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<lin<; thereon,-'^- which
pass hy a conveyance of the land without special mention ;3'*
and in all contracts for the sale and conveyance of lands the
improvements resting.? upon or ailixed to them at the time are
considered as part of the purchase. On the other hand, land
which is essential to the use of a building will, it seems, pass
bj a conveyance of the building if it appears that such was
the intention of the parties."'*
But houses and buildings are realty only while in place.
A severance, propria viyore, changes the character of the prop-
erty from real to personal, irrespective of the means by which
it may be accomplished; and, so far as the legal effect is con-
cerned, it matters not whether the severance was by the act
of God or the act of man.^^
§ 10. Fixtures. A fixture has been defined by Bouvier as
a personal chattel affixed to real estate, which may be severed
and removed by the party who has affixed it, or by his personal
representatives, against the will of the owner of the freehold.''^
The term "fixture," however, is a most uncertain title, and in
many cases — possibly a majority — is used in exactly a con-
trary sense to the definition just given, being employed to
indicate a chattel annexed to realty so as to become a part of
it. Indeed, it is difficult, if not impossible, to give a definition
of the term which uuiy be regarded as of universal application,
or to formulate in one rule that which will enable us to deter-
the observation of the writer is by them as a store, situated on
that of Goddard v. Winchell, 86 land described as lot No. 1, in block
Iowa, 71, which embodies and sus- No. 9, in the village of White-
tains the doctrine of the text. water." In point of fact the store
:!2 Sudbury v. Jones, 8 Cush. not only covered lot No. 1, but also
(Mass.) 189; Ford v. Cobb, 20 N. Y. the west two feet of lot No. 10 in
344; Lipsky v. Borgmann, 52 Wis. that block; but the court held that
256. all the land covered by the build-
as West v. Stewart, 7 Pa. St. 122; ing would pass, such being the ap-
Leland v. Gassett, 17 Vt. 403; parent intention of the parties;
Washburn v. Sproat, 16 Mass. 449. and see Whitney v. Olney, 3 Mason
•■!4 Gibson v. Brockway, 8 N. H. (c. ct.) 280, where a grant of a
465; Moore v. Fletcher, 16 Me. 66; mill was held to include the land
Wilson V. Hunter, 14 Wis. 683. In under and adjoining same,
this case a mortgage described the •■*.'; Buckout v. Swift, 37 Cal. 433.
premises conveyed as "the three- 3« 1 Bouv. Law Diet. 593.
story brick building now occupied
10 THE SUSJECT-MATtER.
iniiu' the (}iiestion as to whether given appendages or annex-
ations to houses or lands are to be considered as part of the
realty, and hence partaking of its immovable character, or
simply as personal property which follows the person of the
owner.
It is a rule of the common law that w'hatever is accessory
to land is a part of it, and passes by alienation. The neces-
sities of trade have caused a modification of this rule so far
as it may affect the relation of landlord and tenant, and courts
recognize and enforce the right of removal, by tenants, of
chattels annexed to the freehold for the purposes of manu-
facture, agriculture or domestic convenience.^''^ But as be-
tween vendor and vendee the rule is still applicable, except
so far as it may have been modified by statutory regulation;
and, where the question is not affected by the terms of the
contract, appurtenances and chattels attached to lands or
buildings for permanent and habitual use, and contributing
to their value and enjoyment, pass by a grant of the freehold,
and after conveyance cannot be severed by the vendor or any
person other than the owner.^^
Just what shall be regarded as a fixture, and what a chattel
sufficient to escape the operation of the foregoing rule, is not
always an easy matter to decide. Many things pass by a deed
of lands, being put there by the vendor, which a tenant who
had put them there might have removed; and they will pass
to the vendee, although attached for the purposes of trade,
manufacture, or even for ornament or domestic use. Thus,
utensils and machinery appertaining to a building for manu-
facturing purposes ;3^ gas-pipes, fittings and other apparatus
3T It may be remarked here that numerous, and, with respect to
very many, indeed, a large proper- this relation, the rule is better
tion, of the cases involving ques- settled.
tions as to whether particular ar- 38 Tourtellot v. Phelps, 4 Gray
tides were fixtures have arisen (Mass.), 578; Kennard v. Brough,
between landlord and tenant; and, 64 Ind. 23; Lapham v. Norton, 71
from the very nature of the rela- Me. 83; Westgate v. Wixon, 128
tion between these parties, as well Mass. 304 ; Alvord Mfg. Co. v. Glea-
as from the widely differing cir- son, 36 Conn. 86; Van Kuren v.
cumstances attending each case, R. R. Co. 38 N. J. L. 165; Stillman
has come the difficulty of settling v. Flenniker, 58 Iowa, 450; Home
and establishing a universal rule. v. Smith, 105 N. C. 322.
But the cases between vendor and so As potash kettles in an ash
vendee are less difficult as well as
THE PROPERTY.
11
designed for purposes of illumination,"' including even chan-
deliers, burners, etc., when it is apparent that such was the
intention of the parties," or they are clearly shown to be
accessories and not merely furniture;'- water-pipes and con-
duits;^^ ranges, Ixtilcrs and tanks attached in a permanent
manner,'' ♦ will all i)ass by a conveyance of the land without
special mention. Stoves and hot-air furnaces or other appli-
ances for heating, when put in as permanent annexations,*''
have been held to i)ass, though on this point the authorities
are not agreed.^'"' Window and door screens,^^ storm-doors, or
other adjuncts made and fitted to a house, usually go with it,
though if never actually used and the house is complete with-
out them, they might not jmiss even if on the premises;^'* but
generally anjthing that the vendor has annexed to a building
for the more convenient use and improvement of the property
passes by his deed unless specitically reserved.
§ 11. Continued — Rule for determination. The rule, there-
fore, would seem to be that where the annexation is perma-
nent in its character and essential to the purpose for which
the property is used or occupied, it should be regarded as
realty and pass with the grant of the freehold; and this not-
factory (Miller v. Plumb, 6 Cow. -lo McKeage v. Ins. Co. 81 N. Y.
(N. Y.) 665) ; a cotton-gin perma- 38; Hays v. Doane, 11 N. J. Eq. 96.
nently fixed (Bratton v. Clawson, Contra, Vaughn v. Haldeman, 33
2 Strob. (S. C.) 478); a steam-
engine to drive a bark-mill (Oves
V. Oglesby, 7 Watts (Pa.), 106);
Pa. St. 522.
41 Fratt V. Whittier, 58 Cal. 126;
Keeler v. Keeler, 31 N. J. Eq. 191;
kettles set in brick in a print- and see Johnson v. Wiseman, 4
works (Despatch Line v. Bellamy Met. (Ky.) 359; Smith v. Common-
Mfg. Co. 12 N. H. 207) ; iron stoves wealth, 14 Bush (Ky.). 31.
fixed to the brick-work of chim-
neys (Goddard v. Chase, 7 Mass.
432) ; fixed tables in a mill (Sands
<^ Keeler v. Keeler, 31 N. J. Eq.
191.
" Philbrick v. Emry, 97 Mass.
V. Pfeiffer, 10 Cal. 259); blower 134.
and pipe conveying air to a forge
(Alvord Mfg. Co. v. Gleason, 36
Conn. 86); a factory bell (Ibid.,
and Weston v. Weston, 102 Mass.
514); heavy iron table in a glass
factory (Smith Paper Co. v. Servin,
130 Mass. 511); an iron drill fast-
ened by screws and braces (Sav-
^i Fratt V. Whittier, 58 Cal. 126.
■*■> 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 throii<j;h whose land it flows, it follows
that no one can wholly destroy or divert it so as to prevent
it from passing to the property below, or wholly obstruct it so
as to throw it back upon the land of the one above.''-
. In the case of standing water, as well as water percolating
through the soil, while absolute ownership, in the strict sense
of the term, is of course impracticable, yet the right of prop-
erty, so far as the element is capable of beneficial use, is com-
plete in the owner of the freehold, free from any usufructuary
rights in others.-'^
But while property in water can be regarded in no higher
light than a mere usufructuary right, such right is, neverthe-
less, a proper and valid subject of sale and conveyance, and
may be disposed of quite independently of the soil upon which
the water rests or over which it flows.'-'^ This is one of the
oldest and best-recognized principles of the law relating to
waters, finding frequent reference in the ancient books in
connection with grants of a ''pool," a "gulph," as well as of a
"stream" and "part of a river."^^ A grant of a stream or any
part thereof, or of any waters by fixed boundaries, can only
be made by a deed duly executed ;'^^ yet such grant may be
presumed, as in other cases, from adverse occupation and user
for twenty years.'^'^
By the civil law in a grant of any easement or service, under
which was classed the use of streams of water, a right to the
soil passed, so far as was necessary to the enjoyment of the
82 The right to the use of flowing (Mass.) 466; Hill v. Newman, 5
water is not an easement; it is in- Cal. 445; Van Sickle v. Haines. 7
separably connected with and in- Nev. 249; Wadsworth v. Tillotso.;
herent in the land and passes with 15 Conn. 366.
it. The right to have it flow over 03 Hanson v. McCue, 42 Cal. 303
the land of another is more in the Wilson v. New Bedford, 108 Mass.
nature of an easement, although 261.
not strictly such in fact; and o* Avon Mfg. Co. v. Andrews, 30
where a proprietor of a large tract Conn. 476; Bobo v. Wolf, 18 Ohio
through which a water-course St. 463; Hines v. Robinson, 57 Me.
passes sells parcels above and be- 324.
low the part he retains, each gran- os Co. Lit. 5 a, b; Plowd. Com.
tee would take his parcel with full 154; Bac. Ah. Grant. H.; 2 Blk.
rights and subject to corresponding Com. 19.
duties, without special or express o« Bullen v. Runnels, 2 N. H. 255.
words. Cary v. Daniels, 8 Met. o7 Bucklin v. Truell, 54 N. H.
THE PROPERTY. 25
service;^*^ and the same niU', substantiallj, seems to have
been adopted by the common law,'*" although no interest in
the soil for any other purpose would pass; but ordinarily a
grant of water will not pass the soil beneath, x>robably
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 <j;rautees.'*^
It would also seem that, notwithstanding the peculiar
features of this sjjecies of estate, either spouse anay transfer
his or her interest to tlie other. Nor can tliis be properly
regarded as a violation of the original grant since its jirimary
object is that each may be secure against an impairment of
rights through the act of either. Where this course is per-
mitted the effect is to convert the estate into a severalty in
fee which the owner may alien or incumber in like manner as
other property.<"^
§ 39. Contingent interests and estates. xVn^- or all of the
foregoing enumerated estates may be classified as vested or
contingent; and while sales and conveyances are usually made
with reference to vested rights, it is not uncommon for parties
to contract with reference to estates to be acquired in the
future and resting wholly upon a contingency. In a very few
instances the legal right to so contract has been denied, and
courts have refused to give effect to contracts so made, partic-
ularly in the case of sales of expectancies by presumptive
heirs. But even where deeds of this character can have no
operation at law as grants, jet in equity it is well settled that
an instrument which {)urports to convey proiJei-ty which is in
expectancy, or to be subsequently acquired, or which is not of
a nature to be grantable at law, although inoperative as a
grant or conveyance, will be upheld as an executory agree-
ment, and enforced according to the intent, if supported by
valid considerations, whenever the grantor is in a condition
to give it effect.««
It was a rule at common law, that both contingent remain-
ders and executory interests were only possibilities, and,
therefore, not assignable, though it seems they might, as
possibilities couj)led with an interest, be devised by will, or
08 Donegan v. Donegan, 103 Ala. 537; Engeart v. Kepler, 118 Ind.
488; Stelz v. Shreck, 128 N. Y. 263; 34.
Russell V. Russell, 122 Mo. 235; «» Bailey v. Hoppin, 12 R. I. 560;
Hopson V. Fowkes. 92 Tenn. 697. and see Jackson v. Bradford, 4
07 Appeal of Lewis, 85 Mich. 340. Wend. (N. Y.) 619.
C8 Donahue v. Hubbard, 154 Mass.
56 THE SUBJECT-MATTER.
they might be released by a conveyance operating by way of
estoppel. Yet it would also seem that contracts and assur-
ances relating to such interests, given for a valuable consid-
eration, might be enforced in equity, and, at the present
time, even where the common law rule as to assignability of
such interests prevails, it is well settled that where the con-
tingency upon which the remainder is to vest is not in respect
to the person, but to the event, where the person is ascer-
tained who is to take if the event happens, the remainder
may be granted and the grantee will occupy the place of the
grantor w ith his chance of receiving the estate.'^^
Contingent remainders are not favored, and, unless it
clearlj' appears from the language creating the estate that it
is intended to be contingent, the estate will be regarded as
vested.
§ 40. Expectancies and naked possibilities. Closely related
to the subjects treated in the foregoing paragraph, and par-
taking in some measure of their essence, are mere expectan-
cies and naked possibilities not founded upon a right or
coupled with an interest. The law in respect to this class of
interests, if indeed they can justly be regarded as interests,
is variant and uncertain. At common law the rule is abso-
lute that such interests are not assignable and this rule has
repeatedly been applied in this country.^^ But opposed to
this is a modern equitable doctrine, the principles of which
are as yet somewhat uncertain, which supports assignments
of expectancies as grants operating not in presenti but rather
as present contracts to take effect in futuro and as soon as
the subject matter shall have come into or have a potential
existence.'^2 This view now seems to be sustained by the
volume of authority.'^^ The conveyance, if sustained by an
70 Barthalomew v. Muzzy, 61 72 Mitchell v. Winslow, 2 Story
Conn. 387; Smith v. Pendell, 19 (c. ct.) 630.
Conn. 112 ; Grayson v. Tyler's 73 Lewis v. Madison, 1 Munf .
Admr., 80 Ky. 363. (Va.) 303; Bacon v. Bonham, 33
71 McCalls Admr. v. Hampton, 98 N. J. Eq. 614; Bishop v. Daven-
Ky. 166; Alves v. Schlesinger, 81 port, 58 111. 105; Varick v. Ed-
Ky. 290 ; Hart V. Gregg, 32 Ohio St. wards. 1 Hoff. ch. cas. (N. Y.)
502; Skipper v. Stokes, 42 Ala. 255; 382; Hale v. Hollon, 90 Tex. 427.
Patterson v. Caldwell, 124 Pa. St.
455.
THE ESTATE. 57
adequate consideration, is considered as an executory agree-
ment to convey or as a covenant iur a future conveyances^
§ 41. Powers. A power, teclinically speakin<,^ is not an
estate, but is a mere authority, enabling a person, through
the medium of the statute of uses, to dispose of an interest in
real i)roi)erty vested either in himself or in another person."-'"'
^* Baylor v. Comr., 40 Pa. St. 37. -■> 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<j;nition of existing titles.
§ 45. Derivation and nature of title. The king, as the head
and sovereign rejjresentative of the nation, is by the English
law the original proprietor or lord paramount of all the land
in the kingdom, and the true and only source of title. From
the crown all the lands in the realm are held, either mediately
or immediately, by a tenure, of which fealty is the great char-
acteristic. This doctrine grew out of the feudal system, by
which fealty was inseparably incident to the reversion, and
could never be lost to the ultimate lord. With the assump-
tion of independence, the state, in its sovereign capacity, suc-
ceeded to the titles of the king and became the proprietor of
all the lands, and hence all valid individual title is derived
only from the grant of the federal government; from the state
government; or from foreign powers either prior to the Revo-
lution, or the subsequent acquisition of the territory by the
government, the vested rights of the landowner being recog-
nized in the latter case by treaty at the time of the cession or
by subsequent confirmation. But the state does not lend its
lands, like a feudal lord, nor has it any tenantry. Its patents
stipuhite for no fealty or other feudal incident; and though
5 Green v. Blanchar, 40 Cal. 194. was a species of reversion; in its
6 2 Bouv. Law Diet. 395; Cruise, present form it is quite distinctly
Dig. tit. 30. a method of descent, the state tak-
1 1n its original form escheat ing as an ultimate heir in default
62 THE SUBJECT-MATTER.
title can be deduced only from the sovereign — the state — by
direct grant or confinnation, yet when so acquired it is held
in pure and free allodmm, being the most ample and perfect
interest that can be obtained in land, and denoting a full and
absolute ownership, with no duties to a superior lord, or
services or fealty incident thereto.^
§ 46. Marketable title defined. Unless there has been some
express stipulation as to the character of the title to the
estate to be conveyed, a marketable title is always presumed ;9
and unless this fact can be satisfactorily established by the
vendor, the vendee will not be compelled to complete the pur-
chase or pay for the land.^^ As a general rule, a title which
is open to judicial doubt is not marketable,^ ^ although what is
sufficient ground for a judicial doubt cannot be conclusively
reduced to fixed and determinate principles, as it depends to
a considerable degree upon the discretion of the court.^^ jq
no case, however, will a purchaser be compelled to accept a
property which he can only acquire in possession by litiga-
tion and judicial decision j^^ nor one the possession of which
he must thus defend,i^ or which would expose him to the
hazard of a law-suit.^ ^ Property subject to incumbrance can
never be imposed upon the purchaser unless he has so
agreed;^ 6 but the mere fact of incumbrance does not neces-
sarily defeat the vendor's title, nor in any proper sense render
it unmarketable when the incumbrance is of such a character
as to admit of easy removal.
§ 47. Derivative titles — ^Descent. Title by descent, though
of known kindred. For many n Shriver v. Shriver, 86 N. Y.
years, however, it has been classed 575.
as a form of purchase and is usu- 12 Aston v. Robinson, 49 Miss.
ally so treated by the elementary 348; Quinn v. Roath, 37 Conn. 16.
writers. is Butts v. Andrews, 136 Mass.
8 See Warvelle on Abstracts of 221; Charleston v. Blohme, 15 S. C.
Title, Chap. II passim, for a full 124.
discussion of this subject. i* Shriver v. Shriver, 86 N. Y.
9 Powell v. Conant, 33 Mich. 396; 575.
Freetly v. Barnhart, 51 Pa. St. 279; ^-^ Dobbs v. Norcross, 24 N. J. Eq.
Taylor v. Williams, 45 Mo. 80. 327; Walsh v. Barton, 24 Ohio St.
10 Ludlow V. O'Neil, 29 Ohio St. 28. See chapter on Specific Per-
182; Richmond v. Gray, 3 Allen formance.
(Mass.), 27; Gill v. Wells, 59 Md. I'i Chambers v. Tulane, 9 N. J.
492. Eq. 146.
THE TITLE. 63
for practical purposes regarded as a new title springing from
the dcatli of tlie ancestor, and wliicli, wlicn ass(*r<<'d, must be
so proved, is in reality but a continuation of the ancestor's
title which the law casts upon the heir at the moment of the
anccslor's dcatli.^ '^ The licir is regarded in law as the legal
appointee to receive the title, and this appointment he can
neither disclaim nor avoid. The title of the heir, therefore, is
not so much an ac(piisition as a succession. Tlie deatli of tlie
ancestor does not create a title, but rather confirms in the heir
that which was previously inchoate, uncertain and defeasible.
It was a part of the contract in the original grant from the
state that the grantee and his heirs might hold, possess and
enjoy the land; and unless the ancestor has exercised the
l)Ower of alienation in liis lifetime, the heir, upon his death,
succeeds to his rights in virtue of the original agreement, as
strictly as though the power of alienation did not exist.
The right thus acquired by the heir, upon the death of the
ancestor, is a vested interest, which he may immediately con-
vey by deed,^^ the grantee standing in his place and holding
the land as he did, subject to the lien, if any, of the adminis-
trator.io
§ 48. Continued — Purchase. While descent is strictly a
succession, i)urcliase, although equally so in legal theory, is
usually treated as an assignment. Indeed all purchasers by
deed, devise, or other act of the parties, are classed as assigns.
The title so acquired depends for its validity not only on
the regularity of the method of devolution, but also on the
rights of the assignors, for the title asserted by a purchaser
is only a continuation of that of his vendor. These matters
are generally disclosed by the muniments, or the operative
instruments of conveyance that constitute the chain of title.
There is practically no difference in respect to the status
of an heir and a beneticial assignee. The title of either is
subject to the same incidents and equities that affected it in
17 The term "ancestor," when i« Hubbard v. Rickart, 3 Vt. 207;
used with reference to the descent Walbridge v. Day, 31 111. 379.
of real property, embraces all per- ii' Austin v. Bailey. 37 Vt. 219;
sons, collaterals as well as lineals. Van Syckle v. Richardson, 13 111.
through whom an inheritance is 171; Cockerel v. Coleman, 55 Ala.
derived. Wheeler v. Clutterback, 583.
52 N. Y. 67.
64 THE SUBJECT-MATTER.
the Lands of the ancestor or assignor. But a jjurchaser for
value and without notice takes the land unaffected by latent
equities, and his title is unimpeachable for such causes.
§ 49. Tax titles. It is a fundamental proposition that all
property is subject to a just proportion of the burdens of
taxation in return for the protection which the state affords.
A tax is in one sense a personal debt, and may be collected
hy any of the legal methods jHovided by law, should the
state choose to resort to such, remedies; yet it is not an
ordinary debt, for it takes precedence of all other demands,
and is a specific charge upon the property against which, it
is assessed, without reference to the matter of ownership.
In case of non-payment of the debt, the state, in the exercise
of the perpetual lien which by virtue of its sovereignty it
possesses upon all taxable lands within its limits, may seize
and sell the land charged with the tax, although there may be
prior liens and incumbrances upon it, and thus enforce pay-
ment to the exclusion of all other creditors.
The title raised by such sale is a purely technical as distin-
guished from a meritorious title, and depends for its validity
upon a strict compliance with all the requirements of law.2<>
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<f lands obtains only a usufructuary right
therein under the power of eminent domain or through an act
of dedication. This is very generally the c^ise where the land
is used for the convenience of jjublic travel or recreation.
While the land is so used no ])ower of sale can be exercised,
and in case of diversion, abandonment or vacation the jjosses-
sion reverts to the owner of the fee. It would seem, how-
ever, that if the munici])ality possesses an absolute title to its
streets, parks, etc., with power to vacate them, it may, upon
regular vacation had and a payment or tender of fair dam-
ages, if any, to abutters or owners, grant or sell the land thus
vacated to private parties.^!
§ 66. Assignees. When a contract of sale has been
assigned, the vendor not being a party to the assignment, no
duty devolves on the vendor to hunt up the assignee to tender
a deed: it is sufficient if he tenders it to the original vendee;
and it is the duty of the assignee to make a tender of the
money and demand a deed at or within the time designated in
the contract, if time is of the essence of the agreement, or
within a reasonable period if time is not material; and if the
assignee fails to do so the vendor may treat the contract as
abandoned, and equity cannot be invoked by the assignee to
enforce a specific performance.-'*-
It is further to be observed that the assignee of a bond or
agreement for conveyance, being only the jjurchaser of an
equity, will take such title burdened with all its imperfections
III. 568; St. Clara Academy v. Sul- si See Lindsay v. Omaha, 30
livan. 116 111. 375. Neb. 512; Dempsey v. Burlington,
'0 Ducat V. Chicago, 48 111. 172; 66 Iowa 688.
State V. Fosdick, 21 La. Ann. 434. r-s Hedenberg v. Jones, 73 111. 149.
50 Carroll v. East St. Louis, 67
111. 568.
84 THE PARTIES.
and subject to any equities or defenses that may exist against
it; and this, too, notwithstanding he has i)urchased in good
faith, for a valuable consideration, and without notice
thereof.^^ A subsequent purchaser, it is true, will be pro-
tected against latent equities, but this protection extends only
to those who by conveyance have been clothed with the legal
title. The rule, stated in a more comprehensive form, is that,
as between jjarties holding equal equities, courts will not
interfere to change or affect the legal title or the rights of the
parties at law, simply because nothing is gained in equity
thereby, the one having as good right in equit}- as the other.
In all cases where neither party has the legal title, and the
equities are equal, the well-known maxim prevails that he
who is first in time is first in right.-''^
A deed, that is an instrument under seal, is not essential
to the transfer of a purchaser's interest in a contract for the
sale of land, for while a vendee's interest is, for many pur-
poses, regarded as real property, yet such interest is purely
equitable and will pass by simple assignment.^^
It is customary to draw contracts of purchase with a special
inclusion of the heirs, executors, administrators and assigns
of the respective parties. An assignee of such a contract,
however, is not personally liable for the unpaid purchase
price. The land in his hands may be charged with a vendor's
lien and same may be sold in satisfaction of such lien, but
no compulsory payment can be exacted from him nor will a
judgment for deficiency lie in case the vendor's lien is fore-
closed. In the absence of any express agreement on the part
of the assignee the stipulations of the contract of sale with
respect to purchase money must be regarded as a personal
covenant of the original vendee.^^
§ 67. Assignors. While the assignee of a bond or agree-
ment to convey takes it subject to any equities that may exist
against the assignor, yet, if the assignment is absolute and
unconditional and made upon a valuable consideration, the
assignor, where there is no stipulation to that effect, under-
■"'3 Smith V. Tucker, 25 Tex. 60; ss Fruhauf v. Bendheim, 127 N.
Follett V. Reese, 20 Ohio 546. Y. 587.
54 Anketel v. Converse, 17 Ohio ■''•e Lisenby v. Newton, 120 Cal.
St. 11; Elstner v. Fife, 32 Ohio St. 571.
373.
PERSONS SUI JURIS. 85
takes by implicatiou that he is the owner of the iustniment,
and has an indefeasible right to demand what the bond or
agreement calls for. If he has not such right, there is a
breach of this implied undertaking the moment the assign-
ment is made; and it is not necessary to fix his liability that
this want of right in the assignor should be established by
suit. And it seems that though the assignee receives it with
notice or knowledge of the adverse claims of other i)arties, if
he did not agree to risk the claims of such third persons, he
may still recover against his assignor; the undertaking
created by the assignment being sunicicully comprehensive to
impose a responsibility against such claims in the absence of
an express waiver.''*^
But this is the full extent of the assignor's liability. There
is no implied covenant, on his part, of title to the land in the
vendor; all that can be implied is a warranty that the
assignor owned the contract, and had the right to assign it,
and that the signatures thereto are genuine.^^
§ 68. Death of contracting party — Executors and admin-
istrators. It is a well established presumption of law that
where a party makes a contract he intends to bind his per-
sonal representatives — executors and administrators — unless
the contract is one which calls for some personal act or
quality of the contractor. This presumption applies with
much force to contracts for the purchase of land and the
personal representatives of the contractor will usually be
required to cojnplete his contract in the event of his prior
death. It is immaterial whether such representatives are
named or referred to in the contract, for they are but a con-
tinuation of the deceased for the purposes of the final adjust-
ment of his affairs, and his contracts are generally enforcible
against them to the extent of the assets which may come to
their hands.''''
5T Emerson v. Claywell, 14 B. ^'!> 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.'"
A<i;ain, if one who holds a lej^al 11 (le in trust for, or who is
<'(piilably bound to convey to, another, transfei-s the le^al title
to a third person witii notice of the trust, sudi purchaser will
himself become a trustee, and as much bound to convey to the
real owner as if he had acquired the title with an express
agreement to perfonn the trust.'' He can only hold it subject
to the liabilit}' of his vendor to resjtond to the existinj^ trust,
and (^innot be heard to defeat it, notwithstanding he may
have purchased for a full consideration.' 2
Lands lield in trust by several persons are incapable of
partition and can only be convej'ed by the joint act of all;'^
and, if any one or more of them assume to act without the
concurrence of the other, the conveyance will not pass the
legal title to the property.'"*
§ 79. Mortgagees. Sales and conveyances by mortgagees,
acting under and in pursuance of a power, differ in no import-
ant particular from conveyances by trustees acting in a like
capacity, the mortgagee being, for the puii)oses of the con-
veyance, an executor of an express trust. He is held to the
same strict rules that regulate the conduct of other trustees,
and cannot exceed the express powers under which he acts.
A mortgagee may sell the equity of redemption of the mort-
gagor and such interest as is conveyed to him by the mort-
gage under which he sells, but he cannot sell the equity of
redemption by itself; nor can he sell an undivided portion
••• Huntt V. Townshend, 31 Md. Fla. 171; Smith v. Walter. 49 Mo.
336; Mills v. -Taylor, 30 Tex. 7. 250.
10 Griswold v. Perry, 7 Lans. (N. 12 Webster v. French, 11 III. 254;
Y.) 98. Bethel v. Sharp, 25 111. 173.
11 Jackson v. Matsdorf, 11 Johns. i^ Sinclair v. Jackson, 8 Cow.
(N. Y.) 91; Carpenter v. McBride, (N. Y.) 543; Goldep v. Dressier
3 Fla. 292; Ryan V. Doyle, 31 Iowa, 105 111. 419; Heard v. March, 12
53; Kent v. Plumb, 57 Ga. 207; Cush. (Mass.) 580; Ham v. Ham.
Ham V. Ham, 58 N. H. 70; Sadler's 58 N. H. 70.
Appeal, 87 Pa. St. 154; Gray v. i-« Lamed v. Welton. 40 Cal. 349;
Ulrich, 8 Kan. 112; Isom v. Bank, Morville v. Fowle, 144 Mass. 109.
52 Miss. 902; Gale v. Hardy, 20
lOG THE PARTIES.
of his iutcrc'st iu the hmd included in the mortgage. A proper
execution of the power of sale requires him to sell all he is
entitled to under it,^'' and for the same reason he has no
right to sell a greater interest than the mortgage gives to him
or authorizes him to sell. A violation of these rules will
render the sale invalid.^^ The original i)urchaser at a sale by
a mortgagee, under a x>ower 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 hin<i:ua«!:e, it shoukl ;jjo to the jury to ascertain and deter-
mine the intention.-'^
§ 107. Intention of the parties. The primary inquiry in
the interjjretation of a contract is directed to the intention of
the parties thereto at the time of its execution; and the car-
dinal rule applicable to the same is that such intention, so
far as it can be ascertained, must govem.^V Where the con-
tract is clear and unambiguous in its temis, it is the best
evidence of such intention; and even though 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 according to the plain import of the language
employed.-- If the language is ambiguous courts uniformly
endeavor to ascertain the true meaning, and to adopt such,
a construction as will give effect to the provisions which carry
out the evident intent.-^ Facts existing at the time of the
making of an obscurely-worded contract are available to
explain the language used;^'* and courts may look to the cir-
cumstances attending the contracting parties, as well as to
the terms of the contract itself, to learn the purposes and
objects contemplated thereby, as aids to a correct understand-
ing of a i^articular part, supposed to be equivocal or doubt-
ful,25 but the verbal language employed by the parties in
20 Holland v. Long, 57 Ga. 36; Y.) 172; Green v. Day, 34 Iowa
Paine v. Ringold, 43 Mich. 341; 328; Ker v. Evershed, 41 La. Ann.
Bank v. Dana, 79 N. Y. 108. 15.
21 Higgins V. Wasgatt, 34 Me. 23 People v. Gosper, 3 Neb. 285;
305; Belmont v. Cowan, 22 N. Y. Walker v. Tucker, 70 111. 527;
438; Field v. Leiter, 118 111. 17; Steele v. Branch, 40 Cal. 3.
Bent v. Rogers, 137 Mass. 192; Wa- 24 Dent v. North American, etc.,
terman v. Andrews, 14 R. I. 589; Co., 49 N. Y. 390; Strong v. Greg-
Bryan V. Bradley, 16 Conn. 474; ory, 19 Ala. 146; Robinson v.
Pike V. Monroe, 36 Me. 309; Mills Fiske, 25 Me. 401; Lacey v. Green.
V. Catlin. 22 Vt. 98. 84 Pa. St. 514.
2-' Walker v. Tucker, 70 111. 527
Babb V. Bancroft, 13 Kan. 123
Brannan v. Messick, 10 Cal. 95
Jackson v. Blodgett, 16 Johns. (N. 265
10
25 Pratt V. Canton Cotton Co. 51
Miss. 470; Lacy v. Green, 84 Pa.
St. 514; Kuecken v. Valtz, 110 111.
14G CONSTRUCTION OF LAND CONTRACTS.
making the contract cannot be resorted to, nor will their
understanding as to the conditions and effect of their written
contract be received to affect its construction.-*^ The con-
struction of a contract does not depend upon what either
party thought, but upon what both have agreed.-''^
It has been held, however, that, while the understanding of
the parties as to the conditions and effect of their contract
cannot be received to affect its construction, their under-
standing of the meaning of terms employed in it may be
shown ;-''^ and a party to the same will usually be held to that
meaning which he knew the other party supposed the words
to bear, if this can be done without making a new contract.^^
The intention is further to be ascertained rather from the
order of time in which the acts are to be done than from the
structure of the instrument or the arrangement of the cov-
enants.30
§ 108. Construction deduced from acts. While the rule
still holds that, where parties reduce their contracts to writ-
ing, they must be governed by its provisions, and their inten-
tion must be gathered from its terms; yet this applies in its
strict sense only where the intention is apparent. It will fre-
quently happen, through inadvertence or other reason, that
the language employed does not fully disclose the true intent,
and resort is necessarily had to acts to supplement the written
2G Dent V. North American, etc., to happen on the performance of
Co., 49 N. Y. 390; Haddock v. that which is the consideration of
"Woods, 46 Iowa 433; Watrous v. it, no action can be maintained be-
McKie, 54 Tex. 65. fore performance. Dunn v. Moore,
27 Brunhila v. Freeman, 77 N. C. 16 111. 151. On the other hand, if
128; Clark v. Lillie, 39 Vt. 405; a day be appointed for the pay-
Watrous v. McKie, 54 Tex. 65. ment of money or part of it, or for
s.'i Thus, evidence may be re- doing any other act, and the day
ceived that by "current funds" the is to happen or may happen before
parties meant money. Haddock v. the thing which is the considera-
Woods, 46 Iowa 433; and see Bar- tion of the money or other act is to
low v. Scott, 24 N. Y. 40. be performed, an action may be
20 Clinton County v. Ramsey, 20 brought for the money, or for
111. App. 577; Wells v. Carpenter, not doing such other act, before
65 111. 447; Barlow v. Scott, 24 N. performance; for it appears that
Y. 40; Gunnison V. Bancroft, 11 Vt. the party relied upon his remedy,
490. and did not intend to make the
30 As when a day is fixed for the performance a condition precedent,
payment of money and the day is Sheern v, Moses, 84 111. 448,
CONSTRUCTION OF LAND CONTRACTS. 147
words. Hence the const ruction ^^iven to u contruct by the
parties themselves, as shown by their acts under it, may be
resorted to as a means of determininjj; the true intention which
they liad in view in enterini^ into the same.''* As, althougli
an aji^reement for conveyance of "ten acres out of one linndred
and sixty acres" mij,dit be void for uncertainty, yet where the
vendee has j^one into possession and the parties liave j^iven a
construction to tlieir contract b}' the manner in wliich they
have executed it, the objection of uncertainty in description
would be removed ;22 jjuj [Jk. fjjct that the jiarties have
adopted a particular construction, and have acted upon it,
should lead a court without hesitation to adopt that construc-
tion as the pi'oper one.^^
>i 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<l
delivery of a deed of conveyance by the vendor and the pay-
ment of the last note are mutual and dependent acts. Where
acts are mutual and dependent neither party can require the
other to proceed until he has perfonned or offered to perform
his part of the contract; nor is either party in default so as to
release the other from his j)art of the agreement.^^ On the
other hand, where the covenants or undertakings are inde-
pendent of each other, one party may maintain an action
against the other without averring a performance, or an offer
of performance, on his part.-*^
Covenants and undertakings are construed to be dependent
or independent, according to the intention of the parties, if
that intention cnn be discovered; but, unless it is clearly made
to appear that the intention was that the covenants should be
independent, thej' will be deemed dependent.*^ The intention
of the parties as expressed by the language of the contract,
and not technical and artificial rules, must govern in deciding
whether stipulations are conditional or independent or
mutually dependent; while the nature of the transactions,
and the order of time in which they are to be performed, ma}'
further be considered in arriving at a determination.^"' In a
contract relative to the same subject-matter, some stipula-
42 Hudson Canal Co. v. Coal Co., consideration of the other, and
8 Wall. (U. S.) 276. there was no time fixed for mak-
43 Campbell v. Gittings, 19 Ohio, ing them, the agreements were
347; Jones v. Marsh, 22 Vt. 144; held to be mutual and dependent.
Swan V. Drury, 22 Pick. (Mass.) Couch v. Ingersoll, 2 Pick. (Mass.)
485; Bourland v. Sickles, 26 111. 292.
497; Sheern v. Moses, 84 111. 448; *•* Prairie Farmer Co. v. Taylor,
Smith V. Lewis, 26 Conn. 110; 69 111. 440.
Howe V. Huntington, 15 Me. 350. ^s Hamilton v. Thrall, 7 Neb. 210.
Where agreements were recipro- ^e Howland v. Leach, 11 Pick,
cally entered into for exchange of (Mass.) 151; Hopkins v. Young. 11
lands, one conveyance being the Mass. 302.
150 CONSTRUCTION OF LAND CONTRACTS.
lions may be independent, and others dependent and
niuluallj conditional.^'^
v? 113. Precedent and contemporaneous acts. Even in the
case of muUial and dependent undertakings there must of
necessity be some order of precedence, although it may in
many cases be hardly appreciable. Thus, the payment of the
purchase money and the delivery of the deed are, in most
cases, and in the absence of special stipulations, to be deemed
mutual and concurrent acts; yet a vendee is not entitled to a
deed, unless the contract otherwise provide, until he has
made payment,^^ and if the payment of any part of the pur-
chase money is deferred the giving of the deed should pre-
cede the delivery of a mortgage to secure the deferred pay-
ments.-*^ Practically these acts may be contemporaneous;
but the rights and liabilities of the parties, whether for
specific enforcement or rescission, are usually fixed with
regard to this order of precedence.
§ 114. Admission of parol evidence. When parties have
deliberately put their engagements in writing in such terms
as to import a legal obligation, without any uncertainty as to
the object or extent of such engagement, it is conclusively
presumed that the whole agreement of the parties, and the
extent and manner of their undertaking, was reduced to writ-
ing; and all antecedent verbal propositions and contem-
poraneous agreements are considered as merged in the writ-
ing, from which alone is to be determined the terms and con-
ditions of the contract and the liability of the parties.^^
Parol evidence is inadmissible, therefore, to alter, vary or
control such a contract, or to annex thereto a condition or
47 A contract was made to con- and of the othei* to execute and de-
vey certain land, a part of the con- liver a deed, were mutually de-
sideration of which was to be paid pendent and conditional. Kane v.
in ten days and a "half of the re- Hood, 13 Pick. (Mass.) 281.
mainder in twelve months, and the *» Terry v. George, 37 Miss. 539;
other half in two years, with in- Headley v. Shaw, 39 111. 354.
terest annually, and the deed to be <» Papin v. Goodrich, 103 111. 86.
executed at the completing the last so Merchants' Ins. Co v. Morri-
payment." It was held that the son, 62 111. 242; Weaver v. Fries, 85
agreement to pay the two first in- 111. 356; Walterhouse v. Garrard,
stalments was independent, but 70 Ind. 400; Charles v. Dennis, 42
that the agreement of the one Wis. 56; Hunt v. Adams, 7 Mass.
party to pay the last instalment, 518; Curtis v. Wakefield, 15 Pick.
CONSTRUCTION OF LAND CONTRACTS. 151
defeasance nut iippcariii"^ on the coiitiacl itself;"'' and this
rule, establislu'd and suslained by innumerable dceisiuns. uu
account of its inipoitance is never to be relaxed iu any dcj^ree.
The rule itself is founded on the long experience that written
evidence is so much more certain and accurate than that
which rests in fleeting memory only that it would be unsafe,
when parties have expressed the terms of their contract in
writing, to admit weaker evidence to control and vary the
stronger, and to show that parties intended a dillerent con-
tract from that expressed in the writing signed by them.^-
Fraud, duress, illegality or other matters aifecting the valid-
ity of the instrument or the contract thereby evidenced may
be shown, and parol evidence is freely and usually necessarily
received to demonstrate the same/'^ But with this exception
the rule holds absolute; and obligations which parties have
deliberatelj' entered into and put in writing, if free from
ambiguity or uncertainty, cannot be pared dow-n, taken away
or enlarged by parol e\idence.^^ The inconvenience that
would arise if matters in writing were left to be proved by
the uncertain testimony of defective memory is apparent
without demonstration; while the dangers that might result,
even where parties act in good faith, is abundantly shown in
the history of the decided cases where the rule has been
invoked and applied.
It has been held that the rule does not apply where it
appears from the writing itself that it does not contain the
(Mass.) 437; Williams v. Robin- varied by parol evidence of lost
son, 73 Me. 186; Polhill v. Brown, documents or letters which have
84 Ga. 338; Bruns v. Schreiber, 43 passed between the parties before
Minn. 468. it was executed. Gage v. Phillips,
51 Black V. Bachelder, 120 Mass. 21 Neb. 150.
171; Mott V. Richtmeyer, 57 N. Y. sj Underwood v. Simonds, 12
49; Naumburg v. Young, 44 N. J. Met. (Mass.) 275.
L. 331; Martin v. Cole, 104 U. S. 5:! Sherman v. Wilder, 106 Mass.
30; McDonald v. Elfes, 61 Ind. 279; 537; Paine v. Upton, 87 N. Y. 327;
Richardson v. Johnson, 41 Wis. Barnet v. Abbott, 73 Vt. 120;
100; Rockmore v. Davenport, 14 Friend v. Miller, 52 Kan. 139; Roe
Tex. 602. And if, in fact, some of v. Kiser, 62 Ark. 92.
the conditions actually made be ■>* 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<j;s of the
parties to the contract; and when parties, without any fraud
or mistake, have deliberately put their enjj;a^'ements in writ-
in<j:, the law declares the writinj; to be not only the best but
the only evidence of the agreement, and courts are not dis-
posed to relax the rule. It has been found to be a wholesome
one for all purposes; and where parties are allowed to testify
in their own behalf, the necessity of adhering strictly to it is
all the more imperative.*^- In some of the states (notably in
rcnnsylvania)"'' the stringency of this rule has been consid-
erably relaxed, not only with reference to contracts whicli,
while they have been reduced to writing, are not such as the
law re(piires shall be in writing, but also in respect to con-
tracts for the sale of real property. But, even in these states,
the general i)rinciples first stated are still rigorously adhered
to so far as respects the terms in which the writing is couched,
and no case goes the length of ruling that parol evidence can
be admitted to change the undertaking itself, although it is
held that evidence which goes to explain the subject-matter
of an agreement is essentially different from that which varies
the terms in which a contract is conceived.
It has been held that the rule as stated does not prevent
the parties to a written agreement from proving that, either
contemporaneously or as a preliminary measure, they had
entered into a distinct oral agreement on some collateral mat-
ter which induced the execution of the written obligation, or
which constitutes a condition on which the performance of
the wa'itten agreement is to depend.*'^ There is nothing incon-
705; Richardson v. Thompson, 1 parol evidence is permissible to ex-
Humph. (Tenn.) 151. plain a written instrument. The
«i Quinn v. Roath, 37 Conn. 16; courts of that state have gone to
Bradbury v. White, 4 Me. 391; great lengths in the matter of the
Chambers v. Livermore, 15 Mich, admissibility of parol evidence,
381; Ryno v. Darby, 20 N. J. Eq. and the Pennsylvania decisions
231; Margraff v. Muir, 57 N. Y. upon this subject cannot be said to
155. be in full accord with the decis-
02 Bast V. Bank, 101 U. S. 96; ions of other states, or to truly
Martin v. Berens, 67 Pa. St. 463. represent the prevailing doctrine
By It is extremely difficult to de- on this subject,
termine when, in Pennsylvania, 04 Michels v. Olmstead, 14 Fed.
154 CONSTRUCTION OF LAND CONTRACTS.
sistcnt in this rule with that first stated, and its denial must,
in many inslances, work f^rcat hardship and injustice; and
though it linds its most frequent illustrations in contracts
relating to chattel property, there is no impropriety in apply-
ing it to agreements providing for the sale of land/'-'*
Notwithstanding the statute of frauds, it seems to be a gen-
erally accepted doctrine tjiat evidence is admissible of parol
. agreements as to the proceeds of the sale of lands ;^^ and this,
too, although the contract for the sale of the land was in
writing, if the contract was made subject to the agreement.^^
It would seem, therefore, that parol evidence cannot be
admitted to establish a contemporaneous parol agreement to
change the effect of a written contract, or in violation of its
terms, but may be received to show an oral promise or under-
talcing, material to the subject-matter of the contract and col-
lateral thereto, made by one of the parties at the time of the
execution of the writing, and which induced the other party
to put his name to it.^^
.^116. Surrounding circumstances and pre-existing relations.
While parol evidence is never admissible to vary, con-
tradict or control a written agreement, yet in construing the
same it is proper to look at all the circumstances surrounding
the transaction, the pre-existing relations of the parties, their
knowledge of the subject-matter of the contract, and the state
or condition of that subject-matter.^^ To accomplish this
parol evidence may be resorted to without any violation of the
rule first stated; and proof may be given, by way of explana-
Rep. 219; Bown v. Morange, 108 6g Trowbridge v. Wetherbee, 11
Pa. St. 69; Welz V. Rhodius, 87 Ind. Allen (Mass.), 361; Sherrlll v.
1; Galbraith v. McLain, 84 111. Hagan, 92 N. C. 345 ; Bruce v. Hast-
379; Harper v. Harper, 57 Ind. 547. ings, 41 Vt. 38.
65 Thus, a written lease of a e? Michael v. Foil, 100 N. C. 178.
hotel having been extended, parol es See Clinch, etc., Co. v. Willing,
evidence was held competent to 180 Pa. St. 165.
establish a contemporaneous oral eo Springsteen v. Samson, 32 N.
agreement by the lessor, in con- Y. 706; Matter of N. Y. C. R. R.
sideration of the lease, not to en- Co., 49 N. Y. 414; Emery v. Web-
gage in a rival business in the ster, 42 Me. 204; Berridge v. Glas-
same city. Welz v. Rhodius, 87 sey, 112 Pa. St. 442; Evans v. Gris-
Ind. 1. And see Remington v. com, 42 N. J. L. 579; Lee v. Butler,
Palmer, 62 N. Y. 31; Carr v. Doo- 167 Mass. 426.
ley, 119 Mass. 294.
CONSTRUCTION OF LAND CONTRACTS. 155
tiou, to show the situation of the parties, the object in view,
or other extrinsic facts bearinj^ on the ciuestion of intention,
which may suggest a meaning where none was apparent
before, or which tend to indicate what construction shall be
placed upon the language used when the same is susceptible of
more than one interpretationJ^ With the light thus atlorded,
as well as uj)on a view of the whole instrument, that construc-
tion should be adopted which seems most in accordance with
the apparent intent of the partiesJ^ IJut although courts,
when necessary, put themselves in possession of all the facts
and circumstances connected with the execution of the instru-
ment for the purpose of ascertaining the intention of the x^ar-
ties and explaining any ambiguity arising from extrinsic facts,
3^et this is never done where the terms of the instrument are
clear and unambiguous and there is no doubt as to the identity
of the subject-matter to which the instrument relatesJ-
It must further be understood that, while it is proper to
solve questions of ambiguity by throwing upon the language
used the light of surrounding circumstances, the rule, so far
as it can be invoked as a rule, is one of interpretation merely,
and does not permit the making of a new contract, or a
reformation of it, or a disregard of its terms. It authorizes
only a just construction of those terms and a fair inference
as to the common understanding of both the contracting
parties.^^
§ 117. Usage and custom. It is a fundamental proposition
that custom and usage are supposed to enter into and form a
part of all contracts where the use or custom prevails in refer-
ence to the matter to which the contract relates,'''^ and that
the contracting parties are not only presumed to be acquainted
with such usage, but contract with reference to it.'^^ This
proposition, however, is usually restricted in its application
to mercantile transactions or particular branches of trade,
70 Chambers v. Falkner, 65 Ala, "^ Stettauer v. Hamlin, 97 111.
448; Fenderson v. Owen, 54 Me. 312; Gilbert v. Stockman, 76 "Wis.
372; McDonald v. Timber Co,, 88 62,
Tenn, 38; Peay v. Seigler, 48 S. C, " ciark v. Woodruff, 83 N. Y.
496, 518,
Ti Springsteen v. Samson, 32 N. '■« Doane v. Dunham. 79 111. 131,
Y. 706; Chambers v, Ringstaff, 69 "'-Life Ins. Co. v. Advance Co.,
Ala. 140. 80 111. 549.
15G CONSTRUCTION OF LAND CONTRACTS.
aiul can seldom be invoked as an aid in the interpretation of
land contracts.
The principle upon which proof of usage is admitted is that
it serves to explain and ascertain the intent of the parties
upon some point as to which their contract is silent, and as to
which there existed a usage so long continued and well known
as to raise a fair presumption that it was within the view of
the contracting parties when they made their agreement, and
that they contracted with reference to and in conformity with
such usage, thus explaining the silence or omission of any
express provision of the contract itself J® But while a custom
or usage is sometimes permitted to affect a contract in order
to explain or ascertain the intent of the parties, it cannot be
introduced in opposition to any principle of general policy,
nor if it be inconsistent with the terms of the agreement, or
against the established principles of law;'^'^ and usually,
where parties have settled the terms and conditions of a con-
tract by agreement, they will be concluded by it regardless
of any usage or customJ^
§ 118, Ambiguities. A w^riting is said to be ambiguous
when it is capable of two or more inconsistent constructions,
or where there is an uncertainty in the meaning of the expres-
sions used. The term does not include mere inaccuracy, how-
ever, nor such uncertaint}' as arises from the use of peculiar
words, or of common words used in a peculiar sense, but
intends only such words or expressions as would be found of
uncertain meaning by persons of competent skill and informa-
tion.'^^ They are classed as patent, or those which exist or
appear on the face of the writing itself; and latent, or those
which arise from some collateral circumstance or extrinsic
matter in cases where the instrument itself Is sufficiently cer-
tain and intelligible.^*^
It is a general rule that patent ambiguities, or such as arise
upon the words of the instrument, cannot be explained or
removed by extrinsic evidence ;^i and this rule is usually
76 Lamb v. Klaus, 30 Wis. 94; gram on Wills, 174; 1 Greenl. Ev.
Kimball v. Brawner, 47 Mo. 398. § 298; Chambers v. Ringstaff, 69
"Wilson V. Bauman, 80 111. 493. Ala. 140; Palmer v. Abee, 50 Iowa,
78Corbett v. Underwood, 83 111. 429.
324. »•> 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<riimeuts. Latent anibi^MiKies, or those which arise, not
uixm the words of the instiiimciil considered in themselves,
but in their ai)])lication to tlie subject-matter, are j^overned
by a somewhat diflerent rule; and extrinsic evidence will in
such cases be received, not to vary or chan;j;e tlie j)uri)ort of
the instrument, but to aliord additional li^ht in interpreting
what is there writt<'n.'*- A latent anibij^uity, it is said, may
be assisted by j)arol evidence, because the ambiguity beinj;
raised b}' i)arol nuiy fairly be dissolved by the same means.^^
Hence, where any part of (lie subject-matter of the contract,
or the identity of persons, places or documents therein
referred to, are uncertain, and the uncertainty is shown by
extrinsic matters — that is, where the words of the a^M-eement,
although certain in point of grammatical construction and
apparently definite, are rendered uncertain or of doubtful
aj)plication by circumstances which appear aliunde — parol
evidence of the intention of the parties at the date of the
agreement is admissible in order to identify the property,
document or other thing or ])(M'son intended.*^^ The subject
will be considered in detail in the succeeding paragraphs.
§ 119. Technical phrases, in the construction of contracts
and agreements relating to land, courts are not so frequently
asked to interpret technical expressions or terms of art as in
contracts more intimately connected with commercial sub-
jects. Yet it will often happen that very great embarrass-
Pitts V. Brown, 49 Vt. 86; Panton Pickering v. Pickering, 50 N. H.
V. Tefft, 22 111. 366; McNair v. 349; Berridge v. Glassey, 112 Pa.
Toler, 5 Minn. 435; King v. King. 7 St. 442.
Mass. 496; Ayres V. Weed, 16 Conn. ^-f Storer v. Freeman, 6 Mass.
291; Waldron v. Waldron, 45 Mich, 440; Webster v. Atkinson, 4 N. H.
350; Clark v. Lancaster, 36 Md. 23; Eveleth v. Wilson, 15 Me. 109;
196; King v. Fink, 51 Mo. 209; Pritchard v. Hicks, 1 Paige (N. Y.)
Chambers V. Ringstaff, 69 Ala. 140; 270; Brainard v. Cowdrey, 16
Peacher v. Strauss, 47 Miss. 358; Conn. 1.
Horner v. Stillwell, 35 N. J. L. 307; «t See Webster v. Blount, 39 Mo.
Lewis V. Day, 53 Iowa 575; Haven 500; Huntington v. Knox, 7 Cush.
v. Brown, 7 Me. 421. (Mass.) 371; Oelrichs v. Ford, 21
82Bergin v. Williams, 138 Mass. Md. 489; Bell v. Woodward, 46 N.
544; Epperson v. Young, 8 Tex. H. 315; Wing v. Gray, 36 Vt. 261;
135; Hughes v. Wilkinson, 76 Ala. Hughes v. Sandal, 25 Tex. 162; Ab-
204; Cooper v. Berry, 21 Ga. 526; bott v. Abbott, 51 Me. 575.
158 CONSTRUCTION OF LAND CONTRACTS.
meiit is experienced in si'^'ins answers to such questions as
do arise in tlie proper adjustment of the rights of parties
under contracts for the sale of interests in or connected with
real property. Thus, by the use of the terms "mines and
minerals," a wide field is opened. It may be 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; if he did, notwithstanding the grant
is only of the mines and minerals, he has parted with the soil
itself. But such a construction, in a case similar to that
stated, would be inconsistent with and repugnant to the
whole tenor of the grant. On the other hand, there exists no
more propriety in confining the meaning of the terms used
to any one or more of the subordinate divisions of the earth's
composition. This is cited as an illustration of what may,
and frequently does, occur in loosely-constructed agreements,
where technical phrases are carelessly employed to denote
matters which should be stated with specific exactness and
accuracy of detail.
The general rule is that the intent, when apparent and not
repugnant to an}' rule of law, will control technical terms,
and that, upon the view and comparison of the whole instru-
ment, endeavor should be made to give every part of it mean-
ing and effect.^'^ If upon such a survey it clearly appears that
a technical word or phrase is used in a sense evidently differ-
ent from its ordinary technical signification, and the sense in
which it is used is plainly shown by the general manifestation
of intention as disclosed by the entire instrument, courts will
usually give to it that construction which the parties clearly
intended.*^ ^^
The terms may receive a restricted meaning through inter-
pretation which has been assisted by a survey of the circum-
stances surrounding the parties, and relating to the subject-
matter of the contract at the time when it was made. As to
the extent to which parol testimony is admissible in giving
an interpretation or a proper definition of the words used no
85 Parker v. Nichols, 7 Pick. 47 Cal. 151; Morrison v. Wilson, 30
(Mass.) Ill; Jackson v. Blodgett, Cal. 344; Bradshaw v. Bradbury, 64
16 Johns. (N. Y.) 172; Bryan v. Mo. 334; Jackson v. Blodgett. 16
Bradley, 16 Conn. 474. Johns. (N. Y.) 172.
86 Central Pac. R. R. Co. v. Beal,
CONSTRUCTION OF LAND CONTRACTS. 159
positive rule can Ix* laid down. Wlici-c a term of art i.s
cniplovcd, or a word connected witli Konie depart inent of the
natnial world, which has Ix-conie teclmical and popular in its
use anion<x scienlilic men and men of letters, a court, wheu
called nj)on to ^ive a const ruction to such words, may avail
itself of parol testimony to ascertain the technical and j)Opu-
lar use of the word. But parol testimony is not admissible,
nnch'i- any circumstances, to show that the j)arties to an instru-
ment in writing; under seal placed ujwn a particular word or
l)liraseology, which controls the whole effect and value of
the writinji:, any limited or definite meaning for the purposes
of that particular transaction.
Good conveyancing will strictly exclude ambiguous terms,
words, symbols and other expressions of like character; yet,
as these matters are constantly employed, courts are fre-
quently called upon to furnish an interpretation of them.
Thus, the s.Mnbol ''etc." is often employed in connection with
specific terms of exact and restricted meaning; as where
parties make calculations and adjustments of tlie amounts
to be paid with reference to "rents, interest, etc." The use of
this sign or term may sometimes present an apparent ambi-
guity; but where a view of the subject-matter of the agree-
ment and the situation of the parties gives a clear presenta-
tion of the evident design and intention of the parties, the
use of this symbol would import no other matters of adjust-
ment than those similar in their nature to what were named.
Thus, in the example given, the use of the sign "etc." in this
way should be deemed to have reference only to such matters
as bore some relation to the current of accrued earnings and
liabilities of the premises, and which obviously had to be in
some way adjusted between seller and ])urcliaser.*^~
§ 120. Contemporaneous writings. When two or more
written instruments are executed contemporaneously, each.
relating to the same subject-matter, and the one referring
to the other, the presumption is that they evidence but a
single contract,^^ and the several instruments should be con-
87 Lathers v. Keogh, 109 N. Y. Canterberry v. Miller. 76 111. 355;
583. Held, in this case, that a tax Pillow v. Brown, 26 Ark. 240;
was not analogous. Smith v. Turpin, 20 Ohio St. 478;
88 Byrne v. Marshall, 44 Ala. 355; Babbitt v. Globe Ins. Co., 66 N. C.
IGO CONSTRUCTION OF LAND CONTRACTS.
stnied together in dcterniining the meaning of the parties
thereto,s° and to complete the memorandum required by the
statute.^® This would follow as a matter of course in case
of duplicate agreements mutually signed and interchangeably
delivered, but the principle has been extended to cover all
the writings and x)apers employed bj' the parties in conduct-
ing their negotiations; and even though some of the writings
are unsigned, if it clearly appears that their matter has been
recognized and adopted by the parties, they may still be con-
sidered with the others and taken as part of the contract.^^
In this event, however, there must be a direct reference to the
unsigned writings, so that, in effect, they shall become incor-
porated into and form a part of the papers bearing the signa-
tures, and the reference must be so clear as to prevent any
other paper being substituted for them. Where a writing is
thus referred to it may be identified by parol,'^- but a paper
to which no reference has been made cannot be introduced
to supply a term or cure any other defect.^^
As a rule, to justify the construction of two separate writ-
ings as constituting but one transaction, there must be identity
of parties and date.^* They must appear on their face to have
been simultaneous or practically so, and the question of time
is usually considered material. This rule is not unyielding,
however, and there are cases of separate writings or instru-
ments that may be so construed even though executed at
different times. Thus, where there has been a special agree-
ment, and a subsequent agreement is made the effect of
which is not to create an absolute independent contract, but
simply a modification of the original, to which reference is
made, both should be taken together as one instrument and
71; Morss v. Salisbury, 48 N. Y. Portsmouth, 46 N. H. 249; Norton
636; Stow v. Tifft, 15 Johns. (N. v. Kearney, 10 Wis. 443.
Y.) 458; King v. King, 7 Mass. 499; so Lee v. Butler, 167 Mass. 426.
Doe V. Bernard, 15 Miss. 319; Nor- oi Johnston v. Buck, 35 N. J. L.
ton V. Kearney, 10 Wis. 443. 338.
89 Morss V. Salisbury, 48 N. Y. »-' Beckwith v. Talbot, 95 U. S.
636; Rogers v. Kneeland, 10 Wend. 289.
(N. Y.) 218; Strong v. Barnes, 11 03 Freeport v. Bartol, 3 Greenl.
Vt. 221; Sewall v. Henry, 9 Ala. (Me.) 340; Morton v. Dean, 13 Met.
24; Stacey v. Randall, 17 111. 467; (Mass.) 385; Ridgway v. Ingram,
Wallace v. Beauchamp, 15 Tex. 50 Ind. 145.
303; Salmon Falls Mfg. Co. v, »* Craig v. Wells, 11 N. Y. 315.
CONSTRUCTION OF LAND CONTRACTS. IGl
be construed accordiu*,' to the intent of the {(urties as collected
from the whole contract/-*'^
Nor is it absolutely necessary dial the instruments should
in terms refer to each other, if in point of fact they are parts
of a siuj^le transaction. But until it appears that they are
such, either from the writings themselves or by comj)etent
extrinsic evidence, they cannot be brought within the oper-
ation of the rule. That they are made between the same
parties and have the same date are significant facts; yet,
where there is no reference in either to the other, it is not
inferable from these facts alone that they are parts of a single
transaction. It may be that the same parties should have
several transactions in one day, and of the same general
nature, and yet each one should be distinct and wholly inde-
pendent of the other. It is therefore of vital importance not
only that there shall be identity of parties and correspondence
of time, but that the writings plainly disclose their relation to
the same subject-matter. Where these features do not com-
bine, and the writings do not refer to each other, neither can
in an}' way be made to qualify or affect the legal construction
of the other, and parol evidence will be inadmissible to vary
or control their legal effect or operation.^^
§ 121. Continued — When variant from each other. Where
two instruments, executed by the same parties at the same
time and in relation to the same subject-matter, are construed
together as a part of the same transaction, one cannot be
regarded as more expressive of the intent of the parties than
05 Van Hagen v. Van Rensselaer, Y.) 130. It has been held that the
18 Johns. (N. Y.) 420; Adams v. general rule that collateral papers
Hill, 16 Me. 215. Letters from a adduced to supply the defect of
principal to his agent may afford signature of a written agreement
a "memorandum or note" of a con- under the statute of frauds should
tract of sale effected through the on their face sufficiently demon-
agent, sufficient under the statute strate their reference to such
of frauds, where the letters refer agreement without the aid of parol
to and connect with each other, proof is subject to some excep-
and, taken as a whole, show tions, and that parol proof, if clear
clearly the fact and terms of such and satisfactory, may be received
sale, and a sufficient description of to identify the agreement referred
the land. Lee v. Cherry, 85 Tenn. to in such collateral papers. Beck-
707. with V. Talbot, 95 U. S. 289.
06 Cornell v. Todd, 2 Denio (N.
11
163 CONSTRUCTION OF LAND CONTRACTS.
the other. If iu respect to any particular clause such instru-
ments vary iu their lanjjjuage, the true intent is to be ascer-
tained by an examination of the terms and provisions which
are identical in each and the objects and purposes contem-
plated by the parties thus determined.^"^ Particularly is this
true ^vhere the instruments were intended to be duplicates,
and to express the same terms and employ the same language,
r.oth are to be regarded as originals, and each is entitled to
equal faith and credit. The want of accuracy in one is not
proven by the mere production of the other.
§ 122. Unintelligible expressions. It will sometimes hap-
pen that, even under the most favorable construction, words
and phrases still remain unintelligible; and where no mean-
ing can be given to a word from the connection in which
it is used, nor consistently with express provisions, nor upon
a full examination of the whole instrument, such word or
term may be treated as surplusage and disregarded.'^s
Clerical omissions, when they clearly appear, although by
strict construction creating unintelligible or meaningless
expressions, are usually disregarded when the general intent
is manifest from the whole instrument taken in connection
with attendant circumstances or viewed in the light of other
transactions of a similar nature.^^
§ 123. Printed blanks. The use of what is popularly termed
"printed blanks" is now w^ell-nigh universal, their labor-saving
qualities commending them to the indolent and their supposed
legal etficacy to the ignorant. To the amateur conveyancer
they are a priceless boon, and even the skilled draftsman
gladly avails himself of their assistance. Ordinarily, every
part of an instrument is entitled to equal consideration, and
is to be taken as equally expressive of intention; yet in the
construction of this class of writings it is an established rule
in the interpretation of the language employed, that greater
07 Munson v. Osborn, 10 111. App. word "dollars" in an offer to sell
508; Morss v. Salisbury, 48 N. Y. "forty acres of land for ten per
636. acre," which was accepted, the pur-
98 Tucker V. Meeks, 2 Sweeny (N. chaser agreeing to pay "what you
Y.) 736; Decorah v. Kesselmeier, ask — four hundred dollars" — there
45 Iowa 166. being no possibility of doubt as to
99 Thus, a contract is not invalid its meaning. N. W. Iron Co. v.
because of the omission of the Meade, 21 Wis. 474.
CONSTRUCTION OF LAND CONTRACTS. 163
woij,'lit should bo given to tlie written than to the printed
words wliere they lead different ways and tend to contrary
results.' The lanjiuage of jtrinted blanks is easily assumed
to be appropriate without careful examination, while the
written 'words more safely and more nearly indicate the inten-
tion of the contractinj^ parlies; and for this reason where
parties, in attempting to reduce their agreement to form, use
a blank containing a jtrinted paragrajth which is entirely
inconsistent with a provision wiittcn in the blank, and it
appears that by inadvertence the blank as filled is signed with-
out erasing the pnnted paragraj)h, the written ytrovision must
control and will be taken as (*x[)ressing the real contract.^
§ 124. Interlineations — Erasures. Among the many per-
plexing questions which arise upon the construction of written
instruments is that which is raised by the insertion of words
interlined upon the face of the writing. It is not necessary,
to give validity, that the writing should be regular or in
properly-disposed courses; that the lines should be straight,
and that every word should find its appropriate place in
unbroken continuity of sentences. This is, of course, desir-
able; and there are not wanting authorities w^iich hold that
an interlineation is presumably an unauthorized alteration,
and that the burden of proof is upon the party offering the
instrument in evidence to show the contrary.-'^ On the other
hand, there are cases in which interlineations have been held
to create conditions exactly the reverse. The true rule, and
the one which governs in all such cases, would seem to be
this: If the interlineation is in itself suspicious, as, if it
appears to be contrary to the probable meaning of the instru-
ment as it stood before the insertion of the interlined words;
or if it is in a handwriting diflerent from the body of the
instrument, or appears to have been written with different
ink, — in all such cases, if the court considers the interlinea-
tion suspicious on its face, the presumption will be that it was
an unauthorized alteration after execution. On the other
hand, if the interlineation appears in the same handwriting
1 Clark V. Woodruff, 83 N. Y. 518; 2 People v. Dulaney, 96 111. 503.
Hill V. Miller, 76 N. Y. 32; Amer- 3 See McAllister v. Avery. 17 111.
lean Ex. Co. v. Pinckney, 29 111. App. 568.
392.
1G4 CONSTRUCTION OF LAND CONTRACTS.
with till' orij^iiial instrument, and bears no evidence on its
face of having been made subsequent to the execution of such
instrument, and especially if it only makes clear what was
the evident intention of the parties, the law will presume
that it was made in good faith and before execution.^
The foregoing remarks on interlines have practically the
same application to erasures, substitutions or alterations of
any kind. An erasure or other alteration of any material
part of an instrument, after execution, avoids it; and it is
for the jury to decide whether the alteration was made after
delivery.^ But the construction of deeds is the province of
the court, and the materiality of an alteration is a question of
construction; hence, whether erasures or alterations are
material or not is a question of law to be decided by the
court.^
§ 125. Proposals and offers — Options. A mere proposal or
offer, though made in writing and signed by the proponent,
creates no obligation on the part of the person making the
same, unless accepted by the person to w^hom the same is
made according to its terms. Being made without considera-
tion, and not possessing the essential element of mutuality,
the party making an offer has a right to withdraw it any
time before the one to whom it is made accepts it;'^ and this,
too, notwithstanding a time was named within which the
offer might be accepted.^ The theory of the proceeding is
that it is merely a continuing offer which may be retracted
at any time. But where the person so proposing allows his
4 Beaman v. Russell, 20 Vt. 205 ; the interlineation was made prior
Burnham v. Ayer, 35 N. H. 351; to execution.
Stoner v. Ellis, 6 Ind. 152; Nichols ^ Vanhorne v. Dorrence, 2 Dall.
V. Johnson, 10 Conn. 192; Hunt- (C. Ct.) 304.
ington V. Finch & Co., 3 Ohio St. c Steele v. Spencer, 1 Pet. (Q. S.)
445; Cox v. Palmer, 3 Fed. Rep. 552.
16. In this case there appeared ^ Conner v. Reneker, 25 S. C.
interlined upon the face of a mort- 514; Perkins v. Hadsell, 50 111.
gage the words "block 19," without 216; Richardson v. Hardwick, 106
which the property described could U. S. 252; Smith v. Reynolds, 3
not be located. The interlineation McCrary (C. Ct.) 157; Coleman v.
was in the handwriting of the Applegarth, 68 Md. 21; Gordon v.
draftsman, who had not, since the Darnell, 5 Colo. 304; Bradford v.
time of execution, had the instru- Foster, 87 Tenn. 8.
ment in his possession. Held, that » School Directors v. Trefethren,
CONSTRUCTION OF LAND CONTRACTS. 165
offer to remain open until accepted, it is then too late to
recede."
Where, howevei', the luue for acceptance is not limited, the
]trojK)Kili()ii must be accepted within a reasonable time, to be
determined b.v all the eii'cumstanccs of the case.^^ If the
ojdion is ^Mven for a valuable consideration, whether adequate
or not, it cannot ]»e withdiawn oi- re\()ke<l within tlie time
tixed, and it will be binding; and olilijiatorv ujion the owner,
or his assij^ns with notice, until it expires by its own limita-
tion." r.ut a unilateial contract or offer, in wntin<;, simply
}iivin<;' an option to purchase within a s])ecitied time for a
<;iven price, is binding; only upon the party who si<j;ns it, and
upon kim only for the time stipulated. Time is of the very
essence of such an ajji;reement ; and when the time limited luis
expired the contract is at an end, notwithstandinj; a nominal
consideration may have been paid to the owner of the property
for the j)rivilej?e of the option.^^
There is a marked distinction between an option of sale
and a contract for sale, although such distinction is fre-
quently overlooked. If without consideration an option is a
mere proposal whicli may be retracted at any moment; if
given for a consideration it amounts to nothing more than
a i)rivilege to purchase at a certain price or within a certain
time. It is not a sale; it is not even an agreement for a sale;
at best it is but a right of election in the party receiving
same to exercise a pri^^lege, and only when that privilege
has been exercised by acceptance does it become a*contract
to sell.^3 If based upon a consideration it cannot be extended
10 111. App. 127; Smith v. Reyn- 530; Guyer v. Warren, 175 111. 328;
olds, 3 McCrary (C. Ct.) 157; Bos- House v. Jackson, 24 Ore. 89; Linn
ton, etc., R. R. Co. v. Bartlett, 3 v. McLean, 80 Ala. 360; Litz v.
Cush. (Mass.) 224; Larmon v. Goosling, 93 Ky. 185; Bradford v.
Jordan, 56 111. 204. Foster, 87 Tenn. 4.
» Perkins v. Hadsell, 50 111. 216; i-* Coleman v. Applegarth, 68 Md.
Boston, etc., R. R. Co. v. Bartlett, 21; Barrett v. McAllister. 33 W.
3 Cush. (Mass.) 224; Ide v. Leiser, Va. 738; Sterabridge v. Stembridge,
10 Mont. 5; Wall v. Ry. Co., 86 Wis. 87 Ky. 91; Vassault v. Edwards,
48. 43 Cal. 458; Borst v. Simpson, 90
if> 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(<niired as heir of a person
named, or as distrihiitee of a certain estate, etc. Such descrip-
tions slaudiu}^ by tlieuiselves or iu connection witli other and
less particular descriptions are fre(jnently of j^reat utility in
definitely locatinj; the land by reference to extrinsic facts;
and, like descriptions by desi<^iiation, of which they may be
said to form a species, are efifective to pass the estate of the
j;:rantor in all the lands that can be shown to fall within their
terms.
But if there exists no doubt or question as to the identity
or location of the land in (juestion, which is described with
absolute certainty by metes and bounds, with statement of
quantity or reference to visible monuments, the mention of
events in the history of the title is of comparatively little
moment. If the incidents are correctly stated they may be
regarded as recitals only; and if, on the other hand, the state-
ments create an apparent repugnancy, they will not be per-
mitted to have force against the mention of metes, bounds,
courses, distances and visible monuments. When a piece of
land is so described that a surveyor's chain can be stretched
along its boundaries with absolute certainty as to each course
and distance, a transposition of dates in stating previous con-
veyances constituting the chain of title, or an erroneous men-
tion of any incident occurring in the history of its devolution,
will not cloud or affect that certaintj-, nor destroy the oper-
ative force of a conveyance.^^ Ordinarily references are made
to prior convejances, not so much for the purpose of fixing
the boundaries as to show the grantor's chain of title, and in
construing descriptions this view is usually taken by the
courts.
The true interpretation, therefore, of recitals of this char-
acter seems to be that they are to be regarded merely as
descriptive of the thing granted and not of the quantity of
the grantor's interest.^^
02 Sherwood v. Whiting, 8 Atl. then proceeded to further identify
Rep. 80; Hastings v. Hastings, 110 them as being the same lands
Mass. 280; Deacons v. Walker, 124 which were described in two mort-
Mass. 69. gages therein specified, and this in
fis As where a deed containing a turn was followed by the clause:
full and sufficiently accurate de- "Intending to convey the same
scription of the lands conveyed lands and no other which passed to
ISO CONSTRUCTION OF LAND CONTRACTS.
§ 135. Description by designation. The chief requisite of
a description consists in the identification of the property, and
if this result can be attained so as to indicate the property
with certainty, formality is immaterial. Thus, a "house and
lot" or "one house and lot," in a particular locality, would be
insufficient, because too indefinite on the face of the instru-
ment itself; but "my" house and lot imports a particular
house and lot, rendered certain by the description that it is
the one which belongs to "me;" and where the instrument
does not itself show that the vendor had more than one house
and lot, it will not be presumed that he had more than one.
In such case it has been held there is no patent ambiguity.
If it be shown that he has more than one, it must be by
extrinsic proof; and hence, it is held, the case would then be
one of latent ambiguity, which may be explained by similar
proof.^* This doctrine has in some cases been carried to
extreme lengths.^^
A description by designation, used in connection with other
descriptions which call for courses, distances, etc., will in
some cases overcome such other descriptions when same are
me by virtue of the foreclosure of tion or reservation, such descrip-
said mortgages." Held, that the tion could be overcome when it
latter clause should not be treated turned out that the grantor did not
as anything more than a reference own all he described, by adding
to the mortgages and decree for a clause as to his intent."
further and more particular de- C4 Carson v. Ray, 7 Jones' L. (N.
scription. Wilder v. Davenport's C.) 609.
Estate, 58 Vt. 642. 65 All "my" lands on both sides
In the foregoing case, which was of Har river, has, under the rule,
an action on the covenant of war- been held sufficient. Henly v. Wil-
ranty, it was contended that the son, 81 N. C. 407. "My Lenoir
final clause in the description lands" held good, the description
above quoted controlled the pre- being such that by proof aliunde
vious description by metes and the description may be fitted to the
bounds, and limited the amount of land. Thornburg v. Matsen, 88 N.
land conveyed to what the C. 293. An agreement as follows:
grantor actually owned; but the "I agree to make good titles in fee
court say: "It is hardly suppos- to my forty near the G. lands in H.
able that any man intends to con- county to A. B.," and stating the
vey land that he does not own. It receipt of a consideration, and
would therefore be introducing signed, held, to contain a sufficient
complete uncertainty in deeds if, description of the land to be sold
after a precise description by to satisfy the statute. Lente v.
metes and bounds, without excep- Clarke, 22 Fla. 515.
CONSTRUCTION OF LAND CONTRACTS. 181
repugnant to or inconsistent with tlic designator^ description.
Tlius, in an agrccincnt for a deed (lie land was first described
hy numbers and dimensions and then as the propeHy known
as the "Cook & Glover block." The plain intent seemed to be
that the i)roper(y to be conveyed was a certain "block," but
the parties by mistake assumed that it covered only one-half
of a certain lot and the land was so described, whereas it
occupied two and one-half feet more of the lot, which, if the
description by numbers and dimensions were to prevail, would
leave that part unconveyed. It was therefore held that the
words "Cook & Glover block" were the controlling and
descriptive words; that in effect it was the "block" which was
conveyed; and that, as the same was a fixed and permanent
monument, any words of description repugnant thereto should
be rejected.^'^
A description by some well-known or commonly-accepted
name has frequently been held to answer the requirements of
the statute and to pennit of specific performance of the con-
tract.*^'' The American cases which announce this rule are
largely influenced by English precedents, the designatory
method of description being much employed in England.
§ 136. The medium of payment. Where land is sold for a
money consideration the medium of payment is ordinarily
expressed in "dollars," with the not infreciuent addition, "law-
ful money of the United States." It would seem that such a
statement would leave little or no room for contention or
admit of questions of construction; yet there exists a large
body of case law which has arisen in the construction of the
federal constitution and the various acts of congress and the
state legislatures in regard to what constitutes a legal tender
in payment of obligations founded on contracts made in time
of peace as well as in time of war.
The federal constitution^^ provides that no state shall "make
60 Lyman v. Gedney, 114 111. 388. its consideration all the vendor's
6T A writing describing the prop- "title or claim to property bought
erty sold as "Silver Lake Place, of A. and B., and known as the
near Washington, Kentucky, con- Gentle property," held good under
taining fifty-two acres," held suf- the statute of frauds. Smith v.
ficient to satisfy the requirements Freeman, 75 Ala. 285.
of* the statute. Winn v. Henry, 84 es Art. I, § 10,
Ky. 48. So a bond expressing as
182 CONSTRUCTION OF LAND CONTRACTS,
anything but gold and silver coin a legal tender for the pay-
ment of debts;" but congress, during the earlier years of the
civil war, passed several laws known as the legal-tender acts,
whereby United States treasury notes were declared to be a
legal tender for the payment of all private debts. The con-
stitutionality of these acts, though much doubted at the time,
was finally affirmed by the supreme court.^'^ To avoid the
depreciation in value which at different times has attended the
United States treasury notes, parties frequently make their
contracts payable in "gold coin," or, in "gold coin of the pres-
ent standard of weight and fineness." The earlier cases would
seem to hold that such contracts amounted to nothing more
than obligations to pay the nominal value in any money that
was a legal tender ;'^^ but later cases have established the doc-
trine that a contract to pay in a particular kind of coin may
be specifically enforced."^ In the rendition of such decisions it
would seem that it is not on the basis of a difference in the
values of money that the courts will enforce a contract or ren-
der a judgment for a specific kind, for the law will not recog-
nize any difference in value between one kind of money which
is a legal tender and any other kind which possesses the same
character ;'^2 i^^^ \f jg upon the ground that the parties have
specifically contracted, just as they might have contracted for
payment in any other commodity, for payment in a specific
thing; and hence the obligor is bound to tender that specific
thing — gold or silver coin, as the case may be — precisely as he
would be bound to tender a specific quantity or quality of any
other commodity .'^3
A covenant to pay in "lawful money," or in "dollars," is in
69 By virtue of the paramount ^i whitaker v. Dyer, 56 Ga. 380;
right of congress, and upon the Chesapeake v. Swain, 29 Md. 483;
ground that the constitutional in- Ins. Co. v. Thomas, 104 Mass. 192;
hibition was directed only to the Kellogg v. Sweeney, 46 N. Y. 291;
states and not to the federal gov- Bronson v. Rodes, 7 Wall. (U. S.)
ernment. See Legal-tender Cases, 229.
110 U. S. 421; and, also, George v. "2 Wells, etc. v. Van Sickle, 6
Concord, 45 N. H. 434; Black v. Nev. 45; Reese v. Stearns, 29 Cal.
Lusk, 69 111. 70; Verges v. Gibony, 273; Bank v. Burton, 27 Ind. 426.
38 Mo. 458. '3 Wells, etc. v. Van Sickle, 6
TO Appel v. Waltman, 38 Mo. 194; Nev. 45; Bank v. Van Vleck, 49
T aughlin v. Harvey, 52 Pa. St. 9; Barb. (N. Y.) 508.
Brown v. Welch, 26 Ind. 116.
CONSTRUCTION OF LAND CONTRACTS. 183
legal effect payable in whatever the laws of the United States
declare to be a U'^nl teiiderJ^
Au interesting (juestion arises when the contract is to pay
the purchase price in some commodity other than money, and
the decisions upon the subject seem to be conflicting. The
question usually arises when an attempt is made to pay, or to
demand payment, in money instead of the specific articles
contracted for. There are cases which adopt the theory that
provisions of this character in regard to the mode of payuient
are inserted only for the benefit of the debtor, and that they
give to him the privilege to pay either in money or the articles
specified, as he nuiy elect; but the better reason, as well as the
volume of authority, would seem to indicate a contrary rule.
The decisions which support the latter ])rincij»le i)roceed upon
the theory that, when a contract expressly provides that pay-
ment shall be made in a specific article at a specified price, to
permit the parties to do otherwise is to insert into the contract
provisions which they have not made. The mere fact that
such a. contract specifies a certain number of dollars as the
consideration does not necessarily imj)ly that the vendor was
willing to sell his property for that amount in money; for it
may be the sum was only fixed in view of the other provision
for payment in a specific article at a specified price, and that
mode of payment may have been the very reason that induced
the vendor to make it.
Again, the rule first stated being devoid of mutuality is
Intrinsically unjust. Thus, if the value of the article in which
payment is to be made falls below the specified price, all the
cases hold that the debtor m;iy still pay in that article at that
price. But if the value rises above that price, to say that he
may elect to pay in money is to say that the vendor must lose
by the fall of the value of the article he contracts for, but can-
not gain by the rise.'^^
T* Miller v. Lacey, 33 Tex. 351. ty-five cents per bushel, and the
75 See Wilson v. George, 10 N. H. wheat to be delivered at certain
445; Cole v. Ross, 9 B. Mon. (Ky.) times and quantities. Before the
393. In Starr v. Light, 22 Wis. time of delivery wheat became
433, the plaintiff sold land for worth much more than seventy-five
which the defendant agreed to pay cents per bushel. The defendant
in merchantable wheat of a cer- claimed the right to pay in money
tain quality, the price to be seven- the consideration named; but the
184 CONSTRUCTION OF LAND CONTRACTS.
§ 137. Conditions in avoidance. A familiar provision iu
agreements for sale is that where, in the event of failure on
the part of the vendee to comply with the terms and condi-
tions thereof, the vendor is to be released from all obligations
to convey the bargained property, the vendee to forfeit all
right thereto, and the agreement to be void. This clause is
now always construed to give the vendor an option, on the
happening of the contingency, either to avoid the agreement
or to enforce if^^ The vendee, however, cannot set up his own
neglect as avoiding the contract, even though the terms are
express that the contract shall be void; for they are only held
to mean that the contract shall be void at the election of the
vendor, for whose benefit the provision is inserted.'^'^
Conditions are ordinarily raised by way of proviso; but
while the" words "provided that" and "provided also" are com-
petent to create conditions, and are usually so construed, they
do not always have that effect. Whether there is a condition,
or whether it be precedent or subsequent, is to be determined
from the intent of the parties as indicated from the whole lan-
guage used and the nature of the act required.^^
§ 138. Time of performance. The subject of time as a con-
stituent element of a contract has already been considered, and
the general rule stated that, where no time is mentioned in a
contract for the performance of its conditions, and it cannot
be gathered from the language employed what was the inten-
tion in this respect, the law will imply a reasonable time, and
that what is a reasonable time will depend upon the peculiar
circumstances of the case. This rule, while of general appli-
cation, is particularly adapted to those agreements whereby a
party undertakes to do some particular act the performance of
which depends entirely upon himself, and the contract is silent
court held that the vendor was en- 76 Wilcoxon v. Stitt, 65 Cal. 596;
titled to the wheat, or in default Canfield v. Westcott, 5 Cow. (N.
thereof he might recover its actual Y.) 270.
value at the time specified for its 77 Mason v. Caldwell, 5 Gilm.
delivery, and that the vendee had (111.) 196; Cartwright v. Gardner,
no right to pay in money instead of 5 Cush. (Mass.) 281.
wheat the amount of the purchase ts Schwoerer v. Market Ass'n, 99
price. And see, also. Wells v. Van Mass. 285.
Sickle, 6 Nev. 45; Bank v. Van
Vleck, 49 Barb. (N. Y.) 508.
CONSTRUCTION OF LAND CONTRACTS. 185
as to the time in which it shouhl he (lone. In sncli cases the
law, without reference to extraordinary circumstances, will
imply that it shall be performed within a reasonable time.
Thus, where a party has obligated liiniself to i)ay a j^iven sum
of money by a future day, which is fixed as tiie time for the full
perfonnance, and it is agreed that the sum to be paid may be
increased or diminished by the performance of another act left
to the option of the parties, the law will require either party,
or the party holding the option if there be only one, to exer-
cise such option and perform such act before full payment of
the sum named is made; and after full payment the party will
be held to have waived his right to do the act entitling him to
a further sum or to a diminution, as the case may beJ"
§ 139. Computation of time. Where a specified number of
days is provided for the delivery of an abstract, an examina-
tion of the title, the payment of money or the performance of
any other particular act or duty, and the time is to be com-
puted from a particular day or the happening of a particular
event, sucli day so specified, or the day of the happening of
such event, is to be excluded from the computation; for the
law rejects fractions of a day, and an act done in the compass
of it is not referable to one jjortion of the day more than
another, so that the act is not considered to be passed and
done with until the day has passed. The general rule, there-
fore, is to exclude the first and include the last day of the
limit, yet this rule has many exceptions and is not to be
regarded as fixed or unyielding; and in considering whether,
upon a contract to do an act or enter into an engagement at
or for a definite time from a certain date, the time is to be
reckoned exclusively or inclusively of the last day, each case
70 As,.where the owner of a farm acres, and if such survey showed
supposed to contain four thousand the land to contain more acres
four hundred and forty-one acres than the parties supposed, the pur-
sold the same at a stipulated sum chaser should pay the difference,
per acre, the purchase money to be and if it contained less, the amount
paid in instalments at times fixed of the deficit should be deducted
by the contract. It was further from the purchase money or cred-
provided in the contract that ited upon the notes evidencing the
either party might, at his own ex- deferred payments. Some seven
pense, survey the land if he saw years after the date of the last
fit, to ascertain the number of payment the vendor had a survey
]8C CONSTRUCTION OF LAND CONTRACTS.
must depend largely upon its own circumstances, the relative
situation of the parties and the subject-matter.
Where the computation is made in months, a calendar
month is understood, unless it appears from the general con-
text of the contract that a lunar month was intended.
§ 140. Assignment of contract for security. The assign-
ment of a. contract for the purchase of land by the vendee
therein named as a security for a debt due the assignee is in
equity a mortgage, and, being of an interest in real estate,
must be governed by the rules which are applicable to a mort-
gage of the legal estate.^^ The assignee has a right to fore-
close upon condition broken, and the assignor the correspond-
ing right to redeem.si
made and brought suit against the ony, 45 111. 264; Bull v. Shepard, 7
purchaser for an excess shown by Wis. 440; Christy v. Dana, 34 Cal.
the survey. Held, that he could 548.
not recover, the survey after pay- '^i And while, on a bill to redeem,
ment of the last instalment being the mortgagor generally pays costs,
too late. Hamilton v. Scully, 118 yet if, on application before suit,
111. 192. the mortgagee refuses to allow re-
80 Brockway v. Wells, 1 Paige demption, he may be compelled to
(N. Y.) 617; Alderson v. Ames, 6 pay costs. Brockway v. Wells, 1
Md. 52; Baker v. Bishop Hill Col- Paige (N. Y.) 617.
CHAPTER V.
VALIDITY OF LAND CONTRACTS.
Art. I. Geneually Considered.
Art. II. As Affected by the Statute of Frauds.
Article 1. Generally Considered.
§ 141. Preliminary remarks. § 147. Allotments by chance.
142. Conflict of laws. 148. Sunday contracts.
143. Executed contracts. 149. Agreements to convey by
144. Agreements prohibited by will.
statute. 150. Contracts procured by
145. Agreements against public fraud.
policy. 151. Ante-nuptial contracts.
146. Agreements void in part. 152. Post-nuptial contracts.
§ 141. Preliminary remarks. Tlio subject of this chapter is
so intimately connected with other branches of the law gov-
erning the relation of vendor and purchaser, and with the
rights and remedies growing out of such relation, that only its
general features can be shown without repeating what can be
more advantageously stated in other parts of the work and
in connection with collateral topics which serve to illustrate
the special phases of invalidity. Fraud, deceit, circumvention,
misrepresentation, etc., are matters which go to the validity
or invalidity of a contract, but these matters are best shown
in connection with the remedies which are founded upon
them.
Contracts invalid per sc are few in number and limited in
character; on the other hand, contracts void at the election of
one or both of the parties are very numerous and have a wide
range on which to pi-edicate invalidity. Contracts made in
contravention of jiositive statute, or such as injuriously affect
public morals, or are opposed to the spirit and policy of the
laws, are for that reason void and inca])able of enforcement if
executory, or of rescission if executwl; but contracts which
derive their invalidity from some of the ingredients entering
into the same, and which do not come strictly within the legal
definitions of the class of contracts first mentioned, are
187
188 VALIDITY OF LAND CONTRACTS.
avoided only by some act of the parties indicative of disaffirm-
ance.
§ 142. Conflict of laws. It is a well recognized principle
of law that the validity of a contract is to be decided by the
law of the place where it was made, unless, either expressly
or impliedly, it appears that it is to be performed elsewhere.
It is a further principle that, if valid b}' the law of the jilace
where made, it is generally valid everywhere; and if, in the
jurisdiction where made the law would enforce it, it will be
enforced in the jurisdiction to which a party may be com-
pelled toi resort for a remedy for its violation. But to this
rule there is the exception, that no state or nation is bound
to recognize or enforce contracts which are injurious to its
own interests, or the welfare of its people, or which are in
fraud or violation of its own laws.^
Eoth the rule and the exception find their most frequent
application in contracts and sales relating to chattels, but
there is no distinction, in principle, between personal or real
property whenever the doctrine is invoked as a rule of action.
§ 143. Executed contracts. An executed contract, though
tainted with fraud, is nevertheless binding upon the parties,^
and will not be disturbed on the ground that it is contrary to
public policy;^ nor for want of consideration ;4 nor will the
court under such circumstances inquire into the legality of the
consideration.^ These principles have always been strictly
enforced in all transactions between parties resting under no
disability or laboring under no incapacity. Hence, an exe-
cuted contract for the sale of land based upon illicit sexual
commerce cannot be set aside at the instance of the grantor
or his heirs ;^ nor will the fact that the property is to be used
1 Banchor v. Mansel, 47 Me. 58; 105; Meriwether v. Smith, 44 Ga.
Hill V. Spear, 50 N. H. 253; Rob- 541; Marksbury v. Taylor, 10 Bush
Inson V. Queen, 87 Tenn. 445; (Ky.). 519.
Sondheim v. Gilbert, 117 Ind. 71. 4 Mercer v. Mercer, 29 Iowa, 557;
2 Noble V. Noble, 26 Ark. 317; Beauchamp v. Comfort, 42 Miss.
Ager V. Duncan, 50 Cal. 325; Set- 94.
ter V. Alvey, 15 Kan. 157; Clark v. fi Kerr v. Birnie, 25 Ark. 225;
Colbert, 67 Ala. 92 ; White v. Hun- Thomas v. Cronise, 16 Ohio 54.
ter, 23 N. H. 128. c Marksbury v. Taylor, 10 Bush
3 Levet V. Creditors, 22 La. Ann. (Ky.), 519.
GENERALLY CONSIDERED. 189
for an immoral purjjose impair a deed for the sameJ So, also,
where title was acquired as the result of a bet,^ the court
refused to interfere, holding that it is a universal principle
both at law and in equity, that, where an aj^reement is found<'d
upon a consideration illej^al, immoral or aj^ainst public policy,
a court will leave the parties where it finds them. If executed,
courts will not rescind it; if executory, they will not aid in its
execution.^ A deed of land made in consideration of the com-
jjosition of a felony cannot be avoided by the grantor.^ ^
§ 144. Agreements prohibited by statute. A contract which
is forbidden by statute is incapable of enforcement in any
court,^^ even though the statute may have been repealed after
such contract was made.^^ This is the general rule; and it is
a further principle in connection therewith, that where a
statute prohibits a transaction, although without in terms
declaring it void, it is void notwithstanding if done in viola-
tion of the statute.i3 The effect of the prohibition is to render
the i)rohibited dealings void.^^
The subject of this section finds many examples in the law
of vendor and purchaser where real property is sold in connec-
tion with other matters; as where a professional man sells
his property and practice and at the same time enters into
stipulations restraining his right to further pursue his calling.
- Sprague v. Rooney, 82 Mo. 493. 12 Gilliland v. Phillips, 1 S. C.
The text states the correct rule 152. But if the parties renew the
but compare Sprague v. Rooney, contract after the repeal it may
104 Mo. 349. then become valid. Carr v. Bank,
s Thomas v. Cronise, 16 Ohio, 54. 29 La. Ann. 258.
See Atwood v. Fish, 101 Mass. J:i Watrous v. Blair, 32 Iowa. 58;
363; Crowder v. Reed. 80 Ind. 1; Swords v. Owen, 43 How. Pr. (N.
Cushwa V. Cushwa, 5 Md. 44; King Y.) 167.
V. King. 61 Ala. 479. 1* Swords v. Owen, 43 How. Pr.
"Worcester v. Eaton, 11 Mass. (N. Y.) 167; Dillon v. Allen, 46
368. But a deed given to procure Iowa, 299. The distinction in
a release from imprisonment on some of the old cases between
legal process regular in its form, malum prohibitum and malum, in
in a suit instituted maliciously and se has long since been exploded,
without probable cause, may be and the rule is now well estab-
avoided for duress. Watkins v. lished that no agreement to do an
Baird, 6 Mass. 506. act forbidden by statute or to omit
11 Gilliland v. Phillips, 1 S. C. to do an act enjoined by statute
152; Fowler v. Scully, 72 Pa. St. is binding. Penn v. Bornman, 102
456. 111. 523.
190 VALIDITY OF LAND CONTRACTS.
There can be no doubt, however, but that parties may make
a valid agreement in restraint of trade, where the operation of
the agreement is partial and limited under reasonable condi-
tions, and where it is supported by a valuable consideration.
Such a contract may be enforced by an action at law for the
recovery of damages for its breach, and ma}' be upheld in
equity by a decree requiring it to be specifically performed,
and an injunction will be granted to restrain its violation.^s
Agreements to convey land will not be sustained where b}'
law one or both of the parties have no capacity to consummate
the agreement, or where an express prohibition exists of the
right to acquire and hold for any except a specific purj^ose,
and such specific pui*pose is not contemplated by the proposed
sale.i^
As a general rule, a penalty prescribed by statute for the
doing of an act implies a prohibition which will render the act
void, yet this is not always so; and in every instance courts
will look to the language and subject-matter of the statute,
the wrong or evil which it seeks to remedy or prevent, and the
purpose sought to be accomplished by it. If from all these it
is manifest that it was not intended to render the prohibitory
act void, the courts will so hold and construe the statute
accordingly.^'^ Applying this rule it has been held that a
statute imposing a penalty upon any person who shall sell or
lease any lot in any town, city or addition thereto until the
plat thereof has been duly acknowledged and recorded does
not operate as a prohibition upon the sale itself, but only.
ir; Cobbs V. Niblo, 6 111. App. 60. railroad company an interest in
Where the defendant sold the certain lands or town lots pi'ovided
plaintiff a piece of land and a it would locate its station at a cer-
grocery store, and made at the tain specified place is void, for the
same time a verbal agreement not reason that a railroad company has
to carry on the same business no authority to acquire land for
within prescribed limits, it was purposes of speculation under a
held that this agreement, being a grant of power to acquire and hold
part of the inducement to the pur- sufficient land for the construction
chaser, was made upon a valuable of its road, erection of necessary
consideration, though the agree- buildings, etc. Pacific R. R. Co. v.
ment did not enhance the price Seely, 45 Mo. 212.
paid for the land. Peirce v. Wood- i^ Pangborn v. Westlake, 36
ward, 6 Pick. (Mass.) 206. Iowa, 546.
i«Thus, an agreement to give a
GENERALLY CONSIDERED.
191
imposes a penalty upon the seller and hence the purchase of
such a lot, the plat of which is not recorded, is not rendered
invalid by the enactment ;i^ and further, that it does not ren-
der void a note given for the purcliasc money of lots so sold.^^
v; 145. Agreements against public policy. Where both par-
ties to a contract, void as aj;ainst public policy, are equally at
fault, the law will leave them as it tinds them. If the con-
tract be still executory, it will not enforce it nor award dam-
ages for its breach. If already executed it will not restore the
price paid nor the property conveyed.-" If either i)arty has
obtained an advantage under it he will be permitted to retain
it, and no subsequent acts of the parties will have the effect
to ratify or confirm the contract, or estop them from asserting
its invalidity.21
In general, public policy, as the term is used in the fore-
going paragraph, is that principle of law which holds that no
person can lawfully do that which has a tendency to be
injurious to the public or which is contrary to the general
welfare of society. It has been said, that public policy is a
variable quality, and hence not always to be defined or distin-
guished by any inflexible rule. This is undoubtedly true, yet
18 Watrous v. Blair, 32 Iowa, 58.
10 Pangborn v. WestJake, 36
Iowa, 546.
^0 Setter v. Alvey, 15 Kan. 157.
In this case a town company, the
occupants, and all interested in the
town site, made a contract with a
county to deed it certain lots on
the town site, provided the county
seat was located at the town, and
afterward the county seat was so
located and the lots deeded; held,
that neither the town company, the
occupants, the parties interested in
the town site, nor one claiming
under them, could avoid the deed
or recover the land.
21 As where plaintiff and defen-
dant agreed in writing that on a
partition sale of certain real estate,
of three-sevenths of which the de-
fendant was owner as trustee for
infants, the defendant would not
bid, and that, if the plaintiff should
become the purchaser, plaintiff
should pay four-sevenths and de-
fendant three-sevenths of the pur-
chase money, and that the property
should be divided between them
on a line agreed upon, held, that
such an agreement was void as
against public policy, and that
plaintiff, having purchased at the
sale and taken a conveyance, could
sustain an action of ejectment to
recover from defendant the part
which the latter claimed under the
agreement, and of which he was in
possession, notwithstanding the
fact that plaintiff had received
from defendant his share of the
purchase price, and had made no
offer to refund it; further, that
plaintiff was not estopped from set-
192 VALIDITY OF LAND CONTRACTS.
the principles which support the theory have alwaj's remained
unchanged and are, from their nature, unchangeable. Thus,
public polic}' is only variable in so far as the habits, capaci-
ties and opportunities of the public have become varied and
complex; the relations of society change with the times; new
laws with respect to public and private rights are enacted;
new definitions of reciprocal duties and obligations are pro-
mulgated, and so, while public X)olicy may be said to change in
compliance with the changing features of the law, yet such
changes are, after all, but new applications of old principles,
made to meet the varying exigencies of the times.
As a general proposition it may be said, that whatever tends
to injustice or oppression, restraint of liberty, restraint of
legal right; whatever tends to the obstruction of justice, a
violation of a statute, or the obstruction or perversion of the
administration of the law; whatever tends to interfere with
or control the administration of the laws or other ofificial
action, whenever embodied in, and made the subject of, a con-
tract, is against public policy, and the contract, for that rea-
son, will be void, and incapable of enforcement. All contracts
prejudicial to the interest of the public, whenever the statute
or any known rule of law requires it, are void.22
This is true not only with respect to contracts which involve
the commission of an illegal act, but applies as well to agree-
ments which contravene the spirit and policy of the laws by
an attempt to evade their efFect.^s
To make a contract unlawful as being against public policy
and law it must be manifestly and directly so; and it is not
enough that the contract is connected with some violation of
the law, however remotely or indirectly.^^ The illegality must
form a part of the consideration, or in some way furnish the
ting up the illegality of the con- pose of selling it to a person who
tract, and being the legal owner of would not be competent, by law,
the premises, was entitled to re- to enter and purchase it himself,
cover the portion claimed. Wheeler Brake v. Ballou, 19 Kan. 397. See
V. Wheeler, 5 Lans. (N. Y.) 355. also in support of the general prop-
22 Brooks V. Cooper, 50 N. J. L. osition. Cannon v. Cannon, 26 N. J.
761; Consumers Oil Co. v. Nunne- Eq. 316; Blasdell v. Fowle, 120
maker, 142 Ind. 560. Mass. 447.
23 Such as an agreement that a 24 Bier v. Dozier, 24 Gratt.
person shall enter and purchase a (Va.) 1.
tract of public lands for the pur-
GENERALLY CONSIDERED.
193
motive for the contract. Thus, a contract for the sale of land
dcpcndinjT^ on the result of an election, on the question of a
park in tlu' locality, in a certain way, as a condition ineccdent
to its taking effect, such result beinj,' an essential part of the
consideration, is void upon j^rounds of public j)olicy.25
The rule that contracts which contiavenc public policy and
the law are void, and that courts will never lend their aid to
enforce them, has been held to apply where the intention of
one of the parties is to enable the other to violate the law;-*
yet, in transactions relating to the sale of land, this rule must
be understood as qualified, to some extent at least, by the rule
last stated, and a contract of sale for an unlawful purpose is
not, for that reason, void, unless forbidden by statute. Thus,
a contract to sell a house to one who intends to keep it as a
bawdy-house is not illegal thereby because the vendor knows
the intention.27
§ 146. Agreements void in part. The rule is that if any
part of the entire consideration for a j)romise or any part of
the promise be illegal, whether by statute or at common law,
the whole contract is void, if the illegality form any part of
'^•> 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
<me may make a valid agreement binding himself to make a
particular disposition of liis property by last will and testa-
ment, and that specific performance of such agreements will
be decreed in all proper cases.^^
The law permits every man to dispose of his own property at
his own pleasure and in any manner best suited to himself;
he may contract to convey by deed to be made at some future
time or upon the happening of some contingency or event, and
with equal propriety he may agree to perform the same dut}'
by testamentary devise. It may not be wisdom for a man thus
to embarrass himself as to the final disposition of his property'.
But with the wisdom or foolishness of men's contracts the law
has no concern; it penults them to be the disposers of their
own fortunes, and the sole and best judges as to the time and
manner in which same shall be accomplished. If, therefore,
such an agreement is free from fraud or undue influence and
made upon a sufficient consideration, it may be valid, and, if
otherwise unobjectionable, will be enforced by comjx^lling a
conveyance from the heirs of the promisor or purchasers with,
notice from him in his life-time.*^
43 Banks v. Werts, 13 Ind. 203; 45 Gupton v. Gupton. 47 Mo. 37;
Adams v. Gay, 19 Vt. 353. "Wright v. Wright, 31 Mich. 380;
"Love V. Wells, 25 Ind. 503. It Logan v. McGinnis, 12 Pa. St. 27;
has been held that the fact that Parsell v. Stryker, 41 N. Y. 480;
the acknowledgment was taken on Maddox v. Rowe, 23 Ga. 431; Car-
Sunday neither impairs nor michael v. Carmichael, 72 Mich. 76.
strengthens the integrity of the in- ^« Parsell v. Stryker, 41 N. Y.
strument. See Roberts v. Barnes, 480.
127 Mo. 405.
198 VAIilDITY OF LAND CONTRACTS.
§ 150. Contracts procured by fraud. Where a contract has
been entered into through the fraudulent artifice of another,
such contract is not ipso facto void. It is voidable only, and
may become void at the election of the defrauded party.
Should he decide to treat it as valid it will have the same
effect and be governed by the same rules as other contracts.
If a party to such a contract desires to avail himself of its inva-
lidity, he must not only disaffinn the same at the earliest prac-
tical moment after discovery of the fraud that has been prac-
ticed upon him, but return or offer to return all that has been
received under it. He cannot, with knowledge of the fraud,
take any benefit under the contract, or change the condition
of the property, and then rejjudiate the contract; for the
taking of a benefit is an election to ratify it. He has the option
to affirm or disaflirm, but he cannot do both.^'^
§ 151. Ante-nuptial contracts. Executory agreements made
between a man and a woman who afterwards marry, by which
it is attempted to regulate and control the interest which each
of the parties to the marriage shall take in the property of the
other, during coverture or after death, are among the gener-
ally-recognized yet unfamiliar forms of land contracts. Such
agreements were treated as void at common law; but equity,
in the application of its conscientious principles, has ever
regarded them as valid and binding and capable of enforce-
ment against either at the suit of the other. They are now
usually provided for by statute, and, like dower, are favored
by the courts and enforced according to the intention of the
parties whenever the contingency provided by the contract
arises.
No special formality is requisite in such instrum^^nts;*^ and,
in order to effectuate the intention of the parties, courts of
equity will impose a trust upon the property agreed to be con-
veyed commensurate with the obligations of the contract, or
will decree their specific performance, and when such relief is
inadequate or impracticable from the situation of the property
47 Masson v. Bovet, 1 Denio (N. be established by letters between
Y.), 69; Cobb v. Hatfield, 46 N. Y. the parties written before mar-
533. riage. Peck v. Vandemark, 99 N.
48 An ante-nuptial contract may Y. 29.
GENERALLY CONSIDERED. 199
or tlio cliaraeter of the contract, will award damages for its
breach.*'-'
§ 152. Post-nuptial contracts. At coiiiniou law a married
woman was not allowed to possess property independent of
her husband; and, as the law regarded husband and wife as
but one person, it did not permit them to change their rela-
tions by entering into a contract between themselves. But
in equity a wife is permitted to enter into a contract with her
husband, for a valuable consideration, for the transfer of prop-
erty from him to her; and courts will enforce the provisions
of the same where any meritorious purpose is involved.^''
Since the passage of the statute now in force in nearly every
state removing common-law restrictions and destroying the
common-law unity of person, married women may contract
with their husbands, even at law; and contracts so made will
for most purposes be regarded and treated in the same light
as contracts between other persons.^^
40 Peck V. Vandemark, 99 N. Y. the operation of charging in that
29; Johnson v. Spicer, 107 N. Y. form which the power allows. It
185. Upon the principle that, follows, therefore, that however
where a person acts for a valuable the intent be shown, if it be in
consideration, as upon marriage, writing the court will, in aid of
he is understood in equity to en- the intention, supply the defects in
gage with the person with whom the mode of execution in favor
he is dealing, to make the instru- of the jointress; so that whether
ment as effectual as he is able; the intent to execute the power be
and whenever this is the case there by letter, memorandum, will, arti-
is nothing in any of the author- cles or covenant, a court of equity
ities to raise a doubt that it shall will aid the jointress, and supply
have effect so far as the person all omissions. Bright on Husband
executing it has the power; and and Wife, 471.
where the nature of the instru- '-o Livingstone v. T.,ivingstone, 2
ment is contrary to what the per- Johns. Ch. (N. Y.) 537; Garlick v.
son prescribes, but demonstrates Strong, 3 Paige (N. Y.), 440.
an intent to charge, it shall have &i See § 71, 72, afite.
Article II. As Affected by the Statute of Frauds.
153.
General effect of the stat-
§163.
ute.
164.
154.
Conflict of laws.
165.
155.
Entire contract, void in
166,
part.
167.
156.
Defense of the statute.
168.
157.
What contracts must be in
169.
writing.
170.
158.
Incorporeal hereditaments.
159.
License to flood lands.
171,
160.
License for right of way.
161.
The produce of land.
172.
162.
Standing trees.
173.
Growing crops.
Ruined walls and buildings.
Buildings to be removed.
Partition fence.
Parol reservations.
Agreements to exchange.
Collateral agreements.
Partnership agreements for
dealing in lands.
Memorandum for sale of
partnership lands.
Ante-nuptial agreements.
The description.
§ 153. General effect of statute. As a general rule, a con-
tract void by tke statute of frauds is void for all purposes; it
confers no rights and creates no obligations as between the
parties to it, and no claim can be founded upon it as against
third persons. It is incapable of enforcement, either directly
or indirectly.^ It cannot be made effectual by estoppel, merely
because it has been acted upon by one of the parties and not
performed by the other,^ for there is no exception contained
in the statute, and courts have no right to create any;^ and
where the contract is entire, and one part is void for non-com-
I)liance with the statute, the whole is void.^
But contracts within the statute of frauds are not illegal
unless evidenced by a writing. Their invalidity results from a
1 Dung v. Parker, 32 N. Y. 492.
2 Brightman v. Hicks, 108 Mass.
246; Wheeler v. Frankenthal, 78
111, 124; McElroy v. Ludlum, 32 N.
J. Eq. 828,
3 Hairston v. Jaudon, 42 Miss.
380,
4 Fuller V, Reed, 38 Cal. 99;
Hobbs V. Wetherwax, 38 How. Pr.
(N. Y.) 385. A part performance
of a contract void by the statute
of frauds may render it binding
and valid as far as that extends;
but it can have no effect upon any
remaining stipulations, still re-
maining executory. As to those
the statute remains operative, de-
claring them void; for if the power
existed to maintain an action for
the non-performance of one por-
tion of a contract void by the stat-
ute, it is difficult to see what would
stand in the way of allowing the
same thing to be done where an
200
AS AFFECTED BY STATUTE OF FRAUDS. 201
non-compliance with prescribed metliods of proof, and they
are invalid ouly to the extent that they may not be enforced
against a defendant without writing — an ininiiinity which the
defendant may waive. If the defendant does not see fit to
avail liimself of the protection tlni.s alTorded, or through
inadvertence or neglect fails to properly object to testimony
of parol agreements when offered, he will be held to have
waived such right after the testimony has been closed, and
cannot be heard to comidain that the agreement was void by
reason of the statute of frauds.'"' So, also, a parol contract
required to be in writing by the statute, if treated as obliga-
tory by the parties until it is executed, is not void;^ nor does
the statute restrict parties from the voluntary performance of
their i)arol engagements.
Such is the etfect of the statute at law. In equity the rules
last stated have been infringed, and in cases of part perform-
ance a contract void at law has been permitted to have effect
where a denial of such relief would manifestly tend to encour-
age fraud. The wisdom of the innovation has often been
doubted, but the practice is now too well established to be
attacked. This phase of the subject will be fully considered in
treating upon the equitable remedies of the parties, and need
not be further alluded to here.
§ 154. Conflict of laws. As a general rule, a contract valid
in the state where it is executed may be enforced elsewhere,
under the general comity which prevails between the states.'^
So, on the other hand, an agreement void or voidable by the
statute of frauds of the state in which it was made cannot be
enforced in another state, notwithstanding that had it been
made in the latter state it would have been valid and enforce-
able therein.^
§ 155. Entire contract, void in part. The rule is that where
a contract is entire, and one part is void for non-compliance
entire omission to perform might 124; Aicardi v. Craig, 42 Ala. 311.
be shown by the evidence. Weir ^ Roundtree v. Baker, 52 111. 241.
V. Hill, 2 Lans. (N. Y.) 278. « Cochran v. Ward. 5 Ind. App.
-> 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 sli<j;ht and unsubstan-
tial character, this would without doubt be a sale of an inter-
est in laud within the statute. Certainly such would be the
case if the sale is made by the owner, althoujjh it mif^ht be
otherwise if made by a tenant or licensee. P.ut where the
owner sells a buildin;^,- wilh the rijj^ht of iciuoval, he severs it
from the land and ^ives it the character of personalty; and
in impressing this character upon it, he takes it without the
statute as effectually as if he had torn it down and sold the
materials of which it was composed.-*^' In view, however, of
the subject discussed in the last i)ara^M'aph the question is one
of doubt, particularly when the building is erected on founda-
tions which penetrate the soil and virtually form a part of the
land.**"'
§ 166. Partition fence. The general rules which reguiate
the holding and transmission of land apply with the same force
and effect to any and all interests therein, however small and
insignificant they may appear. For this reason it would seem
that even a contract for the conveyance of an undivided inter-
est in a partition fence between lands of adjoining owners,
must, to satisfy the statute of frauds, be in writing.*^ Such
an agreement is to be regarded as a contract for the release of
an interest in realty, and although but an inconsequential
easement is involved, it nevertheless cannot be reserved by
parol.
§ 167. Parol reservations. In sales of improved property
it is no uncommon thing to make a verbal arrangement con-
44 Rogers V. Cox, 96 Ind. 157; see Long v. White, 42 Ohio St. 59,
Keyser v. School District, 35 N. H. where a verbal contract for the
477; Ham v. Kandall, 111 Mass. sale and delivery of a house then
297; PuUen v. Bell, 40 Me. 314; affixed to the realty, but afterward
Coleman v. Lewis, 27 Pa. St. 291. severed and delivered on rollers,
*•• Rogers v. Cox, 96 Ind. 157. In was held not within the statute of
this case it did not appear that the frauds.
building was permanently annexed 4« See also the cases sustaining
to the land, and the court refused the doctrine of the succeeding para-
to decide what would be the rule graph.
in case it had been, but at the ■<" Rudisill v. Cross. 54 Ark. 519;
same time strongly intimating that Knox v. Tucker, 48 Me. 373; and
it might still be the subject of a see Kellogg v. Robinson, 6 Vt. 276.
valid verbal contract of sale. And
212 VALIDITY OF LAND CONTRACTS.
teniporaneous with the written contract, whereby a reserva-
tion is made, or attempted to be made, of trees, shrubbery,
buildings and other artificial objects upon the property. It
seems almost unnecessary to repeat here what has been fully
discussed in this and other chapters of the work relative to
the character of annexations and accretions to land, as well as
the utter inadmissibility of contemporaneous verbal agree-
ments to impair the effect of a written contract, which the
parties in executing are deemed to have deliberately made the
exclusive evidence of the terms of their agreement. The posi-
tive rules of law forbid any such showing; and where the con-
tract is efficient to pass the land, trees, shrubs, buildings, etc.,
are considered as annexed to it and pass by a sale of the soil.*^
§ 168. Agreements for exchange. A contract for the ex-
change of lands is as much within the statute of frauds as a
contract for their sale,^^ The statute which requires such con-
tract to be in writing is equally binding on courts of equity as
courts of law; and while courts of equity have, in many
instances, relaxed the rigid requirements of the statute for the
purpose of hindering the statute made to prevent frauds from
becoming the instrument of fraud, it will never do so in the
case of an agreement for exchange, unless there has been a
part performance or delivery of possession made in pursuance
of a prior contract conclusively proved.^^ Where there has
been no part execution on either side, nor anything but a
breach of promise, relief will not be granted.
§ 169. Collateral agreements. While the tendency of courts
is to increase rather than relax the stringency of the statute
in its practical application, and to insist upon the rule which
forbids the introduction of jjarol testimony to limit, impair or
otherwise affect the operation of written contracts, yet in the
matter of contemporaneous or subsequent agreements collat-
eral to and growing out of the principal contract, when they do
not tend to contradict or impeach such contract, a marked
48 A parol reservation of orna- and see Rudisill v. Cross, 54 Ark.
mental shrubbery held invalid, 519.
Smith V. Price, 39 111. 28. A parol 49 Purcell v. Coleman, 4 Wall,
reservation of a barn and sheds (U. S.) 513.
from the operation of a deed is so Purcell v. Coleman, 4 Wall,
void under the statute of frauds. (U. S.) 513.
R. R. Co. V. Forbes, 30 Mich. 165;
AS AFFECTED BY STATUTE OP FRAUDS. 213
liberality is noticeable. Where siicli collatcriil a^n-ccniciits do
not ])rof('ss to be for the conveyance of any interest in the land,
notwith.standing they may be directly referable to it, they are
permitted to rest in parol, and oral testimony will be received
to establish them. Thns, an a<;reenient between the ])arties
to a previously-made contract for the sale of lands, that if,
upon a sui-vey, the tract proves larger than is called for by the
contract, the purchaser shall pay an increased ])rice, need not
be in writing, as it is not a contract for the sale of lands, and
hence not within the statute ;^i and so of all contracts and
agreements made with reference to a ])revious conti-act, but
not in derogation of its terms or calculated to impair its opera-
tion.52
Collateral agreements made contemporaneously with the
principal agreement, and with reference thereto, stand on the
same ground as subsequent agreements and are governed by
the same rules.'^^
§ 170. Partnership agreements for dealing in lands. Upon
the (juestion as to whether a ])artneisliij) for tlie purpose of
dealing in real estate can be proved by parol there is consid-
erable conflict of authority. On the one hand it is claimed
that a parol agreement for such a partnership would be within
the statute of frauds, which provides that no estate or interest
in lands shall be created, assigned or declared, unless by act
51 McConnell v. Brayner, 63 Mo. ligatory though not in writing.
461; Sherrill v. Hagan, 92 N. C. Betts v. Brown, 3 Mo. App. 20; Am-
345. bier v. Cox, 20 N. Y. Sup. Ct. 295,
52 An agreement between the 53 a grantee, before accepting
grantor of lands and his grantee the end of an ungraded lot in a
that the latter, in consideration of city, said to the grantor: "You
the conveyance, shall support the have to pay for the filling in;" to
former for life, is not within the which the grantor replied, "All
statute of frauds, but may be oral, right, I will pay it." In an action
Harper v. Harper, 57 Ind. 547. Nor by the grantee to recover from the
is a contract by a son with his grantor the amount of an assess-
father that, in consideration of a ment subsequently laid for the fill-
conveyance to him by the father, ing, and paid by the plaintiff, held,
he will release to his brothers and that the defendant was liable, as
sisters all claim in expectancy to on a valid independent agreement,
the residue of the father's estate, to pay any assessment for filling
Galbraith v. McLain, 84 III. 379. which the municipal authorities
Agreements settling doubtful might lay upon the lot. McCor-
boundaries may be valid and ob- mick v. Cheevers, 124 Mass, 262.
214 VALIDITY OF LAND CONTRACTS.
or operation of law or by deed of conveyance in writing.^^ On
the other hand it is contended that such an agreement is not
affected by the statute, for the reason that the real estate is
treated and administered in equity as personal property for all
the pur])oses of the i)artnership.^^ It would seem, however,
that a distinction should be made between agreements by two
or more to purchase lands for their joint benefit and a part-
nership agreement for dealing in lands. The former is within
the statute, while the latter has frequently been held to be
unaffected by it.^'*' And while the subject is somewhat unset-
tled the prevailing opinion would seem to be that partnership
agreements do not come within the meaning of the statute,
since neither conveys or assigns any land to the other; that,
as between the partnership and its vendors or vendees, in the
sale or purchase of lands, the statute in all cases would
operate; but as between the partners themselves, when they
are neither vendors nor vendees of one another, it would not
affect their agreements.^'^
In like manner an oral agreement whereby one is to nego-
tiate the purchase of land, and the other is to pay the price
and take the title, and, when the latter shall sell, the profits to
be divided between them, is not within the statute of frauds,^^
as it does not contemplate that the negotiator shall have any
estate or interest in the land or be interested in any way in
the transaction, unless upon a sale there should be a profit,
54 See Smith v. Burnham, 3 Sum- and see Personette v. Pryme, 34 N.
ner (C. Ct.), 435. An agreement J. Eq. 26; Everhart's Appeal, 106
by parol, under which one is to Pa. St. 349; Babcock v. Read, 99
buy land at public auction on the N. Y. 609; Richards v. Grinnell,
joint account of himself and an- 63 Iowa, 44; Gibbons v. Bell, 45
other, held to be within the statute Tex. 417; Hodge v. Twitchell, 33
of frauds. Parsons v. Phelan, 134 Minn. 391; Speyer v. Desjardins,
Mass. 109. A parol agreement of 144 111. 641; Bates v. Babcock, 95
partnership for the purchase of Cal. 479.
standing timber, held, void. Sey- 58 Snyder v. Wolford, 33 Minn
mour V. Gushing, 100 Wis. 580. 175; Benjamin v. Zell, 100 Pa. St
5-' Bunnell v. Taintor, 4 Conn. 33; Heyn v. Philips, 37 Cal. 529
568; Richards v. Grinnell, 63 Iowa, Gwaltney v. Wheeler, 26 Ind. 415
44; Patterson v. Wone, 10 Ala. 444. Lesly v. Rasson, 39 Miss. 368
50 See Speyer v. Desjardins, 144 Bruce v. Hastings, 41 Vt. 380
111. 641. Trowbridge v. Wetherbee, 11 Allen
57 Chester V. Dickerson, 54 N. Y. (Mass.), 361; Treat v. Hiles, 68
1; Holmes v. McCray, 51 Ind. 358; Wis. 344.
AS AFFECTED BY STATUTE OF FRAUDS. 21o
and llicn only in the profit. Sncli an agreement is rather one
of ciiijdovnicnt or aj^^cncy than foi* an interest in hind. Nor
will any tinst exist in resjiect to the profits otlier than such
as arises upon the receipt by one of money which he has
ajijreed to ])ay on sncli receipt to another.^'-' So, also, a con-
tract by which parties agree to accjuire laud togetlier, one fur-
nishing the certificate and the other the labor and expense of
surveying and jtrocnriiig a ]»atent for it, is not a contract for
the purchase and sale of lands within the jirovisions of the
statute of frauds.^^ An agreement between two persons, by
which one is to i)urchase land on the joint account of both,
and each party is to contribute a moiety of the purchase
money, and the title is to be made to both as tenants in com-
mon, has been hold not to be within the statute of frauds, and,
hence, valid though not in writing.''^
It is important, however, that the integrity of the statute
shall be preserved; and generally where by the terms of the
agreement a transfer of land is contemplated, whether the
title to the same shall be vested in one of the parties to such,
agreement or in a stranger, it is a contract for the sale of an
interest in land, and within the words and policy of the
statute.c2
§ 171. Memorandum for sale of partnership lands. The gen-
eral features of the partnersliij) relation, so far as it pertains
to lands owned by the firm, has already been discussed,^'^ but
the subject requires a still further mention in this connection.
The statute requires that the memorandum of sale shall be
signed by the party to be charged and it is fundamental that
where a contract is not so signed it is incapable of legal
enforcement. To this rule equity has permitted some modi-
fication when the contract relates to lands owned by a firm.
The general rule would seem to be, that, in consonance with.
50 Snyder v. Wolford, 33 Minn, need not be in writing. Murley v.
175. Ennis, 2 Col. 300.
tio Gibbons v. Bell, 45 Tex. 417. oi Levy v. Brush, 8 Abb. Pr. (N.
An agreement between two or more Y.) 418.
persons to explore the public do- «-' Rawdon v. Dodge, 40 Mich,
main and discover and locate lodes 697, and see Levy v. Brush, 45 N.
for the joint benefit of all is not Y. 589; Purcell v. Miner, 4 Wall,
within the statute of frauds and (U. S.) 513.
03 See § 58 ante.
216 VALIDITY OF LAND CONTRACTS.
the partnership principle of mutual agency, each partner pos-
sesses full authority to contract for the sale or other disposi-
tion of the entire property of the firm, notwithstanding that
the legal title is vested in all the partners. The rule acquires
additional force where the partnership business consists only
in dealing in real property, and the doctrine has frequentl}'
been announced that in such event a cofitract for a sale of the
partnershii) lands, signed by one member of the fimi only, does
not contravene the terms of the statute and may be specifically
enforced against all of the partners.^^
§ 172. Ante-nuptial agreements. By the fourth section of
the English statute of frauds, which has been re-enacted in
some of the states, no action can be bi*ought to charge any
person upon any agreement made upon consideration of mar-
riage, unless the same shall be in writing and signed by the
person to be charged. Ante-nuptial agreements come within
the provisions of this section. It has been held that a verbal
ante-nuptial agreement might, under special circumstances,
be enforced in equity to prevent the perpetration of a fraud;
as, when the wife has by some artifice or trick prevented the
contract from being reduced to writing, and has received a
substantial benefit from it, so that it would operate as a fraud
upon the husband. In such case there would appear to be no
doubt of the power of a court of equity to afford the proper
relief, notwithstanding the statute, on the general principle
that the statute is never to be so expounded as to make it a
mere instrument in consummating a fraud upon the party
against whom it is invoked.^^
As a general rule, however, a mere verbal agreement made
before marriage, whereby the intended wife releases and
renounces all interest in the proposed husband's estate, is
obnoxious to the statute of frauds; nor will the signing of an
ante-nuptial agreement in form, after marriage, although pur-
porting to have been executed before that event, have the
effect to take a verbal agreement of the same effect, made
before marriage, out of the statute. The execution of such
61 Rovelsky v. Brown, 92 Ala. es McAnnulty v. McAnnulty, 120
522; Thompson v. Bowman, 6 Wall. 111. 26; Jenkins v. Eldridge, 3 Story
(U. S.) 316; Chester v. Dickerson, (C. Ct), 181.
54 N. Y. 1.
AS AFFECTED BY STATUTE OF FRAUDS. 217
agreemeut can be rc';:;ar(l(d no f mi her tliaii as a iiicfe acknowl-
edgment in writing of the terms of the previous verbal agree-
ment, which fails to meet the requirements of the statute/'"
§ 173. The description. It is unnecessary to make more
than jiassing allusion to the iirinciples governing the descrip-
tion of the lands which form the subject-matter of a contract,
as the essentials of same have already been (piite fiilly dis-
cussed. It may be said, however, that jiarol evidence is inad-
missible to supply a material omission in the writing of any
reference to the particular property, yet a defect may fre-
(piently be aided by evidence showing the situation of the
parties and the surrounding circumstances, and the identity
of the particular property intended to be conveyed be thereby
ascertained.^*^ Thus, when the writing fails to si>ecifically
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<lly as to the performance of the conditions of
faith to have the paramount right, this respect. Dothard v. Denson,
before the bar of the statute is 72 Ala. 541.
complete. Good faith in claiming oi See Clarke v. McCIure, 10
possession — the real intention to Graft. (Va.) 305.
hold the land as his own, distinct "5 Chapman v. Chapman, 91 Va.
from and hostile to the title and 397.
possession of the true owner — is oo Pleasants v. Blodgett, 39 Neb.
the test of adverse possession in 741.
238 THE RELATION OF THE PARTIES.
I)iircliase.^' This result, it is claimed, follows as a legal
stMiueiioe from the fact that the vendee is the equitable owner;
and having taken possession under the contract, the vendor
is in the situation only of an equitable mortgagor. Also, that
where an entry is by purchase and the purchaser claims the
land in fee, he is not a trustee; his title, though derivative
from and consistent with the original title of the vendor, is
nevertheless a present claim in exclusion of and adverse to it.
There is nothing objectionable about this doctrine unless it
is perverted; for, whether the possession of the vendee be
regarded as subservient or adverse, the rule is the same that
equity will not permit a vendor to assert a legal right of
possession unless the vendee has violated the contract, and
will be enjoined from so asserting title if the vendee per-
forms it.
It will thus be seen that the subject is involved in much
doubt and depends for its construction on local policy when-
ever presented. Tliere is another phase of same, however, in
respect to which the authorities are mainly agreed, and that
is, that, as to all persons, except the vendor, the possession of
one holding under an executory contract may be deemed
adverse.^^
§ 188. Vendee may attorn to stranger. It has been held
that while, as a general rule, it is true that one who goes into
possession of land under a contract of purchase cannot at
la,w dispute the title of his vendor, so long at least as his
possession is not disturbed, yet if the vendor himself parts
with the title, or if the land is sold under execution against
him, the vendee may in good faith attorn to the purchaser;
and in an action of ejectment by the vendor against the vendee,
the vendee may, even though the purchase money is still
unpaid, show such sale and attornment as a defense to the
action.i
§ 189. Judgments against vendor. A judgment regularly
docketed creates a lien upon the legal title of all lands stand-
ing in the name of the judgment debtor; and notwithstanding
he may have contracted to sell the land prior to the rendition
97 Boon v. Chiles, 10 Pet. (U.S.) "s Ketchum v. Spurlock, 34 W.
177; Bright's Lessee v. Rochebter, Va. 597.
4 Pet. (U. S.) 506. i Beall v. Davenport, 48 Ga. 165.
THE RELATION OF THE PARTIES. 239
of the judf.'^iucnt, it will, in (•()iit<'iiii)la(i()n of hiw, still be a
charge upon such land and hind llic Icj^al litlc liut cciuity
limits and restricts this lien to Ihr amount of the unpaiil
purcliasc money as a^MinsI a jjarty holding; under a contract
of puichase;- and on a sale umler the jud^qncnt the sherill's
vendee would stand in precisely the same position as Ihe
original vendor, entitled only to the uni)aid pufchase money.''
Land in the possession of a vendee under a vali<l contract
of sale cannot be taken in execution and sold as the property
of the vendor under judj^nHMit liens obtained after the contract
of sale was made,' and sales umh'r execution issiied on sudi
judgments will be enjoined at the suit of the purchaser/' The
possession of the vendee is notice of his ri<^hts, and all persons
are bound, at thi'ir i)eril, to recogni/e and respect them;" and
if the vendee, with no actual knowledge of the judgment, con-
tinues to make payments to the vendor he will be entitled to
the full benefit of same.'^
§ 190. Judgments against vendee. The interest of a vendee
under a contract of purchase is only an equity-, and the rule
is that a judgment at law is not a lien upon a mere equitable
interest in land. Before the purchase money has been fully
paid such interest is not subject to the lien of a judgment,
nor does the vendee possess any such legal estate in the land
as can in any way be reached b}- process of law.^ But where
the vendee has actually paid all the jjurchase money, so that
the vendor holds the property as a mere naked trustee for the
use of the vendee, this fact, together with possession, particu-
larly if extended over a period of years, will, it seems, vest
such a title in him as may be sold on execution, even though
he does not possess seizin at law.^
2 Moyer v. Hinman, 17 Barb. (N. Lefferson v. Dallas, 10 Ohio St. 68.
Y.) 139; Parks v. Jackson, 11 7 Moyer v. Hinman, 13 N. Y. 180;
Wend. (N. Y.) 442; Filley v. Dun- When v. Fall, 55 Neb. 547.
can, 1 Neb. 334; Stewart v. Coder, s Trimm v. Marsh, 54 N. Y. 612;
11 Pa. St. 90. Jackson v. Parker, 9 Cow. (N. Y.)
:* Kinports v. Boynton, 120 Pa. 83; Kellogg v. Wood, 4 Paige (N.
St. 306. Y.), 619.
4Adicks V. Lowry, 12 Rep. 764; "Talbot v. Chamberlin, 3 Paige
When V. Fall, 55 Neb. 547. (N. Y.), 220; Purdy v. Doyle, 1
r' Jackson V. Snell. 34 Ind. 241. Paige (N. Y.). 558. Where the
« Moyer v. Hinman, 13 N. Y. 180; owner of land has entered into a
When V. Fall, 55 Neb. 547; but see bond to convey it on being paid
240 THE RELATION OF THE PARTIES.
§ 191. Vendor's possession after sale. A vendor who re-
mains in possession after llie contract and before conveyance,
while in law the owner and as such entitled to all the rights
that follow or attach to legal ownership, is nevertheless in
equity but a trustee for the purchaser. He may not treat the
estate as his own, and if he wilfully damages or injures it he
will be liable to the purchaser.i*' Indeed, some of the authori-
ties say that he is liable if he does not take reasonable care;^^
but this doctrine, which is of English origin, does not seem to
have received any general recognition in this country, while
late authorities have jjronounced a contrary rule.^^ The
vendor w^ould have no right to remove trees, shrubs or other
natural increment of the land; and should he do so the vendee
might, it seems, have recourse against him as for trespass.
This would certainly be the case if the vendee had been let
into possession; and in principle there should be no difference
in the application of the rule.^^
§ 192. Vendor's possession after conveyance. A grantor
remaining in possession of the property, after a conveyance
with general warranty, would seem to be effectually estopped
by the covenants of his deed from claiming any rights or
interests in the land inimical to his grantee; and such has
been held to be the rule.^^ A grantor who conveys by quit-
claim only, by remaining in possession of the property and
asserting a hostile claim, has been permitted to acquire an
adverse title against his grantee by virtue of the statute of
limitations;^^ while some courts have even held that a grantor
with warranty may, subsequent to the delivery of his grant,
originate an adverse possession, and is not estopped from
asserting the same by his covenant of warranty.^^
the whole amount of the agreed lo Smith v. Price, 42 111. 399.
purchase money, and a part of it n See Lysaght v. Edwards, 2 Ch.
has been paid by the obligee, who D. (Eng.) 499.
enters into possession, it seems 12 See Hellreigel v. Manning, 97
that his creditors may avail them- N. Y. 56.
selves of chancery jurisdiction to is See Smith v. Price, 42 111. 399;
obtain a conveyance of the prop- Stow v. Russell, 36 111. 23.
erty to themselves, or a sale of it i* Van Keuren v. R. R. Co. 38 N.
for their benefit, upon offering to J. L. 165; McCormick v. Herndon,
complete the payment of the agreed 67 Wis. 650.
purchase money. Ayer v. Bartlett, !•''> 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,
an<l is liable in damages to liis eniphjyer for ne;,di<;enc-e, bad
faith or dishonesty. For gross misconduct in the course of his
agency or intentional frauds upon his jjiincipal, he may be
hehl to liave forfeited all right to coinjtensation as respects any
of the business of the princiiiai into which such fraud or mis-
condticl shall have entered;''' and it seems that the right of a
principal to insist that his agent has forfeited his right to c(mi-
pensation by reason of intentional gross misconduct and fraud
cannot be dependent n])on the jii-incipal's ability to show the
precise extent of the injury to him on account of such miscon-
duct by facts and figures/*'"'
§ 213. Not liable for errors of judgment. While an agent
acting under express instructit)ns is liable for the damages
resulting from a wilful disregard of the same, yet where he is
clothed with a general discretion in the management of the
busiiu'ss intrusted to him he will not be held responsible for
an honest mistake in its exercise, provided he acts with reason-
able skill and ordinary diligence/^
§ 214. Ratification of unauthorized agency. The ratification
of an act of another done in an assumed capacity of agent,
though without any precedent authority, creates the relation
of i)rincipal and agent; and the principal becomes bound by
the act to the same extent as if it had been done by a previous
authorization.'''^ In like manner, notwithstanding an agent
exceeds his authority, if the principal nevertheless accepts the
benefits of the agent's acts, or, with full knowledge of them
subsequently attained, fails to repudiate thc^i, he will be held
responsible.^**
lint before a person can be bound by ratification of an act
•'-4 Prescott V. White, 18 111. App. v. Kennedy, 29 La. Ann. 679; Goss
322. V. Stevens, 32 Minn. 472; Hankins
&!•. Prescott V. "White, 18 111. App. v. Baker, 46 N. Y. 666.
322. "^ Williams v. Storm, 6 Coldw.
CO Schmidt v. Pfau, 114 111. 494. (Tenn.) 203; Maddux v. Bevan. 39
57 Gulick V. Grover, 33 N. J. L. Md. 485; Watterson v. Rogers. 21
463; Vjjicent V. Rather, 31 Tex. 77; Kan. 529; Davis v. Krum. 12 Mo.
Adams v. Power, 52 Miss. 828; App. 279; Workman v. Cuthrie. 20
Jloby y. flossitt, 78 111. 638; Sentell Pa. St. 495; Brock v. Jones. 16 Tex.
260 AGENTS AND BROKERS.
doue ill his behalf, it must appear that he was informed of all
the material facts in the transaction ;5» and, if his assent has
been obtained while ignorant of those facts, he will be at lib-
erty to disallirni when informed of them,"^
The principal, when informed of the nnauthorized acts of
his agent with respect to his property, must within a reason-
able time elect to approve or disafiinn them. It is not neces-
sary, however, that there should be an express ratification to
bind the principal; but a subsequent assent may be inferred
from circumstances which the law considers equivalent to an
express ratiflcation.^i Thus, the act of an agent may be pre-
sumed to have been ratified by his principal when the acts and
conduct of the latter are inconsistent with any other supposi-
tion ;*52 and silence will, ordinarily, be considered as equivalent
to api)roval.<53 Yet, while the failure of the principal to repu-
diate within a reasonable time the acts of his agent, when
informed of them, will be construed into an acquiescence, the
rule is always liberally applied. Mere failure on his part to
disavow an agent's acts instantly on being apprised thereof is
not in itself a ratification f"^ but he must act promptly, and if
with full knowledge of the facts he ratifies Ms agent's acts,
461; Fisher v. Willard, 13 Mass. sided in tlie same town with his
379; Jones v. Atkinson, 68 Ala. principal, when he at length ab-
167; Weisiger v. Wheeler, 14 Wis. sconded without having paid his
101. principal any of the purchase
59 Kerr v. bharp, 83 111. 199; Bos- money, held, that there was a rati-
seau V. O'Brien, 4 Biss. (C. Ct.) fication of the sale. Alexander v.
395; Rowan v. Hyatt, 45 N. Y. 138; Jones, 64 Iowa 207. And see Ham-
Hovey v. Brown, 59 N. H. 114; mond v. Hannin, 21 Mich. 374;
Dean v. Bassett, 57 Cal. 640; Lester Meyer v. Morgan, 51 Miss. 121.
V. Kinne, 37 Conn. 9; Bannon v. c^ Beidman v. Goodell, 56 Iowa
Warfield, 42 Md. 22; Roberts v. 592; Hauss v. Niblack, 80 Ind. 407.
Rumley, 58 Iowa 301. As when he receives and holds the
60 Bannon v. Warfield, 42 Md. 22; fruit of the agent's act. Maddux
Lester v. Kinne, 37 Conn. 9; Dean v. Bevan, 39 Md. 485. Or brings a
V. Bassett, 57 Cal. 640; Roberts v. suit to enforce his agent's contract.
Rumley, 58 Iowa 301. Benson v. Liggett, 78 Ind. 452; and
01 Searing v. Butler, 69 111. 575. see Reid v. Hibbard, 6 Wis. 175.
Where an agent sold land without «3 Meyer v. Morgan, 51 Miss. 21
authority, but the principal made Hawkins v. Lange, 22 Minn. 557
no objection for four years, during Kehlor v. Kemble, 26 La. Ann. 713
which time the purchasers had im- Breed v. Bank, 6 Colo. 235.
proved the land, and during three ^* Miller v. Stone Co., 1 111. App.
years of which the agent had re- 273.
AGENTS AND BROKERS. 261
even U)v a monient, he i.s IjouikI by thciii.'''' An electicm once
made i.s irrevocable/'*'
The maxim that ratification is ecinivalent to precedent
authority applies as well to corporations as to natural ])ersons,
and is e(iually to be i)resumed from (he absence of dissent/"
!^ 215. Effect of ratification as respects purchaser. I'.iit
while a j)riM(ipal may be bound by the subscMjiu-nt ratification
of an unau(liori/e<l act on the jtarl of an aj;ent, it has been
held by one line of authority that the other party may refuse
to consummate the transaction and rei)udiate the contract.
As a reason for this doctrine it is said that if the principal was
not bound by the a^a'eement of the aj^ent when he made it,
then the contract is void foi- want of mutuality, and the subse-
quent acts of the principal allirming the authority of the agent
cannot validate the contract so as to bind the other party
without his assent. The rule of law undoubtedly is that botli
parties should be bound by the contract or neither should be
bound, and that the rule is a just one none can deny; and it
clearly stands to reason that, where one party was not bound
by a contract when it was entered into by one claiming to be
his agent, but who in fact was not such, agent and had no
authority to bind his principal, such party should not be
allowed afterwards, when he finds the contract advantageous
to him, to affirm the contract made on his behalf by such
unauthorized person and compel the other party to perform it
on his part.''**
Yet, while the principles just stated find support and affinn-
ance in the decisions of several courts of the highest standing,
the weight of authoritj' seems to bear in an opposite direction.
It has been suggested that a contract entered into by one of
the i)arties in jx'rson and for the other party by an unauthor-
ized agent amounts, practically, to a mere proposal or olTer on
the part of the former from which he would have a right to
recede until it had been ratified or accepted by the other party
so as to become binding upon him, and that the other party
«•"' Silverman v. Bush, 16 111. App. «« Atlee v. Bartholomew, 69 Wis.
437. 43; and see Townsend v. Corning.
«« Andrews v. Ins. Co., 92 N. Y. 23 Wend. (N. Y.) 435; Wilkinson
596. V. Heavenworth, 58 Mich. 574.
<'7 Kelsey v. National Bank, 69
Pa. St. 426.
262 AGENTS AND BROKERS.
may, within a reasonable time after receiving notice of its
existence, elect to accept by a ratification or confimiance of
tlie prior unauthorized act.*''^ The rule has further been laid
down lliat the principal, upon being informed of an act of his
agent in excess of his authority, has the right to elect whether
he will adoi)t the unauthorized act or not; and so long as the
condition of the parties is unchanged he cannot be prevented
from such adoption because the other party to the contract
may for any reason prefer to treat the contract as invalidJ^
§ 216. Effect of ratification as respects principal. While it
is undoubtedly true that a ratification should be the intelligent
act of the principal, given with full knowledge of the facts, yet
if a principal adopts the contract of a self-constituted agent
who has assumed to act for him without authority, he is
charged with the duty of ascertaining the extent to which
such agent has assumed to act in his behalf. By adopting
such contract he not only assents to whatever may appear in
WTiting, but adopts as his own acts all of the instrumentalities
of the agent in securing the contract.'''^ The reason for this is
that as he seeks to avail himself of the benefits to be derived
from the agent's acts so he must assume all the liabilities
which attach thereto, as fully as if he had himself induced the
contract in the first instance.'^ -
Where a principal has expressly repudiated the unauthor-
ized act of his agent, delay in bringing a necessary suit cannot
be deemed a ratification.'^
§ 217. Agent's signature. It would seem that, if an instru-
ment which shows on its face the names of the contracting
parties is executed by an agent, the agent may sign his own
name first, adding "agent for" his principal; or he may sign
the name of his principal first, and add "by" himself "as
agent."^"* This is undoubtedly the rule in respect to all
unsealed instruments; and, as agreements for the sale of lands
60 See note to Atlee v. Bartholo- ^i Busch v. Wilcox, 82 Mich. 336;
mew, 5 Am. St. Rep. 103. Shoninger v. Peabody, 57 Conn. 42.
vo Andrews V. Life Ins. Co., 92 N. 72 Morse v. Ryan, 26 Wis. 356;
Y. 596; and see Hammond v. Han- Fitzsimmons v. Joslin, 21 Vt. 142.
nin, 21 Mich. 374; State v. Shaw, " McClure v. Evartson, 14 Lea
28 Iowa 67. This view is also taken (Tenn.) 495.
by Story. See Story's Agency, § -^ Smith v. Morse, 9 Wall. (U. S.)
245 et seq. 76.
AGENTS AND BROKERS. 2C3
do not ordinarily reciuire a Heal, would piohably be permitted
to prevail, even where the agreement purports to be under
seal. A different rule would prevail in case of the execution
of powers of attorney where tlie sij,'nature sliotild jjurytort to
be that of the principal and not the aj^eut.
Where the contract is sij^ned by the agent with his own sig-
nature, though qualifi<'d by the word **agent," such addition
will ordinarily be regarded as a simple descri[)tion of the \h'1'-
son — furnishing, perhaps, a mode of identification, yet availa-
ble for no other purpose. Such is the ordinarily-accepted rule
when the body of the contract fails to show any additional
act of agency ;^^' but if, from the entire instrument, it satisfac-
torily ajjpears that the person executing acts only as an agent
and intends to bind his principal and not himself, a liberal con-
struction will be given to if^*^
§ 218. Revocation of authority. A contract of agency may
be terminated in a number of ways. Thus, the authority may
expire by the limitation of the contract; it ma}' be revoked by
the principal, or it may be determined by operation of law.
Ordinarily, when an agent is employed to sell land the agency
is at an end as soon as a purchaser is obtained.^'''
An agency may be revoked at any time before sale unless
CK)upled with an interest or given for a valuable considera-
tion;""' and generally where the principal disposes of the sub-
ject-matter of the agency, this, by implication of law, will ojter-
ate as a revocation of the i)ower of his age^nt to sell the same."''
But where a party engages the services of another to assist
him in making any disposition of his property, if he desires to
dispense with such services he should give the other party
notice; if he does not and the service is rendered, he will be
required to pay for the same.^"
75 Hall V. Cockrell, 28 Ala. 507; 7s Brown v. Pforr, 38 Cal. 550;
Crum V. Boyd, 9 Ind. 289; Forster Chambers v. Seay, 73 Ala. 372;
V. Fuller, 6 Mass. 58; Sayre v. Simpson v. Carson, 11 Ore. 361;
Nichols, 5 Cal. 487; Bingham v. Haydock v. Stow, 40 N. Y. 363.
Stewart, 13 Minn. 106. to Bissell v. Terry, 69 111. 184;
70 See Sturdivant V. Hull, 59 Me. Wells v. Hatch, 43 N. H. 246;
172; Smith v. Morse, 9 Wall. (U. Brown v. Pforr, 38 Cal. 550.
S.) 76. so Bash v. Hill, 62 HI. 216.
77 Short V. Willard. 68 111. 292;
Moore v. Stone, 40 Iowa 259.
264 AGENTS AND BROKERS.
After revocation of an agent's authority the principal is not
bound, as between himself and the agent, to notify the latter
of his dissent from acts done by such agent in pursuance of
the original authority ;^^ but, with regard to third persons, the
general rule is that one who has dealt with an agent in a mat-
ter within the agent's authority has a right to assume, if not
otherwise informed, that the authority continues; and unless
notice of revocation is brought home to him the principal will
ordinarily be bound if the dealings continue after the author-
ity is revoked.^2
A principal's insanity, inasmuch as it deprives him of the
capacity to act for himself, will also have the effect of a revo-
cation of the authority of his agent, except in cases where a
consideration has previously been advanced, so that the power
has become coupled with an interest ;^^ or where a considera-
tion of value is given by a third person trusting to an appar-
ent authority and in ignorance of the principal's incapacity.^*
Where two principals jointly appoint an agent to take
charge of a matter in which they are jointly interested, a sever-
ance of their interest revokes the agency.*^
§ 219. Agency coupled with interest. As previously stated,
the principal may generally terminate the agency at his pleas-
ure, provided that the same is not coupled with an interest in
favor of the agent. But if the agent has a direct interest in the
subject-matter of the agency or in the execution of the powers
thereby conferred, the rule is different, and the principal will
not be permitted to revoke the same where such revocation
is to the injury of the agent or prejudicial to his interests;
and, notwithstanding that he may have attempted so to do, the
agent may still continue to act and to fully accomplish the
original purpose.^^
The agent's interest, however, must be tangible — consisting
either of some vested right in the subject-matter of the
81 Kelly V. Phelps, 57 Wis. 425. sg Varnum v. Meserve, 8 Allen
82 McNeilly v. Ins. Co., 66 N. Y. (Mass.) 158; Hutchins v. Hebbard,
23; Claflin v. Lenheim, 66 N. Y. 34 N. Y. 24; Hynson v. Noland, 14
301. Ark. 710; Bonney v. Smith, 17 111.
83 Haggart v. Ranger, 15 Fed. 531 ; Wheeler v. Knoggs, 8 Ohio
Rep. 860. 169; Dougherty v. Moon, 59 Tex.
" Hill V. Day, 34 N. J. Eq. 150. 397.
85 Rowe V. Rand, 111 Ind. 206.
AGENTS AND BROKERS. 2Go
agency, the laud ilself, or iii thi' proct'i-ds that may be di-rivcil
from its sale, and which to a certain extent represent the land.
Hence, a mere right to a percentage of tlie proceeds derived
from sale, to be retained by way of compensation, constitutes
no interest;**' nor will expenditures made by the agent in
endeavoring to carry out the object of the agency come within
the m-'auiug of the rule; but if land be intrusted to anotlier to
sell and from the proceeds thus derived to first reimburse him-
self for moneys theretofore advanced to his princijjal, or in the
satisfaction of a debt of any kind previously contracted, the
interest thus acquired attaches to the land in his hands and
cannot be divested.
§ 220. Agent's authority terminates with principal's death.
As an agent is merely a representative, it naturally and logic-
ally follows that his powers in this respect are immediately
determined upon the death of the person for whom he i)ro-
fesses to act. His authority is not revoked, in the projter
acceptation of the term, for this implies that it has to be
recalled or resumed by the i)erson from whom it e^manates, but
absolutely ceases, for there cannot be an agent without a prin-
cipal f^ and the fact that the agent, in ignorance of his princi-
pal's death, has in good faith contracted after that event does
not alter the rule or confer upon the other contracting party
any additional rights.^*^
§ 221. Undisclosed principal. The rule is well established
«7 Thus, a power to sell and re- Seay, 73 Ala. 372. An agreement
ceive the proceeds above a certain as to a certain portion of the net
sum by way of commission is not profits to be derived from a sale of
a power coupled with an interest land gives the agent no interest in
which cannot be revoked. Simp- the land. LeMoyne v. Quimby, 70
son v. Carson. 11 Ore. 361. And 111. 399.
where the owner of land contain- «« Travers v. Crane. 15 Cal. 12;
ing iron ore authorized an agent Davis v. Bank, 46 Vt. 728; Cleve-
in writing to sell the land, the land v. Williams. 29 Tex. 204; Salt-
agent agreeing to transport speci- marsh v. Smith, 32 Ala. 404; Mc-
mens of the ore to England, and to Donald v. Black. 20 Ohio 185; Clay-
receive as compensation "an undi- ton v. Merritt. 52 Miss. 353.
vided one-fourth interest in the «» See Gait v. Galloway, 4 Pet.
proceeds of sale when sold as (U. S.) 332; Davis v. Bank, 46 Vt.
aforesaid." — held, that the agent's 728; Travers v. Crane. 15 Cal. 12;
authority was not coupled with an Clayton v. Merritt. 52 Miss. 353;
Interest, and was revocable at any Estate of Rapp v. Ins. Co.. 113 111.
time before sale. Chambers v. 390.
266 AGENTS AND BROKERS.
in respect to chattel sales that u principal, although not dis-
closed bj the agent, is nevertheless responsible on the agent's
contracts if the hitter had power to make them. By contract-
ing in his own name he only adds his personal liability to that
of his principal; and the seller, upon discovering the principal,
may elect to hold either ])rinLi})al or agent responsible for
the price.'*^ This doctrine has been held to obtain as well in
respect to contracts which are recpiired to be in writing as to
those where a writing is not essential to their validity;?*^ and
a principal may be charged upon a written executory contract
entered into by an agent in his own name within his author-
ity, although the name of the pi'incipal does not appear in
the instrument, and the part}' dealing with the agent supposed
he was acting for himself.^^ It is somewhat diflficult, how-ever,
to reconcile this doctrine with the rule that parol evidence is
inadmissible to change, enlarge or vary a written contract;
and the argument upon which it is supported savors strongly
of refined subtlety. Some of the cases proceed upon the quali-
fied theory that a written contract of an agent may be enforced
against the principal when it can be collected from the whole
instrument that the intention was to bind the principal ;'^^
but it would seem, from the preponderance of authorit}, that
this qualification is no longer regarded as an essential part
of the doctrine.*^^ It has further been contended in this con-
nection that if evidence showing an unnamed principal
amounts merely to an explanation of the real character of the
transaction, and does not in any degree cont.^adict or qualify
the provisions and stipulations of the contract itself, and that
in all cases where the character in which parties contract is
90 Youghiogheny Ice Co. v. Smith, Davis v. McKinney, 6 Coldw.
66 Pa. St. 340; Davis v. McKinney, (Tenn.) 18.
6 Coldw. (Tenn.) 15; Duvall v. »i Dykers v. Townsend, 24 N. Y.
Wood, 3 Lans. (N. Y.) 489; Meeker 61; Huntington v. Knox, 7 Cush.
V. Claghorn, 44 N. Y. 349. But it (Mass.) 371; Coleman v. Bank, 53
seems that, where the real prihci- N. Y. 393.
pal is known to the seller at the "^ Briggs v. Partridge, 64 N. Y.
time, but the contract is made in 357.
the name and upon the credit of 93 See Negus v. Simpson, 99 Mass.
the agent, the contract will be 388.
deemed to be with the agent in- 94 See Eastern R. R. Co. v. Bene-
dividually, exclusive of liability on diet, 5 Gray (Mass.) 566; Briggs
the part of the actual principal, v. Partridge, 64 N. Y. 357.
AGENTS AND BROKERS.
267
not defined on the face of the \vrilin<;, it is com[>etent 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 tlioii<rh modern dpcisioiiH liavt* in a great measure
relaxed the strinjjency of the older rules relative to undis-
closed principals, and permitted an inquiry as to the actual
parties, the law in this respect is usually adhered to without
deviation.'*
Where, however, one who has no authority to act as anoth-
er's ajijent assumes so to act, and makes a deed or a simple
contract in the name of the other, he is not as a rule person-
ally liable on the covenants in the dc^d or the promise in the
simple contract, unless it contains ai)t words to bind him per-
sonally.-'' The remedy in such case is by an action on the case
for falsely representing himself to be authorized to bind liis
principal.*' It has sometimes been sought, in a case of this
character, to bind the agent by the introduction of i>arol 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;-^ aii<l jx<'ii<':allv a princiiial will not be affected hy
knowledge communicated to his agent when it does not relate
to matters which are connected with the business of the agent,
or whicli are not within the scope of his emplo^Ninent.-^ Nor
does the rule apply where the agent acts for himself in his
own interest, and adversely to that of the principal,'*-'
It was formerly the rule in Knglan<l that notice to an agent,
in order to bind his i)rincipal by constructive notice, must be
in the same transaction; but in later cases this I'lile has been
very much modihed, and Air, Justice Bradley, in delivering
the opinion of the supreme court of the United States,"'"'
states the doctrine in England as that if the agent at the time
of elfecting a puichase has knowledge of any prior lien, trust
or fraud affecting the property, no matter when he acquired
such knowledge, his principal is affected thereby. If he
acquire the knowledge when he effects the purchase, no ques-
tion can arise as to his having it at that time. If he acquired it
previous to the purchase, the i)resumittion that he still retains
it and has it present in his mind will depend upon facts and
other circumstances. And the learned justice concurs in the
rule as. in his judgment, the true one — fairly deducible from
the best consideration of the reasons on which it is founded.
In some other American cases the doctrine that the knowledge
of an agent should come to him in the identical transaction
has been to some extent modified, and it has been held that it
is not necessary in all cases that the notice should be thus
Ala. 398; Pringle v. Dunn, 37 Wis. That he will very likely act in such
449; Day v. Wamsley, 33 Ind. 145; a case for himself, rather than for
Kauffman v. Robey, 60 Tex. 308. his principal; and (2) he will not
27 McCormick v. Wheeler, 36 111. be likely to communicate to the
114; Blumenthal V. Brainerd, 38 Vt, principal a fact which he is inter-
402; Roach v. Karr, 18 Kan. 529; ested in concealing. It would be
Russell V. Sweezey, 22 Mich. 235; both unjust and unreasonable to
Smith V. Dunton, 42 Iowa 48. impute notice by mere construc-
-"< Roach V. Karr, 18 Kan. 529; tion under such circumstances;
Morrison v. Bausemer, 32 Gratt. and such is the established rule of
(Va.) 225. law on this subject. Frenkel v.
-•« His adversary character and Hudson, 82 Ala. 158; Wickersham
antagonistic interests take him v. Zinc Co., 18 Kan. 481.
out of the operation of the gen- so The Distilled Spirits, 11 Wall,
eral rule, for two reasons: (1) (U. S.) 356.
18
274 AGENTS AND BROKERS.
given ;^^ but from all the cases it seems that the farthest that
has been gone in the way of holding a principal chargeable
with knowledge of facts communicated to his agent, where
the notice was not received, or the knowledge obtained, in the
very 'transaction in question, has been to hold the principal
chargeable upon clear proof that the knowledge which the
agent once had, and which he obtained in another transaction
at another time and for another principal, was present to his
mind at the very time of the transaction in question.^^ Where
this fact is satisfactorily established it will bind the principal
as fully as if the knowledge in question had been originally
acquired by him.^s
The general rule that notice of a fact acquired by an agent
while transacting the business of his principal operates con-
structively as notice to the principal ajiplies as well to corpo-
rations as to natural persons.^^
§ 226. Agent dealing for his own benefit. An agent under-
taking any business for another is disabled in equity from
dealing in the matter of the agency upon his own account or
for his own benefit; and if he does so in his own name he will
be considered as holding in trust for his principal.^^ No rule
obtains a wider recognition or more strict enforcement; for
equity requires and will exact the utmost fidelity and loyalty
to their principals from fiduciaries of every sort, and will strip
them of every advantage obtained by a breach of trust and
confidence.3'5
In accordance with the foregoing rule it has been held that
an agent cannot become the purchaser of property confided to
his care,37 and that a purchase made under such circumstances
31 Cragie v. Hadley, 99 N. Y. 131. Firestone v. Firestone, 49 Ala. 128;
32 Constant v. University, 111 N. Wilber v. Hough, 49 Cal. 290; Bain
Y. 604; Yerger v. Barz, 56 Iowa 77. v. Brown, 56 N. Y. 285.
33 Savings Bank v. Hollenbeck, 36 Gillen water v. Miller, 49 Miss.
29 Minn. 322; Chouteau v. Allen, 70 150; Barziza v. Story, 39 Tex. 354;
Mo. 290; Hart v. Bank, 33 Vt. 252; Dood v. Wakeman, 26 N. J. Eq.
Yerger V. Barz, 56 Iowa 77; Patten 484; Rogers v. Locket, 28 Ark.
v. Ins. Co., 40 N. H. 375. 290; Conkey v. Bond, 36 N. Y. 403.
34 Reid v. Bank of Mobile, 70 Ala. 3- Rogers v. Locket, 28 Ark. 290;
199. Prevost v. Gratz, 6 Wheat. (U. S.)
3r. Krutz v. Fisher, 8 Kan. 90; 481; Case v. Carroll, 35 N. Y. 389;
Gillenwater v. Miller, 49 Miss, 150; Harrison v. McHenry, 9 Ga. 164;
AGENTS AND BROKERS.
275
carries fraud iipou iLs face.-'^ IJul this, pcrliaps, is carrying
the application of the rule to extreme lengths; for the true
si)irit and meaning of the rule is that the agent shall not so
act toward the subject of the agency for his own benefit as to
work injury to his principal.-'" He will not, therefore, be
allowed to purchase where he has a duty to perfonn which is
inconsistent with the character of purchaser,*^^ nor to specu-
late for his private gain with the subject-matter ccxniniitted
to his care.^i This may be regarded as the true extent of the
Robertson v. Ins. Co., 19 La. Ann.
227; Tilleny v. Wolverton. 46 Minn.
256.
:'•< Rogers v. Locket, 28 Ark. 290;
Cook V. Berlin Mill Co., 43 Wis.
433.
•■'» Dood V. Wakeman, 26 N. J,
Eq. 484; Sheldon v. Rice, 30 Mich.
296; Goodwin v. Goodwin, 48 Ind.
584.
"'Grumley v. Webb, 44 Mo. 444;
Blauvelt v. Ackerman, 20 N. J. Eq.
141; Boerum v. Schenck, 41 N. Y.
182.
••1 Grumley v. Webb, 44 Mo. 444;
Roberts v. Roberts, 65 N. C. 27;
McGowan v. McGowan, 48 Miss.
553. It has been held in Illinois
that the doctrine that an agent can-
not, either directly or indirectly,
have an interest in the sale of the
property of his principal, which is
within the scope of his agency, ap-
plies to the wife of an agent who
purchases the property with her
separate estate. The court says:
"Such a sale, at common law,
would clearly have been voidable,
both because the wife there had no
independent power to contract and
because the husband would have
taken an estate during coverture in
the property. See 1 Shars. BI.
Comm. 441, 442; Reeves, Dom. Rel.
(2d ed.) 98, 99, and also id. 28.
Notwithstanding that our statute
has so far changed the common
law that the wife can now contract
with the husband, and has abol-
ished his estate during coverture,
it has not denied to each all inter-
est in the property of the other.
The husband is still the head of
the family; and the expenses of
the family and of the education of
the chldren are, by section 15 of
the statute in relation to husband
and wife, "charged upon the prop-
erty of both husband and wife, or
of either of them, in favor of cred-
itors." Rev. St. 1874, p. 577.
Upon the death of the wife, intes-
tate, without children surviving,
the husband inherits one-half of
her real estate (id. ch. 39, § 1);
and, in any event, upon her death,
he is entitled to dower in her real
estate. Hence, the husband still
has a pecuniary interest, greater
or less, as circumstances may vary,
in all the real estate of which his
wife may be owner during cover-
ture. There is, moreover, apart
from this pecuniary interest, an in-
timacy of relation and affection be-
tween husband and wife, and of
mutual influence of the one upon
the other for their common wel-
fare and happiness, that is abso-
lutely inconsistent with the idea
that the husband can occupy a dis-
interested position as between his
wife and a stranger in a business
transaction. He may, by reason of
276 AGENTS AND BROKERS.
rule; and an aj^vnt placinji; liimself beyond it may lawfully
contract with his pi'incii)al with relation to the property. Yet
a confidential relation, like principal and agent, gives cause
for suspicion; and the circumstances under which a deed is
made should be closely scanned, and if a reasonable susj)icion
exists that confidence has been abused where reposed it will be
set aside.'*2 In order, therefore, to sustain a purchase by an
agent from his principal of property which formed the
subject of the agency and to secure the sanction of a court of
equity for it, the agent must be able to show it to be fair and
honest, and to have been preceded by the disclosure of what
he had ascertained or discovered concerning its value; and in
every case where the nature of the agency has given the agent
control in the management of the property and peculiar oppor-
tunities for knowing its condition and value, a purchase of it
by the agent will be avoided at the suit of the principal, unless
the agent make it affirmatively appear that the transaction
was fair, and that he imparted all his information to the prin-
cipal and acted with the most perfect good faith.-*^
But while the agent may, under some circumstances, become
the purchaser of the property from the principal, under no cir-
cumstances can he derive any advantage from any other
source. Whatever may be gained by him, whether as the fruit
of performance or of violation of duty, belongs to his prin-
his great integrity, be just in such his agency without the knowledge
a transaction, but unless his mari- and express consent of the princi-
tal relations be perverted he can- pal." Tyler v. Sanborn, 136 111.
not feel disinterested; and it is 128. To the same effect, Reed v.
precisely because of this feeling of Anbrey, 91 Ga. 435; Green v. Hugo,
interest that the law forbids that 81 Tex. 452; the same doctrine,
he shall act for himself in a trans- somewhat modified, is held in other
action with his principal. It is be- cases; see Winter v. McMillan, 87
lieved to be within general observa- Cal. 256; McNutt v. Dix, 83 Mich,
tion and experience that he who 328, where it is held that an agent
will violate a trust for his own pe- may not sell to his wife for a less
cuniary profit will not hesitate to sum than the property will bring
do it, under like circumstances, for in the market. And see Scott v.
the pecuniary profit of his wife. Gorton, 14 La. 111.
In our opinion the policy of the 42 Uhlrich v. Muhlke, 61 111. 499.
law equally prohibits the wife of -i.-s Cook v. Berlin Mill Co., 43 Wis.
the agent, as it does the agent 433; Brown v. Post, 1 Hun (N. Y.)
himself, from taking title to the 304.
property which is the subject of
AGENTS AND BROKERS. 277
cipal.^* ITcncc he cannot, after diMcovcrin^ a defect in the
title of the land of his principal in the course of his agency in
relation thereto, misuse his discovery to acquire a title for
himself;^"' nor can he acquire a tax title, as a<;ainst his prin
cipal, to the lands of the agency.'" So, too, an a^ent author-
ized by his principal to sell the latter's land for a specified net
sum, and to receive for his services all above that sum for
which he might sell, is bound to disclose to his principal a
fact in tlie condition of the land increasing its value, which he
afterwar<Is learns, and of which his ]trincipal was ignorant
when he tixed the price; and a sale by him on the basis of the
sum fixed without giving such information is a fraud.^^
The rule forbidding conflict between interest and duty is no
respecter of persons. It imputes constructive fraud, because
the temptation to actual fraud and the facility for concealing
it are so great; and it imputes it to all alike who come within
its scope, however much or however little open to suspicion of
actual fraud.^^
The spirit no less than the letter of the rule not only pro-
hibits direct conveA'ances, but with stronger reason declares
void a purchase in an indirect or circuitous manner. Hence,
if one emi)loyed as an agent to sell propei-ty arranges with the
purchaser for an interest in the purchase, the sale will be set
aside at the instance of the principal."*^
The spirit of the rule which prohibits the agent from deal-
ing with the subject of the agenc}' to his own advantage
extends the application of the principle to those w^hom he may
employ as insti-umentalities in effecting the i)urposes of liis
business. Hence a clerk or other person, who, by his connec-
tion with an agent, or by being employed or concerned in his
affairs, has accpiired a knowledge of the ]>roperty, 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 contribute<l sometlnn<^ toward
the result. The j,'eneral rule is that where two or more brokers
are employed there is no implied contract to pay more than
one commission, and the (pieslion then arises as to which one
of several claimants shall be entitled to receive same. Keason-
ing by principle, as well as by analogy to other branches of
the law, it would seem that where there are a number of dif-
ferent causes which assist in producing a specific result, and
where such result would not have occurred if either one of
the different causes had been wanting, then such result must
he referred to the "predominating ellicient cause," as one
■writer concisely puts it,^*^ and applying this doctrine to the
question under consideration the broker whose efforts were
the real ellicient or effective means of concluding the sale must
be preferred.si
Another phase of the subject is presented where several
brokers are each acting independently with respect to the sub-
ject-matter and in several instances a somewhat different rule
from that above given has been announced. Thus, upon the
principle that until the authority given to a broker has been
revoked and notice of such fact communicated to him, his
agency continues, it has been held that, where more than one
broker has been employed, each will have a right to find a
purchaser and earn a commission.^^ There would be no injus-
tice in this, however, if knowledge of the employment of the
his option. Eggleston v. Austin, Burrows, 33 Mich. 6; Behling v.
27 Kan. 245; Whitcomb v. Bacon, Pipe Lines. 160 Pa. St. 359.
170 Mass. 479. «^ See Bash v. Hill, 62 111. 216.
70 Tinges v. Moale, 25 Md. 480; In Fox v. Rouse, 47 Mich. 558, the
and see Dowling v. Morrill, 165 plaintiff had been employed by de-
Mass. 491. fendant to effect a sale. He found
«o Phil. Ins. § 1132. a purchaser who was ready and
SI Whitcomb v. Bacon, 170 Mass. willing and able to take the land
479; see also M. C. R. R. Co. v. upon the terms prescribed. It de-
286 AGENTS AND BROKERS.
different agents were kept from them; or if, when the prop-
erty has been sold, the unsuccessful broker is not notified of
that fact, for where a party engages the services of another to
assist him in making a trade of property, if he desires to dis-
pense with such services he should give the other party notice;
if he does not, and the service is rendered, he will be required
to pay for the same.^^
§ 232. Continued — Sale by owner without broker's inter-
ference. A person who has employed a broker to sell his lands
may, notwithstanding, negotiate a sale himself; and if he
does so without any agency or participation of the broker,
he will not be liable to him for commissions.^^ The same rule
obtains even where the broker has introduced a person with
whom he has been negotiating, where such negotiations have
afterward been abandoned, and the principal without assist-
ance from the broker subsequently completes the transac-
tion,**^ But, as a rule, where a broker introduces a purchaser,
and as a result of such introduction a sale is effected, the
broker will be entitled to commissions notwithstanding that
the owner negotiates the sale himself. The broker, in such
case, must be regarded as the "procuring cause." So, too,
where a broker who is employed to sell property at a given
price and for an agreed commission has opened a negotiation
with a purchaser, and the principal, without terminating the
agency or the negotiation so commenced, takes it into his own
hands and concludes a sale for a less sum than the price fixed,
the broker is entitled at least to a ratable portion of the agreed
commission.86 The mere fact, however, that a broker inter-
vened between the parties to a negotiation which was orig-
inally commenced and finally consummated without his
veloped that the land had been sold Armstrong v. Wann, 29 Minn. 126;
by another agent similarly em- Hungerford v. Hicks, 39 Conn,
ployed by the plaintiff. Held, that 259.
the plaintiff could recover. ss Wylie v. Marine Bank, 61 N. Y.
S3 Bash V. Hill, 62 111. 216. 415; Weinhouse v. Cronin, 68 Conn.
84 Dolan V. Scanlan, 57 Cal. 261
Dubois V. Dubois, 54 Iowa 216
Stewart v. Murray, 92 Ind. 543
McClave v. Paine, 49 N. Y. 561
Tombs V. Alexander, 101 Mass. 255
Keys V. Johnson, 68 Pa. St. 42
250.
8G Martin v. Silliman, 53 N. Y.
615; Stewart v. Mather, 32 Wis.
344; Woodsv. Stephens, 46 Mo. 555;
compare Childs v. Ptomey, 17 Mont.
502.
AGENTS AND BROKERS. 287
agency, and b\' his conversation with tliiid persons or other-
wise contributed to its consninniatiou, does not entitle him to
commissions when a sale at the price fixed as the condition
of his employment was not effected, and he was not prevented
by his employer from etfectinj; a sale at that price.'*'^
It has been held, where the owner of land agreed with a
broker that he would i)ay him a certain amount if he would
find a purchaser within a specified time who would pay a cer-
tain price for the estate, that if within such time the broker
procured such i)urchaser, he was entitled to recover his com-
mission, though the owner sold the property before the broker
found a purchaser.*^^
As a general rule, where land is sold through the instru-
mentality' of a broker employed by the owner, he is entitled
to his commission, although the owner himself negotiates
the sale, and even though the purchaser is not introduced to
the owner by the broker, and the latter is not personally
acquainted with the purchaser;**^ and in every case where a
broker who has been employed to sell introduces a purchaser
to the owner, and through such introduction negotiations are
begun and a sale of the property is finally effected, the broker
is entitled to commissions, although in point of fact the sale
may have been made b^- the owner.*^*^ It would seem, however,
that the mere fact of directing the purchaser's attention to the
land is not sufficient to entitle the broker to commissions
when he fails to disclose the owner's name and the purchaser
afterwards learns, through other sources, who the ow^ner is
and purchases directly from him, the owner having no knowl-
edge of the broker's connection with the case.^^ This seems
reasonable and in consonance with natural justice, yet the
87 Briggs V. Rowe, 1 Abb. App, contract:. And see Vinton v. Bald-
Dec. (N. Y.) 189. win, 95 Ind. 433.
s8 Lane v. Albright. 49 Ind. 275. «" Sussdorff v. Schmidt, 55 N. Y.
In this case the owner was held to 319.
be liable for commissions because oo Jones v. Adler, 34 Md. 440;
he had deprived the broker of the Woods v. Stephens, 46 Mo. 555;
power to earn them, and that in Hafner v. Herron, 165 111. 242;
order to claim commissions the Bash v. Hill, 62 111. 216; Lloyd v.
broker was not required to pro- Matthews, 51 N. Y. 124; Lyon v.
duce a purchaser within the speci- Mitchell, 36 N. Y. 235.
fied time, as the owner had put it f" Anderson v. Smythe, Colo. Dec.
beyond his power to complete the 91.
288 AGENTS AND BROKERS.
question of "procuring cause" is not altogether well settled
and tliere are cases wliicli seem to militate against this posi-
tiou.'»2
233. Continued — Failure to close within time stipulated.
It would seem that if an agent for the sale of land is limited
as to the time within which to earn his commissions the sale
must be effected within such limited time, and that he cannot
recover otherwise,*^^ although one whom he introduced to the
owner afterwards becomes the purchaser of the land;^* yet
where the agent, within the period fixed by the contract, has
so negotiated a sale in such a manner that success is practic-
aUy certain and immediate a different rule might, and prob-
ably would, apply .^^
Where the broker is allowed a "reasonable time" the cir-
cumstances must furnish the grounds for determination f^ and
where no time is stipulated for the continuance of the contract
either party is at liberty to terminate it at will, subject only
to the ordinary requirements of good faith.^^ In such event,
if negotiations are then pending it seems commissions may be
recovered if the sale is afterwards consummated.^^ Where the
broker has been allowed a reasonable time to procure a pur-
chaser and effect a sale and has failed to do so, and the prin-
cipal in good faith has terminated the agency and sought other
assistance by means of which a sale is consummated, the fact
that the purchaser is one whom the broker introduced, and
92 See § 230 ante. summated within nine months or
93 Wright v. Beach, 82 Mich. 469. not.
94Fultz V. Wimer, 34 Kan. 576; as Blumenthal v. Goodall, 89 Cal.
Beauchamp V. Higgins, 20 Mo. App. 251; and see Williams v. Leslie,
514. But see Williams v. Leslie, 111 Ind. 70.
Ill Ind. 70, where an agency to sell ne Thus, a contract to sell in a
a tract of land was limited to nine "short time" was held to be ful-
months, but the contract provided filled by procuring a customer
that if a customer should be intro- within two weeks. Smith v. Fair-
duced by the agent during the time child, 7 Colo. 510. Twenty-two
to whom the principal should sell days was held to fill the require-
afterward the agent should be en- ment that a sale should be made
titled to his commission. Held within a "reasonable time." Lane
that, by the terms of the contract, v. Albright, 49 Ind. 275.
the agent was entitled to compensa- 97 Sibbald v. Iron Co., 83 N. Y.
tion, whether the sale to the cus- 378.
tomer introduced by him was con- 98 Knox v. Parker, 2 Wash. 34.
AGENTS AND BROKERS. 289
tliat tho sale was in sour* degree aided \>y 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<ial action.^ And fuilluM-, in order to eflcct a
recovery it is necessary that the broker be licensed at the time
the commissions are claimed to have been earned. That he is
licensed at the time suit is brought is not sufTicient."*
vi 236. Continued — Agent as purchaser. The jjeneral sub-
ject of jmrchases by agi'uts has been reviewed in a fore.noinj^
paraj^raph, where it was shown that an aj?ent to whom prop-
erty has been intrusted for sale cannot himself become the
purchaser except under peculiar conditions.'' The only
inquiry pertinent at this time is with resj)ect to the rij^lit of an
agent to ask and receive commissions where, instead of tinding
a third party who is willing to or does purchase, he, himself,
becomes the purchaser. There would seem to be no good rea-
son, either in law or morals, for a denial to him of this priv-
ilege. The agreement of the vendor is to \mx commissions
when the agent shall have procured a purchaser able and will-
ing to take the property at the price proposed, and usually it is
immaterial to the vendor who the purchaser is. And even if
the agent is to find a purchaser who will pay for it the best
price attainable, if thti vendor agrees upon a price at which he
is willing to sell, and there is no fraud, concealment or mis-
representation on the part of the agent, he should not be dis-
tinguishable, so far as respects the payment of commissions,
if instead of presenting a third party he offers himself.
The question does not seem to have been raised to any
extent in the reported cases. A diligent search has failed to
reveal anything that militates against these views; while it
does appear that, so far as they have been presented, they
have received the sanction of the courts. Thus, it has been
held that a broker who engages for a commission to find a
purchaser of land at such price as may be agreed upon betwetMi
such purchaser and the vendor, and then becomes himself ihc
purchaser, in whole or in part, the vendor accepting him as
Pr. (N. Y.) N. S. 395; Pope v. C. 430; Buckley v. Humason. 50
Beats, 108 Mass. 561. Minn. 195.
n Johnson v. Hulings. 103 Pa. St. lo Eckert v. Collot, 46 111. App
498; McConnell v. Kitchens, 20 S. 361.
11 See sec. 226 atite.
292 AGENTS AND BROKERS.
such, may recover tlie commission upon clear proof that such
was the understanding upon the part of the vendor at the time
of the sak'.i2
§ 237. Sale hy agent above stipulated price. It is no uncom-
mon thing for owners to place property in the hands of brokers
with a stipulation that same shall he sold so as to net to the
owner a fixed sum, the broker to retain as his compensation
whatever amount may be realized above the price named.
While this excess is usually called "commissions" it does not
come within the usual legal definitions of the term and the
relation thus created between the parties more resembles that
of vendor and purchaser than that of principal and agent. In
matters relating to personalty this is the view now invariably
adopted by the courts where the property has passed into the
possession or custody of the agent, and while these conditions
do not usually exist where the subject-matter is real property,
the principle nevertheless applies in a modified form. Where
such a stipulation has been entered into it has been held that
any sale agreed to be made by the agent must be regarded
as having been made by him in the capacity of a vendor, and
not on account of the land-owner. Hence, he would have a
right to make the sale upon any terms he might deem most
advantageous; he might sell either for cash or on time and
with such conditions annexed as he might see fit to impose.
The land-owner would, of course, be entitled to the immediate
payment of the stipulated price, but this would practically be
the extent of his rights. And in case the sale, for any reason,
should fail, it seems the land-owner could not claim the deposit
as a forfeit.i^
While the general doctrine above set forth has long been
recognized in commercial transactions concerning chattels, it
does not seem to have come within the purview of courts to
any extent with respect to real property, and while the con-
clusions above stated are believed to be sound and in conson-
ance with the received rules of law as applied to sales gener-
12 Grant v. Hardy, 33 Wis. 668. is See Robinson v. Eaton, 93 Cal.
And the fact that, in effecting the 80. This is the leading, and pos-
sale, the broker has acted in fraud sibly the only, case upon the sub-
of his co-purchaser, will not af- ject.
feet his right to the commission as
against the vendor. Ibid.
AGENTS AND BROKERS. 203
ally, the subject may yet be said to be (inc of doiibl, 1o be
definitely ascertained and settled in tlic future.
>! 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 <jf tin-
contract, they cannot be varied by verbal ileclarations of tli«'
auctioneer at the time of the .sale, aud are usually to be con-
strued strictly aj^ainst the Ncndor.
§244. Sale by plat. Where, at an auction sale of real pi-op-
erty, the lots are delineated upon a plan or i)lat which is
exhibited to bidders and to which bidders are referred, such
reference is the assertion of a positive fact, which, if niateiial.
enters into the consideration, and if false is a <fround of relief
where its falsity was unknown to the puichaser, and he has
taken no covenant to protect himself. The plat is an evidence
of the existence and location of streets, etc., and if referred
to in the deed of conveyance becomes a material and essential
part thereof. The representation of streets, alleys, etc., upon
a plat is a positive atYirmation that such exist, and upon which
purchasers have a rij;ht to rely. The untruth of such repre-
sentations cannot in many cases be readily discovered, even
hy the exercise of ordinary diligence; and as he who sells
property by a description given by himself is bound to make
that description good, so a vendor who at a sale by public
auction misleads and injures the purchaser, even though there
is an absence of wilful fraud on his part, must nevertheless
remain liable for any injury caused by his incorrect repre-
sentation.^
§ 245. Auctioneer's relation to the parties. An auctioneer
is essentially an agent, and his contract is that of agency.
Until the fall of the hammer he is exclusively the agent of the
vendor, but after this he becomes the agent of the purchaser
* As where a master and commis- street was on his neighbor's land,
sioners in partition divided a dece- He sold lots at auction according to
dent's land and laid out a street the plat which was exhibited on the
bounding on the line of an adjoin- day of sale. The plat of the com-
ing landholder. Afterwards, but missioners was afterward set aside
before the partition was put on rec- and the street vacated. Held, that
ord or the .street opened, the latter the vendor was liable for damages
laid out I town plat, which was to a vendee of lots for 'diminution
lithograpnod. It exhibited the in the value thereof caused by the
street, with streets on his own plat non-existence of the vacated street,
opening into it; but the f-olUr sive McCall v. Davis, 56 Pa. St. 431.
no information that the first-named
300 SALES BY AUCTION.
as well, and his memorandum of the transaction binds both
parties.'^ The position of an auctioneer differs in some respects,
however, from tliat of an ordinary ajjjent; and where the
subject of the sale is land it has been said that, by reason of
his right to bring an action and of his liability to account for
the deposit, he can be nuide a co-plaintiff with the vendor in
an action for specific performance, and he is not infrequently
made a co-defendant in such an action/' He may sue in his
own name upon evidences of debt that may have been given
to him in payment of the dejjosit;'^ and, as a necessai'y incident
of his power to sell, nmy receive and receipt for so much of the
purchase monej' as is paid down at the time of sale.^
As between himself and the vendor his agency is general,
and whatever acts are usually performed by auctioneers or
whatever rights are ordinarily exercised by them are deemed
incidents to his authority; and, in like manner, whatever
duties ordinarily attach to the office are deemed imposed upon
him. He is subject, nevertheless, to the special instructions
of his principal; and his rights and duties under his general
agency are further subject, as regards third persons, to their
having notice of such special instructions. After the fall of
the hammer he becomes the mutual agent of both vendor and
vendee, and his action is competent to bind both parties to the
sale.^
The foregoing remarks apply, however, only where the
auctioneer would be a competent agent in any other species
of land sale. His agency as an auctioneer is not essentially
different from agency in general, and is governed practically
5 White V. Crew, 16 Ga. 416; Mor- text have ever been taken and ac-
ton V. Dean, 13 Met. (Mass.) 397; cepted as true with regard to sales
Harvey v. Stevens, 43 Vt. 653; of chattels there has been some di-
O'Donnell v. Leeman, 43 Me. 158; versity of opinion in respect to
Doty v. Wilder, 15 111. 410; Gill v. sales of realty, and in some in-
Hewitt, 7 Bush (Ky.) 13; Walker stances contrary conclusions have
V. Herring, 21 Gratt. (Va.) 678. been reached. The later cases,
c See Bateman on Auctions, 211. however, adopt and declare the
7 Thompson v. Kelly, 101 Mass. doctrine of the text; and there does
291. not seem to be any good reason
« Goodale v. Wheeler, 11 N. H. why the auctioneer shall be viewed
424; Adams v. Humphrey, 54 Ga. as the agent of the purchaser in the
496; Rodgers V. Bass, 46 Tex. 505. sale of goods which does not
8 While the statements of the equally apply to the sale of lands.
SALES BY AUCTION. 301
by the same rules, llcucc u vcikIoi- actin;^ as lii.s own aiie-
tioiieer, l)einj.c a party to the sah' and a necessary party to a
sail to recovei' the imichase money, is incoiniieient to act in
the transaction as the aj^ent of tin* liuyer.'" And it is ininia-
terial, so fai' as alTects the opei-ation of this iiih*, whether tlie
aiictioneei' has liiuiself any lieiielicijil interest in tin- centract
or sinijdy stands in a lidnciary ridation to a thiid person, so
htnji as lie is. in h j^al point of riew, the real party to and the
proper one to sue niion the conliact."
§ 246. Auctioneer cannot delegate authority. Where an auc-
tioneer is emplo.\e(l to si'll he must hinisi-lf conduct the sale,
and cannot, without special authority, delegate his powers to
aiu)tlier.^- With regard to merely snl>si<liary matters he may
employ others to assist him, as to make the outcry or ply tlie
hammer;^'' but everything directly connected with the sale
must be conducted undei- his immediate supervision.^*
^247. Withdrawing bid. Mutuality is essential to the valid-
ity of all contracts, and so vitally necessary is it to such as
are not under seal that they cannot be said to exist without
it. A bid at auction, before the hammer falls, is like an offer
before acceptance; and a bi(hler has a right to withdraw his
oll'er at any time before the property is struck off to him. Tn
such case there is no contract; and such bidder cannot, in any
sense, be regarded as a purchaser.^^ The brief interval
between the bid and its acceptance, it is said, is the reasonable
time which the law allows for inquiry, consideration, correc-
tion of mistakes and retraction.' *5
§ 248. Refusing bid. An auction being an ojien sale, the
auctioneer cannot in general refuse to accept a bid, though,
it seems that he is not obliged to take the bid of a person of
known irresponsibility.'" and may refuse snth bid when its
It' Tull V. David, 45 Mo. 444. I'f Poree v. Bonneval. 6 La. Ann.
11 See Browne, Stat. Frauds, § 386.
367; 3 Par. Cont. 11. But these re- i^ Chambers v. Jones, 72 111.
marks do not apply to a sheriff 275.
or like officer acting simply in the i"- 1 Addison, Cont. 18.
execution of a power of sale and i« Fisher v. Seltzer, 23 Pa. St.
not in strictness as a trustee. 308.
1^ Stone v. State, 12 Mo. 400; w pon v. Zellers, 7 N. .T. L. 153;
Comnionwoalth v. Hamdcn. 1!t ll()l)l)s v. Beavers, 2 Ind. 142.
Pick. (Mass.) 482.
302 SALES BY AUCTION.
acceptance would have the effect of frustrating the very pur-
pose for vvhicli the sale was designed, notwithstanding such
bid may be nominally the highest.^^ So, also, he may refuse
the bid of a minor or other person legally incapable of making
an enforceable contract.'-*
If the sale is without reserve, he should not accept a bid
from the vendor or any one acting in his behalf.
§ 249. Auctioneer's statements and representations. It is
the duty of the auctioneer, as the representative of the vendor,
to obtain the highest price attainable for the land, and to this
end he may make any statements or representations calculated
to inspire competition among bidders, provided same are true.
He may even advance opinions of his own, and, when made
simply as opinions and not as statements of fact, it is, it seems,
immaterial how visionary or destitute of foundation they may
be. But where he makes a misstatement of fact or a misrep-
resentation which is calculated to, and does, affect action on
the part of bidders, or where his statements have a strong
tendency to induce buyers to refrain from inquiry, any bidder
who is thus misled to his injury will not be bound by his bid.
Where sales are made by auction it is usually impracticable
for a bidder to verify statements made by the auctioneer before
making his bid: for this reason he has a right to rely on state-
ments so made and to refuse to consummate the sale should
they prove untrue.^o
§ 250. Puffers and by-bidders. A puffer, in the strictest
meaning of the word, is a person who, without any intention
of purchasing, is employed by the vendor at an auction sale
to raise the price by fictitious bids, thereby increasing com-
petition among the bidders, while he himself is secured from
risk by a secret understanding with the vendor that he shall
not be bound by his bids.^i The legal effect of such employ-
ment upon the sale was for man^- years a disputed question
in the courts of England, the common-law and chancery courts
having at different times formulated rules variant and even
18 See Murdock's Case, 2 Bland, 20 Roberts v. French, 153 Mass.
Ch. (Md.) 46. 60; Stevens v. Giddings, 45 Conn.
10 Kinney v. Showdy, 1 Hill (N. 507.
Y.) 544. 21 Peck v. List, 23 W. Va. 338.
SALES BY AUCTION. 303
contradictory.-- As iiii^ht be expected, the courts of the
United States have to a considerable extent rendered con-
flicfiii}^ decisions on tlie snbjecl, son)e followin}; (lie rules of
the i<hij<lish <()iiinion-la\v courts, and (jthers those pi'onniliialcd
by the couils of chancery; but the weijiht of authority now
is and at all times has been to condemn the practice as incon-
sistent with common honesty and fair dealin;;-.-'' It is funda-
mental that the basis of all commercial transactions should
be in <j,ood faith; and more espe<ially is this true when the
public are brou<j;ht tojjjether upon a coulideuce that the
article set up for sale is to be disposed of to the highest
bidder, which could never be the case if the owner nii^dit
privately and secretly enhance the price by a person employed
for the purpose. The offer of property at auction without
reserve is an inijilied f^uaranty that it is to be sold to the
highest bidder; and each bidder has the right to assume that
all previous bids are genuine. The seller in substance so
assures him, and the secret employment by the seller of an
agent to make fictitious bids is equivalent to a false represent-
ation by him as to a matter in which he is bound to speak the
truth and act in good faith.-^ Such an act, therefore, is a
positive fraud upon the purchaser, and should be, as it is,
sufficient in itself to vitiate the sale,-^ unless the purchaser
with knowledge of the fact has acted upon it, so as to deprive
himself of the right to complain.^^
2:; The law courts held that by- 449; Bank of Metropolis v.
bidding or puffing was a fraud, and Sprague, 20 N. J. Eq. 159; Reyn-
that any highest bidder who had olds v. Dechaums, 24 Tex. 174;
been deceived by it could avoid his Peck v. List. 23 W. Va. 338; Curtis
contract or refuse to carry it out; v. Aspinwall, 114 Mass. 187; Towle
whereas the equity courts were dis- v. Levitt, 23 N. H. 360; Veazie v.
posed to countenance it so long as Williams, 8 How. (U. S.) 134.
it was employed defensively to pre- -* Curtis v. Aspinwall, 114 Mass.
vent a sacrifice. The doctrines at 187.
common law and in equity have re- -•"' Towle v. Leavitt, 23 N. H. 360;
cently (1867) been assimilated in Stains v. Shore, 16 Pa. St. 200;
England (at least so far as regards Flannery v. Jones, ISO Pa. St. 338;
auction sales of real estate) by Bank of Motropolis v. Sprague. 20
statute, making the rule at com- N. J. Eq. 159; Bayham v. Boch, 13
mon law likewise the rule in La. Ann. 287; Darst v. Thomas. 87
equity. 111. 222.
2:? Pennock's Appeal. 14 Pa. St, 2« Peck v. List, 23 W. Va. 338;
304 SALES BY AUCTION.
Ordinarily by-bidders are employed by the owner of the
property to be sold, and when such is the case they are puffers
in the strictest sense of the word; but it is uninii)ortant
whether the by-bidder is employed by the owner of the land
or by some one else having a pecuniary interest in the sale,
and who can make j-ood his assni-ance to the by-bidder that he
shall not be held resousible for his bid if it happen to be the
highest made. The real essence of the fraud is not that the
owner is bidding for the property, but consists in the fact that
a person pretending to be a bona fide bidder deceives honest
bidders, raises the price of the property by fictitious bids,
increasing competition, while he himself has good reason to
believe and does believe that he is secure from any risk of
being held personally liable for his offers; and it is immaterial
from whom he derives this assurance of immunity provided
the party giving the same has the power to make it good.^^
There are American cases which seem to lay down the rule
that the owner may protect himself against a sacrifice of the
property by ''bidding in" the same; that persons employed
by him for this purpose are not to be classed as puffers where
the price is not enhanced beyond a fair value,^^ and that such
employment, if made in good faith, will not vitiate the sale;^'^
but it is difficult to reconcile the reasoning or the result of
such cases with the commonly-accepted rules first stated, or
to understand how the element of good faith can be made to
apply, unless the owner has publicly reserved to himself the
exercise of such right.
The doctrine as just stated had its origin in the chancery
Pennock's Appeal, 14 Pa. St. 449; (Tenn.), 667. In this case execu-
Backenstoss v. Stabler, 33 Pa. St. tors employed a person of experi-
251; Latham v. Morrow, 6 B. Mon. ence to assist them in the selling
(Ky.) 630. of lands; the property was divided
27 Peck V. List, 23 W. Va. 338. and an estimate of value placed
28 Davis V. Petway, 3 Head upon the several lots. During the
(Tenn.), 667; Reynolds v. De- progress of the sale, when the bid-
chaums, 24 Tex. 174; Lee v. Lee, dings for any particular tract were
19 Mo. 420; Walsh v. Barton, 24 below the estimated value, the per-
Ohio St. 28; and see Phippen v. son employed to conduct the sale
Stickney, 3 Me. 387; Latham v. would request some one of the by-
Morrow, 6 B. Mon. (Ky.) 630; Pen- standers to bid for the same, and
nock's Appeal, 14 Pa. St. 446. in no instance exceeding the mini-
29 Davis v. Petway, 3 Head mum value previously placed on
SALES BY AUCTION. 305
courts of Kiiglaiid and for iiiaiiy years it seems to have been
the ciistoui ill that country to reserve a bidding? for the owner
or for some person to be employed, covertly or otherwise, to
bid on his behalf, so that the property mij^ht not be sold at
any considerable loss. lUit the tjeneral tendency of the En;;-
lish courts has been to discourage such practices and a resuuKr
of the later cases would seem to declare the rule that if due
notice be }j;iven to the i)ublic of the owner's intention to bid,
or to employ an a.uent to bid in his behalf, the transaction will
not be held fraudulent or unfair or the sale thereby vitiated.
Hut where the fictitious bidding is done clandestinely, even
thouj^h one person only is appointed, the sale will be held
fraudulent.3*^
^ 251. Vendor as bidder. If the owner's employment of
puffers who bid at an auction sale of his property avoids the
sale, and that such is the fact may now be considered the
settled doctrine, it follows from the same reasons that the
owner has no right to bid himself unless he publicly reserves
such rijjht.^^ It is true that the spectacle of a vendor openly
ajjpearing as a bidder at a sale of his own property is a matter
of most infrequent occurrence, and the practice as a rule is
never publich' avowed. Yet there are many indirect ways in
which it may be and is accomplished.
Undoubtedly the vendor may bid, by himself or his agent,
to the extent to which he has expressly reserved the right so
to do, provided proper notice is given so that no one will be
misled or deceived ;^'2 but if the property is put up with a
right of bidding once reserved to the vendor, that right is
exercised if the auctioneer with the vendor's authority start
the property at a certain sum ; and the purchaser may avoid
the contract if the auctioneer make or accept a further bid-
ding for the vendor.-'^^
§ 252. Combinations among bidders. It is illegal for per-
sons intending to purchase at auction sales to combine and
the tract. Upon these facts the •"'i Baham v. Bach, 13 La. Ann.
court refused to grant the vendee 287.
any relief against the sale. And •^- Miller v. Baynard, 2 Houst
see Latham v. Morrow, 6 B. Mon. (Del.), 559.
(Ky.) 6.30. :'3 Bateman, Auctions, 122,
30 Bateman on Auctions, 164.
20
306 SALES BY AUCTION.
enter into ajireements not to bid against each other. The
polic}' of the hiw is opposed to any act which prevents full
and fair ("onii)etiti()n, or is calculated to de})reciate values or
injure the sale,-^^ and contracts made under such circumstances
are incapable of legal enforcement at the suit of the conspiring
bidder.35
But this rule is confined to cases where there is an agree-
ment not to bid with a view of stilling competition, and does
not extend to cases where several persons join to anake a
purchase for their common benefit without an agreement not
to compete ;3^' nor to cases where several creditors, no one
of whom would be willing to purchase a property of so large
value, unite to purchase. Such a union is calculated to
enhance the price rather than injure the sale; and where such
persons agree together that they will authorize one person to
bid for the propertj' on their joint account the agreement will
not be considered unlawful.^^ Whether such a combination
is fraudulent or not depends upon intention. Prima facie it
would not be fraudulent, and could only be made to appear
otherwise by showing that such an arrangement was made
for the purpose and with the view of preventing fair compe-
tition, and by reason of want of bidders to dej)ress the price
of the property offered for sale below the fair market value.
In such an event the sale might be avoided as between the
parties as a fraud upon the rights of the vendor. It is the
end to be accomplished that makes such combinations lawful
or otherwise; and if the arrangeanent is entered into for no
fraudulent purpose, but for the mutual convenience of the
parties, as with a view of enabling them to become purchasers,
each being desirous of purchasing a part of the property
offered for sale, and not an entire lot, or induced by any other
reasonable and honest purpose, such agreement will be valid
34Easton V. Mawkinney, 37 Iowa, "ic Jenkins v. Frink, 30 Cal. 586;
601; Bellows v. Russell, 20 N. H. Phippen v. Stickney,3 Met. (Mass.)
427; Jenkins v. Frink, 30 Cal. 586; 388; and see Gardiner v. Morse, 25
Gardiner v. Morse, 25 Me. 140; Me. 140.
Hook V. Turner, 22 Mo. 333; Dud- a? Bank v. Sprague, 20 N. J. Eq,
ley V. Odom, 5 S. C. 131. 159; Bellows v. Russell, 20 N. H.
35 Barton v. Benson, 126 Pa. St. 427; Bradley v. Kingsley, 43 N. Y.
431. , 534; Gulick v. Webb, 41 Neb. 706.
SALES BY AUCTION. 307
!Ui(l bindliif^',^-^ iiotwillisliiiKliii;; it may indirectly have the
elt'ec-t of keepinj^ others fidiii hidding.^'^
It will be seen, therefore, that no definite rule can be
announced that will lie conti'ollinj,^ in eveiy case, and courts
will look Ixyond the iiiei-e fact of an aHSOciation of persons
formed for the puii»ose of bidding; at a sale. If nj)on <'Xamin-
ation it is found that the object and purpose of the association
is not to prevent comp<'tilion, but to induce and enable the
persons composing it to pai'ticipate in the bidding's, the sale
should be upheld; otherwise if entered into for the purpo.se
of shutting out competition and depressing the sale so as to
obtain the ])i<»])erty at a sacrifice. Each case must depend
upon its own circumstances, and it is competent for courts to
incpiire into them and to ascertain and determine the true
character of each.'**'
§ 253. Auctioneer's memorandum. It was formerly thought
that sales by auction were not within the meaning of the
statute of frauds for the reason that the publicity of the sale
was sufticieut to guard against fraud and i)erjury, but this
doctrine has long been repudiated and the general rule now
is that auction sales stand upon the same footing as other
sales of realty, and that a memorandum is essential to sustain
the same. An auctioneer, however, when selling real estate
at auction, acts as the agent of both vendor and vendee; and
his entry in the sale-book,^^ at the time of the sale, containing
a description of the property sold, the name of the vendor^^
38 Jenkins v. Frink, 30 Cal. 586. (U. S.) 519; and see Bradley v.
An agreement between A. and B. Kingsley, 43 N. Y. 534; Jenkins v.
that B. will permit A. to buy a Frink, 30 Cal. 586; Fasten v. Maw-
tract of land which is to be sold at kinney, 37 Iowa, 601; Fenner v.
auction, and that A. will buy it Tucker, 6 R. I. 551; Loyd v. Ma-
and convey a certain part thereof lone, 23 111. 43; Miltenberger v.
to B. at an appraisement to be Morrison, 39 Mo. 71; Phippen v.
made by certain persons, is not Stickney, 2 Met. (Mass.) 384.
void on its face for illegality. ■»! The entry by a clerk, under
Phippen v. Stickney, 3 Met. the direction of the auctioneer,
(Mass.) 384. will be regarded as the act of the
3i>Gulick 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|)<Mly. tin- It-iiiis (tf \Kiy-
luciil, rctcriiii;^' to cut lies Inlluw iri;^' the iiaiiics of itiiicliascrs
and lots sliucU oil' to each, and sij^Micd hv the auctioneer, under
wliicli lie enters the name (»f each purchaser, th<' desciipt ion
(»r the property sold and tlie ]»rice, is a sulhcicnt inenioranduni
within the statute."^ In every instance, however, the auction-
eer's in( luoranduin must, either in itself or in connection with
other wi'iliiius iiindc a jiart of it, conform in .ill resjjectH to the
rules as laid down for aj;reeinents between parties on ])ri\ate
sale;'*^ and a memorandum settinjj; fortli the names, jii-ice,
description and fact of part j)aym('nt, l)Ut not the "conditions
of sale," which it states the vendor shall duly oltserve and
fullill, would be insutlicieut within the statute of frauds.^'^ So,
also, an uiisi<;ned memorandum of an auctioneer, unconnected
by annexation or reference with any writing duly authenti-
cated by the sij^nature of the party sought to be charj^ed, is
not a memorandum within the meaning of the statute.*"
It is further essential to the validity of the auctioneer's
memorandum that he shall sustain no relation toward the
vendee inconsistent with the true character of an agent. The
chief reason in supj)ort of the rule that an auctioned', acting
solely as such, may be the agent of both parties to bind them
by his memorandum is that he is supposed to be a disinter-
ested person, having no motive to misstate the bargain, and
equally entitled to the contidence of both parties. But this
reason fails w'here he is a party to the contract and a party in
interest also. Hence, a vendor cannot act as the auctioneer
As where an auctioneer, on selling ute of frauds. Morton v. Dean,
real estate to S.D. at auction, after 13 Met. (Mass.) 385.
reading or exhibiting written con- 4<i Price v. Durin, 56 Barb. (N.
ditions of sale, made this memo- Y.) 647; Springer v. Kleinsorge,
randum in writing: "Sale, on ac- 83 Mo. 152.
count of Messrs. Morton and Dean, 47 See Grafton v. Cummings, 99
assignees of the Taunton Iron U. S. 100; Knox v. King, 36 Ala.
Company, of the real estate, nail- 367; Brown v. Whipple, 58 N. H.
works, water-privilege, buildings 229; Lincoln v. Preserving Co., 132
and machinery, agreeable to the Mass. 129; Drake v. Seaman, 97
plans and schedule herewith. Sale N. Y. 230.
to Silas Dean for $30,300. April -"^ Riley v. Farnsworth. 116 Mass.
5th, 1843." Held that, as this mem- 223.
orandum did not contain nor refer *'•> 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<j;ainst such ])urchaser for a
breach of the contract until a resale had been had and a deficit
ascertained/'"
Hut while the rule is well settled that when a vendee has
refused to coniplv with liis bid, and complete the sale, tlu'
land mav be resold loi- liis account and risk, there is yet some
confusion with respect to the method of ])rocedure so as to
render the result of the resale legally bindinti; upon him. It
would seem that in order to conclude such bidder the resale
must be made without unreasonable delay, with, the same
publicity, and, as far as possible, under the same conditions,
as the first sale, and with an honest effort to secure the best
price obtainable. The defaultinj; bidder should further have
notice that fhe resale will be made and at his risk. The
reason for this is, as above indicated, that the land is regarded
in some sense as the property of the bidder and the result of
the resale is in the nature of an adjudication against him;
hence, before he can be charged with a deficiency he should
be afforded an opportunity to protect his interest and prevent
a sacrifice of the property. In the event of a failure to give
such notice the vendee has a right to assume, if the land is
again sold, that the vendor has elected to retain same and
deal with it as his own. As to the extent of the notice the
authorities do not seem clear. In some cases notice of the
time and place of the resale has been held necessary, but the
better rule would seem to be that where there is a notice of an
election to resell and to hold the bidder for any deficiency,
no other or further notice is necessary.^^^
general rule that the auctioneer Kempner v. Heidenheimer, 65 Tex.
Is the stake-holder of both parties 587.
had ceased to apply, and the pur- C2 Webster v. Hoban, 7 Cranch
chaser could not recover the de- (U. S.), 399.
posit. '■••' Lewis v. Greider, 51 N. Y. 236;
"Green v. Ausley, 92 Ga. 647; Green v. Ansley, 92 Ga. 647.
PART II.
INCIDENTS OF THE CONTRACT,
CHAPTER IX.
INVESTIGATING THE TITLE.
Continued — Possession of
prior vendors.
Liens and incumbrances.
Mortgages.
Judgment liens.
Decrees.
Mechanics' liens.
Vendors' liens.
Real estate charged with
legacies.
Real estate charged with
debts.
Easements and servitudes.
Pending litigation.
Partnership property.
Notice to agent.
Joint purchasers.
Rebutting presumption of
notice.
§ 258. General principles. Under the usages now prevailing
it is customary, upon the negotiation of a trade, to allow the
yendee a sufficient time to investigate the character of the title
he is purchasing, and provision for such investigation is ordi-
narily incorporated in the agreement of sale. There is no
positive law upon the subject, and the time is generally vari-
ously fixed at from ten to sixty days, adapting itself to the
exigencies of the occasion or the convenience of the parties.
Sometimes this interim between the commencement and com-
pletion of sale is made essential by the terms of the agreement,
and if the vendee fails to comply with the terms of the contract
within the time stipulated it gives to the vendor a right of
forfeiture of the contract and of whatever may have been
314
258.
General principles.
§273.
259.
Doctrine of caveat emptor.
2G0.
Doctrine of notice.
274.
261.
Constructive notice.
275.
262.
When purchaser is charge-
276.
able with notice.
277.
263.
What notice sufficient.
278.
264.
What will put a party on
279.
inquiry.
280.
265.
Notice from registration.
266.
Recitals in deeds.
281,
267.
Inquiries in pais.
268.
Notice of unrecorded in-
282.
struments.
283.
269.
Notice of parol agreements.
284,
270.
Notice of fraud.
285,
271.
Possession as an evidence
286,
of title.
287,
272.
•Continued — Character of
possession.
INVESTIGATING THE TITLE. 31.'
paid liy \\;iy of cjiihcsIiihumn ; Itiil unless lliis coiist'iiiH-int'
clcjirly lollous ;is ;i matter of fair <-oiiHlni(li()ii, lime will iinl
be (Icciiied essential, and until llie ven<l(H- lias put the vendt-c
in delaull l»y some icco^^nized lc;^al method, ov unh'ss IIk*
vendee has N'olnnlarily al)andone(l the nndeitaUinj^', lie will Ite
jiermitled to complete the imrchase within ;iny |-easonal»le
time aflei' its incei»tion.
The duly of careCnl iiKpiify into tlie lille is iiiiiiosed upon
the vendee by law; and tiiis duty he cannot fore^^o, unless l»y
reason of the representations of the vendor he is ])revaile<l
upon so to do. The law j)resumes tliat every man, not beiii*;
under any le^al disability, will make due investij^ation with
respect to the thin<;- he is about to jiurchase, and that he buys
with full knowledge of all the facts that such investi^^alion
would disclose; and while he is permitted to recover uj)on any
ex[)ress agreement that he may have taken by way of cove-
nant, yet if he fails to so protect himself he buys at liis jteril,
and cannot afterwards be heard to com]dain unless some fraud
has been practiced upon him.
The usual means provided for an iuipiiry into the title is
an abstract of the public records, as it is usually called, an
abstract of the title; but in case this is not furnished the
duty of examining;' the records will devolve upon the vendee,
and he is char^(Ml with constructive notice of every fact which
such an investigation would have disclosed. Jn addition there-
to he must also notice the character of the possession of the
premises; and if an^' infoi'mation is brought home to him,
calculated to impart knowledge or to apprise him of any
rights or interests in conflict with those which he is about to
l)urchase, he must duly prosecute an imjuiry in relation
thereto.
In the following paragraphs nothing more than a general
survey of the subject is attempted; and in order to avoid
repetition a number of tojjics which properly come within
the scope of the chapter are omitted, as they can be more
a<lvantageously treated in connection with other matters to
which they directly relate, and to which the reader is
referred.^
1 See post, "Fraudulent Convey- ceeding chapter on "Objections to
ances;" "Conveyances subject to Title."
Incumbrance," etc.; also the sue-
316 INVESTIGATING THE TITLE.
§ 259. Doctrine of caveat emptor. The law will not extend
its protection to those who, through negligence or inattention
to their business, suffer an advantage to be taken of their
credulity, nor excuse them for a neglect to examine and by
proper observation to ascertain whether that which they ])ro-
l)ose to purchase corresi)ondsto their desires or anticipations.
It is the vigilant whom the law regards, not those who sleep
on their rights; and if, through inattention, neglect or blind
credulity, it turns out that the title of land is defective, or that
the property itself is inadapted to the purposes for which it
was purchased, the vendee will ordinarily be entitled to no
relief, at law or in equity, except as he may find it through
the covenants he has received; and if he has further neglected
to protect himself by covenants, he is practically without a
remedy on a subsequent failure of title.-
This doctrine is known in the law by the terin caveat emptor.
The maxim, 'iet the purchaser beware," although now in very
common use in connection with sales of land, originally applied
only to sales of chattels and its more peculiar significance
had reference to questions of fraud and implied warranty. In
time, however, the meaning became extended, and at present
indicates an assumption of risk in sales of realty as well as
personalty,^ and if a purchaser buys land and takes convey-
ance thereof without warranty, he assumes whatever risks
may attend the transaction, and so far the rule of caveat
emptor may be said to apply to him.
§ 260. Doctrine of notice. The duty of investigating a title
rests mainly upon that peculiar feature of law to which the
term "notice" has been applied. The title of a, purchaser' for
value cannot ordinarily be impeached, unless he has had notice
of the infirmity which goes to defeat it; but this notice does
not necessarily mean "knowledge," and although the purchaser
may have been innocently ignorant in fact, and from a moral
point of view, he may, nevertheless, be legally chargeable with
knowledge derived from notice. I«I^otice ma^', of course, be
actual; and in such case knowledge is a necessary resultant;
or, it may be constructive, which is the legal equivalent of
2 Murray v. Ballou, 1 Johns. Ch. 3 Abbott v. Allen, 2 Johns. Ch.
(N. Y.) 566; Abbott v. Allen, 2 519; Upton v. Tribilcock, 1 Otto
Johns. Ch. (N. Y.) 519. (U. S.), 45
INVESTIGATING THE TITLE. Si"?
actual riolicc, and alllion^h the jicrsoii son^^lil to be affected
tli('r('])_v may liavc liad no nolicc in fact, lie may yet be ho
sihialed thai lie is esloppcd to aver this or to deny that he
did not have iiolice.
Notice is fnrllier chissified ])y the eh'nn-ntary writerH as
ex]tress and im|)Iied — the lattci- term Itcinji used where
notice is imputed to a party shown lo he conscious of havinji
means of luio\vh'<lj!;e whicli lie does not use, as wln-re he
chooses to i-emain voluntaiily ignorant, or is jirossly negligent
in not imi'suin;^ iinpiiries su^^^^csted by Icnown facts.^
The fei-ms "imjilied" and "constructive" notice are freciueiitly
used as synonymous, yet there seems to be a marked distinc-
tion between them. The former, as previously remarked, is
an imputation arising from an inference of fact; while the
latter, being the creature of positive law, rests upon strict
legal infei-encc. Indeed, we may with propriety say that it is
a rule rather than a presumption.
There is some conflict among writers, and in the decided
cases, as to what constitutes actual notice, although it has
been said that much of the difference is verbal only — more
apparent than real; and the general propositions which
directly aft"ect the (juestion are, in the main, well agreed upon.
It does not necessarily mean personal information or con-
scious knowledge, and may rest in inference. It may be proved
by direct evidence or it may be inferred or implied from indi-
rect evidence — circumstances — and is a conclusion of fact,
capable of being established by all grades of legitimate evi-
dence.''
The doctrine of actual notice implied by circumstances nec-
essarily involves the rule that a purchaser, before buying,
should clear up the doubts which ap])arentl3' hang upon the
title by making due iuijuiry and investigation. If a party has
*Knapp V. Bailey, 79 Me. 195; r. Blatchley v. Osborne, 33 Conn.
Hovey v. Blanchard. 13 N. H. 145; 226; Buck v. Paine, 50 Miss. 648:
Williamson v. Brown, 15 N. Y. Rogers v. Jones, 8 N. H. 264; Hull
354; Curtis v. Mundy, 3 Met. v. Noble, 40 Me. 480; Maupin v.
(Mass.) 405; Hoppin v. Doty, 25 Emmons, 47 Mo. 306; Maul v.
Wis. 573; Eck v. Hatcher. 58 Mo. Rider, 59 Pa. St. 171; Kirsh v.
235; Carter v. Hawkins, 62 Tex. Tozier, 143 N. Y. 390; Jennings v.
393; Hoy v. Bramhall, 19 N. J. Ford. 118 Mo. 296; Mercantile Nat.
Eq. 563. Bank v. Parsons, 54 Minn. 56.
318 INVESTIGATING THE TITLE.
knowledge of such facts as would lead a fair aud prudent man,
using ordinary caution, to make further inquiries and he
avoids the incjuiry, he is chargeable with notice of the facts
which by ordinary diligence he would have ascertained; he
has no right to shut his eyes against the light before him, nor
to disregard the signals seen by him; and if he does so it may
be well concluded that he is avoiding notice of that which he
in reality believes or knows.^ Hence, it is said, actual notice
of facts which to the mind of a prudent man indicate notice
is proof of uoticeJ
The same facts may sometimes be such as to prove both
actual and constructive notice; that is, a court might infer
constructive notice and a jury actual notice from the facts,
while on the other hand there may be cases where the facts
show actual notice when they do not warrant the inference
of constructive notice.^
It may be stated as a general rule, however, that one claim-
ing title to land by a deed purporting to be made for a valua-
ble consideration is presumed to be a purchaser in good faith
without notice, and while the fact of notice, may be inferred
from circumstances as well as proved by direct evidence, the
proof must be such as to affect the conscience of the purchaser
and fix upon him the imputation of bad faith, while the burden
of proof ordinarily will rest upon the party attacking the
transaction.''
Every species of notice is ineffectual as a restraint on exist-
ing rights, and can only operate on those rights which are sub-
sequently acquired.
§ 261. Constructive notice. The law of notice derives what-
ever of subtilty or intricacy it may possess from that part
technically known as constructive notice, which is not notice
6 See Lamb v. Pierce, 113 Mass. seen upon the records by a pur-
72; Williamson v. Brown, 15 N. Y. chaser who thereby receives actual
354; Rogers v. Jones, 8 N. H. 264; notice. Hastings v. Cutler, 24 N.
Bartlett v. Glasscock, 4 Mo. 62; H. 481.
Blatchley v. Osborn, 33 Conn. 226. o See Anthony v. Wheeler, 130
7 3 Wash. Real Prop. 335. 111. 128; Coleman v. Barklew, 27
8 As where a deed, which by N. J. L. 357; Vest v. Michie, 31
reason of inherent defects or ir- Gratt. (Va.) 149; Hiller v. Jones,
regularity of recording, fails to 66 Miss. 636.
impart constructive notice, is yet
INVESTIGATING THE TITLE. 319
at all, but rather a Ic^al inftTeuc-e from established factBj^''
and while (ouits and writers have at different times made gen-
eral .stateiiieiils calculated (o outline its character, no very
clear exjioHition of its real nature has ever been nuide; nor
has any writer been able to foniiulale any jtrecise rule as to
what does or does not constitute ccnist luctive notice, because
uii<juesti(»nably that which may iKjt affect one luan may be
abundantly sutlicient to affect another; and so, as Mr. Su;4den
observes, "every one wlio has attempted to define wlnii it is
has declared his inability to satisfy even himself.""" The test
j;cnerally apidied by American courts has been whether the
facts are sufficient to jiut a prudent man on inipiiry, and
whether an incjuiry has been prosecuted with reasonable care
and diligence ;i- for whatever is sufficient to i)ut a party upon
incpiiry which would lead to the truth is, in all respects, ecjual
to and must be regarded as notice; and if a purchaser acts in
bad faith and wilfully or negligently shuts his eyes against
those lights which, with proper observation, would lead liim to
a knowledge of facts affecting the subject of his purchase, he
will be held to have notice of such facts.^^
A purchaser is constructively cliarged with notice of every-
thing that appears on the face of the deeds constituting his
chain of title ;'^ but he is not bound to inquire into collateral
10 Birdsall v. Russell, 29 N. Y. two joint owners is chargeable
220. with notice of the interest of the
112 Sugd. Vend. 570. other, as shown by the convey-
1^ Hull V. Noble, 40 Me. 459; ance to his vendor. Campbell v.
Littleton v. Giddings. 47 Tex. 109; Roach, 45 Ala. 667. But where two
Helms V. Chadbourne, 45 Mo. 60; persons hold undivided interests in
Warren v. Swett, 31 N. H. 332; the same parcel of land by sep-
Allen V. Poole, 54 Miss. 323;Briggs arate deeds, of different dates and
v. Taylor, 28 Vt. 180; Blanchard v. from different grantors, a person
Ware, 43 Iowa, 530; Brown v. dealing in good faith with one of
Volkening, 64 N. Y. 76; Edwards them in reference to his interest
V. Thompson, 71 N. C. 177; Pell is not bound with notice that the
v. McElroy, 36 Cal. 268. property is partnership property
i-i Chicago, etc. R. R. v. Ken- from the knowledge merely that
nedy, 70 111. 350; Barnard v. Cam- the holders thereof are partners,
pau, 29 Mich. 162; Littleton v. Gid- and make use of the premises for
dings, 47 Tex. 109; Cunningham v. partnership purposes, where noth-
Pattee, 99 Mass. 248. ing on the record indicates a part-
it Morrison V. Morrison, 38 Iowa, nership holding. Reynolds v.
73; Burch v. Carter. 44 Ala. 115. Ruckman, 35 Mich. 80.
Thus, a purchaser from one of
320 INVESTIGATING THE TITLE.
circumstances.!''' 80, also, he must take notice of the contents
of a deed referred to in the conveyance under which he holds ;ic
yet this rule does not re(iuire him to take notice of a fact
exhibited in the deed which is wholly foreif^n to the subject
of the reference.!" Further, it is a general rule that a pur-
chaser is constructively charged with notice of all facts
exposed upon the public records w'hich directly affect or lie in
the line of the title he is receiving.
The general rule that a purchaser of land is chargeable
with constructive notice of all duly-recorded conveyances of
such land executed by his grantor, applies to equitable as well
as to legal estates.!^
§ 262. When purchaser is chargeable with notice. It is
difficult if not impossible to lay down any general rule as to
what facts will in every case be sufficient to charge a party
with notice or put him on inquiry. It may be said, however,
that a purchaser buying real property, of the title to which
there must be evidence in writing, is chargeable with notice of
any infirmity of his title which the writing discloses.!'^ If he
has notice of a prior claim, or equity, or of facts, which if
followed up would discover the truth, he is put under a duty
to make the investigation; and, if he fails to do so, he is
chargeable with knowledge which the inquiry w^ould have dis-
closed.20 So, also, a purchaser pendente lite is bound by the
result of the suit, and chargeable with notice of every fact per-
taining thereto.-! The purchaser of land from a vendor in
15 Burch V. Carter, 44 Ala. 115. the vendor or any other person
iG Morrison v. Morrison, 38 Iowa, about the title, nor called for an
73; Deason v. Taylor, 53 Miss. 697. inspection of the title deeds or an
1" Thus, it does not require him abstract thereof, but relied on the
to take notice that the deed has possession of the vendors, and
incorporated in it a bill of sale their assertion of title and the
of personalty in which a lien is warranty clause contained in the
attempted to be retained by the deed of conveyance. Witter v.
grantor. Mueller v. Engelin, 12 Dudley, 42 Ala. 616.
Bush (Ky.), 441. i9 Corbitt v. Clenny, 52 Ala. 480;
18 Digman v. McCollum, 47 Mo. Stidham v. Matthews, 29 Ark. 650.
372. A purchaser of a large tract 20 Buck v. Paine, 50 Miss. 648;
of land for a valuable considera- Carter v. Portland, 4 Oreg. 339;
tion, held chargeable with notice Finch v. Beat, 68 Ga. 594; Brink-
of an equitable title under a trust man v. Jones, 44 Wis. 498.
created by a decree in chancery, 21 Holman v. Patterson, 29 Ark.
he having made no inquiries of 357; Kern v. Hazlerigg, 11 Ind.
INVESTIGATING THE TITLE.
321
possession who claiin.s il ii» his own, but wlio has no It-j^al title
t'xcept as triistci' for another, is chari^'cable witli notice of the
tinst;-2 and generally a purchaser is held alTected with notice
of all that is i»ateut on an examination of the premises he is
about to buy.-"*
The possession of land by a person at the time of his death
is prima facie evidence of ownership at that time, and a sub-
se(pu'nt purchaser of the le<;al title will be conclusively pre-
sumed to know that whatever rij^'hts such deceased person had
in the land, not disposed of by will and of an inheritable char-
acter, devolved on his heirs; and his possession beinj^ con-
structive notice of his ri<i;hts at the time of his death, it
becomes the duty of such purchaser to inquire of his heirs and
ascertain the ex lent of that interest.^-*
§ 263. What notice sufficient. Whatever fairly i)uts a party
on incjuiry is re«;arded as sullieient notice where the means of
knowledge are at hand;^'* and a i)urchaser, whenever he has
sullicient knowledge to i)ut him on in(]uiry, or where he has
been informed of circumstances which ought to have led to
sucli iiKjuiry, is deemed to have been sufticiently notificMl to
(l('[)rive him of the character of an innocent purchaser.-*^ It
is the duty of every person who may have knowledge or infor-
443; Turner v. Babb, 60 Mo. 342;
Cooley V. Brayton, 16 Iowa, 10.
-- Jones V. Shaddock, 41 Ala.
362; Smith v. Walter, 49 Mo. 250;
Ryan v. Doyle, 31 Iowa, 53. But
if a mere want of caution in mak-
ing the purchase, as distinguished
from fraudulent and wilful blind-
ness, is all that can be imputed to
him, he will not be regarded as a
trustee in invitum so as to charge
hira with the rents and profits of
the land. Dudley v. Witter, 46
Ala. 664.
23 This principle finds many 11-
title. Held, that a creditor whose
judgment lien attached while this
notice was posted upon the prem-
ises was thereby notified of the
interest of the party claiming title,
since upon inquiry of the agents
he could have ascertained the ex-
tent and character of the title, and
could not therefore be considered
a bona fide purchaser. Hatch v.
Bigelow, 39 111. 546.
^* McVey v. McQuality, 97 111. 93.
'•< Booth V. Barnum, 9 Conn. 286;
Wright V. Ross, 36 Cal. 437; Nute
V. Nute, 41 N. H. 60; Stevens v.
lustrations. The agent of a party Goodenough, 26 Vt. 676; William-
claiming title to real estate in Chi-
cago put upon the premises a
board on which was printed "For
sale by S. H. Kerfoot & Co., 48
Clark St." Kerfoot & Co. were
son V. Brown, 15 N. Y. 354; Parker
V. Foy, 43 Miss. 260.
2" Pendleton v. Fay. 2 Paige (N.
Y.), 202; Price v. McDonald, 1 Md.
415; Centre v. Bank, 22 Ala. 743;
the agents of the party claiming Ringgold v. Waggoner, 14 Ark. 69;
21
322 INVESTIGATING THE TITLE.
Illation of facts siitKcient to put a prudent man on inquiry, as
to the existence of some right or title in conflict with that he
is about to purchase, to prosecute the same, and to ascertain
the extent of such prior right; and if he wholly neglects to
make the inquiry, or, having begun it, fails to prosecute it in
a reasonable manner, the law will charge him with knowledge
of all facts that such inquiry would have afforded.-'^ A pur-
chaser is bound to take notice of all recitals in the deed
through which the title is derived,^^ and is affected with notice
of every matter or thing stated in the several conveyances
constituting his chain of title.^'-^ All such statements and
recitals are sufficient to raise an inquiry, and the correspond-
ing duty is thrust upon the purchaser to investigate and fully
explore everything to which his attention is thereby directed.^*^
Notice, to bind a purchaser, need not consist of positive
infonnation, for any fact that would put an ordinarily prudent
man on inquiry will suffice ;2i nor is it essential that notice of
an equitable interest should come from the interested party
or his agent, for such notice may be imparted aliunde, pro-
vided it is of a character likely to gain credit.^- Vague rumors
or mere surmises are insufficient in themselves; but where
parties assume to speak from knowledge, and jjarticularly
when such parties stand in situations which may reasonably
Shepardson v. Stevens, 71 111. 646; time for the payment of the pur-
Brown V. Valkening, 64 N. Y. 76; chase money, as stated .n the deed,
McLeod V. Bank, 42 Miss. 99; Shat- has elapsed does not authorize him
well V. Harrison, 30 Mich. 179. to presume that it was paid. Dea-
27 Blaisdell v. Stevens, 16 Vt. son v. Taylor, 53 Miss. 697; and
179; Spofford v. Weston, 29 Me. see Morrison v. Morrison, 38 Iowa,
140; Blatchley v. Osborn, 33 Conn. 73.
226; Warren v. Sweet, 31 N. H. si Meier v. Blume, 80 Mo. 179.
332; Hoy V. Bramhall, 19 N. J. Eq. 32 As, where a party about to
563; McGee v. Gindrat, 20 Ala. 95; purchase land from a widow, the
Brinkman v. Jones, 44 Wis. 498; legal title of which was in her,
Erickson v. Rafferty, 79 111. 209. was informed by the grandfather
2s Deason v. Taylor, 53 Miss. 697. of her minor children that the
-» Burch V. Carter, 44 Ala. 115. equitable title had been in the
30 Thus, if the deed recites that deceased husband and was then in
the sale is made on a credit, a his heirs, held, that the notice
subsequent purchaser is bound to came from a proper person. Butch-
inquire whether the purchase er v. Yocum, 61 Pa. St. 168.
money has been paid. That the
INVESTIGATING THE TITLE. 323
be prt'sunicd to allord llifin the iiu-aiis of knowled^^-, the pur-
ehaser cannot disregard the infonnation so obtained.'*^
W'liile no jx-rson is at liberty to remain intentionally
ignorant of facts relating to his purchase within his reach, and
then claim j)rolection as an innocent purchaser, yet it would
seem that he is not necessarily alTected with notice of a prior
adverse e(]uity received from a stranger to the transactions, or
I)erson not interested in the proiKM-ty ;-*^ nor will vague rejjorts,
mere rumors or hearsay concerning such ecpiity, and commu-
nicated by such person, be sullicient to put him on intpiiry and
charge him with knowledge of the facts that he might thereby
have learned.3^ So, also, a mere statement by a third person
that the title was void will not in itself charge the buyer
with, notice of facts not stated ;'^^ and generally, if the informa-
tion be of an indefinite character, and does not in any manner
indicate the means by which the truth of the matter can be
ascertained, such infonnation will not amount to notice, either
actual or constructive.^^
It has been held, however, that where a party has heard of
a sale of land before he purchased, and from a source entitled
to reasonable credit, and under circumstances not likely to be
forgotten, a duty would devolve upon him of tracing out the
matter and ascertaining its truth.^s
§ 264. What will put a party on inquiry. As to what will
be a sufficiency of facts to excite inquiry no positive rule can.
very well be established, as each case depends largely upon its
33 Curtis V. Mundy, 3 Met. 486; Hottenstein v. Lerch, 104 Pa.
(Mass.) 405; Butcher v. Yocum, 61 St. 454.
Pa. St. 168; Lawton v. Gordon. 37 3c Ratteree v. Conley, 74 Ga. 153;
Cal. 202. In this case the pur- Hall v. Livingstone, 3 Del. Ch. 348.
chaser was notified by the record- ■^~ As where a stranger to the
ing officer that a deed had been title, while the person proposing
filed with him and then with- to purchase is searching the rec-
drawn. ords for information, tells him
34 Parkhurst v. Hosford, 10 Saw- there is something wrong about
yer (C. Ct.), 401; Flagg v. Mann, the title, but gives no names or
2 Sumn. (C. Ct.) 486; Butler v. other facts pointing out a course
Stevens, 26 Me. 484; Woodworth of inquiry. Slattery v. Rafferty,
V. Paige. 5 Ohio St. 70. 93 111. 277; and see Lamont v.
3'-' Ratteree v. Conloy, 74 Ga. 153; Stimson. 5 Wis. 443: Mulliken v.
Flagg v. Mann. 2 Sumn. (C. Ct.) Graham. 72 Pa. St. 4S4.
88 Cox V. Milner, 23 111. 476.
324 INVESTIGATING THE TITLE.
own facts and attendant circumstances. Indeed, there is a
great inconsistency' in the cases on this i)oint. In general, a
l)artv in possession of certain information will be chargeable
with a knowledge of all facts which an inquiry, suggested by
such information prosecuted with diligence, would have dis-
closed to him.^'^ Thus, when a i)urchaser has notice of a deed
alfectiug the property to be purchased, this is sufficient to put
him on inquiry, and he is presumed to have notice of the con-
tents of that deed and of all other deeds to which it refers.**^
Possession of land by one whose deed is not registered is
notice of his title, whatever such title may be worth, and is
suflScient to put a subsequent purchaser on inquiry.**^ So,
also, the possession of a tenant is sutHcient notice of his land-
lord's title to put a person dealing with the property on
inquiry;^- and the law will charge such person with notice of
all the facts which he might have ascertained by using proper
diligence in inquiring.-^^ So, also, where a tenant in possession
agrees to purchase the premises his possession amounts to
notice of his equitable title to a subsequent grantee of his
landlord.^^ Possession of land under an unrecorded agree-
ment with the owner to purchase the same is notice sufficient
to put others on inquiry, and if they buy of the owner the con-
tract of purchase may be enforced against them in equity .'^^
It has been held that a purchaser is charged with notice
that his grantor held by what equity must declare to be an
30 Wilson V. Hunter, 30 Ind. 466. ^i Warren v. Richmond, 53 111.
One who "knew by report" when 52; Perkins v. Swank, 43 Miss,
he purchased land that there was 349; Galley v. Ward, 60 N. H. 331;
a mortgage upon It is chargeable Phillips v. Costley, 40 Ala. 486;
with notice of such mortgage if a Sears v. Munson, 23 Iowa, 380.
valid one, although the report also *^ Edwards v. Thompson, 71 N.
stated that such mortgage was C. 177; Cunningham v. Pattee, 99
void. Pringle v. Dunn, 37 Wis. Mass. 248; Kerr v. Day, 14 Pa. St.
449. A purchaser who at the time 112 ; Conlee v. McDowell, 15 Neb.
of sale is in possession of facts 184.
which would put an ordinarily 43 O'Rourke v. O'Conner, 39 Cal.
prudent man upon inquiry, as to 442; Dickey v. Lyon, 19 Iowa, 544.
the existence of vendor's lien upon -n Coari v. Olsen, 91 111. 273.
the property purchased, will be •»•"> 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<l with ordinary dHi;;ruce, would lead to
actual notice of some rij^hts or title in conflict with that he is
about to jjurchase, the law presumes he ma(U' the incpiii-y and
will char<,a* him with the notice he would have received if he
had made it, applies with ])articular force to statements and
recitals in deeds, yet such rule does not leipiire anythinj; more
than ordinary prudence and dili<;ence on the part of the pur-
chaser, and cannot be extended by implication to charge facts
not stated or afford constructive notice of nuitters entirely dis-
connected with the subject of the recitals."-
§ 267. Inquiries in pais. As previously remarked, a pur-
chaser is bound to exercise due dili'-ence in the prosecution of
all inquiries that may be su<2:<?ested by any fact brought to his
knowledge, and in the discharge of such dut^' must make
iuijuiries in pais as well as examine records.''^ Thus, one who
has notice of a prior unrecorded deed is not at liberty to rely,
without further inquiry, ujjon a search of the records, and the
fact that no such deed is found recorded; and one who pur-
privies. But it does not bind cient to charge a purchaser with
strangers who claim by title para- constructive notice of the exist-
mount to the deed, or persons ence of another and entirely differ-
claiming by an adverse title, or ent lien which nowhere appears
persons claiming from the parties of record as a charge upon the
by title anterior to the date of the premises; although the reference
reciting deed. Carver v. Astor, 4 in the deed was, by mistake, to
Pet. (U. S.) 1; Crane v. Morris, the incumbrance previously dis-
6 Pet. (U. S.) 598. charged, instead of to the one sub-
01 Munn v. Burgess, 70 111. 604. sisting at the execution of the
«2 Thus, where the vendor's deed deed. Cambridge Bank v. Delano,
refers to an incumbrance upon the 48 N. Y. 326; and see Muller v.
land, the fact that the incum- Engelin. 12 Bush (Ky.), 441.
brance described was discharged "■:< Russell v. Sweezey, 22 Mich,
upon the record prior to the exe- 235; Pringle v. Dunn, 37 Wis. 449;
cution of such deed is not suffl- Littleton v. Giddings, 47 Tex. 109.
3^8 INVESTIGATING THE TITLE.
chases with such notice and npon such search is not entitled
to be considered a bona fide purchaser/'^
§ 268. Notice of unrecorded instruments. The rule is that
whatever is sulticient to put a purchaser upon inquiry is j^ood
notice of all facts which the in(]uiry would have disclosed.
Hence, where a purchaser of land is in the possession of cer-
tain knowledge or information calculated to induce incpiiry he
will be held to a high degree of care in making his investiga-
tion of title, and be charged with constructive notice of the
facts which he might have ascertained. Thus, if he knows at
the time of his purchase that another person has for years
claimed the land and paid taxes thereon, it is his duty before
making his purchase to go to such claimant and ascertain from
him what title he has; and if he fails to make such inquiry the
rule as first stated applies, and he will hold subject to the
equitable rights of the claimant under an unrecorded instru-
ment.*^^
An unrecorded deed is as effective to transfer title as though
recorded, and subsequent purchasers who take with notice
hold in subordination thereto.*^^
§ 269. Notice of parol agreements. Actual possession of
land under a parol agreement for purchase is notice to all per-
sons dealing with it of whatever rights the possessor has in it;
and a person buying the same from the holder of the legal
title will be treated the same as his grantor, and be subject
to the same duties and burdens.'^'^ But this rule only applies
where there is a visible, open and exclusive possession coupled
with the other incidents; and actual notice of a prior parol
agreement to sell, where the first purchaser is not in posses-
sion under his contract, amounts to nothing, as the subsequent
sale and conveyance is a repudiation of the prior contract
under the statute of frauds, and renders the prior sale void.*^^
§ 270. Notice of fraud. A purchaser of land will be pre-
sumed to have examined the title; and if there was anything
G4 Shotwell v. Harrison, 30 Mich. Lawton v. Gordon, 37 Cal. 202 ;
179. Wilson v. Hunter, 30 Ind. 466;
cr. Redden v. Miller, 95 111. 336. Lamb' v. Pierce, 113 Mass. 72.
GG Maupin v. Emmons, 47 Mo. c- Webber v. Curtiss, 104 111. 309;
304; Finch v. Beal, 68 Ga. 594; Bartling v. Brasuhn, 102 111. 441.
Brinkman v. Jones, 44 Wis. 498; cs pickerell v. Morss, 97 111. 220.
INVESTIGATING THE TITLE. 329
in any liuk ol' llic thaiu ol tille .showiii;; Iriiud, or KUch cir-
ciimstaiices as would put a prudent man on incjuiry for fraud,
lie will be fluir^^cd willi notice of liaiMl if any cxiHted.'''**
>; 271. Possession as an evidence of title. Every purchaser
of land is charj^id with the duty of exercising; dilij;ence in
niakin<jj proper examinations touching the rights and (Mjuities
of others in respect thereto, and must be presumed to investi-
gate the title not only as it may be shown of record, but by
incjuiries in- pais as well.''^ Actual possession, and the use
and occupation of land, furnishes notice sullicient to put all
intending purchasers on incpiiry as to the rights or claims of
the possessor thereof;'^ and when the location is such as to
render personal application to and inquiry of the occupant
practicable, a purchaser failing to do so is no more entitled to
be regarded as a purchaser in good faith than if he had
incjuired and ascertained the real facts in the caseJ- Yet
the protection which the registry law gives to those taking
titles or security upon land upon the faith of the records
should not be destroyed or lost, except upon clear evidence
showing want of good faith in the party claiming their pro-
tection, and a clear equity in him who seeks to establish a
right in hostility' to the record title. Slight circumstances or
mere conjecture should not suffice to overthrow the title of
one who buys with reliance upon the record title; and to
effect such a result there should be ample proof of prior title
or prior equities or circumstances tending to prove such prior
CO Hunter v. Stoneburner, 92 111. Munson, 23 Iowa, 380; Cox v. Pra-
75; but see Munn v. Burgess, 70 ter, 67 Ga. 588; Massey v. Hub-
Ill. 604. bard, 18 Fla. 688; Killey v. Wilson,
70 Littleton v. Giddings, 47 Tex. 33 Cal. 690; Tankard v. Tankard,
109; Russell v. Sweezy, 22 Mich, 79 N. C. 54; Glidewell v. Spaugh,
235; Warren v. Richmond, 53 111. 26 Ind. 319; Westbrook v. Gleason,
52. 79 N. Y. 23; Groff v. Ramsey, 19
"1 Greer v. Higgins, 20 Kan. 420; Minn. 44.
Mechan V. Williams. 48 Pa. St. 241; --'Pell v. McElroy, 36 Cal. 272;
Cabeen v. Buckenridge, 48 111. 91; Williamson v. Brown, 15 N. Y.
Hommel v. Devinney, 39 Mich. 355; Moyer v. Hinman, 13 N. Y.
522; Hawley V. Morse, 32 Mo. 287; 189; Buck v. Holloway, 2 J. J,
Pinney V. Fellows, 15 Vt. 525; Per- Marsh. (Ky.) 180; McKee v. Wil-
kins V. Swank, 43 Miss. 349; Gal- cox, 11 Mich. 358; Lipp v. Land
ley V. Ward, 60 N. H. 331; Phillips Syndicate, 24 Neb. 692. Yet while
V. Castly, 40 Ala. 486; Sears v. the open and actual possession of
330 INVESTIGATING THE TITLE.
rights, which affect the conscience of the subsequent pur-
chaser. Actual notice of itself impeaches the subsequent con-
veyance, wliile ]»i'()of of circumstances, short of actual notice,
which should j)ul a prudent man upon inquiry will authorize
an inference of notice sulTicient to rebut any presumption of
good faith."^
With respect to the character of possession which is suffi-
cient to put a person upon inquiry, and which will be equiva-
lent to actual notice of rights or equities in persons other than
those having a title of record, it is well established by an
unbroken current of authority that such possession and occu-
pation must be actual, open and visible; it must not be
equivocal, occasional or for a special or temporary purpose;
neither must it be consistent with the title of the apparent
owner of record.'''^ All the cases agree that notice will not be
imputed to a purchaser except where it is a reasonable and
just inference from visible facts; and these can only exist
w'here there is an exclusive possession, actual and distinct,
and manifested by such acts of ownership as would naturally
be observed and known by others.^^
In confor-mity to the foregoing principles the doctrine of
constructive notice will not apply to unimproved lands ;'^<'
nor to cases w here the possession is ambiguous or liable to be
land affords public notice of the to impart notice of title thereto
occupant's claim, one who on in- when the grantor, residing on the
quiring of the occupant receives farm when the conveyance was
no information from him is not made, continues so to do and to
ordinarily chargeable with notice exercise some authority over it.
of his equities. Cavin v. Middle- Elliot v. Lane, 82 Iowa, 484.
ton, 63 Iowa, 618. '-' Brown v. Volkening, 64 N. Y.
73 Chapman v. Chapman, 91 Va. 76; Patten v. Moore, 32 N. H. 382.
397. The possession of land, to afford
74 Brown v. Volkening, 64 N. Y. notice of the party's rights, must
76; Norcross v. Widgerly, 2 Mass. be as open, notorious and exclu-
508; Colby v. Kenniston, 4 N. H. sive as is required to constitute
262; Sanford v. Weeks, 38 Kan. adverse possession under the limi-
319; Lindley v. Martindale, 78 tation laws; but it is not necessary
Iowa, 380; Townsend v. Little, 109 that it should have all the char-
U. S. 504. Thus, the possession acteristics of an adverse posses-
of a farm by a woman claiming sion. Smith v. Heirs of Jackson,
title under an unrecorded deed 79 111. 254.
from her son-in-law is insufficient 7c white v. Fuller, 38 Vt. 201,
INVESTIGATING THE TITLE. 331
tiiisiiiwlci-stood;"^ nor to Jiii yiiiiiilKiliilcd or unliiiislMMl dwcll-
iii<;-lioiJS(*;''^ iiiid it has bfcii hvUl that the use of lauds lor
pasturaj,'i' or for cutting of timber is not such an occupancy as
will charge a ixirchascr or iiiciiiiibrauccr with notice^'-* The
geueral rule is (hat, when laud is vacant or unoccupied, no
presumption can arise aj^^ainst the legal title.****
There are a few cases which seem to hold strongly against
the doctrine of constructive notice arising from possession
inerely,8i though admitting such to be comjietent for the con-
sideration of a jury in connection with direct evidence of
actual notice; but the great preponderance of authority sus-
tains the principle that a purchaser from the record owner is
bound to notice the possession of another, and takes subject
to tlie right indicated by such possession.
In every instance, therefore, where the vendor is not in pos-
session, the safe course is to make the inquiry, for the law
will not extend its protection to those who through negligence
or inattention suffer an advantage to be taken of them ; and
while a purchaser of land w^ho examines the records is pro-
tected by them so far as they can protect him, yet he neces-
sarily takes the risk of having the actual state of the title
correspond with that which appears of record.^- The impor-
tance of the inquiry cannot be overestimated in those cases
where a long interval exists between the time of acquiring
title and its offer to the purchaser. In some cases seven years,
" Patton V. Moore, 32 N. H. 382; 78 Brown v. Volkening, 64 N. Y.
Loughbridge v. Borland, 52 Miss. 76.
546; Elliot v. Lane, 82 Iowa, 484. 79 McMechan v. GrifBng, 3 Pick.
Actual residence on land is the best (Mass.) 149; Holmes v. Stout, 10
notice to adverse claimants that N. J. Eq. 419; and see Fassett v.
the land is being held and used Smith, 23 N. Y. 252; Thompson v.
by the occupant as his own. Mar- Burhans, 79 N. Y. 93.
tin V. Judd, 81 111. 488. But facts ^ White v. Fuller, 38 Vt. 201.
indicative of a claim of owner- The person having the legal title
ship may be considered with other is 'always in law in the construc-
circumstances where there is no tive possession of the land, unless
actual residence: thus, the fact he has become disseized. Thomp-
that the party claiming title had son v. Burhans, 79 N. Y. 93.
laid a sidewalk is one proper to **i Pomeroy v. Stevens, 11 Met.
be considered in connection with (Mass.) 244; Glass v. Hurlbut. 102
other marks of ownership. Hatch Mass. 34; Clark v. Bosworth, 51
V. Bigelow, 39 111. 546. Me. 528.
82 Peck v. Clapp, 98 Pa. St. 581.
832 INVESTIGATING THE TITLfi.
and in all cases twenty years, will be sufficient to bar an
apparent title of record when adverse rights have been
ac«iiiired by proper h^<;al inethods; and continuous possession
is almost as essential a showing as unbroken continuity of
record title.
i^ 272. Continued — Character of possessor. Possession by a
tenant is notice of the title of the landlord^^ as well as of the
actual interest of the tenant and the whole extent thereof ;^^
so, too, actual possession by a beneficiary is notice of the
trust,^^ and under the first mentioned doctrine that possession
by a tenant is notice of the rights of the landlord, a grantee of
lands then in the actual and visible possession of a tenant of a
beneficiary, will take with constructive notice of the right
and title of such beneficiary, and of the contingent right of
dower of his wife.^^
§ 273. Continued — Possession of prior vendors. It has been
held that the rule which provides that possession of land is
notice to a purchaser of the possessor's title does not apply
to a vendor remaining in jjossession so as to require a pur-
chaser from his grantee to inquire whether he has reserved
any interest in the land conveyed, and that, so far as the pur-
chaser is concerned, the vendor's deed is conclusive on that
subject.^' So, too, it has further been held that the continued
use and occupation by a grantor of lands which he had pre-
viously conveyed is not evidence that his possession is adverse
to his grantee; on the contrary, his possession is deemed to
be under and in subordination to the legal title held by his
grantee, and that he is estopped by his deed from claiming
that his holding is adverse, and that this rule applies to all
subsequent grantees of such grantor.^^
Undoubtedly the general rule is that the possession of a
grantor is not adverse to his grantee, and that the grantor and
83 Dickey v. Lyon, 19 Iowa, 545. cry, 29 Mich. 68; Bloomer v. Hell-
s' Chesterman v. Gardner, 5 derson, 8 Mich. 395; Newhall v.
Johns. (N. Y.) 29. Pierce, 5 Piclt. (Mass.) 450; Haf-
85Pritchard v. Brown, 4 N. H. ter v. Strange, 65 Miss. 323; Cook
397. v. Travis, 20 N. Y. 400; May v.
86 Bowman v. Anderson, 82 Iowa, Sturdivant, 75 Iowa, 116.
219. ssSchwallback v. R. R. Co. 69
«7 Van Kuren v. R. R. Co. 38 N. Wis. 292.
J. L. 165; and see Abbott v. Greg-
INVESTIGATING THE TITLE. 333
all claiminj,' mulcr him hv a title a((iiiiiv(l Kiil)s<'(iuent to the
jjraiit aie estoi^ped I'l-um <leii_viii^ the ^laiitee'.s title. Yet
this is a most unsafe rule for iiitendin;:; purchasers to rely
upon, foi- uumy circuiustauces may intervene to prevent its
application. \u a uuiiiher of iuslauces i^rantors who had con-
veyed by (juil claim deed only by icmaiuiii;:; iii ])ossession of
tlu' proi«'rty aiul asserting- a hostile claim have been jiermitted
to accjuire a title aj^aiust (heir };iantees by virtue of tlu' stat-
ute of limitations;'*'' while some courts have ludd that a
j^rantor with warranty may, subse(iuent to the delivery of his
y,rant, ori;;inate an adverse possession, and it is not estopped
from asserting the same by the covenant of warranty."^* So,
too, (Miuitable circumstances may ])revent the oj)eration of the
rule, as where a deed had been delivered in escrow until the
price should have been paid by the grantee was put on record
in violation of the agreement, it was held that the possession
of the grantor was constructive notice to a subsequent pur-
chaser from his grantee of all his rights and equities in the
land."^ In any event it would seem that possession of a prior
vendor cannot with safety be ignored, even though he may
have conveyed with warranty; and where he continues to
occupy the premises the better-sustained rule would seem to
be that all persons acquiring title from his grantee are
charged with notice of the claim of the grantor and of his
equitable rights.'-'-
This is in consonance with the established doctrine which
allows possession to have the effect of notice, and the cases
which declare the rule last stated proceed on the ground that
there is no good reason for making a distinction between pos-
session by a stranger to the record title and possession by a
grantor after the delivery of his deed. In either case, it is
contended, the i)ossession is a fact inconsistent with the title
«s shown of record, and if possession by a stranger is sullicient
to make it obligatory upon a purchaser to ascei'tain his right,
possession by a grantor is a circumstance entitled to equal
8» Borland v. Magilton, 47 Cal. v. McEIroy. 36 Cal. 268; Webster
485. v. Maddox, 6 Me. 256; Wright v.
00 Sherman v. Kane, 86 N. Y. 57. Bates, 13 Vt. 341 ; McKecknie v.
91 Bank v. Godfrey, 23 111. 579. Hoskins, 23 Me. 230; Hopkins v.
"-•White V. White, 89 111. 460; Garrard, 7 B. Mon. (Ky.) 312;
Ford V. Marcall. 107 111. 13(1: Poll Eylar v. Eylar. CO Tex. 315.
334 INVESTIGATING THE TITLE.
considciatioii.'''' It is said, that as an absolute deed not only
divests title but also transfers the ri<;lit of ijossession, so a
grantor found in possession after conveyance discloses a fact
inconsistent with the legal effect of his deed and which is sug-
gestive of some right or interest in the premises; that under
such circumstances a purchaser has no right to rely upon
the legal effect of the deed in disregard of this antagonistic
fact.
§ 274. Liens and incumbrances. If a party purchases and
obtains a conveyance of land, having no notice, actual or
constructive, of prior liens and incumbrances, he takes the
land free from the same;"^ on the other hand, a party having
notice of such facts as would put a prudent person on inquiry
is chargeable with notice of other facts to which by diligent
inquiry and investigation he would have been led.^^ If he
takes a conveyance with notice of a prior lien he of course
holds subject to the same, and the land in his hands is charged
with its payment the same as if no conveyance had been
made.^*^
§ 275. Mortgages. The attention of every person making
an examination of title is usually directed toward the ascer-
tainment of the fact of the existence of incumbrances upon
the property by way of mortgage. The means of information
in all ordinary cases is the public records, for the registry of
a mortgage is notice to all subsequent purchasers and incum-
brancers of the lien created thereby .^^ There are cases which
hold that a mortgagee having deposited his mortgage for rec-
ord has thereby discharged his full duty in respect to giving
notice of his lien and his rights thereunder, and is not affected
by any mistakes of the clerk in transcribing; but the better
and, indeed, prevailing doctrine is that a subsequent pur-
chaser is not bound to observe errors of this character, and
that as to him the registry is notice of the tenor and effect of
the instrument only as it appears upon the record.^^ Hence,
93Groff V. State Bank, 50 Minn. oc Dunlap v. Wilson, 32 111. 517;
234; Turman v. Bell, 54 Ark. 273. Martin v. Cauble, 72 Ind. 67.
»* Dunlap V. Wilson, 32 111. 517. "^ Dunlap v. Wilson, 32 111. 517;
9"' Bent V. Coleman, 89 111. 364; Martin v. Cauble, 72 Ind. 67.
George v. Kent, 7 Allen (Mass.), "f^ Stevens v. Hampton, 46 Me.
16. 404; Barnard v. Campau, 29 Mich.
INVESTIGATING THE TITLE. 335
111' is afTcctcd only a.s to llic amouiil of tlic lieu dobt as lucii-
tiontMl in (lie rt'coiil;"" and the land in liis hands, where the
purchase is made in ;;<»o<l failh and withonl notice from otiier
sources, will be chaiy;ed only with the amount expressed on
such record.'
It is a fui'llier rule that where tln'onj^h inadvertence or mis-
take u wronj; descrii»tiou has been inserted in a mort^aj;e the
record will not furnish constructive notice of such mistake
and a jiurchasei* for value, having no actual knowledge o1 such
mistake, will take the land in the condition disclosed by the
record. It often happens that through errors of the draughts-
man a wrong section, town, or range, is given, the effect of
which may be to locate the land many miles away from the
place actually intended. As between the parties this error
would be corrected, but a puichaser in good faith of the land
intended to be mortgaged would be chargeable only with
whatever the record disclosed. In such event, if the purchase
money had been ])aid, he would hold the land freed from the
mortgage lien, and, if onl^- a portion of the price had been
paid would still be entitled to protection as to the amount so
l)aid before notice had been received of the outstanding
equity.2
So, too, where the record shows that a prior mortgage has
been satisfied, or the lien thereof released, even though no
statement aj)pears as to who made such payment, a pur-
chaser having no other notice than that afforded by the record
nuiy assume that the payment was made by the party prinmr-
ily liable and need not extend his inquiry beyond the record.^
§ 276. Judgment liens. After the registry of deeds the next
field for investigation is the court records of uusatistied and
subsisting judgments. This search is of i)rimaj*y importance,
and is a precaution that can never safely be dispensed with in
an examination of title.
164; Miller v. Bradford, 12 Iowa, i Luch's Appeal, 44 Pa. St. 519;
14; Kilpatrick v. Kilpatrick, 23 Miller v. Bradford, 12 Iowa, 14;
Miss. 124. Gilchrist v. Gough. 63 Ind. 589.
0" Terrell v. Andrew Co. 44 Mo. 2 Davis v. Ward, 109 Cal. 186;
309; Peck v. Mallams, 10 N. Y. Sanger v. Craigue, 10 Vt. 555.
519; Dean v. Anderson, 34 N. J. 'Ahem v. Freeman, 46 Minn,
Eq. 508. 156.
336 INVESTIGATING THE TITLE.
The matter of judgment liens is purely statutory; for judg-
ments were not liens upon lands at common law,* and their
efficacy, extent and duration are measured entirely by the
statute which creates them. For this reason nothing more
than a statement of general principles can be made in this
connection.
An examination for judgments is generally made by con-
sulting the judgment docket which should, of itself, furnish
reasonably satisfactory evidence as to whether an incum-
brance by judgment exists against the party from whom the
proposed purchase is to be made or against any of his grant-
ors. Hence, the docket of a judgment, in order to operate as
constructive notice, should contain all the essential matters
required by law and the statute in relation thereto must be
strictly complied with. Any material defect or omission in
this particular will, as a rule, avoid the effect of the judg-
ment as against an innocent purchaser.^
The law, with respect to judgments and the efifect to be
given to them in connection with the rights or claims of per-
sons not parties thereto, is not the same in all of the states.
In many states the doctrine that the general lien of a judg-
ment upon land is subject to any and all adverse equities or
claims, whether secret and unknown, or recorded and known,
prevails; and a previously-acquired equitable interest in lands
has priority over the lien of a judgment against the holder of
the legal title.*^ Where this doctrine obtains a purchaser of
■4 At common law a judgment to deliver to him a moiety of his
created no lien on real estate, nor freehold estate until he should
could it be sold on execution. But have execution of his judgment,
as trade developed, it was neces- This it was held created a lien on
sary to subject land to the pay- the lands of the debtor from the
ment of debts; and accordingly, in test of the writ.
the reign of Edward I. (13 Edw. I. 5 Davis v. Steeps, 87 Wis. 472;
ch. 18), a statute, usually called Hutchinson's Appeal, 92 Pa. St.
the statute cle mercatoriius, was 186; Grouse v. Murphy, 140 Pa. St.
enacted which authorized the judg- 335 ; as, where the statute requires
ment creditor to sue out the writ the "name at length" of each judg-
of elegit, by which the sheriff was ment debtor and the docket omits
required to have all of the debt- middle names or initials; Ridg-
or's goods liable to execution ap- way's Appeal, 15 Pa. St. 177; Terry
praised and delivered to the cred- v. Sisson, 125 Mass. 560.
itor in satisfaction of his debt, c Jones v. Rhoads, 74 Ind. 510.
and if insufficient for the purpose
INVESTIGATING THE TITLE. 337
such interest would undonljtcdly be entitled to protection if
no bad faith intcifercd to vitiate the transaction; but one
wiio takes title to land apparently iniperfeet of record, and
which seems of record to be, as in fact and law it is, subject
to the lien of a judgment, canncjt afterwards, upon learning
that unrecorded deeds have been made, be allowed to claim
title through them in order to defeat the lien of the judj^ment,
when at the time of his puichasc lie had no knowledj^e <jf th<*
existence of the deeds, and supjiosed he was jj;ettin«; the title
as it appeared of recordJ A purchaser of land with knowl-
ed^^c that it is subject to a judgment lien is not a bona fide
purchaser."
Where the lien of a judgment accrues after the execution of
the contract of sale and before conveyance, if the vendee has
been let into possession he will not be chargeable with notice
of such judgment, and in an}' event the lien will attach no
further than the unpaid purchase money remaining in his
hands. Should the purchaser, without actual notice, make the
remaining payments to the vendor, pursuant to the contract,
such payments will operate to discharge the contract and no
lieu will attach to the land.^
The lien of a judgment ceases after a time, and to become
again effective the judgment must be revived, but the general
rule is that until this has been accomplished it exerts no
effect upon the judgment debtor's lands. Hence, a i)urchaser
during the interim would take the land discharged from the
lien nor will the lien of a revived judgment relate back so as
to defeat the title of a purchaser who acquires same between
the date of the expiration of the lien and its revival.^ ^
Where the record of a judgment bears upon its face the
evidence that it has been satisfied, and an innocent jiurchaser,
1 McAlpine v. Hedges, 21 Fed. from the lien of a judgment
Rep. 689. against his vendor, although he
« Cox V. Prater, 67 Ga. 588; but had actual notice of the judgment
see Danielly v. Colbert, 71 Ga. 218. at the time of the purchase. San-
The statute has an important bear- ders v. McAffee, 42 Ga. 250.
ing upon these matters: thus, in o Wehn v. Fall, 55 Neb. 547;
Georgia, a bona fide purchaser of Moyer v. Hinman, 13 N. Y. 180.
real property for a valuable con- i<> 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'<iiiitable lien for purchuHe money, will be charged
with the same trust as the vendee ;i^ for, although the vendee
lidhLs the vendor's deed, reciting full paynient of the purchase
money, yet one dealing with the vendee with reference to
such land, witli knowledge that the purchase money is not
fully paid, is i)ut on inipiiry as to the amount due the vendor,
wliicli would lead to the ascertainment of the extent of the
lien, if not waived; or, if waived, of the. security which the
vendor had taken in lieu of it. If such purchaser, being thus
put on inquiry, fails to make proper investigation, relying on
the vendee's statement or otherwise, he cannot claim jjrotec-
tion against the enforcement of the vendor's equitable lien,^^
or against a mortgage on the lands, executed by the vendee to
the vendor to secure the payment of the purchase money, on
the ground of want of actual notice of its existence.^'' So,
also, if the deed recites that the sale is made on credit, a sub-
sequent purchaser is bound to inquire whether the purchase
nu)iiey has been i)aid; and, notwithstanding that the time for
payment as stated in the deed has passed, there is no presump-
tion that it has been paid. Such a recital is sufficient to
induce inquiry, and must be regarded as notice.
Where the subject of the purchase is only an equity, a still
stronger case is presented; and the fact that a vendor of lands
holds only a bond for title is sutlicient to charge the purchaser
from him with notice of the previous vendor's lien for unpaid
purchase money.^o
§ 280. Real estate charged with legacies. Where title is
deraigued through devise a purchaser from the devisee or those
claiming under him is impressed with the duty of ascertaining
the extent of the devisee's title and the manner of its invest-
ure. Notwithstanding that the land may have been specific-
post, for a full discussion of the an incumbrance upon land is suffi-
subject. cient to charge him with notice;
17 Graves v. Coutant, 31 N. J. Eq. and when such information comes
763. to the knowledge of a purchaser
18 Deason v. Taylor, 53 Miss. 697. the law requires him to pursue it
10 Foster v. Stallworth, 62 Ala. until it leads to notice. iEtna Ins.
547; and see Neal v. Speigle. 33 Co. v. Ford. 89 111. 252.
Ark. 64. Any notice or circum- -o Newsome v. Collins, 43 Ala.
stance that tends to give notice 656; Haskell v. State, 31 Ark, 91.
or informs a party that there is
340 INVESTIGATING THE TITLE.
ally devised it may be hampered with, conditions or charged
with legacies and payment of debts.
Legacies are primarily payable out of the personal estate of
the decedent, and never out of the real estate, unless there is
an express direction to that effect contained in the will, or
unless an intention thus to charge may fairly be implied from
the language used.-^ liut a testator may exonerate his per-
sonal estate entirely and subject his realty alone to the bur-
den; and when it clearly appears from the whole will that
such was the testator's intention, the real estate will be the
primary fund.--
While the earlier decisions would seem to indicate that a
legacy could not be declared a charge upon realty unless so
expressly stated in the will, the tendency of modern authori-
ties is to place this matter on the same plane as other testa-
mentary provisions; and the intention of the testator forms
the governing consideration, regardless of technical rules.
This intent will be effectual when found to exist in any form;
and while a mere direction for the payment of debts and lega-
cies will not alone create a charge,^^ jet when the testator
directs his debts and legacies to be first paid and then devises
real estate; or where he devises the remainder of his estate,
real and personal, after the payment of debts and legacies; or
devises real estate after such payment, — it has been held that
the real estate is charged.^^
§ 281. Real estate charged with debts. It is the policy of
the law to protect the just claims of creditors of a decedent
by subjecting the lands and tenements of which he died
seized to their payment. The proper presentation and proof
of such claims, in effect, raises a lien upon the lands, and
other real property of the deceased, which may be enforced
upon the failure of the personal assets in the hands of the
executor or administrator. An inquiry is therefore imposed
upon intending purchasers as to the condition of the title of
21 Reynolds v. Reynolds, 16 N. Y. ris v. Douglas, 64 111. 472; Quinby
259; Lynes v. Townsend, 33 N. Y. v. Frost, 61 Me. 77; Davis' Appeal,
562; Geiger v. North, 17 Ohio St. 83 Pa. St. 348.
568. 23 Lupton v. Lupton, 2 Johns. Ch.
-'2 Nash V. Taylor, 83 Ind. 349; (N. Y.) 614; Rogers v. Rogers, 1
Boylan v. Meeker, 28 N. J. L. 300; Paige (N. Y.), 190.
Heslop v. Gatton, 71 111. 530 ; Har- 24 Lupton v. Lupton, 2 Johns. Ch,
INVESTIGATING THE TITLE. 3il
an heir or devisee, wlieii oll'ered by them, and all doubts that
may arise should be resolved before the purchase is consuiii-
iiiated, I'nless the estate has been properly closed and the
administrator dischar<,a'd after an accountiuj;, the title cannot,
in a just sense, be considered marketable, as some doubts
growing out of the possible unsatisfied claims of creditors
must exist. The duty of imjuiry is even more impc rative
where title is asserted by the heir of an estate in which no
probate i)roceedin<j;s have been taken.
The lien of a creditor is not perpetual, liowever, and may be
barred by long delay or inexcusable laches. As a rule no
statutes of limitation have prescribed the time within which
land must be sold to pay debts of the estate, and a wide dis-
cretion is, for this reason, reposed in the courts. It has fre-
quently been said that such lien must be asserted within a
reasonable time, but this furnishes no guide, for what is a
^treasonable time" has never been defined and rests wholly
within the judgment, or even caprice, of the tribunal to which
the question is presented. The circumstances of particular
cases are so widely variant as to confuse rather than direct,
and the only positive statement that can be made is that the
creditor should move prom})tly and without unnecessary
delay; failing in this he will be held to have waived his lien
and a grantee from the heir will take title discharged there-
from.-^
The earlier cases seem to have drawn the line with respect
to laches much more strictly than later decisions, yet, as the
circumstances of each case govern largely in the result
arrived at, they furnish but poor precedents in the promulga-
tion of any general rule. Each case is made to depend, in a
great measure, on its own particular circumstances, therefore,
a reasonable time in one might, in view of the situation, be
very unreasonable in another. ITence we find a widi' range in
the decisions. One case lays down the rigid rule that an unex-
plained delay of one year will justify the refusal of a court
to grant an application to sell for the payment of debts.-*^
(N. Y.) 614; Reynolds V. Reynolds, Hatch v. Kelly, 63 N. H. 29; Lid-
16 N. Y. 259; Fenwick v. Chap- del v. McVickar, 11 N. J. L. 44;
man. 9 Pet. (U. S.) 470. Gunby v. Brown, 86 Mo. 253; Es-
s."' McCoy V. Morrow, 18 111. 519; tate of Crosby, 55 Cal. 574.
Mays V. Rogers, 37 Ark. 155; -« Mooers v. White, 6 Johns. Ch.
342 INVESTIGATING THE TITLE.
Ill another, seven years was considered an abandonment of
the right to sell.^^ Ten years, in another, was held to extin-
guish the lieu,-'' but the same court, u])()n different circum-
stances, held that a delay of twenty years was not unreason-
able in view of the facts shown.^^
Tliat such a condition of the law must be productive of
much hardship requires no demonstration; that to a consid-
erable extent it renders titles insecure is apparent. For these
reasons the tendency of courts during recent years has been
to base the rights of creditors upon terms corresponding to
the statutes of limitation and by analogy to those statutes to
fix periods within which such rights must be asserted. The
convenience of the mercantile world, the policy of protecting
innocent purchasers, and the security and repose of titles
honestly acquired, demand some limitation of this charac-
ter, and the doctrine is tinding general acquiescence.^'^
In probated estates these questions do not ordinarily arise
after final settlement, for, as a rule, the administrator is
required to show a satisfaction of all proved claims before
securing his discharge, and usually a claim not presented
during the period limited for this purpose is barred.
§ 282. Easements and servitudes. It is a general rule that
parties are presumed to contract with reference to the condi-
tion of the property at the time of sale. This is undoubtedly
true; yet to affect a purchaser with notice of an easement in
favor of an adjoining owner the easement, unless a matter
of record, must be obvious and apparent to an^^ observer. An
apparent sign of servitude must exist on the land purchased;
or, as expressed by some of the authorities, the marks of the
burden must be open and visible.^^
§ 283. Pending litigation. One who buys an estate pending
a suit involving the question of title thereto will be consid-
ered a purchaser with notice, although not a party to the
suit, and he will be bound by the judgment in the action just
(N. Y.) 360; the opinion is by Wheat. (U. S.) 59; Sujpner v.
Chancellor Kent. Child, 2 Conn. 607; McCoy v. Mor-
27 Hatch V. Kelly, 63 N. H. 29. row, 18 111. 519; Gregory v. Rho-
28 Mays V. Rogers, 37 Ark. 155. den, 24 S. C. 90; Bishop v. O'Con-
29 Killough V. Hinton, 54 Ark. ner, 69 111. 431.
65. •■'1 Ingals v. Plamondon, 75 111.
30 See Ricard v. Williams, 7 118.
INVESTIGATING TIIE TITLE. 343
as the party from whuiii he buu^^lil would have bi*eu,''- It is
imniatoi'ial vvhotliei' siicli purcliasor had actual notice of the
suit, for the ruh* is that every person who buys property
under such circumstances is conclusively ])resumed to have
notice of the pendinjj; litij^ation;^^ and, notwitlistandin;; that
the rule in its application may sometiuies ])roduce apparent
hardships, it is always strenuously enforced. It is stated, as
the reason of the rule, that if it were not so applied there
would practically be no end to a litij^ation, and that the justice
of the court would be continually evaded, thus producing; a
j^reater hardship and inconvenience to the suitor ;^^ while the
justness of the rule is further ai)parent when it is considered
that to brin<; home to every purchaser the charge of actual
notice of the suit must, from the very nature of the case, be
in many instances in a great degree impracticable.^^
The fact that the purchaser buys in ignorance of the suit
and pays an adequate price for the property in no way serves
to relieve him from the consequences of his acts; the con-
veyance in any event is so far a nullity that it can avail him
nothing as against the title established in the pending suit;
and, although there has been no actual fraud, the purchase
will still be set aside on the ground of implied fraud.^*^ The
most that a purchaser under such circumstances can acquire
would be the interest remaining in the vendor after the
demands of the adverse party, as ascertained by the pending
trial, shall have been fully satistied.'*'^
It is to be observed, however, that the application of the
rule that a purchaser of property in litigation is bound by the
judgment or decree made is contined to property directly in
litigation; to property so described in the pleadings as to
32 Allen V. Poole, 54 Miss. 323; Parker v/ Conner, 95 N. Y. 118;
Rollins V. Henry, 78 N. C. 342; Knowles v. Ratlin. 20 Iowa. 101.
Norton v. Birge, 35 Conn. 259; •>* 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<!:ht to
claim and dispose of the estate which forms the subject-mat-
ter of the nej^otiation. For this purpose the vendor would
most naturally i)roduce his muniments of title — the deeds or
matters in writin<i upon which he founds his claim of owner-
ship. But as the arrangement and perusal of these documents
must often occasion much loss of time, a practice grew up in
England during the latter part of the eighteenth century of
making an orderly S3'nopsis of all the material and operative
parts of the instruments which constituted the vendor's chain
of title; and this synoptical chain, called an abstract of the
title, was given to the vendee prior to the consummation of
the contract, in order 1o expedite his labors in the examination
of the vendor's proprietory rights.
This practice of the English conveyancers was adopted by
the legal ])rofession in Anu'rica, and soon became of even
more importance here than in the country of its origin, for
the reason that title deeds are rarely preserved for any length
of time, and could not in many instances be jjiodiiced — the
public records being regarded as the greatest depositorii's of
title, and the individual i)aying but little attention to his
muniuu'uts aftei- they had once been transcribed. To search
the records, even while il might be an imj)erative legal duty,
was nevertheless a task of such herculean i)roportions as to
render it in many cases absolutely iniiiossil)le; and so a dis-
347
348 THE ABSTRACT.
tinct braueli of k'{,'al ijiactitiouers has been gradually devel-
oped whose sole duty is, by properly-prepared indices and
references, to procure and furnish from the public records the
same general and special iuformatiou that the English con-
veyancer culled from the original instruments in his hands,
the work of the American practitioner retaining the same
name that had been given to its English prototype, viz., an
abstract of the title.
The American abstract differs in many particulars from
that in use in England, being far broader in its scope and
extending its inquiries not only among all classes of docu-
ments and papers that may disclose claims or equities, but
also to the judgments and decrees of courts of record, and to
such liens as may be created by any of the municipal agencies
of the state. When properly prepared it constitutes an almost
indispensable adjunct to every contract of sale, and its produc-
tion is usually made a condition precedent in all agreements
for conveyance.^
§289. Duty of furnishing abstract. In England a pur-
chaser may, it seems, require to be furnished with an abstract
of the seller's title, even though he may have already agreed
to accept the same, and may retain such abstract during the
negotiations upon, and even after rejection of, the proffered
title, until the dispute is finally settled, for the purpose of
showing the grounds of such rejection.^ It will be remem-
bered, however, that an English abstract is frequently only a
digest of the title deeds and muniments relied on by the
vendor to establish his claim, and which invariably accom-
pany the abstract for examination and comparison. The
abstract so furnished, therefore, is rather in the nature of a
well-arranged index to accompany documents, and is prepared
primarily for their more convenient and systematic perusal.
An American abstract, on the contrary, is intended to furnish
within itself a full exposition of title, and to obviate the neces-
sity of referring to the original sources of information. In
1 The author modestly calls the this important subject, and sug-
attention of those of his readers gests that its perusal could be most
who may desire to pursue this sub- advantageously made in connection
ject more in detail to his own with the present work,
work on "Abstracts of Title," be- 2 See 2 Sudg. Vend. *39; Dart,
ing the only American work on Vend. (Am. ed.) 130.
THE ABSTRACT. 349
the fomuT casi' the deeds and in liniments are in the hands or
under llie contiol ol' I he \('n«h»r, and the reason of the Enf^lish
rnh' is obvious lioni this fact ah)ne. lint in the Tnited States
tlie (hanjicd conditions of the evidences of title, tlie actual and
const iiict ive notice iuijiarted b_v re^^ist lat ion, and the access
which the jjurchaser has to information conceinin}^ the title,
would seem to render inoperative the Knjiiisli inle by remov-
ing the reason which occasioned it; and, wliile it is custom-
ary in (his country, as in Enj^land, foi- the vendor to prepare
and furnish an abstract of title, either i)endinj^ or after con-
summation of the sale, it does not appear that this can be
demanded as a matter of ri^lit, but is rather the result of the
contract or conditions of sale.
In England, where titles are not registered, save in a few
counties, the vendor, in order to show j)erformance or an offer
to perform on his part, whether in an action at law for the
purchase money or a suit in equity to compel performance by
the vendee, must allirmatively prove his title. In this coun-
try, where titles are matters of record, and at all times open
for inspection, a different rule prevails. This doctrine has
often been asserted in actions by the vendor for the purchase
money ;^ and it has been expressly held, in equity, that a ven-
dor may rely upon his tender of conveyance without producing
the evidences of his title, the burden being upon the pur-
chaser to show such a defect as would justify him in refusing
to accept the deed.^
It would seem, therefore, that where the parties do not stip-
ulate that the condition of the title shall be ascertained from
any particular abstract, or from an abstract to be furnished
by the vendor, it is incumbent on the purchaser, should lie
desire to avail himself of this assistance, to provide the
abstract himself and to satisfy himself as to the condition of
the title.5
>; 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 '<j^ood and sufficient'
abstract?" has been the subject of much heated controversy
among real estate brokers and attorneys. The former class,
as a rule, care little about the abstract, which they are ever
inclined to regard with suspicion, and consider as the most
dangerous ingredient that enters into the composition of the
trade. Should it be rejected by the attorney who has been
selected to "pass the title" as insutiicieut or unreliable, a dis-
agreeable hitch ensues, and the negotiation itself must often
be abandoned.il No efifort has ever been made to settle this
much-vexed question by a statutory enactment, and from the
peculiar nature of the subject probably no movement in this
direction will ever be made. Indeed, none can be made with
advantage; and the question can best be settled, if at all, by
10 Easton v. Montgomery, 90 Cal. rejection of these various classes
307. of abstracts when presented for
11 "It has been found that the ab- acceptance by borrowers and sell-
stracts of title upon which trans- ers; abstracts which readily pass
fers are made are of many different current with many being rejected
kinds and of widely-varying value as valueless by others. From this
— originals from numerous private lack of uniformity arises constant
firms and from the county re- friction and confusion; in many
corder — copies written and print- cases heavy expenditures are en-
ed, certified and uncertilied, is- forced upon unfortunate owners in
sued by abstract men, printers, replacing rejected abstracts with
lawyers, notaries and real estate acceptable ones; sales are broken
men. It has been found that there up, owners disgusted with real es-
is a wide diversity of practice on tate; agents dissatisfied over the
the part of our agencies and the loss of time and commissions, and
attorneys as to the recognition or attorneys in previous cxamina-
352 THE ABSTRACT.
the institution and maintenance of a uniform custom. In
l)oi)ulous cities real estate boards, acting? in concert with the
bar, may do mudi to definitely settle local usajjes by prescrib-
ing conditions or delininj; terms. In other places bar asso-
ciations might advantageously decide what shall and what
shall not be taken as a "good and suflicient" abstract in their
respective localities. No judicial decisions directly involving
the point under consideration are known to the writer, or
could, on diligent search, be found,
(Jenerally considered, a stipulation to deliver a good and
sufficient abstract is fully complied with where the synopsis
furnished purports to be a full search through the jjublic
offices,!- jg arranged in an orderly manner for x)erusal and its
correctness is certified by some person of known skill and
undoubted financial responsibility. More than this could not
reasonably be demanded; but it would seem that, for the
double purpose of convenience and safety, nothing less should
be accepted.
I'ublic officials, usually the recorder of deeds or the person
having the official care and custody of real estate records, are
in some states empowered by law to prepare and furnish
abstracts of the records, certifying the same under their hands
as such officers, and attesting their certificates with the seal
of their office. Compilations so made are generally regarded
as ''regular," and taken to be a full compliance with the stipu-
lation to furnish a good or merchantable abstract. Expe-
rience has demonstrated, however, that the best and most
satisfactory work is done by private persons or firms exclu-
sively engaged in the business of furnishing abstracts, pro-
vided their certificates are backed by sufficient financial ability
to respond in damages for error or omission.
§ 294. Originals and copies. The worth or worthlessness
of an abstract is often judged by its character as an original
examination or as a copy of the same. Strictly speaking, an
tions annoyed and embarrassed at his own indexes to the public rec-
the throwing out of abstracts ords, but this distinction is verbal
passed upon by them." Extract only and in no way lessens his lia-
from Committee Report to Chicago bility in case of an incorrect or
Real Estate Board, 1887. insufficient statement of the condi-
12 The examiner usually certifies tion of the title,
that his examination has been of
THE ABSTRACT. 353
"original" is the first manuscript work iiiiidc diicctlj from
tlic i»iil)lic' records; but as private indices liave now come into
•^('ueral use to siuiplify aud systematize the making of
abstracts, the compilations made from these indices by the
owners are generally I'cgarded and taken as "originals."
Duplicates aud copies of these originals, made and certified
by the maker of the originals, are for all intents and purposes
as good as such originals, and may fairly be classed with them.
An abstract in either of the above forms, possessing the inci-
dents prescribed in the preceding section, is in every sense of
the word "merchantable," and should satisfy any reasonable
purchaser. J>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 a<laj)tation of the methods of
the English conveyancers, it is not uncommon in some parts
of the count ly to find abstracts comjiiled on this plan — that
is, "an abstract of the title of .Jno. Smith to," etc. A properly-
prepared abstract shows the true condition of the title, and
the oOice of counsel, to whom the abstract is intrusted for
examination, is to decide in whom the title vests. A purchaser
examining the records must observe everything that lies in
the apparent course of title, and in most cases everything
that in any way implicates it, whether adverse or consistent
with the ownership of the vendor. This the abstract should
show. The judgments, decrees and orders of courts, when
they affect the title directly or collaterally, are also of the
highest importance, and frequently the anterior proceedings
which culminated in such judgments or decrees; while tax
levies, assessments and liens and sales made thereunder are
e(pially important. These comprise the essentials of an
abstract, and the omission of any of them is to render the
abstract imperfect.
In addition thereto further information may be required by
counsel, which is usually furnished by the vendor from other
sources than the public records. Thus, in the case of titles by
descent, the proof of heirship upon the probate of the ances-
tor's estate takes the place of the pedigrees so often annexed
to English abstracts; but if there has been no probate, the
infonnation must be supplied bj' other means. Generally this
is accomplished by attidavits of persons cognizant of the facts.
So, also with respect to marriages. It is onl}' during very
recent years that any systematic attempt has been made on
the part of the state to collect and preserve, in the fonii of
authoritative records, any data with respect to the social or
domestic relations of its citizens. Marriage registers have
usually been kept as part of the parochial records of many
denominational churches; and, for want of better evidence,
entries made in such registers have been received as evidence
of the facts they purport to state. State registration has been
established in many states, and greater pains are now gen-
erally used to i)reservc reliable data of births, deaths and
35G THE ABSTRACT.
luaniajii's;^'* yet, even where such rej;isteis are kept, the
iuforniation they furnish must often be supplemented by
evidence aliunde in order to show identity of person. This
evidence usually takes the form of an affidavit reciting the
facts. Such affidavits, being only ex parte statements, and
because not being made under the sanction of a court or in
any legal proceeding, are not strictly evidence for any pur-
pose, yet, being usually all that can be adduced, they are
resorted to by counsel under a choice of difficulties, and have
been, as it were, by common consent of the profession, adopted
as competent proof in the examination of titles and the testi-
mony taken as corroborative evidence of general reputation,
etc. Again, such affidavits, though inadmissible under the
rules of evidence, are valuable from the reason that they show
that living persons can at the time establish the facts therein
recited.
§ 296. Root of title. There must of necessity be some definite
point at which an examination of title should commence, and
beyond which it should not necessarily be extended; but in
the United States there is no rule, nor can there be said to be
any general custom having the force of a rule, which provides
with any degree of certainty how far back an examination
should extend. It was fonnerly customary in England to
commence at some agreed point in the history of the title
sixty years back, and Mr. Sugden and other English writers
announce this as a general rule; but recent legislation in that
country has considerably abridged the period of limitation^
and, by so doing, removed the necessity of the rule.^^
13 Such records when made and years shall be substituted as the
kept pursuant to law, are received period of commencement of title
as presumptive evidence of the which a purchaser may require in
marriage, birth or death so re- place of sixty years, the former
corded. State v. Wallace, 9 N. H. period of commencement, but with
515; Milford v. Worcester, 7 Mass. a proviso that earlier title than
48; State v. Potter, 52 Vt. 33; Niles forty years may be required in
V. Sprague, 13 Iowa, 198. cases similar to those in which
n In England, by statute (37 and earlier title than sixty years was
38 Vict. ch. 78), on the completion required.
of any contract of sale of land Upon a sale of leasehold prop-
made after December 31, 1874, and erty, without any condition pro-
subject to any stipulation to the tecting the vendor against the pro-
contrary in the contract, forty duction of deeds, the vendor is
THE ABSTRACT. 357
Wlu'iicvci- piactirablc tlu' absUact should disclose the incep-
tion of tillc, iiTesiK'ctivc of lime; l)iit where this cannot be
readily done, it should coninience willi some well-authenticated
fact at some period lemote enouj^h to cover any adv<'rse inter-
est or equity lliat (ituld successfully be asserted. This period
wouhl, of course, he tixed with reference to the statutes of
limitation. Thus, ten y«'ars, and in souie states seven years,
would be sufticient to cover jud^uient liens, and possibly some
other classes; while twenty years, which is the term during;
which actions will lie for the recovery of lands, wcuild in a
majority of cases be sulTicient, 15ut, as the disability of
parties, interveninjj; estates, aud other circumstances mij;ht
be sutticient to prevent the statute from runninj,', whatever
point is selected as the root of title, great care must be
emjdoyed. and exigencies will arise in the course of many
titles that would justify the rejection of the same when a
period of not more tlian twenty years is covered by the search.
§ 297. Perusing the abstract. Mr, Sugden, among his many
excellent suggestions relative to examinations of title, says:
*'The perusal should, if the length of the abstract will j)erniit
of it, be finished at one sitting, although any diflficult point of
law, the whole bearing of which is not ascertained, may i)rop-
erly be reserved for further and separate consideration. "^^^
He further suggests that it may be well to glance over the
abstract in the first place in order to obtain a general view of
the title, and that experience will rapidly point out when a
subsequent part of the abstract may be looked into before its
proper turn; but that, generally speaking, an abstract should
be perused but once, and that once effectually. It will be
remembered, however, that the abstract to which Mr. Sugden
referred was very ditl'erent in its general complexion and
make-u]) from the abstracts now in curri'nt use in this country,
and was invariably accomjianied by the muniments which it
professed to exhibit. The ditTerence in the plan of comi)i!ati()n,
as well as the etfect of the instruments with reference to regis-
tration, notice and other incidentals not common to the English
bound to produce the lease which »s 2 Sugd. on Vend. (8th Am. ed.)
is the root of his title, although 9.
the lease is more than sixty years
old.
358 THE ABSTRACT.
abstracts, renders a somewhat dillereut course necessary from
that pointed out by Mr. Sugden. Whether the abstract be
long or short, and the title simple or complicated, a general
perusal, in order to obtain a preliminary view, should first be
made. This perusal is only to establish the fact of an apparent
chain of title from its source — the government — or from some
person proposed in wiiom an indefeasible title is assumed to
have been vested. To assist in arriving at a correct estimate
an analysis of the abstract must always be made in intricate
cases, and the same will be found useful in every case. Having
established the fact of apparent title extending in unbroken
sequence from the initial point to the j^erson by whom it is last
asserted, a critical review of every remove^ ^ must then be made
to determine its effect and validity in much the same manner,
and for much the same jjurpose, as the English counsel exam-
ines the muniments. All defects, whether of form or sub-
stance, are noted upon the analysis just mentioned, together
with notes of discrepancies, queries, objections and requisi-
tions for further information. It would be unwise, however,
to lay down any unvarying rule for a matter of this kind.
Men's minds are not alike, and the methods that insure the
best results in the case of one may be entirely inadequate in
the case of another. The counsel's personal professional habits
will, after all, be the best guide.^'^
i« For want of a better name, from the beginning, and referred
each link in the chain, whether by to by number whenever occasion
deed, will, mortgage, lease, etc., calls for reference,
is called a "remove;" and the re- i^ gee Warvelle on Abstracts,
moves are all numbered seriatim 612.
CHAPTER XI.
OBJECTIONS TO TITLE.
Legal title outstanding in
trustee.
Title acquired in violation
of trusts.
Party-walls.
Unopened streets.
Clouds upon title.
Purchase with notice of de-
fects.
Variance and discrepancy
— Flaws.
Stipulations for failure of
title.
Undertakings in respect to
title.
Immaterial defects.
Waiver of objections to
title.
Effect of delay in making
objection.
Defects in the subject-mat-
ter.
!^298. Generally considered. The object of au abstract of
the title is to facilitate iuvestigation, and to enable intending;
purchasers to acquaint themselves with the condition of the
title they propose to buy. It takes the place of an examina-
tion of the records, and is supposed to disclose all the informa-
tion material or necessary to a ])ro])er understandin<2: of the
vendor's claim of ownership. The duty of invest ijjation is
imposed by law and cannot be avoided; and if the purchaser
sees fit to forepjo such examination he does so at liis i)eril, and
cannot be heard to disclaim any knowledjjje which such exam-
ination would have afforded.^ \Yhether such investi<^ation be
made by inspection of the records or by a perusal of the
abstract, it is a further duty of the purchaser to note all such
1 Every man purchases at his the title and competency of the
peril, and is bound to use some seller. It will not answer to rest
reasonable diligence in looking to upon mere reputation or belief,
359
298.
Generally considered.
§319.
299.
A marketable title.
300.
"Satisfactory" title.
320.
301.
"Good" title.
302.
Title as affected by attor-
321.
ney's opinion.
322.
303.
Claims of title.
323.
304.
Title of record.
324.
306.
Title by adverse possession.
307.
Ancestral titles.
325.
308.
Spurious deeds.
309.
Hazard of litigation.
326.
310.
Pending litigation.
311.
Unsatisfied judgment.
327.
312.
Outstanding incumbrances.
313.
C n t i nued — Unsatisfied
328.
mortgage.
329.
314.
Unpaid taxes.
315.
Unreleased dower rights.
330.
316.
Dowress' death.
317.
Title subject to defeasance.
331.
318.
Trusts and other equities.
3G0 OBJECTIONS TO TITLE.
facts as may toud to show imi)aii'iiR'iits, defects, flaws or other
imperfections of title, and to found objections upon them.
He is entitled to satisfactory explanations, and has the right
to call upon his vendor to make good any defects. This is
accomplished by what are technically termed ''requisitions."
If a descent is shown, but not in a satisfactory manner, and a
subsequent deed executed by the heirs at law of the person
last seized, a requisition should be made for further evidence
touching the legitimacy of the claim of title thus asserted.
Partitions among heirs by the mutual interchange of deeds
call for inquiry where a minor's rights may be affected; deaths
and marriages, claims for dower and a number of like incidcnits
may all call for inquiry, and serve as proper foundations upon
which to lodge objections.
The general subject of this chapter is inseparably connected
with that of specific performance, and the details of the sub-
ject as hereinafter developed are, in the main, properly classed
with the different phases of the law relating to specific per-
formance and rescission whenever those subjects are treated.
But inasmuch as objections are usually made at or about the
time of the examination of the title, they seem to follow in a
sort of logical sequence at this stage of the work; and it is
hoped that the indulgent reader will see no incongruity in
the introduction of the subject at this time, but will kindly
permit this chapter to supplement the succeeding chapters on
specific performance and rescission, despite the fact that it
precedes them in the order of arrangement.
The terms of the contract of sale will, in many instances,
determine the question of title when raised; but ordinarily,
while a purchaser will not be compelled to accept a title
palpably defective, he cannot justify his refusal to accept by
mere captious objections; nor is it sufticient for him, when the
jurisdiction of a court is invoked to compel him to perfonn
his contract, merely to raise a doubt. A defect in a record
title will, under most circumstances, furnish a defense to a
purchaser, particularly where it affects the value of the prop-
erty or would interfere with its sale, and thus render it
unmarketable ;2 but there is no inflexible rule, in the absence
unless the party intends to rely 2 Shriver v. Shriver, 86 N. Y.
upon his covenants alone. Havens 575. If a written contract for the
V, Bliss, 26 N. J. Eq. 363. sale of land contains all of the
OBJECTIONS TO TITLEJ.
3G1
of stipulations to the conlraiy, that a vciulor iinisl furnish a
perfect title of record, and it has frecjueutly been held that
defects in the record or paper title may he removed by ])arol
eviilcnc*'.-' AVhcre, however, the title depcnils upon facts
incapable of satisfactory i)roof, or if capable are not so proved,
objections will properly lie, and the j)urchaser will be under
no oblij,'ation to comi)lete his contract.
§299. A marketable title. In the absence of any stipula-
tions relative to the character of the title to be conveyed, a
''marketable" title is always presumed; that is, a title free
from flaws or serious defect, and of such a character as will
assure to the purchaser the quiet and peaceable jjossession of
the property.-* Huch a title should extend to show a full and
perfect ri<iht of property and present possession vested in the
vendor ;5 it should embrace the entire estate or interest sold,
which, unless otherwise specified, should be the fee," and that
free from the lien of all burdens, charges or incumbrances."
It should not only be free from litigation,^ but from palpable
defects*^ and grave doubts.^^ It should further consist of both
the legal and ecjuitable titles,^ ^ and be fairly deducible of
record. 12
It is believed that the foregoing enumeration fairly answers
all the reasonable recjuirements that go to constitute a mar-
ketable title, particularly as this term is understood in the
United States; but it must not be inferred that a title to be
other requisites necessary to give
it validity and to make it binding
on the vendor, the law will imply
an agreement by him that he has
and will give to the purchaser a
good title. Winn v. Henry, 84 Ky.
48.
3 Hellreigel v. Manning, 97 N. Y.
56.
4 Barnard v. Brown, 112 Mich.
452.
5 Delevan v. Duncan, 49 N. Y.
485; Davis v. Henderson, 17 Wis.
105; Jeffries v. Jeffries. 117 Mass.
184.
oTaft v. Kessel, IG Wis. 273;
Powell v. Conant. 33 Mich. 396.
7 Roberts v. Bassett, 105 Mass.
407; Jones v. Gardner, 10 Johns.
(N. Y.) 266; Davidson v. Van Pelt,
15 Wis. 341.
s Speakman v. Forepaugh, 44 Pa.
St. 363; Jordan v. Poillon, 77 N.
Y. 518.
" Smith v. Robertson. 23 Ala.
312; Holland v. Holmes, 14 Fla.
390; Jenkins v. Fahey. 73 N. Y.
355.
10 Scott v. Simpson, 11 Heisk.
(Tenn.) 310; Moore v. Appleby.
108 N. Y. 237.
1' Taft v. Kessel. 16 Wis. 273.
1^ Martin v. Judd, 81 111. 488.
3G2 OBJECTIONS TO TITLE.
marketable must possess all of the incidents mentioned. Thus,
ji title may be marketable although depending on presumption
grounded merel}^ on the lapse of time, a clear adverse posses-
sion for twenty years making a title which, in many instances,
a purchaser may not refuse.^^
But in every instance, however the title may be derived, it
must be free from reasonable doubt.^^ If it is open to judicial
doubt it is not marketable, although what is sufficient ground
for judicial doubt is not to be conclusively reduced to fixed
and determined principles; for that depends in some degree
upon the discretion of the court. A title may be doubtful
because of the uncertainty of some matter of fact appearing
in the course of the deduction of it; and if, after the vendor
has produced all the proofs that he can, a rational doubt still
remains, the title is not marketable.^^ A purchaser will not
be compelled to complete his purchase where there is some
reasonable ground of evidence shown in support of an objec-
tion to the title, or where the title depends upon a matter of
fact which is not capable of satisfactory proof, or, if capable
of that proof, yet is not so proved.^ ^ Nor will the courts
compel the specific performance of a contract by the purchaser
where the validity of the vendor's title depends upon a doubt-
ful question of law, where others having rights dependent
13 Sherman v. Kane, 86 N. Y. 57
Ford V. "Wilson, 35 Miss. 504
Grant v. Fowler. 39 N. H. 104
Schall V. R. R. Co. 35 Pa. St. 191
i-iBensel v. Gray, 80 N. Y. 517
Jeffries v. Jeffries, 117 Mass. 184
Ludlow V. O'Niel, 29 Ohio St. 182
Morrison v. Kinstra, 55 Miss. 76
Hodges V. Eddy, 41 Vt. 485; Sim- Powell v. Conant, 33 Mich. 396
son v. Eckstein, 22 Cal. 580; Vreeland v. Blauvelt, 23 N. J. Eq.
Walker v. Ray, 111 111. 315; De- 483.
Long v. Mulcher, 47 Iowa, 44; Du- t--' It seems that a rational doubt
pont V. Starring, 42 Mich. 492. may be said to exist when a court
Thus, specific performance of an of law would not feel called upon
agreement to buy land will be en- to instruct a jury to find that the
forced where the title is based on fact existed on the existence of
adverse possession and payment of which vendor's title depends. Em-
taxes for nearly sixty years, there ery v. Grocock, 6 Madd. (Eng. Ch.)
being no outstanding minorities 54; and see Moore v. Williams, 115
which could be set up in support N. Y. 586; Gregory v. Christian, 42
of the paper title against which Minn. 304.
the adverse possession was held. ic Shriver v. Shriver, 86 N. Y.
Ottinger v. Strasburger, 33 Hun 575.
(N. Y.), 466.
ODJECTlONS TO TITLE. 363
lijioii Ihc same (incstioii arc not jjai'tics to tlic action.'^ On the
((thci- liand, an objcdion rannot be fonndctl on nnsnl)stantial
ti'itles;'*' and a bare possibility that the title may be alTected
by the cxislin^ cansi'S wliicli may snbscqnontly ]»(* devchjix-d,
wlicn the liiuhcsl evidence of which tlie case admits, amonnt-
in^' to a moral cerlainly, is ^iven that no such cause exists,
is not to be i'e;;arded as a snlticieut <^n"onnd for a refusal to
perform the conti'acl.^'*
So, too, while the rule is general, that a disputable fact not
determined by the jud<;nient in the action is a bar to the
enforcement of the sale, sncli rule cannot be said to be abso-
lute. In its application a discretion is, to some extent, vested
in the court; and if the existence of the alleged fact which
is supposed to cloud the title is a possibility merely, or the
alleged outstanding right is a very improbable and remote
contingency, which, according to ordinary experience has no
probable basis, it seems a court may compel a purchaser to
complete the purchase.20
Neither can a party rely upon professional advice he may
have received with respect to the title, and, hence, an opinion
of counsel of admitted standing and ability, that the title to
the land in questicm is defective or doubtful, will not justify
a purchaser in receding from the contract, when the title is
in fact perfect and a conveyance is tendered.-^
One bound by an executory contract to purchase land need
not fultill his contract if there is a cloud on the title. The
defect need not consist of an outstanding title wliich is neces-
sarily paramount;-- it is suflficient if it creates a doubt,-^ or
raises a (juestion wliich can only be settled by litigation.-^
Nor need such a title be positively invalid; it is enougli that
it is subject to so much doubt that a purchaser ought not to
be compelled to accept it.-'"' It may still be a valid title though.
17 Abbott V. James. Ill N. Y. 673. 22 Estell v. Cole, 62 Tex. 695.
i« Webb V. Chisholm, 24 S. C. -'.-i Jeffries v. Jeffries, 117 Mass.
487. 184; Gill v. Wells. 59 Md. 492;
I'J Moser v. Cochrane. 107 N. Y. Powell v. Conant. 33 Mich. 396.
35. 2< Butts V. Andrews, 136 Mass.
-"Ferry v. Sampson. 112 N. Y. 221; Charleston v. Blohme, 15 S. C.
415. 124.
21 Montgomery v. Land Bureau, -■' Richmond v. Gray, 3 Allen
94 Cal. 284. (Mass.), 25.
564 OBJECTIONS TO TITLEJ.
charged with incumbrance 5^6 but where the agreement doeS
not mention the title to be given, an imi)lication arises that
it is to be free from incumbrances;-'^ nor will the purchaser
be bound to take it subject to easements.-*^
A marketable title should carry with it an assurance of
security in the possession and enjoyment of the land;^^ and
hence it follows that a purchaser should not be required to
comi)lete his bargain where there is a reasonable chance for
any person to lawfully raise a question against the title. It
is immaterial that the danger to the purchaser to all seeming
is very slight and very remote; it is enough that it exists, and
that while it exists as a matter of law as well as of fact it may
operate to the i^urchaser's detriment. It would seem, there-
fore, that however strong the probability may be that the
objectionable matter will never be asserted against the estate,
yet as long as it amounts to no more than a probability the
title cannot in any just sense be said to be marketable. It
is true that a title free from reasonable doubt may be forced
upon an unwilling purchaser; but this is only where there ia
a doubt as to whether there exists, in law or in fact, any defect
in the title. When it is ascertainable that there is an existing
defect, the purchaser will not be compelled to perform merely
because it is doubtful whether the defect will ever incommode
him.3o
§ 300. "Satisfactory" title. It is by no means an unusual
practice for parties to stipulate in their agreements of sale for
the production of a "satisfactory" title, or a title "satisfac-
tory'' to the vendee, or to the vendee's attorneys; and even
where no mention of this kind is made in speaking of the title
to be produced, yet where provision is made for the return or
forfeiture of the deposit it is usual to stipulate that if the
title, upon examination, should prove "unsatisfactory," the
agreement shall be canceled. It is difficult to announce the
exact efifeet of stipulations of this kind, or to state whether
26 Coal V. Higgins, 23 N. J. Eq. 20 Barnard v. Brown, 112 Mich.
308. 452.
2T Newark Saving Institution v. so Moore v. Appleby, 108 N. Y.
Jones, 37 N. J. Eq. 449; Delevan 237; Brooklyn Park Com'rs v.
V. Duncan, 49 N. Y. 485. Armstrong, 45 N. Y. 234. Compare
28 Wheeler v. Tracy, 49 N. Y. Ferry v. Sampson, 112 N. Y. 415.
Sup. Ct. 208.
OBJECTIONS TO TITLE. 365
the ]»(>vv('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<l altiliiy. In one (lass of cases it is held that the
person to whom this privilege is j^iven has no ri;^dit to say,
arbitrarily and without cause, that he is dissatistied,"^' while
the other class as positively asserts the doctrine that when
the aj;reemenl is to make and furnish an aftide to the satis-
faction of the jx'rson for whom it is intended, he alone is the
judge as to whether the article is satisfactory; and tliat it
is not a comitliance with the contract to prove that he ouj^ht
to have been satislied/^- In nearly all of these cases it is said
that where the refusal to accept is because of dissatisfaction
the ol»jecti()n should be made in ^ijood faith; yet this is a very
dillicult matter to determine where the sole arbiter is the
objecting party himself, for he may refuse through the merest
caprice, and yet not be chargeable with bad faith.
There is no reason of public policy which prevents parties
from contracting that the decision of one or the other shall be
conclusive; and the weight of authority, as well as reason,
would seem to support the doctrine that parties must abide
by their contracts as they have made them. If the vendor
has agreed to furnish an article that shall be satisfactory to
the vendee, it would seem that he constitutes the latter the
sole judge of his own satisfaction. Some cases announce a
reasonable modification of the rule, to the effect that the
dissatisfaction must be real and not feigned, and that the
vendee is not at liberty to say he is dissatistied when in reality
he is not — in other words, that his discontent must be genu-
ine ;^3 yet the ditliculty of arriving at mental processes is so
great that the modification as suggested is practically of little
31 See Daggett v. Johnson. 49 Vt. McCarren v. McNulty, 7 Gray
345; Manufacturing Co. v. Brush, (Mass.), 139; Gibson v. Cranage,
43 Vt. 528. 39 Mich. 49.
••■•■iZaleski V. Claris, 44 Conn. 218; :'' See Hartford Mfg. Co. T.
Brown v. Foster, 113 Mass. 136; Brush, 43 Vt. 528.
3G6 OBJECTIONS TO TITLE.
avail; and even the eame class of cases which hold this doC-'
trine also maintain that, while the vendee is hound to act
honestly, it is not enouj^h to show that he ought to have been
satisfied and that his discontent was without good reason.^-*
It may be said that, where the agreement simply is to
produce something that shall be "satisfactory," without indi-
cating the person to whom it shall be satisfactory, the stipu-
lation is doubtful, or that it should be satisfactory to any
reasonable person. But this would be doing violence to
language; for, as has been well remarked, ''when we speak of
making a thing satisfactory, we mean it shall be satisfactory
to the person to whom we furnish it. It would be nonsense
to say that it should be satisfactory to the vendor. It would
be indefinite to say it should be satisfactory to a third person
w'ithout designating the person. It can only be intended that
it shall be satisfactory to the person who is himself interested
in its satisfactory operation, and that is the vendee."^'^ And
this is the view generally taken.^^
It has been suggested that the force of the cases last men-
tioned may be lessened by the fact that questions relative to
the title to land are such as are peculiarly within the power
and duty of a court to detennine.^'^ Yet in principle it can
make but little difference whether the transaction relates to
real or personal property; and so, where the terms of sale
provided that if the purchaser, upon examination, should not
be satisfied with the title, he need not take the property, it
was held that if the purchaser in good faith was not satisfied
with the title, he would not be compelled to complete the
purchase, notwithstanding the court pronounced the title
marketable.^**
An apparently opposing case will be found among the earlier
decisions in New York,^^ w^here a contract for the purchase of
land provided that the purchaser should pay for the same
34Daggettv. Johnson, 49 Vt. 345; 3 7 Note by Savage, 25 Am. Law
Lynn v. R'y Co. 60 Md. 404. Reg. 19.
3s Brown, J., in Campbell Press 3s Averett v. Lipscombe, 76 Va.
Co. V. Thorp, 1 Law Rep. (Mich.) 404; Taylor v. Williams, 45 Mo. 80.
645. 30 Folliard v. Wallace, 2 Johns.
3cMcCormick Co. v. Chesroun, (N. Y.) 395.
33 Minn. 32; Singerly v. Thayer,
108 Pa. St. 291.
OBJECTIONS TO TITLE. 307
three montliH after he shouhl be well satisfied thai llif lith-
was iiiarkclablc. Paviiient was refused on the ground of oul-
slaiidin^' title, aiul the imi'chaser alh'<,'ed dissatisfaction. The
])r<)()f showed that the elaim of outstanding; title was unsound.
Kent, ('. .1., after demonstrating the untenability of defend-
ant's objection for this reason, then said: "Nor will it d(. for
the defendant to say he was not satistied with his title with-
out showiu}:, some lawful incinubrance or claim existing
a;;ainst it. A simjtle allegation of dissatisfaction, without
some jijood reason assigned for it, mi.i;ht be a mere ])retext,
and cannot be re^^arded. If the defendant Were left at liberty
to jud;j;e for himself when he was satisfied, it would totally
destroy the obligation, and the agreement would be absolutely
void;" and at the same time laid down a principle whicli the
courts of New York have since followed on a num])er of
occasions, to wit: "That which the law shall say a contracting
party ought, in reason, to be satistied with, that the law will
say he is satistied with."^**
§ 301. "Good" title. It has been said that custom makes
law. To a certain extent this is true, but the employment of
meaningless phrases, however widespread or long continued,
should not be made to come within the rule. Analogous to
the topic discussed in the last paragraph is the frequent stipu
lation for the production of a "good" title, or that title may
be refused if on examination it shall "not be found good."
The word "good," in this connection, notwithstanding its long
and freciuent use, has no meaning either at law or in equity.
Its very employment necessarily implies the existence of such
a thing as a "bad" title, and by the rules of grammar indicates
that it may be "better." But the term has come into common
use and probably will continue to find expression in land con-
tracts, and the question for solution is: When will a purchaser
be justified in refusing to accept a conveyance under a con-
tract to produce a "good" title? Undoubtedly what is meant
by the parties is a marketable title, and the signiticalion of the
term, when employed in a contract of sale, may fairly be said
•<^ The principle is affirmed in but not with reference to the sub-
Brooklyn V. R. R. Co. 47 N. Y. 475; ject under discussion.
Miesell v. Ins. Co. 76 N. Y. 115,
368 OBJECTIONS TO TITLE.
to be equivalent to a marketable title — one free from doubt
or palpable defects.^^
§ 302. Title as aifected by attorney's opinion. As a general
rule an opinion of counsel pronouucinj;- a prolTered title doubt-
ful or defective will not justify a purchaser in rejecting sanie,^-
nor will the fact that the contract provides that title shall
first be passed upon by the purchaser's lawyer vary the appli-
cation of the rule or make the decision of such lawyer a con-
dition precedent to the right of enforcement by the vendor.^^
But if the parties expressly stipulate, as they have a right to
do, that the title shall first be presented to the purchaser's
counsel for examination and that upon his acceptance only
shall the sale become consummate, a rejection by him will
justify the purchaser in refusing to proceed, and he may
demand back and recover any earnest money that may have
been paid.^^
§ 303. Claims of title. While in strict legal contemplation
all that a land-owner agrees to sell, or actually does sell, is
his specific degree of interest in a parcel of land, yet, for
commercial convenience, there is a recognized distinction
between an agreement for the conveyance of a specific tract
of land and an agreement to simply convey the vendor's right,
title and claim thereto. Imperfect titles, claims of title, con-
flicting and unconsummate equities, always abound in profu-
sion in every locality where land exhibits any considerable
degree of activity; and such claims and equities are often
made the subject of sale and conveyance. When, therefore,
a vendor has bound himself to convey not the land but only
his right, title and claim to the land, there is no implication
of a covenant that he has a marketable title; nor can the
vendee refuse to consummate the agreement by raising an
objection to the title offered. If the vendor offers to convey
all his claim, whatever it may be, he tenders to the vendee
41 See Herman v. Somers. 158 lation in regard to title but simply
Pa. St. 424. that it was to be examined and
■i- Montgomery v. Land Bureau, accepted or rejected by purchaser's
94 Cal. 284. attorney, hence the question of
■»3 Vought v. Williams, 120 N. Y. marketable or non-marketable title
253. was not presented, but it would
«■» Allen V. Pockwitz, 103 Cal. 85. seem that even had it been men-
In this case there was no stipu- tioned in the contract it would
OBJECTIONS TO TITLE. 369
the very .subject-matter of the contract; the vendee in Kuch
case buys at his own risk, and cannot be heard to defend, when
caUed on for tlie price, that tlie tith* offered is defective.'*''
So, also, if a vendor does not pretend to have a clear title, but
expressly sells such as he has, the vendee will be obliged to
accept tlie same without tirst requiring the vendor to show
u clear title.^«
j5 304. Title of record. The question seems to have been
I)roductive of much discussion as to whether a purchaser who
has contracted for a record title will be compelled to accept a
title depending upon adverse possession under the statute of
limitations. Of all known titles to land, beyond a mere naked
possession, which are prima facie marketable, there is perhaps
none recognized by law more doubtful and uncertain than
those dejK'uding for their validity upon an adverse posses-
sion.^7 For this reason such titles are justly regarded with
suspicion and accepted with caution; and though they may
be, for all practical purposes, indefeasible at law or in equity
and as strong as a title by grant, yet, where the contract calls
for a title shown by the records, an objection to a title based
upon extraneous facts and resting in parol is well taken. The
fact that the proposed title is practically unassailable carries
no weight in the consideration of a question of this char-
acter.^8 n [^ suflBcient that such title is substantially different
from the one contracted for, and the motives and fancies of
mankind are so various that the law which recognizes the
right of parties to make just such contracts as they choose
have made little or no difference It has been held that where the
for this will, as a rule, be implied vendor agrees to make a "good
in all contracts. and sufficient conveyance, with full
46 So held where the contract warranty" only against his heirs
was that the vendor, in consid- and personal representatives, he is
eration of a stated price, agreed to bound only to convey such title
convey all his "right, title and as he has; but that the rule would
claim" in a certain tract contain- be otherwise where his agreement
ing five hundred acres, which price is for a good and sufficient con-
vendee agreed to pay, and after- veyance. Thompson v. Hawley, 14
wards the vendor tendered a deed Ore. 199.
purporting to convey "all his *' Brown v. Cannon. 5 Gilm.
right, title and claim." Herrold v. (111.) 182.
Blackburn, 56 Pa. St. 103. ■«« Noyes v. Johnson. 139 Ma^s.
4'! Broyles v. Bee, 18 W. Va. 514. 436.
24
370 OBJECTIONS TO TITLE.
will not call upon a man who has contracted to purchase one
thing to explain why he refuses to accept another.^" To compel
a j)urc]iaser to taki^ that which he never agreed to accept
would be manifestly unjust, no matter what might be its
character or value.
It is of frequent occurrence, in those states where title is
deraigned from the federal goverameut, to stipulate for an
abstract showing a devolution of title from the United States
to the person proposing the same. In the later-formed states
this is ])articularly the case. Tlie same general principles we
have just been considering apply with equal force to stipula-
tions of this character. As where the vendor agreed **to show
and present a perfect chain of title to said property from the
United States government," and did present an abstract show-
ing a government patent with successive conveyances connect-
ing his title, yet it appearing further that the land covered by
said patent had been previously confirmed in the heirs of a
deceased person by deed of confirmation of the territorial
governor, pursuant to act of congress, and that in consequence
the United States possessed no interest in the land which it
could sell or patent, it w^as held that the patent was void as a
conveyance and colorable only; and that, notwithstanding
that such patent might be resorted to in connection with pay-
ment of taxes, possession, etc., as color of title, it did not show
the title intended by the language of the parties. That the title
thus shown was a good defensive title was not denied; but the
court ruled that the only rational construction that could be
placed upon the stipulation of the agreement required the
production of a chain of title from the United States govern-
ment W'hich should be perfect, and that this could only mean
the production of the successive conveyances, commencing
with the government patent, each being a perfect conveyance
of the title, down to and including the person proposing the
same. To have complied with the stipulation it would have
been necessary to have shown a title derived through the heirs
of said deceased person; but the claim being bas(Ml uj)on the
invalid patent, which was simply a link in a colorable chain
of title, was not what the purchaser had bargained for.^'O
40 Page V. Greeley. 75 111. 400. conveyance and upon the abstract,
50 Payne v. Markle, 89 111. 66. In but the principle applies to an ex-
this case the questions arose after ecutory contract as well.
OBJECTIONS TO TITLE. 371
?; 306. Title by adverse possession and limitation. A title
dcdiuihlc of record, must, under o\ir luws, be more reliable
and conseciuently more desirable than one depending u^iou a
variety of extrinsic circumstances to be established by parol
evidence. This is a p;enerally i'eco<;nized principle in all real
estate ti-ansactious; and intending purchasers are usually
tenacious upon this point, and observant to see that the stipu-
lations of the contract embody ju'ovisions callinj; for the ]»ro-
duction of such title. Indeed, this is one of the vital points
of the contract, and a purchaser who desires such a title
should have that fact duly incorporated.'''^ But where the
purchaser does not see tit to stipulate as to the character of
the title he is to receive, or if no reference is made thereto,
while the obli;i;ation of the vendor to furnish a marketable
title would be raised by implication, there would be no obli-
gation on his part to furnish a record title.
A purchaser may be compelled to take a title founded on
adverse possession under color of title, if there is no reason-
able doubt of the superiority of such title,^^ ^j^t not where
there are circumstances which may prevent the possession
from being adverse.''-* Nor does it seem to be essential that
the adverse title should be based upon color of title ;^^ it is
sufficient if it is of such a character as shall assure to the
vendee a quiet and peaceable possession of the property.^^
f'l A purchaser entitled under his which could be set up in support
contract to a title of record is not of the paper title against which
bound to accept a title by adverse the adverse possession was held,
possession depending upon a long Ottinger v. Strasburger, 33 Hun
and difficult investigation of facts, (N. Y. ), 466. And see Murray v.
although it may be good. Noyes v. Harway, 56 N. Y. 337; Ballou v.
Johnson, 139 Mass. 436. Sherwood, 32 Neb. 666; Moore v.
"Crowell V. Druley, 19 111. App. Luce. 29 Pa. St. 260; Clancey v.
509. A purchaser may be com- Houdlette, 39 Me. 451; Luman v.
pelled to accept a title founded on Hubner. 75 Md. 268.
an adverse possession for ninety s! Shriver v. Shriver, 86 N. Y.
years. Abrams v. Rhoner, 44 Hun 575.
(N. Y.), 507; Shriver v. Shriver, 54 Campau v. Lafferty, 50 Mich.
86 N. Y. 575. Specific performance 114.
will be enforced where the title '••'•Barnard v. Brown, 112 Mich,
tendered is based on an adverse 452; O'Connor v. Huggins, 113 N.
possession and payment of taxes Y. 521; Bicknell v. Comstock, 113
for nearly sixty years, there be- U. S. 149; Hodges v. Eddy, 41 Vt.
ing no outstanding minorities 485.
372 OBJECTIONS TO TITLE.
§ 307. Ancestral titles — Descent. Title by descent was form-
erly considered the superior title, and under the peculiar
conditions which attended the devolution from ancestor to
heir was probably more certain and indefeasible than that
acquired by any of the modes of purchase except the original
grant from the sovereign. But in the United States this order
has been reversed; and while a title so derived is in every
way as effectual as one obtained by purchase, it is often
attended with so many doubtful incidents that such titles are
now frequently regarded with suspicion and accepted only
with caution.
Where propc^r proof of heirship is made, and particularly
where an adjudication has been had in probate, and it satis-
factorily appears that the title of the heir is unembarrassed
by ancestral debts or unfulfilled obligations, no serious objec-
tion will usually lie; but in the absence of any proper showing
a purchaser is justified in refusing the title unless by some
agreement the defect of proof has been waived. An objection
is well taken where there is at least a probability that certain
persons whose deed is tendered to make a title are not the
sole and only heirs of their ancestor, and a purchaser will not
be required to accept a title so doubtful.^^'
§ 308. Spurious deeds. A purchaser has a right to demand
a valid title by a regular derivation of right from some
undoubted and unquestioned source; and where the title as
exhibited depends upon spurious deeds or other muniments
whose genuineness and authenticity is questioned, the pur-
chaser may well object to a consummation of the trade until
by proper proof the objection is shown to be untenable. An
ancient deed will usually be received without proof of execu-
tion when free from suspicion upon its face, and when offered
to support a title concurrent with possession; but where a
deed is without acknowledgment or other proof, or is
impeached by other and extraneous testimony, unless the
possession of the claimant thereunder has been of such a
character and continued for such length of time as to create
a valid title by mere force of adverse possession, the title so
offered is so far uncertain that a court of equity would refuse
to lend its aid to enforce the contract, while the questions
-'•-Walton V. Meeks, 41 Hun (N. Y.), 311,
OBJECTIONS TO TITLE.
373
thus laiscd being essentially (jiiestions of fad .sliould he sub-
mitted (<) a jury foi' dclcruiination/'^
§309. Hazard of litigation. A purcluiser will never be
compelled in i-iiuily to actepl a title thai will expose him to
the haiiard of litigation. The title should not only be sufficient
to enable him to hold the land, but to hold it in peace; and
where the circumstances attending the devolution of title are
such as to cast a doubt upon its character, an objection for
this reason is well founded.'''^ A purchaser in every sale,
unless he specially stii)ulates to the contrary, has a right to
expect that he will acquire a valid and unassailable title, and
the law presumes that he purchases with that object in view,
lie should not, therefore, be left uiJon receiving his deed to
the uncertainty of a doubtful title or the hazard of a contest
with other parties, which may seriously affect the value of the
property if he desires to sell the same.^^
But while the foregoing propositions have become estab-
lished beyond disitute, it must nevertheless appear that the
6bjection is not founded on mere caprice or unsubstantial
•"'7 See Seymour v. De Lancey,
Hop. Ch. (N. Y.) 436.
"•« Moore v. Appleby, 108 N. Y.
237; Swaney v. Lyon, 67 Pa. St.
436; Herman v. Somers, 158 Pa.
St. 424. Tillotson v. Gesner, 33 N.
J. Eq. 313. This was a bill for spe-
cific performance. The complain-
ant and defendant had agreed to
exchange lands. It was objected,
inter alia, that complainant held
her title from her son-in-law by a
voluntary conveyance made to de-
fraud his creditors and voidable
by them; that a judgment for de-
ficiency was docketed against him
a few days before the conveyance
from him to complainant was
made; that the title was assailable
by his creditors. Held, where there
is a conveyance of land, volun-
tary on its face, made by a de-
fendant just before a judgment for
a large sum is rendered against
him, which would be a lien on the
land if such conveyance had not
been made, and the evidence fails
to show by strong proof that it
was made in good faith and for a
valuable consideration, the specific
performance of an agreement with
the vendee for the purchase of the
land will not be enforced.
-ii* Jordan v. Poillon, 77 N. Y.
518; Moore v. Williams, 115 N. Y.
586; Herman v. Somers. 158 Pa.
St. 424. A purchaser of real estate
cannot be required to accept a con-
veyance thereof where, because of
a mistake in the description of the
land in a former conveyance
through which the vendor holds,
the title as to a part of the land
is so doubtful that it may exposs
the vendee to litigation on the part
of a third person, or where for
such reason the title is not market-
able. Smith v. Turner. 50 Ind.
367; Linn v. McLean, 80 Ala. 360.
A purchaser is justified in refus-
374 • OBJECTIONS TO TITLE.
trifles ;^o hence a bare possibility that the title may be affected
by the existing causes which may subsequently be developed
when the highest evidence of which the case admits, amount-
ing to a moral certainty, is given that no such cause exists,
is not to be regarded as a suthcient ground upon which to
found an objection, or for inducing a court to decline to
compel a purchaser to perform his contract.^^
It is further to be observed that the doctrine that equity
will not compel a party to accept a title which may be exposed
to litigation does not apply when no question of fact is
involved, and all parties in interest are before the court.^^
§ 310. Pending litigation. If a purchaser may refuse to
consummate a sale of laud where it reasonably appears that
its acquisition may subject him to the hazard of a law^ suit,
it follows with much stronger reason that an objection will
lie where the title to the property forming the subject-matter
of the sale is actually involved in litigation,63 or where pro-
ceedings of a legal character are then pending to subject the
property to any liens, servitudes or burdens. Thus, the pen-
dency of condemnation proceedings is such a defect in title
that the vendee is not bound to take the propert3'.*5^ And
generally, if an action has been commenced which apparently
affects the title, and the pleadings state a cause of action, such
a title is not marketable and the purchaser will not be com-
pelled to accept it.^^ And it seems, that where such a con-
ing to take a title founded on par- after his personal estate was ex-
tition proceedings to which re- hausted; also the possibility of the
mainder-men were not made par- discovery of a will within four
ties. Moore v. Appleby, 108 N. Y. years after death, which would
237. govern the disposition and render
60 Webb V. Chisholm, 24 S. C. 487. a conveyance void. Held, that to
ci As where purchaser refused to entitle plaintiff to relief it was nec-
consummate a sale and sued for essary for him to show debts, and
the recovery of money paid by him an insufficient personal estate left
on the execution of the contract by C. Moser v. Cochrane, 107 N.
on the ground that defendant in- Y. 35. And see Webb v. Chisholm,
herited the property from C, who 24 S. C. 487.
died within three years intestate; 02 cheseman v. Cummings, 142
that the administration of his es- Mass. 65.
tate had not been closed and plain- cs Linn v. McLean, 80 Ala. 360.
tiff would have to take the prop- C4 Cavenaugh v. McLaughlin, 35
erty subject to the debts of the N. W. Rep. (Minn.) 576.
intestate, if there should be any 65 Simon v. Vandeveer, 155 N. Y.
OBJECTIONS TO TITLE. 375
(lilioii is diselu.st'd thi' puicliascr iua;> 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 <liscloses the fact that there are sulisistin^ judj^nients
outstandinjj; aj^aiust the vendor which constitute liens on the
land, the purchaser may properly object to the title for that
reason, and may successfully defend a suit for specific per-
formance or an action for the purchase money. Such a title
is clearly defective.
But while the authorities are united in declarinij: that equity
will not compel a vendee to take an imperfect or defective title,
yet cases of hi<2;h authority are to be found in which a pecuni-
'ary char<?e aj?ainst which adequate security has been given
has been held not to constitute a defect of title. Tlius, where
a vendor contracted to sell a house and lot, the fact that at
the date of the contract there was a judgment against the
vendor from which he had entered an appeal, and given bond
with ample security to pay the amount of the judgment, with
costs, in case he should fail to prosecute his appeal with effect,
was held not to constitute a defect or incumbrance upon the
title which would prevent a specific execution of it.^'^
Usually, however, a purchaser of land who is entitled under
his contract to a perfect title cannot be compelled to perform
his agreement, if the property purchased be subject to judg-
ment lien under which he is obliged to take the risk of having
the same afterward resorted to for the pajinent of the judg-
ment, notwithstanding that a supersedeas bond may have
been given. A bond may be ample security when given and
yet prove worthless at the end of a protracted litigation. Nor
will the fact that the vendor or judgment debtor is i)ossessed
of ample property which may first be exhausted before sub-
jecting the property sold be a suftici(Mit answer to an objection
for this reason; for, while such may be the general rule, yet
377; compare Aldrich v. Bailey, «" Brewer v. Herbert, 30 Md. 301 ;
132 N. Y. 85. Tiernan v. Roland, 15 Pa. St. 441;
CO Simon v. Vandeveer, 155 N. Y. Thompson v. Carpenter, 4 Pa. St.
377. 132.
3Y6 OBJECTIONS TO TITLE.
it may not be certain that equity would couipel the judgment
creditor to first exhaust the property remaining in the judg-
ment debtor before resorting to that acquired by the pur-
chaser, and in any event he should not be required to assume
either the risk or expense of prosecuting an action to compel
the judgment creditor to seek satisfaction out of other prop-
erty of the judgment debtor.
An objection for this reason, therefore, must usually be held
to be well taken; and such objection will be sustained unless
it is possible to protect the purchaser against the hazard of
loss or inconvenience by decree providing for the application
of the purchase mohey to the discharge of the judgment, or
some other equally effective method.*^''
Where the judgment is very old, or is apparently barred by
limitation, the foregoing remarks may require some qualifi-
catioTi, for lapse of time, in the absence of repelling evidence,
is sufficient in law, without more, to raise a presumption of
payment.*^'' Yet, being merely a presumption, it may be
rebutted, and, as between the parties, proof of intervening
circumstances is frequently permitted to show that the debt
is still due. Usually, how^ever, the statutes of limitation are
strictly construed in favor of third persons for the purpose of
quieting titles, and judgments upon which no attempt has
been made for enforcement for a period of twenty years will
be presumed to have been satisfied, and this doctrine prevails
alike at law and in equity.
§ 312. Outstanding incumbrances. Incumbrances have been
lucidly yet briefly defined as any rights to interests in land
which may subsist in third persons, to the diminution of the
value of the land, and not inconsistent with the passing of the
fee of same by deed.'^^
An outstanding incumbrance of any kind, for which no
provision has been made in the contract of sale, forms an
insuperable objection to the consummation of the agreement.
Thus, the existence of a mortgage upon the property relieves
the vendee from the obligation of performing his part of the
68 Walsh v. Barton, 24 Ohio St. Olden v. Hubbard, 34 N. J. Eq.
28. 85 ; Ray v. Pearce. 84 N. C. 485.
CO Rhodes v. Turner, 21 Ala. 210; to i bou. Law Diet. 784; Huyck v.
Beekman v. Hamlin, 19 Ore. 383; Andrews, 113 N. Y. 81.
Objections to titl^. S77
agreement unless ujtdii ohjcction made the mortgage is cjin-
celed; and the fact that I Ik- mortgage was recorded, and that
the vendee therefore had nolice of the same, is immaterial
where the true meaning and imjjort of tlie contract is to con-
vey an indefeasible estate J^ So, also, if at the time of the
contract there is a lease outstanding whicli was unknown to
the vendee, he is not bound, but may rescind the contract, the
vendor not being in a situation to give a perfect titleJ^ Nor
will a purchaser be comi)elled to accept a titk' which may be
incumbered with a condiliou, it being doubtful whether the
condition is or is not valid.^^ And generally, if from the
vendor's negligence or default the proj)erty becomes incum-
bered by judgments, taxes, forfeitures or otherwise before the
time for conveying the same or before he offers to perform his
contract, he cannot insist on performance by the other i)arty
until he relieves the title from such subsequent incum-
brancesJ*
A restriction upon the power of alienation, or a reservation
to a former owner of a right of repurchase for a certain tinu',
is an incumbrance which diminishes the value of the title;
and a purchaser who has contracted to buy the premises with-
out notice of the existence of such an incumbrance will not
be compelled to take the property subject thereto, or at least
not without a proper allowance thereforJ^
Where adjoining owners have by grant imposed mutual and
corresponding restrictions upon the lands belonging to each,
for the purpose of securing uniformity in the position of
buildings, such covenants are, in eifect, reciprocal easements,
and where the title tendered is burdened by such a covenant
restricting the use of a certain portion of an entire lot frontage
so as to prevent building thereon, it is an incumbrance, and
71 If in such case the vendee has remove a valuable building from
paid any part of the consideration the land, the purchaser would not
money, he may disaffirm the con- be compelled to complete the pur-
tract and recover back the money chase. Beckenbaugh v. Nally, 32
which he has paid. Judson v. Hun (N. Y.) 160.
Wass, 11 Johns. (N. Y.) 525. -3 Post v. Bernheimer. 31 Hun
72 Tucker v. Woods, 12 Johns, (N. Y.) 274; Adams v. Valentine,
(N. Y.) 190. Or if it was known 33 Fed. Rep. 1
that the property was subject to a 74 Cooper v. Tyler, 46 111. 462.
lease, yet if no mention was made ~'' Winne v. Reynolds, 6 Paiga
that the tenant had the right to (N. Y.) 407.
378 OBJECTIONS TO TiTLfi.
tlie vcndet' will bt* justified in lefusinj;- to complete his pur^
chase."*' The existence of a party wall agreement whereby
the owner of a lot is to pay a portion of the cost of the wall
in the event of the use of same by him, is a covenant and an
incumbrance which runs with the land and is binding upon
his granteeJ^
Where there are trifling incumbrances upon the title'^'^ which
were known to the vendee at the time he contracted to pur-
chase, it has been held that a specific performance will be
decreed without compensation;'^'-* and where the purchaser
enters into possession under the contract, knowing that there
is a slight defect in the vendor's title or a slight incumbrance
upon it, he will be held in most cases to have waived it.'^^
The mere fact of entry does not of itself, however, amount
to waiver; there must be other circumstances, such as show
that the vendee had a knowledge of defects, and intended to
accept such title as could be made, relying upon the covenants
for redress.^i
If a purchaser has contracted for a title free from all incum-
brances he cannot be compelled to accept a title wherein the
use of the property or any part thereof is restricted to specific
purposes, whether such restriction is inserted in the deed
tendered or appears in some of the other conveyances that
constitute the chain of title. So, too, if he has agreed to take
the land subject to restriction he cannot be compelled to
consummate the purchase when the so-called restriction in
fact creates a condition as distinguished from a limitation or
covenant. It is true that courts lean against forfeiture, and
whenever possible will construe words as creating a covenant
or restriction instead of a condition, yet they cannot ignore
the legal signification of language; and where, in such case,
the restrictive clause creates a condition, it constitutes a fatal
defect in the title. Contracts for the sale of urban property
are frequently made with reference to the use of the land,
taken in connection with adjoining lands, wherein the vendee
7c Wetmore V. Bruce, 118 (N. Y.) ^o winne v. Reynolds, 6 Paige
319. (N. Y.) 407.
77 Burr V. Lamaster, 30 Neb. 688. so Coray v. Mathewson, 44 How.
78 As the reservation of a bar- Pr. (N. Y.) 88.
leycorn rent, or anything else si Jones v. Taylor, 7 Tex. 240.
which is merely nominal.
OBJECTIONS TO TITLE. 379
StipiilatoH (o luccpl a lillc wliiili shall be subject to a H(M\i
tilde restricting tlie mode of use of tlie laud to be couveycd.
CJiviu"; proper etlect to sucli a coutraci llie vendee would he
eulilled to have a clear title, free frcjui all lucuiubrauces
except the servitude; but he would not be recjuired to accept
a title by which the whole estate becomes liable to forfeit un*
in case the part subjected to the restricted use is ever ap|)ro-
priated to a dillcrent use.*^-
§ 313. Continued — Unsatisfied mortgage. The men^ exist-
ence of an unsatislicd niort^a^c, or llic disclosure of this fact
by the public records, does not of itself constitute a valid
j^round of objection to a title, jtiovided the mortj;a,ne is
incapable of enforcement against the land; and where the
right of entry or foreclosure has been cut off by the lapse of
time, such niort<;ag(' will ordinarily be regarded as of no more
effect than if it had never been executed. In some states this
is a matter dependent upon statute, which fixes the jieriod
during which foreclosure is allowed; but independent of any
statutory enactment courts will, in the exercise of a lawful
prerogative, make certain presumptions of payment.^^ The
presumption of j)ayment founded on the lapse of time and
other circumstances does not always proceed on the belief
that the thing presumed has actually taken place, but is raised
for the purj)Ose and from a principle of (piieting the posses-
sion. These presumptions are founded in substantial justice
and the clearest policy, and prevail both in courts of equity
and law. The presumption resolves itself into this: that a
man will naturally enjoy what belongs to him; and is a prin-
ciple of decision adopted and sanctioned by a succession of
learned judges in the courts of every state in the I'nion.
Ilence it is, where the mortgagee has never entered under
his mortgage, or taken steps to foreclose the same, and
twenty years or more have been suffered to elapse since the
maturity of the debt, the presum])tion becomes very strong
that the mortgage has been discharged by ])ayment or other-
wise,**"* and this jjicsuiuplion becomes greatly intensified
82 Jeffries v. Jeffries, 117 Mass. 39 Mich. 733; Jatksou v. Wood, 12
184; Adams v. Valentine. 33 Fed. Johns. (N. Y.) 242.
Rep. 1. «• Miller v. Smith. IG Wend. (N.
8:' See Van Vleet v. Blackwood. Y.) 4G3; Van Vleet v. Blackwood,
39 Mich. 733.
380 OBJECTIONS TO TITLE.
where successive grautees have had the uudisturbed posses-
sion of the premises during this interval ; and if a party, with
knowledge of his rights, will sit still, and without asserting
them pennit persons to act as if they did not exist, and to
acquire interests and consider themselves as owners of the
property, there is no reason why the presumption should not
be raised.^^
It has been held, however, that this presumption may be
rebutted by satisfactory proof; as, that interest has been
paid within twenty years; the continued absence from the
country of the obligee; the continued insolvency of the
obligor, or other strong circumstances showing non-payment
or cause for forbearance.^^ But the statute of limitations in
most cases will come in to aid the presumption of payment
by interposing a bar to any right of action.
§ 314. Unpaid taxes. A tax or assessment imposed by law-
ful authority is an incumbrance upon title until satisfied, and
unless the vendor will cause same to be discharged the vendee
is under no obligation to accept a deed or complete the
purchase.^^
§ 315. TTnreleased dower rights. No small amount of the
litigation arising in connection with titles is occasioned by
the assertion of claims for dower by women, who, at some
stage in the history of the titk^, have sustained marital
relations toward some of the parties having, or assuming to
have, an interest in the land. Such claims are more frequently
based upon the fact of non-joinder in the deeds of the husband,
yet instances occur where the sole merit of the claim lies in
the fact that the wife, while properly uniting with the husband
in execution, has, through the neglect of the certifying officer,
failed to comply with statutory requirements relative to
acknowledgment. As the acknowledgment was formerly
regarded as the essential and effective act whereby a wife
estopped herself from afterwards claiming dow er, such claims
have often been successfully urged. It is important, therefore,
that the title be carefully scrutinized for defects of this char-
acter; and where a possible dower claim is apparent an
85 Giles V. Baremore, 5 Johns. s^ Morange v. Norris, 3 Abb.
Ch. (N. Y.) 545. App. Dec. 320.
«o Hale V. Pack, 10 W. Va. 152.
OBJECTIONS TO TITLE. 381
objetliou .shuiihl be lodged, and if the objccliun is not over-
come by satisfattoiv evidence that no Kuch claim can arise,
or if presented cannot be maintained, or unless the objecti(m
is removed by a release of the dower rij^ht, the title should be
rejected unless the purchaser is willin<^ to assume the risk.
There would seem to be a misconception in some of the
earlier cases with respect to the real nature of the inchoate
rij^ht of dower. It is now well settled, however, that such
ri<j;ht is not a mere possibility or continj^ency, which is to be
deemed an incumbrance only when it becomes consummate
by the death of the husband, but it is from the time when it
attaches, an actual lien — a potential incumbrance.'** Indeed,
it has been held that it is more than a mere lien and consti-
tutes a substantial rij^ht of liroperty.*^^ In an3' event it is
paramount to all conveyances, contracts or incumbrances
made b}' the husband durinjij the coverture, and calls for the
utmost scrutiny in the examination of a title.
The tendency of recent decisions is to discourage stale
claims for dower, and to place claims of this character strictly
within the letter of the law in respect to the limitation of
actions and repose of titles. Hence, where the law makes
provision for the quieting of title by adverse possession for a
limited period, if such possession is taken and maintained
under claim and color of title made in good faith, the remedy
to enforce the right of dower has been held to be embraced
within the provisions of such law; and a widow must pursue
her remedy within the time therein prescribed, or her claim
will be efl'ectually barred as against a party in possession and
complying with such law.'"' T.ut little seems to have been
done to remedy the evils of stale dower claims by exj)ress
enactments, but the courts, as just stated, have applied the
limitation laws to claims of this nature. As a general ruK' it
may be said that the recovery of dower is barred by the
88 Bigelow V. Hubbard, 97 Mass. faith, and who shall continue in
195. possession for seven successive
89 Shell V. Duncan, 31 S. C. 547. years and during said time shall
90 So held in Brian v. Melton, 125 pay all taxes assessed on the land,
111. 647, under a law providing shall be held and adjudged to be
that every person in the actual the legal owner thereof. And see
possession of lands under claim Owen v. Peacock, 38 111. 33.
and color of title made in good
382 OBJECTIONS TO TITLE.
statutory limitations that apply in cases of actions of eject-
ment/''^ and when this can be satisfactorily shown the ground
of the objection is, of course, removed.
§ 316. Dowress' death. Where objection is made to the
vendor's title for the reason that the wives of any of the
former owners failed to relinquish their dower, proof of their
death i)rior to the sale will obviate such objection; and in like
manner proof of the death of the husband of a dowress more
than twenty years before will be sufhcient to show that her
dower is barred, and hence no incumbrance.^^
§ 317. Title subject to defeasance. Unless he stipulates so
to do, a purchaser will not be compelled to accept a title sub-
ject to be defeated. Thus, he is under no obligation to take a
title clouded by a right of reverter in the heirs of the original
grantor by reason of a diversion from the uses limited in his
conveyance,^^
§ 318. Trusts and other equities. Not only should the title
disclosed be a legal title, but it should also be unhampered by
trusts or other equities; and where the devolution shows that
it originated in trust, no matter how long it may have con-
tinued unassailed, it cannot be said to be marketable, and an
objection may properly be lodged against it. The reason for
this is that, as a general rule, length of time is no bar to a
trust clearly shown to have once existed ;^^ and while this rule
is not without its appropriate qualifications, yet as long as the
relation of trustee and cestui que trust is acknowledged, the
lapse of time can constitute no bar to the granting of proper
relief for the parties beneficially interested. If there has been
an open denial or repudiation of the trust, and this can be
shown to have been brought home to the knowledge of the
parties beneficially interested, so as to compel them to act as
upon an adverse title, or when time and long acquiescence
have obscured the nature and character of the trust, or where
01 Beebe v. Lyle, 73 Mich. 114; tion by the original grantee, not-
Winters v. DeTurk, 133 Pa. St, withstanding the limitation. Uni-
359. versalist Society v. Dugan, 65 Md.
02 Lyman v. Gedney, 114 111. 388. 460.
03 Nor is the case affected by the o* Gratz v. Prevost, 6 Wheat,
fact that the legislature attempted (U. S.) 481.
to authorize an absolute disposi-
OBJECTIONS TO TITLE. 383
the acts of llic patties or other circumstances give rise to
presumptions unfavorable to its continuance, a court of equity
will freciucntly refuse to grant relief upon the ground of lapse
of time and its inability to do complete justice. So, too, as
length of lime necessarily obscures all human evidence and
deprives parties of the means of ascertaining the nature of the
original traiisaetion, it operates, by way of presumption, in
favor of the legal title and against imputations that may be
put upon it."^
It is a well-established rule, however, that every purchaser
of trust property with notice of the trust takes it charged
with and subject to that trust. ■"'^ The vested interests of the
beneficiaries cannot be imi)aired or destroyed by the voluntary
act of the trustee,''^ and the trust will follow the land in the
hands of any person to whom he may convey it with knowl-
edge.^s
§ 319. Equitable estates — Legal title outstanding in trust-
ees. An equitable estate is just as properly the subject of
barter and sale as a legal estate vested in possession, but the
law presumes that the contract refers to a legal title in all
eases where the circumstances do not rebut such presumption ;
and a purchaser who has contracted for a marketable title
may justly object to an equity, however strong. Xor does the
fact that the vendor possesses the entire l^eneficial use of the
property, or that the outstanding legal title is vested in trust-
ees who may be compelled to convey at any time, in any way
alter the case. Until such outstanding legal title is extin-
guished the sale cannot be enforced against the vendee.^^
§ 320. Title acquired in violation of trusts. A title which
05 The lapse of forty years and 9« Carpenter v. McBride, 3 Fla.
the death of all the original par- 292; Kent v. Plumb, 57 Ga. 207;
ties deemed sufficient to presume Gale v. Mensing, 20 Mo. 461; Tal-
the discharge and extinguishment bott v. Bell, 5 B. Mon. (Ky.) 320;
of a trust, proved to have once ex- Ryan v. Doyle, 31 Iowa 53; Ham
isted by strong circumstances; by v. Ham, 58 N. H. 70.
analogy to the rule of law, which »' Shepard v. McEvers, 4 Johns,
after a lapse of time presumes the Ch. (N. Y.) 136.
payment of a debt, surrender of a »s Gray v. Ulrich, 8 Kan. 112;
deed and extinguishment of a trust Coble v. Nonemaker, 78 Pa. St. 501.
when circumstances require it. oo Murry v. Ellis, 112 Pa. St. 485.
Prevost v. Gratz, 6 Wheat. (U. S.)
481.
384 OBJECTIONS TO T.TLE.
discloses the fact that some of the prior veudois have violated
some fiduciary trust, even though such fact may be only
inferential, is for that reason defective and may properly be
objected to. As where it is shown that a trustee has pur-
chased at his own sale, either directly or indirectly, a pur-
chaser from him would not be protected as one buying in good
faith and without knowledge of the breach of trust; and the
title being voidable by those whom the trustee was bound to
protect, should be rejected by the purchaser.^
It is true that a title derived through the violation of a trust
may in time ripen into an indefeasible estate, and that contin-
uous adverse possession may be sufficient to preclude those
who otherwise might have asserted superior equities; but
while courts will ordinarily refuse to lend their aid to assist a
defrauded party wiio fails to assert his rights within a reason-
able time, it is nevertheless nearly impossible, in a case of this
kind, to say what is a reasonable time, or with accuracy to
determine when the bar of the statute has fully intervened. A
very great length of time might, perhaps, be conclusive; yet
while twenty years is usually named as the shortest period
which a court of equity would be bound to consider as an
absolute bar, there are cases where sales have been set aside
even after that time.^ In all these cases diverse and varied
circumstances operated to affect the judgment of the court;
but they all show that no particular time can be regarded as
necessarily conclusive, and that a purchaser receiving a deed
in ignorance of the occasion or circumstances of the delay
1 People V. Board of Stock- proved. Held, that the title was
brokers, 92 N. Y. 98. In this case defective, as it appeared that the
the examination of the title showed conveyances were but one transac-
two deeds, which constituted links tion, the executor acting in the
in the chain, from an executor to double capacity of seller and pur-
a third person, and from the latter chaser, and therefore the title was
back to the executor, under whom, voidable at the election of the
as an individual, the vendor beneficiaries named in the will;
claimed. The deeds were dated also, that the lapse of time, it being
within four days of each other, and less than twenty years, was not
were recorded upon the same day. conclusive upon them. And see
No accounting or settlement of the Wormley v. Wormley, 8 Wheat,
executor had been had, and no rati- (U. S.) 449.
fication of the transfer by. those 2 in Hatch v. Hatch, 9 Ves. (Eng,
interested under the will was Ch.) 292, a sale was set aside after
OBJECTIONS TO TITLE. 385
would iiiii the risk of an adveiHo decision or hold at llic best
only a doubtful title. Infancy, ignorance, concealment or mis-
representation may conic in to explain and excuse tlie delay
and prevent it from amounting to ac(piiescence.
^ 321. Party-walls. The piactice of economizing space and
expenditure in populous cities by the erection of party-walls
is of very ancient origin and almost universal observance.
Their use has the ellect to create cross-easements on the lands
of the respective adjoining proprietors which become appur-
tenant to their several estates ainl jiass to their resjx'ctive
assignees by an}' conveyance that may be effectual to transfer
the land itself."' Purchasers from such parties take with con-
structive, if not actual, notice of the i)arty-wall agreement,
and are presumed to have assumed the burdens as well as the
benefits which are incident to it.-*
Yet while it is true that the erection of a party-wall creates
a community of interest between the neighboring proprietors,
there is no just sense in which the reciprocal easement for its
preservation can be deemed a legal incumbrance upon the
property.-'' The benefit thus secured to each owner is not con-
verted into a burden by the mere fact that it is mutual and not
exclusive.^ It would seem, therefore, that where land is sold
and at the time is imjiroved by buildings, the buildings form-
ing the inducement to the sale, the fact that the exterior walls
are party-walls will not be permitted to be urged as an objec-
tion to the consummation of the contract by the vendee; nor
twenty years. In Dobson v. Racey. < Roche v. Ullman, 104 111. 1;
3 Sandf. (N. Y.) Ch. 66, after Main v. Cumston, 98 Mass. 317;
twenty-seven years. Rindge v. Baker, 57 N. Y. 209;
:' Hart v. Lyon, 90 N. Y. 663; Rogers v. Sinsheimer, 50 N. Y. 646;
Brooks V. Curtis, 50 N. Y. 639; Thompson v. Curtis, 28 Iowa 229.
Thompson v. Curtis, 28 Iowa 229; r, Mohr v. Parmelee, 43 N. Y. Sup.
Ingalls V. Plamondon. 75 111. 123; Ct. 328; Hendricks v. Stark, 37
Standish v. Lawrence, 111 Mass. N. Y. 111. But where a party wall
111. It has been held that a wall rests on land otherwise unim-
between two buildings of adjoining proved with an agreement that it
owners, used as a common wall for shall be paid for when used, this
twenty years, becomes a party wall, would create an incumbrance. See
whether equally upon the lots of Burr v. Lamaster, 30 Neb. 688.
each or wholly upon the lot of one « Partridge v. Gilbert, 15 N. Y.
owner. See McVey v. Durkin, 136 601.
Pa. St. 418.
25
38G OBJECTIONS TO TITLE.
will smli party-walls be considered as such an easement or
incumbrance upon the premises as will relieve a vendee from
his contract to purchase them, although he was ignorant that
the walls were party-walls when he made the contract. If
there has been no positive representation of their condition or
character the failure of the vendee to infonn himself on the
subject indicates his indifference as to the jjarticular charac-
ter of the walls, and shows that he was content to buy with-
out being at the trouble of examination or inquiry. This
omission, may be evidence of his own indiscretion and want
of caution but cannot be imputed as a wrong to the vendor
when he has neither done nor said anything to mislead him.
In such a case there would be no failure of any substantial
inducement to the contract.^
§ 322. Unopened streets. A vendee is entitled to all of the
land bargained for, and will not be forced to accept a lot
whose area is diminished by a street laid out on a citj' plan as
running through the property, the existence of which was
unknown to him when the contract was made.^ This is in
accordance with the principle that a vendee, without knowl-
edge of any defect in title when the agreement was executed,
is not compelled to accept a doubtful title or one that will
probably require a lawsuit to establish its validity; and
where the agreement calls for a marketable title or a title free
from incumbrances, an objection may properly be made for
this reason, and the existence of the street will constitute an
incumbrance or restriction upon a portion of the lot sufficient
to bar the vendor from a decree in his favor.'*
§ 323. Clouds upon title. As has been stated, unless the
/ vendee has otherwise agreed it is his undoubted right to
\/ demand a "clear" title; and if obscurations appear thereon he
may reject it for that reason. A "cloud" consists of a deed,
lien, charge or incumbrance of any kind which casts a shadow
upon the title, regular and apparently valid upon its face, but
in fact irregular and void from circumstances which have to
be proved by extrinsic evidence.^^ If the invalidity plainly
1 Hendricks v. Stark, 37 N.Y. 106. lo Murphy v. Mayor, etc., of Wil-
8 Peck V. Jones, 70 Pa. St. 83; mington, 10 Houst. (Del.) 108;
Kyle V. Kavanagh, 103 Mass. 356. Crooke v. Andrews, 40 N. Y. 547;
'••Appeal Sav. Bank of Pitts- Sanxay v. Hunger, 42 Ind. 44; Da-
burgh, 3 Atl. Rep. 821. vidson v. Seegar, 15 Fla. 671.
OBJECTIONS TO TITLE. 387
aitpcjU'S oil tli<' I'mcc of llic iiistniiiicii!," or, altlioii^Mi iio(
apparciil on tlic w litiii;:,, if il is shown l)y any ol" iIh- iirdiin-
inaiics wliicli atlciMl il, or in any of the links wliirli connect
if with the lill<','- so tliat no lapse of lime nor cliaii^^e of cir-
eiiiiislames can weaken llio iiicans of defense, hikIi an
iustrniiienl docs not, in a jiisl sense, even cast a clond iiixin
the tith' or diminish tlu' security of the owner of the hmd;^''
for tlie nih' is well .settled that such an instrument can work
no niischief, and that no occasion arises for equitable inter-
ference for its removal or cancellation.'^
On the other hand, anything which, if asserted by action
and jnit in evi<h'nce, would compcd the production of defend-
ant's title is a cloud,''' Anything which may injuriously affect
title, or may be vexatiously used against the owner of such
title, properly conies under the same definition;'" and this will
apply to all matters where the invalidity can only be made to
appear b}' extrinsic evidence.^'^ The matters which go to con-
stitute a cloud are such as are usually enumerated under the
head of defects of title, and may consist of agreements for
conveyance, void because of extrinsic facts ;^^ a certificate of
sale under a void levy;i'-' a sale made under a mortgage with
power after the payment of the debt;-^ a deed made without
11 R. R. Co. V. Schuyler, 17 N. Y. Fonda v. Sage, 4S N, Y. 173; Mar-
599; Sloan v. Sloan, 25 Fla. 53. tin v. Graves, 5 Allen (Mass.), 661.
1^ Fonda v. Sage, 48 N. Y. 173; i' Douglass v. Nuzam, 16 Kan.
Griswold v. Fuller, 33 Mich. 268. 515; Sanxay v. Hunger, 42 Ind. 44;
As where title is deduced through Alden v. Trubee, 44 Conn. 455;
a judicial sale, where the proceed- Daniel v. Stewart, 55 Ala. 278;
ings which were the basis of such Crooke v. Andrews, 40 N. Y. 549.
sale, and upon which the validity is As the record of an agreement
of the adverse title depends, are for sale upon condition, with no
shown to be void for jurisdictional notification of its acceptance or
defects. Florence v. Paschal, 50 compliance with same. Sea v.
Ala. 28; Hatch v. City of Buffalo, Morehouse, 79 III. 216. Or agree-
38 N. Y. 276. ment not accepted in time but aft-
I't R. R. Co. V. Schuyler, 17 N. Y. erwards recorded. Larmon v. Jor-
599; Bogert v. City of Elizabeth, dan, 56 111. 204.
27 N. J. Eq. 568. i» Shannon v. Erwin, 11 Heisk.
i-t Fonda v. Sage, 48 N. Y. 173; (Tenn.) 337; Stout v. Cook, 37 111.
Cohen v. Sharp. 44 Cal. 29. 283.
1'' Lick v. Ray, 43 Cal. 83. 20 Redmond v. Packenham, 66 111.
leDulI's Appeal. 113 Pa. St. 510; 434.
388 OBJECTIONS TO TITLE.
aiithoi'it.v;^' a 7iioi'tji;a}j;e paid but not rt'leased,^^ or one j^iven
without consideration.
§ 324. Purchase with notice of defects. It has been held
that, where a purchaser knows when he makes his contract
that there is a defect in the title, and that it will take consid-
erable time to remove it, or acquires this knowledge after his
purchase and acquiesces in the delay, or proceeds, with knowl-
edge of the defect, in the execution of the contract, he cannot
afterwards eomplain.^^ Frequently the act of taking posses-
sion with knowledge of defects will be held to be a waiver of
the right to object for that reason.^-*
§ 325. Variance and discrepancy — Flaws. It will not infre-
quently happen that an examination of the title discloses an
apparent defect of title in the nature of a flaw, but which is
not so in fact, the apparent flaw having been occasioned by
an imperfect designation or misnomer. Thus, where a deed
to William Harmon is followed by a conveyance from William
Herman, there is an apparent break in the chain unless other
evidence is produced to show the identity of person. There
can be no doubt that a title disclosing such a state of facts is
objectionable for that reason; and notwithstanding the names
may stand for and represent but one person, the variance is of
such a character as to raise grave doubts, while the defect
would clearly be a violation of the terms of an agreement to
furnish a clear title deducible of record.
In construing deeds of this character, however — that is,
where a party takes under a misnomer, but conveys by his
proi)er name — courts are ever inclined to grant the widest
leniency; for, in the great influx of foreign-speaking popula-
tion w^hich the United States is constantly receiving, mistakes
must occur in adapting to the English forms of pronunciation
foreign names and the spelling of the same; hence it has been
held that a deed to Mitchell Allen followed by a deed from
Michael Allaine is not a fatal variance, and the name will be
21 Carter v. Taylor, 3 Head and the intervening equities.
(Tenn.), 30. Where time is not of the essence
22 Matheson v. Thompson, 20 Fla. of the contract the vendor will be
790. allowed a reasonable time to obtain
23 In such case specific perform- or perfect title. Rader v. Neal, 13
ance will be decreed, with strict W. Va. 373.
regard to the terms of the contract -^ Jones v. Taylor, 7 Tex. 240.
OBJECTIONS TO TITLE. 389
coiiHidcrcd (he sniiic-"'' S(t, also, I lie ii<-;,Mi;jcii((' of tlic iccoid-
ui<f2; ofliccr will often iirodiicc a <lispaiit_v of (liis kiud; as
where (lie records s]iow<'d a deed to l^lecla Wilds, and u snb-
seijnent deed of the same iiro{)ert,v from Kleeta Wihh-r, Wilds
being, however the trne name.-" In each of the fore<,'oing
cast's as well as in cases similar thereto, the defect of title as
shown l).v the I'ecords wonld nnd(jiil)t«'dl,v be siiflicient to war-
rant an intendin;^ iniicliaser in rejectinj;- the title. The dis-
similarity in the names wonld prevent the operation of the
rule respecting iiJcm aoiians, and the lej^^al elTect wonld be that
of an entire stranger to the title conveying the same and pass-
ing it on tlirongh the chain to the last vendee. 15nt without
disputing the rule that a marketable title must be free from
reasonable doubt, it has frequently been held that defects in
the record or paper title may be cured or removed by i)arol
evidence.-^ A purchaser cannot justify his refusal to perform
by a mere cajttious objection, but must show that there is
ground for a reasonable doubt as to' the title offered, such as
alTects its value and would interfere with its sale to a reason-
able iturt'haser, and thus render the land unmarketable. A
defect in the record title, if amounting to a j)ositive tlaw,
would, under most circumstances, furnish a reasonable basis
for objection; but, on the other hand, if competent evidence is
furnished showing conclusively a mistake in the record or the
absolute identity of person with the ditlerent names, together
with such other matters as would leave the case free from any
reasonable doubt that the vendor possessed and could convey
title, then, notwithstanding the apparent defect in the chain
of title as shown by the records, a purchaser could not justly
refuse to perform his agreement.-^
§ 326. Stipulation for failure of title. It is now customary
to make but a small cash payment at the time of closing a
contract, where provision is made for the furnishing of an
abstract of title; and this |iayment. while it applies u])on the
purchase, is generally regarded more in the light of an earn-
s"' Chiniquy v. Catholic Bishop, (N. Y.) 229; Murray v. Harway,
41 111. 148. 56 N. Y. 337.
-« Hellreigel v. Manning, 97 N.Y. 2* Hellreigel v. Manning, 97 N. Y.
56. 66.
27 Miller v. Macomb, 26 Wend.
390 OBJECTIONS TO TITLE.
est — a guaranty of good faith — to be retained in case the
purchaser makes default, or to be returned if the title after
examination should i)rove unmarketable. The customary stip-
ulation is that, ''should the title to the property not prove
good, then the payment to be refunded." The object of such
a clause is to avoid disputes about the title, and while it is
being adjusted the purchaser keeps his money, and the vendor
\Aill be enabled to find another purchaser if the vendee is dis-
satisfied with the title. But the vendee, in such case, must
make his election. He cannot claim the benefit of the pur-
chase and refuse to make his payments.^!'
§ 327. Agreement to furnish abstract, when an undertaking
in respect to title. A vendor's obligation in respect to title is
to be determined usually from the character of the conveyance
to be made rather than from any agreement in respect to fur-
nishing an abstract. The office of the latter is purely advis-
ory; it is a compendium of infonnation only, and it is pre-
sumed that the vendee upon its perusal is to exercise his own
judgment with respect to any disclosures it may make. The
agreement of the vendor may be to furnish a "satisfactory
abstract of title," but this in itself cannot be said to imply
any undertaking on the part of the vendor that the title dis-
closed shall be marketable or free from doubt. It is the
abstract, not the title, that is to be satisfactory; and this
has reference to its foinn, make-up, etc., and to the responsi-
bility of the examiner who may have compiled it and certified
to its correctness.
Where the contract specifically provides for an abstract
showing a particular title, this may reasonabl^^ be construed
as an undertaking for title, and as an agreement to produce
evidence of such title, in default of which objections would
lie; but even in such a case the recitals of the agreement con-
cerning the estate to be conveyed and the deed to be given
would probably control in the construction of the contract.
A clause which provides that the vendor is to furnish a sat-
isfactory abstract of title and give a quitclaim deed, or one
with limited covenants against the vendor's own acts, upon
tender of which the cash payments are to be made, implies no
undertaking as to the character of title to be conveyed, but,
29 Brizzolara v. Mosher, 71 III. 41.
OBJECTIONS TO TITLE. .^91
On the contrary, shows thai llu- vendor assuiiics no rcsitonsi-
bility as to the title any further than it may have been affected
by his own acts.''" In sucli a case, if the liUc is free from rea-
sonable objection, the vendee would be bound to accept it;
if not, he mi^dit either accept or reject it, as he sliould <'lect.
>; 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. <i More v. Smedburgh. 8 Paige
445; Iglehart v. Vail. 73 111. 63. (N. Y.), 600.
Where the vendee was to satisfy
394 OBJECTIONS TO TITLE.
§ 331. Defects in the subject-matter. Aside from objec-
tions to the title the piu'chaser may sometimes found objec-
tions upon matters connected with or incident to the land
itself. Ordinarily, he will be presumed to know the condi-
tion of the property and to purchase with notice of its charac-
ter, condition and surroundings; and unless some imposition
has been practiced upon him he will not be heard to object on
account of the same. Nor will he be permitted to refuse to
perform because of trilles for which compensation can be
readily made.^- Where the purchaser gets substantially all
for which he contracted, a slight deficiency will form no
ground for a refusal to proceed, where the deficiency is occa-
sioned by no bad faith on the part of the vendor, and when a
full compensation can be made in money.^^ This is undoubt-
edly the rule in equity, but it seems it may not always be
invoked at law; and where a vendor brings his action not to
compel a specific performance but to recover damages for a
refusal to perform, he must be held strictly to the very terms
of his agreement, and show performance of all the conditions
necessary to be performed on his part to put the vendee in
default.
A vendee is ordinarily entitled to the property in the condi-
tion in which it was when bargained for, and he may refuse
to take it in an altered or inferior condition; and while a court
of equity will in most instances decree performance where it
is apparent that compensation can be made in money for the
altered condition of the property, yet at law the vendor by
his own failure to perform w'ould have no right of action for
damages against his vendee.^^
42 As, for instance, that a water- of the remainder, the purchaser
wheel was slightly out of repair, or may be compelled to accept com-
that certain articles of machinery pensation for such deficiency and
were claimed by a tenant, there perform the agreement. De Wolf
being no bad faith on the vendor's v. Pratt, 42 111. 198.
part. Towner v. Tickner, 112 111. -i* As where T. entered into a con-
217. But see Smyth v. Sturges, 108 tract with defendant, by which T.
N. Y. 495. agreed to sell to defendant, and the
•43 The general equity doctrine is latter agreed to purchase, certain
that, although there may be a defi- lots upon which were stores, and to
ciency in the property sold, if the convey the same by warranty deed
deficiency is inconsiderable, and free from all incumbrances. There
does not materially affect the value were at the time various fixtures.
OBJECTIONS TO TITLE.
39;
consisting of partitions, gas-pipe,
plumbing, etc., wliith liad been put
in by a tenant, who afterwards and
Ijefore the tender of a deed re-
moved them, in consequence of
which defendant refused to talte
title. T. offered to make compen-
sation, but this was also refused.
In an action to recover damages,
held, that the defendant was en-
titled to the stores in the condition
they were when bargained for, and
his refusal to take them with the
fixtures removed was not a breach
of the contract, and that the action
was not maintainable. Smyth v.
Sturges, 108 N. Y. 495.
PART III
THE CONVEYANCE.
CHAPTER XII.
THE MEDIUM OF TRANSFER.
332.
Deeds — Defined and distin-
§344.
When vendee entitled to
guished.
deed.
333.
Forms of conveyance.
345.
Time to prepare deed — De-
334.
Deeds of bargain
and sale.
mand for same.
335.
Warranty deeds.
346.
Vendee's right to inspect
336.
Quitclaim deeds.
deed.
337.
Release.
347.
Vendee not required to take
338.
Confirmation.
deed from third party.
339.
Surrender.
348.
When contract has been as-
340.
Assignment.
signed.
341.
Defeasance.
349.
Objections to deed.
342.
Covenant to stand seized.
350.
Duty of preparing deed.
343.
Imperfect deed—
and effect.
■Operation
351.
352.
What method of conveyance
is sufficient.
Re-execution of lost deeds.
§ 332. Deeds — Defined and distinguished. The operative
instrument whereby the transmissal of estate and devolution
of title is effected is generally termed a deed — a name of very
ancient origin and extensive signification. It applies to the
conveyance of every species of property, and in its widest
sense includes every instrument under seal containing a con-
tract or agreement which has been delivered by the party to
be bound and accepted by the obligee or covenantee.
Originally deeds of land were complicated in form/ highly
technical, and very verbose, but modern conveyancing has
1 The elementary writers classify
common-law deeds as follows: Five
original conveyances, to wit: Feoff-
ment, Gift, Rent, Lease, Exchange
and Partition; five derivative con-
veyances, to wit: Release, Confir-
mation, Surrender, Assignment
and Defeasance; and five convey-
ances derived from the statute of
uses, to wit: Covenant to stand
seized to uses. Bargain and sale,
Lease and release. Deed to lead or
declare the uses of other more
direct conveyances, and Deeds of
396
THE MEDIUM OF TRANSFER.
397
reduced them to very siiuplc I'orins, while the liberal eou-
sti'uction of courts, together with radical statutory changes,
have stripped them of many of their technical features.
According to the earlier cases, as well as many later con-
firmatory authorities, deeds to be valid and ellectual must be
in writing, and upon parchment or paper; must be between
parties competent to give and receive title; must be freely
made, and completely written before delivery.
Anciently a distinction was made between deeds of feoff-
ment^ and deeds of grant,^ but this distinction no longer has
any practical existence; and, generally sjieaking, all dtH'ds
DOW in common use are deeds of grant.
§ 333. Forms of conveyance. All of the different kinds of
deeds now in common use are but variations of two original
forms which had their origin in England and have been trans-
mitted to us with the rest of our inheritance of the common
law. These forms are known respectively as deeds-poll and
indentures, or deeds inter partes. The former was used only
where the instrument was the sole act of the grantor, and
revocation of uses. Willard, Con-
veyancing, 419; 3 Wash. Real Prop,
eh. 5.
1! A feoffment originally meant
the gift of a feud, but, since the
abolition of feudal tenures in Eng-
land, signifies the conveyance of an
estate in fee-simple. Livery of seizin
was the distinguishing feature of
feoffment, which in the United
States is unknown; execution, de-
livery and registration being suffi-
cient to pass title, although the pos-
session remains unchanged. Livery
of seizin, as defined by the ancient
writers, is either in deed or in law.
The former is where the parties
go upon the land, and the feoffor,
by some symbolical act, as the de-
livery of a twig, turf, or latch of
a door, or even by express words
without any act. gives possession
to the feoffee. Mere delivery of a
deed on the land is not sufficient.
unless it be made in the name of
seizin of all the lands contained
therein. If a lessee is in posses-
sion his consent is necessary to
livery. Livery in law is where the
parties are not upon, but only in
sight of, the land; and the feoffor
pointing it out, gives it to the
feoffee, and authorizes him to take
possession. This, however, is a
mere license or authority, which
must be consummated by actual
entry; and if either of the parties
die before entry the transfer does
not take effect. But if the feoffee
dare not enter for fear of his life,
a claim as near the land as possible
will be sufficient. Co. Lit. 48 b;
2 Hill. Abridg. 307.
3 A grant at common law is the
conveyance of incorporeal heredita-
ments, such as rents, commons,
etc., which are said to lie in grant
and to pass only by deed.
398 THE MEDIUM OF TRANSFER.
where no reciprocal duties or obli<»ations were imposed upon
the other party; the hitter, on the other hand, was employed
in cases where there were mutual transfers or covenants; and
while the former consisted onl}' of one instrument, signed
by the grantor and delivered to the grantee, the latter con-
sisted of two or more parts, executed by all of the parties, and
interchangeably delivered one to the other. The name inden-
ture is said to have been derived from the practice of writing
both parts of the agreement upon one parchment, with certain
letters between them, and then cutting the parts asunder in
acute angles.**
Although the forms have been retained the practical dis-
tinction between deeds-poll and indentures has ceased to
exist ; and, while indenture is the proper and customary form
for deeds inter partes, it is not uncommon to find deeds-poll
in fact that employ the formula of indentures.^
Much formality was formerly employed in framing a deed,
which for the sake of convenience was divided into a number
of distinct parts ;^ but custom has long since reduced the
phrasing of these parts to comparatively brief clauses, while
the legislatures in most of the states have practically abro-
gated all of the ancient formal divisions.
4 See 2 Hill. Abridg. 280; 2 Shars. 6 The formal parts of a common-
Black, Com. 294. Where a question law deed are as follows:
arose whether a certain ancient The premises, which consists of
transfer was a deed or an author- the introductory part, including
ized transfer upon the town books, the date (although this is some-
it was held that the fact of its times placed at the end), the par-
purporting to be an indenture (as ties, the consideration recitals, the
well as to be signed, sealed and grant, the description, and excep-
delivered) proved it to be a deed, tion, if any.
Merwin v. Camp, 3 Conn. 41. The hahendum, which declares
5 The indenture is the form of the estate or interest granted, al-
conveyance in common use in a though this may also be done in
majority of the states, while the the premises.
use of the deed-poll is mainly con- The tenendum, which accompa-
fined to the states of Alabama, Ar- nies the hahendum, and expresses
kansas, Connecticut, Iowa, Maine, the tenure of the estate.
Massachusetts, Nebraska, New The reddendum, or reservation
Hampshire, North Carolina, Ohio, to the grantor of some new thing
Oregon, Rhode Island. South Caro- in the land.
lina, Texas and Vermont. See The conditions, the covenants
Jones' Forms Conv. 260. and the conclusion, reciting the
THE MEDIUM OF TRANSFER. 399
§ 334. Deeds of bargain and sale. The modes of couvey-
ance now most prevalml in the United States are those
derived from the Enj^lish deed , of barj^ain and wak' under the
statute of u.ses,^ A bargain and saU* was originally a mere
oral agreement for the conveyance of land for a valuable con-
sideration, in consefjuence of which a use arose to the bar-
gainee. But to check the multiplication of secret conveyances,
an act was i)as8ed soon after the statute of uses which
retiuired all conveyances by way of bargain and sale to be
made in writing, indented and sealed, and, if it was of a free-
hold estate, to be enrolled in one of the courts of record.
No livery of seizin was necessary to a bargain and sale to
make the deed effectual, the statute executing the use and
thereby transferring the possession to the legal title without
entry or other act.*^
§ 335. Warranty deeds. The most familiar form of convey-
ance known to our law is the deed of bargain and sale, tech-
nically called a warranty deed. The legal import of a deed
of this character is that of absolute conveyance and that
there is no resulting trust in the grantor, who is estopped
from ever after denying its execution for the uses and pur-
poses mentioned in it, while its name is derived from the per-
sonal covenants which follow the habendum.
execution and the date, either ex- made to one person to the use of
pressly or by reference to the be- another.
ginning. s The statute of 27 Hen. VUI.,
" In England there are two called the statute of uses, recites
classes of conveyances, which de> 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<xularity of the former
deed,
v5 339. Surrender. A surrender is defined as the yielding
up of an estate for life or years to him who has an immediate
estate in reversion or remainder, the lesser estate being
merged in the greater by mutual agreement; and the term is
api»li('d both to (he act and th(» instrument by which it is
accomplished. It is directly opposite in its nature to a release,
which technically operates by the greater estate descending
upon the lesser. The operative words of a conveyance of this
nature are "surrender and yield up," but any form of words
that indicates the intention of the parties will serve the same
purpose; while a surrender is always implied when an estate
incompatible with the existing estate is accepted. Though the
books on conveyancing still continue to give ample forms for
deeds of surnrnder, the quitclaim deed in common use has
taken its place for most purposes; but it would seem that this
is still the proper instrument for the relinquishment of lease-
hold interests, dower, etc.^^
§ 340. Assignment. An assignment is a mode of convey-
ance ai)plicable to any estate in lands whatever; but the terra
is usually employed to express the transfer of an equitable
estate or a chattel interest. The operative words of convey-
ance are "assign, transfer and set over," but any other words
evincing an intention to make a complete transfer are suffi-
cient.
A new meaning has within very recent years been given to
sion, because the statute of uses livery. But things lying in grant
without possession vested the ac- could not, as a deed was necessary
tual estate in him, upon which the to create them. And even such
release could operate. This point, things, lying in grant, as were not
though once doubted, was at length created by deed, were subject to
fully settled. 2 Hill. Abridg. 330; the same rule; as, for instance, a
4 Cruise, Dig. 103. remainder for life after a lease for
15 At common law lands might life. So an estate by the curtesy
be surrendered without dcod or or in dowor. 4 Cruise, Dig. 79,
404 THE MEDIUM OF TRANSFER.
this word, as applied to sales of real property, by the action
of a few courts of last resort. While the tendency of courts
has long been to discourage technical rules of construction,
when such rules tend to defeat the manifest intention of the
parties, yet the cardinal principles which have always
obtained have not heretofore been disturbed. Thus, a grant,
to be effective as a conveyance of land, must, by apt lan-
guage, describe the parties and the thing granted and the
description so given should be complete in itself and of such a
character as to preclude a resort to extrinsic evidence. The
rights of property imperatively demand a strict adhesion to
these principles. A "liberal construction" does not justify
the judicial interpolation of words. For this reason it would
seem to be in consonance with sound principles of law that
an assignment endorsed upon a deed should be inoperative
to effect a conveyance of the land therein described or trans-
fer title.i*' A contrary opinion has been reached, however, in
several cases, the effect of which, if generally followed, may be
to overturn much of the established law relating to deeds
and the methods of legal conveyancing. Thus, it has been
held that where a grantee in a deed places upon the back of
it an assignment to a third person, for value, of all his title
and interest *'in and to the within deed" and delivers same,
such assignment will be effective as a transfer of the legal
title to the land in such deed described.^''^
The controlling motive which seems to have induced the
foregoing ruling was the familiar doctrine that it is not essen-
tial that a deed should be couched in any precise form of
words and that courts should give effect to the intention of the
parties. But, while equity, upon a proper showing, would
probably treat such an endorsement as an executory contract
to convey, it is doing violence to all the rules of conveyanc-
ing, as well as setting a dangerous precedent in loose meth-
ods, to call such a writing a deed.
§ 341. Defeasance. A defeasance has been defined as a
collateral deed, made at the same time with a feoffment or
grant, containing certain conditions upon performance of
iBTunstall V. Cobb, 109 N. C. 316; "See Harlowe v. Hudgins, 84
Arms V. Burt, 1 Vt. 303; Lessee of Tex. 107; Lemon v. Graham, 131
Bently v. Deforest, 2 Ohio 221. Pa. St. 447.
THE MEDIUM OF TRANSFER. 405
which the cstalc thereby created may be defeated.^^ It differ.s
from a condition in nothin}; but that the latter makes a part
of the conveyance itself, while the former constitutes a sep-
arate instrument. It was formerly much used in connection
with mortgages, but at present, and in the United States, it
is practically obsolete.
§ 342. Covenant to stand seized. There is another form of
conveyance, operating under the statute of uses, called a cov-
enant to stand seized to uses. Formerly, if one jx-rson cove-
nanted for himself and his heirs that for a certain considera-
tion another should have his land, though the land did not
pass for want of livery, yet the covenantee gained the use;
and after the enactment of the statute of uses the use thus
acquired became executed by the statute and the party to be
benetited at once placed in possession of the land. This form
of deed seems to have been a very peculiar species of con-
veyance, confined entirely to family connections and founded
on the tender consideration of blood or marriage ;^^ but this
limitation, while undoubtedly expressing the English law on
the subject, has been denied in some of the later American
cases, which, while admitting that the law recognizes the
natural affections, and the mutual obligation of support which
springs from the family relations, as affording a good and
meritorious consideration for a deed of conveyance, yet deny
that any form of conveyance can be so consecrated by a mere
sentiment that it cannot be permitted to operate between any
])arties other than relatives, nor upon a pecuniary considera-
tion. Upon every principle of the law of contracts, money is
now considered as a sufTicient consideration for the supjtort of
any contract whatever, so far as its validity depends upon a
consideration as such; and it may be safely asserted that the
distinction between a deed of bargain and sale and a covenant
to stand seized, so far as the same may depend upon the
nature of the consideration, does not at the present time exist
in this country.-^*
18 4 Cruise. Dig. 82. Piclt. (Mass.) 111. If a father bar-
's See Jackson v. Sebring, 16 gain and sell land, witli warranty
Johns. (N. Y.) 515; French v. to his child or grandchild, to hold
French, 15 N. H. 381. from the grantor's death, the la-"-
20 See Trafton v. Hawes, 102 will presume a good consideration
Mass. 533; Parker v. Nichols, 7 in addition to the valuable con-
■i06 THE MEDIUM OF TRANSFER.
Nor can a mere covenant to convey now be said to operate
to transfer an estate; and although, for certain purposes,
courts of equit.y will regard a covenantee as possessed of an
equitable interest in the land, yet at law such a covenant can
generally have no higher effect than a personal contract
affording a foundation for damages in law or grounds for
relief by way of specific enforcement in equity.
But while conveyances of this character have practically
ceased to exist, the principle and rules which pertained to
them have to some extent been retained, and in the further-
ance of intention courts still resort to them to give effect to
deeds which by reason of insufficiency are unable to operate
in other ways.-^
§ 343. Imperfect deed — Operation and effect. The rule is
strongly established in equity tliat a contract evidenced by a
writing cannot be defeated by innocent mistake or error; and,
in pursuance of this principle, a long list of authorities confirm
the doctrine that where a deed is insufficient as a conversance
it may still have effect as an executory contract to convey.
Notwithstanding a deed may be technically defective, yet, if
made by a person possessing title, it will still be valid as
between the parties, so as to bind the lands conveyed in the
hands of the grantor, his heirs, and all others claiming under
him by operation of law, as well as subsequent purchasers
with notice ;-2 and courts of equity will always interfere for
the relief of a vendee who has taken by a defective convey-
ance, and compel a proper transfer.23
The rule is applied in all cases where there has been a
sideration expressed in the deed, seized, especially where the intent
and construe it a covenant of the is unmistakable from th^ relation-
grantor to stand seized to his own ship of the parties. The deed is
use during his life, and after his not invalidated by the fact that its
death to the use of the grantee, terms attempt to create an estate
Wallis V. Wallis, 4 Mass. 135. in fee in futuro. Kent v. Atlantic
21 See Exum. v. Canty, 34 Miss* Delaine Co. 8 R. I. 305.
569; Horton v. Sledge, 29 Ala. 478. 22 Mastin v. Halley, 61 Mo. 199;
A quitclaim deed in common form, Ross v. Worthington, 11 Minn. 442;
except that the habendum, clause Wadsworth v. Wendell, 5 Johns,
provides that the conveyance shall Ch. (N. Y.) 224.
take effect from and after the day 2.{ Mastin v. Halley, 61 Mo. 199;
of the grantor's decease, is to be Conrad v. Schwamb, 53 Wis. 372;
construed as a covenant to stand Jewell v. Harding, 72 Me. 126.
THE MEDIUM OF TRANSFER. 407
casual oiiii.s.sioii by aicidc-iit or Uiistake- ul some tcclinical
requirement necessary to make an instrument valid or effec-
tual;-* and even where a deed, duly executed and otherwise
complete, fails through misdescription to convey the land
intended, it may still be treated as a contract to convey which
equity will enforce.^^
g 344. When vendee entitled to deed. The conditions of
sale usually jtrovide for the time and uiauner of passing title
and when these matters are regulated by express agreement
no question can ordinarily arise with resjjcct to same. In the
absence of special provisions in reference thereto the gen-
eral rule would seem to be that the vendee is not entitled to
conveyance until full pa^Muent of the purchase-money has
been made. In such case, the acts of payment and convey-
ance being mutual and dependent, neither party is in default
until after tender or demand.-''^
§ 345. Time to prepare deed — Demand for same. The gen-
eral rule is that when a party agrees to perform an act, and no
time is specified for its completion, he must have a reasonable
time for the i)urpose; and to be put in default the opposite
party must demand its performance. In pursuance of this
rule it has been held that where the vendor of land receives
the purchase money for the same and agrees to convey it to
the purchaser, but no time is specified, he is entitled to a rea-
sonable time within which to make the conveyance, and the
purchaser in such case should demand a deed; and the vendor
should refuse or neglect to comply with the demand before
the purchaser can recover back the money i)aid by him as the
consideration of the conveyance.-'
It has further been held that a vendor of lands who has
covenanted to convey by a day certain is not in default until
the party who is to receive the conveyance, being entitled
-* An instrument purporting to Brinkley v. Bethel, 9 Heisk.
convey land, but which by mistake (Tenn.) 789; McCarley v. Super-
has only one witness, and is not visors, 58 Miss. 486.
sealed, is in equity a contract to -"■ Conrad v. Schwamb, 53" Wis.
convey the land described, and the 372.
consideration expressed will be -'• Easton v. Montgomery, 90 Cal.
presumed to be the true consldera- 307.
tion for the conveyance. Dreutzer -" Kime v. Kime, 41 111. 397.
V. Lawrence, 58 Wis. 594. And see
408 THE MEDIUM OF TRANSFER.
thereto, has demanded it, aud, having wailed a reasonable
time to have it drawn and executed, has made a second
demand.2*^ It seems, however, that the purchaser may avoid
the necessity of a second demand by tendering on the first
demand a deed prepared for execution;-'* nor will a second
demand be necessary if on the first demand the vendor refuse
to execute the deed.'^o So, where there are several persons
jointly bound to execute a deed, and the same is demanded of
one of them aud refused, no demand of the others will be nec-
essary — the refusal of one subjects all to an action.^^
§ 346. Vendee's right to inspect deed. It would seem rea-
sonable that, under the practice which prevails in this coun-
try whereby the vendor and not the vendee prepares and
tenders the deed, the vendee should have suitable opportunity
of examining the same before he pays the purchase money,
and that the vendor should, upon demand made, exhibit such
deed that the vendee may found any proper objections to its
form or substance. Ordinarily, however, the delivery of the
deed and the payment of the purchase money are contempo-
raneous acts; and while inspection may follow at such a time
as an incident, it does not appear, unless the contract so pro-
vides, that a vendee has the right to insist upon an inspection
of his vendor's deed before paying the purchase money agreed
upon.^2 But where the purchaser offers to make payment on
inspection of the deed, provided it shall prove satisfactory,
and the vendor refuses to allow inspection, though stating
that he has the same prepared and ready for delivery on pay-
ment, this will not be regarded as a sufficient tender of the
deed, or a manifestation of such a willingness to comply with
28 Connelly v. Pierce, 7 Wend, the money necessary, offered to pay
(N. Y.) 129. it, if, upon inspection of the deed,
20 Connelly v. Pierce, 7 Wend, it should prove satisfactory, which
(N. Y.) 129. inspection the vendor refused, but
30 Blood V. Goodrich, 9 Wend. 68. offered to deliver the same on de-
31 Blood v. Goodrich, 9 Wend. 68. posit of the money with his banker,
32 Under a contract for the sale which the assignee refused to do.
and conveyance of land, the pur- Held, that neither party was re-
chaser was to make payment on or lieved from his obligation under
before a day named, when the ven- the contract by what then trans-
dor was to deliver conveyance. On pired. Papin v. Goodrich, 103 111.
the day preceding this day, the 86.
assignee of the purchaser, having
THE MEDIUM OF TRANSFER. 40D
his contract as will autlioiizc him tht'ii, on the rcfuHul of the
purchaser to perform, to tile a bill to cancel the contract.^^
Possibly the proof of a local custom to afford purchasers an
opportunity to inspect the deed before rtMjuirin^ tlicm to make
payment might be shown in cases similar to the foregoing;
but in order to do this there should also be evidence to prove
that the custom was uniform, long established, generally
acquiesced in, and so well known as to induce the belief that
the parties contracted with reference to it;''* but unless this is
also shown the evidence of custom should be excluded. And
the attempt to show such a custom is open to the further
objection that, unless the delivery of the deed is made a i)rece-
dent act, it is impossible that there could be a custom to allow
a party to inspect a deed at a time when there is no legal duty
to have such deed made and ready for delivery.^^ Thus, where
a deed is to be delivered and possession given on payment of a
sum certain, the pajment of the consideration must precede
the right of the purchaser to receive a deed.^*^
i5 347. Vendor not required to take deed from third party.
Where one party agrees to convey to another by wai'ranty
deed a certain tract of land, the legal title to which is vested
in a third person, the procuring of the conveyance of the laud
by such third person, with his warranty will not answer its
requirements;^"^ the party who was to receive the deed is enti-
tled to have the personal covenants of him who agreed to con-
vey as a further security for his title.^^
§ 348. When contract has been assigned. When a vendee
has contracted for the purchase of land and sold it to another,
the latter will be entitled to receive from the first vendor the
same kind of deed which he contracted to give his vendee.-''^
§ 349. Objections to deed. It is the duty of the purchaser,
3.t Papin V. Goodrich, 103 111. 86. Headley v. Shaw. 39 111. 354; Rabb
3> 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.
<o Mellon V. Webster, 5 Mo. App.
413 THE MEDIUM OF TRANSPER.
vendoi'."*^ It may be safely asserted, however, ihat this rule,
if indeed it ever obtained, has long since been reversed; and
in most if not all of the states, unless there has been some
express stipulation to the contrary, the vendor is bound to
prepare the deed at his own expense and tender the same to
the vendee properly executed.'*'^ Until this has been done, or
an offer of the same made, no right of action exists against the
vendee, unless by his acts or conduct the vendor has been dis-
charged or excused from the perfoiTnance of the duty.^*^
If a mortgage is to be given back by the jmrchaser he must
prepare and execute one in order to make a proper tender
when demanding a conveyance.'*^
§ 351. What method of conveyance is sufficient. In every
contract for the sale of lands, whatever may be the language
in which it is couched, there is an implied undertaking to fur-
nish a marketable title, unless such an obligation is expressly
excluded by the terms of the agreement,^^ ^nd, in the absence
of any stipulation as to the kind of conveyance, to make such
a deed as will render the sale effectual.'"*^ If the contract calls
for a specific title or method of conveyance, the purchaser may
insist upon a strict performance, and cannot be compelled to
accept any other or different title or medium of transfer, not-
withstanding such proposed substitutes may be equally as
good.^^
But under the legal rules of construction now applied to
conveyances of land and estates and interests therein, the
form of the instrument of transfer has become a matter of
minor importance. The technical operative words, w'hether of
grant or limitation, have wholly, or in a large measure, lost
48 Taylor v. Longwortli, 14 Pet. Longworth, 14 Pet. (U. S.) 172;
(U. S.) 172. Paul V. Brown, 9 Minn. 157.
49 Tinney v. Ashley, 15 Pick. so Parker v. Parmlee, 20 Johns.
(Mass.) 546; Hill v. Hobart, 16 (N. Y.) 130; Hunt v. Livermore, 5
Me. 164; Connelly v. Pierce, 7 Pick. (Mass.) 395; Thomas v.
Wend. (N. Y.) 129; Headley v. Lanier, 23 Ark. 639; Davidson v.
Show, 39 111. 354; Walling v. Kin- Van Pelt, 15 Wis. 341.
nard, 10 Tex. 508; Seely v. How- si Longfellow v. Moore, 102 111.
ard, 13 Wis. 336 Winton v. Sher- 289.
man, 20 Iowa, 295; Arledge v. 52 Holland v. Holmes, 14 Fla.
Rooks, 22 Ark. 427; Guthrie v. 390; Burwell v. Jackson, 9 N.Y. 544.
Thompson, 1 Ore. 353; Taylor v. 53 Hoffman v. Fett, 39 Cal. 109.
54 Page V. Greely, 75 111. 400.
THE MEDIUM OF TRANSFER. 413
thoir foiiMcr ('lluncv; ;iii(l altluMi^h it is si ill luccssary U)
effectuate a coiivcvaiHc that it contain apt wordH evincing an
intention to convey,"'"' yet every i)art of the instrument nuiy be
resoiti'd to for the purpose of ascertaininj; its tiue meaning;''"
and <j;enerally any writing; that sulliciently identities the par-
ties, describes the hind and acknowh-dj^es a sale of the ven-
dor's rights, if executed in conformity to hiw, is a good and
valid deed of bargain and sale/'^ The attention of the pur-
chaser is now mainly directed to the condition of the vendor's
title, and if this is perfect in the person proposing the same,
the vehicle of conveyance does not so much matter. An
ordinary quitclaim is fully as effectual for transferring title
as a technical deed of bargain and sale,''^ and will pass to the
grantee all the present estate or interest of the grantor,'^^
together \Cith the covenants running with the land,*'" unless
there be special words limiting and restricting its operation.
Hence, a contract to convey a perfect title by a "good and
sufhcient" deed may be fully performed by making a quitclaim
deed;*'^ provided, of course, that such deed conveys the entire
estate*'^ ^^d vests in the purchaser an indefeasible title.*'^
Neither the implied nor expressed covenants add anything to
the title or in any way enlarge the estate granted save as they
may affect future accjuisitions by way of estoppel, and they
are usually inserted only for the purpose of personal indem-
nification; while the fact that parties have made a written
agreement for a sale without providing for any covenants cer-
tainly tends to indicate that they did not intend there should
be any .6^
Although there is a manifest impropriety in permitting local
usage or custom to iutluence the terms of an express contract,
55 McKinney v. Settles, 31 Mo. "^ Kyle v. Cavanagh, 103 Mass.
541. 356; Thayer v. Torrey. 37 N. J. L.
50 Saunders v. Hanes, 44 N. Y. 339; and see Bagley v. Fletcher, 44
353; Collins v. Lavalle. 44 Vt. 230. Ark. 153.
■'•■ Chiles V. Conley's Heirs. 2 "-' Taft v. Kessel. 16 Wis. 273.
Dana (Ky.), 21. ••••< Delevan v. Duncan. 49 N. Y.
'•» Morgan v. Clayton. 61 HI. 35; 485; Davis v. Henderson, 17 Wis.
Rowe V. Becker, 30 Ind. 154; Pin- 105; Parker v. Parmlee. 20 Johns,
gree v. Watkins, 15 Vt. 479. (N. Y.) 130.
•■''i> 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 <i Murry v. Blackledge, 71 N. C.
so construe it and thus give effect 492.
to the instrument. Heath v. Hewitt, *- Moreau v. Saffarans, 3 Sneed
127 N. Y. 166; Huss v. Stephens, 51 (Tenn.), 595.
Pa. St. 282. *^ As a general rule grantees may
3T Douthitt V. Stinson, 63 Mo. always take under the general des-
268; Hornbeck v. Westbrook, 9 ignation of "sons," "daughters" or
Johns. (N. Y.) 73. "children."
434 CONSTRUCTION OF DEEDS.
be sufficient, but, iu the case above referred to, the court held
otherwise.
A misnomer will not ordinarily defeat a grant; and a deed
to a party by a wrong baptismal or christian name may yet
suffice to vest title in the intended grantee,^* extrinsic evidence
being admissible to explain mistakes or prove identity;^'* and
if upon a view of the whole instrument the grantee is pointed
out, the grant will not fail, even though the name of baptism
is not given at all.'*'' Where father and son bear the same
name, unless explained, the grant will be taken as one to the
father.^^
The grantor in a deed is usually indifferent as to who the
grantee is, where he receives the consideration money for the
land conveyed, and the designation of such grantee is usually
controlled by the will of the person with whom he negotiates
and from whom he receives the pay; but unless, from the
testimony, it appears that he is thus willing to be controlled,
the grantor's intention is the proper subject of inquiry in
determining who the grantee is, where the deed is so drawn
as to be sufficient to convey the title to either one of two
parties.^^
§359. Presumption as to grantee — Persons of same name.
Notwithstanding that similarity of names is common, and that
not infrequently the same name is borne by a number of differ-
ent parties living in the same community, it is rare that any
attempt is made to assume ownership without a claim of right
simply by reason of possessing a name identical with that of a
record grantee. In the cases where the question as to owner-
ship has arisen the contests have mainly been between father
and son, and dependent upon peculiar circumstances. Where
two persons bear the same name a designation of character,
44 Staak V. Sigelkow, 12 Wis. 234. 10 Paige (N. Y.), 170. The word
But see Crawford v. Spencer, 8 "Jr." forms no part of the name
Cush. (Mass.) 418. of the person to whose name it is
•J"' Peabody v. Brown, 10 Gray usually affixed, but is merely de-
(Mass.), 45. scriptive of the person intended,
4« Newton v. McKay, 29 Mich. 1; and is usually adopted to describe
Scanlan v. Wright, 13 Pick. (Mass.) the son where father and son both
523. have the same christian name as
47 Stevens v. West, 6 Jones well as family name. Id.
(N. C), 49; Padgett v. Lawrence, 48 Diener v. Diener, 5 Wis. 483.
CONSTRUCTION OF DEEDS. 425
a.s "Sr.," ",Ir.," "iM," etc., oi- i)()Hsil»l\ a ririial oT tlif jjlacc of
rcsidciifc, may bccoiiM* an ('flicicnl means of point in;; out tho
true person meant; yet, as a matter of law, the terms "Junior"
or "Senior" Lave no particular Ki^nificance or controlling
etlicacy.
Where a father and son have the same name, and a convey-
ance of land is made without designating whether to the
father or the son, tlie law will presume that lh«' father was
intended for the grantee in the absence of proof to the con-
trary ;■*'*> 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 <h'ed, read in the light of the
surrounding; facts and circunistances."' Tt is a general rul(»
of construction that nionunicnts control courses and distances,
and estimates of quantity are usually subordinated to both.^^
The I'ule that fixed monuments, whether natural or artificial,
should usually be given preponderating weight and preferred
to course and distance is obviously reasonable, as they are
less liable to error,'- while vaiiance between actual and esti-
mated quantity is not usually a material circumstance; and
when the quantity is mentioned in addition to a description
of the boundaries, or other certain designation of the land,
without an express covenant that it contains that quantity,
the whole is considered as mere description. The quantity,
being the least certain part of the descrijition, must yield to
the definitely determined boundaries or lot-number if they do
not agree.13
The calls of a deed, whether natural or artificial, are further
divided into two classes, one termed descriptive or directory,
and the other special and locative. The former, though con-
sisting of rivers, lakes, etc., must yield to the special locative
calls, for the reason that the latter, consisting of the particu-
lar objects upon the lines or corners of the land, are intended
to indicate the precise boundary of the land, about which the
locator and surveyor should be, and are presumed to be. very
exact. On the other hand, the fonner are generally called
for without any care for exactness, and are intended merely
in the deed which it is sought to u Baldwin v. Brown, 17 N, Y,
reject is an accurate description of 359; Watson v. Jones, 85 Pa. St.
the land intended by the parties to 117; Davis v. Rainsford, 17 Mass.
be conveyed. Prentice v. Stearns, 207.
113 U. S. 435. 1- Crampton v. Prince, 83 Ala.
9 Stafford v. King, 30 Tex. 257; 246.
Crampton v. Prince, 83 Ala. 246; i3 Jackson v. Moore, 6 Cow.
Adair v. White, 85 Cal. 314. (N. Y.) 705; Ware v. Johnson. 66
10 Stafford V. King, 30 Tex. 257; Mo. 6C2; Belden v. Seymour, 8
Truett V. Adams, 66 Cal. 218; Ly- Conn. 19; Dalton v. Rust, 22 Tex.
man v. Looniis, 5 N. H. 408; Smith 133; Clark v. Scammon, 62 Me. 47;
V. Dean, 15 Neb. 432, Doyle v. Mellon, 15 R. I. 523.
438 THE I^ND CONVEYED.
to point out or load a person into tlic region or neighborhood
of the tract, and hence not considered as entitled to much
credit in locating the particular boundaries of the land. When
' they come in conflict with special locative calls, they must
give way to them.'*
^ 368. Ambiguous descriptions. The object of the law in
permitting a construction of a deed is to ascertain and dis-
cover the intention of the parties, so that the same, if possible,
may have effect. To this end all the references to location
and description of the land intended to be conveyed are
required to be considered in order to arrive at the true mean-
ing and intention of the instrument; and where ambiguity
can only be dispelled by the rejection or substitution of words
or phrases, such words may be rejected or supplied by intend-
ment in order to give effect to the intention.^ ■'»
A deed will not be ambiguous simply because it does not
show on its face the limits or quantity of the land granted,
provided it refers to certain well-known objects by which
such limits may be readily ascertained.!*^
The general rule is that a deed must be upheld if possible,
and the terms and phraseology of description will be inter-
im Wright V. Mabry, 9 Yerg. is Simmons v. Jordan, 14 Wis.
(Tenn.) 55; Stafford v. King, 30 523; and see Coats v. Taft, 12 Wis.
Tex. 257. 388, where a deed described the
15 Hathaway v. Power, 6 Hill land conveyed as a part of the east
(N. Y.), 453. A call in a deed for half of the southwest quarter of
a block of a certain number may section 5, township 3, range 8, be-
be rejected and another block sub- ginning on the south line of said
stituted where the error is appar- section 5, on the east side of the
ent from the whole description, bottom land of the creek, far
Murray v. Hobson, 10 Colo. 66. So, enough up the bank to raise a
too, where a call in a deed read nine-foot head to a mill standing
"east with," etc., and it was mani- by the bridge on section 8; thence
fest that this meant "east parallel up the bottom land one hundred
with," etc., held, that the missing rods, to include all the bottom land
word should be supplied by con- on both sides of the creek, within
struction. Deal v. Cooper, 94 Mo. the above-mentioned bounds. Held,
62. And see Edwards v. Bowden, that the deed conveyed the bottom
99 N. C. 80; White v. Gay, 9 N. H. lands that would be flowed 'by such
126; Thatcher v. Rowland, 2 Met. nine-foot head, on each side of the
(Mass.) 41; Reamer v. Nesmith, 34 creek, for the distance of one hun-
Cal. 624; Chandler v. Green, 69 Me. dred rods, in a direct line from the
350; Meyers v. Ladd, 26 111. 415. place of beginning, up the creek,
THE LAND CONVEYED.
439
])r('t('(l lo tliiit end if tliis (iiii i(';is(»ii,il»l v lit- done consistently
with the priiiciiilcs jiiid nilrs oT law.'' In the iurthoraDce of
this iiilc courts arc ever inclined to exercise a wide latitude
in construing; descriptions, and lor the purpose of Kustainiu^ a
grant will receive extrinsic evidence to identify and establish
the object of the call in a deed; an<l in all cases where an
apparent uncertainty is created, but which may be removed
by judicious construction and resort to parol proof, such proof
may be resorted to.''*
§ 369. Inconsistent descriptions. Following; the rule that a
deed is to be construed according; to the intention of the
parties as manifested by the entire instrument, althoujjjh such
construction may not comport with the language of a particu-
lar part of it,'" it has been held that, where a deed contains
two descriptions equally explicit and unambiguous, but incon-
sistent with each other, that description must control which
best expresses the intention of the parties as manifested by
the whole instrument, due regard being had to the attendant
facts and circumstances.-*^ This ditliculty occurs most fre-
quently where, in the anxiety of the draughtsman to insure
to a point where the water would
be flowed, on the same side of the
creek, by the nine-foot head of
water at the mill referred to. And
see Nixon v. Parker, 34 Miss. 697;
Pursley v. Hayes, 22 Iowa, 11;
Dorr V. School District, 40 Ark. 237.
IT Edwards v. Bowden, 99 N. C.
80.
i»As, where the description in a
deed is perfect but there is a mis-
take as to its geographical posi-
tion, the location of the property
geographically may be rejected as
surplusage, and parol evidence i*e-
ceived to identify the property de-
scribed in the deed. Myers v.
Ladd, 26 111. 415. So. also, where
lands are accurately and minutely
described by metes and bounds,
courses and distances, and other
indicia of location, as the owner-
ship of adjoining lands, etc., but
a mistake is made in the quarter
section. Thompson v. Joiies, 4 Wis.
106. A deed described the land
thereby conveyed as being in
"Linghton," in the county of Addi-
son. Held, that the name "Lingh-
ton" was so like the name "Lin-
coln," a town in said county, and
so unlike the name of any other
town in the county, that the deed
was properly admitted in evidence,
in connection with other evidence
showing the situation and circum-
stances at the time, as tending to
show that the Jocus in quo was the
land conveyed by the deed. Arm-
strong V. Colby, 47 Vt. 360.
1" Allen v. Holton, 20 Pick.
(Mass.) 458; White v. Gay, 9 N. H.
126; Richardson v. Palmer, 38
N. H. 212.
•JO Driscoll v. Green, 49 N. H. 101;
Wade v. Deray, 50 Cal. 376; Bene-
dict v. Gaylord, 11 Conn. 332.
440 THE LAND CONVEYED.
absolute accuracy, one description is, as it were, superadded
to the other, and one description beint;- complete and sutlicient
in itself, while the other, which is subordinate or superadded,
is incorrect. In such event the incorrect description, or
feature or circumstance of the description, may be rejected as
surplusage, and the complete and correct description allowed
to stand alone.^i
Words of general description, if inconsistent with the
description by metes and bounds, should be rejected ;2- and,
generally, whenever several particulars are mentioned, those
found erroneous may be disregarded, and the unambiguous
and correct may be relied on to determine the rights of the
parties.23
Course and distance, while furnishing in most instances
reliable data from which to ascertain the exact dimensions of
the land granted, must nevertheless be set aside where from
other parts of the description or from descriptions superadded
a clearly different intent is manifested,-^ or where the calls of
the courses will not close.-^
§ 370. General and special description. In the construction
of a written instrument it is an established rule that a par-
ticular specification will exclude things not specified, and
control matters alluded to only in general terms. This rule
may be applied to the description of the property conveyed as
well as to other provisions of the deed; and where lands are
21 Doane V. Wilcutt, 82 Mass. 368; the word "northwesterly" should
Kruse v. Wilson, 79 111. 233; Dris- be rejected as surplusage. Kruse
coll V. Green, 59 N. 'H. 101; Ray- v. Wilson, 79 111. 233.
mond V. Coffey, 5 Oreg. 132. 24 Hampton v. Helms, 81 Mo. 631.
22 Raymond v. Coffey, 5 Oreg. 25 a deed conveying land by
132; Benedict v. Gaylord, 11 Conn, courses and distances also de-
332. scribed it as "one hundred and
23 Doane v. Wilcutt, 82 Mass. 368. ninety-seven acres, being the south
So where one of the calls in the end of a tract surveyed by virtue
description was "thence north- of a warrant in the name of H. M.,
westerly along Moss street," etc., being the remaining part of said
which, taken in connection with tract hitherto unsold." The H. M.
other calls, was senseless and un- tract contained originally four
meaning, but which, by the omis- hundred and forty-seven acres, and
sion of the word "northwesterly" two hundred and fifty acres had
and adapting the line to Moss been sold; but the courses and dis-
street, answered the call and made tances did not correspond to the
a complete description held, that marks on the ground, and would
THE LAND CONVEYED. 441
first dcstribfd, ^cucrall.v, and al'tcrwards a i)arti(ular descrip-
tion is added, the latter will restrain and limit the general
description.^*^
Ordinarily a general description, unequivocal in terms and
capable of exact identification, will be effectual for the pur-
pose of conveying all the land to which it applies ;27 y^t in
construing a deed the real intent is to be gathered from the
whole descrij)li()n, particular as well as general, and where
there is obscurity or uncertainty all of the particulars in the
description are to be taken into account. In a case of this
kind the particulars describing the location of the land, the
quantity, its commonly-known designation, or other similar
incidents, are as much a part of the description of the subject
of the conveyance as the designation by lot-number or platted
title.^'^ Where the particulars unmistakably show the general
description to be false, such general description, or so much
of it as is clearly repugnant to the grant, may be rejected,
and, under the familiar rule that where the description is
ambiguous, or there is inconsistency in the several particulars,
words, if necessary, may be supplied by intendment, and
particular clauses and provisions qualified and transposed,
while such words as may reasonably appear to have been
omitted by inadvertence may be introduced.--' Thus, where
not close unless several changes Jackson v. McConnell, 19 Wend,
were made. //e7d, that the descrip- (N. Y.) 175.
tive phrase "the south end," etc., -^ Case v. Dexter, 106 N. Y. 548;
governed. Duncan v. Madara, 106 and see Ousby v. Jones, 73 N. Y.
Pa. St. 562. 621.
-'• Thorndike v. Richards, 13 Me. -"• Murray v. Hobson, 10 Colo. 66;
430; Barney v. Miller, 12 Iowa, Deal v. Cooper, 94 Mo. 62; Case v.
460; Case v. Dexter, 106 N. Y. 548; Dexter, 106 N. Y. 548; Edwards v.
Doe v. Porter, 3 Ark. 18; Smith v. Bowden, 99 N. C. 80. A grantor
Strong, 14 Pick. (Mass.) 128; Sikes conveyed a large number of lots of
v. Shows, 74 Ala. 382; Gano v. land, described as lying in a tract
Aldridge, 27 Ind. 294; Bell v. Saw- of wild land, called the Boston
yer, 32 N. H. 72; and see Bolt v. Purchase. Among these lots were
Burnell, 11 Mass. 167; Bates v. two described as long lots, num-
Foster, 59 Me. 157; Bent v. Rogers, bered 15 and 43, containing one
137 Mass. 192; Chapman v. Crooks, hundred and forty acres each,
41 Mich. 595. more or less, which were originally
27 Stanley v. Green, 12 Cal. 148; included in the survej's of the Bos-
Bower v. Earl, 18 Mich. 367; Foss ton Purchase, but v.hifh it had
v. Crisp, 20 Pick. (Mass.) 121; been ascertained previously to the
442 THE LAND CONVEYED.
a general description wliicli describes a tract of land by its
platted number is followed by specification of quantity and
geograi)liical location, all describing a much smaller area, and
showing such general description to be mistaken or false, it
is fair to suppose that the words "part of" or words of similar
import were inadvertently omitted from such general descri])-
lion. It is true that a variance between the actual and esti-
mated quantity of land is not usually a material circumstance,
yet in some cases it may become an important element in
determining the intention of the parties to the grant; and,
where the estimate of quantity in the particulars and the
actual area of the land covered by the general description
is grossly disproportionate, the statement of quantity becomes
very significant.
So, too, natural monuments, as v/ater-ways, or other physical
landmarks, will have a preponderating weight in determining
questions of this kind and in ascertaining the amount of land
actually embraced in the whole description. Nor would this
be a case of cutting down an interest or estate once clearly
given by subsequent indefinite or ambiguous language; for
all of the several items in a deed of this character are to be
regarded as but parts of one single description, and the sole
question is. What land is embraced therein?
Neither is a particular description in a deed necessarily
enlarged by a succeeding general description by way of refer-
ence to and adoption of the description of a former convey-
ance; and this rule has been held to apply even where the
language is that the grantor ''intended to convey the same
and identical land conveyed by said" former deed.^^ While
the intent of the parties, so far as such intent can be collected
from the whole instrument, must receive effect if possible,
yet under the established rules of construction applying to
conveyances of real property, nothing will pass by a deed
date of the deed, were adjoining 30 Brunswick Savings Inst. v.
thereto. Held, that the words of Grossman, 76 Me. 577; Thayer v.
the deed were sufficient to pass the Finton, 108 N. Y. 394; Green Bay-
two long lots, for the words of Canal Co. v. Hewett, 55 Wis. 96;
general description are controlled Clement v. Bank, 61 Vt. 298; but
by the particular description, see Plummer v. Gould, 92 Mich. 1.
Smith V. Strong, 14 Pick. (Mass.)
128.
THE I^ND CONVEYED. 443
('Xc('j)l wliat is (Icscrihcd tlifi-ciii, whatever the iuteiitiou of
llie jiarties may have been.-''' TIeiice, when a deed contains
an accurate desciijttion by pcnnanent boiiiularies caj)able of
beinj^ asjcertaincd, a ;:;{'neial refei-ence to the premises, in addi-
tion, as that the hind is then in the jtossession of the grantor
or grantee, or referring to descriptions in former deeds, or a
designation by name or locality, will not have the effect to
enlarge the grant or pass title to lands outside of the bound-
aries given.-'^- Where it is not disputed that the boundaries
as given in the particular description are deUuite, unambigu-
ous and certain, and describe a known and definite parcel, the
addition of a genei'al statement of quantity is immaterial; and
but little weight can be ascribed to such statement when
followed by the words "more or less," According to settled
rules, such statement cannot be held to affect the (juantity of
land included within specified boundaries when they are
clearly and certainh^ ascertainable. Xor will the fact that
the land described may have been in the possession of the
grantor, or was conveyed to him by a particular conveyance,
as stated in the general description, alter the case; for while
it may be said that it does not cover all the land so possessed
by or conveyed to him, it is a sufficient answer to say that the
deed does not profess to, but simply attempts to, give addi-
tional particulars as to the property actually described, and
which, as far as they are given, are correctly stated.
In such a case, by confining the grant to the land included
within the boundaries, meaning and effect is given to all the
language of the deed except possibly that relating to quan-
tity, which is comparatively immaterial; and the absurdity is
avoided of supposing that parties intended to convey distinct
and separate tracts of laud outside of the boundaries given by
using inconclusive and general language following a particular
description. Where by the express language of the descrip-
•fi Coleman v. Manhattan Beach mansion and land thereto belong-
Co. 94 N. Y. 229. ing," it was held that this general
3'.: Jones V. Smith. 73 N. Y. 205. clause did not enlarge the grant,
Thus, where a deed of land, after although alone it would have car-
describing it by metes and bounds, ried the mansion-house and land,
contained the words "or however Tj'ler v. Hammond. 11 Pick.
otherwise the same is bounded or (Mass.) 193.
reputed to be bounded, being the
444 THE LAND CONVEYED.
tion the parties have set visible and known limits to the land
intended to be conveyed, it is not the province of construction
to enlarp;o this description and embrace within it other lands
not mentioned."^*^
§ 371. Specific parts. Laud is often described as a specific
part of a larger and more minutely-described tract; and where
no inconsistency is manifest in such description, and such
specific part can with accuracy be identified and segregated
from such larger part, the description will be effectual to
convey the land actually embraced within the ascertained
boundaries of such parcel. In descriptions of land which refer
to the government surveys such description by specific parts
is perhaps as accurate as any that could possibly be employed,
as all section lines are based on true meridians and standard
parallels of latitude, with accurate measurements of areas.
The Federal government in parting with title makes use of the
terms *'half" and ''quarter" in describing the lands conveyed,
without further description by metes and bounds; and these
terms continue to be employed in subsequent transfers as
being the best that can be employed to denote clearness in
description and accuracy in measurement.
When used to denote the legal subdivisions of the govern-
ment surveys the employment of the words "half and "quar-
ter" can produce no ambiguity or uncertainty; and generally,
where the tract out of which the specific part is to be taken
has a well-defined boundary, no inconvenience or uncertainty
should result from the use of any term expressing geometrical
proportion.
The word "half," when used in describing land, should be
construed as meaning "half" in quantity, or a division into
equal areas,^^ unless the context or surrounding facts and
circumstances show a contrary intention.^''^ But where this
33 Thayer v. Finton, 108 N. Y. grantor. The wood-lot had been
394. In this case the grantor owned conveyed to the grantor by C. as
an eighty-eight acre farm and a well as the farm. Held, that the
nine-acre wood-lot adjoining the wood-lot did not pass by the deed,
farm. His deed definitely described '■'•* Hartford, etc. Co. v. Cambria
the boundaries of the farm, and Co. 80 Mich. 491.
then added, "containing ninety-five •"■n Jones v. Pashby, 62 Mich. 614;
acres, more or less, being the same Owen v. Henderson, 16 "Wash. 39.
premises" conveyed by C. to the In this case the vendor sold the
THE LAND CONVEYED.
445
method of (l(*si<;na1i(tn is used, followed by a particular
(Icstriplion, the latttM' will icstrain and limit the j^ciK'ial
dosciiption. So, also, a subsequent deed of a specitic part of
a lar<;er tract from which parcels have been sold hy particular
descriptions should be constru<'d with reference to the particu-
lar descriptions in such former deeds.-^"
Probably the greatest amount of difficulty is experienced
in sales of land by acreage where the descriplion is rendered
uncertain by indefinite location. As, where the land is
described as the ''South part" of a specified tract cont. lining
a detinite number of acres. As a rule, however, courts will
endeavor to reconcile any inconsistencies that may appear
as well as sujtjjly deficiencies, and where a boundary can be
sup{»Iit'd in api)arent conformity to the intention of the parties
this may be done.^^
A grant of a specific but unlocated part of a larger tract
will not for that reason be held void for uncertainty, provided
a right of election is given and a subsequent location made
under and in pursuance of such right.^* It would seem, how-
ever, that a deed purporting to describe a specific tract or
parcel of land, giving the number of acres and calling it part
west half of a fractional lot, a part
of the lot being cut off by a bay,
and the court held the purchaser
entitled to an equal half of the lot
in area and not the part lying west
of a line drawn north and south
midway and parallel to the side
lines of the lot.
•"!« As where the owner of a tri-
angular lot conveyed what he
called the "north half" of it, fol-
lowing this designation by a par-
ticular description, and then sub-
sequently conveyed the "south
half" of the lot. Grandy v. Casey,
93 Mo. .595.
:'T Thus, a description calling for
the "south part of Sec. 5, 3, 14, R.
4 east, two hundred and twenty-five
acres," was held not void for un-
certainty, but the lands would be
located by laying off 225 acres hav-
ing the south, east and west sides
of the section for boundaries, with
the remaining boundary a line par-
allel to the south line of the sec-
tion and sufficiently distant there-
from to include the requisite quan-
tity. See Tierny v. Brown, 65 Miss.
163.
•■'« Where a deed granted six hun-
dred acres of land to be surveyed
or taken off a large tract, and by
the terms of an instrument re-
ferred to in the deed the tracts
were to be divided into lots of one
hundred acres each, and an elec-
tion of lots was given to the gran-
tees, which they subsequentlj'
made, it was held that though by
the terms of the deed the premises
granted were undefined and uncer-
tain, still that the subsequent lo-
cation, in pursuance of the right of
election given by the deed, ren-
dered that certain and definite
44G THE LAND CONVEYED.
of a larji;cr tract, but which fails to describe the tract intended
to be conveyed or any tract, does not convey an undivided
interest in the larger tract, nor make the grantee tenant in
common with the grantor in the latter.^^
§ 372. Identification after conveyance. The law permits
parties to give a practical construction to their deeds and
conversances by subsequent acts, and it has been held that
when a parcel is not identified by the instrument of convey-
ance, or so imperfectly designated that without other evidence
it would be void for ambiguity, the parties may afterwards
survey or mark out the land intended to be conveyed, and if
possession is taken of such part this will serve to ascertain
the grant and give effect to the deed.'**'
§ 373. Extrinsic evidence. Without in any way impeaching
the general proposition that extrinsic evidence can never be
received to contradict, vary or control a written instrument
and more particularly an instrument of so much solemnity as
a deed, it may nevertheless be stated that whenever, for any
cause outside of a deed, there arises a doubt in the application
of the descriptive part thereof, evidence dehors the writing
may be resorted to for the purpose of identifying the subject
of the instrument and the understanding or intent in this
respect of the parties thereto. The difficulty in the application
of the descriptive portion of a deed to external objects usually
arises from what is called a latent ambiguit}', which has its
origin in parol testimony, and must necessarily be solved in
the same way.'*^ Hence, the acts and admissions of the parties,
showing a construction given by themselves, may, and, from
the necessities of the case, must, often be shown where a deed
is indefinite, uncertain or ambiguous in the description of the
location, area or boundaries of the land conveyed.^^ ^q^ also,
where the description in a deed appears to be true in part and
false in part, and it can be ascertained from references in the
which was before uncertain, and 199; Herrick v. Morrill, 37 Minn,
vested a legal title in the specific 250; and see Armstrong v. Mudd,
parts elected to be taken by the 10 B. Mon. (Ky.) 144.
grantees. Corbin v. Jackson, 14 n Grogan v. Vache, 45 Cal. 610.
Wend. (N. Y.) 619. 42 Reed v. Proprietors of Locks,
39 Grogan v. Vache, 45 Cal. 610. 8 How. (U.S.) 274; Deery v. Cray,
40 Simpson v. Blaisdell, 85 Me. 10 Wall. (U. S.) 263; Fuller v.
THE LAND CONVEYED. 447
deed to other conteiiiiioiaiy documents and extrinsic attend-
ing facts which part is false, so much of the description as is
false must be rejected; and the practieal construction given
by the parties themselves will be considered in construing the
doubtful clause.^^ In other words, where the intent of the
parties is doubtful on the face of the deed it may be construed
and interpreted in the light of attendant extrinsic facts and
surrounding circumstances."*"*
lUit where the description is complete in itself the rule first
mentioned applies, and the description cannot be controlled
by the declarations of the parties, or by proof of negotiations
or agreements on which the deed was executed;"*^ nor will
parol evidence of any kind be received to establish a different
location or another designation.^*^
§ 374. Construction by the parties. As has been stated,
where the parties to a deed have by their subsequent acts
given a practical construction to an indefinite or doubtful
description in a deed, courts will usually adopt the construc-
tion so given ;^^ but where the language of the deed admits
of only one construction, and the location of the premises
intended to be conveyed is clearly ascertained by a suflQcient
description by courses, distances or monuments, it cannot be
controlled by any dillerent exposition derived from the acts
of the parties. The rule is applicable only where the language
is equivocal and the location is made doubtful, either by the
insuthcieucy of tlie description or the inconsistency of two or
more parts of the description. In such latter event the con-
struction put upon the deed by the parties in locating the
Carr, 33 N. J. L. 157; Clark v. S.) 1; Benedict v. Gaylord, 11
Powers, 45 111. 283; Lovejoy v. Conn. 332.
Lovett, 124 Mass. 270; Lanman v. "'Jennings v. Brizeadine, 44 Mo.
Crooker, 97 Ind. 163. 332; Fratt v. Woodward, 32 Cal.
*■' Hamm v. San Francisco, 17 219.
Fed. Rep. 119; Homestead Ass'n v. <7 Hamm v. San Francisco, 17
Lawnsdale, 19 Fed. Rep. 291; Tru- Fed. Rep. 119; Deery v. Cray, 10
ett V. Adams, 66 Cal. 618. Wall. (U. S.) 263; Fuller v. Carr,
44Bortz V. Bortz, 48 Pa. St. 382; 33 N. J. L. 157; Stone v. Clark, 1
Herman v. Roberts, 119 N. Y. 37; Met. (Mass.) 378; Lovejoy v. Lov-
Herrick v. Morrill, 37 Minn. 250; ett, 124 Mass. 270; Truett v.
French v. Hayes, 43 N. H. 30. Adams, 66 Cal. 618.
45 Parker v. Kane, 22 How. (U.
448 THE LAND CONVEYED.
premises may be resorted to as an aid in ascertaininj^ their
intention.^^
§ 375. Reference to plat. In the construction of a deed of
conveyance, where the kind conveyed is described by reference
to a certain map or plan, the courses, distances and other
particulars appearing on such plat are to be as much regarded
as tlie true description of the land conveyed as they would
be if expressly recited in the deed.-*'' By reference the j^lat
becomes in fact a part of the deed, as much so as if it had
been copied therein,'^^ and the purchaser will be restricted to
the boundaries as shown thereby.''^ On the other hand, he
will have a right to claim the entire area shown thereby and
the boundaries delineated on the plat will overcome figures
of dimension whenever such figures fail to coincide with the
monuments.^2
If a purchase is made of a specific lot or block according
to a plat, and a further description by metes and bounds or
courses and distances is added, such latter description will
be subordinate to the description of the land by its block
number, and in case of conflict the former will prevail.^^
Words of reference to a plat employed in a deed are usually,
48 Jackson v. Perrine, 35 N. J. L. its east and west lines as extend-
137; Bond v. Fay, 12 Allen (Mass.) ing from the street to the stream,
86; Lovejoy v. Lovett, 124 Mass. and upon which were figures pur-
270; Simpson v. Blaisdell, 85 Me. porting to give the length of these
199; Herrick v. Morrill, 37 Minn, lines, but in fact the distance from
250. the street to the stream was
40 Davis v. Rainsford, 17 Mass. greater than the length of these
207; Magoun v. Lapham, 21 Picli. lines as thus indicated, the plat
(Mass.) 135; Piper v. Connelly, became a part of the deed for the
108 111. 646; Burbach v. Schwein- purposes of the description and
ler, 56 Wis. 386; Davidson v. Ar- identification of the land; and
ledge, 88 N. C. 326. under the rule that distances must
r.o Piper V. Connelly, 108 111. 646; yield to monuments or natural
Hudson V. Irwin, 50 Cal. 450. boundaries called for in a deed,
•'■1 McCormick v. Huse, 78 111. the conveyance of the lot accord-
363; Davidson v. Arledge, 88 N. C. ing to the plat included all the
326. land between the street and 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
3<i An estate-tail is where lands issue of her body, their heirs and
are given to one and the heirs of assigns forever," falls within the
his body begotten. Both the words rule in Shelley's case, and vests
of inheritance and words of in such grantee the title to such
procreation must appear. 2 Black, real estate in fee-simple, the words
THE ESTATE CONVEYED. 483
only a life estate, while the heirs of his body will take the
remainder in fee.^^
With respect to the effect of this rule the authorities differ.
Thus, in some instances it is held that the rule is not one of
construction, but an inexorable rule of law, that where the
ancestor takes a preceding freehold a remainder shall not be
limited to his heirs as purchasers.^^ On the other hand, it is
held in well-considered cases that the rule, at most, is only
a technical rule of construction, and must give way to the
clear intention of the donor, when that intention can be ascer-
tained from the instrument in which the words supposed to
be words of limitation are used.^^ This is the view now
generally taken.
§ 407. Creation of co-tenancies. Th.e statute now generally
detines the character of the estate taken under a deed or
devise to a number and usuall}- fixes tho same as a tenancy
in common unless it is expressly provided otherwise, by proper
words of limitation, in the instrument of conveyance. This is
a complete reversal of the old rule of the common law. with
which joint tenancy seems to have been a favorite, for by that
rule no special words of limitation were necessary to create
the estate while words or circumstances of negation were
necessarj' to avoid it. At present, however, when it is intended
that parties shall take as joint tenants the fact must be clearly
and sufficiently stated by the use of apt words. This may be
accomj)lished beyond question by a succinct statement that
the estate is to be held "in joint tenancy and not in common,"
but usually a conveyance to several persons "jointly." without
any expressions indicating that it shall be divided among
them, will have the effect of vesting an estate in joint
tenancy.^- No words of limitation are necessary to create an
estate in common.
i$ 408. Future estates. Broadly stated, no estate in real
pro[)erty can be bargained, sold or released before it is
acquired by the grantor. A mere expectation or belief that a
party will at some future time acquire an interest in certain
"issue of her body" being words Ind. 251; Ware v. Richardson. 3
not of purchase but simply of lim- Md. 505; Cooper v. Cooper, 6 R. I.
itation. King v. Rea. 50 Ind. 1. 261.
•If Butler V. Huestis. 68 111. 594. 4i Belslay v. Engel. 107 111. 182.
40 See Ridgeway v. Lamphear, 99 i- Case v. Owen, 139 Ind. 22.
484 THE ESTATE CONVEYED.
propertj^ is not in itself an estate or interest of any kind, and
cannot be conveyed by deed.'*^ But where lands are conveyed
by deed of bargain and sale simply, which ordinarily operates
only to transfer vested estates and interests, if it distinctly
appears on the face of the deed that it was intended to trans-
fer any future interest which the grantor might acquire,
equity will treat the deed as an executory agreement to
convey, and compel the grantor to convey the subsequently-
acquired interest.'*^
Where the grantor actually possesses a full estate in land
he may, as a rule, carve out of it an estate to commence in
futuro. At common law an attempt to create or convey a
freehold or estate of inheritance in futuro was a nullity, the
nearest approach being a covenant to stand seized to uses;
and this was only permissible w^hen the consideration was
blood or marriage.^^ But under the statutes now in force in
a majority of the states the owner of land may convey, in
the manner prescribed, any part or portion of his estate, as
he and his grantee may agree, subject only to those restric-
tions which the law imposes, as required by public policy, but
relieved from the technical doctrines which arose out of
ancient feudal tenures, and all the restrictive effect which
they had upon alienation. Hence, it has frequently been held
that a conveyance of real estate to take effect in futuro is
good and valid without the creation of any intermediate estate
to support it.^^
43 Lamb v. Kamm, 1 Sawyer (C. gain and sale; and, under the stat-
Ct.) 238. ute of uses, the use is executed and
44 Hannon v. Christopher, 34 N. the title passes to the grantee on
J. Eq. 459. delivery of the deed. And holding
45 Jackson v. McKenny, 3 Wend, the fee, the law holds he is seized
(N. Y.) 233; Brewster v. Hardy, 22 not only of the title, but of the
Pick. (Mass.) 380; Spaulding v. possession, as the fee draws to it
Gregg, 4 Ga. 81; 2 Black. Com. 338; possession in law. . . . By giv-
4 Kent, Com. 234. Ing effect to such conveyances we
40 In Shackelton v. Sebree, 86 111. only estop the grantor by his cove-
616, the conveyance was not to be nants, and hold that he stands
recorded or take effect until the seized to the use of the grantee
death of the grantor. Walter, J., as in other deeds of bargain and
said: "Our statute has abolished sale. We give effect to the statute
livery of seizin, and deeds of feoff- of uses. We carry into effect the
ment have gone out of use, and intention of the parties, and we
lands are conveyed by deed of bar- fail to see that it can work injury
THE ESTATE CONVEYED. ISo
It must bo understood, liowevcr, that while it is competent
for a grantor to convey an estate to commence in fuiuro
witliout any inteiinediaff' estate to suppoi't it, it is necessary,
nevertheless, that the deed should have delivered equally as
in case of present jjrant; and while the title may not actually
vest until the death of the j^raiitor, delivery is essential to
make the deed ellective, and this delivery must be in the
grantor's life-time — that is, there must be an actual or con-
structive delivery during,' the life of the grantor, or a delivery
after his death which takes elfect by relation at some period
during his life. Thus, a delivery after death may be made by
some person holding the deed as a trustee, or having the same
in possession as an escrow. A deed will not usually be per
mitted to perfonn the office of a will, and if there is no delivery
during life there can be none after death.^^
§409. Perpetuities. It cannot be said to be other than a
natural desire on the part of a land-owner — one, indeed, that
seems to be inherent in human nature — to continue his acqui-
sitions in his own family as long as possible, and to erect what
in law is termed a perpetuity. It has long been settled in
England that real property may be rendered inalienable dur-
ing the existence of a life or lives in being and twenty-one
years thereafter; or, in case of a posthumous child, a few
months more, allowing for the term of gestation. Originally
only one life in being was permitted, but from one life the
courts gradually proceeded to several lives in being at the
same time, on the principle that this in fact only amounted
to the life of the survivor. Any limitation tending to extend
the estate beyond this period is termed a perpetuity, and the
limitation is void.
to any one." In Abbott v. Halway, some sort pass immediately to the
72 Me. 298, Barrows, J., says: "The grantee in opposition to the ex-
mere technicalities of ancient law pressed intention of the parties,
are dispensed with upon compli- The feoffment is to be regarded
ance with statute requirements, as taking place and the livery of
The acknowledgment and record- seizin as occurring at the time
ing are accepted in place of livery fixed in the instrument; and the
of seizin, and it is competent to fix acknowledgment and recording are
such time in the future as the par- to be considered as giving the
ties may agree upon as the time necessary publicity which was
when the estate of the grantee sought in the ancient ceremony."
shall commence. No more neces- And see Kent v. Atlantic De Laine
sity for limiting one estate upon Co., 8 R. I. 305.
another, or for having an estate of *'• Huey v. Huey, 65 Mo. 689.
48G THE ESTATE CONVEYED.
Except as altered or abrogated by legislation this rule has
practically been adopted in the United States, and forms the
basis of methods of construction of deeds and testamentary
grants.**^ By statute, in some states, the absolute power of
alienation cannot be suspended by any limitation or condition
whatever for a longer period than during the continuance of
two lives in being at the creation of the estaite,-*'^ while a
manifest tendency has been generally exhibited by the courts
to abridge rather than to enlarge the period of inalienability
as being better suited to the nature of our institutions as a
free as well as a commercial people.^*^ The effect of such
statutes, therefore, has been to reduce the scope of the com-
mon-law rule with reference to lives by allowing but two
instead of an indefinite number, and to abolish altogether the
absolute term of twenty-one years, and to allow in its stead
an actual minority. A remainder in fee, to take effect after
the expiration of two lives in being, may be created in favor
of a person not in being at the time; and, it seems, in such
case, a further contingent remainder in favor of a person not
in being at the creation of the estate may be limited to take
effect in the event that the person to whom the remainder is
first limited shall die under the age of twenty-one years.^""'! So
that, even under statutes similar to those now under consider-
ation, the power of alienation may lawfully be suspended for
the term of a minority, after the expiration of two lives in
being, by means of a contingent remainder, to take effect in
the event of the death of the first remainder-man in fee during
his minority.-''-
§ 410. Entailments. At common law a conveyance to a
person and the heirs of his body, whether generally or spe-
cially^ created a conditional fee, which was held to be
performed and the fee vested upon birth of issue. It was
also held that there was an implied condition that if the donee
should die without such heirs the land should revert to the
•48 See Loring v. Blake, 98 Mass. utes, but has since been re-enacted
253; Wood v. Griffin, 46 N. H. in other states which have followed
234; Donohue v. McNichol, 61 Pa. in the New York lead.
St. 73. ■■^" Coster v. Lorillard, 14 Wend.
48 This was first enacted in New (N. Y.) 265.
York with the other sweeping ''i Manice v. Manice, 43 N. Y. 303.
changes made by the Revised Stat- ■'- Manice v. Manice, 43 N. Y. 303.
THE ESTATE CONVEYED. 487
donor.^"^ After issue born the conditional estate became abso-
lute, and the j^rantee mij^ht alien the laud so as to bar his own
issue and the donor. If after such performance of the condi-
tion the j!;rantee did not alien the land, and the heir died,
then upon the death of Hut grantee the estate reverted to the
donor, to obviate which it was customary for the grantee on
the birth of issue to alien and then repurchase, so that he
might become vested with a fee-simple absolute that would
descend to his heirs generally. This was the state of the law
at the time of the adoi)tion of the statute de donis condition-
alibiis, ^^ the effect of which was to prevent the grantee from
aliening the land after birth of issue, so as to cat off or bar
this estate, which descended in like manner from generation
to generation to the class of heirs described in the deed to the
first donee. The interest created by the operation of the
statute finally came to be regarded as a new species of estate
to which the conveyancers gave the name fee-tail.
The spirit of the law in the western hemisphere is and ever
has been opposed to the tying up of titles in perpetuity by
entails; and in every state statutory modifications of the com-
mon law exist, designed as well for the protection of the rever-
sion as for the remainder's designated in the deed, and at the
same time limiting the entail. By these laws a most reasona-
ble middle course has been adopted, equally removed from
the injustice of the old common law or the mischievous ten-
dency of the statute de donis. Under these statutes the heir
at birth takes an absolute estate in fee, while the donee takes
a life estate ait the delivery of the deed, the fee practically
remaining in abeyance, if there be no heir, until birth of issue.
In this respect there is an important departure from some of
the old canons of the law; yet the authorities seem to be
united in declaring that under these statutes t\w. estate in fee
03 This was a condition annexed to the donor if the donee had no
to all grants by operation of law, heirs of his body; but if he had,
that, on failure of the heir specified that it should remain to the gran-
in the grant, the grant should be tee. Hence it was called a fee-
at an end and the land return to simple on condition that he had
the ancient proprietor. 2 Bl. Com. issue; and when the condition was
110. The condition annexed to performed by the birth of issue,
these fees by the common law was the estate in the grantee became
held, where it was to a man and absolute and unconditional,
the heirs of his body, to be a gift ^* 13 Edw. I. ch. 1.
on condition that it should revert
488 THE ESTATE CONVEYED.
ma}' be iu abeyance with uo particular estate to support the
remainder, nor any person in being to take the inheritance
until he comes into being so that it can vest.^^
The estate thus created cannot be defeated by the life ten-
ant before issue born by alienation to a stranger or by a
reconveyance to the grantor.^^^
§411. Homesteads. The general nature and characteris-
tics of homestead estates having already been alluded to will
not receive further consideration in this paragraph.
As a rule no operative words are necessary to create a home-
stead; and, as this is a matter which lies largely in intention,
extraneous circumstances are of more importance than the
particular form of conveyance.
The right of homestead will exist and attach to almost any
kind of title or interest. It has never been considered neces-
sary that the land should be held by an absolute fee-simple;
and, generally, any estate that is vendible under an execution
will support the homestead exemption.^'^ It has been held to
apply to an estate for life^^ as well as to an estate for years,^'-*
and where the claimant is the owner and in possession it is
immaterial in what manner title may have been derived.*^^
The primary design of the homestead laws being to furnish
a place of refuge for the famil}', it is wisely provided that the
husband can do no act that will interfere with the occupancy
and use of the homestead without the consent of the wife,
manifested by a participation in the act of conveyance; and
courts, in the construction of this inhibition, have in some
cases gone to great lengths in declaring the purport of the
law^ Not only does this apply to alienations of the fee, but
to any lesser estate than can be carved out of the feef^ and it
has been held that even the alienation or grant of an ease-
ment is void as against the rights of the wife unless assented
ns Frazer v. Supervisors, etc. 74 •'''7 Pilcher v. R. R. Co.38 Kan. 516.
111. 282. The statutes on this sub- ""^ Deere v. Chapman, 25 111. 610;
ject are not uniform and the doc- Robinson v. Smithey, 80 Ky. 636.
trine of the text is denied in some •''•» Patton v. Deberard, 13 Iowa
states. Nor can the doctrine that 53; Johnson v. Richardson, 33 Miss,
the fee may be in abeyance be con- 462.
sidered sound. co Robinson v. Smithy, 80 Ky.
•"'0 Frazer v. Supervisors, etc. 74 636.
111. 282. ci In Coughlin v. Coughlin, 26
THE ESTATE CONVEYED.
489
(to hy bor.'^- To this rule llicrc soems to be hut one recognized
exception, and thai is where Ihe wife heiself becomes the
grantee of the fee b_v tlie (■(jnv(\\ ance of the hiisl);ind; in this
hitter case a deed signed l)V tlie liusliand ah)ne will lie valid,"''
though it would seem that in some states this exception is
denied.
i; 412. Incidents to the grant as connected with use in-
tended. It is one of the oldest and best-settled ]»rincii)les of
hiw that, where anything is granted, all the means to attain it
and all the fruits and ellects of it are granted also by legal
implication, and will pass inclusive, together with the thing,
by the grant of the thing itself.''** So, also, while a mere con-
veyance of part of a tract of land may not give the grantee the
right to make any use of the part granted which will injur-
iously affect the remaining portion, yet, when the grant is
expressed to be for a particular use, neither the grantor nor
one claiming under him can object to such use or recover dam-
ages resulting therefrom,"^^
of constructing a railroad and for
all purposes connected with the
construction and use of said rail-
road," the right of way for the
same, one hundred feet wide,
through the lot and other property,
"to have, hold and enjoy the land
Kan. 116, the court held that "the
husband cannot, without the con-
sent of the wife, execute a lease of
a homestead, and give possession
thereof to a tenant." In this case
the lease was executed for five
years, but in a later case it is inti-
mated that the length of the term described, with the appurtenances.
of the lease can make no difference.
See Pilcher v. R. R. Co. 38 Kan.
516.
o:i Pilcher v. R. R. Co. 38 Kan.
516; but see Chicago, etc. R. R.
Co. V. Swinney, 38 Iowa 182.
«•■! Burkett v. Burkett, 78 Cal.
310; Harsh v. Griffin, 72 Iowa 608;
Riehl v. Bingenheimer, 28 Wis. 84.
«< Aiken v. Boardman, 2 Met.
(Mass.) 457; Fitch v. Johnson, 104
111. Ill; C. R. I. & P. R'y Co. v.
Smith, 111 111. 363.
6'' As where the owner of a
twenty-acre lot, being desirous of
the construction of a railroad over
unto the said" grantee, "and its
assigns, forever, for all uses and
purposes, or in any way connected
with the construction, preserva-
tion, occupation and enjoyment of
said railroad," with a proviso for
a reversion in case the same should
cease to be used for railroad pur-
poses. Held, that as the casting
of smoke, cinders, ashes, sparks of
fire and the shaking of the soil
upon other parts of the lot was a
necessary incident of the railroad,
and inseparable from the running
of trains thereon, the right to do
these acts passed to the grantee
the same, made a deed to the rail- and its successors by necessary im-
road company, reciting that, "in plication from the express grant,
consideration of the premises and C, R. I. & P. R'y Co. v. Smith, 111
$60." he granted, "for the purpose 111. 363.
CHAPTER XVi.
THE COVENANTS.
§ 413. General observations. § 425. Covenant for quiet enjoy-
414. Creation of covenants. ment.
415. Rules of Construction. 426. Covenant against incum-
416. Inuring of title. brances.
417. What covenants a pur- 427. Further assurance.
chaser has a right to ex- 428. Covenant of non-claim,
pect. 429. Covenant of warranty.
418. Contract for conveyance 430. Extinguishment of the
with "usual covenants." covenant.
419. Contract to convey with 431. Cancellation of correspond-
warranty. ing covenants.
420. Covenants limited to estate 432. Implied covenants.
actually conveyed. 433. Statutory deeds.
421. Covenants running with 434. Where wife refuses to join.
the land. 435. Value of covenants.
422. Effect and extent of restric- 436. Defective covenants — Oper-
tions. ation and effect.
423. Conveyances by attorney. 437. Quitclaims.
424. Covenant of seizin.
§ 413. General observations. Covenants inserted in deeds
are in the nature of collateral promises of the performance
or non-performance of certain acts, or, of agreements that a
given state of things does or shall or does not or shall not
exisit. When relating to title they are inserted for the pur-
pose of securing to the grantee the benefit of the title which
the grantor professes to convey, and as an indemnity against
any loss that may arise in consequence of any impairment or
defect of same. They are said to be implied, as where they
are raised by intendment of law from the use of certain words,
and express, as where the promise or agreement is set forth in
explicit language declaring the intention of the parties.
The whole doctrine of covenants grew out of the ancient
doctrine of warranty, which originally was an implication of
the feudal law binding the lord to recompense his tenant,
when evicted from his feud, with another of equal value.
The term warranty, however, as it is used in connection with
covenants of title in this country, has but little affinity with
the ancient remedy, and while the name has been retained
490
THE COVENANTS. 491
the present prevailinfj doctrine seems to be essentially Ameri-
eau bolh in jtrinciple an<l practice. "There is no evidence,"
says Mr. Rawie, "that the covenant in such general use in
this country, called 'the covenant of wai-ranty,' «'ver had a
place in Enj^lish conveyancing."'
The general use of covenants for title seems to have come
into vofjue somewhere toward the close of the seventeenth
century, superseding the ancient feudal warranty; yet just
how they came to be introduced, or how they originated, are
matters which legal historians are unable to determine, and
the accounts which have come down to us amount to little or
nothing more than mere conjectures.^ The early covenants
were expressed in short and simple forms, and it was not until
about the time of the restoration of Charles II. that they com-
menced to assume the shape by which they have since been
known.
§ 414. Creation of covenants. It is fundamental that no
particular form, or expression, or arrangement of words is
necessary to create or raise covenants,^ and that any language
showing intention and manifesting a promise is sufficient for
the purpose.^ The artificial rules of conveyancing have pre-
scribed forms, and the law has given specific and well-defined
meanings to certain words employed therein; but the liberal
1 Rawle, Govts. § 13. a warranty, in its proper sense,
2 Mr. Rawle suggests the follow- would have been just as inappropri-
ing as a possible history of their ate as would have been a personal
origin: "So long as livery of seizin covenant in a deed of feoffment,
was necessary to the validity of the while the covenant was eminently
transfer of land, so long did war- fitting. And hence it may be that
ranty, which was essentially a cove- we find, all through the reports of
nant real, accompany the deed of the time of Elizabeth, cases in
feoffment. A personal covenant which some of the covenants for
would have been an inappropriate title — generally a covenant for
element of such a form of convey- seizin or of good right to convey —
ance. But the passage of the stat- are used in conveyances taking ef-
ute of uses toward the latter part feet by virtue of the statute of
of the reign of Henry VIH. intro- uses." Rawle, Govts. § 13.
duced the conveyances familiar at •' Jackson v. Swart, 20 Johns. (N.
the present day, which, taking Y.) 85; Bull v. Follett, 5 Gow. (N.
their effect under the statute, Y.) 170.
passed the freehold without livery ■« Taylor v. Preston, 79 Pa. St.
of seizin; and in a deed of bar- 436; Hallet v. Wylie, 3 Johns. (N.
gain and sale, or lease and release, Y.) 44.
492 THE COVENANTS.
construction always accordt'd to stipulations of this character
permits the obvious intention of the parties to have effect
regardless of the form or phraseology.^
§ 415. Rules of construction. Covenants are to be con-
strued according to tlieir spirit and intent;^ they should be
considered in connection with the context, and must be per-
formed according to the intention of the parties as derived
from both." General covenants may be restricted by special
covenants;^ but the general rule is that all of the covenants
are to be construed, as nearly as possible, according to the
obvious intention of the parties, which must be gathered from
the language of the whole instrument, interpreted according
to the reasonable sense of words.^ In case of doubt they
should be construed most strongly against the covenantor and
in favor of the covenantee ;io but this is permitted only as a
last resort, and when the clause is equally open to two or more
Inconsistent interpretations.
§416. Inuring of title. By the common law% if a grantor
who has no interest or only a defeasible interest in the prem-
ises granted conveys the same with warranty, and afterwards
obtains an absolute title to the property, such title immedi-
ately becomes vested in the grantee or his heirs or assigns by
operation of the principle of estoppel ;ii and if the grantor or
any one claiming title from him subsequent to such grant
seeks to recover the premises by virtue of such after-acquired
title, the original grantee or his heirs or assigns, by virtue of
the warranty which runs with the title to the land, may plead
•'"' Johnson v. Hollensworth, 48 nanted generally that he was
Mich. 140; Wadlington v. Hill, 18 seized, etc., being the usual gen-
Miss. 560. eral covenants with warranty, held,
6 Ludlow V. McCrea, 1 Wend. (N. that the general covenants in the
Y.) 328; Schoenberger v. Hoy, 40 deed were restricted by the special
Pa. St. 132. covenant as to the quantity of land.
T Marvin V. Stone, 2 Cow. (N. Y.) Whallon v. Kauffman, 19 Johns.
781; Wadlington v. Hill, 18 Miss. (N. Y.) 97.
560. » Wadlington v. Hill, 18 Miss.
8 As where defendant, after 560; Schoenberger v. Hoy, 40 Pa.
granting a tract of land described St. 132; Marvin v. Stone, 2 Cow.
by metes and bounds, added, "con- (N. Y.) 781.
taining six hundred acres, and the if Randel v. Canal Co. 1 Har.
same is hereby covenanted and (Del.) 154.
warranted to contain at least five n Grand Tower, etc. Co. v. Gill,
hundred acres," and then cove- 111 111. 541; Lowry v. Williams, 13
THE COVENANTS. 403
such warranty by way of rebut icr or i-sloitpcl a.s an absolute
bar to the claim.' -
This priiuijilc lias been applied to all suits, brought by per-
sons bound by tlio warranty or estoppel, afi;ainst the grantee or
his heirs or assigns, so as to give to the grantee and those
clainnug under hiui the same right to the premises as if the
subse(iuently aecjuired title or interest therein had been
actually vested in the grantor at the time of the original con-
veyance from him.
The obligation created by the estoppel binds not only the
party making the covenant, but all persons j)rivy to him,
whether of blood, law or estate; his legal representatives, his
heirs, and all who take his estate by contract stand in his
stead, and are subject to all the consequences which accrue to
him. It adheres to the land, is transmitted with the estate,
and becomes a muniment of title, so that all who would after-
wards acquire it shall be bound by or may take advantage of
the rights which the existence of the fact imposes upon it.^^
The rule that where a deed conveys a greater interest than
the grantor at the time possesses, an after-acquired title
inures to the benefit of his grantee, is subject to an excep-
tion, however, where such grantor executes to his grantor a
mortgage to secure a part of the ])urchase money on the prem-
ises subsequently conveyed by the latter to the former.'^
§ 417. What covenants a purchaser has a right to expect.
It would seem to be a well-settled rule in England that a pur-
chaser has no right to demand from his vendor covenants of
a greater scope than against his ow'n acts, and this doctrine
seems to have found recognition in some of the states of the
American Union. The reason of the English rule would seem
to be that a man is presumed to sell an estate as he receives
it, while the ])Ui(haser is presumed to have made all the nec-
Me. 181; Wark v. Willard, 13 N. H. '• As where A. executed a deed
389; Tefft v. Munson, 57 N. Y. 99; of conveyance of lauds to which he
McCusker v. McEvey, 9 R. I. 533. had no title to B., and A. afterward
1- Bank v. Mersereau, 3 Barb. Ch. purchased and received a deed for
(N. Y. ) 528. the premises from C, the owner,
11 Hill V. West. 8 Ohio 222; White and executed back to him a mort-
V. Patten. 24 Pick. (Mass.) 324; gage thereon to secure a part of
Dudley v. Cadwell, 19 Conn. 227; the purchase money, held, that the
Greene v. Clark. 13 Vt. 158. rights of C. under his mortgage
494 THE COVENANTS.
essary inquiries to satisfy himself as to the character of the
estate, and the title by which it is derived, prior to that time.
The obligation of the vendor, it is contended, is limited to
putting the vendee into the same situation in which h.e stood
himself; it is the duty of the vendee to detennine, by a proper
examination, what the title of the vendor is, and to satisfy
himself that the same is marketable. Having done this it
rests with him to decide whether he will complete the bargain,
and if he decides in the aflSrmative the vendor makes a convey-
ance which simply covenants that he has done no act to affect
or derogate from his title.
There has been a tendency manifested in some of the eastern
states to follow the English system of conveyancing in respect
to covenants, and restrict the purchaser to covenants against
the grantor's own acts, and in furtherance of this principle
an agreement to convey by "warranty deed" has been con-
strued to mean a deed with "special warranty" or a warranty
against any acts of the vendor done or suffered and against
the acts of those claiming under liim.^'"' It is to be observed,
however, that the states in which this doctrine has been recog-
nized or adopted are few in number, and of that class which
has long been ruled by English precedents. In the great
majority of the states a contrary rule prevails; and the gen-
eral American doctrine may be safely stated as that, when one
makes a contract of sale for his own benefit, in the absence
of any special contract to the contrary, there is an implication
from the nature of the transaction that he will make a deed
with general warranty.^ ^ The language of the agreement may
sometimes be susceptible of such construction as to negative
this implication, as where some special title, or the right, title
were not affected by the prior con- title inserted in the conveyance,
veyance from A. to B. Morgan v. Rawle on Covenants, § 29. This
Graham, 35 Iowa 213. rule has also been recognized in
15 Espy v. Anderson, 14 Pa. 312; Massachusetts, in Kyle v. Kavan-
Cadwalader v. Tryon, 37 Pa. 322. agh, 103 Mass. 359.
Mr. Rawle states that in the large is Faircloth v. Isler, 75 N. C. 551;
cities of Pennsylvania, in ordinary Allen v. Hazen, 26 Mich. 143; Ho-
cases, a covenant of warranty lim- back v. Kilgore, 26 Gratt. (Va.)
ited to the acts of the vendor and 442; Travenner v. Barrett, 21 W.
those claiming under him, and in Va. 656; Linn v. Barkey, 7 Ind. 70;
some instances carried back to the Bethell v. Bethell, 92 Ind. 318;
last person claiming by purchase, Bowen v. Thrall, 28 Vt. 385; Clark
is the only express covenant for v. Lyons, 25 111. 105; Herryford v.
THE COVENANTS. 495
and interest of the vendor, forais tlie subject of the sale; but
as a general rule, uj)on an aj!;reement for the sale of land, the
vendor, thou<,fh nothing be said in the contract on the subject,
is considered as contracting for a general warranty. This
would certainly be the case where the agreement contains
stiiMilations for title, and usually an agreement to convey by
"good and suflicient" deed will receive a construction of this
character.
Nor is there anything harsh, oppressive or unjust in this
rule; on the contrary, it is in consonance with every x)rinciple
of natural justice, and in its practical api)lication tends to give
stability and permanence to real estate titles. Indeed, the
very fact that a vendor is unwilling to warrant the title to the
property he sells, or at best is unwilling to do more than cov-
enant against his own acts, is, in itself, an imputation of dis-
credit, or, as remarked by Story, J., "a significant circum-
stance in aftecting a purchaser with notice of outstanding
equities or paramount title.''^'^ At the same time there is
much to be said in favor of a contrary rule, for the obligation
to convey by "good and sulticient deed" imports nothing more
than a deed wiiich shall be effective to convey the land with
all its incidents and furnish a valid and unassailable title.
Where a purchaser expects or recjuires covenants, such
expectation or requirement should, by strict analogy to the
law which dominates other spcx-ies of written contracts, be
based upon some positive stipulation or agreement; for the
covenants do not constitute title, nor are they in any manner
necessary to its pro])er devolution.
§ 418. Contract for conveyance with "usual covenants." It
is not uncommon for parties to stipulate for conveyance by
deed with "usual covenants,'' "custonuiry covenants" or equiv-
alent expressions. The question then presents itself. What are
"usual covenants?" Probably any well-settled local usage
might be shown in such a case to explain the meaning of these
words and thereby afford a ground for the iutei-]>retation 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<iilty uh to its
application."*^^
The covenant is practically an undertaking^ on the part of
the vendor to do such further acts for the purpose of perfect-
ing the purchaser's title as the latter may reasonably require.
In the interi)retation of this covenant due rej^ard niust be had
to the character of the estate conveyed — its (juantity, quality
and extent — and the covenants which accompany it. If these
latter are general, with no limitations or restrictions, the pur-
chaser has a rij^ht, under the covenant for further assurance,
to require the conveyance of a paramount title or the removal
of an outstanding; incumbrance; but if the estate conveyed be
limited and the expressed covenants are restrained to some
particular interest or estate, the purchaser cannot by virtue
of his covenant for further assurance require the conveyance
to himself of any other or greater estate, or the removal of
incumbrances not created by the vendor.^^ tj^^ utmost limits
to which courts have gone has been to extend the operation
of the covenant to the very estate or interest conveyed by the
deed.«4
The further assurance must in all cases be reasonable, and
conform to the nature and purport of the original bargain.*''"*
§ 428. Covenant of non-claim. It was formerly a custom
to insert in deeds of limited warranty a clause, or, as it was
sometimes called, a covenant, of ^'non-claim." This, in the
original form, was inserted immediately after the liahcndum,
without the usual words of covenant being prefixed, and pur-
ported to be a denial of any further rights in the grantor in
relation to the projjcrty conveyed. It might be general, but
was usually limited to the grantor or those claiming under
him.*''''' In practice the covenant of non-claim is now seldom
62 Rawle on Govts., § 98. <'■■'• Miller v. Parsons, 9 Johns. (N.
63 See Armstrong v. Darby, 26 Y.) 336.
Mo. 517. «n See Rawle on Covenants for
6» The covenants generally can Title, p. 223, 3d ed. The following
only extend to the estate granted, was a common form of this cov-
and there must be something very enant: "So that neither I, the
peculiar in their terms to warrant said (grantor), nor my heirs or
such a construction of them as to any other person or persons claim-
enlarge the estate granted in the Ing from or under me or them, or
premises. Corbin v. Healy, 20 in the name, right or stead of me
Pick. (Mass.) 514. or them, shall or will by any way
506 THE COVENANTS.
employed, having been superseded by the grantor's personal
covenant against his own acts.
The legal effect of the covenant of non-claim has not always
received a uniform interpretation, and in an early case^' was
held to be a covenant real, which runs with the land and es-
tops the grantor and his heirs to make any claim or set up any
title thereto; and such would certainly be its effect in its pres-
ent modernized character of special warranty. The volume of
authority, however, does not sustain this doctrine where the
covenant retains its original form, i. e., a simple denial of
further rights. In this shape it makes no assertion of title, and
at best can only be considered as an engagement respecting
future conduct. In legal effect it is not distinguishable from
an ordinary quitclaim, of which it is indeed a form; and while
it is operative to pass all present interest, and to that extent is
binding upon the grantor and those in privity with him, yet,
since it contains no warranty of title, it is insufficient to con-
vey any after-acquired title, or to estop the grantor from the
assertion of a title subsequently acquired, unless by so doing
he is obliged to deny or contradict some fact in addition there-
to alleged in his former conveyance.^^
§ 429. Covenant of warranty. The last and most extensive
of all the covenants is the covenant of general warranty. This
covenant is prospective, and is understood to be broken only
upon an eviction, or by something equivalent thereto.*'^ It
runs forever with the land into the hands of all those to whom
it may subsequently come either by descent or purchase."^^ This
is the most important of all the covenants that the purchaser
can demand, and the one of all others that he should insist
upon having.
§430. Continued — ^Extinguishment of the covenant. While
a covenant of warranty runs forever with the land into the
hands of all those to whom it may come either by purchase
or means have, claim or demand 533; Blanchard v. Books, 12 Pick,
any right or title to the aforesaid (Mass.) 47; Dart v. Dart, 7 Conn,
premises, or any part or parcel 250.
thereof forever." eo Claycomb v. Munger, 51 111.
67 Fairbanks v. Fairbanks, 7 373; Caldwell v. Kirkpatrick, 6
Greenl. (Me.) 96. Ala. 62; Reed v. Hatch, 55 N, H.
en Partridge v. Patten, 33 Me. 336.
483; Kimball v. Blaisdell, 5 N. H. ^o Brady v. Spurck, 27 111. 478.
THE COVENANTS. ^J0^
or descent, jet where a grantor of land whose deed ((jnlnimd
a covenant of warranty before any brcacli of liis covcniini
becomes re-investt'd with the seizin wliich he c(jnvey('d, and
whieli lie covenanted to waiTant iind defend, his obligation in
that regard becomes extinguished. The estate granted 1m liini
ceases upon the reconveyance, and the covenant attend;inl
upon the estate, and which is only co-extensive with it, is
extinguished when the estate ceases.^^
>; 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<n'vance of a covenant or stipulation in the nature
of a covenant, not to permit the erection or maintenance of
any noxious, unwholesome, offensive or dangerous establish-
ment, calling or trade, where such covenants in the deeds for
different lots are nevertheh^ss made for the mutual benefit
and protection of all the purchasers of lands in a designated
block or neighborhood^ So, also, while a j)revious purchaser
from the original owner of the block or neighborhood can not
sue at law upon the covenant in the deed to a subsequent
purchaser, yet equity may protect him by injunction against
the carrying on of any noxious business or trade upon the lot
of such subsequent purchaser.^
The usual remedy for the violation of covenants of this
character is an injunction to keep within the terms of the
agreement; and where the circumstances show no reasonable
ground for the violation, a court of equity will compel the
offending party to comply with the obligation which was at-
tached to the property by the terms of the grant. It must
fretjuently happen, however, that the changed circumstances
of the property and its surroundings would render it inequi-
table to deprive a jjurchaser of the privilege of conforming his
property to the character of the neighborhood so as to use it
to greater advantage and in no respect to the detriment of
his grantor. Restrictions on use, or prohibitions of specitied
enii)loynients, are generally made for the better Improvement
of lands and to secure permanent values, yet the character of
entire neighborhoods will sometimes change in such a manner
that the very object of the restriction can only be attained by
curabrance on such lots which is Ohio 189; Gray v. Blanchard, 8
binding on a subsequent grantee Pick. (Mass.) 284.
thereof with notice. Halle v. « Clark v. Martin, 49 Pa. St. 289;
Newbold, 14 Atl. Rep. (Md.) Whitney v. Railway Co., 11 Gray
6G2. (Mass.) 359.
•'i Cowell V. Colorado Spring Co., " Barrow v. Richard, 8 Paige (N.
100 U. S. 55; Plumb v. Tubbs. 41 Y.) ."^Sl; Columbia College v.
N. Y. 442; Collins v. Marcy. 2.") Lynch, 70 N. Y. 452.
Conn. 242; Sperry v. Pound, 5 "^ Barrow v. Richard, 8 Paige (N.
Y.) 351.
542 CONDITIONS, LIMITATIONS AND RESTRICTIONS.
its violation. If, for any reason, therefore, not referable to the
purchaser, an enforcement of the covenant would defeat the
ends orij^inally contemplated by the parties, a court of equity
may well refuse to interfere, or if in fact the condition of the
property by which the premises are surrounded has been so
altered that the conditions and restrictions of the covenant are
no lonjijer applicable to the existing state of things. And so,
notwithstanding the contract may have been fair and just
when made, if subsequent events have made performance by
the purchaser so onerous that its enforcement would impose
great hardship ujjon him with little or no benefit to the
grantor, equitj' will deny its relief to the covenantee in the
enforcement of the stipulation.^
§ 461. Enforcement of restrictions. A stipulation by way
of restriction, not amounting to a condition, if not in restraint
of trade or otherwise illegal, may be and usually is enforced
by injunction,^ ^ and this remedy may be had not only against
an immediate grantee but against all subsequent purchasers
with notice^^; and the further fact that a penalty or forfeiture
is imposed for doing a prohibited act is no obstacle to the
interposition of equity by injunction.^^
It is a further rule that such relief may be granted although
no actual pecuniary damage may have been sustained or is to
be expected.13 Nor is the remedy confined to the grantor and
his heirs, but it may be resorted to by his assigns as well.^^
And generally, when restrictions inserted in the deed of a
particular lot are part of a general scheme for the benefit and
improvement of all the lands included in a larger tract, a
grantee of any portion of the lands may, in a proper case, en-
force them against his neighbor.!^
9 Columbia College v. Thacher, 87 i* A condition that the front line
N. Y. 311; and see Willard v. Tay- of the building to be erected on the
loe, 8 Wall. (U. S.) 557. granted lot shall be placed ten feet
10 Tallmadge v. Bank, 26 N. Y. back from the street and parallel
110; Morris v. Tuskaloosa Mfg. Co., thereto, held, a valid restriction
83 Ala. 565. capable of enforcement by a
11 Webb V. Robbins, 77 Ala. 176; grantee of another lot from the
Payson v. Burnham, 141 Mass. 547; common grantor. Hamlen v. Wer-
Gilbert v. Peteler, 38 N. Y. 165. ner, 144 Mass. 396.
12 Watrous v. Allen, 57 Mich. 362. is Whitney v. Union Ry. Co., 11
13 Atty-Gen. v. Algonquin Club, Gray (Mass.) 359; Payson v. Burn-
153 Mass. 447. ham, 141 Mass. 547.
CONDITIONS, LIMITATIONS AND RESTKICTIONS. 543
§462. Avoidance of restrictions. While tlu- law will coin-
pol i)arti('K to adhere to the contractH they have voluntarily
cntertMl into and j,'rant IIh aid to securo their enforcement, yet
with respect to aj^refmcntH restricting^ the use of lands the
rule is subject to some modification. As has been shown, the
condition and charactei- of the surrounding lands have much
to do witli its jiractical ajjplication. Thus, where there has
been such a chanjje in the character of the neijjhborhood as
to defeat the object and })urpose of the ajjreement, and to
render it inecpiitable to deprive the owner of the privilege
of conforming; his property to the altered circumstances, relief
will not usually be granted against a violation. As, where
lands have been sold with a proviso restricting the use of same
to that of private residences only and the neighborhood be-
comes a manufacturing locality, such a change in the sur-
roundings would justify the refusal of a court of equity to en-
force the coveuant.^*^ The covenantee might, in case of
breach, pursue his remedy at law for damages, but a release
from the operation of the restrictive covenants should be
decreed on the entry of such judgment,^ '^ and if the complain-
ant should have no remedy at law, whih^ the prayer for injunc-
tion might be denie^d, the bill could still be retained for the
purpose of assessing damages.^ *^
§ 463. Conveyances for support. A very large and impor-
tant class of conveyances, conditional in form, is constituted
by deeds given in consideration of the future support of the
grantor. The draft of these conveyances usually embodies
clauses which, if they do not create at least partake of the
nature of conditions; yet the tendency of the courts has been
to divest them of their conditional character, particularly
where the grant is absolute and the agrennent for support is
stated to be the consideration.^^ In such cases a liberal inter-
pretation has been adopted, in accordance with established
equity rules; and unless a condition is clearly manifest the
iti Columbia College v. Thacher, '>< 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 an<l in the inntru-
nient of conveyance; but in the latter case it iH the creation of
a new riglit or interest, liotli an exception and a rcHcrvalion
must be created by apt words, those employed for the former
bein^^ "sa\ ini,^ and excepting," while for the latter the word
"reserving" is sufhcient; but the terms are often used indis-
criminately, and fre(piently in conjunction, as "excepting and
reserving,'' etc.; and the dilTerence between the two is so
obscure in many cases that it has not been observed.^ Not-
withstanding there is a technical distinction between the
terms, yet where "reserving" is used with evident intent to
create an exception, effect will be given to it in that sense ;^
and generally, where the rule prevails that the exi)ressed in-
tention of the parties is the controlling consideration in con-
struing a deed, the distinction of the common law between
exceptions and reservations is not material.^'
The two incidents are so nearly allied and partake so
largely of the same characteristics that they are best treated
in connection with each other, and will be so treated in the
succeeding paragraphs.
§ 467. Creation of reservation. Any language clearly indi-
cating intention will usually be given etfect as a reservation,
although many of the cases hold that if a reservation of inher-
itance is intended specific words of inheritance must be em-
ployed, and that a reservation to the grantor alone will have
no greater effect than to confer upon him a life estate." But
words of inheritance, so far as they may affect the character
of estates conveyed, are no longer necessary in most of the
states, and it seems that where the use of such words have
been dispensed with by statute in the creation of estates they
4 Winthrop v. Fairbanks, 41 Me. ception, making the grantor the
307; Bowen v. Conner, 6 Cush. separate owner of the coal. Whit-
(Mass.) 132; Roberts v. Robertson, aker v. Brown, 46 Pa. St. 197.
53 Vt. 690. Coal Creek Mining Co. v. Heck.
c Sloan V. Lawrence Furnace Co. 15 Lea (Tenn.) 497; Heflin v.
29 Ohio St. 568; Kister v. Reeser, Bingham. 56 Ala. 566; Hart v.
98 Pa. St. 1; and see Barnes v. Stratton Mills, 54 N. H. 109; Den-
Burt, 38 Conn. 541; State v. Wil- nis v. Wilson, 107 Mass. 591;
son, 42 Me. 9. As where a grantor Whitaker v. Brown. 46 Pa. St. 197.
sold land reserving the coal t Ashcraft v. R. R., 126 Mass. 196.
therein, it was held to be an ex-
654 RESERVATIONS AND EXCEPTIONS.
need not be used iu a reservation;'* and in like manner, if tlie
reservation is such a one as is appurtenant to the land con-
veyed or to land yet owned by the grantor, words of inherit-
ance need not be used.'-^
The term "reservation" seems to have acquired a wider
significance in this counti'y than was accorded to it in Eng-
land, and also to have lost some of the incidents of the place
of its origin. It would seem to have been formerly used
mainly with respect to rents or some provision which a
grantor made or reserved to himself out of that which was
granted. At present, while it still retains this character
with respect to leaseholds, it is the form by which an ease-
ment, privilege or benefit is acquired by the grantor out of
the thing granted, without respect to the character of the
estate conveyed.
By the technical rules of conveyancing a reservation is
made in the clause following the habendum and which is
known as the reddendum. In formally drawm leases this
order is generally observed with respect to the reservation
of rent, but in other grants it is not material where the pro-
vision is placed, and usually it follows the grant.
§ 468. Construction. Where the exceptions and reserva-
tions of a deed are expressed in a doubtful manner, the gen-
eral rule is that they shall be construed most strictly against
the grantor ;io yet if the intention of the parties can be fairly
ascertained from the instrument, such intention will govern in
its construction.^ 1 If repugnant to the grant they are void;^^
but generally the intent of the parties, as ascertained by a fair
interpretation, must be given effect, and the exception recon-
ciled if reconcilement is possible.'^ The usual rules which
sKarmulIer v. Krotz, 18 Iowa Hall v. Ionia, 38 Mich. 493; Thomp-
358. son V. Gregory, 4 Johns. (N. Y.)
sWinthrop v. Fairbanks, 41 Me. 81.
309; Burr v. Mills, 21 "Wend. (N. 12 As where the exception is as
Y.) 290. large as the grant itself, or where
10 Duryea v. New York, 62 N. Y. the excepted part was specifically
592; Wiley v. Sidorus, 41 Iowa 224; granted — as where a person grants
Klaer v. Ridgway, 86 Pa. St. 529; two acres and then excepts one of
Gerrish v. Shattuck, 132 Mass. 235; them. Cutler v. Tufts, 3 Pick.
Wyman v. Farrar, 35 Me. 64. (Mass.) 272.
11 Wiley V. Sidorus, 41 Iowa 224; 13 Hall v. Ionia, 38 Mich. 493.
RESERVATIONS AND EXCEPTIONS. 555
govern the construct ion of ;^r;ints apply in the Hanic niannci-
to exceptions and reservations,''
S 469. Certainty an essential. It is a general rule, founded
on reason and sustained by authority, that the same certainty
of description is required in an exception out of a grant or a
reservation made therefrom as in the grant itself. The rule
is not uniform, however, and in some states seems to be
denied. In the cases which sustain the rule the doctrine is
announced in strong and generally unqualified terms, which
admit of no variation, that where a deed exeei)ts out of the
conveyance a specific quantity of land, say an acre, and there
is nothing in the exception which serves to locate it upon any
particular part of the tract, the exception is void for uncer-
tainty, and the grantee takes the entire tract.^^ But it seems
that in some cases of this character the uncertainty of loca-
tion may be cured by the grantor's election, followed by acts
in pais.^^
On the other hand, there are cases which hold that where a
whole tract of land is conveyed by specific designation, except-
ing therefrom an acre, without describing such acre, the
exception or reservation will nevertheless be good, and the
owner thereof will become a tenant in common with the
owner of the balance of the tract in the proportion that the
acre bears to the number of acres in the whole.^"^
14 Where land was conveyed with fraction section 23, and northwest
all the buildings standing thereon, quarter section 24, town 10 south,
except the brick factory, the land range 4 west, except twenty acres,
on which the factory stood and which is reserved to satisfy the
the water privilege appurtenant claims" of certain heirs therein
thereto did not pass by the deed, named. And see Rockafeller v. Ar-
Alien V. Scott, 21 Pick. (Mass.) 25. lington, 91 111. 375. An exception
i"' Mooney v. Cooledge, 30 Ark. in a grant of lands in these words,
640. "excepting and reserving out of
10 As where a deed reserved the said piece of land so much as
three-quarters of an acre as a bury- is necessary for the use of a grist-
ing-ground for the grantor's fam- mill on the east side of the road at
ily, and was followed by inter- the west end of the saw-mill dam,"
ments in a particular place. Benn is a good exception; but until the
v. Hatcher, 81 Va. 25. grantor or his assigns exercise the
1" Gill V. Grand Tower, etc., Co., right reserved and build the mill, it
92 111. 249. In this case the Ian- is inoperative, and the whole prem-
guage of the deed was, "All that par- ises vest in the grantee, who may
eel of land described as . . . maintain trespass against a stran-
556
RESERVATIONS AND EXCEPTIONS.
§ 470. Must be to grantor. It i.s a rule that a reservation
must be to the grantor and not to a stranger,i*^ but it is not the
less made to him simply because others can derive advantage
from it; and it will be considered as made to him when valu-
able rights are secured to him, although it may be perceived
that others will also be benefited by it.^^
But while a reservation will not give title to a stranger, it
may operate, when so intended by the parties, as an exception
from the thing granted, and as notice to the grantee of ad-
verse claims as to the thing excepted or ''reserved."-^ It must
not be understood, however, that the exception in such case
gives title to such third person, for no one not a party to the
deed can acquire any rights or interest in the land by virtue
of any exception therein contained more than a reservation;
yet where third parties already possess rights adverse to those
conveyed, an exception may properly be made for the purpose
of relieving the grantor from liability on his covenants. The
exception, in such event, operates as a recognition of the
existing rights of such third persons, and serves to convey
notice to the grantee.^i
ger, or even against the grantor or
his assigns, for an entry on the
land for any purpose other than
that specified in the reservation.
Dygert v. Matthews, 11 Wend. (N.
Y.) 35. In a conveyance of land
a right of way was reserved for a
portion thereof "from the public
highway along the side of
sub-lot No.. to the river, not
less than feet wide." Held,
that this reservation of the right
of way was not void for uncer-
tainty. The parties interested
could locate it by agreement, or by
acts, conduct and declarations in-
dicating a practical location, ac-
companied by user from and after
the date of the creation of the right
of way. Crocker v. Crocker, 5
Hun (N. Y.) 587.
18 Hornbeck v. Westbrook, 9
Johns. (N. Y.) 73; Littlefield v.
Mott, 14 R. I. 288.
19 Gay V. Walker, 36 Me. 54
Bridger v. Pierson, 45 N. Y. 691
Karmuller v. Krotz, 18 Iowa 358
Barber v. Barber, 33 Conn. 335.
20 West Point Iron Co. v, Rey-
mert, 45 N. Y. 703. As where a
deed from A. to B. contained a
clause recognizing the right of C.
to a mine by "reserving to C. the
right he has to the ore-bed and the
right of way to the West Point
foundry, as now used." Ibid.
21 As where a deed with cov-
enants for quiet enjoyment con*
tained the following clause: "Re-
serving always a right of way, as
now used, on the west side of the
above-described premises for cat-
tle and carriages, from the public
highway to the piece of land now
owned by R." Held, that, although
strictly a reservation in a deed is
ineffectual to create a right in any
person not a party thereto, yet
RESERVATIONS AND EXCEPTIONS.
557
§471. Rights of way. Out* of the must coinmon rcserva-
tious made in deeds is lluit of roadways, patliH aud other ease-
ments of a like character covered by the generic term "rights
of way." Usually reservations of this kind are consti-ued to
create only an easement — the fee, with all its incidents, vest-
ing in the grantee.22 The only effect of such a reservation,
therefore, is to protect th(,^ grantor from liability on the cov-
enants of his deed, liut where the clause takes the form of
an exception from the grant, so that no title in fact as well
as in law ever i)assed to the grantee, the fee as well as the
use is included.-'*
Usually, however, courts will incline to construe exceptions
as having reference only to the easement and not to the land;
and where the exception is of a "road" or of a '"highway,"
and not of the land covered by such road or highway, it
may be taken as an exception of the right of passage merely,
and therefore be treated simply as a reservation, and the
there being in fact a right of way
existing at the time of the grant in
R., such clause must be construed
as an exception from the property
conveyed; and that the grantor
was not liable to the grantee as for
a breach of his covenant. Bridger
V. Pierson, 45 N. Y. 601; and see
Richardson v. Palmer, 38 N. H.
212.
22 Caradine v. Caradine, 33 Miss.
698; Keeler v. Wood, 30 Vt. 242.
As where a deed conveyed certain
property, "reserving to the pub-
lic the use of the road through said
farm," it was held that the inten-
tion of the grantor was to convey
to the grantee the lands over which
the public highway was laid out,
subject only to the right of way of
the public over the same. Richard-
son V. Palmer, 38 N. H. 212. So,
a reservation of "a road ten feet
wide along the line of Joseph
Badger" was held to carry only a
right of way and not the fee of the
strip. Kister v. Reeser, 98 Pa. St.
1; and see Winthrop v. Fairbanks,
41 Me. 311; Dunn v. Sanford, 51
Conn. 443; Bridger v. Pierson, 45
N. Y. 601. A reservation of "all
roads now established and built on
or over" premises conveyed by
deed relates only to the easement
of public travel, and does not
except any portion of the soil from
the operation of the deed. Capron
v. Kingman, 14 Atl. Rep. 868.
-3 An exception in a deed in the
following words: "Saving and ex-
cepting from the premises hereby
conveyed all and so much, and
such part and parts thereof, as
has or have been lawfully taken for
a public road or roads," held to be
an exception of the land covered by
a public highway across the prem-
ises, and not simply of the ease-
ment therein, and that the fee of
such land remained in the grantor
and passed to a subsequent pur-
chaser from him. Munn v. Wor-
rall. 53 N. Y. 44; And see Salisbury
v. Andrews, 19 Pick. (Mass.) 252.
658 RESERVATIONS AND EXCEPTIONS.
soil may be regai'ded as passing to llu' grautee in the deed.^*
I>ut 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 alludin<jj to him in the body of the certificate
or signature, the deputy in both cases signing his own name
and title of office.-^
Mayors of cities are also frequently given this power, but it
would seem that the mayor of a town would have no right
to exercise the right under the authority given to mayors of
cities.
§ 510. Form. It has been repeatedly held by courts that in
the acknowledgment of deeds it is sufficient if it appears that
the statute has been substantially observed and followed.^^
A mere literal compliance is not demanded or expected.-"
The policy of the law is to uphold eonveyances,^^ and in the
the court. Moore v. Hill, 59 Ga.
760.
21 Touchard v. Crow, 20 Cal. 150;
Hope V. Sawyer, 15 Kan. 252; Tal-
bott V. Hooser, 12 Bush (Ky.) 408;
Gibbons v. Gentry, 20 Mo. 468;
Rose V. Newman, 26 Tex. 131;
Kemp V. Porter, 7 Ala. 137.
22 Abrams v. Erwin, 9 Iowa 87;
Gibbons v. Gentry, 20 Mo. 468.
23 Talbott V. Hooser, 12 Bush
(Ky.) 408. And where one deputy
clerk takes an acknowledgment of
a deed, indorsing on it a memoran-
dum thereof, another deputy may
write out and sign the certificate.
Drye v. Cook, 14 Bush (Ky.) 459.
24 McRae v. McGuire, 23 Miss.
100; Beaumont v. Yeatman, 8
Humph. (Tenn.) 542; Touchard v.
Crow, 20 Cal. 150. In this latter
case the attestation road: "Wit-
ness my hand and seal of court
affixed at office this 30th day of
July, 1852. John A. Brewster, dep-
uty clerk of Sonoma county." In
Woodruff V. McHarry, 56 111. 218,
where a deed was acknowledged
before a person who described him-
self, in his certificate, as clerk pro
tempore of the United States cir-
cuit court for the southern district
of Illinois, it was regarded as suffi-
cient if the person taking the ac-
knowledgment was clerk de facto,
without reference to the temporary
character of his appointment. To
same effect. Brown v. Lunt, 37 Me.
423; Prescott v. Hayes, 42 N. H.
56.
2'' Knight V. Smith, 1 Ore. 276;
Jacoway v. Gault, 20 Ark. 190;
Bell V. Evans, 10 Iowa 353.
-'■•Stewart v. Dutton, 39 111. 91;
Wickorsham v. Reovcs. 1 Iowa 413.
•-■• Wells V. Atkinson, 24 Minn.
161.
G12 ACKNOWLEDGMENT.
proof of them a liberal construction is always allowed.2«
Where a conveyance of lands in one state is acknowledged
before a commissioner in another state, the same form must
be used as if the acknowledgment were made in the state
where the land is situate.^o
§ 511. Venue. Exjiress statutory requirements providing
for the taking of the acknowledgment in the county where
the land is situated, or where the parties reside, etc., are
usually held to be mandatory, and compliance in this respect
is essential to validity ;3o but ordinarily an acknowledgment
may be made anywhere before an officer authorized by the
laws of the state where the land is situated to take and certify
the same. In every instance, however, the certificate must
show on its face that it was made at some assignable locality,
and within the jurisdiction of the certifying officer.^^ This
is accomplished by a note of the county and state called the
venue, immediately preceding the certificate proper, together
with the usual "ss" or scilicet, which literally means, ''let it
be known," or "be it known, that in the state of , at the
county of ," etc. The use of the venue in legal and other
writings cannot safely be dispensed with, for although tech-
nical yet it is sure and certain.
The omission of venue, where there is nothing in the cer-
tificate to show where the officer who took the acknowledg-
ment resided and acted, is generally a fatal defect ;32 and the
same is true of a partial venue if unaided by other facts.^^ It
28 Kelly V. Calhoun, 95 U. S. 710; 32 Vance v. Schuyler, 1 Gilm.
Henderson v. Grewell, 8 Cal. 581; (111.) 160.
Warren v. Hardy, 6 Md. 525; Alex- ss Hardin v. Kirk, 49 111. 153. In
ander v. Merry, 9 Mo. 510; Barton this case the venue to the certifi-
V. Morris, 15 Ohio 408; Monroe v. cate was, "County of New York."
Arledge, 23 Tex. 478. The omission The court say: "This venue may
of the statement of immaterial apply equally well to a county of
facts, notwithstanding they are the same name in any state of the
part of a prescribed form, will not Union. There is nothing in the
constitute a fatal defect in the deed from which it can be inferred
certificate. Bradford v. Dawson, 2 that the acknowledgment was tak-
Ala. 203. en in the state of New York. It
23 Keller v. Moore, 51 Ala. 340. must appear from the acknowledg-
30 Dickerson v. Talbot, 14 B. ment where it was made and cer-
Mon. (Ky.) 49; Hughes v. Wilkin- tified, or by taking the acknowl-
son, 37 Miss. 482. edgment and the deed together we
31 Montag V. Linn, 19 111. 399. must be able to presume in what
ACKNOWLEDGMENT. 613
has been held, however, tliat the omiHsion of the vonue in a
ft' rt ill calf of au ackiiowlcd^Miiciil, taken by a justice of the
peace, may be obviated by proof lliat siicli ofticer was at the
lime a justice of the peace in the county wliere if was taken,
and as such took it;'" and further, that tlie omission of the
name of tlie county in the caption to a certificate otherwise
formal and sullicient, where the defect was supplied ))y tlie
seal attached so as to show the venue or county, only rendered
the certificate informal and not void.^''
Ordinarily a notary may exercise his office anywhere in the
state of his appointment; and justices of the peace have in
many instances been held to possess the same power, the act
beiu*,' ministerial and not judicial.'"'' Tiie theory upon which
this doctrine proceeds is that the authority to perform a min-
isterial act attaches to the officer wherever he may be, unless
restricted by statute prescribing territorial limits. Where the
judicial theory of the act obtains the rule would probably be
different. The presumption is that the act was perfomied
within the officer's jurisdiction.^^
§ 512. Date. It does not appear that a date is essential to
a certificate,'^^ even though the statutory form may provide
for the same;39 and where the statute requires the date to be
stated, it seems that an omission in this particular may be
supplied by resorting to the deed itself, or to the certificate of
magistracy if any is annexed.'*^
§513. Party acknowledging must be sufficiently identified.
Tlie first of the two primary and indispensable elements of .i
certificate of acknowledgment consists of the identification of
the party whose act it purports to be. The statutory pro-
state it was taken. The officer tak- "i" Chiniquy v. Catholic Bishop of
ing it can act only within the terri- Chicago, 41 111. 148.
torial limits of his jurisdiction, •■*« Day v. Brooks, 30 Mo. 515; Bis-
and it must appear that the act coe v. Boyd, 15 Ark. 655; Learned
v/as performed within these limits, v. Allen. 14 Allen (Mass.) 109;
In this case the certificate and deed Odiorne v. Mason, 9 N. H. 30.
failed to show where the officer ;<" Rackleff v. Norton. 19 Me. 274;
acted at the time when he took Bradley v. West. 60 Mo. 33.
this acknowledgment, and is de- 3« Irving v. Brownell, 11 III. 402;
fective, and the deed is therefore Rackleff v. Norton, 19 Me. 274.
inadmissible." ^'o Hobson v. Kissam, 8 Ala. 357.
••»! Graham v. Anderson, 42 111. ^o Bradford v. Dawson, 2 Ala.
514. 203; Kelly v.Rosenstock,15 Md.389.
G14
ACKNOWLEDGMENT.
visions of all the states, however diverse they may be on other
subjects connected with execution, are all united upon this
point; and unless the person offering to make such acknowl-
edgment shall be personally known to the certifying oflScer to
be the real person who executed the deed, or shall be proved
to be such by a credible witness, such oflScer has no authority
to take or certify the acknowledgment. The evident object of
these provisions is to prevent one individual from personating
another,^^ and this fact of identity must aflSrmatively appear
in the certificate. The officer must know the person in whose
name the acknowledgment is proposed to be made, and must
certify to such knowledge; and a substantial compliance with
this requirement is indispensable to the validity of the
acknowledgment.^-
A literal cohipliance in this regard is not essential, however,
provided the fact substantially appears,^^ and other language
than that used by the statute may be employed where the
import is the same.^^ Courts are always inclined to construe
iiMcConnel v. Reed, 2 Scam. oflBcer's presence, is good as an at-
(111.) 371.
42 Fryer v. Rockefeller, 63 N. Y.
268; Fogarty v. Finlay, 10 Cal. 239;
Gove V. Gather, 23 111. 634; Brinton
V. Seevers, 12 Iowa 389; Garnier v.
Barry, 28 Mo. 438; Pinckney v.
Burrage, 31 N. J. L. 21; Smith v.
Garden, 28 Wis. 685; Carpenter v.
Dexter, 8 Wall. (U. S.) 513; Pen-
dleton V. Button, 3 Conn. 406. An
introduction by a mutual friend is
sufiBcient to satisfy a statutory re-
quirement that the officer taking
the acknowledgment shall know or
have satisfactory evidence that the
person making such acknowledg-
ment is the individual described
in and who executed the instru-
ment, if such introduction satisfies
the conscience of the officer as to
the identity of the party. Wood v.
Back, 54 Barb. (N. Y.) 134. A cer-
tificate of acknowledgment which
fails to recite that the grantor was
known to the officer, but does re-
cite that the grantor signed in the
testation, though defective as an
acknowledgment. Rogers v. Adams,
66 Ala. 600.
"Tully V. Davis, 30 111. 103;
Rosenthal v. Griffin, 23 Iowa 263;
Robson V. Thomas, 55 Mo. 581;
Warner v. Hardy, 6 Md. 525.
44 Bell V. Evans, 10 Iowa 353;
Kelly V. Calhoun, 95 U. S. 710;
Henderson v. Grewell, 8 Cal. 581;
Thurman v. Cameron, 24 Wend.
(N. Y.) 87. Where a certificate
stated that "personally appeared
before me P. H. and E. H., his
wife, who personally known
to me," etc., omitting "are" after
"who," it was held that such omis-
sion did not impair the deed, as
"who" might be disregarded as su-
perfluous, and the certificate would
then be correct. Hartshorn v. Daw-
son, 79 III. 108. So, where the
word "appeared" was omitted after
the phrase "before me personally,"
the omission was held to be a cler-
ical error, and not fatal to the
ACKNOWLEDGMENT. 6l5
tnatters of this kiud liberally;^'' and whenever the defect can
be reconcik'd, or doe.s not defeat the ackuowk-dj^ment by
indeflniteness or uncertainty, it will not invalidate.*®
A material omission unaided by other circumstances, or a
failure to designate the person acknowledginj^ with certainty,
as where the acknowledgment purports to be made by
Smith, without other designation of the person,"*^ or where
there is an entire omission of the name of the grantor, will
ordinarily vitiate the certificate, although it has been held
that if the certificate shows that the party who appeared
before the officer was the grantor and that he and no one else
made the acknowledgment,*** or where he is referred to by
name in that part of the certificate referring to the wife's
acknowledgment,*'-* this will be sutficient.
§ 514. Fact of acknowledgment must be stated. The sec-
ond indispensable requisite to a valid certificate is a state-
ment of the fact of acknowledgment; for not only must the
identity of the parties appear, but it must further be shown
that they afiirmed the execution of the instrument as their
free and voluntary act. But here, as in the fonner instance,
form is not material, provided substance be found. No term,
however, so fully expresses the fact as the word "acknowl-
edge." This, by immemorial usage as well as statutory enact-
ment, has obtained a known and established signification
when used in this connection, and its employment, or words of
equivalent import, is absolutely necessary to give legal etlect
to the certificate.'^o In the case of ancient deeds much lati-
validity of the instrument. Scharf- -Js Wilcoxon v. Osborn, 77 Mo.
enburg v. Bishop, 35 Iowa 60. A 621. But even under such circum-
certificate that A., "to me well stances the fact of personal knowl-
known, acknowledged," etc., was edge must appear; and a certificate
held to be substantially in the form which simply describes the persons
given by statute, viz.: that A., acknowledging as "grantors of the
"known to me to be the person within indenture," without stating
whose name is subscribed to the that they were known to the offi-
foregoing instrument, acknowl- cer to be the same persons who
edged," etc. Watkins v. Hall, 57 are described in and who executed
Tex. 1. the deed, would be insufficient.
■»5 Harrington v. Fish, 10 Mich. Fryer v. Rockefeller, 63 N. Y. 268.
415. '» Magness v. Arnold, 31 Ark.
•«« Ogden V. Walters, 12 Kan. 282. 103.
••" Hiss v. McCabe, 45 Md. 77. so Bryan v. Ramirez, 8 Cal. 461;
616 ACKNOWLEDGMENT.
tude has been allowed, and the exceptions to the foregoing
rule, if such they can be called, have mainly arisen in the con-
struction of such instruments.^^
§ 515. Party acknowledging must understand purport of
act. As a rule, an otlictM' who takes an acknowledgment is
under no obligation to explain the deed, yet the person so
acknowledging should understand the nature of his act.
Hence, it has been held that a notary's certificate of acknowl-
edgment is of little force when the person purporting to make
the acknowledgment does not understand English, and the
notary has not explained the effect of the act in such person's
own language, and seen to it himself that it was understood.^^
§ 516. Acknowledgment by corporation. In many, per-
haps a majority, of the states, there is no statutory provision
relative to the acknowledgment of deeds by corporations. In
such cases the officer signing the corporate name and affixing
the seal is the party executing the deed within the meaning of
the statute requiring deeds to be acknowledged by the
grantor,^^ In framing the certificate it should appear that the
officer acknowledged the execution of the instrument as his
own act and as the act of the corporation as well.
§ 517. Conveyances by married women. Notwithstanding
the fact that in a majority of the states a married woman is
now as free to acquire, hold and transmit real property by
good and indefeasible title as her husband, it must ever be
borne in mind that she has no legal existence or power to
transfer her interest in lands except through the statutory
channel. This channel may be broad or contracted, according
to the policy of the state, and varying from time to time as
impediments have been removed, but it is a groove through
which her title must pass to be valid; and any departure from
Short V. Conlee, 28 111. 219; Cabell Dewey v. Campau, 4 Mich. 565.
V. Grubbs, 48 Mo. 353; Stanton v. "'i See Jackson v. Gilchrist, 15
Button, 2 Conn. 527; Dewey v. Johns. 89.
Campau, 4 Mich. 565; Huff v. Webb. "'^ Harrison v. Oakman, 56 Mich.
64 Tex. 284. The formality of ac- 390.
knowledgment has been held to be "••' Lovett v. Saw-mill Asso. 6
sufficiently expressed by the term Paige (N. Y.) 54; Kelly v. Calhoun,
"deposes and says." Chouteau v. 5 Otto (U. S.) 710. A corporate
Allen, 70 Mo. 290. But the word deed usually bears the signatures
"stated" has been held insufficient, of both the president and secretary
ACKNOWLEDGMENT. G17
the course marked out by statute is to reuder the conveyance
nugatory and without h'j^al etlect. In numy instanceH the pre-
scribed mode of executing the conveyance confers upon ht-r
the power to convey, and here rests the broad distinction
between conveyances by married wmuen and others who are
sui juri^. >Vhen 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.
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