistent with the validity of a deed held in custody. It would seem, there- fore, that any deed which is to be maintained after death must have been made operative by some valid delivery by the grantor during life; and while a disposition has been shown in some cases to raise presumptions on equitable showings, there is no foundation for any rule that will sustain an unde- livered deed, and there is no room for presumption when the facts appear.so § 504. When grantor will be estopped. The intention of the parties is in all cases the controlling element in determin- ing the operation and effect of a delivery. If the grantor intended a present delivery, and the grantee so understood and intended that there should be an acceptance, a formal delivery to the grantee in person would not be necessary to determine the character of the transaction or fix the rights of the parties so far as they may be dependent on that fact. Thus, where the grantor induces the grantee to believe that a deed has been executed which makes him the owner of certain premises, and permits the grantee to act under this belief in found among his papers, held, that 14 Ore. 82. A father, a year before such conveyance was wholly inop- his death, executed and acknowl- erative to pass the title, and no de- edged a deed to his son. He did livery thereof to the grantee could not deliver it. but directed his be presumed or inferred from daughter to do so after his death, these facts. Ibid. upon the execution of a note by the 88 Jackson v. Dunlap, 1 Johns, son. Held, that the deed was inop- Cas. (N. Y.) 114. erative. Taft v. Taft, 59 Mich. 185. 89 stillwell V. Hubbard, 20 Wend. so Taft v. Taft, 59 Mich. 185; (N. Y.) 44; and see Fain v. Smith. Fain v. Smith, 14 Ore. 82. DELIVERY. 599 tnaking valuable inipiovcmcnts on the laud, he will be estopped froui alle«,'iug that the deed in inoperative for want of formal deliverj."^ § 505. Revocation and redelivery, rrojierly speaking there can be no revocation of a deed which, being duly executed, has been actually or constructively delivered. By that act the title has passed beyond the grantor's control; and though he may still avail himself of the remedies which the law alTords either for reformation, cancellation or rescission, the power of revocation no longer exists. The fact that after delivery the deed has been returned to the grantor and by him retained neither negatives nor disproves its previous delivery; nor will it destroy or in any way affect the title of the grantee as between the parties ;^2 nor will the further fact that it has been canceled or destroyed while thus in the grantor's pos- session serve to divest title on the one hand or re-invest it on the other,^3 notwithstanding such may have been the inten- tion of the parties ;'^^ nor will the voluntary destruction of same by the grantee be effective to reconvey title.^^ The mere act of destroying the evidence of title can have no effect upon the title itself; and this being vested in the grantee, he will 81 Walker v. Walker, 42 111. 311. 92 Thomas v. Groesbeck, 40 Tex. 530; Hart v. Rust, 46 Tex. 556; Wallace v. Berdell, 97 N. Y. 13; Burkholder v. Cased, 47 Ind. 418; Albert v. Burbank, 25 N. J. Eq. 404; Kimball v. Grey, 47 Ala. 230. 03 Warren v. Tobey, 32 Mich. 45; Reavis v. Reavis, 50 Ala. 60; Rog- ers V. Rogers, 53 Wis. 36; Jackson V. Gould, 7 Wend. (N. Y.) 364; Botsford V. Morehouse, 4 Conn. 550; Marshall v. Fisk. 6 Mass. 24; Tibeau v. Tibeau, 19 Mo. 78; Kear- sing V. Kilian, 18 Cal. 491; Patter- son V. Yeaton, 47 Me. 308; Jordan V. Jordan, 14 Ga. 145; Watters v. Wagely, 53 Ark. 509. 0* Warren v. Tobey, 32 Mich. 45; Reavis v. Reavis, 50 Ala. 60; Chess- man v. Whittemore. 23 Pick. (Mass.) 231; but see Sawyer v. Peters, 50 N. H. 143; Howard v. Huffman, 3 Head (Tenn.) 564. A deed is but the evidence of a con- veyance; and the destruction of a deed, while it affects the evidence of a conveyance, does not vacate or affect the conveyance itself or re- invest title in the grantor. Erwin v. Hall, 18 111. App. 315. Where a deed has been made to a married woman, and, before recording it, she sells the land to a third per- son, and surrenders her deed to her grantors, and has them execute a deed to such person, he gets no interest in the land, as title cannot be divested by cancellation and sur- render of a deed. Wattersv. Wagely, 53 Ark. 509. » 5 Potter v. Adams. 125 Mo. 118; Van Hook v. Simmons, 25 Tex. 323. GOO JBJXECUTION. continue to hold it as against the grantor."'* The grantee, however, although possessing the estate, having voluntarily and without fraud or mistake destroyed the evidences of his legal ownership, would, in case of an unrecorded deed, be left entirely without means by which he could afterwards establish or prove his title ;^^ and in such case the title, in a very restricted sense, may be said to have reverted, because the grantee is estopped to assert or prove it,-''* and thus the inten- tion of the parties may become effective. Again, while the redelivery or destruction of the deed can have no effect as a transfer of the legal title, it may under some circumstances vest an equitable title,^^ or at least preclude the grantee from asserting the same; and as in equity such a title may be set up against a legal title, courts in a x^roper case will not inter- fere to divest them.i But while the foregoing represents the doctrine enunciated and sustained by the volume of authority upon the subject, it would yet seem that a different rule is maintained in some states, where it is held that a voluntary surrender or cancel- lation, with intent to revest title in the grantor, may operate as a reconveyance when the cancelled deed has not been 96 Parker v. Kane, 4 Wis. 1; i As where a husband, after hav- Hentch v. Hentch, 9 Mass. 307; ing received a deed for a lot from Jackson v. Page, 4 Wend. (N. Y.) his wife's parents, surrendered the 417; Jeffers v. Philo, 35 Ohio St. deed to them for the purpose of 173. having them convey the lot to his 97 Parker v. Kane, 4 Wis. 1; wife, and his deed was destroyed, Dukes V. Spangler, 35 Ohio St. 119. it having never been recorded, and 98 Howard v. Huffman, 3 Head a new one made to his wife, in (Tenn.) 562; Speer v. Speer, 7 Ind. which he acquiesced for seventeen 178; Dukes v. Spangler, 35 Ohio years before suing for a deed, ?ie?(i, St. 119; Farrar v. Parrar, 4 N. H. that the surrender of his deed by 191; Trull v. Skinner, 17 Pick, the husband and the making of a Mass. 213; Sutton v. Jervis, 31 Ind. new one to his wife did not divest 265. his legal title, but passed an equit- 99 Commonwealth v. Dudley, 10 able title to his wife which a court Mass. 402 ; Patterson v. Yeaton, 47 of equity would protect. Sanford Me. 308; Lawrence v. Stratton, 6 v. Finkle, 112 111. 146; but in this Gush. (Mass.) 165. In the fore- case the surrender by the husband going cases, however, where the and re-issue to the wife was re- grantee had surrendered his deed garded as in the nature of an equit- to the grantor, the property was able gift amounting to a settle- then sold to a third person with- ment. out notice. DELIVERY. 601 recorded,- and the ri<,'hls ol' third persons have not iutervened.-' So, too, under the operation of the rule last stated, it has been held that wliere thi* j^raiitee in possession under a deed duly executed, but not recorded, sells the land to a third person, cancels his deed, and requests his grantor to make a new conveyance to such third person, which he does, the title by such new conveyance is valid.' But this doctrine, which is confined to a very few jurisdic- tions.'' is fundamentally opposed to modern theories of the operation of the statute of frauds, which requires a conve}'- ance to be evidenced by a writing, and even where it is per- mitted to obtain it is explained and supported not upon the principle of grant but of estoppel." § 506. Delivery in escrow. Where a deed is delivered to a stranger, to be by him delivered to the grantee upon the performance of certain conditions, it is said to be in escrow. But as the first or preliminary delivery is simply a device for the greater convenience of the grantor, it has no operation in law, and the escrow takes effect as a deed only from the date of the second delivery; that is, from the date of its delivery to the grantee or some person in his behalf.'^ Prior to this event the estate, with all its incidents, remains in the grantor,^ and in case of his death during the intervening period descends to his heirs,'-^ subject, of course, to the equitable rights of the purchaser.!*^ But while delivery is essential to render the deed effectual at law, it is in fact the performance of the 1! See Farrer v. Farrer, 4 N. H. Peter v. Wright, G Ind. 183; Resor 191; Mallory v. Stodder, 6 Ala. 801; v. R'y Co. 17 Ohio St. 139; Everts Sherburne v. Fuller, 5 Mass. 133. v. Agnes, 4 Wis. 343; Cogger v. •■* Trull V. Skinner, 17 Pick. Lansing, 43 N. Y. 550. (Mass.) 218; Hall v. McDuff, 24 »< Jackson v. Rowland, 6 Wend. Me. 311. (N. Y.) 666; Cogger v. Lansing, ■* Commonwealth v. Dudley, 10 43 N. Y. 550. Mass. 403; Holbrook v. Tirrell, 9 » Teneick v. Flagg. 29 N. J. L. 25; Pick. (Mass.) 105; but see Walters Cogger v. Lansing. 43 N. Y. 550. V. Wagely, 53 Ark. 509. i" But only in the event that the ■'' It obtains mainly in the New contract can be shown by a valid England States. agreement — i. e., an agreement suf- '•• See Trull v. Skinner, 17 Pick, ficient to take the transaction out (Mass.) 215. of the operation of the statute of 7 Dyson v. Bradshaw, 23 Cal. frauds. Cogger v. Lansing. 43 N. 528; Smith v. Bank, 32 Vt. 341; Y. 550. 002 EXECUTION. coiulitions that imparts life aud validity ;^i and for this reason equity regards the title as vesting in the grantee whenever this has been done. It will be seen, therefore, that, unlike the ordinary case of delivery by grantor to grantee, no title passes until the condi- tions have been perfonued and the deed delivered to the purchaser, the second delivery deriving all its force from the first, of which it is the full consummation and execution. The essential requisite, however, is the performance of the condi- tions; and if, without such performance, the depositary delivers the escrow to the grantee except by direction of the grantor, the deed will, as between the parties, be inoperative and void. The fact that the grantee takes it in good faith does not alter the rule; for it is fundamental that the delivery must be with the assent of the grantor, and this is never pre- sumed while the conditions remain unperformed.^^ ^^itb. respect to third parties the decisions are not in complete harmony. Undoubtedly a purchaser from a grantee in escrow who had knowledge of the facts attending the deposit and delivery would take no better title than his grantor, and the estate in his hands would be subject to any infirmity origin- ally attaching to it. Hence, if the delivery by the depositary had been against the assent of the grantor in escrow^ or if it had been procured by fraud, or before the proper conditions had been performed, and the second purchaser had knowledge of these facts, he would acquire no title by the sale.^^ gut with respect to an innocent purchaser who, in good faith and for value, acquires title from a fraudulent grantee, a different rule should, and it seems does, prevail. There are cases which strenuously hold that in every instance where by improper means the grantee in escrow has obtained possession of the deed, and subsequently conveys to third parties, the superior equity is with the original grantor, who is considered as never having parted with the title, and the good or bad faith of the purchaser is immaterial ;i^ but 11 Hinman v. Booth, 21 Wend. White v. Core, 20 W. Va. 272; (N. Y.) 267; Groves v. Tucker, 18 Dixon v. Savings Bank, 102 Ga. Miss. 9; Laubat v. Kipp, 9 Pla. 60; 461. State Bank v. Evans, 15 N. J. L. is Everts v. Agnes, 6 Wis. 453 155; Smith v. Bank, 32 Vt. 341. (second hearing). 12 Everts v. Agnes, 4 Wis. 343; i^ Tisher v. Beckwith, 30 Wis. Daggett v. Daggett, 143 Mass. 516; 57; Everts v. Agnes, 6 Wis. 453; DELIVERY. 003 the later and better rule would seem to be that the general principles uliicli underlie the law of notice are to be given full elTect In this as in other cases, and that good faith, want of knowledge and jiarting with value, will confer upon the pur- chaser the same rights and atlord to liini the same protection that he would receive in any other species of fraudulent conveyance.!"' An unauthorized or fraudulent delivery by the depositary may, however, be subsequently ratified by the grantor, in which event the legal effect of the transaction is not distin- guishable from a delivery made in a proper manner. To accomplish this result an express ratification is not necessary for same may be presumed from the grantor's actions, his silence when called upon to speak, or other acts which go to create an estoi)pel in pais. In this way a subsequent purchaser may obtain protection although the delivery in escrow was void.!<^ It would seem to be a further rule that there can be no escrow until there is an actual contract of sale on the one hand and a purchase on the other. That is, a deed cannot be regarded as in escrow if the negotiations have not been closed or if anything remains to be settled to the satisfaction of the contracting parties. In such case the person holding the deed is a mere custodian, subject to the future orders of the grantor, and without right to deliver the instrument until notified by the grantor so to do.^'^ If a deed is deposited in escrow and the grantee dies the subsequent performance of the condition vests title in his Dixon V. Savings Bank, 102 Ga. could not question the bank's title. 461; and see Jackson v. Lynn, 94 Simson v. Bank, 46 Hun (N. Y.) Iowa 151. 156. ir. Quick V. Milligan, 108 Ind. lo See Gotten v. Gregory, 10 Neb. 419; Blight v. Schenck, 10 Pa. St. 125; Dixon v. Savings Bank, 102 285. A grantor delivered a deed in Ga. 461. escrow. The grantee procured it I'As where a deed was given to to show a bank, and, instead of a third person to be delivered when returning it, placed it on record "everything is all right and per- without the grantor's knowledge or feet" and there was nothing to in- consent, and without having per- dicate that the matter was to be formed the conditions of the es- settled otherwise than by the fu- crow. On the faith of the record ture agreement of the parties: the bank took a mortgage from the held, there was no escrow. Miller grantee. Held, that the grantor v. Sears, 91 Cal. 282. 601 EXECUTION. heirs,^^ and in like manner in case of the death of the grantor, if the condition is complied with the deed may be turned over to the grantee bj the depositary and such delivery will relate back and take etTect as of the original deli very .^^^ The vital principle of an escrow is the preliminary delivery to a stranger, and a delivery in escrow or upon conditions cannot be made to the grantee himself.-*^ Such a delivery is absolute; and though it be contrary to intent the deed takes effect presently as the deed of the grantor, discharged of the conditions upon which it was made, which, so far as the vest- ing of title is concerned, are thereby rendered nugatory.^i These are the general and well-recognized principles govern- ing this branch of the law, yet they are not to be taken with- out qualification; for if the conditions are written in or upon the deed,^- or if the deed be simply delivered to the grantee to await his detenuination to accept or not,-^ or is handed to the grantee for inspection, or is received or obtained by the grantet^ in any manner inconsistent with the general rules of law defining and fixing the method of the delivery of deeds, then the foregoing rule would not apply. If, however, a delivery was intended, then irrespective of any other inten- tions the deed becomes absolute.^^ But the rule that a deed cannot be delivered to a party to whom it is made as an escrow, and that in such case the delivery is absolute and the condition nugatory, is applicable only to the case of deeds which are upon their face complete 18 Lindley v. Graff, 37 Minn. 338. Wendlinger v. Smith, 75 Va. 300. 19 Lindley V. Graff, 37 Minn. 338; ^s Brackett v. Barney, 28 N. Y. Dettmer v. Behrens, 106 Iowa 585; 341. Stone V. Duvall, 77 111. 480. -* As where the grantor placed 20 Carter v. Moulton, 5 Kan. 9; a deed in the hands of the grantee State V. Potter, 63 Mo. 212; Weber upon the condition that it was to V. Christen, 121 111. 91; McAllister take effect only in case the grantor V. Mitchner, 68 Miss. 672. remained in Texas, and that if he 21 Worrall v. Munn, 5 N. Y. 229; returned it was to be delivered Berry v. Anderson, 22 Ind. 39; back and be of no force, held to be Beers v. Beers, 22 Mich. 44; Fair- a delivery in escrow, but being to banks v. Metcalf, 8 Mass. 238; the grantee and not to a stranger Stevenson v. Crapnell, 114 111. 19; the deed became absolute to the McCann v. Atherton, 106 111. 31; grantee. Stevenson v. Crapnell, Duncan v. Pope, 47 Ga. 445. 114 111. 19. Where the grantor 22 Berry v. Anderson, 22 Ind. 39; voluntarily delivers a deed to the DELIVERY. OO.j oonti'iK't.s, rcriuiiin^ iiolliin;;' but dclivciT to inaUc tlifin pci-- fcct accoi-diiij;- to llu' intention of the parties.-'' The dei)o.sitary of an escrow is limited strictly to the condi- tions of the de|)osit, a ((rnipliance with which alone justiticH its delivery. lie is a special, not a general a^ent, and the jieison dealiuj; with him is bound to know the extent of his powers.-" >; 507. Acceptance. To constitute the delivery of a deed sullicient to pass title to real proi)erty it must not only be delivered by the grantor, but must also be accepted by the ji:rantee.-'^ It is the concuirence of the two acts that consti- tutes the delivery; and either, standing- alone, will be insutti- cient to divest title. An express dissent on the part of the grantee renders the instrument ineffectual and void, and proof of dissent is always admissible.-*' An express assent is not required, however, to make up a valid delivery; for acceptance may be and very frequently is implied, and where the grant is beneficial to the grantee his consent will ordinarily be pre- sumed in the absence of proof to the contrary .^^^ Neither the presence of the grantee at the moment of delivery, nor his previous authority to a third person to receive the deed on his behalf, nor yet his subsequent express assent to it, are necessary to make a valid delivery; for in either case assent to a beueticial grant will be presumed, although of course dissent may be show^n and the deed thereby rendered ineffectual.^^ Thus, the assent of an infant, or an imbecile, or a person otherwise incapacitated, will always be presumed grantee he cannot show by parol Jackson v. Phipps, 12 Johns. (N. that it was a conditional delivery. Y.) 418. Williams v. Higgins, 69 Ala. 517. -"* Merrills v. Swift, 18 Conn. 257. -■'■ Wendlinger v. Smith, 75 Va. -'-'Rogers v. Gary, 47 Mo. 235; 309. Dale v. Lincoln, 62 111. 22; Cecil v. 20 Chicago, etc. Land Co. V. Peck, Beaver, 28 Iowa 241; Mitchell v. 112 111. 408; Evarts V. Agnes, 4 Wis. Ryan, 3 Ohio St. 377; Dikes v. 343; Smith v. Bank, 32 Vt. 350; Miller, 24 Tex. 317; Spencer v. Ogden V. Ogden, 4 Ohio St. 182. Carr, 45 N. Y. 406; Jackson v. 2T Commonwealth v. Jackson. 10 Bodle, 20 Johns. (N. Y.) 184; Bow- Bush (Ky.) 424; Comer v. Bald- den v. Parish, 86 Va. 67; Boody v. win, 16 Minn. 172; Welch v. Sacket, Davis, 20 N. H. 140. 12 Wis. 243; Bank v. Webster, 44 "■" Merrills v. Swift, 18 Conn. 257; N. H. 2G4; Oxnard v. Blake, 45 Me. Thorne v. San I<"rancisco. 4 Cal. 602; Stewart v. Redditt, 3 Md. 67; 169; Weber v. Christen. 121 111. 91. 606 EXECUTION. from the beneficial nature of the transaction and the question of knowledge becomes immaterial.^^ A father conveyed to his daughter, acceptance would be presumed, six years old, certain realty in fee- Vaughn v. Godman, 103 Ind. 499. simple without her knowledge and ^'i Sneathen v. Sneathen, 104 Mo. with no money consideration, and 201; Colee v. Colee, 122 Ind. 109; two days thereafter placed the deed Hayes v. Boylan, 141 111. 400. on record. Held, that delivery and CHAPTER XX. ACKNOWLEDGMENT. § 508. General principles. § 516. Acknowledgment by corpo- 509. Who may take. ration. 510. Form. 517. Conveyances by married 511. Venue. women. 512. Date. 518. Conveyances of the home- 513. Party acknowledging must stead. be identified. 519. Authentication by officer. 514. Fact of acknowledgment 520. Clerical errors — Surplusage must be stated. — Omissions. 515. Party acknowledging must 521. Proof of official character. understand act. § 508. General principles. The primary office of an acknowl- edgment is to authenticate the conveyance concerning which it is made, and to furnish authority for the production of the instrument in evidence without other or further proof of its execution.^ The certificate of authentication is no part of the deed, neither is it the act of either party to it;^ and although a deed is defectively acknowledged or certified, or even not acknowledged at all, if made by persons who are sui juris, it is still valid and effectual as between the parties and subse- quent purchasers with actual notice, and passes title equally with one duly acknowledged and certified.^ The certificate cannot affect the force of the instrument,* but is only evidence in regard to its execution, affording prima /acie proof of facts, which in its absence, may be established by other evidence. It is, however, a prerequisite for registration in a majority of the states, and a necessary incident to every deed designed to furnish constructive notice under the recording acts; and where b}' reason of defects or ooiiissions the statutory require- ments are not substantially complied witli, the instrument is not legally recordable, and although actually transcribed the record thereof will not afford constructive notice,"^ 1 Warvelle on Abstracts. 171-185, 3 Stevens v. Hampton. 46 Mo. and cases cited. 404; Hoy v. Allen. 27 Iowa 208. 2 Harrington v. Fish, 10 Mich. * Dale v. Thurlow. 12 Met. 157. 415; Gray v. Ulrich, 8 Kan. 112. '• Pringle v. Dunn, 37 Wis. 449; 607 G08 ACKNOWLEDGMENT. The formality of ucknowledf^mciit has been rendered extremely simple of late years, and a substantial compliance with the statute prescribing its form and requisites is all that is re(iuired in an ordinary certificate." Material omissions, unaided by other circumstances, have frequently been held to vitiate the acknowledgment;''' yet generally, when the defect can be reconciled, or does not defeat the acknowledg- ment by indefiniteness or uncertainty, it will not invalidate.^ Courts are always inclined to construe clerical errors liber- ally;'' and it is the policy of the law to uphold certificates whenever substance is found, and not to suffer conveyances, or proof of them, to be defeated by technical or unsubstantial objections,!^ and in construing them resort may always be had to the deed or instrument to which they are appended.!^ Nothing, however, will ordinarily be presumed in favor of a certificate, which should state all the facts necessary to a valid official act.^^ § 509. Who may take. The right to take and certify acknowledgment of deeds is wholly statutory, and can be exercised only by such officers as are directly named or by necessary implication designated or pointed out. This juris- diction is usually divided into three classes: first, where the Bass V. Estill, 50 Miss. 300; Willard Tenney v. East Warren Co. 43 N. V. Cramer, 36 Iowa 22. 6Russ V. Wingate, 30 Wis. 440; Bradford v. Dawson, 2 Ala. 203; Calumet Co. v. Russell, 68 111. 426; Carpenter v. Dexter, 8 Wall. (U. S.) 513; Ogden v. Waters, 12 Kan. 282; Jacoway v. Gault, 20 Ark. 190; Warren v. Hardy, 6 Md. 525; Alex- ander V. Merry, 9 Mo. 510; Barton V. Morris, 15 Ohio 408; Henderson V. Grewell, 8 Cal. 581; Dorn v. Best, 15 Tex. 62. 7 Hiss V. McCabe, 45 Md. 77; H. 343. » Scharfenburg v. Bishop, 35 Iowa 60; Russ v. Wingate, 30 Miss. 440. 10 Wells V. Atkinson, 24 Minn. 161; Kelly v. Calhoun, 95 U. S. 710. 11 Wells V. Atkinson, 24 Minn. 161; Tubbs v. Gatewood, 26 Ark. 128; Barnet v. Praskauer, 62 Ala. 486. 12 Witmore v. Laird, 5 Biss. (C. Ct.) 160; Jacoway v. Gault, 20 Ark. Smith V. Hunt, 13 Ohio 260; Hay- 190; Knight v. Smith, 1 Ore. 276. den V. Westcott, 11 Conn. 129. 8 Hartshorn v. Dawson, 79 111. 108; Scharfenburg v. Bishop, 35 Iowa 60; Sanford v. Bulkley, 30 Conn. 344; Magness v. Arnold, 31 Ark. 103; Chandler v. Spear, 22 Vt. 388; Dail v. Moore, 51 Mo. 589; The taking of an acknowledgment is now generally regarded as a ministerial act (Odiorne v. Mason, 9 N. H. 24; Biscoe v. Bird, 15 Ark. 655; Lynch v. Livingstone, 6 N. Y. 422), and dependent on statute, and the certificate must show that the ACKNOWLEDGMENT. 609 proof is made within tin* state; Hecond, wIktc the proof is made willioiit the state, but within the United States or the territories; and third, where the proof is made in a foreign country. Officers of the first and second classes are usually notaries public, the officers of courts havinj^ a seal, and jus- tices of the peace. In the second class is also an officer known as a coniniissiouer of deeds. Officers of the third class include ministers or secretaries of legations, consuls of the United States, and generally any officer authorized by the laws of such foreign countries to take acknowledgments of convey- ances. It would scarcely seem necessary to state that a grantee, notwithstanding he may be otherwise (lualified, is not com- petent to take the acknowledgment of his grantor,^ ^ even though he is merely a trustee;^* and generally, any interest whatever in the proceeding, no matter how slight or remote, will disqualify an otiicer in those states where acknowledg- ment is regarded as an act judicial in its nature; but this restriction does not extend to the attesting witnesses, who may properly act in both capacities.^ ^ Nor can a grantor statutory requirements have been substantially pursued. Meddock v. Williams, 12 Ohio 377. 1' Beaman v. Whitney, 22 Me. 413; Groesbeck v. Seeley, 13 Mich. 329. The impropriety of such, on general principles, is manifest; but it is further held, in some states, that the taking of an acknowledg- ment is a quasi judicial act, the officer acting in a judicial character in determining whether the per- son representing himself to be, or represented by some one else to be, the grantor named in the convey- ance, actually is the grantor; and in determining further whether the person thus adjudged to be the grantor does actually and truly ac- knowledge that he executed the instrument. By his certificate he makes an oflScial record of his ad- judication; and inasmuch as no man can be a judge in his own case, it follows that the grantee in a deed can never act as an officer in taking an acknowledgment to the conveyance. Wasson v. Con- ner, 54 Miss. 351; Davis v. Beazley, 75 Va. 491. But where a sheriff's deed was acknowledged in a court over which one of the grantees pre- sided as judge, held, no objection to the deed. Lewis v. Curry, 74 Mo. 49; and it would seem that in Kentucky, where only the coun- ty clerk and his deputies are au- thorized to take acknowledgments of deeds, the clerk may take and certify the acknowledgment of a deed in which he is named as grantee. Stevenson v. Brasher, 13 S. W. Rep. 242. '•Dail V. Morse, 51 Mo. 589; Brown v. Moore, 38 Tex. 645; Bow- den V. Parrish, 86 Va. 67. 15 Baird v. Evans, 58 Ga. 350. 39 610 ACKNOWLEDGMENT. take his own acknowledgment.^^ It would seem, however, that the acknowledgment of a deed to a married woman is not invalid because taken before the husband of the grantee, who was a properl}' qualified officer.^ "^ A question of a similar nature arises where the conveyance is made to a corporation and the acknowledgment of the deed is taken by a stockholder of such corporation. As to whether an officer so interested is a competent person to take an acknowledgment and as to the validity of a deed so certified with respect to the homestead rights of the grantors, the authorities are not in accord. It has been held, and it would seem with the better reason, that while acknowledgments taken before officers who are related to either party or inter- ested in the instruments are contrary to public policy, and by no means to be encouraged, yet such acknowledgments are not absolutely void because of such interest or relationship, without more. Where there is no imputation or charge of improper conduct or bad faith or undue advantage arising out of such interest or relationship, the mere fact that the acknowledgment was taken before such officer will not vitiate the instrument, nor render it void, if it is otherwise free from objection or criticism.^^ Much of the uncertainty which attends the solution of this question arises from the different estimates which are placed upon the act of acknowledgment, and as to whether it is to be regarded as judicial or ministerial in its nature.!'-* Clerks of courts having a seal have general jurisdiction in all of the states and territories,^^ and a deputy is usually 16 Davis V. Beazley, 75 Va. 491. held to be a judicial act in other 17 Kimball v. Johnson, 14 Wis. states, to-wit, Alabama, California, 674. Iowa, Missouri, North Carolina, IS Cooper v. Building Associa- Pennsylvania, Virginia, West Vir- tion, 37 S. W. Rep. 12. ginia, Mississippi. In Tennessee 19 It has been held to be a minis- the courts have held that the act terial act in the United States is judicial or quasi judicial, and courts and in the courts of Ar- especially so when it involves the kansas, Georgia, Illinois, Kentucky, privy examination of a married Maine, Massachusetts, Minnesota, woman. Shields v. Netherland, 5 New Hampshire, New York, Mary- Lea (Tenn.) 197. land and Ohio, and in these states 20 May be taken by the judge of a it is held that an officer may take court of record who is clerk of his acknowledgment though related or own court, and the attestation cer- interested or a party. But it is tified by him under the seal of ACKNOWLEDGMENT. 611 pc'i'inittc'd to tako acknowlcd^incnts \vlionov<'r tin* principal Tiiight if present.-' lint jnst how the attentalion kIiouM be made, where the act is performed by a deputy, seems to be a matter of disjtnte. In some states it wonld appear that the act must purport to be the act of tlie principal and be si<^ued with his name per deputy;-^ in others that the certificate must appear to be the act of tlie i)rincipal without reference to the deputy ;-•■' and again in others that the deputy may 'assume to exercise all the powers of his principal without nu'ntioning or alludinVhen the power <'xists independent of its mode of execution, and has been defectively executed, it is not a case of want of power, but of defective execution, which a court of equity will aid. Rut where the power and mode of execution are inseparable — the i)ower resulting from the mode — and that mode has not been pursued, it is not a case of defective execution, but a want of power, which a court of equity can- not aid. Therefore, when a married woman attempts to con- vey, and lacks power from not pursuing the mode prescribed, oourts will not relieve, because to amend the mode is to create the power.^* The acknowledgment, therefore, is an essential part of a married woman's deed,^^ and not merely an authen- tication. The special requirements of the statute, if any, must be full}' complied with, and the fact of compliance must be fully and clearly set forth in the certificate.''^" The rules of construction, however, are the same as in other cases of acknowledgment; and it will be understood that, while com- pliance is necessary to impart validity, the strict letter of the statute need not necessarily' be followed, a substantial com- pliance being all that is required.^" By the strict rules of the common law the legal existence of the wife was merged in the husband, and she could convey her lands only by uniting with him in levying a fine, which, being a solemn proceeding of record, the judges were supposed to watch over and protect her rights, and ascertain by a private examination that her participation was voluntary. The stat- ute relating to acknowledgments generally adopted in this and both of these oflBcers should, v. Mcintosh, 12 Ohio St. 231; Laird in such case, unite in the acknowl- v. Scott, 5 Heisk. (Tenn.) 314; edgment. Johns v. Reardon. 11 Md. 465; ''+ Silliman v. Cummins, 13 Ohio Grove v. Zumbro, 14 Gratt. (Va.) IIG; Grove v. Zumbro, 14 Gratt. 501. (Va.) 501. "Tubbs v. Gatewood. 26 Ark. •'•'•Mason v. Brock, 12 111. 273. 128; Brown v. Farran, 3 Ohio 140; n« Landers v. Bolton, 26 Cal. 408; Thayer v. Torrey, 37 N. J. L. 339; Lindly v. Smith, 46 111. 523; Chau- Reynolds v. Kingsbury, 15 Iowa 283; vin V. Wagner. 18 Mo. 531; Ward Goode v. Smith. 13 Cal. 81; Stuart 618 ACKNOWLEDGMENT. country provided a substitute for tlie common-law fine, and in lieu thereof prescribed an examination and certificate by a designated officer. But while it enlarged the power of aliena- tion it still preserved the characteristics and essential features of the ancient ceremony, and unless the wife's deed was made in conformity thereto it was inoperative to any extent or for any purpose.''^ This the courts have uniformly held; and where it appears that there has been a failure to comply v/ith the statutory requirements the defect renders the deed void and without effect.^^ Thus, if the statute requires that the contents of the deed ehall be explained to the wife, this is essential, and a substan- tial compliance must be shown; and if the certificate fails to show statutory conformity by neglecting to state that the wife ■was made acquainted with the contents of the deed, the acknowledgment will be fatally defective.'^o gQ^ ^qq^ the fact that her acknowledgment was voluntary and without compul- sion is a matter of substance and should be shown, and a fail- ure so to state renders the conveyance inoperative;^^ and the same is true of a failure to state that she does not wish to retract it, when this is made a necessary averment by stat- ute.62 If a private examination is required by statute a recital of the same becomes one of the essential features of the certificate, to omit which is to render the whole certificate valueless ;^^ and generally any omission of any specially-pre- V. Button, 39 111. 91; Pardun v. Silliman v. Cummins, 13 Ohio 116; Dobesberger, 3 Ind. 389; Bernard Moorman v. Board, 11 Bush (Ky.) V. Elder, 50 Miss. 336. 135; Hariston v. Randolph, 12 58 Lane v. Dolick, 6 McLean 200 Davis V. Bartholomew, 3 Ind. 485 Stone V. Montgomery, 35 Miss. 83 Delassus v. Boston, 19 Mo. 425 Leigh (Va.) 445. ei Louden v. Blythe, 27 Pa. St. 22; Pratt v. Battels, 28 Vt. 685; Blackburn v. Pennington, 8 B. Mon. Russell V. Rumsey, 35 111. 362. 217; Bartlett v. Fleming, 3 W. Va. 53 Martin v. Dwelly, 6 Wend. (N. 163. Y.) 9; Butler v. Buckingham, 5 «2 Grove v. Zumbro, 14 Gratt. Day (Conn.) 492; Lane v. McKeen, (Va.) 501; Chauvin v. Wagner, 18 15 Me. 304; King v. Mosely, 5 Ala. Mo. 531; Bateman's Petition, 11 R. 610; Landers v. Bolton, 26 Cal. 408; I. 585; Landers v. Bolton, 26 Cal. Lindley v. Smith, 46 111. 523; Wam- 408; Linn v. Patton, 10 W. Va. 187; sell v. Kern, 57 Mo. 478; Grove v. Belcher v. Weaver, 46 Tex. 293. Zumbro, 14 Gratt. (Va.) 501. 63 Stillwell v. Adams, 29 Ark. CO Pease v. Barbers, 10 Cal. 463; 346; Hartley v. Ferrell, 9 Fla. 374; O'Ferrall v. Simplot, 4 Iowa 381; Jordan v. Corey, 2 Ind. 385; Ed- r ACKNOWLEDGMENT. 01!) scribed nMiuirciiicnt dcstroyH tlu' ('ITcct of the acknowlcd}:- ■meut and also of tlie conveyance wiiicli it is intended to prove. An express relinquishment of dower is reijuired in many states, and when such is tlie case an acknowledgement without this formalit.v would be insullicicnt ;"* and the same is true of a release and waiver of the ri«;ht of homestead when rciiuirt-d by statute. The tendency of recent legislation has been to abrogate most, and in some states all, of the many special features that fonnerly characterized the acknowledj^ments of married w'omen, whether in conveyances of their own lands or when joining in the husband's conveyance. Separate examinations, as a rule, are no longer required; nor is the wife compelled to make any statements relative to her acknowledgment diller- ent from those required of other persons. A special renuncia- tion of dower is in some cases necessary, but this is almost the only one of the old features that has been retained, and gener- ally, where by statute a married woman is given the same contractual powers as though she were sole, her acknowledg- ment is not distinguishable from that of her husband. § 518. Conveyances of the homestead. The solicitude of the law to protect the family has developed a number of legal theories and lines of action somewhat at variance with gen- erally received doctrines, when the subject-matter of a sale consists of land used and occuj)ied as a place of residence. In this class of conveyances acknowledgment is frequently made an essential part of the deed and where both spouses are living it must be duly acknowledged by each. As a rule of conveyancing the acknowledgment should be made at or before delivery, but this is not imperative and it has fre- quently been held that the certificate of such acknowledgment may be added, and the acknowledgment itself may be nuide, at any time after signing and becmne effectual by relation from the date of signature, provided no lights of third parties have intervened.*'^ It would seem, however, that such acknowledgment, if made subsequent to delivery, must be made by husband and wife gerton v. Jones. 10 Minn. 427; Rice «< Lindley v. Smith. 46 111. 524; V. Peacoclv, 37 Tex. 392; Garrett v. Thomas v. Meir, 18 Mo. 573. Moss. 22 111. 363; Russ v. Wingate, c.-. Nelson v. Holly. 50 Ala. 3. 30 Miss. 440. 620 ACKNOWLEDGMENT. during the lifetime of each other and that the usual rule which permits surviving consorts to convey to a purchaser of the fee whatever rights they might have does not apply. The question is comparatively a new one and can hardly be said to be settled, but so far as it has been passed upon the result is adverse to the validity of such a conveyance.*'^ Hence, where a deed of the homestead is made by husband and wife, notwithstanding it may have been duly signed by both, yet if the wife fail to acknowledge as provided by statute, the deed will be without legal effect, and in case of the death of the husband no subsequent acknowledgment by the wife will, it seems, be effectual as against the heirs at law.^^ That such a course is to the last degree inequitable, in that it involves pay- ment to the ancestor for lands which, notwithstanding, pass to the heirs, is admitted, but if the deed, unacknowledged by the wife at the moment of the ancestor's death was void, no other conclusion seems admissible.^^ 66 The only case known to the writer is that of Richardson v. Iron Co. 90 Ala. 266, which sus- tains the doctrine of the text. 67 See Crim v. Nelms, 78 Ala. 604. 68 So held in Richardson v. Iron Co. 90 Ala. 266; the court further says: Upon his death his perfect title passed instantly into his heirs, the plaintiffs in this suit. With the title thus lodged in Bond's chil- dren his widow had no connection. In the lands she had no interest except in recognition of the title of the heirs. No estate then existed out of the heirs which she could convey, except by way of release to the heirs themselves. It would be an anomaly, indeed, to hold, under this state of law and fact, that the widow, thus without alienable interest of any kind or to any ex- tent in the land, could, by the mere acknowledgment of a deed which was essentially a nullity when the heirs took a perfect title, defeat their rights, and in legal effect convey their lands into third per- sons. We do not think it can be done. We apprehend that the power to give vitality to such a void conveyance by after acknowledg- ment ceases whenever the estate, assuming the invalidity of the deed, has passed into third persons, or rights of third persons have at- tached to it. We cannot conceive that it can be material whether these third persons are heirs, dev- isees, purchasers or creditors, or whether their estates or rights have accrued by descent, devise, sale or judgment liens. The con- clusion, we think, is enforced by a consideration of two clearly es- tablished propositions of law: first, a deed cannot be delivered after the death of the grantor; second, that the mere fact that a deed of the homestead, void for the lack of the wife's privy acknowledg- ment, is given into the possession of the nominal grantee is only a conditional delivery, and a condi- tional delivery, unless it be in es- crow, is in legal contemplation no ACKNOWLEDGMENT. 621 § 519. Authentication by officer. A cei-tilicate should bo made under llu- hand of the ct'illfvin'; offUcr — that is, he must Ki^n it ;•■"'' tho insfiiion of his naint' in the bodv of the ceilili cate is not enough;^" and an unsij^ned cei'tificate is void even though it is attested by the oflicei-'K seal.'^' So, too, while it has been held that a seal is not essential to a valid oHicial act unless recjuiied by express statute/^ yet if the statute does in fact prescribe this requirement, he must affix the same.'^^ ju some states a deed without a notarial seal to the notary's cer- tificate of acknowledgment is inadmissible in evidence.'^* § 520. Clerical errors — Surplusage — Omissions. Courts are ever inclined to construe clerical errors liberally; and it is the policy of the law to uphold certificates whenever sub- stance is found, and not to suffer conveyances, or jjroof of them, to be defeated by technical or unsubstantial objectious.'^^ Surplusage on the one hand,"*^ or mere clerical omissions on the other,'^^ will not usually affect the validity of a certificate, delivery at all. From these postu- lates, it results that the deed had never been, and could never be, delivered, and nothing that the widow could do could in any way affect the title of the heirs. Ca- hall V. Citizens Mut. Bldg. Asso. 61 Ala. 246; Jackson v. Leek, 12 Wend. (N. Y.) 105; Shoenberger v. Zook, 34 Pa. 24; Fisher v. Hall, 41 N. Y. 416; Fay v. Richardson, 7 Pick. (Mass.) 91; Woodbury v. Fisher, 20 Ind. 387. 00 Carlisle v. Carlisle, 78 Ala. 542. ToMarston v. Brashaw, 18 Mich. 81. 71 Clark v. Wilson, 127 111. 449. 72 Harrison v. Simmons, 55 Ala. 510; Farman v. Buffam, 4 Cush. (Mass.) 260; Thompson v. Morgan. 6 Minn. 261; Commissioner v. Glass, 17 Ohio 542. 73 Little v. Dodge, 32 Ark. 453; BuelJ V. Irwin, 24 Mich. 145; Bul- lard V. Perry, 28 Tex. 347. See Booth V. Clark, 12 111. 129. 74 See Meskimen v. Day, 35 Kan. 46. '''< Scharfenburg v. Bishop, 35 Iowa 60; Wells v. Atkinson, 24 Minn. 161; Tubbs v. Gatewood, 26 Ark. 128; Barnet v. Praskauer, 62 Ala. 486. 7« Stewart v. Dutton, 39 111. 91, where it was held that, when words are inserted in a certificate of acknowledgment which is per- fect without them, such redun- dancy does not vitiate it. Whit- ney v. Arnold, 10 Cal. 531. 77 As where the word "his" was omitted before the words "free and voluntary act" (Dickerson v. Davis, 12 Iowa 353); or the word "ap- peared," which should have fol- lowed "personally," etc. (Scharf- enburg V. Bishop, 35 Iowa 60) ; or the word "are" before "personally known," etc. Hartshorn v. Dawson. 79 111. 108. So, also, where the cer- tificate omits the name of the grantor, but shows that the party 62^ ACKNOWLEDGMENT. provided they do not amount to matters of substance wliieh cannot be supplied from the context. Nor will defective gram- matical expressions,'^^ or the transposition of words— evi- dently the result of inadvertence'^^ — be permitted to defeat the acknowledgment or impair the deed. An evident omission from the certificate may be supplied by correction where the omission consists of obvious words.***^ Yet as nothing is presumed in favor of an official certificate, which must state all the facts necessary to a valid official act,^i an omission of anything that gives substance to the cer- tificate will be fatal to its validity. Courts have no authority to presume that substantial requirements of the statute have been complied with any further than the certificate affirma- tively shows. Hence, if the omission is material, construction cannot aid it.^^ § 521. Proof of official character. The acknowledgment must not only be made before some person authorized to take the same, but the proof of his official character should in some way be apparent upon the certificate or some other paper thereto annexed. If the lands conveyed are within the cer- tifying officer's jurisdiction, extraneous evidence of his author- ity is not ordinarily required, particularly if he is an officer possessing or authorized to employ a seal, and the same has been attached to his certificate. If the instrument is proved without the state, a certificate of magistracy as well as con- formity must ordinarily accompany the certificate, although who appeared before the officer was and see Quinby v. Boyd, 8 Cal. 194, the grantor, this has been held suf- so Ralston v. Moore, 83 Ky. 571. ficient. Magness V. Arnold, 31 Ark. si Wetmore v. Laird, 5 Biss. (C. 103. None of said omissions were Ct.) 160; Hartshorn v. Dawson, 79 matters of substance. 111. 108. 78 As "his" for "its" (Frostburg 82 As where the word "known" Assoc. V. Brace, 51 Md. 508), or al- vv'as omitted, it was held that the luding to a "deed" as a "mortgage." omission was fatal. Tully v. Davis, Ives V. Kimball, 1 Mich. 308. 30 111. 103. An acknowledgment of ■'■> As where the word "husband" a deed purporting to be made by was written for "deed," in the Murray, without other desig- clause reading "the contents and nation of the person making the meaningof said husband were fully acknowledgment, was held insuffi- explained and made known to her." cient to convey the title of the land. Calumet Co. v. Russell, 68 111. 426; Hiss v. McCabe, 45 Md. 77. ACKNOWLEDGMENT. 6:^3 this is a matter almost wholly statutory, aud the statutes of the states are not uuifoim in their requirements. A certilicate, properly drawn, should in some manner dis- close the oHicial title of the person making it; aud so impor- tant does this ap])ear that the statute, in almost every instance of a prescribed form, has made provision for the insertion of the officer's title in the body of the cei-tificate. But while ollicial character is usually shown in this manner it may be sufficiently indicated by the addition of the title of office to the sijjrnature.*^^ So, on the other hand, it has been held that the omission of ollicial designation in the signature is imma- terial, provided the character is disclosed in the body of the certificate.^^ This would be particularly true where a cer- tilicate of magistracy accompanies the certificate.**^ While the certificate must in some manner purport to have been made by an officer authorized by law to take acknowl- edgments and proofs of deeds, yet it is not necessary, unless there is a statutory requirement to that effect, that the officer should state in his certificate that he is authorized so to do,^^ the certificate itself being an evidence of that fact.^^ Even when proof of official character is required, where acknowledgments are taken without the state by officers authorized to take the same, the rule does not extend to com- missioners of deeds appointed by the proper authorities of the state for this purpose, and no proof of authority is required in such cases beyond the ordinary method of authentication.^^ Where acknowledgments are taken in a foreign country before an officer unknown to the law of the stalie where the land is situated, proof of authority and official character must be made to render the act valid; and a certificate of magis- tracy, and in proper cases of conformity, must accompany the certificate of acknowledgment.^^ The same rules which apply to the description and designa- tion of parties apply to the officers making the certificate, aud 83 Russ V. Wingate, 30 Miss. 440. 292; Thurman v. Cameron. 24 8*Brown V. Farran, 3 Ohio 140; Wend. (N. Y.) 87; Harding v. Colby V. McOmber, 71 Iowa 469. Curtis, 45 111. 252. «5 Final v. Backus, 18 Mich. 218. ss Smith v. Van Gilder, 26 Ark. 86 Livingstone v. McDonald, 9 527. Ohio 168. 80 De Segond v. Culver, 10 Ohio t<7 Thompson v, Morgan. 6 Minn. 188. 624 ACKNOWLEDGMENT. verbal inaccuracies or manifest clerical errors are not mate- rial where the substance is correct.^" 00 Thus, an acknowledgment be- fore "a" clerk of the county court within and for a certain county, held, there being but one clerk of that court, suflBcient to authorize the presumption that the acknowl- edgment was taken before "the" clerk. Walker v. Owens, 25 Mo. App. 587. CHAPTER XXI. REGISTRATION. t 522. General principles. § 531. 523. Effect of registration. 524. What instruments must be 532. recorded. 525. Equities and equitable in- 533. terests. 526. Forged instruments. 534. 527. Governmental conveyances. 535. 528. Prerequisites of registra- 536. tion. 537. 529. Registration as affected by 538. defective execution. 539. 530. Effect of imperfect descrip- 540, tion. Failure to record by record- ing officer. Effect of erroneous regis- tration. Instruments recorded in wrong book. Index entries. Failure to index. Deed withdrawn after filing. Priority. Destruction of record. Unrecorded instruments. Continued — As between the parties. § 522. General principles. Ref^istration has been held to be a substitute for livery of seizin, and to give to the convey- ance the notoriety intended to be effected by that ancient cere- mony. In all its essential features, however, the system of registration practiced in the United States is original and peculiar to the country of its inception and development. It is entirely unknown to the common law, and in all respects a creation of the statute. It is thought to have been derived from the English statute of enrollments, which was enacted to counteract the evil effects resulting from the practice of secret conveyances under the statute of uses.^ The enrolling of a deed did not, however, make it a record, but only a memorial. The American system of registration not only serves as a means of preservation of the muniments and evi- 1 This statute provided that every the enrollment of one class of bargain and sale of an inheritance deeds, to-wit: those of bargain and or freehold should be by deed in- sale, and as it did not affect other kinds of deeds its object was soon evaded by the employment of other methods of transfer. The convey- ance by lease and release, which required no enrollment, was for many years the principal form em- ployed. dented and enrolled within six lunar months from its date, either in one of the courts of Westmin- ster, or before the justices and clerk of the peace in the county where the lands were situate. This statute, however, only provided for 40 625 G2(i REGISTRATION. dences of title, whereby the instrument, as under the Englisli statute, shall be "kept in memory," but gives to them, when properly executed, certified and transcribed in conformity to law, the dignity and effect of public records; and to the sys- tem much of the permanency and stability of our land titles is attributable. § 523. Effect of registration. The operation and effect of registration is primarily a matter of statutory regulation, and in all of the states enactments defining and declaring the effect of a properly-recorded instrument are in force. In gen- eral such enactments provide that every instrument executed and certified in the manner prescribed by statute shall, from the time of filing the same for record,^ take effect as against creditors and subsequent purchasers without notice, and in some instances are declared to impart notice, to all persons interested, of the contents thereof. So, too, it was formerly held to be the rule, derived from a construction of such stat- utes, that every deed properly certified and recorded afforded constructive notice to the world; but this rule, according to later decisions, has been held to be too broad an enunciation of the doctrine. Such record is now generally held to be con- structive notice only to those who are bound to search for it — as subsequent purchasers or mortgagees, and perhaps all others who deal with or on the credit of the title in the line of which the recorded deed belongs.^ But strangers to the title — persons claiming adversely — are in no way affected by such record.^ § 524. What instruments must be recorded. As registra- tion is solely a matter of statutory creation, the rules and analogies of the common law have little application; yet as the statute, in most instances at least, has made no specific designation of the class of titles or estates to be thus pro- tected and preserved, recourse must be had to cases of judicial interpretation. The substance of the usual provision is that deeds, mortgages, powers of attorneys and other instruments relating to or affecting the title to real property shall be 2 Johnson v, Borden, 40 Vt. 567; * Maul v. Rider, 59 Fa. St. 167; Kessler v. State, 24 Ind. 213; Leslie Corbin v. Sullivan, 47 Ind. 356; Gil- V. Hinson, 83 Ala. 266. lett v. Gaffney, 3 Colo. 351; Carbine 3 Jenkins v. Adams, 71 Tex. 1. v. Pringle, 90 111. 302. REGISTRATION. 627 recorded in the county in wliich such property is situated, or, if such county is not orpmized, then in the county to which such unorganized county is attached for judicial purposes.^ Upon general principles this would include every right, claim or interest in land; and indeed such is its effect and import whenever the nght, claim or interest is of a per- manent character. Thus, a deed granting a permanent right of way is within the recording acts, and unless recorded can- not operate against subsetjuent purchasers for value and with- out notice.^ A bond for conveyance is subject to the same rule,'^ and the assignment of such a bond has been held to come clearly within the provisions of the registration art; and unless so recorded such assignment will not take effect as against a subsequent ho7ia fide purchaser or incumbrancer without notice.^ It would seem, however, that the statute requiring deeds or other evidences of conveyance to be recorded does not apply to leases for years,^ nor to mortgages of such leasehold estates.i'^ § 525. Equities and equitable interests. Notwithstanding that the earlier cases announced a different rule, the general doctrine now is that equitable estates and interests as well as legal are embraced within the intent and operation of the recording acts,^^ and where an instrument is properly record- able, and due regard has been had to all the preliminaries of execution, acknowledgment, etc., the record of the same becomes constructive notice not only that the instrument exists, but of its contents, and of whatever rights, interests or estates, either legal or equitable, that may be created by or arise from its provisions. 5 A deed recorded in a county 493; Worley v. State, 7 Lea(Tenii.) where at the time the land is 382. shown by a legal establishment of ^ Welles v. Baldwin, 28 Minn, county lines to be, is sufficiently 408; Dobyns v. Waring, 82 Va. 159. recorded notwithstanding a change ^ McFarran v. Knox, 5 Cal. 217. which excludes the land from that ^ Hodge v. Giesse, 43 N. J. Eq. county. If, however, the county 342. lines have not been established at lo Hutchinson v. Bramhall, 42 N. the time of the record, the person J. Eq. 372. recording acts at his peril. Jones " Tarbell v. West, 86 N. Y. 287; v. Powers. 65 Tex. 207. Wilder v. Brooks. 10 Minn. 50; G Prescott V. Beyer, 34 Minn. Digman v. McCallum, 47 Mo. 372; 628 REGISTRATION. Thus, the registry of a mortgage is of itself notice in law to all subsequent purchasers of the lien created thereby. So, also, the record of a trust deed affords notice to every one of the existence and tenns of the trust; and it seems that the registry of a mere equitable mortgage or incumbrance is notice to a subsequent purchaser of the legal estate so as to entitle such mortgage to a preference,^ ^ § 526. Forged instruments. The provisions of the record- ing acts have no application to forged deeds and other instru- ments, for they have no effect upon the title and are not enti- tled to record. However innocently one may have purchased under such recorded deed, he has no rights against the true owner of the land.^^ § 527. Governmental conveyances. Provision is generally made in those states which contain lands belonging to the fed- eral government for the regis^tration of duplicate receipts and other evidences of purchase, as well as for the deeds and pat- ents which may follow; yet the registration laws of the state do not apply to the disposition of lands belonging to the United States, but the rights of parties will be governed by the regulations established by congress until the title has finally passed from the government.^ ^ § 528. Prerequisites of registration. The whole system of registration of conveyances, as well as the effect thereof, is purely statutory, and in its practical operation somewhat in derogation of common-law principles. By the statute certain formalities are frequently required, which in the main relate to execution and the means of proof; and the due observance of these formalities is usually made essential to the giving of constructive notice, and in some instances to the right to Alderson v. Ames, 6 Md. 52; Wor- tees, erased his name and the mid- ley v. State, 7 Lea (Tenn.) 382. die initial in the other grantee's 12 Parkist v. Alexander, 1 Johns, name from the deed, and put the Ch. (N. Y.) 394. deed so altered and changed on 13 Where a person took a deed to record, thereby showing a convey- one of his sons, and also to a ance to himself, the grandfather, grandson of the same name as his held, that the erasure was a forg- own except the addition of a mid- ery, and as such did not affect the die initial letter, the grantees being title of the real grantees. Pry v. minors, and the grandfather, the Pry, 109 111. 466. custodian of such deed, after the i* David v. Rickabaugh, 32 Iowa death of his son, one of the gran- 540; Betser v. Rankin, 77 111. 289. REGISTRATION. 629 record. Where a statute provides that, as a prerequisite to registra'tion, a deed shall be acknowledged before some duly- authorized oflficer, tlie mere recording of a deed not acknowl- edged in accordance with the statute does not impart con- structive notice to any one of the contents of such deed.^'^ So, also, it has been held that a deed is not entitled to be recorded where it does not appear, except inferentially from the seal, of what city, county or state the notary was who attempted to take the acknowledgment.^® § 529. Registration as affected by defective execution. The rule is general that a defectively acknowledged deed or a deed without acknowledgment, although recorded, will not impart constructive notice to subsequent purchasers for a valuable consideration ;i^ and it has further been held that if it is so recorded without acknowledgment, the record is not admissi- ble as evidence of title in an action to recover the lands so conveyed.is The rule is more strictly applied in some states than in others; and it has been held that even where instru- ments purport to have been acknowledged, if such acknowl- edgments were defectively made, or if the certificates thereof fail to embody all the statutory requirements in a substantial manner, the effect of registration is practically the same as though no acknowledgment had been made.^^ In some states where the deed is so defectively executed as to pass no estate, it is by law excluded from registration ; but generally this effect follows only from non-compliance with the statute in respect to acknowledgment.^^ 15 Bishop V. Schneider, 46 Mo. it Cox v. Wyat, 26 W. Va. 807; 472; Galway v. Malchon, 7 Neb. Woolfolk v. Graniteville Mfg. Co. 285; Westerman v. Foster, 57 Ind. 22 S. C. 332; Bishop v. Schneider, 408; Pope v. Henry, 24 Vt. 560; 46 Mo. 472; Galway v. Malchon, 7 McMinn v. O'Connor, 27 Cal. 238; Neb. 285; Herndon v. Kimball, 7 Holliday v. Cromwell, 26 Tex. 188; Ga. 432; Carter v. Champion, 8 Reynolds v. Kingsbury, 15 Iowa Conn. 549. 238. I'' Westerman v. Foster, 57 Ind. 1'- Nor does the index of such a 408. deed charge with constructive no- lo See Greenwood v. Jenswold. 69 tice of its contents. Greenwood v. Iowa 53; Cox v. Wyat, 26 W. Va. Jenswold, 69 Iowa 53; and see 807. Schults V. Moore, 1 McLean (C. 20 See, generally, Burnham v. Ct.) 520; McMinn v. O'Connor, 27 Chandler, 15 Tex. 441; Galpin v. Cal. 238. Abbott, 6 Mich. 17; Pringle v. 630 REGISTRATION. ' The rule as stated, while undoubtedly that which prevails in a majority of the states where it is expressed and declared by statute, has in several instances been denied, while the statutes of some of the states have adopted a different policy with regard to the effect of registration. By the language of these statutes everything is comprehended that may relate to or affect title, and every such instrument may be recorded without any qualification as to whether they be sufficient in law to effectuate the object purported on their face.-^ While the states holding this doctrine are in the minority, it would still seem that they are supported by the better reason. The primary object of registration is, or should be, to make the records the great depositories of land titles of the states; and for that reason every instrument in writing relating to land should have the privilege of record, and, when once recorded, should impart notice to the world of everything therein stated as well as of everything that may be necessarily implied from the words of such recorded instruments. Acknowledgment is nowhere held essential to the validity of deed as between the parties; and as a rule the statute relating to acknowledg- ments only goes to the extent of providing that, if a deed be acknowledged and certified in the manner prescribed, the original may be read in evidence without other proof of its execution. To say, therefore, that the record of an unacknowl- edged deed is a nullity seems a perversion of the plain intent of the law; yet the fact remains that this anomaly exists in many' of the states, either by express enactment or judicial construction. A deed, though not entitled to record, but which has been recorded, while it does not operate as constructive notice, may operate as actual notice;-- and a person searching the records may be bound by the infonnation there obtained when he has actually inspected an instrument purporting to affect the title under investigation. § 530. Effect of imperfect description. To charge a pur- chaser with notice as to any particular tract of land, such Dunn, 37 Wis. 449; Monroe v. Ham- 562; Brown v. Simpson, 4 Kan. 76. ilton, 60 Ala. 227; Parret V. Shaub- 22 Musgrove v. Bonser, 5 Ore. hut, 5 Minn. 323; Reed v. Coale, 4 313; Bass v. Estill, 50 Miss. 300; Ind. 283. Hastings v. Cutler, 24 N. H. 481. 21 See Morrison v. Brown, 83 111. REGISTRATION. 631 land should be so described as to render its location definite and (certain. The Kt'iit'i'J^l subject of description has been so thoroughly discussed in other parts of this work that no attempt at recapitulation will here be made; yet, as an exam- ple of what is meant, it may be said that a conveyance of lands without description of boundary or location, but merely as "all other lands owned by the vendor in the state of Louisiana," while it mi<»ht operate as between the parties, is not notice as to any particular tract conveyed.-'^ The eifect of registration as notice is generally held to be the tenor and effect of the instrument as it appears upon the record i^* and •while the authorities are divided in regard to errors which may intervene in transcribing, if the instrument is correctly spread upon the records the only notice it affords is of its con- tents.25 § 531. Failure to record by recording officer. As to the effect of a failure by the recording oflicer to properly record or transcribe an instrument left with him for that purpose, the authorities are not agreed. It is held in some states that a purchaser of land who deposits his deed for record dis- charges thereby his whole duty to the public. If, through the fault of the register, the deed is not recorded, such failure will not prejudice the purchaser, even in favor of a subse- quent purchaser without notice, unless the first purchaser, after knowledge of the defect in the record, is guilty of laches in failing to give notice of his title.-*' § 532. Effect of erroneous registration. There is a marked difference of opinion among courts and jurists with regard to the effect of an error in transcription after an instrument has been properly lodged in the office of registration. Upon the one hand it is held that the records are constructive notice only of that which they actually disclose, and that purchasers have a right to rely upon the records as indicating the true state of the title; and that where a purchaser, having duly examined the records, purchases with the knowledge thereby 2s Green v. Witherspoon. 37 La. Barrows v. Baughman, 9 Mich. 213. Ann. 751. -''' Terrell v. Andrew County, 44 24 Shepherd v. Burkhalter. 13 Ga. Mo. 309. 443; Stevens v. Hampton, 46 Mo. -'o Lee v. Bermingham, 30 Kan. 404; Miller v. Bradford, 12 Iowa 312; and see Perkins v. Strong, 14; Pringle v. Dunn. 37 Wis. 465; 22 Neb. 725. 632 REGISTRATION. obtained, he will be unaffected by any error or discrepancy that may have intervened through the acts of the recording oflScer in transcribing the instruments.-^ The theory of this class of cases proceeds largely upon the old and well-settled law of notice, and that the essential character of the registry is to quiet and confirm titles, the statutes creating the same being intended for statutes of repose. Under them a pur- chaser is under no obligation to ascertain that the instru- ments have been correctly copied, and the burden of seeing that their deeds have been properly recorded devolves on the original grantees.^s It is contended in support of this doc- trine that the statute providing that a deed shall impart notice from the time it is filed for record applies only where its contents have been correctly spread upon the records ;2^ that it was never 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.^o It must be admitted that there are strong grounds upon which to maintain this doctrine; and these grounds are not only fortified and supported by the special reasons given, but by the general principles of law as well. The uncertainty that must attend sales of real property if the purchaser cannot rely upon the records, but must first trace up the original deed to see that it is correctly recorded, is manifest, while upon general principles the obligation of giving notice should rest upon the party holding the title, and who, if he fails in this duty, should suffer the consequences, and not an innocent party. The opposite view is taken by a large and apparently well- considered class of cases, in which it is held that a grantee who files his deed for record with the proper officer has dis- charged the only duty which the law imposes upon him, and that from thenceforth his deed imparts notice and will prevail, 27 Gilchrist V. Gough, 63 Ind. 576; Potter v. Dooley, 55 Vt. 621; Speer Miller v. Bradford, 12 Iowa 14; v. Evans, 47 Pa. St. 141. Hill V. McNichol, 76 Me. 314; Prin- 28 Mutual Life Ins. Co. v. Dake, gle V. Dunn, 37 Wis. 449 ; Thorp v. 87 N. Y. 263. Merrill, 21 Minn. 336; Chamber- 29 Terrell v. Andrew County, 44 lain V. Bell, 7 Cal. 292; Terrell v. Mo. 309. Andrew Co. 44 Mo. 309; Mutual 30 Terrell v. Andrew County, 44 Life Ins. Co. v. Dake, 87 N. Y. 257; Mo. 309. Bernard v. Campau, 29 Mich. 162; REGISTRATION. 633 liot\vltlistaii(lin<; its contents have nut been coricctly tian- scribt'd. Should a Hub«i'(|uent purcliasei- be misled thereby to his injury, his only remedy is against the recording olTicer who has thus neglected his duty.'" It is contended that the state, having provided the place and means of registration, and invited a grantee to deposit his deed for record, must after- ward see to it that the work is properly performed; that the grantee is not a guarantor of compliance by the recording officer with the law as to recording, and that if any one suf- fers from the negligence of the ofticer he must seek redress from the officer.^- § 533. Instruments recorded in wrong book. The methods of registration are very similar throughout the United States, and from motives of convenience it is customary in most states to employ two sets of books: one designed for deeds or all classes of absolute conveyances, and one for mortgages or conveyances subject to defeasance. Where such practice pre- vails, and where the law directs that deeds and conveyances of absolute interests shall be recorded in the "books of deeds," it would seem that the record of a deed in a book of mortgages is wholly inoperative so far as respects its capacity* to furnish constructive notice,^^ and that a mortgage recorded in a book of ''deeds" is subject to the same rule.^^ § 534. Index entries. \Yhile the index is not, properly speaking, a part of the records, index entries are, however, frequently held sulficient to charge notice ;^^ and that, too, even though no description of the property is entered, but simply the words "see record,"^^ or "certain lots of land;"^'^ for if enough is shown, it is claimed, to induce imiuiry and put a prudent man on guard, notice is thereby alforded. In some 31 Oats V. Wall, 28 Ark. 244; 202; Grinstone v. Carter, 3 Paige Merrick v. Wallace. 19 111. 486; Lee (N. Y.) 421. V. Bermingham, 30 Kan. 312; Mims 34 Fisher v. Tunnard, 25 La. Ann. V. Mims, 35 Ala. 23; Mangold v. 179; James v. Morey, 2 Cow. (N. Barlow, 61 Miss. 593; Brooke's Ap- Y.) 246; Calder v. Chapman, 52 Pa. peal, 64 Pa. St. 127; Nichols v. St. 359. Reynolds. 1 R. I. 30; Throckmorton 3r, Disque v. Wright, 49 Iowa 541; V. Price, 28 Tex. 605. Sinclair v. Slawson, 44 Mich. 123; 32 Mangold v. Barlow, 61 Miss. Swan v. Vogel, 31 La. Ann. 38. 597. 30 White v. Hampton. 13 Iowa 83 Leech's Appeal, 44 Pa. St. 140; 260. Colomer v. Morgan, 13 La. Ann. 37 Bostwick v. Powers, 12 Iowa 456. 634 REGISTRATION. states the index would seem to be an essential part of the records, and, in such states, it has been held that a deed, in order to furnish constructive notice, must not only be tran- scribed upon the records, but also be properly indexed.^^ § 535. Failure to index. In the strict and proper accepta- tion of the term a deed is properly recorded when it has been spread upon the public records. An index is at best but a convenient method providing for pointing out or indicating where the record may be found. Its office is to facilitate search, and to afford a convenient aid to those having occasion to examine the records.^'' Properly speaking it forms no part of the records.^'' The duty of keeping proper indices usually devolves on the recorder by virtue of the statute, and they are ordinarily a part of the designated books of his office; but even while it may be the duty of the recorder to keep a proper index of his books of registration, so that one searching the records may easily find what is or is not contained therein, yet, as a rule, an instrument properly tiled and copied on the records is recorded within the meaning of the law, and imparts notice to subsequent i^urchasers, notwithstanding the failure of the recording officer to index it.'*^ § 536. Deed withdrawn after filing. The rule as to the time when a deed becomes effective as notice after tiling is not altogether uniform, but in a majority of the states a deed imparts nojtice of its contents from the time the same is tiled for record. But where after a deed has been duly filed, and before registration, it is withdrawn by the party taking a beneficial interest under it, a complicated question is raised as to its effect. It was held in one case that during the time the deed was away from the office, the law making the filing of a deed for record notice to subsequent purchasers was sus- pended, yet that a statement of the fact of filing and with- drawal was sufficient to put upon inquiry a third party who 38 Ritchie V. Griffith, 1 Wash. 429. 338. A different rule seems to 39 Green v. Garrington, 16 Ohio prevail in Iowa. See Howe v. St. 548. Thayer, 49 Iowa 154, and in Wash- 40 Bishop V. Schneider, 46 Mo. ington, see Ritchie v. Griffith, 1 472; Stockwell v. McHenry, 107 Pa. Wash. 429. St. 237; Chatham v. Bradford. 50 ^i Bishop v. Schneider. 46 Mo. Ga. 327; Curtis v. Lyman, 24 Vt. 472; but see cases last cited. REGISTRATION. G35 proposed to purchaso the property.^- lu anolber case, where a deed was withdrawn before actual registration, it was held that the noting of it on the books of the recorder was evidence of the tiling, but that hy its withdrawal its priority was lost, and that it would only take effect from the date of its return to the registry.-*^ § 537. Priority. While it is undoubtedly true that an un- recorded deed will pass to the grantee all the title of the grantor, and as between the parties is etlectual for all pur- poses, yet, for the purposes of the recording acts, and in furtherance of the peculiar doctrine of constructive notice which foi-ms one of their chief characteristics, in a conveyance of lands the absolute title may be said to rest with the grantor and his heirs, in a sort of abeyance, to vest irrevocably only upon the recording of the deed; and it will vest in the first grantee in condition to receive the grant who shall place his deed upon record.^^ In effect, therefore, so far as the rights of third parties are concerned, registration is a necessary inci- dent to perfect the title of the land intended to be conveyed.'*^ But the rule of law which allows a subsequent recorded deed, made on a valuable consideration, to take precedence of a prior unregistered deed only applies when both parties claim under the same grantor,^^ and wher6 the party who seeks the protection of the statute has acted in good faith.^'^ One who has notice of the equities of prior purchasers before he pays the purchase price of land cannot claim tlie rights of a lo7ia fide purchaser; and so a conveyance, though duly recorded, passes no title whatever when taken with a knowl- edge of the existence of an unrecorded deed,^^ qj. ^t best the land in the hands of such purchaser is subject -to the rights of the grantee named in such prior deed.-*^ The protection of the recording acts, which declare an 42Lawton v. Gordon, 37 Cal. 202. 239; Hutchinson v. Harttman, 15 In this case a deed was filed in Kan. 133. the recorder's office for record, but ■*■' Respass v. Jones, 102 N. C. 5. before it was recorded it was with- <« Rodgers v. Burchard, 34 Tex. drawn by the purchaser, and after 441. some time returned for record. *' Musgrove v. Bonser, 5 Ore. 313. ■«3 Hickman v. Perrin, 6 Coldw. -is Musgrove v. Bonser, 5 Ore. (Tenn.) 135. 313; Keen v. Schnedler, 92 Mo. 516. •»* Youngblood v. Vastine, 46 Mo. ^^ As where a purchaser takes 636 REGISTRATION. unrecorded deed void as against a subsequent purchaser in good faitli and for a valuable consideration whose deed shall be first recorded, is not confined to a subsequent purchaser immediately from the same grantor, but applies to one who takes from him through mesne conveyances; and they protect him, if a purchaser in good faith and for value, although the intermediate grantees were chargeable with bad faith or paid uothing.'^o But a purchaser from one who bought with notice of a prior unrecorded deed given by his grantor to a third per- son has constructive notice of such prior deed, if it be recorded before the execution of his conveyance; and he is not a purchaser in good faith, although the deed to his grantors may have been recorded before the record of such prior deed. The prior deed in such a case will take prece- dence,^^ A quitclaim deed received in good faith and for a valuable consideration, and which is recorded before a prior deed of bargain and sale, will generally prevail over such prior deed.^^ § 538. Destruction of record. The doctrine of constructive notice has been productive of several seeming anomalies, principal among which is the effect to be given to records which, having once been properly made, are subsequently destroyed. The current of authority seems to hold that a grantee discharges every legal duty when he files his deed for record, and that after a deed has been duly recorded the partial or total destruction of the record in no manner affects the constructive notice afforded by its being recorded.^^ The rule must sometimes be productive of hardship, but it seems to have been adopted under a choice of difficulties. § 539. Unrecorded instruments. Notwithstanding the posi- tive and unqualified statements of the recording acts, intend- ing purchasers are still held in equity to a strict exercise of good faith, and a diligent inquiry as to all matters brought to their notice which may affect or impair the title of the prop- with actual knowledge of a prior, si Mahoney v. Middleton, 41 Cal. adverse but unattested conveyance 41. which his counsel erroneously told ^2 Graff v. Middleton, 43 Cal. 341 ; him was invalid. Gilbert v. Jess, Marshall v. Roberts, 18 Minn. 405; 31 Wis. 110. Munson v. Ensor, 94 Mo. 504. so Fallass v. Pierce, 30 Wis. 443; •'''.•! Myers v. Buchanan, 46 Miss. Roll V. Rea, 50 N. J. L. 264. 397; Steele v. Boone, 75 111. 457; REGISTRATION. 037 erty which forms the yubjcct-uiatter of the sale. If at the time of makiuy his coutiact a puichaser has notice of a prior unrecorded deed, he is rej^arded as acting in bad faith; and neither the principles of justice nor the policy of the law will allow him to avail himself of his priority of record to super- sede the claims of a bona fide purchaser and permit him to triumph in his fraud/'* No principle of the law of notice seems to be better or more firmly established than this; and, so far as the practical application of the rule is conceraed, it makes no difference whether the unrecorded instrument con- fers a legal right or a mere equity. Hence, the purchase of land with full knowledge of the fact that the vendor has con- tracted to convey to another subjects the purchaser to the rights and equities of the claimant under the contract.^^ It is difficult, however, to lay down a general rule as to what facts will in every case be sufficient to charge a party with notice, or put him on inquiry as to whether a prior deed has been made. The information received must be of that charac- ter that a prudent person, by the exercise of reasonable and ordinary diligence, could upon inquiry and investigation arrive at the fact of the existence of such prior conveyance.^*^ It has been held that whatever is notice enough to excite attention and put a party on his guard and call for inquiry is notice of everything to which such inquiry might have led; and every unusual circumstance is a ground of suspicion and prescribes inquiry.^'^ Bare suspicion of title in another will not be sufficient to raise an inference of fraudulent intent ;58 but where a party has heard of a sale of the land before he purchased, and from a source entitled to reasonable credit, and under circum- stances not likely to be forgotten, it seems a duty would devolve upon him of tracing out the matter and acertaining Gammon v. Hodges, 73 III. 140; ^7 Russell v. Rauson, 76 111. 167; Armentrout v. Gibbons, 30 Gratt. and see Gardner v. Early, 72 Iowa (Va.) 632; Houston v. Blythe, 71 518. Tex. 719; Crone v. Dameron, 98 ss McConnel v. Reed, 4 Scam. Mo. 567. (111.) 117. The mere fact that a 54 McConnel v. Reed, 4 Scam, purchaser of land some time before (111.) 117; Claibourne v. Holmes, his purchase had an interview with 51 Miss. 146. his grantor, who informed him that G5 Glover v. Fisher. 11 111. 606. at that time he was not able to 5c Chicago v. Witt, 75 111. 211. make a marketable title, but in a 638 REGISTRATION. its truth.^9 It is not necessary that actual notice of the existence of a deed, as used in contradistinction to the con- structive notice given by a record, should be proved by direct and positive evidence that the subsequent purchaser actually knew that such deed was in existence. The fact of notice may be proved, like any other fact, by any proper evidence, direct or circumstantial.^" But while an unrecorded deed, as a general rule, is void as against a subsequent deed taken in good faith and duly recorded, the question seems to be involved in some doubt where the subsequent deed is a mere quitclaim of such inter- est as the grantor may have.^^ The subject of quitclaims has been a theme of great diversity of opinion in the United States, and productive of a number of contradictory decisions; but the volume of authority seems to hold that a purchaser by quitclaim is not to be distinguished from a purchaser by bar- gain and sale or with warranty, unless there is something in the deed to put the purchaser on notice.*^^ § 540. Continued — As between the parties. As between the purchaser of land and his vendor, it is of no importance that the deed of conveyance be recorded ;*^3 and the same rule holds good between the holder of the first conveyance and a sub- sequent purchaser from the same vendor, where the latter has notice of the prior deed, or when his purchase is not for a valuable consideration.^* short time he would be, is not suflB- divided. In Wisconsin a quitclaim cient to give the purchaser notice deed is a conveyance, which, when of the existence of an adverse un- recorded, protects the grantee recorded deed to the same land, against a prior unrecorded war- Chicago V. Witt, 75 111. 211. ranty deed. Cutler v. James, 64 59 Cox v. Milner, 23 111. 476. Wis. 173. To the same effect, eoMaupin v. Emmons, 47 Mo. Strong v. Lynn, 38 Minn. 315; 304. where a quitclaim deed is held to ■ 61 See "Quitclaim deeds," ante. stand on the same footing as all 62 On the question as to whether other original conveyances. See an unrecorded deed would be void also. Brown v. Oil Co. 97 111. 214; where the subsequent deed was a Fox v. Hall, 74 Mo. 315; Hoyt v. mere quitclaim of such interest as Ketcham, 54 Conn. 60. remained in the grantor, and fol- C3 Dozier v. Barnett, 13 Bush lowed sundry mesne conveyances (Ky.) 457; Raines v. Walker, 77 to persons who were affected by Va. 92; Jackson v. West, 10 Johns, notice of the first grantee's equi- (N. Y.) 466; Keen v. Schnedler, 92 ties, the court in De Veaux v. Fos- Mo. 516. bender, 57 Mich. 579, was equally 64Maupin v. Emmons, 47 Mo. 304. LAW LIBRARY «jnvBR8rrY of caufornu LOS ANGELES »ilirailil^»:?^ HiFWii?:!-?); W':- UC SOUTHER'. AA 000 850 753 5 I