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 &
 
 SELECTED CASES 
 
 ON THE 
 
 LAW OF PROPERTY IN LAND 
 
 EDITED BY 
 
 WILLIAM A. FINCH 
 
 PROFESSOR OF LAW IN CORNELL t'NIVERSITY 
 COLLEGE OF LAW 
 
 NEW YORK 
 
 BAKER, VOORHIS & COMPANY 
 
 1898
 
 COPYRIGHT, I898 
 
 By William A. Finch 
 
 f4?/6* 
 
 Weed-Parsons Printing Co., 
 
 elbctr0ttpeb8, printers and binders, 
 
 Albany, N. Y.
 
 PREFACE. 
 
 This book contains a classified selection of cases on the 
 topics usually taught in our law schools in the course on 
 " Real Property." 
 
 Systematic and complete annotation was of course 
 impossible within such narrow limits. A few notes 
 have, however, been added, mainly at points where 
 additional references or special suggestions seemed par- 
 ticularly necessary. 
 
 In the title I have followed Leake, whose " Digest of 
 the Law of Property in Land " has been especially useful 
 to me in the matter of analysis and classification. 
 
 W. A. F. 
 
 Cornell University, 
 September, 1898.
 
 TABLE OF CONTENTS. 
 
 PART I. 
 Of the Nature and Kinds of Property in Land. 
 
 CHAPTER I. 
 
 PAGE 
 
 What is Meant by Property in Land i 
 
 CHAPTER II. 
 Real and Personal Property. 
 
 I. What estates and interests in land are real ; what are personal. 8 
 
 1. Leasehold interests in land 8 
 
 2. Estates pur autre vie 13 
 
 3. Shares of stock in land-holding corporations 14 
 
 4. Land treated as money by " equitable conversion " 20 
 
 II. Leading differences in the law as between real and personal 
 
 property 20 
 
 1. In the " law of succession " to estates of deceased persons 20 
 
 2. In the law of dower and curtesy 23 
 
 3. In husband's common-law right to wife's real and personal 
 
 property 26 
 
 4. In modes of transfer 31 
 
 5. In form of contract for a sale. 38 
 
 6. In the order in which property maybe reached for the satisfaction 
 
 of debts of its owner 42 
 
 7. What law governs in case of conflict of laws 44 
 
 8. In the method and means of vindicating property rights 51 
 
 a. Kinds of action 51 
 
 (1) For the recovery of property 51 
 
 (2) For the recovery of damages for wrongs to property; 
 
 trespass, trover, waste 62 
 
 (3) For the prevention of threatened wrongs to property. 62 
 
 b. Where the action must be brought 65 
 
 III. Interests in things the subject of property may change from real 
 
 to PERSONAL AND vice-versa 70 
 
 1. In view of a court of law 70 
 
 2. In view of a court of equity 70 
 
 [v]
 
 Vi TABLE OF CONTENTS. 
 
 CHAPTER III. 
 
 PAGE. 
 
 Corporeal and incorporeal property in land 76 
 
 CHAPTER IV. 
 Absolute and special or limited property in land. ... 80 
 
 CHAPTER V. 
 Allodial and feudal property in land 81 
 
 CHAPTER VI. 
 Legal and equitable property in land 93 
 
 PART II. 
 Of Land as the Subject of Property. 
 
 CHAPTER I. 
 
 Subdivision of Land for Purposes of Ownership. 
 I. The ordinary and usual mode of subdivision. Presumption as to 
 
 OWNERSHIP OF THE UNDERLYING STRATA AND OF THE SPACE ABOVE 
 THE SURFACE. EFFECT OF THIS RULE ON THINGS IN SUCH SPACE. . .. 97 
 
 II. There may be longitudinal as well as vertical subdivision for 
 
 OWNERSHIP IOO 
 
 CHAPTER II. 
 Constituents and Incidents of Land. 
 
 I. The soil and accretions thereto 108 
 
 1. Accretions 108 
 
 2. Soil and rock detached 113 
 
 II. Water as " land " 116 
 
 1. Nature of property in surface or standing waters 116 
 
 2. Nature of property in running waters 116 
 
 3. Artificial watercourses 126 
 
 4. Property in underground waters .... 130 
 
 III. ICE AS INCIDENT TO LAND 136 
 
 1. Ice formed over lands of private owners 136 
 
 2. Ice on public waters 146 
 
 3. Sale of ice 149 
 
 IV. Vegetabli products of the soil • 151 
 
 1. Fructus naturales ... 151 
 
 a. Classification and legal character and ownership 151 
 
 (1) Trees and their fruit . . 151 
 
 (2) Hushes and small fruits 171 
 
 (3) Grasses 173
 
 TABLE OF CONTENTS. vii 
 
 PAGE. 
 
 b. Effect on fructus naturales of sale, devise, or mortgage of 
 
 the land . . 1 74 
 
 (1) In general 174 
 
 (2) How exceptions or reservations must be made. Their 
 
 effect 176 
 
 c. Separate sale or mortgage of fructus naturales, — how made 179 
 
 (1) The general rule 179 
 
 (2) The Kentucky Doctrine 180 
 
 (3) The Massachusetts Doctrine 182 
 
 d. Separate levy of execution on fructus naturales 187 
 
 2. Fructus industrials 187 
 
 a. What they are 187 
 
 b. Effect on fructus industrials of sale of land -. . . . 188 
 
 (1) In general 188 
 
 (2) Exceptions or reservations, — how to be made 196 
 
 (3) Effect of sale of land on foreclosure. ... 197 
 
 c. Devise of the land, — effect on crops in ground at testator's 
 
 death 207 
 
 d. Death of owner intestate, — effect on crop in ground 209 
 
 e. Separate sale of crops in ground 211 
 
 f. Levy of execution on growing crops 214 
 
 V. Fixtures 218 
 
 1. Necessity for " annexation," either mediately or immediately, to 
 
 the soil 2r8 
 
 a. Actual and constructive annexation 2t8 
 
 /'. What mode or degree of annexation is conclusive against 
 
 removability ; what is not 234 
 
 2. Severance of a chattel which has once been annexed 254 
 
 a. Severance by owner of land 254 
 
 (1) Actual 254 
 
 (a) With intent that severance shall be permanent 254 
 
 (b) Without intent that severance shall be per- 
 
 manent 255 
 
 (2) Constructive severance by sale, exception, mortgage, 
 
 or agreement 257 
 
 (a) Sale or exception : by parol or deed 257 
 
 (b) Mortgage : real or chattel 261 
 
 (3) When landowner may not sever fixtures 263 
 
 b. Severance by stranger or by the forces of nature 267 
 
 c. Sale of fixtures on execution 270 
 
 3. The intention of the party annexing as bearing on the question 
 
 of removability 271 
 
 a. Relative importance of this test 271 
 
 b. The actual intent of the annexer 280 
 
 c. The "reasonably presumable intent" in annexing, as 
 
 inferred from the surrounding circumstances 280 
 
 (1) What is meant by 'reasonably presumable intent".. 2S0 
 
 (2) How the "reasonably presumable intent" in annex- 
 
 ing is ascertained 283 
 
 (a) From the nature of the chattel annexed 283
 
 Vlll TABLE OF CONTENTS. 
 
 PAGE. 
 
 (3) From the mode and degree of annexation .... 283 
 
 (c) From the apparent appropriation of the 
 
 chattel to the use or purpose of that part of 
 the realty with which it is connected 283 
 
 (d) From the relation of the annexor to the chattel 
 
 and to the land 283 
 
 4. The apparent appropriation of the chattel to the use or purpose of 
 
 that part of the realty with which it is connected. Fixtures by 
 destination 283 
 
 5. The relation of the annexor to the chattel and the land as bearing 
 
 on the " reasonably presumable intent" in annexing 283 
 
 A. The chattel owner has no interest in the land 283 
 
 a. The chattel owner is annexor 283 
 
 (1) He annexes without license of, or agreement with, 
 
 landowner 283 
 
 (2) Chattel owner has license of, or agreement with, land- 
 
 owner 286 
 
 b. The landowner annexes the chattel of another 290 
 
 B. The chattel owner, annexing, has an interest in the land 305 
 
 a. The annexor is the general owner of the land or is on his 
 
 way to become such 305 
 
 (1) The question arises between real and personal repre- 
 
 sentatives of the annexor 305 
 
 (a) Between executor or administrator and the 
 persons succeeding to a decedent's real 
 
 estate. 305 
 
 (/') Between execution creditor of annexor and his 
 
 vendee or mortgagee 307 
 
 (2) Between vendor (by deed) and vendee ; mortgagor 
 
 and mortgagee. Between tenants in common. . 307 
 
 (3) Between land-contract-vendee annexing, and his 
 
 vendor 309 
 
 b. Annexor is tenant for life 310 
 
 c. Annexor is tenant for years 312 
 
 (1) Trade fixtures 312 
 
 (2) Agricultural fixtures 322 
 
 (3) Domestic fixtures 322 
 
 (4) Time of removal of fixtures by tenant 323 
 
 VI. Manure as incident to land 338 
 
 1. Agricultural lands 338 
 
 a. As between vendor and vendee and heir and executor 338 
 
 mi The general rule 33 s 
 
 (2) The New Jersey Doctrine 34° 
 
 /'. As between landlord and tenant 344 
 
 r. Separate sale of manure 346 
 
 2. Lands not agricultural, <>r riot to be used for agricultural purposes. 347 
 VII. Sl.A WEED, WRECK, STRANDED PROPERTY. MlSLAID GOODS 351 
 
 VIII. PROPERTV IN' PISH AND GAME rationt soli 360 
 
 IX. Minerals 372
 
 TABLE OF CONTENTS. ix 
 
 PART III. 
 Of the Use and Profits of Land. 
 
 CHAPTER I. 
 
 Use by the General Owner in Possession, 
 
 PAGE. 
 
 I. General restrictions on such use 3S2 
 
 1. The maxim " sic utere tuo ut alienum non Icedas." 382 
 
 II. Special restrictions on such use of land 3S3 
 
 1. Conditions and limitations forbidding certain uses or limiting to 
 
 particular uses 3S3 
 
 2. Restrictive covenants 3S7 
 
 3. Restriction as to equitable waste when there is an executory 
 
 devise over 391 
 
 4. Other cases in which general owner may be responsible as for 
 
 waste .' 396 
 
 1 
 
 CHAPTER II. 
 
 Use ey Tenants for Life, for Years, or at Will, in Possession. 
 
 I. Ordinary use 401 
 
 1. The temporary uses and profits — cropsand rents — emblements in 
 
 general " 401 
 
 2. Estovers 417 
 
 3. Fixtures and improvements 419 
 
 II. General restrictions upon tenant's use 422 
 
 1. The maxim " sic utere tuo ut alienum non Icedas " 422 
 
 III. Special restrictions protecting the inheritance for general 
 
 owner. Waste 422 
 
 1. Nature and kinds of waste 422 
 
 a. Voluntary waste 422 
 
 b. Permissive waste 422 
 
 c. Equitable waste 442 
 
 2. In what waste consists 445 
 
 a. In respect of houses and other structures 445 
 
 b. As to wood-lands 445 
 
 c. Changes in manner of using land. Good husbandry 450 
 
 d. Opening and working mines 453 
 
 3. Against whom waste lies and in whose favor 460 
 
 4. The various remedies for waste. 466 
 
 a. At common law 466 
 
 (1) Writ of prohibition and attachment 466 
 
 (2) Writ of waste 466 
 
 (3) Trespass on the case in the nature of waste 466 
 
 b. Under modern statutes 466 
 
 c. In equity — injunction 466 
 
 5. Ownership of timber, minerals, etc., removed by tenant 466
 
 X TABLE OF CONTENTS. 
 
 CHAPTER III. 
 
 Use of Another's Land. 
 
 PAGE. 
 
 I. Under easements 472 
 
 1 1. Profits a prendre 475 
 
 III. Under licenses 480 
 
 PART IV. 
 Of Estates and Other Interests in Land. 
 
 CHAPTER I. 
 
 Estates as to Quantity and Quality : Freeholds. 
 
 I Freeholds of inheritance or fees 483 
 
 1. Limitation of a fee in its creation or transfer. Words of limitation 483 
 
 a. By deed inter vivos — at common law 483 
 
 (1) The general rule as to necessity for technical words of 
 
 limitation in a transfer or reservation 483 
 
 (2) Incorporation of words of limitation by reference to 
 
 another instrument 499 
 
 (3) In the transfer of a fee to a trustee 502 
 
 (4) In the transfer of an equitable interest 505 
 
 (5) In the transfer of a fee to a corporation 509 
 
 (6) In partition deeds between joint tenants and tenants 
 
 in common 511 
 
 (7) Effect if the words of inheritance be in the covenants 
 
 only 513 
 
 b. Inter vivos — under modern statutes. 513 
 
 c. By devise under the ancient " statute of wills " 513 
 
 d. By devise under modern statutes 519 
 
 e. The rule in Shelley's Case 519 
 
 2. The different kinds of fees ". . . . . 520 
 
 a. The fee-farm- or socage-tenure fee 520 
 
 l>. The modern fee simple absolute 521 
 
 c. Qualified or defeasible fees 521 
 
 (1) Determinable fees; fees upon (special or collateral) 
 
 limitation 521 
 
 (2) Fees upon condition 527 
 
 (a) In general 527 
 
 (/>) Void conditions and conditions impossible of 
 
 performance 542 
 
 (3) Fees upon conditional-limitation 551 
 
 d. The fee-conditional of the common law 551 
 
 e. The fee-tail 555
 
 TABLE OF CONTENTS. XI 
 
 PAGE. 
 
 3. The necessary incidents of a fee 560 
 
 a. Alienability 560 
 
 (1) In general : voluntary and involuntary. Inter vivos 
 
 and by devise 560 
 
 (2) Validity and effect of clauses intended to restrain the 
 
 alienation of a fee 561 
 
 (a) Conditions, limitations and conditional limita- 
 
 tions. Declarations that the fee shall be 
 inalienable. General restraints 561 
 
 (b) Qualified restraints 567 
 
 (c) Exception in case of separate estates of married 
 
 women 571 
 
 b. Descent, dower, curtesy 575 
 
 II. Freeholds not of inheritance, — life estates 575 
 
 1. In general, — nature and classification 575 
 
 a. Absolute and defeasible 575 
 
 b. For one's own life and pur autre vie 578 
 
 (1) Pur autre vie: Direct and indirect creation 578 
 
 (2) Pur autre vie: Effect of death of first-taker in pos- 
 
 session... 579 
 
 (a) General and special occupants 579 
 
 (b) The modern statutes 580 
 
 c. Conventional and legal life estates 581 
 
 d. Incidents of life estates 581 
 
 (1) Alienability, voluntary and involuntary 581 
 
 (a) Restraints upon alienation 581 
 
 (b) Forfeiture for alienation 605 
 
 (2) Responsibility of life-tenant for incumbrances and 
 
 taxes 607 
 
 (3) Estovers. Emblements. Improvements and fixtures. 
 
 Waste 611 
 
 e. Termination of life-estates 611 
 
 (1) The natural termination 611 
 
 (2) Forfeiture 612 
 
 (3) Merger 615 
 
 2. Conventional life-estates . . 619 
 
 a. Created by act of parties 619 
 
 (i)Bydeed 619 
 
 (2) By devise 619 
 
 (3) Not by parol, or by writing less than deed 619 
 
 b. The words of limitation j 620 
 
 c. Created out of what 620 
 
 d. Successive life-estates 620 
 
 3. Legal life-estates 621 
 
 a. Estate in tail after possibility of issue extinct 621 
 
 b. Estate by the marital right 621 
 
 c. Estate by the curtesy 622 
 
 (r) Nature of curtesy, initiate and consummate 622 
 
 (2) The essentials for curtesy 627 
 
 (a) Lawful marriage 627
 
 Xll TABLE OF CONTENTS. 
 
 PAGE. 
 
 (b) Birth of issue 627 
 
 (c) Seisin of wife 628 
 
 (d) Death of wife 637 
 
 (e) Need not all coincide in time 637 
 
 (3) To what estates curtesy is an incident 639 
 
 (a) In general ... 639 
 
 (b) Fees subject to executory limitations 641 
 
 (4) How curtesy may be defeated 64 5 
 
 (a) Alienage of husband 645 
 
 {b) Forfeiture for alienation of fee 6j.6 
 
 (c) Annulment of marriage. Absolute divorce. . . 646 
 
 (d) Wife's conveyance 647 
 
 (e) Effect of disclaimer 648 
 
 d. Dower 648 
 
 (1) Nature of dower 648 
 
 (a) Dower inchoate 648 
 
 (b) Dower consummate, — before " assignment ". . 650 
 
 (c) Dower consummate, — after "assignment".. 653 
 
 (2) Essentials for dower 656 
 
 (a) Lawful marriage 656 
 
 (b) Seisin of husband during coverture 658 
 
 (c) Death of husband 668 
 
 (3) In what estates and lands a widow may have dower. . 669 
 
 (a) In general, in estates of inheritance 669 
 
 (b) As to estates of inheritance in expectancy.... 669 
 (<-) In the case of determinable estates 669 
 
 (d) Dower in equitable estates of inheritance 675 
 
 (e) Dower in wild lands 680 
 
 (/) Estates in joint tenancy and in partnership... 685 
 
 (4) Barring dower 687 
 
 (a) Conveyance of, or charge on, land, by intended 
 
 husband before marriage 687 
 
 (b) Ante-nuptial settlements or agreements in- 
 
 tended to bar dower 689 
 
 (c) Alienage of wife 692 
 
 (5) Defeating dower 695 
 
 (a) Elopement and adultery. Divorce 695 
 
 {b) Loss of husband's estate 698 
 
 (c) Husband's conveyance during coverture 701 
 
 (d) Wife's release of dower 704 
 
 (/) Testamentary gift in lieu of dower 705 
 
 if) Estoppel 708 
 
 (g) Statute of limitations 708 
 
 (6) Assignment to widow of her dower 708 
 
 e. Homestead 7 11
 
 TABLE OF CONTENTS. Xlll 
 
 CHAPTER II. 
 
 Estates as to Quantity and Quality : Estates Less Than 
 
 Freehold. 
 
 PAGE. 
 
 I. Nature of leaseholds in general 713 
 
 1. Real or personal interests in land 713 
 
 2. Leaseholds are to be distinguished from — 713 
 
 a. Cases in which occupant of land is in as servant of owner.. 713 
 
 b. Cases of contracts for " lodgings " ... 717 
 
 c. Cases of cultivating a crop on shares 72 
 
 d. Cases of leases in fee reserving a fee-farm rent 721 
 
 e. Agreements for lease 721 
 
 f. An interesse termini 722 
 
 II. Estates for Years or " Terms " 724 
 
 1. The essential feature of a term — certainty as to commencement, 
 
 duration, and termination 724 
 
 a. It is a sale of the land for such fixed period 725 
 
 b. The term may be created to commence in futuro. . 728 
 
 c. The term may be subject to a condition subsequent or to a 
 
 limitation express or implied 731 
 
 d. The term may end (before the time fixed) by forfeiture, sur- 
 
 render, merger, or the exercise of the power of eminent 
 domain 733 
 
 e. Effect of destruction of the premises in whole or part 733 
 
 /. Holding over the term 735 
 
 (1) When tenant will be held for another year 735 
 
 (2) When he may claim to be a tenant at sufferance 738 
 
 2. Creation of the term 741 
 
 a. By deed or other writing or orally 7_jr 
 
 3. Alienation of the term , 7^3 
 
 a. Assignment or subletting 743 
 
 b, Restraints on alienation of a term 749 
 
 4. Alienation of the rent or of the " reversion " 740 
 
 5. Rights and duties of landlord and tenant independent of cove- 
 
 nants 753 
 
 a. Landlord 
 
 753 
 
 (1) May protect reversion, but has no action for an inva- 
 
 sion of the possessory right 753 
 
 (2) Distress for rent 754 
 
 b. Tenant 754 
 
 (1) Has right to estovers and emblements, but must not 
 
 commit waste 754 
 
 (2) Is estopped to deny his landlord's title 758 
 
 6. Rights under covenants implied in law . . . 758 
 
 a. Implied covenant for quiet enjoyment 758 
 
 7. Express covenants. ... 764 
 
 a. For renewal of a lease 764 
 
 III. Estates at will 767 
 
 1. How created 767 
 
 a. By express agreement therefor 767
 
 XIV TABLE OF CONTENTS. 
 
 PAGE. 
 
 b. By implication of law 769 
 
 (1) Tenant enters under void parol lease or parol contract 
 
 for a sale 769 
 
 2. Termination of tenancy at will 771 
 
 a. By express determination of the will. Notice 771 
 
 b. By implied determination of the will 772 
 
 (1) Transfer of interest of either party 772 
 
 VI. Estates from year to year 773 
 
 1. How they arise 773 
 
 a. By express agreement 773 
 
 b. By implication of law 775 
 
 2. Alienability, etc 777 
 
 3. Termination. Notice 777 
 
 V. Tenancy at sufferance 787 
 
 CHAPTER III. 
 
 Licenses. 
 
 I. Nature of a license 788 
 
 1. In general 788 
 
 2. How a license differs from a leasehold interest 788 
 
 3. How a license differs from an easement 788 
 
 4. Executed and executory licenses 7S8 
 
 II. How a license may be given 789 
 
 1. In express terms or by implication 789 
 
 III. Assignability of license 793 
 
 IV. Revocation of license 795 
 
 1. When irrevocable 795 
 
 a. An executed license ... 795 
 
 b. An executed license to interfere with or obstruct an ease- 
 
 ment 795 
 
 c. A license subsidiary to an interest or valid grant 798 
 
 d. By equitable estoppel when the licensee has incurred ex- 
 
 pense in consequence of the fraud of the licensor 798 
 
 t. Cases where licensee has paid consideration, or has incurred 
 expense in executing the license and there is no positive 
 
 fraud 802 
 
 /.In all other cases revocable 807 
 
 CHAPTER IV. 
 Incorporeal Interests in Land. 
 
 I. Nature and kinds 809 
 
 1. In general 809 
 
 2. An incorporeal interest may be as for a fee, or for life or a lease- 
 
 hold 809 
 
 II. Easements.... 809 
 
 1. Nature in genera] 809 
 
 a. Continuous and discontinuous. Illustrations .... 809 
 
 A. Appendant or appurtenant, or in .i^ross 810
 
 TABLE OF CONTENTS. XV 
 
 PAGE. 
 
 2. How created 811 
 
 a. By grant 811 
 
 (i) Express Sn 
 
 (2) Implied 812 
 
 (a) Implied in consequence of a restrictive covenant. 812 
 (/') Implied where owner of premises sells a parcel 
 for which he has created special advantages to 
 
 the detriment of the rest 812 
 
 (r) Implied by reference in deed to a way or to a 
 
 map showing a way 812 
 
 b. By operation of law 813 
 
 c. By prescription 814 
 
 3. Transfer of an easement 814 
 
 4. Destruction of an easement 814 
 
 a. Effect of release, abandonment, nonuser, merger 814 
 
 b. Effect of license to owner of the servient estate, or one act- 
 
 ing under him, to interfere with easement 817 
 
 5. Specific easements 817 
 
 a. Ways 817 
 
 (1) Distinguish ways in gross and highways 817 
 
 (2) Ways of necessity 817 
 
 (3) Repair of way 822 
 
 (4) Excessive use of way 823 
 
 b. Lateral and subjacent support 826 
 
 (1) Lateral support 826 
 
 (2) Subjacent support 832 
 
 c. Party-walls 834 
 
 d. Easements in water 836 
 
 e. Right to flow lands 837 
 
 /. Easements of light and air 837 
 
 6. Public (quasi) easements — highways 844 
 
 a. Rights ol the public 844 
 
 b. Rights of the owner of the fee 846 
 
 III. Common or profits a prendre 847 
 
 IV. Rents 848 
 
 V. Franchises 848 
 
 CHAPTER V. 
 Equitable Estates and Interests in Land 854 
 
 CHAPTER VI. 
 
 Future Estates and Interests in Land. 
 I. Kinds of future estates, the characteristics of each and the 
 
 MODE OF THEIR CREATION .' 856 
 
 I. Reversions and interests, and possibilities analogous thereto. . . . 856 
 
 a. Reversions 856 
 
 b. Equitable reversions 857
 
 XVI TABLE OF CONTENTS. 
 
 PAGE. 
 
 c. Possibilities analogous to reversions 860 
 
 (r) The feudal escheat 860 
 
 (a) On failure of heirs to a fee 860 
 
 (b) On the dissolution of a corporation seized of real 
 
 estate 860 
 
 (2) Feudal forfeitures 865 
 
 (a) For denying tenure 865 
 
 (b) For felony 865 
 
 (3) The possibility of reverter in case of a fee upon special 
 
 limitation 866 
 
 (4) The contingent right of re-entry in case there should 
 
 be a breach of a condition subsequent 866 
 
 2. Remainders 866 
 
 a. Vested remainders 866 
 
 b. Contingent remainders 868 
 
 c . Certain special cases . . 885 
 
 (1) Remainder to a class 885 
 
 (2) Remainder after estate tail 889 
 
 (3) Remainder in default of appointment under a power. . 889 
 
 (4) Certain remainders under the statutory definition of 
 
 the term " vesting " 890 
 
 d. Alternate remainders 904 
 
 e. Acceleration of remainders 904 
 
 3. Executory future estates and interests 906 
 
 a. Shifting executory future estates, " conditional limitations" 907 
 
 b. Springing executory limitations 907 
 
 II. Special rules to be observed in creating future estates subject to 
 
 A CONDITION PRECEDENT .. . 9I7 
 
 i. In the case of a common-law contingent remainder 917 
 
 2. In the case of executory future interests 921 
 
 3. Statutory substitutes for these rules 921 
 
 a. The rule restricting the suspension of the absolute power of 
 
 alienation 921 
 
 (1) Estates subject to a condition precedent ... 92r 
 
 (2) Effect of a spendthrift trust 922 
 
 b. The limitation on statutory " remainders " 924 
 
 4. The rule restricting accumulations of income 925 
 
 III. Descent, devise and alienation of future estates and interests in 
 
 LAND 925 
 
 IV. The destruction of future estates and interests in lands 930 
 
 CHAPTER VI r. 
 Joint Ownership of Interests in Lands. 
 
 I. KINDS OF JOINT INTERESTS AND CHARACTERISTICS OF EACH 938 
 
 i. Estates in joint tenancy 938 
 
 2. Estates in common 944 
 
 3. Estates in copan enary 947 
 
 4. Estates by the entirety 952
 
 TABLE OF CONTENTS. xvii 
 
 PAGE. 
 
 5. Estates in homestead 968 
 
 6. Community property 968 
 
 7 Estates in partnership 972 
 
 II. Incidents of joint estates 972 
 
 1. Possession and disseisin 972 
 
 2. Waste 972 
 
 3. Repairs and improvements 973 
 
 4. Accounting for rents, etc 976 
 
 5. Transfer, descent, etc. 978 
 
 III. Partition 978 
 
 1. Voluntary 978 
 
 2. Compulsory 979 
 
 PART V. 
 Of the Law of Persons in Relation to Land. 
 
 CHAPTER I. 
 
 Aliens. 
 
 I. Capacity to take and hold 980 
 
 II. Capacity to transfer or transmit title 980 
 
 CHAPTER II. 
 
 Infants. 
 
 I. Nature of an infant's transfer 981 
 
 II. Effect of judicial sales on legal character of infant's interest 
 
 in realty 985 
 
 CHAPTER III. 
 
 Married Women. 
 
 I. Husband's right to dissent to devise or conveyance to wife 986 
 
 II. Transfers by married woman 987 
 
 III. Her power to devise her lands 990 
 
 IV. Married woman's separate estate and her power to control and 
 
 dispose of the same 993 
 
 CHAPTER IV. 
 
 Persons of unsound mind 994 
 
 law of prop. in land — d
 
 xviii TABLE OF CONTENTS. 
 
 CHAPTER V. 
 Corporations. 
 
 PAGE. 
 
 i . Power to take and hold 99S 
 
 2. Power to convey or mortgage 1000 
 
 PART VI. 
 Of the Acquisition andTransfer of Interests in Land. 
 
 CHAPTER I. 
 
 Title by Original Acquisition. 
 
 I . Title by occupancy 1002 
 
 II. Title by accretion or accession 1002 
 
 III. Title by adverse possession 1007 
 
 1. Preliminary considerations 1007 
 
 a. Mere possession as a title 1007 
 
 b. Forcible entries and detainers 1009 
 
 2. The essentials of an adverse possession 1013 
 
 a. The possession must be actual and exclusive 1013 
 
 b. It must be open, visible and notorious 1016 
 
 c. It must be with hostile intent 1016 
 
 3. What lands will be deemed to be held adversely 1021 
 
 a. When no color of title in disseisor 1021 
 
 b. When disseisin is under color of title 1023 
 
 4. Power of disseisee to convey after the disseisin 103 i 
 
 IV. Title by Prescription 1056 
 
 V. Title by the Statute of Limitations 1040 
 
 1. Essentials for such title 1040 
 
 a. A disseisin and an adverse possession 1040 
 
 b. The adverse possession must be continuous for the term 
 
 fixed by the statute. Tacking 1040 
 
 c Exceptions in favor of person under a disability 1043 
 
 2. Nature of the title 1053 
 
 VI. Title by estoppel. IODI 
 
 1 . Estoppel by deed 1061 
 
 2. Estoppel in pais — Equitable estoppel 1064 
 
 CHAPTER II. 
 Title by Derivative Aquisition. 
 
 I. From mii Stan ro6g 
 
 I I FROM INDIVID1 M BY INVOLUNTARY ALIENATION """I 
 
 [. Title by eminent domain "> ( ")
 
 TABLE OF CONTENTS. XIX 
 
 PAGE 
 
 2. Title by marriage 1070 
 
 3. Title by bankruptcy 1070 
 
 4. Title by sale under an execution 1072 
 
 5. Sales by guardians, executors, administrators, etc 1073 
 
 6. Sales by judicial decree 1073 
 
 7. Tax sales 1073 
 
 III. From individuals by alienation inter vivos 1073 
 
 1. Common-law conveyances 1073 
 
 a. Primary 1073 
 
 b. Secondary 1073 
 
 2. Conveyances operating under the Statute of Uses 1073 
 
 3. Grants 1075 
 
 4. Modern transfers io 75 
 
 a. By deed or by parol 1075 
 
 b. Requisites for (and of) a deed of conveyance !C>75 
 
 (1) Competent parties 1075 
 
 (2) Real property to be conveyed 1077 
 
 (3) Words of conveyance 1080 
 
 (4) A description of the premises sufficient to identify 
 
 them 1081 
 
 (a) The sufficiency of the description 10S1 
 
 (/') What will pass as appurtenant to the lands 
 
 described 1082 
 
 (5.) Delivery and acceptance of the deed 1085 
 
 c. Covenants in conveyances . 1094 
 
 (1) Covenants for title 1094 
 
 (a) Covenant of seisin 1094 
 
 (/') Covenant against incumbrances 1100 
 
 (c) Covenants of warranty and of quiet enjoyment. 1100 
 
 (d) Covenants for further assurance 1102 
 
 (e) Special covenants as to title 1104 
 
 (2) Special covenants 1105 
 
 (a) Restrictive covenants 1105 
 
 6. Transfer by way of security: mortgage 1105 
 
 a. Nature of a mortgage: at law, inequity 1105 
 
 b. What constitutes a mortgage; at law; inequity 1105 
 
 <-. Assignment of mortgage. Subrogation 1111 
 
 d. Foreclosure 1118 
 
 (1) Strict foreclosure 1118 
 
 (2) Foreclosure by action 1122 
 
 (3) Foreclosure by advertisement or under power of sale. 1122 
 
 IV. Title by devise 1122 
 
 CHAPTER III. 
 Title by descent ... 1 127
 
 TABLE OF CASES. 
 
 *** Where n is prefixed to the 
 but is either digested or quoted f 
 
 page number, the case is not reported 
 rom in a note. 
 
 Adams v. City of Cohoes 783 
 
 Adams v. Ross 483 
 
 Adams v. Smith 187 
 
 Albany Co. Savings Bank v. 
 
 McCarty, 647 
 
 Albany Fire Ins. Co. v. Bay 987 
 
 Allis v. Billings 994 
 
 Arnold v. Green . . 1115 
 
 Arnold v. Patrick 1088 
 
 Atkinson v. Baker 579 
 
 Aurora Agl. & Hort. Soc. v. Pad- 
 dock 1000 
 
 Austin v. Sawyer 31 
 
 Ayers v. Reidel 1016 
 
 Babb v. Perley . . 27 
 
 Babbitt v. Day 685 
 
 Baker v. Oakwood 1053 
 
 Baker v. Jordan 191 
 
 Barker v. Bates ..... 355 
 
 Barnes v. Light 1018 
 
 B.irry v. Merchants' Exch. Co.. 998 
 
 B .tes v. Brown 1127 
 
 B .itis v. Shraeder 460 
 
 Ba terman v. Albright 164 
 
 Baxter v. Smith 986 
 
 Becar v. F.ues 722 
 
 Beckman v. Kreamer 360 
 
 Be r ties v. Nun an 952 
 
 Binkley v Forkner 297 
 
 Bishop v. Banks 382 
 
 Bi shop v. Bishop 305 
 
 Blackmore v. Boardman 764 
 
 B aisdell v. Railroad 793 
 
 Blakemore v. Stanley 387 
 
 Blakeslee v. Sincepaugh 1064 
 
 Boatman v. Lasley. 810 
 
 Bopp v. Fox 686 
 
 Borland (L*^see of) v. Marshall, 629 
 
 Bostick v. Blades 542 
 
 Boykin v. Ancrum 615 
 
 Brackett v. Goddard 170 
 
 Bradley v. Bailey 409 
 
 Bradstree* v. Clarke 55 
 
 Brady v. Waldron 176 
 
 Bramhall v. Ferris 605 
 
 Brewster v. Hill 53 
 
 Brooks v. Curtis 834 
 
 Brookville & Metamora Hyd. 
 
 Co. v. Butler 141 
 
 Brown v. Bronson 68S 
 
 [* 
 
 Clark 
 
 Administrators 
 
 Brown v 
 Brown's 
 
 Bragg 
 
 Burnett v. Burnett 
 
 Burns v. Bryant 
 
 Butterfield v. Reed. . . . 
 Byassee v. Reese 
 
 Caldwell v. Fulton 
 
 Calvert v. Aldrich 
 
 Campbell v. Herron 
 
 Cannon v. Barry. 
 
 Carmichael v. Carmichael 
 
 Cartwright, In re 
 
 Caswell v. Districh 
 
 Chamberlain, In re 
 
 Clap v. Draper 
 
 Clark v. Glidden n. 
 
 Clark v. Harvey 
 
 Clemence v. Steere 
 
 Coates v. Cheever 
 
 Cochran v. Cochran ;/. 
 
 Cockrill v. Downey 
 
 Codman v. Evans 
 
 Cogswell v. Cogswell 
 
 Colby v. Osgood 
 
 Cole v. The Lake Co 
 
 Collins v. Hasbrouck 
 
 Conner v. Shepherd 
 
 Congregational Soc. of Halifax v. 
 
 Stark 
 
 Cook v. Stearns 
 
 Coolidge v. Learned 
 
 Corning v. Troy Iron & Nail 
 
 Factory 
 
 Coudert v. Cohn .... 
 
 Cox v. James 
 
 Craddock v Riddlesbarger 
 
 Craig v. Leslie .... 
 
 Crosdale v. Lanigan 
 
 Cross v. Marston 
 
 Cunningham v. Moody 
 
 Curtiss v. Ayrault 
 
 Daly v. Wise 
 
 Dart v. Dart 
 
 DeBlane v. Lynch 
 
 Deerfield v. Arms 
 
 Demarest v. Wynkoop 
 
 Den ex Jem. Johnson v. Morris.. 
 Despard v. Churchill 
 
 xil 
 
 here, 
 
 PAGE. 
 992 
 
 726 
 
 551 
 768 
 8l6 
 ISO 
 
 I02 
 
 973 
 947 
 433 
 902 
 
 423 
 720 
 
 173 
 176 
 807 
 406 
 
 450 
 453 
 609 
 
 '74 
 846 
 607 
 1 103 
 489 
 
 743 
 
 683 
 
 509 
 4S0 
 1036 
 
 121 
 780 
 S12 
 215 
 71 
 802 
 
 239 
 889 
 126 
 
 762 
 
 1077 
 
 968 
 
 10S 
 
 1047 
 
 56 
 
 4i
 
 XX11 
 
 TABLE OF CASES. 
 
 PAGE. 
 
 Dick v. Doughten 701 
 
 Doe ex dan. Bastow v. Cox 767 
 
 Doherty v. Matsell 1019 
 
 Drake v. Wells 182 
 
 Dubois v. Beaver 168 
 
 Durando v. Durando 658 
 
 Eaton v. B. C. & M. R. R 1 
 
 Edwards v. Bibb 671 
 
 Ellithorpe v. Reidesil 217 
 
 Evans v. Evans 669 
 
 Farrar v. Stackpole 
 
 Fay v. Muzzey ... 
 
 Fears v. Brooks 
 
 Ferguson v. 
 
 Ferguson v. Spencer 
 
 Ferguson v. Tweedy 
 
 First Universalist Soc. of N. 
 
 Adams v. Boland 
 
 Fisher v. Deering 
 
 Fisherv. Fields 
 
 Floyd v. Carow 
 
 Fontaine v. Boatmen's Savings 
 
 Institution 
 
 Foss v. Crisp 
 
 Foster v. Marshall .... 
 
 Fowler v. Bott 
 
 French v. Fuller 
 
 French v. Marstin 
 
 Garfield v. Hapgood 
 
 Garwood v. N. Y. Cent. & Hud. 
 R. R. R. Co 
 
 Gilmore v. Driscoll 
 
 Gilpin v. Hollingsworth 
 
 Goddard v. Winchell 
 
 Goffv. Kilts 
 
 Goodrich v. Jones 
 
 Goodright v. Cornish 
 
 Goodwin v. Goodwin 
 
 Grandona v. Lovdal. . 
 
 Graves v. Berdan 
 
 Graves v. Weld 
 
 Green v. Armstrong 
 
 Green v. Green 
 
 Green v. Hewitt. . 
 
 Greenwood Lake & Port Jervis 
 K. R. Co. v. The N. Y. & Green- 
 wood Lake R. R. Co 
 
 Grim s v. Raglan d 
 
 227 
 339 
 571 
 423 
 804 
 628 
 
 525 
 75i 
 505 
 856 
 
 664 
 645 
 622 
 
 725 
 753 
 823 
 
 323 
 
 116 
 826 
 
 949 
 109 
 
 368 
 
 255 
 
 918 
 
 8 
 
 99 
 733 
 403 
 
 38 
 984 
 866 
 
 472 
 1029 
 
 Hale McLea 134 
 
 Hall v. Chaffee 925 
 
 Halsey v, McCormick r.006 
 
 Harriman v. Gray 704 
 
 Harris v. Frink ... 769 
 
 Harris v. Scovel 254 
 
 Haslem v. Lo< k wood 34<; 
 
 I [atfield v. Sneden 041 
 
 I I LUghabough /, i lonald 93E 
 
 Havens v. Sea Shore Land Co.. 026 
 
 I la ■• ley 1 , fames 919 
 
 I [aynes v. Aid rich 735 
 
 PAGE. 
 
 Haynes v. Boardman 1042 
 
 Haynes v. Sherman 922 
 
 Heath v. Barmore 865 
 
 Heath v. Williams 120 
 
 Hecht v. Dettman 199 
 
 Helm v. Helm 711 
 
 Hennessy v. Patterson 868 
 
 Heme v. Bembow 422 
 
 Higgins v. Kusterer ~ 149 
 
 Hiles v. Fisher 963 
 
 Hinchcliffe v. Shea 6dS 
 
 Hirth v. Graham 34 
 
 Hoban v. Cable 1081 
 
 Hoffar v. Dement 951 
 
 Hoffman v. Armstrong 97 
 
 Hogan v. Curtin 546 
 
 Holmes v. Seely 817 
 
 Holmes v. Tremper 320 
 
 Hopkinson v. Dumas 675 
 
 Horn v. Keteltas 1106 
 
 Houghton v. Hapgood 24 
 
 House v. Jackson 901 
 
 Howell v. Leavitt 1043 
 
 Hoyle v. Plattsburgh & Montreal 
 
 R. R. Co 248 
 
 Hubbard v. Town 840 
 
 Huff v. McCauley 76 
 
 Hughs v. Pickering 1040 
 
 Hunter v. Whitworth 637 
 
 Ingersoll v. Sergeant 86 
 
 Jackson ex dem. Lathrop v. De- 
 
 mont 1031 
 
 Jackson ex dem. McCrea v. 
 
 Mancius 612 
 
 Jackson ex dem. Van Cortland 
 
 v. Parkhurst 7S7 
 
 Jackson ex dem, Weldon v. Har- 
 rison 731 
 
 Jackson ex dem. Wells v. Wells, 513 
 Jackson & Sharp Co. v. The P. 
 
 W. & B. R. R. Co 79S 
 
 Jackson's Deed, In re 890 
 
 Jaques v. Trustees of M. E. 
 
 Church 93 
 
 Johns v. Johns 14 
 
 Johnson v. Geisriter 1070 
 
 Johnson v. Haines 1133 
 
 Johnson v. Johnson 398 
 
 Johnson v. Johnson 445 
 
 Johnson v. Zink 1111 
 
 Jones v. Jones 656 
 
 Jordan v. McClure 930 
 
 Kabley v. Worcester Gas Light 
 
 Company 721 
 
 Ken yon v. See 907 
 
 Kerr v. Kingsbury 332 
 
 Kei rains v. People 713 
 
 Killmorev. Howlett 179 
 
 Kilroy v. Wood n 604 
 
 Kittle v. Van Dyke 665 
 
 Konvalinka v. Schlegel 705 
 
 Kuli I man v. I Ice lit 819
 
 TABLE OF CASES. 
 
 xxiu 
 
 PAGE. 
 
 Lamb v. Burbank 1102 
 
 Lane v. King.... 197 
 
 Lansing Iron & Eng. Works v. 
 
 Walker 290 
 
 Larrowe v. Beam 708 
 
 Lawrence v. Miller 653 
 
 Leggett v. Perkins 587 
 
 Lehndorf v. Cope 555 
 
 Leighton v. Leighton 463 
 
 Lemon v. Graham 499 
 
 Leonard v. Burr 521 
 
 Leonard v. Clough 257 
 
 Lewis v. Ocean Navigation & 
 
 Pier Co 328 
 
 Linahan v. Barr 319 
 
 Livingston v. Proseus 1034 
 
 Loring v. Bacon 100 
 
 Loring v. Eliot 857 
 
 Lothrop v. Thayer 437 
 
 Loughran v. Ross 325 
 
 Lushington v. Boldero 468 
 
 Macauley v. Smith 1109 
 
 McAvoy v. Medina 359 
 
 McClellan v. Kellogg 1016 
 
 M'Conico v. Singleton 370 
 
 McCord v. Oakland Quicksilver 
 
 Mining Co 396 
 
 McCormick Harvesting Machine 
 
 Co. v. Gates 581 
 
 McCrea v. Marsh 807 
 
 McGonigle v. Atchison 65 
 
 McGregor v. Brown 449 
 
 McKeage v. Hanover Fire Ins. 
 
 Co 245 
 
 McKinney v. Settles 1080 
 
 McNeil v. Ames 749 
 
 McRea v. Central Nat'l Bank of 
 
 Troy 271 
 
 Magoun v. 111. Trust, etc., Bk.. 1122 
 
 Makepeace v. Worden 845 
 
 Mandelbaum v. McDonnell . . . 562 
 
 March v. Berrier 70 
 
 Marsellis v. Thalheimer 627 
 
 Marshall v. Moseley 412 
 
 Marvin v. Brewster Iron Min- 
 ing Co 832 
 
 Mather v. Chapman .. 351 
 
 Matthews v. Hudson n. 395 
 
 Mayor v. Mabie 758 
 
 Mayor v. O. & P. Railroad Co. . 1069 
 
 Merritt v. Bartholick 1113 
 
 Merritt v. Scott 419 
 
 Mich. Mutual Life Ins. Co. v. 
 
 Cronk 309 
 
 Middlebrook v. Corwin 344 
 
 Miller v. Meers 1085 
 
 Minnig v. Batdorff 885 
 
 Mitchell v. Warner. 1094 
 
 Moffatt v. Smith. 749 
 
 Mooers v. Wait 466 
 
 Moore v. City of New York. . .«. 650 
 
 Moore v. Littel 894 
 
 Moore v. Smaw 374 
 
 Moore v. Townsend 427 
 
 V,\r,K. 
 
 Morrison v. Semple 514 
 
 Morse v. Proper 882 
 
 Mott v. Palmer 286 
 
 Munroe v. Hall 561 
 
 Murdock v. Gifford 242 
 
 Murdock v. Ratcliff n. 23 
 
 Murray v. Cherrington 724 
 
 Mut. Life Ins. Co. v. Shipman.«. 652 
 
 Nase v. Peck 54 
 
 Needham v. Allison 347 
 
 Nicoll v. N. Y. & Erie R. R. Co. 527 
 
 Noble v. Sylvester 114 
 
 Northern Bank of Kentucky v. 
 
 Roosa 10 
 
 Nudd v. Hobbs 844 
 
 O'Brien v. Kusterer 237 
 
 Ocean Grove Camp Meeting 
 
 Assoc, v. Asbury Park 130 
 
 Ogden v. Jennings 1082 
 
 Overman v. Sasser 310 
 
 Overturf v. Dugan 20 
 
 Parham v. Thompson 214 
 
 Parker v. Chance 969 
 
 Parker v. Parker 550 
 
 Parrott v. Barney 465 
 
 Payne v. Becker 650 
 
 Peck v. Ingersoll 745 
 
 Peirce v. Goddard 307 
 
 Penhallow v. Dwight 216 
 
 People's Gas Co. v. Tyner 372 
 
 Phelps v. Phelps 661 
 
 Phelps v. Randolph 1009 
 
 Phillips v. Covert 463 
 
 Phillips v. Stevens 765 
 
 Pickering v. Pickering 976 
 
 Pike v. Galvin 1061 
 
 Plumb v. Tubbs 383 
 
 Prescott v. DeForest 754 
 
 Price v. Pittsburgh, F. W. & C. 
 
 R. R. Co 1089 
 
 Priest v. Cummings 692 
 
 Proprietors, etc. v. Springer. . . . 1021 
 
 Pugsley v. Aiken 773 
 
 Pullen v. Rianhard 95 
 
 Purdy v. Hayt 804 
 
 Purner v. Piercy 160 
 
 Pynchon v. Stearns 451 
 
 Reckhow v. Schanck 772 
 
 Rector v. Waugh 511 
 
 Reeder v. Sayre 775 
 
 Reese v. Jared 289 
 
 Rexroth v. Coon 365 
 
 Reyburn v. Wallace 609 
 
 Reynolds v. Collin 13 
 
 Keynolds v. Reynolds 695 
 
 Rice v. Adams 270 
 
 Rice v. B. & W. R. R. Co 935 
 
 Richardson v. Copeland 303 
 
 Ricketts v. Dorrel 51 
 
 Riley's Administrator v. Riley. . . 26 
 
 Ritchmyer v. Moiss 283
 
 TABLE OF CASES. 
 
 PAGE. 
 
 Robeson v. Pittenger S37 
 
 Robinson v. Wheeler n. 441 
 
 Rogers v. Gillinger 267 
 
 Roseboom v. Van Vechten 575 
 
 Ross v. Boardman.. 1 1 1 8 
 
 Rowland v. Miller 388 
 
 Ruckman v. Outwater 340 
 
 Saltonstall v. Little 177 
 
 Sanders v. Partridge 746 
 
 Sarles v. Sarles. 450 
 
 Scanlan v. Wright 980 
 
 Schermerhorn v. Negus 567 
 
 Schnebly v. Schnebly 680 
 
 School District v. Benson io 59 
 
 Seager Estate, In re 454 
 
 Sears v. Russell. . . 1134 
 
 Sexton v. Breese.. 211 
 
 Sh ldon v Sherman 356 
 
 Siiendan v. House 890 
 
 Saerin v. Brackett 1007 
 
 Sherman v. Willett 209 
 
 Skinner v. Wilder i ?4 
 
 Slocum v.Seymour 151 
 
 Smith v. Jewett 417 
 
 Smith v. Littlefield 738 
 
 Smith v. Price 163 
 
 Smith v. Smith 657 
 
 Snedeker v. Warring 231 
 
 Snell v. Levitt 814 
 
 Sparrow v. Pond 171 
 
 Spencer v Austin 944 
 
 Stall v. Wilbur 207 
 
 State Bank of Indiana v. State 
 
 of Indiana. . . 860 
 
 State Savings Bank v. Kerche- 
 
 val 2?o 
 
 Steffens v. Earle 777 
 
 Sieib v. Whitehead 5S4 
 
 Stelz v. Schreck. . 960 
 
 Sterling v. Jackson 361 
 
 Sterling v. Warden 789 
 
 Sievens v. Rose 442 
 
 Stewart v. Clark 619 
 
 Stewart v. Doughty 407 
 
 Stewart v. Drake 1100 
 
 Stewart v. Neeley 918 
 
 S,"w v. Chapin n. 605 
 
 Strong v. Doyle 346 
 
 Siull v. Rich Patch Ire n Co 1023 
 
 Syracuse Water Co. v. City of 
 
 Syracuse 848 
 
 Talamo v. Spitzmiller 741 
 
 Talbot v. Cruger 330 
 
 Taney v. Pah n ley 519 
 
 Thomas v. Wyatt 1075 
 
 Thornburg v. Wiggins 940 
 
 ■•:. I [orton 293 
 
 'I illinghast v. Bradford 583 
 
 Toilet v. Wood 602 
 
 'I ripp v. 1 1 .is. eig 188 
 
 PAGE. 
 
 Trull v. Fuller 261 
 
 Trustees of Delhi v. Youmans . . 133 
 
 Trustees of the Poor v. Pratt . . . 687 
 
 Tryon v. Munson 538 
 
 Turner v. Wright 391 
 
 Tuttle v. Turner 1088 
 
 Twitty v. Camp 570 
 
 Tyson v. Post 260 
 
 United States v. Bostwick 435 
 
 Upington v. Corpgan 533 
 
 Vane v. Lord Barnard 442 
 
 Van Ness v. Paca.d 312 
 
 Van Peit v. McGraw 400 
 
 Van Rensselaer v. Hays 81 
 
 Van Rensselaer v. Radcliff 475 
 
 Verdin v. Slocum 1074 
 
 Vernam v. Smith 756 
 
 Vincent v. Spooner 689 
 
 Voorhis v. Freeman 224 
 
 Waddell v. Rattevv 932 
 
 Wadhams v. Am. Home Mis- 
 sionary Soc 990 
 
 Walker v. Pierce 822 
 
 Walker v. Sherman 218 
 
 Walker v. Vincent 568 
 
 Ward v. Cochran 1013 
 
 Ward v. Kilpatrick 234 
 
 Warner v. Tanner 576 
 
 Warren v. Chambers IC03 
 
 Washington Ice Co. v. Shortall, 136 
 
 W T ass v. Bucknam 640 
 
 Watson v. Hunter 62 
 
 Watson v. O'Herne n. 741 
 
 Watson v. Watson 626 
 
 Webb v. Town send 7C9 
 
 Webster v. Parker 42 
 
 Welch v. Bunce 9S1 
 
 Wheaton v. Andress 516 
 
 Wheeler v. Hotchkiss 646 
 
 Wheeler v. Kirkland 698 
 
 Whipple v. Foot. . . 402 
 
 White v. Arndt 335 
 
 White v. Cutler 447 
 
 White v. Foster 184 
 
 White v. Howard 47 
 
 White v. Manhattan Railway Co. 795 
 
 While v. Maynard 717 
 
 Whitesides v. Cooper 877 
 
 Whitmarsh v. Cutting 4C6 
 
 Wilcox v. Wheeler 502 
 
 Williams v. Angell 930 
 
 Williams v. Thorn 595 
 
 Willis v. Moore 201 
 
 Witmer's Appeal 263 
 
 Wood v. Fowler 146 
 
 Wronkow v. < )akley 705 
 
 Wyman v. Brown 909 
 
 Young v. Dake 728
 
 SELECTED CASES 
 
 LAW OF PROPERTY IN LAND.
 
 SELECTED CASES 
 
 THE LAW OF PROPERTY IN LAND. 
 
 PART I. 
 Of the Nature and Kinds of Property in Land. 
 
 chapter I. 
 What is Meant by Property in Land. 
 
 EATON v. BOSTON, CONCORD AND MONTREAL 
 RAILROAD. 
 
 51 New Hampshire, 504. — 1872. 
 
 Action on the case, brought by Eaton against the Boston, Con- 
 cord and Montreal Railroad for damage to his farm during a freshet. 
 
 Plaintiff's land lies on Baker river; some distance above the farm 
 was a narrow ridge about twenty-five feet high, extending westerly 
 from the hills on the east to the river, and protecting the meadows 
 below from floods. Defendants in constructing their road made a 
 deep cut through this ridge in consequence of which the waters of 
 the river in time of flood occasionally flow through and carry sand, 
 gravel and stones upon plaintiff's land; this is the damage com- 
 plained of. 
 
 The court below ruled pro forma for the plaintiff. Defendants 
 excepted, and now appeal. 
 
 Smith, J. — * * * It is virtually conceded that, if the cut 
 through the ridge had been made by a private landowner, who had 
 acquired no rights from the plaintiff or from the Legislature, he would 
 be liable for the damages sought to be recovered in this action. It 
 seems to be assumed that the freshets were such as, looking at the 
 history of the stream in this respect, might be " reasonably expected 
 
 [1]
 
 2 WHAT IS MEANT BY PROPERTY IN LAND. [PART I. 
 
 occasionally to occur." The defendants removed the natural barrier 
 which theretofore had completely protected the plaintiff's meadow 
 from the effect of these freshets; and, for the damages caused to 
 the plaintiff in consequence of such removal, the defendants are con- 
 fessedly liable, unless their case can be distinguished from that of 
 the private landowner above supposed. Such a distinction is 
 attempted upon two grounds, — first, that the plaintiff has already 
 been compensated for this damage, it being alleged that the defend- 
 ants have, by negotiation, or by compulsory proceedings, purchased 
 of the plaintiff the right to inflict it; second, that the defendants 
 are acting under legislative authority, by virtue of which they are 
 entitled to inflict this damage on the plaintiff without any liability to 
 compensate him therefor. \After considering the first ground and find- 
 ing that it cannot be sustained, the opinion proceeds as follows :] 
 
 The defendants' next position is, that the plaintiff is not legally 
 entitled to receive any compensation, but is bound to submit to the 
 infliction of this damage without any right of redress. The argu- 
 ment is not put in the precise words we have just used, but that is 
 what we understand them to mean. The defendants say that the 
 legislative charter authorized them to build the road, if they did it 
 in a prudent and careful manner; that they constructed the road at 
 the cut with clue care and prudence; and that they cannot be made 
 liable as tort-feasors for doing what the Legislature authorized them 
 to do. This involves two propositions: First, that the Legislature 
 have attempted to authorize the defendants to inflict this injury upon 
 the plaintiff without making compensation; and second, that the 
 Legislature have power to confer such authority. * * * 
 
 The defendants cannot claim protection under an implied power, 
 where an express power would be invalid; the Legislature cannot 
 do indirectly what they cannot do directly. Unless an express pro- 
 vision in the charter, authorizing the infliction of this injury with- 
 out making compensation, would be a valid exercise of legislative 
 [lower, the defendants cannot successfully set up the plea that the 
 injury was necessarily consequent upon the exercise of their 
 i hartered powers, and therefore impliedly authorized. The defense, 
 . really presents this question: Have the Legislature power to 
 a ithorized the railroad corporation to divert the waters of the river. 
 ing a natural barrier, so as to cause the waters " sometimes 
 in Hoods and freshets " to ll >w over the plaintiff's land, " carrying 
 i stones " up mi his farm, without making any pro- 
 vision for In r ompi nsation? 
 
 Although tie- Constitution of this State dots not contain, in any 
 pne i lau i . an express provision requiring compensation to be made
 
 CHAP. I.] WHAT IS MEANT BY PROPERTY IN LAND. 3 
 
 when private property is taken for public uses, yet it has been con- 
 strued by the courts, in view of the spirit and tenor of the whole 
 instrument, as prohibiting such taking without compensation; and 
 it is understood to be the settled law of the State, that the Legisla- 
 ture cannot constitutionally authorize such a taking without com- 
 pensation. Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35, pp. 66, 
 70; Perley, C. J., in Petition of Mount Washington Road Co., 35 N. H. 
 134, pp. 141, 142; Sargent, J., in Eastman v. Amoskeag Manuf. Co., 
 44 N. H. 143, p. 160; State v. Franklin Falls Co., 49 N. H. 240, p. 
 251. The counsel for the defendants have not been understood to 
 question the correctness of this interpretation of the Constitution. 
 
 The vital issue then is, whether the injuries complained of amount 
 to a taking of the plaintiff's property, within the constitutional 
 meaning of those terms. It might seem that to state such a ques- 
 tion is to answer it; but an examination of the authorities reveals a 
 decided conflict of opinion. The constitutional prohibition (which 
 exists in most, or all, of the States) has received, in some quarters, 
 a construction which renders it of comparatively little worth, being 
 interpreted much as if it read: " No person shall be divested of the 
 formal title to property without compensation, but he may, without 
 compensation, be deprived of all that makes the title valuable." 
 To constitute a " taking of property," it seems to have sometimes 
 been held necessary that there should be " an exclusive appropria- 
 tion," " a total assumption of possession," " a complete ouster, " an 
 absolute or total conversion of the entire property, " a taking the 
 property altogether." These views seem to us to be founded on a 
 misconception of the meaning of the term " property" as used in 
 the various State constitutions. 
 
 In a strict legal sense, land is not " property," but the subject of 
 property. The term " property," although in common parlance 
 frequently applied to a tract of land or a chattel, in its legal signifi- 
 cation " means only the rights of the owner in relation to it." " It 
 denotes a right .... over a determinate thing." " Property is the 
 right of any person to possess, use, enjoy, and dispose of a thing." 
 Seldon, )., in Wynehamer v. The People, 13 N. Y. 378, p. 433; 1 
 Blackstone Com. 138; 2 Austin on Jurisprudence (3d ed.), 817, 818. 
 If property in land consists in certain essential rights, and a physical \ 
 interference with the land substantially subverts one of those rights, 
 such interference " takes, ''pro tanto, the owner's " property." The 
 right of indefinite user (or of using indefinitely) is an essential quality 
 or attribute of absolute property, without which absolute property 
 can have no legal existence. " Use is the real side of property." 
 This right of user necessarily includes the right and power of
 
 4 WHAT IS MEANT BY PROPERTY IN LAND. [PART I. 
 
 excluding others from using the land. See 2 Austin on Jurisprudence 
 (3d ed.), 836; Wells, J., in Walker v. O. C. IV. fi. R., 103 Mass. 10, p. 
 14. From the very nature of these rights of user and of exclusion, 
 it is evident that they cannot be materially abridged without, ipso 
 facto, taking the owner's "property." If the right of indefinite 
 user is an essential element of absolute property or complete owner- 
 ship, whatever physical interference annuls this right takes " prop- 
 erty," — although the owner may still have left to him valuable 
 rights (in the article) of a more limited and circumscribed nature. 
 He has not the same property that he formerly had. Then, he had 
 an unlimited right; now, he has only a limited right. His absolute 
 ownership has been reduced to a qualified ownership. Restricting 
 A.'s unlimited right of using one hundred acres of land to a limited 
 right of using the same land, may work a far greater injury to A. 
 than to take from him the title in fee simple to one acre, leaving 
 him the unrestricted right of using the remaining ninety-nine acres. 
 Nobody doubts that the latter transaction would constitute a " tak- 
 ing of property." Why not the former? 
 
 If, on the other hand, the land itself be regarded as " property," 
 the practical result is the same. The purpose of this constitutional 
 prohibition cannot be ignored in its interpretation. The framers of 
 the Constitution intended to protect rights which are worth protect- 
 ing; not mere empty titles, or barren insignia of ownership, which 
 are of no substantial value. If the land, " in its corporeal sub- 
 stance and entity," is " property," still, all that makes this property 
 of any value is the aggregation of rights or qualities which the law 
 annexes as incidents to the ownership of it. The constitutional pro- 
 hibition must have been intended to protect all the essential ele- 
 ments of ownership which make " property " valuable. Among 
 these elements is, fundamentally, the right of user, including, of 
 course, the corresponding right of excluding others from the use. 
 See, Comstock, J., in Wynehamer v. The People, 13 N. Y. 378, p. 396. 
 A physical interference with the land, which substantially abridges 
 this right, takes the owner's " property " to just so great an extent 
 as he is thereby deprived of this right. " To deprive one of the use 
 of his land is depriving him of his land; " for, as Lord Coke said, — 
 "What is the land but the profits thereof?" Sutherland, J., in 
 People v. Kerr, 37 Barb. 357, p. 399; Co. Litt., \b. The private 
 injury is thereby as completely effected as if the land itself were 
 " physically taken away." 
 
 The principle must be the same whether the owner is wholly 
 deprived of the use of Ids land, or only partially deprived of it; 
 although the amount or value of the property taken in the two
 
 CHAP. I.] WHAT IS MEANT BY PROPERTY IN LAND. 5 
 
 instances may widely differ. If the railroad corporation take a strip 
 four rods wide out of a farm to build their track upon, they cannot 
 escape paying for the strip by the plea that they have not taken the 
 whole farm. So a partial, but substantial, restriction of the right 
 of user may not annihilate all the owner's rights of property in the 
 land, but it is none the less true that a part of his property is taken. 
 Taking a part " is as much forbidden by the Constitution as taking 
 the whole. The difference is only one of degree; the quantum of 
 interest may vary, but the principle is the same." See 6 Am. Law 
 Review, 197-198; Lawrence, J., in Nevins v. City of Peoria, 41 111. 
 502, p. 511. The explicit language used in one clause of our Con- 
 stitution indicates the spirit of the whole instrument. " No part of 
 
 a man's property shall be taken " Constitution of N. H., Bill 
 
 of Rights, article 12. The opposite construction would practically 
 nullify the Constitution. If the public can take part of a man's 
 property without compensation, they can, by successive takings of 
 the different parts, soon acquire the whole. Or, if it is held that 
 the complete divestiture of the last scintilla of interest is a taking 
 of the whole for which compensation must be made, it will be easy 
 to leave the owner an interest in the land of infinitesimal value. 
 
 The injury complained of in this case is not a mere personal incon- 
 venience or annoyance to the occupant. Two marked characteristics 
 distinguish this injury from that described in many other cases. 
 
 First, it is a physical injury to the land itself, a physical inter- 
 ference with the rights of property, an actual disturbance of the 
 plaintiff's possession. Second, it would clearly be actionable if done 
 by a private person without legislative authority. The damage is 
 " consequential," in the sense of not following immediately in point 
 of time upon the act of cutting through the ridge, but it is what Sir 
 William Erie calls " consequential damage to the actionable degree." 
 See Brands. H. 6° C. R. Co., Law Reports, 2 Queen's Bench, 223, 
 p. 249. These occasional inundations may produce the same effect 
 in preventing the plaintiff from making a beneficial use of the land 
 as would be caused by a manual asportation of the constituent 
 materials of the soil. Covering the land with water, or with stones, 
 is a serious interruption of the plaintiff's right to use it in the ordi- 
 nary manner. If it be said that the plaintiff still has his land, it may 
 be answered, that the face of the land does not remain unchanged, 
 and that the injury may result in taking away part of the soil (" and, 
 if this may be done, the plaintiff's dwelling-house may soon follow") ; 
 and that, even if the soil remains, the plaintiff may, by these occa- 
 sional submergings, be deprived of the profits which would otherwise 
 grow out of his tenure. " His dominion over it, his power of choice
 
 6 WHAT IS MEANT BY PROPERTY IN LAND. [PART I. 
 
 as to the uses to which he will devote it, are materially limited." 
 Brinkerhoff, J., in Reeves v. Treasurer of I Vood County, 8 Ohio St. 
 333, P- 346. 
 
 The nature of the injury done to the plaintiff may also be seen by 
 adverting to the nature of the right claimed by the defendants. * * * 
 
 In asserting the right to maintain the present condition of things 
 as to the cut, the defendants necessarily assert the right to produce 
 all the results which naturally follow from the existence of the cut. 
 / In effect, they thus assert a right to discharge water on to the 
 plaintiff's land. Such a right is an easement. A right of " occa- 
 sional flooding" is just as much an easement as a right of " per- 
 manent submerging; " it belongs to the class of easements which 
 " are by their nature intermittent — that is, usable or used only at 
 times." See Goddard's Law of Easements, 125. If the defendants 
 had erected a dam on their own land across the river below the 
 plaintiff's meadow, and by means of flash-boards thereon had occa- 
 sionally caused the water to flow back and overflow the plaintiff's 
 meadow so long and under such circumstances as to give them a 
 prescriptive right to continue such flowage, the right thus acquired 
 would unquestionably be an "easement." The right acquired in 
 that case does not differ in its nature from the right now claimed. 
 In the former instance, the defendants flow the plaintiff's land by 
 erecting an unnatural barrier below his premises. In the present 
 instance, they flow his land by removing a natural barrier on the 
 land above his premises. In both instances, they flow his land by 
 making " a non-natural use " of their own land. In both instances, 
 they do an act upon their own land, the effect of which is to restrict 
 or burden the plaintiff's ownership of his land (see Leconfield v. 
 Lonsdale, Law Reports, 5 Com. Pleas, 657, p. 696); and the weight 
 of that burden is not necessarily dependent upon the source of the 
 water, whether from below or above. See Bell, J., in Tillotson v. 
 Smith, 32 N. H. 90, pp. 95-96. In both instances they turn water 
 upon the plaintiff's land " which does not flow naturally in that 
 |ila< <■ " Jf the right acquired in the former instance is an easement, 
 equally so must be the right claimed in the latter. If, then, the 
 claim set up by the defendants in this case is well founded, an ease- 
 ment is already vested in them. An easement is property, and is 
 within the protection of the constitutional prohibition now under 
 consideration. If the defendants have acquired this easement, it 
 cannot be taken from them, even for the public use, without com- 
 it ion. But the right acquired by the defendants is subtracted 
 from the plaintiff's ownership of the land. Whatever interest the 
 defendants have acquired in this respect the plaintiff has lost. If
 
 CHAP. I.] WHAT IS MEANT BY PROPERTY IN LAND. 7 
 
 what they have gained is property, then what he has lost is prop- 
 erty. If the easement, when once acquired, cannot be taken from 
 the defendants without compensation, can the defendants take it 
 from the plaintiff in the first instance without compensation? See 
 Brinkerhoff, J., ubi sup.; Selden, J., in Williams v. N. Y. Central 
 R. R., 16 N. Y. 97, p. 109. An easement is all that the railroad 
 corporation acquire when they locate and construct their track 
 directly over a man's land. The fee remains in the original owner. 
 Blake v. Rich, 34 N. H. 282. Yet nobody doubts that such location 
 and construction is a taking of property," for which compensation 
 must be made. See Redfield, J., in Hatch v. Ft. Central R. R., 
 25 Vt. 49, p. 66. What difference does it make in principle whether 
 the plaintiff's land is incumbered with stones, or with iron rails ? 
 Whether the defendants run a locomotive over it, or flood it with 
 the waters of Baker's river? See Wilcox, J., in March v. P. & C. R. 
 R., 19 N. H. 372, p. 380; Walworth, Chancellor, in Canal Coni'rs and 
 Canal Appraisers v. The People, 5 Wendell, 423, p. 452. * * * 
 
 We think that here has been a taking of the plaintiff's property; 
 that, as the statutes under which the defendants acted make no pro- 
 vision for the plaintiff's compensation, they afford no justification; 
 that the defendants are liable in this action as wrongdoers; and 
 that the ruling of the court was correct. [The court then proceeds to 
 consider the prior decisions. This part of the opinion is omitted here.] 
 
 Exceptions overruled.
 
 CHAPTER II. 
 
 Real and Personal Property. 
 I. What estates and interests in land are real ; what are personal. 
 
 i. Leasehold Interests in Land. 
 
 GOODWIN p. GOODWIN. 
 
 33 Connecticut, 314. — 1S66. 
 
 Submission to the Superior Court upon an agreed statement of 
 facts. The widow, executor and heirs-at-law of Horace Goodwin, 
 deceased, are the parties to the submission. The case was reserved 
 for the advice of the Supreme Court of Errors. The facts appear in 
 the opinion. 
 
 Park, J. — Horace Goodwin, late of Hartford, deceased, after 
 devising and bequeathing certain property to his wife, declared his 
 purpose to be that the devise and bequest should not bar her right 
 of dower in his estate. 
 
 A part of the property that he died possessed of consisted of an 
 estate for the term of nine hundred and ninety-nine years, with an 
 annual rent of forty-six dollars; and the first question submitted for 
 our consideration is, whether the wife is entitled to dower in this 
 part of his estate. 
 
 If an estate for so long a term of years can be regarded as real estate, 
 then dower should be allowed, otherwise not. Revision of 1866, p. 
 421. The general principle is, that an estate for years is less than 
 a freehold, and is nothing more than a chattel real, and is classed as 
 personal property. 1 Swift Dig. S;, 167. Does a long term of years 
 stand upon different ground in this respect from a short one? Of 
 course the value of the reversionary interest depends upon the 
 length of time the estate for years is to continue, and such value in 
 the present case is exceedingly small, — too small for any substan- 
 tial benefit; but does the difference in the value of reversionary 
 interests make any difference in principle ? 
 
 If this estate had been created nine hundred and ninety years 
 
 . it would be conceded that Horace Goodwin would have had 
 
 only a chattel interest. If then at the commencement it is to be 
 
 a fee simple, at what time will it change to a chattel 
 
 real v The claim of the plaintiff involves the necessitv of fixing a 
 
 [8]
 
 I. i.J PERSONAL INTERESTS IN LAND. 9 
 
 time, and the absurdity of holding that immediately before the time 
 shall arrive the estate will be a fee simple, and immediately after a 
 chattel interest merely. We are unable to discover any difference 
 in principle in this class of estates, whether they are to endure for a 
 short or a long period of time, and we are satisfied that no distinc- 
 tion can be found in the common law. It is true that in the case of 
 Brain.ird v. The Town of Colchester \ 31 Conn. 407, Judge Dutton, 
 in giving the opinion of the court, says in regard to an estate like 
 the one under consideration, with the exception that in that case a 
 gross sum was paid as the consideration for the term: — " For all 
 practical purposes it is a fee simple. The reversion becomes a mere 
 imaginary estate." The learned judge used this language in refer- 
 ence to the extent of the estate, and the fact that substantially it 
 contained all the property, which is obviously true. It is equally 
 obvious that there is some value to the reversionary interest, for it 
 will constantly increase, and at the end of the nine hundred and 
 ninety-nine years will be equal in value to the entire property. The 
 learned judge did not mean to declare that, in the administration of 
 justice between party and party, the law regards such an estate as a 
 fee simple, and that it should be treated as such, which is the ques- 
 tion now before us. Judge Swift, in his Digest, vol. 1, page 87, 
 says: — "A lease for a thousand years is considered only as an estate 
 for years, and the lessee has only a chattel interest, which by the 
 common law goes into the hands of his executor or administrator at 
 his decease." Washburn in his first volume on Real Property, page 
 153, says: — " If, therefore, the estate of the husband be a term of 
 years, his wife cannot claim dower out of it at common law, no 
 matter how long it is to continue, nor though it be renewable 
 forever." The cases of Ware v. Washington, 6 Smedes & Marsh, 
 737, and Spangler v. Stan/er, 1 Maryland Ch. Dec. 36, are to the 
 same effect. See also 4 Kent Com., 35, 40, and Cruise's Digest, 
 title Dower. We are referred to no case where the contrary doc- 
 trine has expressly been held, but a case in the second of Root's 
 Reports, page 15, has been cited, where the levy of an execution 
 upon an estate for the term of nine hundred and ninety-nine years 
 as real estate was held good. But this decision was made on the 
 ground that the case came within the spirit of the statute in regard 
 to the levy of executions on real estate, and that without such con- 
 struction the property would be exempt from execution. 
 
 On the whole we are satisfied that the common law deprives the 
 plaintiff of the right of dower in the Market street property, and 
 so we advise the Superior Court. [Certain other questions are 
 considered in the opinion; these are omitted here .]
 
 IO REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 NORTHERN BANK OF KENTUCKY v. ROOSA. 
 
 13 Ohio, 335. — 1S44. 
 
 Certiorari to the Superior Court of Cincinnati. 
 
 Roosa and each of the other defendants herein obtained judgments 
 against T. B. Coffin at the October term, 1842. Executions were 
 issued on each of these judgments within that term upon lands held 
 by Coffin on lease for ninety-nine years, renewable forever. The 
 Northern Bank of Kentucky recovered a judgment against Coffin 
 at same term, which was levied on the same property in June, 1843. 
 The property was sold on the Roosa execution and the money 
 brought into court for distribution among the judgment creditors. 
 Defendants claim that the surplus fund in court should be appro- 
 priated to the satisfaction of their judgments, excluding the Bank, 
 while the Bank, on the other hand, claims a pro rata share with them. 
 
 The court below held that defendants by priority of levy had 
 obtained priority of lien, and excluded the Bank from any share of 
 the fund. 
 
 Birchard, J. — Two questions arise in this case: 
 
 1. Are judgments liens upon permanent leasehold estates for one 
 year? 
 
 2. Can one judgment, by a levy upon lands within ten days, obtain 
 a preference over other judgments rendered at the same time, and 
 levied within the year? 
 
 The solution of the first question depends upon the correctness of 
 an opinion of this court, reported in Loring v. Melendy, 11 Ohio, 357. 
 The opinion alluded to, was upon a point not necessary to the 
 determination of the cause, and not considered by all the members 
 of the court at the time. Hence the remark made in the case of 
 Lessee of Boyd v. Talbert, 12 Ohio, 213, " the question whether a 
 lease be realty or personalty," is open. This case brings the sub- 
 ject fairly before us, and is the point upon which the decision must 
 turn. 
 
 It is not doubted that at common law, leasehold estates were but 
 chattel interests. Upon the death of the owner, they vested in the 
 <■■•.<•' utor, or administrator, and not in the heir, and were subject to 
 tin- debts of the decedent as chattels. 
 
 Adjudications upon these points had been so frequent that, after 
 tin- reason <>f the rule had ceased, courts, whose office is to declare 
 tin- law, not to create it, felt bound, by the numerous decisions; and 
 tin- < ommon law, in this respect, was the law of Ohio, until modified 
 by legislative enai tment. Tims in Bisbee's Lessee v. //<r// t 3 Ohio,
 
 I. i.J PERSONAL INTERESTS IN LAND. II 
 
 449, it was held that a lease for ninety-nine years was liable to exe- 
 cution as a chattel. And in Reynolds v. Commissioners of Stark 
 County, 5 Ohio, 204, that a lease for ninety-nine years, renewable 
 forever, was personal property, which, on the owner's decease, went 
 to the executor. If, then, the legislation of the State had not affected 
 the rules of the common law, the determination of the Superior 
 Court was correct, for if the leasehold interest be regarded a chat- 
 tel, no lien attaches prior to a levy, and the three judgments upon 
 which executions were issued within ten days after the close of the 
 term at which they were rendered, gained priority, and had a right 
 to a pro rata division of the proceeds of the sale. The earliest 
 statute to which our attention has been called, is the act of 1818, 2 
 Chase's Stat. 1040, requiring leasehold estates to be conveyed with 
 the same formality as estates of freehold. 
 
 Next came the act of January 29, 1821, which provides that all 
 lands of whatever description, lying within the State, the owners of 
 which hold their titles by the tenure of permanent leases, " shall, in 
 cases of judgment had, and executions levied thereon, be considered 
 as real estate." Chase's Stat. 1185; Swan's Stat. 289. This act 
 has never been repealed, but the act of March 5, 1839, Swan's Stat. 
 289, has been thought to have superseded it. Section 1 provides, 
 " that permanent leasehold estates, renewable forever, shall be sub- 
 ject to the same law of descent and distribution as estates in fee are, 
 or may be subject to; and sales thereof, upon execution, or by order 
 of the court, shall be governed by the same laws that now, or here- 
 after may, govern such estates in fee." These statutes effect 
 important changes in the common law. 
 
 1. The act of 1821, as to judgments had, makes the leasehold 
 estate real estate — requires courts to consider it, so far as the judg- 
 ments are concerned, real estate. This is the fair construction of 
 the language, " in all cases of judgments had, and executions 
 levied." 
 
 It follows, then, that the lien of a judgment, which is given upon 
 real estate, attaches to such leasehold estates, because, as to the 
 judgment, it is to be considered real estate. So, for all purposes 
 connected with the levy and sale, and of the rights, either of judg- 
 ment creditor, or judgment debtor, or purchaser, in any way con- 
 nected with the judgments, executions, and levies. 
 
 The language of the act of 1829 is different. It does not direct 
 how liens shall be regarded in reference to " judgments had," and 
 does not, therefore, necessarily supersede the act of 1821. The two 
 are therefore to be regarded as being in force. Both may well stand 
 together. The legislative intention should be gathered from a con-
 
 12 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 sideration of the provisions of both. Laws in pari materia should be 
 construed together. We hold, then, that for all purposes connected 
 with the laws regulating judgments, executions, sales, and descents, 
 permanent leasehold estates are to be regarded as if they were free- 
 holds, and not chattels. 
 
 The case of Reynolds v. Commissioners of Stark County, 5 Ohio, 204, 
 above referred to, determined in 1832, was a bill to enforce the 
 specific performance of a contract to make a lease; the heirs were 
 held to be not the proper parties. This decision may well be recon- 
 ciled with this opinion. In that case no question arose under the 
 act of 182 1, or the acts of 1837 and 1839, and it, consequently, can 
 contain nothing conflicting with this decision. In Murdock et at. v. 
 Ratdiff, 7 Ohio, 123, the question was, whether the estate in land 
 of the Miami University, held by permanent lease, descended, on 
 the decease of the owner, to the heir, or vested in the administrator. 
 In pronouncing the opinion, the court say: ' The only statute we 
 find on this subject was a statute which declared that the tenants, 
 or lessees, shall enjoy all the rights and privileges which they would 
 be entitled to enjoy did they hold their lands in fee simple; a pro- 
 vision designed, in our opinion, to secure to the tenants civil and 
 political privileges, not to change the quality of their estates." To 
 reconcile this decision with our construction of the act of 1821, it is 
 only necessary to observe that the case presented no question con- 
 cerning judgments and executions, and the cause was decided in 
 1835, before the other acts referred to were passed. 
 
 The next question arises under the act of March 1, 1831. Swan's 
 Stat. 467. The second section of this act gives a lien upon the lands 
 within the county, from the first day of the term at which judgment 
 was rendered. By section 23 of the same act, no judgment, on which 
 execution shall not have been taken out, and levied within a year, 
 shall operate to the prejudice of any other bona fide judgment 
 creditor, etc. By section 4, two or more writs issued on judgments, 
 within ten days after their rendition, have no preference to each 
 r; so, if delivered to the officer on the same day. All other 
 writs have preference in the order of their delivery, provided " that 
 nothing herein contained shall be so construed as to affect any 
 preferable lien whii h a judgment may have upon lands," etc. 
 
 These sections refer to liens arising both from judgments and 
 Se< tion 2 gives the judgment a lien on lands within the 
 county. 1 ! gives, or rather recognizes, a lien from the time 
 
 of the levy, both upon lands and personal property. The latter 
 ilates the lien which h 1 reates, but provides against any inter- 
 ference with older 01 preferable liens, Section 23 creates no lien;
 
 I. 2. J PERSONAL INTERESTS: ESTATES PUR AUTRE VIE. 13 
 
 it merely limits it in the given case. Let us apply the principles 
 of the proviso in section 4 to this case. The defendants each 
 acquired equal liens from the date of the levies made upon their 
 executions; but the plaintiff had a lien from the date of her judg- 
 ment, which was elder, and therefore a preferable lien. Under the 
 proviso of section 4, it would overreach the right of defendants. 
 They are therefore thrown back, and compelled to rely on their 
 judgment liens created by section 2, and limited by section 23, or 
 lose the proceeds of their sales; relying upon their judgments, they 
 have equal liens with the plaintiff, and no more. The money should 
 have been distributed to each of the parties pro rata, in proportion 
 to the amount of their several judgments, and in failing to make this 
 equal distribution the court below erred. 
 
 Judgment reversed. 
 
 2. Estates pur autre vie. 
 
 REYNOLDS v. COLLIN. 
 
 3 Hill (N. Y.), 441. — 1842. 
 
 Costs against the plaintiff suing as administrator. 
 
 The plaintiff's intestate held certain premises under a lease for 
 three lives, one of which lives continued after his death. Subse- 
 quent to the intestate's death, the defendant's testator occupied the 
 premises under the plaintiff, and the present action was for that use 
 and occupation of the property. The cause having been referred, 
 there was a report for the defendant on the ground that the claim 
 was barred by the statute of limitations. The defendant now 
 moved that the plaintiff be ordered to pay the costs of the action. 
 
 By the court, Bronson, J. — On the death of the owner, an estate 
 pur autre vie becomes a chattel real, and goes as assets to the 
 executor or administrator to be applied and distributed as part of 
 the personal estate of the testator or intestate. 1 R. S. 722, sec. 6; 
 2 Id. 82, sec 6 '. The cause of action accrued after the death of 
 the intestate, and the plaintiff did not necessarily sue in his 
 representative character. In such cases it is well settled that an 
 executor or administrator must pay costs if his suit fails. 
 
 Motion granted. 
 
 1 New York Real Property Law, § 24 — Ed.
 
 14 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 3. Shares of Stock in Land-Holding Corporations. 
 
 JOHNS v. JOHNS. 
 
 1 Ohio State, 350. — 1853, 
 
 Petition by the widow of Benjamin Johns to have dower set off 
 to her in certain shares of railway stock owned by said Johns at his 
 decease. The executor answers alleging that such shares are per- 
 sonal and not real estate. 
 
 Thurman, J. — The Ohio and Pennsylvania R. R. Co. was incor- 
 porated February 24, 1S48. 46 Ohio Local Laws, 261. The fifth 
 section of its charter provides that the company " shall have all the 
 powers and privileges, and be subject to all the restrictions and pro- 
 visions of the act regulating railroad companies," passed February 11, 
 184S. 46 Ohio Laws, 40. The third section of this latter act declares 
 that the shares of stock in the companies that may be subject to its 
 provisions, " shall be regarded as personal property, and shall be 
 subject to execution at law." It is therefore manifest, that the 
 petitioner is not entitled to dower in the ten shares of the stock of 
 the Ohio and Pennsylvania R. R. Co., for they are clearly person- 
 alty. But the question in respect to the stock in the Mansfield and 
 Sandusky City R. R. Co. is not so easily disposed of. For that 
 company is not, so far as the case shows, subject to the provisions 
 of said act of February 11, 1848. It was previously chartered and 
 organized, and that act does not interfere with companies created 
 before its passage. Turning then to the charter of the company, 
 we find in it no provision declaring whether its stock is realty or 
 personalty. We are thus brought to the general question, whether 
 railroad shares in Ohio are, in the absence of express legislative 
 enactment, to be considered as real, or personal estate. This ques- 
 tion must be determined by a reference to the principle of the com- 
 mon law, and the general statutes of the State, that have a bearing 
 upon it. And its solution is not without difficulty; for as to the 
 mon law the adjudicated cases are directly conflicting, and when 
 we resort to our statutes, the chief aid we derive is from analogies 
 and inference. * * * 
 
 By a statute of 10 Anne, th 2 mayor, aldermen and common council 
 of the 1 11 v of Bath, their successors or assigns, or such persons as 
 they should appoint, were authorized to improve the navigation of 
 the river Avon, and t'> charge tolls on persons and property trans- 
 ported thereon. * * * 
 
 In Buckeridge v. rngram, decided in 1795, 2 ^ es - J r -> 6 5 r ' the ques- 
 tion was directly made, whether these shares were personal or real
 
 T. 3] PERSONAL INTERESTS: CORPORATE STOCK. 1 5 
 
 estate, and it was decided that they were real estate and subject to 
 dower. The master of the rolls held that the right to take the tolls 
 was an incorporeal hereditament arising out of realty and was there- 
 fore a " tenement." 
 
 And he remarked: " I have no difficulty in saying, that wherever 
 a perpetual inheritance is granted, which arises out of lands, or is in 
 any way connected with, or, as it is emphatically expressed by Lord 
 Coke, exercisable within it, it is that sort of property the law 
 denominates real." 
 
 The principle of these cases was followed, and possibly extended, 
 by the Supreme Court of Connecticut, in 1818, in the case of Welles 
 v. Cozvles, 2 Conn. 567, in which it was held that shares of an incor- 
 porated turnpike company are real estate. The right to the tolls, 
 said the Court, " is a right issuing out of real property, annexed to 
 and exercisable within it and comes within the description of an 
 incorporeal hereditament of a real nature, on the same principle as 
 a share in the New River, in canal navigations, and tolls of fairs and 
 markets; " citing Drybutter v. Bartholomew, 2 Peere Williams, 127, 
 Habergham v. Vincent, 2 Ves. Jr. 232 ; and The King v. The Inhabitants 
 Chipping Norton, 5 East, 239. 
 
 And in answer to the argument that the individual stockholders 
 had only a claim on the company, and not upon the realty, and that 
 this must be of a personal nature, the Court said: " But the stock- 
 holders, as members of the company, are owners of the turnpike 
 road; and it is in virtue of this interest, that they have their claims 
 for the dividends, or their respective shares of the toll. It is not a 
 mere claim on the corporation." This decision was recognized as 
 law, in 1822, in a suit between the same parties, 4 Conn. 182, though 
 the question was not expressly made. 
 
 In 1835, the Supreme Court of Pennsylvania held that "a toll- 
 bridge erected by two individuals across a river between their lands, 
 by legislative authority, is real estate." The court said that the 
 right was " not only a right arising out of the soil, but so far as the 
 abutments of the bridge are concerned, it is the soil itself." Hurst 
 v. Meason, 4 Watts, 346. It is to be observed, however, that it does 
 not appear that the builders were incorporated. 
 
 In Price v. Price ' s Heirs, 6 Dana, 107, the Court of Appeals of 
 Kentucky, in 1S38, held that the stock in the Lexington and Ohio 
 Railroad Company is real estate. Without citing any adjudicated 
 case, the Court came to a conclusion which is thus expressed: 
 '' The right conferred on each shareholder is unquestionably an 
 incorporeal hereditament. It is a right of perpetual ..duration ; end 
 though it springs out of the use of personalty,. -as well asr&nds and 
 
 \
 
 l6 REAL AND PERSONAL PROPERTY. [PT. I. CI1. II. 
 
 houses, this matters not. It is a franchise which has ever been classed 
 in that ciass of real estate denominated an incorporeal hereditament. ' ' 
 On the other hand, the Supreme Court of Massachusetts, in 1798, 
 in Russell et al. v. Temple and Others, 3 Dana's Abr. 108, held that 
 shares in incorporated bridge and canal companies are personalty. 
 The case was between the widow and heirs of Thomas Russell, the 
 former contending that the shares were personal property, and that 
 consequently she was entitled to a distributive portion of them, and 
 the latter insisting that they were realty, and that therefore she 
 had but a dower estate. The question was very fully discussed and 
 was decided (says Professor Greenleaf in his edition of Cruise), 
 " upon great consideration." 
 
 For the heirs it was urged that these shares were real estate; 
 because, it was said, " the estates were real in the corporations; and 
 that if the estates in the corporations were real, the estates of the 
 individual members in them followed their nature, and were real; 
 and that the frequent declaration of the Legislature declaring such 
 shares personal estates, at least show a doubt, that when one has a 
 right to receive rent, he has only a right to receive a sum of money, 
 yet it does not follow that his estate is not real estate out of which 
 his rent issues." 
 
 For the widow it was argued that the shares were personalty, 
 because the estate (in the bridges, canals, towing-paths, wharves, 
 and lands), " can only exist in the corporation, which alone can 
 acquire it, alone be seized or possessed of it, alone pass it away, 
 manage or repair it, and so must hold it entire; and that the cor- 
 poration is a moral person to all the purposes of property. Its 
 tenure is to their successors, or to their successors and assigns. 
 The estates can never vest in, or be divided among the individual 
 members, to hold as tenants in common, etc., in their private capaci- 
 ties. Only the corporation can possess the estate, and that only by 
 j) »ssessing the charter; and only the corporation can be taxed for it 
 on common-law principles; and on these can it alone be taken in 
 execution for the debts of the corporation." 
 
 " That the share is personal estate though the corporation hold 
 real estate; for the individual member has no estate, but only a right 
 to such dividends as the corporation from time to time assigns to 
 him. He is unknown in the grants made to it, and he cannot grant 
 any part of the estate; nor can he be taxed for it but by statute 
 law; nor can any private member of a corporation be distrained for 
 a public, concern of it; his only remedy for his dividend is case in 
 impsit, or an action on the case for a wrongful refusal or neglect 
 to pay or allow him his part of the profits."
 
 I. 3.] PERSONAL INTERESTS: CORPORATE STOCK. \J 
 
 The judgment of the court was, as I have stated, that the shares 
 were personal estate. " The principal reason of the decision," says 
 Dane, "appears to be, because the court considered that the indi- 
 vidual member, or shareholder, had only a right of action for a sum 
 of money, his part of the net profits or dividends. And so the law 
 has been held to be since this decision was made." 
 
 In his edition of Cruise, Greenleaf says: " Shares in the property 
 of a corporation are real or personal property, according to the 
 nature, object and manner of the investment. Where the corporate 
 powers are to be exercised solely in land, as where original authority 
 is given by the charter to remove obstructions in a river and render 
 it navigable, to open new channels, etc., to make a canal, erect 
 water-works, and the like, as was the case of the New River water, 
 the navigation of the river Avon and some others, and the property 
 or interest in the land, though it be an incorporeal hereditament, is 
 vested inalienably in the corporators themselves, the shares are 
 deemed real estate. Such, in some of the United States, has been 
 considered the nature of shares in toll-bridge, canal and turnpike 
 corporations by the common law; though latterly it has been thought 
 that railway shares were more properly to be regarded as personal 
 estate. But where the property originally entrusted is money, to 
 be made profitable to the contributors by applying it to certain pur- 
 poses, in the course of which it may be invested in lands or in per- 
 sonal property, and changed at pleasure, the capital fund is vested 
 in the corporation, and the shares in the stock are deemed personal 
 property, and as such are in all respects treated; in modern practice, 
 however, shares in corporate stock, of whatever nature, are usually 
 declared by statute to be personal estate." 1 Greenleaf 's Cr. Dig. 
 
 39, 4°- 
 
 In support of this statement, Mr. Greenleaf cites the cases we 
 have already noticed, and some others that require consideration. 
 One of the most important of these is Blight v. Brent, 2 Y. & C. 
 Exch. Rep. 268, 294. It involved the question whether the shares 
 in the Chelsea Water-works Company were realty, or personalty. 
 The act of incorporation left the question open, as it contained no 
 declaration upon the subject. The court reviewed the cases bear- 
 ing upon it, and came to the conclusion that the shares were per- 
 sonalty. [The eases of Bradley v. Holdsworth 3 M. & W. 422, and 
 Duncuftv. Albrecht, 12 S. & S. 189, are next considered.} 
 
 A careful examination of the adjudications upon the subject has 
 brought us to the conclusion that, according to the weight of 
 authority, the shares in question are personal property. In the 
 early English cases the distinction, now well understood, between 
 
 LAW OF PROP. IN LAND — 2
 
 1 8 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 the property of a corporation and the rights of its members, does 
 not seem to have been taken, and it appears to have been assumed 
 that each shareholder had an estate in the corporate property, and 
 that, consequently, if that property was real, his share was also 
 realty. But the cases we have cited abundantly show that the dis- 
 tinction above mentioned is now fully recognized in England, and 
 that the property of a corporation may be mainly, if not wholly, 
 real, and yet the shares of its members be personalty. This may, 
 possibly, be an innovation upon the ancient principles of the com- 
 mon law, but it is not more so than has taken place in the case of 
 ordinary partnerships. Thus, the old doctrine seems to have been 
 that there could be no partnership, properly so called, in land, but 
 the contrary doctrine is now universally held; and that a widow of 
 a deceased partner is not dowable in lands which the firm owned and 
 regarded as partnership stock, is settled by numerous decisions, 
 among which are the cases in i Ohio Rep. 535, and 8 Ohio Rep. 328. 
 As to the Connecticut case, Welles v. Cowles, there is, possibly, no 
 necessary conflict between it and the view we take of the present 
 case. There the right to tolls may be said to have arisen wholly 
 out of realty, the turnpike road; but in the case at bar, the profits 
 of the company accrue from real and personal property, and per- 
 sonal services. The turnpike company did not carry either goods 
 or persons. It furnished no vehicles for the transportation of either, 
 and had no care of, or responsibility for, either. It merely allowed 
 a transit over its road upon the payment of a toll. But a railway 
 company is a common carrier. It furnishes not simply a road, but 
 also the conveyances that pass over it; it undertakes the transporta- 
 tion of passengers and freight, and incurs the responsibility of a 
 common carrier as to both. 
 
 It was, therefore, justly said by Parke, B., in the quotation before 
 given, that the interest of each individual shareholder is a share of 
 the net produce of both real and personal property (and he might 
 have added, of personal services), when brought into one fund. 
 But we would not be understood as approving the decision in Welles 
 v. Cowles, for we are of opinion the shares in an incorporated turn- 
 pike company as well as in a railway corporation, are personal 
 property. The same distinction we have drawn between a turnpike 
 and railroad < ompany may be drawn between the latter and the 
 Avon navigation case, and the cases of tolls upon fairs and markets, 
 and rents issuing out of realty. And this distinction seems to be 
 n by Greenleaf in the quotation hereinbefore made. As to the 
 case in 4 Watts, it is enough to say that it does not appear that the 
 bridge builders were a corporation, or that they intended to convert
 
 I. 3.J PERSONAL INTERESTS: CORPORATE STOCK. 19 
 
 the bridge and right of taking tolls into a stock. The decision in 
 6 Dana, 107, is certainly directly opposed to our views. The court, 
 in that case, seems to have wholly overlooked the distinction between 
 the right of the company and the right of the shareholder, and to 
 have concluded that if the company's franchise of taking toll was an 
 incorporeal hereditament, springing even in part from the realty, the 
 shareholder's interest could not be personalty. Indeed, the court 
 call the shareholder's right a franchise. Now, I imagine that it is 
 the artificial being, the corporation, and not the individual share- 
 holder, that has the franchise, and possibly it is not immaterial 
 whether the toll arises wholly out of realty, or partly out of realty 
 and partly out of personalty. "An annuity," says the court, 
 " though only chargeable upon the person of the grantor, is an 
 incorporeal hereditament, and though the owner's security is merely 
 personal, yet he may have a real estate in it," citing 2 Bla. Comm. 
 40. True, such an annuity is realty so far as descent is concerned, 
 or, more properly speaking, though personal in itself, it descends as 
 if it were realty, the reason of which is that it is limited by the 
 grant to the heir, otherwise, it would not be a hereditament. The 
 authorities, cited by the defendant, show conclusively that it is only 
 as regards descent that it is considered as realty. But unless there 
 is some provision in the charter of the Lexington and Ohio R. R. 
 Co., limiting the stock to the heirs of the stockholder, the illustra- 
 tion put by the court is not in point. 
 
 It must be admitted, however, that the definition of Lord Coke, 
 cited with approbation in Buckeridge v. Ingram, sustains the position 
 that the franchise was a tenement savoring of the realty; for, in 
 the language of Coke, it was " exercisable within lands." And, as 
 before stated, we prefer to place our decision upon the distinction 
 between the estate of the corporation and the individual rights of 
 its members, rather than upon a distinction between the cases in 
 which the profit arises wholly out of realty, and those in which it 
 springs partly from realty and partly from personalty, though this 
 latter distinction seems to receive much support from both reason 
 and authority. [T/ie court next shows that the general policy of the 
 Legislature is in favor of the view which holds such shares personal}. 
 
 The act regulating dower provides: " That the widow of any 
 person dying shall be endowed of one full and equal third part of 
 lands, tenements and real estate of which her husband was seized, 
 as an estate of inheritance, at any time during the coverture." 
 Swan's Stat. 296. It follows, that if turnpike and railroad shares 
 are real estate, every widow whose husband was, at any time during 
 the coverture, the owner of such shares, is entitled to dower therein,
 
 20 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 although he may have sold or transferred the same; unless the 
 transfer was by deed of the husband and wife, duly executed, 
 attested and acknowledged. We cannot imagine that the Legisla- 
 ture ever intended any such thing. * * * 
 
 In whatever way we view the case, whether upon adjudication, 
 reason or our statute laws, we arrive at the conclusion that the 
 shares in question are personal property. The bill must therefore 
 be dismissed. 
 
 Bill dismissed. 
 
 4. Land Treated as Money by "Equitable Conversion." 
 
 CRAIG v. LESLIE. 
 
 3 Wheaton (U. S.), 563. — 1S1S. 
 
 [Reported herein at p. 71.] 
 
 II. Leading differences in the law as between real and personal 
 property. 
 
 1. In the "Law of Succession" to Estates of Deceased 
 
 Persons. 
 
 OVERTURF v. DUGAN. 
 
 29 Ohio State, 230. — 1876. 
 
 Petition in the Court of Common Pleas to compel the widow 
 and heirs-at-law of Thomas Dugan, deceased, to pay to Overturf, 
 as administrator, rents accrued since Dugan's death; also to enjoin 
 them from collecting any further rents, and the tenants from paying 
 such rents to them. Decree in favor of the petitioner. On appeal to 
 the District Court such decree was reversed and the injunctions 
 were dissolved. The administrator now moves for leave to file 
 petition in error. 
 
 GlLMORE, J. — There is no controversy as to the facts in the case; 
 they are admitted to be as stated in the pleadings. 
 
 The intestate having died in the month of November, 1873, there 
 is no question made as to the right of the administrator to take, as 
 I . the emblements or crops growing upon the lands for the then 
 ( urrenl year, viz., from March 1, 1873, to March 1, 1874.
 
 II. i.] DIFFERENCES IN THE LAW OF SUCCESSION. 21 
 
 But the real estate of the intestate not having been sold, the con- 
 troversy relates to the accruing rents for the succeeding year, i. e., 
 from March i, 1874, to March 1, 1875. 
 
 On the part of the administrator, it is claimed that on the admitted 
 facts in the case, he, as trustee for the creditors, is entitled to these 
 rents. On the other hand, the heirs claim that, being the owners 
 and in possession of the lands, they are entitled to these rents in 
 their own right, subject to the widow's interest therein. 
 
 Upon the facts admitted, which of these respective claims will 
 the law recognize as valid? 
 
 1. By an unbroken line of decisions in our State it is conclusively 
 settled: That the real estate of an intestate descends at once to 
 his legal heirs; and the legal title is vested in them, subject only to 
 the right of the administrator to sell the same for the payment of 
 the debts, in the manner prescribed by law. 
 
 From this it is at once apparent that the administrator of an intes- 
 tate has no interest whatever in the lands of which his intestate died 
 seized, except the right of sale for the purpose specified. Not hav- 
 ing the title, he cannot, in the absence of statutory authority, take 
 possession of the lands, and no such authority is given to him. The 
 only power over the lands with which he is clothed is a power to 
 sell the same to pay the debts of his intestate, and this power can 
 only be exercised and executed under the sanction of a court of 
 competent jurisdiction, in pursuance of statutory authority, and a 
 sale of his intestate's lands, made without such sanction, would be 
 void. The special case provided for by the 120th section of the 
 administration law (S. & C. 590) forms no exception to the general 
 rule, for there the intestate having transferred his land to defraud 
 his creditors, the title could not descend to his heirs. It is the pro- 
 ceeds of the sale of the land alone, and not the land itself, that the 
 administrator can take as against the heirs to whom the land 
 descended. 
 
 2. The title to the real estate, which the heir takes by descent, 
 entitles him to the possession of his ancestor; and this draws to it 
 the right to receive, as against the administrator, the rents and 
 profits of the land (emblements excepted) during the continuance 
 of his possession, which may be from the death of the ancestor until 
 the actual sale of the land by the administrator for the payment of 
 the debts of his intestate. 
 
 The above propositions are perfectly consistent with the decisions 
 of this court in reference to the debts of the intestate being a 
 charge or lien on the land; and that this charge or lien is paramount 
 to the rights of the heir-at-law, and that it can only be removed by
 
 22 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 the payment of the debts, or by the lapse of time. Stiver v. Stiver, 
 8 Ohio, 221; Ramsdallv. Craighill, 9 Ohio, 197; Shelden v. Newton, 
 3 Ohio St. 504. 
 
 This charge or lien is a legal incident to the ownership of the 
 intestate, and operates in favor of his creditors and for their 
 security. The administrator has no power over this lien or charge; 
 he cannot by his individual act either release the land from it, in 
 favor of the heir, or enlarge its operations in favor of the creditors 
 of the estate. As has been said, he can only obtain the proceeds of 
 the land by an unauthorized sale. 
 
 Neither the filing of the petition to sell the lands, before the rents 
 in question commenced accruing; nor the order of sale granted by 
 the court shortly after they began to accrue; nor the declaring of 
 the estate probably insolvent by the proper court, had the effect of 
 enlarging the rights of the administrator in reference to the accruing 
 rents. The heirs were still legally in possession as owners of the 
 land, and entitled to the rents; and as has been said, the lien in 
 favor of the creditors was upon the land itself, and not upon the 
 rents accruing during the time intervening between the death of the 
 intestate and the sale by the administrator. Rents thus accruing 
 are not and cannot be said to be assets belonging to the administra- 
 tor of the intestate's estate, for they were not in existence at his 
 death, and the creditors of the intestate cannot claim them for the 
 payment of his debts, for they never belonged to him. They there- 
 fore must belong to the owners of the land who are the widow and 
 heirs. 
 
 The fact that an administrator may be ordered by the court to 
 include in the inventory and appraisement, the real estate of the 
 intestate, as provided in sections 3 and 29 of the administration act 
 (S. & C. 567, 572), does not affect the question. The object of this 
 legislation was not to enlarge the powers of the administrator over 
 the real estate, but to put the court in possession of the informa- 
 tion, with a view of enabling it to more intelligently discharge its 
 duties in supervising the conduct of the administrator. 
 
 Sections 57 and 113 of the act (S. & C. 576, 587) require the 
 administrator to account for after-acquired assets; but the rents of 
 the real estate that descended to the heirs, accruing after the descent 
 was cast, not being assets of the estate, these sections impose no 
 duties upon the administrator in reference to them. 
 
 The lands in question were all incumbered by mortgages executed 
 by the intestate, the conditions of which respectively were broken 
 .it Mi- time of Ins death. None of the mortgagees had commenced 
 proceedings in foreclosure, or asked the appointment of a receiver
 
 II. 2.] THE LAW OF DOWER AND CURTESY. 23 
 
 to take charge of the lands and rents. Other debts to large amounts 
 are unsecured. 
 
 The plaintiff in error claims that: " Upon general equity princi- 
 ples an administrator who stands as trustee for creditors may come 
 into court for instructions without reference to the statute, and 
 from his showing, if it appears that the estate is insolvent, and that 
 the naked land with the other assets will not pay the debts, the 
 accruing rents can be appropriated for this purpose." 
 
 There are no authorities cited in support of this proposition. 
 While it may be conceded that the mortgagees, or any of them, might 
 go into a court of equity and assert their rights under their mort- 
 gages, after condition broken, and have a receiver appointed to take 
 charge of the lands and collect accruing rents for their benefit, yet 
 the right to this relief would rest upon the fact that they were the 
 owners of the legal title, but not having the right to the possession 
 under our present practice, equity would give them that which is 
 usually an incident to possession — that is, the rents and profits until 
 foreclosure and sale. But general creditors would have no such 
 equitable right by reason of the fact that their debts are a charge 
 or lien upon the lands of the intestate in the hands of the heirs. 
 They cannot proceed directly against the lands. Their rights must 
 be wrought out through the administrator, and, as we have seen, his 
 rights, powers, and duties are all strictly statutory, and no statute 
 exists giving the administrator a right to go into a court of equity 
 and compel the heirs to give up rents that legally belong to them, 
 for the benefit of the creditors of their ancestor. 
 
 Motion overruled. 
 
 WEBSTER v. PARKER. 
 42 Mississippi, 465. — 1869. 
 [Reported herein at p. 42.] ' 
 
 2. In the Law of Dower and Curtesy. 
 GOODWIN v. GOODWIN. 
 
 33 Connecticut, 314. — 1886. 
 [Reported herein at p. 8.] 
 
 'See also abstract of case of Murdoch v. Ratcliff, 7 Ohio, 119, in Northern 
 Bank of Kentucky v. Roosa, at p. 12, supra. — Ed.
 
 24 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 HOUGHTON v. HAPGOOD. 
 13 Pickering, (Mass.), J54. — 1832. 
 
 Appeal from a decree of the judge of probate ordering distribu- 
 tion of the balance in the hands of Hapgood as executor of the will 
 of Jonathan Grout. 
 
 The following clause is contained in the will: — " The rest and 
 residue of my estate I give, after paying my debts, to my daughters 
 Sarah Brooks, Betsey Hapgood, Lydia Houghton, Dolly Hapgood, 
 and Sukey Grout, always providing that if this residue shall exceed 
 one thousand dollars in value to each daughter, then the overplus 
 shall be divided among all my children, after first taking from such 
 overplus enough to clear the homestead farm for John, if not other- 
 wise done." 
 
 The executor represented the estate as insolvent and took proper 
 steps to have the real estate sold to pay the debts, but as a result of 
 the sales he obtained title to it himself personally. The estate was 
 not in fact insolvent, and a considerable sum, the proceeds of the 
 real estate sales, remains to be divided. 
 
 Lydia Houghton died some time after her father's decease, leav- 
 ing, her surviving, her husband, the appellant, and two children. 
 Further facts appear in the opinion. 
 
 Wilde, J., delivered the opinion of the court. The questions 
 arising upon this appeal depend upon the construction of a clause in 
 the last will and testament of the late Jonathan Grout, which is 
 deemed doubtful, and upon the proceedings of the executor in 
 administering the estate, which for many years past have proved 
 such a never-failing fountain of controversy in the courts of this 
 commonwealth, and in those of an adjoining State, where a con- 
 siderable portion of the estate of the testator was situate. 
 
 Upon the facts in the case the counsel for the appellant has 
 endeavored to maintain two positions: — 1. That the residuary 
 clause, at least to the extent of $1,000, is to be construed as a 
 pecuniary legacy, and so vested in the appellant. 2. If it is not so 
 construed, but is considered as a residuary devise of real estate, 
 then that the land devised was converted into money, with the con- 
 sent of Lydia Houghton, and that it thereupon vested in her hus- 
 band, t he appellant. 
 
 Neither of these positions can, we think, be maintained. 
 
 The testator's property consisted principally of real estate, the 
 personal estate being insufficient to pay his debts. The residuary 
 clause, therefore, is in express language a disposition and devise of
 
 II. 2.] THE LAW OF DOWER AND CURTESY. 25 
 
 real estate, and there is nothing to indicate an intention of giving a 
 pecuniary legacy. 
 
 It has been said, that if the lands had not been sold, it would be 
 difficult, if not impossible, to execute the will, construing the resi- 
 duary clause as a devise of lands; but we can perceive no impossi- 
 bility, nor, indeed, the slightest difficulty in making a distribution 
 of the property according to the terms of the will. The lands 
 might be appraised, and if the appraised value should not exceed 
 the sum of $5,000, or $1,000 to each daughter, then the whole would 
 vest in them in equal shares. If the value should exceed that 
 amount, then so much of the land as would be of that value might 
 be set off to them, leaving the residue to be divided among all the 
 children. 
 
 As to the second question, whether Lydia Houghton assented to 
 the sales made by the executor — The evidence appears to us not 
 satisfactory. Courts should be slow to sanction the assent of a wife 
 to the conversion of real estate into money, without convincing 
 proof that she assented understandingly, and with a full knowledge 
 of the legal effect of such a conversion upon her rights and interests, 
 and without any undue influence on the part of her husband. The 
 loose conversations of the wife, such as are proved by the deposition 
 of Polly G. Brooks and George A. Houghton, unsupported as they 
 are by any circumstance to show that she understood the legal effect 
 of such a change, and did not act under the influence of her husband, 
 ought not, we think, to be binding upon her or her heirs. Upon 
 her death, therefore, her share of the real estate descended to her 
 heirs, the sales of the executor being void. But the heirs have since 
 elected to confirm the sales, as they had a right to do, and are, 
 therefore, entitled to an equivalent in their distributive shares of 
 the fund produced by the sales. 
 
 They are, how r ever, not entitled to the whole share belonging to 
 Lydia Houghton. The husband, during the life of his wife, was 
 entitled to the profits and income of her real estate; and he con- 
 tinues entitled to receive the same as tenant by the curtesy. The 
 interest of the money for which the lands sold, consequently, belongs 
 to him, he relinquishing his claim to the lands. We are aware that 
 this may probably exceed the profits or income of the estates sold, 
 and so probably the amount of sales exceed the present value of the 
 estates sold. But to these advantages, if any there be, the parties 
 are respectively entitled. The appellant's distributive share will, 
 upon these principles, be the amount of the past interest, and the 
 present value of his life-right in the future interest or income of his 
 deceased wife's share of the fund arising from the sales.
 
 26 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 The expectation of life is to be determined by Dr. Wigglesworth's 
 Table of Mortality, and the value of the life-right may be ascertained 
 by computation, or by Dr. Bovvditch's life-annuity tables. 
 
 The decree of the judges of probate is to be reversed, and a new 
 decree entered up in conformity to these principles, and the papers 
 are to be remitted to the Probate Court for further proceedings. 
 
 3. In Husband's Common-Law Right to Wife's Real and 
 Personal Property. 
 
 HOUGHTON v. HAPGOOD. 
 
 13 Pickering (Mass.), 154. — 1832. 
 [Reported herein at p. 24.] 
 
 RILEY'S ADMINISTRATOR v. RILEY. 
 19 New Jersey Equity, 229. — 1868. 
 
 The Chancellor. — The complainant, as administrator of the 
 estate of Ann Riley, calls upon the defendant to account for the 
 rents of certain leasehold property in Jersey City, held by Ann Riley 
 at her death, and which the defendant has received; he claims to 
 have received them in his own right, and that they are legally his 
 own, by a bequest in the will of Miles Riley, the husband of Ann. 
 Ann Riley became entitled to the leasehold estate by the will of her 
 former husband, James Cummings, who bequeathed to her one-third 
 of it, and a right of support out of the other two-thirds. After 
 Cummings' death, she was married to Miles Riley, who died in her 
 lifetime, without having in any way aliened or disposed of the lease- 
 hold estate, but by his will gave it to his brother Owen Riley, the 
 defendant. 
 
 The defendant claims that Miles Riley in his lifetime had erected 
 buildings upon this property, and collected the rents, and by this he 
 had shown his intention to appropriate this leasehold, which, as a 
 Chattel real of his wife, he had a right to reduce into possession, 
 and appropriate. 
 
 The evidence shows, that in the life of Miles Riley and after his 
 marriage with Ann ( lummings, buildings were erected on the premises, 
 but the 'Par weight of evidence is that they were erected by his 
 wife, and paid for out of the rents of the whole premises, which the
 
 ii. 3-J husband's right to wife's property. 27 
 
 executors of Cummings permitted her to receive and collect for that 
 purpose. Miles Riley appears to have aided by performing some 
 work in the erection of the buildings, and to have contributed a few 
 dollars towards the erection. 
 
 The only question that arises is, whether these leasehold premises 
 were disposed of, or appropriated by Miles Riley in his life, so as to 
 vest the property in him, and take away the right of his wife after 
 his death. Miles Riley died in 1848, and this question must be 
 decided by the law as it stood then. By that law, the personal prop- 
 erty of a woman, upon her marriage, vested in her husband; her 
 goods and chattels absolutely; he had the right to the possession of 
 her choses in action, and of her chattels real, and could at any time 
 dispose of, collect, or sell them, and by this the proceeds of them 
 became his absolutely; but if he did not reduce them to possession 
 by disposing of them, or some equivalent act, they survived to her, 
 and would not pass by his will, which did not take effect until his 
 death, when the title had become vested in her by the survivorship. 
 
 Taking possession, collecting rents, interest, or dividends, has 
 never been held to be a disposition of the property, or a reduction 
 into possession, so as to take away the wife's right of survivorship. 
 Nor has it ever been held that the erection of buildings by the hus- 
 band on the leasehold lands of the wife was such disposition of 
 them as to take away her right. An actual disposition by sale, 
 lease, or mortgage, or contract for such object, has always been 
 required to take away the wife's right of survivorship. A mort- 
 gage or a sale of part, or a lease of part, or for a less term, only bars 
 the wife pro tanto; her right of survivorship remains in the equity 
 of redemption, and the residue of the premises or term. 
 
 In this case no interest in the premises passed by the will of Miles 
 Riley; the whole survived to Ann Riley, and her administrator is 
 entitled to the fund. 
 
 BABB v. PERLEY. 
 1 Maine, 6. — 1820. 
 
 Trespass on the case. Verdict for defendant, subject to the 
 opinion of the Court. 
 
 Mellen, C. J. — The facts in this case present some questions, 
 respecting which judges and counselors have taken different views. 
 They appear somewhat novel and we do not find that they have 
 received any express judicial decision. We have examined the cause
 
 28 REAL AND PERSONAL PROPERTY. [PT. I. GIL II. 
 
 with much attention, and after some vibration of opinion have at 
 length arrived at a result with which we are all satisfied. 
 
 The facts reported by the judge who sat in the trial of the cause 
 led the counsel, in the argument, to the consideration of two ques- 
 tions; and it may be convenient for us to pursue the same course. 
 
 The first inquiry is, " What were the rights and liabilities of Babb 
 in virtue of his acquiring a freehold estate in right of his wife in the 
 land in question, and in consequence of his destroying or selling and 
 disposing of the wood or timber growing on the land? " 
 
 The second inquiry, is, " What are the rights and liabilities of 
 Perley, as assignee of said Babb and owner of his former interest in 
 the land, in virtue of his ownership and consequent upon his destroy- 
 ing or selling and disposing of said wood and timber? " 
 
 With respect to the first question, it may now be observed that 
 the land on which the trees were cut by Perley is admitted to be a 
 wood lot, uncultivated, and in a state of nature. 
 
 When a man marries a woman who is seized in fee of lands, he 
 thereby gains a freehold in her right. He acquires a life estate. 
 It will be an estate for the life of the wife only, (unless he be tenant 
 by the curtesy) in case he should survive her; or an estate for his 
 own life, in case she should survive him; because the law presumes 
 that the coverture will continue until the death of one of the parties. 
 
 " He does not become, by the marriage, absolute proprietor of 
 the inheritance; but as the governor of the family, is so far the 
 master of it, as to receive the profits of it during her life." Co. Lit. 
 351; 2 Bl. Com. 433; Barber v. Root, 10 Mass. 261. These profits, 
 this usufruct of the wife's lands, the husband may dispose of accord- 
 ing to his pleasure, without or against her consent. 
 
 For any injury to the annual profits, or for taking away the emble- 
 ments, the husband may maintain an action against the wrongdoer, 
 in his own name, without joining the wife. But for an injury to the 
 inheritance, as for cutting down the timber growing on the wife's 
 land, he cannot maintain such action without joining the wife; for 
 the damages will survive to her. 3 Lev. 403 ; Vern. 82 ; Reeves' Dom. 
 Rel. 130, 133- 
 
 I hese< asesmark the distinction between the rights of the husband 
 and those of the wife in relation to the lands of which they are 
 ■I in her right. If, then, the husband has a right only to the 
 usufruct or profits of his wife's lands, the question is, what were 
 tin- rights whii h Babb had in the land above-mentioned, and what 
 trol over it ? Could this land yield any profits, according to the 
 legal signification of the term? Some light may he thrown upon 
 this point, by considering the principles of the decision in the case
 
 II. 3-J husband's right to wife's property. 29 
 
 of Conner v. Shcppard, 15 Mass. 164. In this case the court decided 
 that a widow could not by law be endowed of lands in a wild and 
 uncultivated state; and the reason assigned by the court is, that 
 "of a lot of wild land, unconnected with a cultivated farm, there 
 are no rents and profits." Again, they say, " In many instances 
 the inheritance would be prejudiced without any actual advantage 
 to the widow to whom the dower might be assigned. For according 
 to the principles of the common-law, her estate would be forfeited, 
 if she were to cut down any of the trees valuable as timber. It 
 would seem too, that the mere change of the property from wilder- 
 ness to arable land, or pasture, might be considered as waste." 
 " The very clearing of the land would be actually, as well as techni- 
 cally, waste of the inheritance." 
 
 In the case of Sargeant et al. v. To7une, 10 Mass. 303, the court 
 determined that a devise of wild and uncultivated land carried a fee 
 without any words of inheritance; because a life estate would be of 
 no use to the devisee. He would not, even if he could without com- 
 mitting waste, undertake the cultivation of the land devised. 
 
 It would seem from the authorities above cited, that the plaintiff, 
 Babb, prior to the extent of Perley's execution, had no right to cut 
 down the timber on his wife's land, or to do those acts which, in 
 the case of a tenant for life, or years, would be waste. It is true 
 Babb had the power to do it: and so he had the power to pull down 
 a house, had there been one on the land; or to beat and wound his 
 wife; — but not the right to do this; because, in the last case, he 
 would be indictable for the offense: — and, we believe that a Court 
 of Chancery would prohibit a husband from a wanton destruction of 
 the wife's house or property. The wife, in all these cases, is desti- 
 tute of the usual remedy by action for damages against the husband 
 for this or any other injury to her inheritance; because a wife can 
 in no case sue her husband. The agreement to marry, and the con- 
 sequent marriage, amount to a waiver of this right of action against 
 each other. This principle is founded on reasons of sound policy. 
 But it does by no means follow that because the husband has the 
 power of doing many acts prejudicial to the interest or inheritance 
 of his wife with impunity, that he can assign and transfer this power 
 to a third person, and give him this privilege of impunity. In this 
 situation of parties policy does not require that this impunity should 
 exist; and, therefore, it does not exist. 
 
 As to the second question, we would observe that whatever were 
 the rights and liabilities of Babb as husband, those of Perley, the 
 assignee, seem to be more denned and better explained ; and if any 
 doubt remain as to Babb's rights before the extent of Perley's
 
 30 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 execution, the cause may be decided on this second point by the 
 application of principles well settled and understood. 
 
 It is admitted that the extent of Perley's execution against Babb, 
 upon his estate in the land in question, operated to transfer and 
 convey to Perley all Babb's interest or estate in such land. It 
 certainly could not convey any more, though it might place the 
 estate in a different situation in respect to other persons. Let us 
 then suppose that, instead of this extent, Babb had by his deed con- 
 veyed to Perley all his right, title and interest in and to the land 
 belonging to his wife. The facts would then present to us no other 
 than the common case of the division of a fee simple estate into a 
 freehold and a reversion. The freehold or life estate would be in 
 Perley; and the reversion would be in Babb's wife; because Babb, 
 her husband, had not, and could not have any control over this 
 reversion. Nothing short of a deed signed by her as well as by him 
 could operate to convey it to Perley. The extent has not affected, 
 in any degree, her reversionary interest. Perley, then, being only 
 tenant for life of the land in virtue of the extent of his execution, 
 he could not lawfully commit waste. It would be inconsistent with 
 his estate. 
 
 The act complained of is the cutting and carrying away and selling 
 about forty cords of wood. Of course, it was an act which a tenant 
 for life has no right to do; it was not for fire wood nor fences; it 
 was neither for building nor repairing. 
 
 In the case before us Mrs. Babb, the reversioner, sues Perley for 
 committing this waste on her inheritance. Her husband is joined 
 in the action, not because he has any interest; for that has already 
 been legally conveyed to Perley; but because a. feme covert can 
 never sue alone, unless in two or three special cases, forming 
 exceptions to the general rule. And now, we may ask, why should 
 not the action be maintained? If it should be urged that it will be 
 prejudicial to the rights of the husband's creditors, by depriving 
 them of the power of converting the lands levied upon to any profit- 
 able use, the answer is, the creditors of the husband cannot have any 
 more control of the wife's land than the husband himself had. The 
 i reditors may avail themselves of the profits of the wife's land in 
 satisfaction of their demands against the husband; but if there are 
 no profits, it is nothing more than the common misfortune of those 
 ( reditors whose debtors are insolvent. 
 
 The law is consistent and just. It subjects the land to the pay- 
 ment of the wife's debts, and the profits, to the payment of the debts 
 of the husband. After mature deliberation, we perceive no other 
 mode of deciding this eause without changing the nature of legal
 
 II. 4.] MODES OF TRANSFER. 31 
 
 estates, and disturbing those principles by which such estates are 
 created and protected. 
 
 We are unanimously of opinion that the verdict must be set aside 
 and a new trial granted. 
 
 MARCH v. BERRIER. 
 
 6 Iredell's Equity (N. C), 524. — 1850. 
 
 \Reported herein at p. 70.] 
 
 4. In Modes of Transfer. 
 
 AUSTIN v. SAWYER. 
 
 9 Cowen (N. Y.), 39. — 1827. 
 
 Curia, per Savage, Ch. J. — From the whole case the facts appear 
 to be as follows: The plaintiff Austin, and one Orrin Wilcox, were 
 in possession of farms in Orleans county, and each had sowed a crop 
 of wheat on the farm by him occupied. After sowing, and in Octo- 
 ber, 1825, they agreed to exchange farms, each reserving his own 
 crop of wheat. On the 13th of October, 1825, they executed quit- 
 claim deeds containing no reservations whatever. Austin fenced the 
 wheat, on the farm he had left, in the spring of 1826. Wilcox did 
 the same as to the wheat he had sowed, and at harvest time he cut 
 and carried it away. Wilcox did not take possession of the farm 
 which he had of the plaintiff; but some time after contracted to 
 assign his interest in the farm to the defendant. Wilcox then stated 
 to the defendant, that the wheat was reserved, and belonged to 
 Austin, the plaintiff. Some time elapsed after this parol agreement 
 before the assignment was in fact executed. The conveyance to 
 Wilcox was without seal, and so was the assignment, which was as 
 follows: "In consideration of one hundred and seventy dollars, 
 I assign over all my right, title and interest to within contract. 
 Orrin Wilcox." Wilcox wished to reserve some trees as well as the 
 wheat; but the defendant objected to this, as he did not wish to 
 have them cut. It does not appear from the case when the assign- 
 ment was executed; but the agreement by parol was three or four 
 weeks before, when the wheat was reserved. The same thing was 
 repeated when the writing was signed. The defendant's son testi- 
 fied that he thought he heard his father say that the wheat was
 
 32 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 reserved, and that it was Austin's. The defendant cut the wheat 
 and put it in his own barn. There were 104 bushels. 
 
 The parol evidence of the contract between Austin and Wilcox, 
 and of the reservation of the wheat, and also between Wilcox and 
 the defendant, was objected to, apd received subject to all legal 
 exceptions. 
 
 From the whole case, if properly before us, the justice of it is 
 strongly with the plaintiff. But the plaintiff's right of recovery 
 depends on the validity of his reservation of the wheat. The defend- 
 ant shows an absolute conveyance, which is a complete answer to 
 the action unless it can be obviated. 
 
 1. As to the evidence of the reservation. The contract was first 
 made by parol, reserving the wheat; and when the quit-claim was 
 executed, the same parol agreement reserving the wheat was again 
 repeated. But there is no direct evidence of a contract respecting 
 the wheat, subsequent to that conveyance. 
 
 ' There is no rule of evidence better settled," says Chancellor 
 Kent, 1 John. Ch. Rep. 429, " than that which declares that parol 
 evidence is inadmissible to contradict or substantially vary the legal 
 import of a written agreement. Such evidence is not only contrary 
 to the statute of frauds, but to the maxims of the common-law." 
 
 The written instrument must be considered as containing the true 
 agreement between the parties; and as furnishing better evidence 
 than any which can be supplied by parol. 1 Ph. Ev. 495. 5 Cowen, 
 508. The testimony in the case respecting the reservation between 
 Austin and Wilcox, relates to conversations antecedent to, and at 
 the time of executing the quit-claim conveyance. That must, of 
 course, be rejected, and expunged from the case. All that remains 
 relates to similar conversations between Wilcox and the defendant, 
 and the acts of the defendant. Before Wilcox assigned to the 
 defendant he frequently admitted that the wheat belonged to the 
 plaintiff. Had he sold it by parol to the plaintiff, and afterwards 
 conveyed it to the defendant, would not the plaintiff be entitled to 
 it, on the ground that grain growing may be sold by parol; and that 
 having been sold by a valid contract, Wilcox's assignment to the 
 defend int, being subsequent to the sale to the plaintiff, could con- 
 vey to the defendant no greater right than Wilcox had. 
 
 In Whipplev. Foot, 2 John. 422, it was decided by this court that 
 wheat growing is a chattel, ami may be sold as such on execution. 
 The same doctrine was held by this court in Stewart v. Doughty, 9 
 John. 1 1 j, where it added that the purchaser became entitled to 
 right of ingress, etc., to gather the crop. On this question the 
 English cases smn to me' not quite consistent. In Poulter v.
 
 H. 4-j MODES OF TRANSFER. 33 
 
 Killingbeck, 1 B. & P. 398, Buller, Justice, in speaking of a parol 
 transfer of half the growing crops, says, with respect to the point 
 made at the trial on the statute of frauds, this agreement does not 
 relate to any interest in the land, which remains altogether unaltered 
 by the arrangement concerning the crops. In Crosby v. Wadsworth, 
 6 East, 611, Lord Ellenborough, speaking of a parol contract for 
 the sale of a crop of growing grass, says, " I think that the agree- 
 ment stated, conferring as it professes to do an exclusive right to 
 the vesture of the land during a limited time, and for given pur- 
 poses, is a contract or sale of an interest in, or at least an interest 
 concerning lands." But, subsequently, in Parker v. Staniland, 11 
 East, 363, the same learned judge held that a parol contract for a 
 crop of potatoes in the ground was valid; and the distinction he took 
 was, that the one was growing, and the other had come to maturity; 
 and also, that the one was not delivered, being not yet in a fit state 
 for delivery; but the other was, by the agreement itself, delivered 
 as far as they were capable of delivery. 
 
 The distinction taken by the Supreme Court of Errors in Con- 
 necticut, 3 Day, 484, is this: When there is a sale of property which 
 would pass by a deed of land as such, without any other description, 
 if it can be separated from the freehold, and by the contract is to be 
 separated, such contract is not within the statute. 
 
 Whatever may be the rule of construction elsewhere, we are not 
 at liberty here to question the validity of a parol contract for the 
 sale of growing crops. Was there any evidence of such a contract? 
 
 Rejecting all that passed anterior to, and at the time of executing 
 the written contract, the proof is that Wilcox, when treating with 
 the defendant as to the sale of the farm, declared the wheat to 
 belong to the plaintiff. This is sufficient in my judgment to 
 authorize a jury to presume a formal and valid contract for the sale 
 of the wheat. 
 
 The title to the wheat, then, being in the plaintiff, it was not in 
 the power of Wilcox to convey it to the defendant. Suppose Wilcox 
 had leased this wheat-field for three years by parol, the lease would 
 have been valid. Any absolute conveyance by him, subsequently, 
 could not divest the rights of the lessee by parol. For the same 
 reason, the assignment by Wilcox to the defendant, though absolute 
 in its terms, conveyed no more than Wilcox had a right to convey. 
 The crop of wheat, therefore, I consider legally shown to be the prop- 
 erty of the plaintiff. 
 
 2. Could he, then, maintain this action? In answer to this ques- 
 tion, I say, in the language of Lord Ellenborough, 6 East, 610, " As 
 the plaintiff appears to have been entitled to the exclusive enjoy- 
 
 LAW OF PROP. IN LAND — 3
 
 34 REAL AND PERSONAL PROPERTY. [PT. I. CII. II. 
 
 ment of the crop growing on the land, during the proper period of 
 its full growth, and until it was cut and carried away, he might, in 
 respect of such exclusive right, maintain trespass against any per- 
 sons doing the acts complained of." He cites Co. Lift. 4 b., and 3 
 Bur. 1824; in the first of which it is laid down, that whoever hath 
 the vesture of the land, as the crops, shall have an action of trespass 
 quare clan sum /regit. In the latter (the case of Wilson v. Mackreth), 
 it was objected that trespass would not lie. Lord Mansfield said 
 there wants nothing to answer the objection but to state the case, 
 which he summed up thus: " The plaintiff's right is in a several 
 piece of ground, butted and bounded; a separate right of property 
 to take the profit of the turf, and to dig it for that purpose. The 
 plaintiff has this right exclusive of all others, and the defendant has 
 disturbed him in it; therefore, trespass lies though he has not the 
 absolute right to the soil." Mr. Justice Yates said, whenever there 
 is an exclusive right, trespass lies. In this case there was aa 
 exclusive right, necessarily, to the close, until the harvesting of the 
 wheat. And in Stewart v. Doughty, 9 John. 113, Kent, Ch. Jus- 
 tice, says, " The general language of the authorities is to this 
 effect: That the grantee vesturoz terra, or herbagii terra, may main- 
 tain trespass, though he has not the soil." 
 
 I am, therefore, of opinion that the plaintiff is entitled to judgment. 
 
 Judgment for the plaintiff. 
 
 HIRTH v. GRAHAM. 
 50 Ohio State, 57. — 1893. 
 
 Bradbury, J. — The plaintiff in error brought an action before a 
 justice of the peace to recover of the defendant in error damages 
 alleged to have been sustained on account of the refusal of the 
 latter to perform a contract by which he had sold to the plaintiff in 
 error certain growing timber. 
 
 The defendant attempted to secure the dismissal of the action on 
 the ground that the justice had no jurisdiction of an action for the 
 breach of such a contract. Failing in this, and the action being 
 trii 'I to a jury, he requested the justice to instruct the jury " that 
 if t hoy find from the evidence that the trees about which this action 
 is brought were at the tunc <>f said alleged contract then growing 
 upon the land of defendant, and that no note or contract or memo- 
 randum of the 1 ontra< I of sale was at the time made in writing, the 
 plaintill - annol maintain this action, and your verdict should be for
 
 II. 4-] MODES OF TRANSFER. 35 
 
 the defendant; " which instruction the justice refused to give, but 
 on the contrary gave to them the following instructions on the sub- 
 ject: "This is an action for damage, not on the contract nor to 
 enforce the same, and if you find that a contract was made, verbal 
 or otherwise, and the defendant refused or failed to comply with its 
 terms, the plaintiff is entitled to any damage you may find him to 
 have sustained by way of such non-compliance." 
 
 The defendant in error, who was also the defendant in the Jus- 
 tice's Court, excepted, both to the charge as given and to the refusal 
 to charge as requested ; the verdict and judgment being against him, 
 he embodied the charge as given, as well as that refused, in separate 
 bills of exceptions, and brought the cause to the Court of Common 
 Pleas on error, where the judgment of the justice of the peace was 
 affirmed; he thereupon brought error to the Circuit Court, where 
 the judgment of the Court of Common Pleas and that of the justice 
 were both reversed, and it is to reverse this judgment of the Circuit 
 Court and reinstate and affirm those of the Court of Common Pleas 
 and justice of the peace that this proceeding is pending. 
 
 Counsel for plaintiff in error contends that the record contains 
 nothing to show that the trees which were the subject of the con- 
 tract were standing or growing, and that, therefore, it does not 
 appear that the defendant was injured by the instructions given and 
 refused. The record does not support this contention. During 
 the trial three separate bills of exceptions were taken, and when all 
 of them are considered together, it clearly appears that evidence 
 was given tending to prove that the trees, the subject of the con- 
 tract, were growing on the land at the time it was made, and that 
 the contract was not evidenced by any note or memorandum in 
 writing. The instruction refused was, therefore, pertinent, and if 
 it contained a sound legal proposition the refusal to give it in charge 
 to the jury was prejudicial to the defendant. The court, however, 
 not only refused to give the instructions requested by the defendant, 
 but told the jury in substance, that no written memorandum was 
 necessary. * * * 
 
 Whether a sale of growing trees is the sale of an interest in or 
 concerning land has long been a much controverted subject in the 
 courts of England as well as in the courts of the several States of 
 the Union. The question has been differently decided in different 
 jurisdictions and by different courts, or at different times by the 
 same court within the same jurisdiction. The courts of England, 
 particularly, have varied widely in their holdings on the subject. 
 
 Lord Mansfield held that the sale of a crop of growing turnips was 
 within this clause of the statute. Emmerson v. Heelis, 2 Taunt. 38,
 
 36 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 following the case of Waddington et al. v. Bristow et a/., etc., 2 Bos. 
 & Pul. 452, where the sale of a crop of growing hops was adjudged 
 not to have been a sale of goods and chattels merely. And in 
 Crosby v. Wadsworth, 6 East, 601, the sale of- growing grass was held 
 to be a contract for the sale of an interest in or concerning land, 
 Lord Ellenborough saying: " Upon the first of these questions " 
 (whether this purchase of the growing crop be a contract or sale of 
 lands, tenements or hereditaments, or any interest in or concerning 
 them), " I think that the agreement stated, conferring, as it pro- 
 fesses to do, an exclusive right to the vestures of the land during a 
 limited time and for given purposes, is a contract or sale of an 
 interest in, or, at least, an interest concerning lands. Id. 610. 
 
 Afterwards, in Teal v. Auty, 2 B. & B. 99, the Court of Common 
 Pleas held a contract for the sale of growing poles was a sale of an 
 interest in or concerning lands. Many decisions have been 
 announced by the English courts since the cases above noted were 
 decided, the tendency of which have been to greatly narrow the 
 application of the fourth section of the Statute of Frauds to crops, 
 or timber, growing upon land. Crops planted and raised annually 
 by the hand of man are practically withdrawn from its operation, 
 while the sale of other crops, and in some instances growing timber, 
 also, are withdrawn from the statute, where, in the contemplation 
 of the contracting parties, the subject of the contract is to be treated 
 as a chattel. The latest declaration of the English courts upon this 
 question is that of the common pleas division of the high court of 
 justice, in Marshall v. Green, 1 C. P. Div. 35, decided in 1875. The 
 syllabus reads: " A sale of growing timber to be taken away as 
 soon as possible by the purchaser is not a contract or sale of land, 
 or any interest therein, within the fourth section of the Statute of 
 Frauds." This decision was rendered by the three justices who 
 constituted the common pleas division of the high court of justice, 
 Coleridge, C. J., Brett and Grove, JJ., whose characters and attain- 
 ments entitle it to great weight; yet, in view of the prior long period 
 of unsettled professional and judicial opinion in England upon the 
 question, that the court was not one of final resort, and that the 
 decision has encountered adverse criticism from high authority (Ben- 
 jamin on Sales, sec. 126, ed. of 1892), it cannot be considered as 
 finally settling the law of England on this subject. 
 
 TIh: 1 onflict among the American cases on the subject cannot be 
 wholly reconciled. In Massachusetts, Maine, Maryland, Kentucky 
 and Connecticut, sales of growing trees, to be presently cut and 
 removed by the vendee, an- held not to be within the operation of 
 the fourth section <>f the Statute of Frauds. Claflin et al. v. Car-
 
 II. 4-] MODES OF TRANSFER. tf 
 
 penter, 4 Mete. (Mass.) 580; Nettleton v. Sikes, 8 Mete. (Mass.) 34; 
 Bostwick v. Leach, 3 Day, (Conn.) 476; Erskine v. Plummer, 7 Me. 
 447; Cutler v. Pope, 13 Me. 377; Cain v. McGuire, etc., 13 B. Mon. 
 340; Byassee v. Reese, 4 Mete. (Ky.) 372; Smith v. Bryan, 5 Md. 
 141. In none of these cases except 4 Met. (Ky.) 373, and in 13 B. 
 Mon. 340, had the vendor attempted to repudiate the contract, 
 before the vendee had entered upon its execution, and the statement 
 of facts in those two cases do not speak clearly upon this point. In 
 the leading English case before cited, Marshall v. Green, 1 C. P. 
 Div. 35, the vendee had also entered upon the work of felling the 
 trees and had sold some of their tops before the vendor counter- 
 manded the sale. These cases, therefore, cannot be regarded as 
 directly holding that a vendee, by parol, of growing timber to be 
 presently felled and removed, may not repudiate the contract before 
 anything is done under it; and this was the situation in which the 
 parties to the case now under consideration stood when the contract 
 was repudiated. Indeed, a late case in Massachusetts, Giles v. 
 Simonds, 15 Gray, 441, holds that, " The owner of land, who has 
 made a verbal contract for the sale of standing wood to be cut and 
 severed from the freehold by the purchaser may at any time revoke 
 the license which he thereby gives to the purchaser to enter on his 
 land to cut and carry away the wood, so far as it relates to any 
 wood not cut at the time of the revocation." 
 
 The courts of most of the American States, however, that have 
 considered the question, hold, expressly, that a sale of growing or 
 standing timber is a contract concerning an interest in lands, and 
 within the fourth section of the Statute of Frauds. Green v. Arm- 
 strong, 1 Denio, 550; Bishop v. Bishop, 1 Kernan, 123; Westbrook v. 
 Eager, 1 Harr. (N. J.) 81; Buck v. Pickwell, 27 Vt. 157; Cool v. 
 Box and Lumber Co., 87 In d. 531; Terrell v . Frazier, 79 In J. 473; 
 Owens v. Lewis, 46 Ind. 488; Armstrong v. Lawson, 73 Ind. 498; 
 Jackson v. Evans, 44 Mich. 510; Lyle v. Shinnebarger, 17 Mo. App. 
 66; Hoive v. Batchelder, 49 N. H. 204; Putney v. Day, 6 N. H. 430; 
 Bowers v. Bowers, 95 Pa. St. 477; Daniels v. Bailey, 43 Wis. 566; 
 Lillie v. Dunbar, 62 Wis. 198; Knox v. Haralson, 2 Tenn. Ch. 232. 
 
 The question is now, for the first time, before this court for deter- 
 mination; and we are at liberty to adopt that rule on the subject, 
 most conformable to sound reason. In all its other relations to the 
 affairs of men, growing timber is regarded as an integral part of the 
 land upon which it stands; it is not subject to levy and sale upon 
 execution, as chattel property; it descends with the land to the heir, 
 and passes to the vendor with the soil. Jones v. Timmons, 21 Ohio 
 St. 596. Coal, petroleum, building stone, and many other substances
 
 38 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 constituting integral parts of the land, have become articles of com- 
 merce, and easily detached and removed, and, when detached and 
 removed, become personal property, as well as fallen timber; but 
 no case is found in which it is suggested that the sales of such sub- 
 stances, with a view to their immediate removal, would not be within 
 the statute. Sales of growing timber are as likely to become the 
 subjects of fraud and perjury as are the other integral parts of the 
 land, and the question whether such sale is a sale of an interest in 
 or concerning lands, should depend, not upon the intention of the 
 parties, but upon the legal character of the subject of the contract, 
 which, in the case of growing timber, is that of realty. 
 
 This rule has the additional merit of being clear, simple and of 
 easy application, qualities entitled to substantial weight in choosing 
 between conflicting principles. 
 
 Whether circumstances of part performance might require a modi- 
 fication of this rule, is not before the court and has not been 
 
 considered. 
 
 Judgment affirmed. 
 
 5. In Form of Contract for a Sale. 
 
 GREEN v. ARMSTRONG. 
 
 1 Denio (N. Y.), 550. — 1845. 
 
 By the Court, Beardsley, J. — A verbal contract was made between 
 these parties, by which the defendant agreed to sell certain trees 
 then standing and growing on his land, to the plaintiff, with liberty 
 to cut and remove the same at any time within twenty years from 
 the making of the contract. A part of the trees were cut and 
 removed under this agreement, but the defendant then refused to 
 permit any more to be taken, and for this the plaintiff brought his 
 action in the Justice's Court, where a judgment was rendered in his 
 favor. On the trial of the cause the defendant objected to proof of 
 such parol contract, but the objection was overruled. The judg- 
 ment was removed by certiorari to the Court of Common Pleas of 
 Oneida county, and was reversed by that court, on the ground, as 
 the record states, that the contract, not being in writing, was void 
 by the Statute of Frauds. | The opinion next disposes of certain 
 technical questions and then proceeds as follou>s.~\ 
 
 The revised statutes l declare that no " interest in lands " shall 
 1,,- , reated, unless by deed <>r conveyance in writing; and that every 
 
 See .' 224 "f the New York Real Property Law of 1896. — En.
 
 II. 5-] FORM OF CONTRACT FOR A SALE. 3Q 
 
 contract for the sale of " any interest in lands " shall be void unless 
 in writing. (2 R. S. 134, sees. 6, 8.) Certain exceptions and quali- 
 fications to these enactments are contained in the sections referred 
 to, but none of which touch the question now before the court: and 
 so far as respects this question the former statute of New York, and 
 the English statute of 29 Charles 2, ch. 3, contain similar provisions. 
 (1 R. L. of 1813, p. 78; Chit, on Cont. 299.) 
 
 The precise question in this case is, whether an agreement for the 
 sale of growing trees, with a right to enter on the land at a future 
 time and remove them, is a contract for the sale of an interest in 
 land. If it is, it must follow that the one declared on in this case, 
 not being in writing, was invalid, and the judgment of the common 
 pleas, reversing that of the justice, was correct and must be affirmed. 
 
 And in the outset I must observe, that this question has not, to 
 my knowledge, been decided in this State. It has, however, arisen 
 in the English courts, and in some of those of our sister States; but 
 their decisions are contradictory, and the views of individual judges 
 wholly irreconcilable with each other. Greenleaf's Ev. (2d ed.) sec. 
 271, and notes; Chit, on Cont. 299 to 302; 4 Kent's Com. (5th ed.) 
 450-1. We are, therefore, as it seems to me, at full liberty to 
 adopt a broad principle, if one can be found, which will determine 
 this precise question in a manner which our judgments shall approve, 
 and especially if it be equally applicable to other and analogous cases. 
 
 By the statute, a contract for the sale of " any interest in lands " 
 is void unless in writing. The word land is comprehensive in its 
 import, and includes many things besides the earth we tread on, as 
 waters, grass, stones, buildings, fences, trees, and the like; for all 
 these may be conveyed by the general designation of land. 1 Shep. 
 Touch, by Preston, 91; 1 Inst. 4; 1 Preston on Estates, 8; 2 Black. 
 Com. 17, 18; 1 R. S. 387, sec. 2; 2 Id. 137, sec. 6. Standing trees 
 are, therefore, part and parcel of the land in which they are rooted, 
 and as such are real property. They pass to the heir by descent as 
 part of the inheritance, and not, as personal chattels do, to the 
 executor or administrator. Toller's Law of Executors, 193-5; 2 
 Black. Com. by Chitty, 122, note; Rob. on Frauds, 365-6; Richard 
 Liford's Case, 11 Rep. 46; Com. Dig. Biens, (H.) And being 
 strictly real property, they cannot be sold on an execution against 
 chattels only. Score// v. Boxall, 1 Younge & Jer. 396; Evans v. 
 R>berts, 5 Barn. & Cress. 829. 
 
 It is otherwise with growing crops, as wheat and corn, the annual' 
 produce of labor and cultivation of the earth; for these are personal 
 chattels, and pass to those entitled to the personal estate, and not 
 to the heir. Toller, 150, 194; 2 Black. Com. 404. They may also
 
 40 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 be sold on execution like other personal chattels. Whipple v. Foot, 
 2 John. 418; Jones v. Flint, 10 Adol. & Ellis, 753; Peacock v. 
 Purvis, 2 Brod. & Bing. 362; Hartwell v. Bissell, 17 John. 128. 
 
 These principles suggest the proper distinction. An interest in 
 personal chattels may be created without a deed or conveyance in 
 writing, and a contract for their sale may be valid although by parol. 
 But an interest in that which is land can only be created by deed or 
 written conveyance; and no contract for the sale of such an interest 
 is valid unless in writing. It is not material and does not affect the 
 principle, that the subject of the sale will be personal property when 
 transferred to the purchaser If, when sold, it is in the hands of 
 the seller, a part of the land itself, the contract is within the statute. 
 These trees were part of the defendant's land, and not his personal 
 chattels. The contract for their sale and transfer, being by parol, 
 was, therefore, void. 
 
 The opinion of the court in the case of Dunne v. Ferguson, 1 
 Hayes Irish R. 542, contains one of the best illustrations of this 
 question. That case is thus stated in Stephen's N. P. 1971: 
 " The facts of the case were, that in October, 1830, the defendant 
 sold to the plaintiff a crop of turnips, which he had sown a short 
 time previously, for a sum less than ten pounds. In February, 1831, 
 and previously, while the turnips were still in the ground, the 
 defendant severed and carried away considerable quantities of 
 them, which he converted to his own use. No note in writing 
 was made of the bargain. It was contended for the defendant 
 that the action of trover did not lie for things annexed to the 
 freehold, and that the contract was of no validity for want of 
 a note or memorandum in writing pursuant to the Statute of 
 Frauds. Upon the foregoing facts Chief Baron Joy observed, 
 (Barons Smith, Pennefeather and Foster, concurring,): 'The 
 general question for our decision is, whether there has been a con- 
 tract for an interest concerning lands within the second section of 
 the Statute of Frauds? or whether it merely concerned goods and 
 chattels? And that question resolves itself into another, whether 
 or not a growing crop is goods and chattels? In one case it has 
 been held, that a contract for potatoes did not require a note in 
 writing, because the potatoes were ripe; and in another case, the 
 distinction turned upon the hand that was to dig them, so that if 
 dug by A. 15., they were potatoes, and if by C. 1)., they were an 
 interest in lands. Su< h a < nurse always involves the judge in per- 
 plexity, and the case in obscurity. Another criterion must, there- 
 fore, be had recourse to; and, fortunately, the later cases have 
 rested tin- matter nn a more rational and solid foundation. At
 
 II. 5] FORM OF CONTRACT FOR A SALE. 41 
 
 common law, growing crops were uniformly held to be goods; and 
 they were subject to all the leading consequences of being goods, as 
 seizure in execution, etc. The Statute of Frauds takes things as it 
 finds them, and provides for lands and goods according as they were 
 so esteemed before its enactment. In this way the question may be 
 satisfactorily decided. If, before the statute, a growing crop, has 
 been held to be an interest in lands, it would come within the second 
 section of the act, but if it were only goods and chattels, then it 
 came within the thirteenth section. On this, the only rational 
 ground, the cases of Evans v. Roberts, 5 Barn. & Cress. 829; Smith 
 v. Surman, 9 Id. 561; and Scorell v. Boxall, 1 Young & Jer. 396, 
 have been decided. And as we think that growing crops have all 
 the consequences of chattels, and are like them, liable to be taken 
 in execution, we must rule the points saved for the plaintiff." 
 
 Various other decisions have proceeded on the same principle, 
 although it has nowhere been stated and illustrated with the same 
 clearness and force as in the opinion of Clvef Baron Joy. 
 
 The following cases may be cited to show that growing crops of 
 grain and vegetables, fructus industriales, being goods and chattels, 
 and not real estate, may be conveyed by a verbal contract, as they 
 may also be sold on execution as personal chattels. Carrington v. 
 Roots, 2 Mees. & Wels. 248; Sainsbury v. Mathews, 4 Id. 343; Randall 
 v. Ramer, 2 John. 421, note; Mumford v. Whitney, 15 Wend. 387; 
 Austin v. Sawyer, 9 Cowen, 39; Jones v. Flint, 10 Adol. & Ellis, 753; 
 Warwick v. Bruce, 2 Maule & Selw. 205 ; Graves v. Weld, 5 Barn. & 
 Adol. 105. 
 
 But where the subject-matter of a contract of sale is growing trees, 
 fruit, or grass, the natural produce of the earth, and not annual pro- 
 duction raised by manurance and the industry of man, as they are 
 parcel of the land itself, and not chattels, the contract, in order to 
 be valid, must be in writing. Teal v. Auty, 2 Brod. & Bing. 99; 
 Putney v. Day, 6 N. Hamp. R. 430; Olmstead v.Niles, 7 Id. 522; 
 Crosby v. Wadsworth, 6 East, 602; Rodwell v. Phillips, 9 Mees. & 
 Wels. 501; Jones v. Flint, 10 Adol. & Ellis, 753. 
 
 The contract in this case was within the statute, and being by 
 parol was void. The judgment of the common pleas must be 
 affirmed. 
 
 Judgment affirmed.
 
 42 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 6. In the Order in Which Property May be Reached for 
 the Satisfaction of Debts of its Owner. 
 
 WEBSTER v. PARKER. 
 
 42 Mississippi, 465. — 1869. 
 
 Shackelford, C. J., delivered the opinion of the Court. 
 
 This was a bill filed in the Chancery Court of Holmes county, by 
 Ann H. Webster and her husband, against the defendants in error, 
 to enjoin the sale of the southeast quarter of section 16, town 13; 
 of range No. 2, east, levied upon by virtue of certain writs of fieri 
 facias, issued upon judgments obtained against J. M. Stigler, sheriff, 
 and administrator de bonis non of the estate of Robert Howard, 
 deceased. 
 
 The bill shows that the complainant, Ann H. Webster, is the 
 daughter and one of the heirs-at-law of Robert Howard, deceased; 
 that said Howard died seized and possessed of a large real and per- 
 sonal estate, and left a will devising his estate to his widow Sarah 
 and her three children; that in the distribution of the estate the 
 land levied upon was assigned to her as a portion of the real estate 
 of her deceased father; that she was in possession of it at the time 
 of filing her bill. It is further alleged that the said Sarah was 
 appointed executrix of the estate of her husband, by his last will, 
 etc., and that she qualified and gave bond, and took possession of 
 the entire estate; that she died in 1862, and that J. M. Stigler, the 
 sheriff of Holmes county, administered upon her estate, and rendered 
 a final account of her administration of the estate of Robert Howard, 
 deceased, at the August term, 1867, of the said Probate Court, 
 showing a balance unadministered or unaccounted for by said 
 executrix of $9,443.21 for money, cotton, and other effects received 
 by her. 
 
 It is further alleged that the personal estate of Robert Howard, 
 deceased, was more than sufficient to pay the debts of the estate, 
 aside from that which has been distributed to the heirs-at-law, or 
 that may now be on hand; and that whatever insufficiency of assets 
 there may be to pay the debts of the estate is in consequence of a 
 - tavt't, as shown by the final account of J. M. Stigler as admin- 
 istrator of Sarah Howard, the executrix of her deceased husband's 
 estate. 
 
 It appears further from the record that said J. M. Stigler, sheriff, 
 was appointed by said Probate Court administrator de bonis non of 
 the estate of Robert Howard, and that during his administration of 
 said estate the judgments were obtained against him, upon which
 
 II. 6.] ORDER IN WHICH PROPERTY IS TAKEN FOR DEBTS. 43 
 
 the executions ol fi fa. were issued and levied upon the land in 
 question. 
 
 An injunction was issued, stopping the sale of the said tract of land. 
 
 A demurrer was filed to the bill of plaintiffs in error, assigning 
 various grounds; the demurrer was sustained, and the bill dismissed. 
 
 To reverse this decree the plaintiffs in error prosecute this writ of 
 error. 
 
 The action of the court below in sustaining the demurrer of 
 defendants in error is made the only ground for error in this court, 
 which is, that " the court erred in sustaining the demurrer to the 
 said bill, because the lands of plaintiffs in error are not chargeable 
 with the debts of their ancestor, and cannot be subjected to pay- 
 ment thereof until the personal estate is exhausted." 
 
 " The protection of lands and tenements and hereditaments from 
 sale, for payment of debts of decedents, until the personal estate is 
 exhausted, will protect a leasehold estate in lands until the final dis- 
 position of the personal estate." 
 
 It is insisted in behalf of the plaintiffs in error that the lands 
 levied upon, under the executions issued upon the judgments 
 obtained against J. M. Stigler, the administrator de bonis nonoi the 
 estate of Robert Howard, in favor of defendants in error, are not 
 subject to sale, because there was a much larger amount of personal 
 estate left by Robert Howard than was sufficient to pay all his 
 debts, which passed into the hands of his executrix, Sarah Howard, 
 and that before they can subject the land in question to sale under 
 their judgments they must pursue the sureties on the official bond 
 of Sarah Howard, as executrix upon said estate. 
 
 This position of counsel would be tenable if the lands in question 
 were not a leasehold estate; as by the demurrer it is admitted that 
 there was at the time of the death of Robert Howard three times 
 as much personal estate as was sufficient to pay all the debts of the 
 estate, and that a large amount of this property has been wasted by 
 the executrix, Sarah Howard, deceased. 
 
 This court has held, that when personal assets largely in excess of 
 the amount of the claims against an estate had passed into the 
 hands of an administrator, and had never been administered or 
 accounted for, the lands of a decedent would not be decreed to be 
 sold to pay his debts unless the creditor had exhausted all remedy 
 in due legal form against the administrator and his sureties. Paine 
 v. Pendleton et a/., 32 Miss. Rep. p. 320; Evans v. Fisher, 40 Miss. 
 
 It is admitted in the argument of counsel, and shown by the 
 record, that the interest of plaintiffs in error in the land in ques- 
 tioned is only a leasehold interest.
 
 44 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 Any estate less than a freehold, such as estates for years, are 
 chattel interests, and if they continue for a longer period than the 
 life of the tenant, they go to his personal representatives, his 
 executors or administrators, i Prest. on Est., p. 203; 1 Wash, on 
 Real Prop., p. 60. 
 
 This court has adjudicated upon the precise question involved in 
 the case under consideration — the interest vested in lessees of 
 sixteenth sections in this State, where the lease is for ninety-nine 
 years, as was the case of the lease to the ancestor of the plaintiff in 
 error, Mrs. Ann H. Webster — holding that such leases are of no 
 higher dignity than a lease or term for one year, and that the leased 
 premises go into the hands of the administrator or executor of the 
 lessee, to be administered as any other chattel and not to the heir. 
 Dillingham v . Jenkins, 7 S. & M. Rep. p. 479. 
 
 In many of the States of the Union, by statute, these leasehold 
 estates for ninety-nine years are made descendible to the heirs of 
 the lessees. It is to be regretted that there is not a similar statute 
 in this State, as many of the homes of widowed families are upon 
 such estates. 
 
 We shall adhere to the doctrine laid down in the foregoing 
 authorities, and affirm the decision of the chancellor sustaining the 
 demurrer, and dismissing the bill of plaintiffs in error. 
 
 The only remedy for the plaintiffs in error is to pursue the estate 
 
 of the defaulting executrix and the sureties upon her official bond 
 
 for the loss they will have to sustain by the sale of the leasehold 
 
 estate in question. 
 
 Let the decree be affirmed. 
 
 7. What Law Governs in Case of Conflict of Laws. 
 
 DESPARD v. CHURCHILL. 
 
 53 New York, 192. — 1873. 
 
 Action for the construction of a will. 
 
 Folger, J. — The testator had his domicile in the State of Cali- 
 fornia. He made his will there. No question is made but that it 
 i-; in all of its provisions valid by the law of that State. It, how- 
 ever, by its terms, disposes of certain property in this State, and by 
 provisions which arc invalid here, inasmuch as they run counter to 
 ..in- statute law. 1 K. S. 723, sec. 15; Id. 773, sec. 1. The 
 Statute law lure referred to embodies the policy of this State in
 
 II. 7-J WHAT LAW GOVERNS IN CONFLICT OF LAWS. 45 
 
 relation to perpetuities and accumulations. As this sovereignty will 
 not uphold a devise of a bequest by one of its citizens in contra- 
 vention of that policy, it will not give its direct aid to sustain, 
 enforce or administer here such a devise or bequest made by a 
 citizen of another sovereignty. See Chamberlain v. Chamberlain, 
 43 N. Y. 424. Yet it is no part of the policy of this State to inter- 
 dict perpetuities or accumulation in another State. Id. 434. 
 
 The property in this State affected by this will is leasehold estates 
 held by leases for a short term of years. This is, at common-law, 
 personal property. 3 Kent, 401; 2 Id. 342; Merry v. Hallctt, 2 
 Cow. 497; Brewster v. Hill, 1 N. H. 350. The statutes of this State 
 have, for some purposes, modified its character. Estates for years 
 are denominated estates in lands. 1 R. S. 722, sec. 1; Id. 750, 
 sec. 10; Id. 762, sec. t,^. They are still chattels real (Id. 722, 
 sec. 5), and are not classed as real estate in the chapter of " title to 
 property by descent." Id. 754, sec. 27. A judgment binds and 
 is a charge upon them (2 Id. 359, sec. 4), yet they go to the personal 
 representatives as assets for distribution. Id. 82, sec 6 ; and see 
 Pugsley v. Aikin, 11 N. Y 498. They vest in the executors as a 
 part of the testator's personal estate. These leasehold estates 
 must, for the purposes of this case, be treated as personal property. 
 
 Personal property is subject to the law which governs the person 
 of its owner as to transmission by last will and testament; and this 
 principle, though arising in the exercise of international comity, has 
 become obligatory as a rule of decision by the courts. Parsons v. 
 Lyman, 20 N. Y. 103. x\nd, as a general rule, the distribution of 
 personal property, wherever made, must be according to the law of 
 the place of the testator's domicile. Harvey v. Richards, 1 Mason, 
 381-407. 
 
 The cases are not uncommon in which a testamentary disposition 
 made in a foreign jurisdiction has controlled the transmission of 
 personal property in this. Usually the administration of the estate 
 has been committed by the will to citizens of that jurisdiction. 
 They have acquired the possession and control of the property 
 through voluntary payment or surrender, or, by making probate of 
 the will here, have obtained auxiliary letters testamentary, and 
 under these have enforced collection or surrender. In such case, 
 those charged with the administration are liable to account here for 
 the assets collected by the authority granted here. It seems to have 
 been generally held, that where there are domestic creditors of the 
 estate, payment of the debts may be decreed out of the assets. 
 Dawes v. Boylston, 9 Mass. 337; Richards v. Dutch, 8 Id. 506; Harvey 
 v. Richards, supra. For other purposes, such as the payment of
 
 46 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 legacies and the distribution of the surplus to the next of kin, the 
 courts in Massachusetts have held that the assets must be remitted 
 to the place of the domicile. See cases above cited. But this 
 has been questioned with great force and reason. See Harvey v. 
 Richards, supra. And the better rule is, that whether the courts 
 of one State are to decree distribution of the assets collected in it 
 under auxiliary letters granted by them, or to remit the disposition 
 thereof to the courts of the testator's domicile, is not a question of 
 jurisdiction, but of judicial discretion under the circumstances of 
 the particular case. Harvey v. Richards, supra; Parsons v. Lyman, 
 supra. Nor does the fact that, by the will in this case, the testator 
 appointed citizens of this State as executors, as well as citizens of 
 the State of his domicile, and charged those here with the care and 
 administration of the property here, alter the rule. In Mason v. 
 Richards, above cited, the defendant was appointed, in this country, 
 administrator, with the will annexed of a testator domiciled in the 
 East Indies, where the executors resided. 
 
 The question then arises, under the particular circumstances of 
 this case, whether the assets in this State should not be remitted to 
 the executors in the State of California to be administered, as they 
 may be, in accordance with the directions of the will, under the 
 laws of that State. 
 
 As has been stated, the courts of this State may not directly aid 
 in carrying out here, a bequest which is in violation of its statute 
 law, and contrary to a policy of which it is tenacious. And yet they 
 may not hold the bequest void, when it is valid by the law of the 
 State by which the disposition of the property is to be governed. 
 The one would be to transgress the written law of this State; the 
 other would be to disregard an unwritten rule of law, well settled, 
 and of extensive and frequent application. 
 
 There are certain legacies appointed by the will which are valid 
 under our law; they are to persons residing in the Atlantic States. 
 The will directs the executors here to use from the assets here to 
 pay those legacies. There is no obstacle of law, economy or con- 
 venience in the way of this provision of the will being carried out to 
 its letter. The residue of the assets should be remitted to the 
 executors in California to be administered there. This residue 
 will be much less in amount than the assets there. They are lease- 
 hold cstairs of terms not long, and will soon cease (if they have not 
 already) to be continuously available for any purpose of the will. 
 1 k re are no creditors of the estate in this State to be protected. 
 'I he legatees here are protei ted by the payment of the legacies to 
 th' in from the assets. The next of kin of the testator are also the
 
 II. 7-] WHAT LAW GOVERNS IN CONFLICT OF LAWS. 47 
 
 annuitants under the provision of the will, which is void by our law. 
 As annuitants, they must soon rely mainly upon the fund, the 
 executors and the courts, in California. If to them as next of kin 
 were adjudged here a distribution of the property here, it might not 
 prevent them from claiming there as annuitants. Thus, by conflict 
 of laws and adjudication, there would be a measureable thwarting 
 of the testamentary intention, and the giving to them of more than 
 the testator designed. It seems, then, that the rule of law above 
 mentioned and the circumstances of the case indicate that the judg- 
 ment of the Special Term directing a distribution of the assets in 
 this State among the next of kin was not well advised, and that the 
 judgment of the General Term reversing that of the Special Term 
 in that respect was proper. 
 
 Certain other questions are raised by the complaint and passed 
 upon by the Special Term, but not noticed by the General Term; 
 and perhaps it was not needed that they should be. Having con- 
 cluded that the assets here should be remitted to the State of Cali- 
 fornia to be distributed in accordance with the law there, the 
 solution of those questions for the practical guidance of those 
 interested, is of necessity to be left to the courts of that State. 
 
 The order of the General Term should be affirmed and final judg- 
 ment for respondents in pursuance of stipulation. 
 
 Order affirmed, and judgment accordingly. 
 
 WHITE v. HOWARD. 
 46 New York, 144. — 1871. 
 Action for the construction of a will. 
 
 Grover, J. — The testator, William Bostwick, at the time of his 
 death, in April, 1863, was a resident of the State of Connecticut, 
 and had beeFTTor a number of years prior thereto. The validity of 
 the bequests of his personal property, and all questions of succession 
 thereto, or rights therein, must be determined under the laws of that 
 State, and by the courts of that State, when the property, or those 
 having the possession and control thereof, are within its jurisdiction. 
 Parson v. Lyman, 20 N. Y. 103; Moultrie v. Hunt, 23 Id. 394; Story 
 on Conflict of Laws, sec. 468. In addition to his personal property 
 and real estate situated in Connecticut, the testator, at the time of 
 his decease, was seized of real estate situated in the city of New 
 York, of great value. The validity of the dev ; se of the latter prop- 
 erty, and all questions relating to the title, must be determined by
 
 48 REAL AND PERSONAL PROPERTY. [PT. I. (JI1. II. 
 
 the laws and courts of New York, irrespective of the domicile of the 
 testator. Hosford v. Nichols, i Paige, 220; Story, Conflict of Laws, 
 sees. 424, 428, 445; 4 Kent's Com. 513. The testator, after giving 
 several legacies by the previous clauses of his will, by the seventh 
 clause gave all the rest, residue and remainder of his property, both 
 real and personal, wherever situated, to Henry White, John P. 
 Crosby, and Pelatiah Perit and the survivor of them, as joint ten- 
 ants, in fee simple, upon certain specified trusts in favor of his 
 daughter Frances, an infant, and her children, should she leave any 
 her surviving, and the descendants of any child, if any, whose parent 
 died during the life of his daughter and her husband, if any, surviv- 
 ing her; and upon the further trust, in case of the death of his 
 daughter, leaving no child or descendant of any child, or husband, 
 her surviving (an event which has actually happened), to pay certain 
 specified legacies to various charitable societies, and then divide 
 whatever remained of the trust estate equally between the following 
 six societies, namely: The Southern Aid Society; the American 
 Tract Society; the American and Foreign Christian Union; the 
 American Colonization Society; the Trustees of the Board of 
 
 • -Domestic Missions of the General Assembly of the Presbyterian 
 Church of the United States; and the Board of Foreign Missions of 
 the same church. The personal estate was more than sufficient to 
 pay all the specific legacies given by the will. The first question to 
 
 f be determined is, whether any or all of these societies had capacity 
 to take real estate in New York by devise. As several of the socie- 
 ties claim a capacity so to take, upon grounds and principles different 
 from others, it will be necessary to examine the question as to 
 several separately. As the Southern Aid Society differs in this 
 respect materially from all the others, it will be proper to consider 
 the question as to that society first. This was a voluntary, unincor- 
 
 Iporated charitable association, engaged in aiding indigent evangelical 
 churches and ministers in the southern section of the Union, prior 
 t.) [861. Whether it continued in existence as a society after that 
 period, and to the time of the death of the testator, and until its 
 incorporation under the general statute of the State, was a contro- 
 verted question upon the trial; but the justice who tried the cause 
 found, in substance, that it did so continue. That finding is con- 
 < lusive upon this court. A-yoluntary asso ciation fo r charitable pur- 
 |n<s cannot, under the law of this State, take a legacy giverTtcTTt. 
 Slirrwootl v. American Bible Society and Others, 1 Keyes, 561. If 
 incapable of taking a lega cy, it is clear that it has no capacity to 
 take by devise. * * * 
 'I'll.- Xmerican Colonization Society claims the one-sixth of the 
 

 
 II. 7] WHAT LAW GOVERNS IN CONFLICT OF LAWS. 49 
 
 property under the will. This society was incorporated in 1836, by 
 an act of the Legislature of Maryland, by which it was authorized 
 to take lands by devise, and to sell and dispose of such lands as 
 the society should determine to be most conducive to the objects 
 of the society, namely, the colonizing of the free people of color of 
 this country in Africa. 
 
 The principal question to be determined in regard to this society 
 is, whether it can take land in this State by devise. We have 
 already seen that this question must be determined solely by the 1 
 law of this State. That it can take personal property by bequest! 
 has been determined by this court. Sherwood v. The American Bible 
 Society and Others, 1 Keyes, 561. By the statute of this State con- 
 cerning wills, passed in 1^813 (1 R. L. 364), all persons (other than! 
 bodies politic and corporate) were permitted to take lands by devise 
 and might take to or for any lawful purpose whatsoever, without 
 restraint. Tix e_ exclusi on of bodies_politic and corporate_from taking 
 lands by devise was the law of the State - until the~Revised Statutes 
 took effect, and applied to all corporations of our own and other 
 States and countries, unless the Legislature, for special reasons, 
 authorized a particular corporation so to take. This was the settled 
 policy of the State. Such being the law and policy of the State at 
 the time of the passage of the Revised Statutes, we find, that by , 
 the first section of the statute of wills, therein contained (2 R. S. 
 57), all persons, with the exceptions therein specified, were 
 empowered to dispose of their real estate by will. Section two of 
 the act defines real estate for this purpose. Section three provides, 
 that such devise may be made to every person capable by law of 
 holding real estate; but no devise to a corporation shall be valid, 
 unless such corporation be expressly authorized by its charter, or 
 by statute, to take by devise. What modification - "oF~trre~"1aw is 
 herein indicated? By the act of 1813, bodies politic and corporate 
 are excepted from the persons who may take by devise. By section 
 three of the present statute of wills, all persons capable by law to 
 hold real estate are authorized so to take, but providing that no 
 devise to a corporation shall be valid, unless such corporation, by 
 its charter or by statute, be expressly authorized so to take. Had 
 the Legislature, while the act of 1813 was in force, granted a charter 
 to a corporation and had therein enacted that such corporation 
 might take real estate by devise, can there be a doubt that such a 
 provision would have effected a repeal of the act as to such corpora- 
 tion? Or had the Legislature, by a subsequent statute, enacted that 
 one or any number of designated existing corporations, might take 
 land by devise, such act would, as to such corporation, have 
 
 LAW OF I'ROP. IN LAND 4
 
 5<D REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 repealed the exception in the act of 1813 by implication. Section 
 three of the present statute has the same effect precisely upon all 
 corporations not expressly authorized by charter or statute to take 
 by devise, as the exception in the act of 1813 had upon all existing 
 corporations, and all thereafter created, unless the latter were 
 expressly authorized by their charter to take; and we have seen that, 
 as to both classes, a subsequent statute, expressly authorizing any 
 designated corporations to take land under a will, would, by impli- 
 cation, have repealed the section as to them. The only modification 
 of the law intended by the change in section three was to save the 
 right of existing corporations, authorized by their charter or statute, 
 to take by devise, if any such there were; for those incorporated 
 subsequent to its passage were as effectually deprived thereby of 
 the capacity to take by devise as those incorporated subsequent to 
 the act of 1813 were by the exception. Neither could take, unless 
 expressly authorized by statute or charter, in which event both could 
 take, unless some distinction exists between a statute and charter of 
 
 , a corporation in this respect, as used in the section. That the author- 
 ity conferred by statute referred to in section three means a statute of 
 this State only is clear. That a statute of another State, conferring 
 power upon a New York corporation to take land by devise, would 
 be effectual to enable it so to take in the State passing it, is clear; 
 
 j but it is equally plain, that it could not affect its capacity to take land 
 located in New York by devise. This shows that the word statute as 
 used in section three means a statute of New York. It will hardly 
 be insisted that a statute of another State, conferring power upon a 
 corporation created by itself, to take land by devise in New York, 
 will enable it so to take, while a similar statute conferring the same 
 power upon a New York corporation will have no such effect. But 
 it is claimed that, by the true construction of section 3, power 
 is given to all corporations, whose charters authorize them to take, 
 by devise, to take in that manner in this State, irrespective of the 
 government from which the charter is obtained. In other words, 
 that section 3 authorizes all corporations to take lands in this 
 State under a will, whose charters confer a capacity so to take. 
 Creating or chartering corporations involves an exercise of the 
 legislative power. They may be created by a particular statute, 
 granting the charter or organized by virtue of general statute pre- 
 scribing the mode, specifying the powers and privileges to be 
 enjoyed. In either mode the corporation is, in a legal sense created 
 by statute; and where section three provides that no devise to a 
 corporation shall be valid, unless such corporation be expressly 
 authon/ed by its 1 harter, or by statute, to take by devise, it is
 
 II. 8.] MEANS OF VINDICATING PROPERTY RIGHTS. 5 1 
 
 equally clear that such charters only were intended as were granted 
 by a statute of this State, or organized under a general statute of 
 the State, as it is that by the words, by statute, a statute of the 
 State was intended. Any other construction would work a complete 
 revolution of the policy of the State. That policy, as indicated by 
 its whole legislation, is to exclude corporations generally from taking | 
 by devise. The Legislature at all times have possessed the power 
 to except such corporations as it deemed proper from its operations; 
 and of late years have exercised it with great liberality in favor of 
 corporations organized for charitable purposes. But there is no 
 indication of a design to abandon the general policy of the State 
 by permitting other governments to determine what corporations 
 might take 'and hold lands in this State by devise, under the con- 
 struction contended for by the counsel for the colonization society. 
 Any corporation, to which the privilege of taking land by devise 
 was refused by our Legislature, might acquire that privilege by pro- 
 curing and accepting a charter from another State conferring it. 
 This would defeat the plain intention of section 3, which was to 
 exclude all corporations from that right, except such as our Legisla- 
 ture permitted for special reasons to enjoy it. It follows that the 
 colonization society can take no interest in the New York real estate 
 under the will of the testator. * * * J 
 
 The judgment appealed from must be affirmed. * * * 
 
 8. In the Method and Means of Vindicating Property 
 
 Rights. 
 
 a. Kinds of Action. 
 
 (1.) For the Recovery of Property. 
 
 RICKETTS v. DORREL. 
 
 55 Indiana, 470. — 1876. 
 
 Replevin by Dorrel for a quantity of rails and stakes which 
 Ricketts had seized and built into a fence. Judgment below for 
 Dorrel. On appeal the judgment was reversed. This is a petition 
 for a rehearing. 
 
 Biddle, J. — The earnestness of the petition for a rehearing in 
 this case convinces us of the sincerity of the petitioner, but it seems 
 to us that he has misconceived the scope of the opinion pronounced. 
 He labors to convince us that when a tree is wrongfully converted
 
 52 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 into rails, they may be replevied; and when timber is wrongfully 
 cut and converted into coal, the coal may be replevied ; and cites 
 other similar cases. The opinion nowhere controverts these propo- 
 sitions. When an article is made personal property by being severed 
 from the realty to which it first belonged, it may be replevied as 
 long as its separate identity can be ascertained, whatever shape it 
 may take; but when an article of personal property, though wrong- 
 fully taken, has become real estate by being attached to the realty, 
 it cannot be replevied, because it has lost its separate identity, and 
 its character as personal property. To apply these principles to 
 the present case: — If rails are wrongfully taken from a fence, they 
 become personal property and may be replevied by the owner; but 
 if rails are wrongfully taken and put into a fence, and thus made a 
 part of the realty, they cannot be replevied, because they have lost 
 their separate identity, and cannot be delivered without detaching 
 them from the realty, of which they have become a part. And this 
 is precisely the case we are considering. We have examined the 
 authorities cited by the petitioner, and, as we read them, all the 
 cases in replevin are against the petitioner. In Varies v. £as/ey, 
 13 111. 192, it is held, that a party may maintain replevin for boards 
 made from trees wrongfully cut on his land; and also held that the 
 owner of personal property, wrongfully taken, may replevy it so 
 long as it can be identified, unless it is annexed to or made a part 
 of some other thing which is the principal, as timber converted into 
 a house, grain converted into malt, or coin converted into a cup. 
 The appellee also labors hard, and cites many authorities, to show 
 us that a wrongdoer cannot obtain any title in the property he 
 wrongfully takes, as against the owner — a proposition nowhere dis- 
 puted; but it does not follow that the action of replevin will lie in 
 all cases, merely because the owner has not lost the title to his prop- 
 erty. Nor will our statute abolishing the distinction between the 
 forms of actions aid the appellee. The Legislature cannot abolish 
 the distinction between personal and real actions, nor between actions 
 to enforce a specific performance of a contract or recover a specific 
 article, and those which seek merely a money judgment; nor 
 between actions arising out of tort, and those founded upon con- 
 tract; because the distinction exists in fact, and not in mere form. 
 The distinction between the actions of debt, covenant, assumpsit, 
 trover, trespass, trespass on the case, and suits in equity to recover 
 money directly, may be and is abolished by the code, because the 
 remedy sought in all these cases is the same, namely, a money judg- 
 ment. The appellee, therefore, cannot bring his action in replevin 
 to re< over his specific rails and, failing in that, maintain his case to
 
 II. 8.] MEANS OF VINDICATING PROPERTY RIGHTS. 53 
 
 recover a money judgment for their value, merely because he has not 
 lost his property in the rails. The law affords him ample remedy if 
 he rightly chooses it; but it is no part of the duty of this court to 
 instruct him as to what that remedy is. 
 
 The petition is overruled. 
 
 BREWSTER v HILL. 
 1 New Hampshire, 350. — 1818. 
 
 Trespass in ejectment to recover a term of years. Wheelock 
 owned the premises in question in 1796 and leased them to O. for 
 985 years. O. entered on the premises and then died bequeathing 
 all his " personal estate " to A. P. and wife, who, in 1807, conveyed 
 their interest to plaintiff. Verdict for plaintiff subject to opinion 
 of this court. 
 
 Woodbury, J. — delivered the opinion of the Court. 
 
 In this case the sole question is, whether the term mentioned in 
 the plaintiff's writ would pass under a devise of " personal estate." 
 
 The boundaries between real and personal estate are, in certain 
 instances, scarcely distinguishable; and, indeed, some species of 
 property exist which have been deemed real or personal, according 
 to the character of the claimants, and the purpose for which they 
 claim. Vide, autho. cited, post; Mills v. Pierce, Rock. Feb. 1819. 
 
 But we are not aware of any established principles or precedents, 
 which would make leases for years anything more than " personal 
 estate." The law in relation to them was settled before the land 
 itself could be conveyed. Bac. Leas. Co. Litt. 456. They were 
 then for short terms, and with an exclusive view to aid great land- 
 holders in the cultivation of the soil. Hence the lease passed to the 
 lessee no interest in the premises; but was a mere contract, for a 
 breach of which a recovery in damages against the lessor was the 
 only remedy. Vaugh. 127; Hayes v . Bickerstaff. 
 
 As the custom altered and leases for longer terms became com- 
 mon, the remedy of the lessee was by statute extended, and he was 
 enabled to protect himself in the occupation of the land itself. 
 21 Hen. 8, ch. 15. 
 
 Yet all the incidents of a mere chattel were still attached to the 
 term whether its continuance was for one or for a hundred years. 
 Bac. Leas. Livery of seizin was not necessary to pass the interest 
 as it was to pass real estate. Litt. sec. 59. The lessee could not 
 sustain a real action; but when ousted was obliged, as this plaintiff 
 has been in this instance, to resort to trespass in ejectment. 3 Bl.
 
 54 REAL AND PERSONAL PROPERTY. [PT. I. CI1. II. 
 
 C. 199. Nor could a real action be maintained against him; because 
 he was not the owner of the realty and could plead non tenure. 
 Booth. His interest could be devised, though at common-law, no 
 real estate would pass by a will. Bac. Leg. B. 3; 1 Roll. A. B. 609. 
 It has always been held, too, that after the decease of the lessee, 
 the term belonged to his executors or administrators, and not to his 
 heirs. 1 Leon. 312; Gillam,Adm. v. Lovelace, 5 Ma. R. 419; Pet. of 
 Gay, Adm. 2 John. C. 376. 
 
 Under statutes creating a lien upon the real estate of a debtor 
 from the time of judgment rendered, leases for years have been 
 decided not to be embraced. 8 Co. 171; Fleetwoods Case, 1 John. 
 C. 223; Wedenbergh v. Morris, 3 Atk. 739; Bunder V.Kennedy. In 
 wills, too, as in the present case, they have always passed under the 
 expression " goods and chattels," and in some instances under that 
 of " goods " alone. Shep. Y. 97 Cro. El. 3S6; Boardman v. Willis, 
 1 D. & E. 597; Bac. Leg. B. Nor is it necessary that leases should 
 be acknowledged and attested; as deeds must be that convey " lands 
 and tenements." — Stat. 191. 
 
 But we are well aware of a common impression, that long terms 
 are " to all imaginable purposes a fee simple estate:" (13 Mass. R. 
 403), that a power " to sell land," has been held to be duly executed 
 by leasing it for 999 years: {Cilley v. Cay ford Hills, Ap. 1806); that 
 our statute of Feb. 10, 1791, (Stat. 191) requires all leases for more 
 than seven years to be recorded, and that according to Denn v. 
 Barnard (Cow. 597), an adverse possession by the lessee, under a 
 long term, might in time enable him to claim a fee. 
 
 On principle, however, it is impossible to define at what number of 
 years a lease shall become real estate. Its cnaracter cannot be 
 changed by the length of the term. Nor does our statute, or the 
 decisions last cited, appear upon examination to conflict with the 
 idea that a lease for any number of years is not, as to the lessee's 
 heirs, anything more than " personal estate." 
 
 Let judgment be entered on the verdict. 
 
 NASE v. PECK. 
 
 3 Johnson's Cases (N. Y.), 128. — 1802. 
 
 Writ of right for the recovery of lands in Dutchess county. The 
 jtuige directed the assize that if they believed the boundaries of 
 the " Great Nine Partners " patent included the premises in ques- 
 tion, they should find for the tenant, Peck, and they found a verdict 
 accordingly.
 
 II. 8.] MEANS OF VINDICATING PROPERTY RIGHTS. 55 
 
 Per Curiam. — Upon the issue in this action the mere right was 
 in question between the. parties. This principle we must not lose 
 sight of. It is clearly and firmly established, as the leading point 
 of inquiry in the writ of right. The evidence requisite to establish 
 this right is under the same rules and regulations as in other cases. 
 
 The possession of the tenant for thirty-eight years was, in the 
 first instance, evidence of this right. This presumption of right 
 was, however, repelled by the prior possession of the ancestor of the 
 demandant, and which was attended with circumstances that ren- 
 dered it very high evidence of right. It existed thirteen years prior 
 to the tenant's possession. It continued till a descent was cast in 
 favor of the demandant; it was destroyed by a possession com- 
 mencing on the part of the tenant, by abatement at least, if not by 
 disseizin. 
 
 To encounter the conclusion resulting from the demandant's proof, 
 the tenant produced the patent of the Great Nine Partners, dated 
 upwards of a century ago, not to deduce a title from it to himself, 
 but to show a title out of the demandant. 
 
 This was, however, a departure from the true question between 
 the parties, to wit, which of them had the better right. If it lay 
 with the tenant to show it, still the direction of the judge was wrong. 
 The assize might well have presumed a title in the demandant, 
 derived from the patent, since his ancestor was the occupant, and 
 apparent owner, fifty one years ago, and thirteen years prior to the 
 commencement of the tenant's tortious possession. This, at least, 
 ought to have been left to the assize for them to presume. 
 
 We are of the opinion, therefore, that the direction was wrong, 
 and that the finding of the assize was against evidence, and that a 
 new trial ought to be awarded. 
 
 Sutherland, J., in BRADSTREET v. CLARKE. 
 
 12 Wendell (N. Y.), 602, 659. — 1834. 
 
 A writ of right is the highest writ in the law, and lies not for the 
 recovery of any estate less than a fee simple. 3 Bl. Com. 193 ; Booth, 
 Real Act. 84. It regards the legal estate only, and has nothing to 
 do with mere equitable interests. Even in the possessory action of 
 ejectment the legal title always prevails; much more in this action 
 (which is brought after the ordinary possessory remedies are lost by 
 lapse of time or otherwise), in which the right of possession can be 
 established only by showing a full and absolute right of property.
 
 56 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 Our inquiry, then, is for the legal title. If the demandant never 
 acquired that, however strong and persuasive her equities maybe, or 
 may have been, she cannot succeed in this action or the former. 1 
 
 Kirkpatrick, C. J., in Den ex dem. JOHNSON v. MORRIS. 
 7 New Jersey Law, 7. — 1822. 
 
 This is an ejectment for lands in Salem. At the trial of the cause, 
 it was moved for a nonsuit by the defendant's counsel, because the 
 lessors of the plaintiff had not shown a title by deed or other con- 
 veyance, nor a possession in themselves and those under whom they 
 claimed for the term of twenty years, and the plaintiff was called 
 accordingly. 
 
 The ground of the nonsuit, as thus presented by the counsel and 
 taken by the court, is not quite so precisely stated as could have 
 been wished. From the manner in which it is expressed, it is left 
 doubtful whether it was intended to say, that the lessors of the 
 plaintiff had not shown a possession of twenty complete years, and, 
 therefore, not a sufficient one to maintain an action of ejectment, or 
 that they had not shown a possession within twenty years before 
 action brought, and, therefore, were barred by the statute. 
 
 It will be necessary, therefore, to look into the case, and see how 
 far the motion is supported in point of fact, upon either the one or 
 the other of those grounds. 
 
 But before I proceed to this, I feel myself constrained, from the 
 course which the argument at the bar has taken, rather than from 
 anything in the case itself, to make a few observations respecting 
 the action of ejectment, as it has been used in this State, from the 
 earliest settlement of the country down to this time. I say I feel 
 myself constrained to do this from the course of the argument, for 
 it has been insisted that the plaintiff in ejectment always has been, 
 and still is obliged, in order to maintain his suit, to show, what the 
 counsel call a complete, substantive, impregnable title, that is, as 
 it has been explained, a regular deduction of title, by deed from 
 Charles II. down to himself, or an exclusive and uninterrupted pos- 
 session in himself and those under whom lie claims, formerly for 
 sixty years, then for thirty, and now for twenty, according as the 
 e statutes of limitation prevailed; or, in other words, such 
 
 1 i he writ <>f righl has been abolished i" New York and is practically 
 obsolete in nearly all jurisdictions. The possessory actions are now used for 
 the trial of titles. — Ed.
 
 II. 8.] MEANS OF VINDICATING PROPERTY RIGHTS. 57 
 
 a title as might be disputed, indeed, in point of fact, but could 
 never be overcome by one superior to it. And by way of fortifying 
 this position, reference is made to former practice, in which it is said 
 such deduction was uniformly made, and always required. 
 
 Let us examine this position a little. By the common law, estates 
 of freehold in lands passed by livery of seizin only, that is, by a 
 delivery over of the actual possession. He, therefore, who was in the 
 actual possession of land, was, prima facie, the tenant of the freehold, 
 and had in him the heritable sesina facit stipitem. If he were ousted 
 or dispossessed of this freehold, by one who had no right, he might, 
 without process of law, make a peaceable entry, or, if deterred from 
 that, he might make claim from year to year, which was called con- 
 tinual claim, as near the land as he could, and such entry or claim 
 restored him to his lawful seizin, and made him capable again of 
 conveying, either by descent or purchase. This right of entry, 
 though it might be tolled or taken away by a descent cast, and so, 
 generally speaking, must be pursued during the life of him that 
 made the ouster, or be forever lost, yet it was limited to no particular 
 period or number of years; so that if it was not actually lost by 
 descent or otherwise, the lawful owner might, at all times, restore 
 himself by entering upon the wrongdoer, in a peaceable manner, and 
 turning him out; but if he suffered it to be once lost, he could no 
 longer restore himself by his own act, but must have recourse to his 
 action at law. And, indeed, even where it was not lost, as it but 
 seldom happened that the wrongdoer would tamely submit to be 
 turned out without force, the owner, if his object was to gain the actual 
 possession and enjoyment of the land, and not merely to put himself 
 in a capacity to make a lawful conveyance, was generally obliged to 
 have recourse to such action, and to call to his aid the process of 
 the law, to restore to him that right which he could not obtain by 
 peaceable means without it; so that, in most cases, it may be said 
 he was put to his action, even when his right of entry was not tolled 
 or taken away. 
 
 This action might be, in the first place, by writ of entry, in which 
 he undertook to prove his own former possession, and that the 
 defendant, or some one under whom he held, had dispossessed him; 
 to which the defendant might answer by denying the fact of the 
 dispossession, or by showing in himself an older and a better posses- 
 sion; and then, upon the trial, it was adjudged for him who had the 
 clearest right, or it might be, in the second place, after the reign of 
 Henry II. by writ of assize, which went upon the suggestion that 
 the demandant's ancestor had died in possession, and that he was 
 the next heir; and, therefore, directed the sheriff to inquire, by a
 
 58 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 jury, whether this were so, and, it found for the demandant, the land 
 was immediately restored. But still, even if the demandant prevailed 
 in these actions, it only restored to him his former possession, it 
 decided nothing with respect to the right of property; all that he 
 had to show, in order to maintain his suit, was the possession of 
 himself or his ancestor, and this might be overcome by the defendant 
 showing an older and a better possession; for it never was pretended 
 that the demandants must be such a possession as established the 
 ultimate right; for this either party might afterwards resort to his 
 writ of right. In these possessory actions, therefore, neither the 
 deed of feoffment by which the estate was created, nor the actual 
 livery of seizin upon such deed, were necessarily given in evidence, 
 but the mere possession only. And so, also, after the 29 Car. II., 
 which directed that all conveyances of land should be in writing, 
 and not otherwise, it was not necessary, upon the same principle, 
 to give the writing in evidence, and the reason was that the deed of 
 feoffment and livery of seizin thereupon, in ancient times, and the 
 written conveyance under the statute, related to, and were evidence 
 of, the commencement of the estate, and of the ultimate right only, 
 which was not at all in question; but that they could be no proof of 
 the actual and subsequent possession upon which the ouster was 
 alleged to have been committed, and which was the foundation of 
 those possessory actions, and the only thing to be proved in them, or 
 recovered by them. It is true that those might be given in evidence, 
 and might greatly strengthen the proof of possession, but they were 
 not essential to the maintenance of the action; that depended upon 
 the mere possession. 
 
 To these real actions for the recovery of the possession of lands, 
 succeeded, in common use, the action of ejectment. This was not 
 originally devised as a remedy for injuries done to real estate, that 
 is, to estates of freehold in lands, but as a remedy for injuries done 
 to chattels real, such as terms for years, which were considered as 
 mere chattel interests. But then, as one who came into a court of 
 justice to complain that he had been ousted of his term, must 
 necessarily show that such term existed, and that the lease under 
 which he claimed was a good and valid lease, and, of course, that 
 the lessor had a right to make it, the title of the lessor was thereby 
 brought into question as fully and upon the same principles as it 
 would have been in the real action; so that though the action of 
 ejectment got clear of all the intricacy and perplexity of the real 
 action, and so became an easy and expeditious method of trying the 
 title to land, yel it required precisely the same proof of title in sub- 
 stance a- the real a< tion did. For though the form of the action
 
 II. 8.j MEANS OF VINDICATING PROPERTY RIGHTS. 59 
 
 may have been changed, yet the great principles of right have not 
 been changed, nor can they be without a total subversion of the 
 whole system of property in land. In a real action, the demandant 
 must show his possession, his ouster, and his right to re-enter; in an 
 ejectment, the lessor of the plaintiff must show the very same thing; 
 — he must show that he has been in possession of the land; that it 
 is now withholden from him, which is an ouster; and that he had a 
 right to re-enter and make the lease in question. I say he must show 
 those things, for the lease, entry and ouster, which are confessed^ 
 are the mere form of the action, and having nothing to do with the 
 substantial right. The title, therefore, which lessor of the plain- 
 tiff, by the consent rule, is bound to rest upon, and which he is 
 obliged to make out at the trial, is his right of entry (for if he had 
 this right, it is always confessed that he had a right to make, and 
 did make, the lease), a right which, upon the principles of the com- 
 mon law, necessarily results from his having had an anterior and 
 peaceable possession of the lands in question, and their being now 
 withholden from him by the defendant; a right too which cannot 
 be overcome by any subsequent possession, unless it has been tolled 
 or taken away in the manner before mentioned, or is restrained by the 
 statutes of limitation. * * * 
 
 The right of the lawful owner, therefore, to enter upon the 
 wrong-doer in this extra-judicial manner, and so to restore himself 
 to his possession and make leases, etc., from the first settlement 
 of the province till the act of 1727, was wholly unlimited in point 
 of time; from that time till the act of 17S7 it was limited to 
 sixty years; after that, in some cases, to thirty years; and since 
 the act of 1798, in all cases, with the usual savings, to twenty 
 years; and as this right of entry is the foundation of the action of 
 ejectment, that action, of course, was limited in the same manner, 
 and not otherwise. But that limitation is merely a limitation of the 
 time within which the entry must be made, and by no possible con- 
 struction, a designation of the time during which the possession 
 must have continued. Can any book case be found in which, since 
 the 21 Jac. 1, a possession of twenty complete years has been holden 
 necessary to maintain an ejectment? None such can be found. One 
 comes into a court of justice and says he has been in possession of 
 lands for five, ten, or fifteen years, and that the defendant has turned 
 him out, and holds him out, shall he be told he has no redress because 
 he has not been in twenty complete years? And shall the defendant 
 be justified in withholding from him his peaceable possession, thus 
 tortiously and forcibly gained? Suppose another should enter and 
 turn him out, and another him, shall the last always hold? To what
 
 60 REAL AND PERSONAL PROPERTY. [pT. I. C1I. li. 
 
 would all this lead but a mere trial of strength, in defiance of law; 
 for it is directly in the tooth of that universally acknowledged 
 principle, that peaceable possession itself is a title which shall never 
 be disturbed but by one who has a better right, and which, there- 
 fore, the law will carefully protect until that right be shown in a 
 judicial manner. And whether that possession had lasted five years, 
 or ten years, or twenty years, the law sees no difference. Upon 
 what ground, then, is this notion of possession of twenty complete 
 years founded? Certainly the 21 Jac. 1, says no such thing — our 
 act of 1798 says no such thing; they merely limit the time of entry 
 but require no possession of twenty complete years, for this or any 
 other purpose. Well, if those statutes do not require it, what is it 
 that does require it? Is it the common law? Let us, then, lay the 
 statutes of limitation out of the question, and then let us inquire 
 what length of possession did the common law require. Does it say 
 anything about twenty years, or thirty, or fifty, or even three score 
 years? No. Time immemorial was its only limitation — time 
 whereof the memory of man runneth not to the contrary, and beyond 
 which, of course, no proof could possibly reach. But will any one 
 say, that a possession for time immemorial was necessary to support 
 an ejectment or other possessory action? No one will say so. It 
 is true that in early times it was customary, in actions of ejectment, 
 to deduce title from the general proprietors, and thereby to cut off 
 all pretensions of the defendants at once, and that this continued to 
 be the custom up till the Revolutionary War, and for some time 
 afterwards; and it is true, too, that this is done even till this day, 
 when it can conveniently be done, because it is by far the shortest 
 and safest course, for it stops the mouth of the defendant in limine. 
 But the conclusion that is drawn from this, to wit, that the ejectment 
 was put upon the same footing as the writ of right, and required the 
 same proof and had the same consequences, is not true. It never 
 was put upon the footing of the writ of right; it never was conclu- 
 sive upon the right of property; it never did necessarily require such 
 deduction of title; but, on the contrary, always depended upon, and 
 was governed by, its own proper principles; and, except in the 
 cases I have mentioned, kept within its own proper bounds. I never 
 d of a nonsuit or a decision made against the plaintiff, upon the 
 grounds that he had not made such deduction of title, except in one 
 case from Sussex, 1 think, in the Court of Errors at Perth Amboy, 
 ami in that, probably, there might have been intermingled other 
 operative reasons, not much connected with the case, and not now 
 easy to be traced. 
 
 There lias been 1 ited from one of the books, Espinasse (I think),
 
 II. S.J MEANS OF VINDICATING PROPERTY RIGHTS. 6l 
 
 a passage to this effect, that proof of possession within twenty 
 years is not only necessary to support the title of the lessor of the 
 plaintiff, but such possession for twenty years, without interruption, 
 shall be a good title in itself to recover in ejectment without any 
 other; and from this it has been argued that a possession of twenty 
 years, at least, without interruption, is necessary to maintain this 
 action. But a little attention to the author, and to these cases from 
 which he deduces his position, will show satisfactorily that this is not 
 the meaning. He means to say, and does say, that a possession 
 within twenty years is sufficient to maintain an ejectment, unless an 
 older and a better possession be shown, but that a possession for 
 twenty years, without interruption, under the 21 Jac. 1, gives a right 
 of possession, than which no better can be shown, and which cannot 
 be overcome in this action, for that the statute cuts off the right of 
 entry from the defendant as well as from the plaintiff, and, therefore, 
 if he has suffered his right to sleep for twenty years it is gone, and 
 he could have had no right to make the entry which is the com- 
 mencement of his present possession. The truth is, that all posses- 
 sory actions are founded upon a peaceable possession in the 
 demandant or plaintiff, and those under whom he claims; and such 
 possession, without regard to the length of time it may have con- 
 tinued, is sufficient to maintain such action, and can only be over- 
 come by an older or better right. 
 
 I conclude, then, that the lessor of the plaintiff, in an action of 
 ejectment, must always count upon and show a possession of the 
 land within the time to which the right of entry is limited, and under 
 our act of 1798, within twenty years next before the action brought, 
 otherwise he is barred; but that he need not show a possession of 
 twenty complete years, or of any other number of years, further 
 than is necessary to constitute a full and peaceable possession; and 
 that this being merely a possessory action and the possession to be 
 proved not being intended to establish the ultimate right, and not 
 depending for its validity upon the manner in which it commenced, 
 but being a mere matter in pais, it may be shown as well with- 
 out deed as with it, though, when without it, it will always be 
 looked upon with greater jealousy and be overcome with great 
 ease. * * * 
 
 Let the rule for a new trial be made absolute.
 
 62 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 (2.) For the Recovery of Damages for Wrongs to Property. Trespass, 
 
 Trover. Waste. 
 
 McGONIGLE v. ATCHISON. 
 
 33 Kansas, 726. — 1885. 
 
 [Reported herein at p. 65.] 
 
 BABB v. PERLEY. 
 
 1 Maine, 6. — 1820. 
 \Reported herein at p. 27.] 
 
 (3.) For the Prevention of Threatened Wrongs to Property. 
 WATSON v. HUNTER. 
 
 5 Johnson's Chancery (N. Y.), 169. — 1821. 
 
 Suit for an injunction to restrain defendants, lessees for a term__ 
 of years, from cutting down any more timber, and from removing 
 that already cut down and not sawed and that which was converted 
 into boards or plank. Plaintiff holds the fee to the land upon cer- 
 tain trusts. 
 
 The Chancellor. — Injunctions to the extent prayed for may 
 have been granted; but as I am not satisfied as to the propriety of 
 such extensive and summary interference, I have been led to look 
 into the course of the English authorities and practice on the point. 
 After timber is cut, it ceases to b e part of th e realty, and is con- 
 verted into personal property, and trover will lie for it. The ques- 
 tion is, whether this court ought to interfere, in the first instance, to 
 control the disposition of that personal property; and that, too, 
 without any special or extraordinary necessity stated for such 
 interference. 
 
 a The practice of granting injunctions, in cases of waste, is to pre- 
 ent or stay the future commission of waste; and the remedy for 
 waste already committed is merely incidental to the jurisdiction in 
 the oi her < ase, assumed to prevent multiplicity of suits, and to save 
 the party the necessity of resorting to trover at law. Thus, in the 
 of fesus College v. Bloom, 3 Atk. 262; Ami). 54, a bill was filed 
 fur an ai 1 ount and satisfaction for waste in cutting down trees, and
 
 II. 8.] MEANS OF VINDICATING PROPERTY RIGHTS. 63 
 
 no injunction was prayed for, and the tenant's estate had been 
 assigned and determined. Lord Hardwicke held that the bill was 
 improper, and would not lie merely for satisfaction for timber cut 
 down, and that an action of trover was the remedy. Where the bill 
 was for injunction to prevent waste and for waste already committed, 
 the court, to prevent a double suit, would award an injunction to 
 prevent future waste, and decree an account and satisfaction for 
 what was past. The ground for coming into chancery was to stay 
 waste, and not for satisfaction for the damages, as the commission 
 of waste was a tort and the remedy lay at law. But to prevent 
 multiplicity of suits, the court, on bills for injunction to stay waste, 
 and where waste had already been committed, would make a com- 
 plete decree, and give the injured party a satisfaction for what had 
 been done, and not put him to another action at law. The bill, in 
 that case, was consequently dismissed. In the subsequent case of 
 Smith v. Cooke, 3 Atk. 381, Lord Hardwicke observed that if the 
 estate of the lessee was determined, and he had quit, a party could 
 not come into equity merely for an account of timber cut wrong- 
 fully; but where he continued in possession, and in a condition to 
 commit more waste, the party might come into equity to stay future 
 waste, and also be entitled to an account for the waste committed. 
 So, again, in the case of Lee v. Alston, 1 Ves. Jr. 78, the same doc- 
 trine was declared by Lord Thurlow. A bill was filed by a remain- 
 derman in fee against a tenant for life, for an account of timber 
 cut, and for an injunction. The answer admitted the cutting of the 
 timber wrongfully, as charged, and an account was decreed. It 
 was observed that the plaintiff, on the discovery by the answer, 
 might have resorted to trover at law, but he was not obliged to do 
 so, and might have an account under the admission in the answer. 
 The chancellor referred to the case of Whitfield v. Bewit, 2 P. Wms. 
 240, which was a bill for an injunction to stay waste, and for an 
 account of timber cut, and in which it seemed to be held that the 
 right to the timber cut might be pursued in chancery, as well as by 
 trover at law. 
 
 The same doctrine was declared by Lord Hardwicke, in Grath v. 
 Cotton, 1 Ves. 528, and that the decree for an account of the waste 
 already committed was " an incident " to the injunction to stay 
 waste. It would seem, then, to be a stretch of ju risdiction to__apply^ 
 the injunction to this incidental re med y, and to stay the use or 
 disposition of the chatteT"This would be enlarging the substituted 
 remedy in this court much beyond the remedy at law, and if it had 
 been the established English practice, we should not have been 
 without the most clear and explicit cases in proof of it. The
 
 64 REAL AND PERSONAL PROPERTY. [PT. I. CII. II. 
 
 recovery in this court is not the timber itself, in specif, but damages 
 for the value of it; and why should the personal chattel be bound by 
 injunction in this case more than in any other case, where the 
 remedy is for a tort sounding in damages? This court will stay the 
 commission of waste, or the transfer of negotiable paper, in certain 
 cases, in order to prevent irreparable mischief; but the only mis- 
 l chief that can arise in the present case, as to the timber already cut and 
 'drawn to the mills of the defendant, is the possible inability of the 
 'party to respond in damages. That is a danger equally applicable 
 to all other ordinary demands, and it is not an impending and special 
 mischief, which will justify this extraordinary preventive remedy by 
 injunction. If the injunction could be ordinarily applied to waste, 
 already committed, I apprehend we should very rarely hear of a 
 special action on the case, in the nature of waste, in the courts of 
 common law. 
 
 In the case of The Bishop of London v. Webb, i P. Wms. 527, an 
 injunction was called for against a lessee for years, to prevent 
 digging the ground for brick, as it was destroying the field and 
 carrying away the soil. The Lord Chancellor said: "Let the 
 defendant carry off the brick he has dug, but be enjoined from 
 further digging." In Packingtati s Case, 3 Atk. 213, the bill stated, 
 that the defendant had cut down a great number of trees, and had 
 threatened to cut down and destroy them all; but the injunc- 
 tion only went to restrain him " from cutting down timber trees 
 growing." 
 
 The only case I have met with, applicable to the very point, is a 
 very loose note of an anonymous case of 1 Ves. Jr. 93, in which the 
 solicitor-general moved for an order to prevent the removal of 
 timber wrongfully cut down. In what stage of the cause, or upon 
 what state of pleadings and proofs, this motion was made, does not 
 appear. Lord Thurlow is said to have observed: " I have no doubt 
 about the interference of this court to prevent waste. The only 
 difficulty I have is as to what shall be done with the timber cut. 
 Trover might be brought for it; but, as the register says many orders 
 of this kind have been made, take the order." 
 
 Such a case is not a sufficient authority to extend the injunction 
 to the timber already cut. There must be a very special case made 
 Din to author: /.i- me to go so far, and such cases may be supposed. 
 A lease, for instam e, may have been fraudulently procured by an 
 Insolvent person, (<>v the very purpose of plundering the timber 
 under the shelter of it. Perhaps, in that and like cases, where the 
 hief would be irreparable, it might be necessary to interfere in 
 tins extraordinary way, and prevent the removal of the timber. I do
 
 II. 8.] MEANS OF VINDICATING PROPERTY RIGHTS. 65 
 
 not mean to be understood to say that the court will never inter- 
 fere, but that it ought not to be done in ordinary cases like the 
 present. I shall accordingly confine the injunction to the timber 
 standing or growing at the time of the service of the process. 
 
 Order accordingly. 
 
 b. Where the action must be brought. 
 
 McGONIGLE v. ATCHISON. 
 33 Kansas, 726. — 1885, 
 
 Valentine, J. — This case has been brought to this court upon 
 a " case-made," which is a model of brevity and clearness, and 
 reflects great credit upon the able counsel who prepared it. The 
 case has also been very ably presented to this court by counsel on 
 both sides, and if we should err in its decision, it will not be their 
 fault. The amount involved in this controversy seems to be small 
 and trifling, but the principles involved are supposed to be of vital 
 importance, and counsel for plaintiff in error, defendant below, says 
 that the decision of the case involves the possible liability for not 
 only many dollars, but many hundreds of thousands of dollars. We 
 have, therefore, given the case a very careful consideration. 
 
 The record of the case, as presented to this court, shows that on 
 October 4, 1883, David Atchison filed his petition in the District 
 Court of Leavenworth county, in which petition he alleged, among 
 other things, that he was then and had been for more than five years 
 the legal and equitable owner of a certain piece of land, describing 
 it, situated in Platte county, State of Missouri, and being on what 
 is commonly known as " Leavenworth Island; " that the defendant, 
 George McGonigle, did, on or about March 1, 1883, unlawfully and 
 wrongfully enter upon said premises and dig sand thereon, and 
 remove, take and carry away to the city of Leavenworth, and con- 
 vert and appropriate the same to his own use, to wit, 200,000 
 bushels, of the value of one cent per bushel, to the damage of the 
 plaintiff in the sum of $2,000, and prayed judgment for the sum of 
 $2,000 and costs. To this petition the defendant answered, the 
 answer being a general denial. Upon the issues as thus made, the 
 cause came on for trial before the court and a jury; whereupon 
 the defendant objected to the introduction of any testimony, upon 
 the ground that the petition did not state facts sufficient to constitute 
 a cause of action of which the District Court had jurisdiction. This 
 objection was overruled by the court, and the trial proceeded, and 
 
 LAW OF PROP. IN LAND — 5
 
 66 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 resulted in a verdict of $i for the plaintiff. The defendant moved 
 for a new trial upon the ground of error of law occurring at the trial 
 and duly excepted to, which motion was overruled, and the defend- 
 ant excepted. Judgment was then rendered in favor of the plaintiff 
 and against the defendant for $i and costs, to which judgment the 
 defendant excepted, and now brings the case to this court for 
 review. 
 
 Counsel for plaintiff in error, defendant below, states in his brief 
 that the question involved in this case is as follows: " Is this a 
 local or a transitory action? Is it trespass quare clausum f regit, or 
 trespass de bonis asporlatis? " We think the question may be more 
 properly stated as follows: Do the facts of this case show a cause 
 of action that is transitory, or one that is purely local? Or, in other 
 words, do the facts of this case show a cause of action in the nature 
 of trespass de bonis asportatis, or trover, on the one side, or trespass 
 quare clausum /regit, on the other side? If the facts show a cause 
 of action in the nature of trespass de bonis asportatis, or trover, then 
 the action is certainly transitory; but if they show only a cause of 
 action in the nature of trespass quare clausum f regit, then the action 
 is admittedly local. The distinction between transitory and local 
 actions, both at common law and under the code, is generally and 
 substantially as follows: If the cause of action is one that might 
 have arisen anywhere, then it is transitory; but if it is one that 
 could only have arisen in one place, then it is local. Hence, actions 
 for injuries to real estate are generally local, and can be brought 
 only where the real estate is situated; while actions for injuries to 
 persons or to personal property, or relating thereto, are generally 
 transitory, and may be brought in any county where the wrongdoer 
 may be found. These propositions, we suppose, are conceded. But 
 the real contention between the parties to this action is, whether 
 the real and substantial grievance set forth by the plaintiff as the 
 foundation for his action is one which relates merely to real estate, 
 or one which may be considered as fairly relating to personal prop- 
 erty. The petition states wrongs relating both to real estate and to 
 personal property. It states that the defendant unlawfully and 
 wrongfully entered upon the plaintiff's premises, in Missouri, and 
 dug sand thereon. This, of course, was a wrong relating to real 
 estate only; but the petition also states that after the sand was 
 severed from the real estate the defendant then removed the same 
 to Leavenworth city, Kansas, and there converted and appropriated 
 the same to his own use; and these last-mentioned wrongs certainly 
 relate to personal property only; for as soon as the sand was severed 
 from the real estate it became personal property.
 
 II. 8.] MEANS OF VINDICATING PROPERTY RIGHTS. 67 
 
 This principle, of things becoming personal property when severed 
 from the realty, is universally recognized by all courts and by all 
 law-writers. Besides, the plaintiff in this case, after alleging the 
 above-mentioned wrongs, then asks for damages only for the wrong- 
 ful conversion of the sand, which was personal property, and does 
 not ask for damages for injuries done to his real estate. He seems 
 to waive all the wrongs and injuries done with reference to his real 
 estate and to his possession thereof, provided the digging and the 
 removal of the sand was any injury to either, and sues only for the 
 value of the sand which was converted. We think it is true, as is 
 claimed by the defendant, that the petition states facts sufficient to 
 constitute a cause of action in the nature of trespass quare clausum 
 /regit; but it also states facts sufficient to constitute a cause of 
 action in the nature of trespass de bonis asportatis and of trover; and 
 we think the plaintiff may recover upon either of these latter causes 
 of action, for they are unquestionably transitory; although it must 
 be conceded that he cannot recover upon the former cause of action, 
 for it is admittedly local in its character, and because the plaintiff 
 has brought his action in a jurisdiction foreign to the one where this 
 local cause of action arose. But as the plaintiff asks no relief per- 
 taining specially to the local cause of action, but only such as may 
 be given upon the facts of the transitory cause of action, we think 
 he may recover. 
 
 All the old forms of action are abolished in Kansas. We now have 
 no action of trespass quare clausum f regit, nor of trespass de bonis 
 asportatis, nor of trover; but only one form of action, called a civil 
 action. (Civil Code, sec. 10.) And under such form of action all 
 civil actions must be prosecuted; and all that is necessary in order 
 to state a good cause of action under this form is to state the facts 
 of the case in ordinary and concise language, without repetition. 
 (Civil Code, sec. 87.) And when the plaintiff has stated the facts 
 of his case, he will be entitled to recover thereon just what such 
 fact will authorize. Fitzpatrick v. Geb/iart, 7 Kans. 42, 43; Kunz 
 v. Ward, 28 Id. 132. We now look to the substance of things, and 
 not merely to forms and fictions. If the facts stated by the plain- 
 tiff would authorize a recovery under any of the old forms of action, 
 he will still be entitled to recover, provided he proves the facts. 
 If the facts stated would authorize one or two or more kinds 
 of relief, he may then elect as to which kind of relief he will obtain; 
 and the prayer of his petition will generally indicate his election. 
 And if one kind of relief is beyond the jurisdiction of the court, and 
 the other within such jurisdiction, the plaintiff may elect to receive 
 that kind of relief which is within the jurisdiction of the court.
 
 68 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 We think the plaintiff may maintain his present action as an action 
 in the nature of trespass de bonis asportatis, or trover When the 
 sand was severed from the real estate it became personal property, 
 but the title to the same was not changed or transferred. It still 
 remained in the plaintiff. He still owned the sand, and had the 
 right to follow it and reclaim it, in to whatever jurisdiction it might 
 be taken. He could recover it in an'action of replevin, Richardson 
 v. York, 14 Me. 216; Harlan v. Harlan, 15 Pa. St. 507; Halleck v. 
 Mixer, 16 Cal. 574. Or he could maintain an action in the nature 
 of trespass de bonis asportatis, for damages for its unlawful removal, 
 Wadleigh v. Janvrin, 41 N. H. 503, 520; Bulkley v. Dolbeare, 7 Conn. 
 232; or he could maintain an action in the nature of trover for dam- 
 ages for its conversion, if it were in fact converted, Tyson v. 
 McGuineas, 25 Wis. 656; Whidden v. Seelye, 40 Me. 247, 255, 256; 
 Riley v. Boston W. P. Co., 65 Mass. 11; Nelson v. Burt, 15 Mass. 
 204; Forsythv. Wells, 41 Pa St. 291; Wright v. Guier, 9 Watts, 172; 
 Mooers v. Wait, 3 Wend. 104; or he could maintain an action in the 
 nature of assumpsit, for damages for money had and received, if the 
 trespasser sold the property and received money therefor, Powell v. 
 Rees, 7 Ad. & L. 426; Whidden v. Seelye, 40 Me. 255; Halleck v. 
 Mixer, 16 Cal. 574; see also in this connection the case of Fanson 
 v. Linsley, 20 Kans. 235. 
 
 In all cases of wrong, the tort or a portion thereof may be waived 
 by the party injured, and he may recover on the remaining portion 
 of the tort or on an implied contract, provided the remaining facts 
 will authorize such a recovery. Mr. Waterman, in his work on Tres- 
 pass, uses the following language: 
 
 " Section 1102. Although as standing trees are part of the inheri- 
 tance and the severing them from it is deemed an injury to the 
 freehold, for which trespass quare clausum f regit \% the appropriate 
 remedy, yet the party may waive that ground of recovery, and claim 
 the value of the timber only thus severed and carried awaj\ In the 
 one case, the entering and breaking of the close is the gist of the 
 action; in the other, the taking and carrying away of the property. 
 In the latter case, the action is transitory, and not local." See also 
 Nelson v. Burt, 15 Mass. 204; Halleck v. Mixer, 16 Cal. 574. 
 
 The plaintiff in error, defendant below, has cited a large number 
 of authorities, but under our code of practice and procedure they 
 hardly apply to the facts of this case. Those nearest applicable are 
 the following: Am. Un. Tel. Co. v. Middleton, 80 N. Y. 408; Frost 
 v. Duncan, 19 Barb. 560; Howe v. Wilson, 1 Denio, 181; Sturgis v. 
 Warren, 11 Vt. 433; Baker v. Howell, 6 Serg. & R. 476; Powell v. 
 Smith, 2 Watts, 126; Uttendorjfer v. Saegers, 50 Cal. 496. The case
 
 II. 8.] MEANS OF VINDICATING PROPERTY RIGHTS. 69 
 
 of The Telegraph Company v. Middleton, supra, was where the defend- 
 ant committed a trespass by cutting down telegraph poles in a high- 
 way, and throwing them in the ditches and on the fences on the 
 sides of the highway, and leaving them there. There was no aspor- 
 tation from the premises, no conversion, and no intended asportation 
 or conversion; and the court held that the action was, therefore, 
 trespass quare clausum f regit, and not trover, and that the action 
 was, therefore, local in its character and not transitory. The case 
 of Frost v. Duncan, supra, was not decided by a court of last resort; 
 and the main question decided was that two causes of action were 
 improperly joined in one count. Besides, in that case the defend- 
 ants were in the actual possession of the land, claiming the same as 
 their own under a deed. The next four cases were not decided 
 under any reformed code of procedure, and we do not think that 
 the seventh and last case cited conflicts with the views that we have 
 expressed. The fact that the question of title to real estate was 
 incidentally raised in this case makes no difference. See the cases 
 heretofore cited, and especially Harlcn v. Harlen, 15 Pa. St. 507; 
 Halleck v. Mixer, 16 Cal. 574. The plaintiff was in possession, 
 claiming to own the property, while the defendant was a mere wrong- 
 doer, with no claim of interest in the land. 
 
 We have so far considered this case as though it made no differ- 
 ence whether the sand was severed from the real estate and carried 
 away by one act only, or by two or more; nor do we think that it 
 can make any difference. Under any circumstances, the sand 
 remains the property of the owner of the land until he chooses to 
 abandon the same. We suppose that if the sand were severed from 
 the real estate by one act, and then carried away by another, this 
 proposition would not be questioned, and probably it will not be 
 questioned even if the sand was severed and carried away by a single 
 act; and if the sand remains the property of the owner of the real 
 estate, as we think it does, there can be no good reason why he 
 should not be entitled to all the remedies for its recovery, or for 
 loss or damages for its injury, or detention or conversion, which he 
 might have with respect to any other personal property. 
 
 The judgment of the court below will be affirmed.
 
 yo REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 III. Interests in things the subject of property may change from real 
 to personal, and vice versa. 
 
 i. In View of a Court of Law. 
 
 McGONIGLE v. ATCHISON. 
 
 33 Kansas, 726. — 1885. 
 
 [Reported herein at p. 65.] 
 
 RICKETTS v. DORREL. 
 
 55 Indiana, 470. — 1876. 
 [Reported herein at p. 5 1.] 
 
 2. In View of a Court of Equity. 
 MARCH v. BERRIER. 
 
 6 Iredell's Equity (N. C), 524. — 1850. 
 
 Sarah Ann Wilson, an infant, inherited several tracts of land 
 from her father. By due process of law one tract was sold for the 
 purpose of procuring money to pay decedent's debts; the surplus 
 of the proceeds of the sale was paid to defendant, Perry, as guardian 
 of the infant. Sarah Ann died intestate, while still an infant, leav- 
 ing no issue, parent, brother or sister, but leaving a grandmother, 
 who is her next of kin, and certain paternal uncles and aunts who are 
 her heirs-at-law. The heirs-at-law bring this bill against the guardian 
 and against Berrier, the grandmother's husband, who claims the 
 fund as personalty, in right of his wife. 
 
 Ruffin, C. J. — When a court of equity orders a sale of the real 
 estate of an infant, in order to raise money for a particular purpose, 
 it would not, upon its own principles and independent of any pro- 
 vision by statute, allow its decree to affect the right of succession to 
 a surplus remaining after answering that purpose. The money 
 Stands for tin: land, of which it was the proceeds. That principle, 
 however, has been rendered yet more obligatory by the legislative 
 i [MM in the arts of 1 S r 2 , 1818, and 1S27. Rev. Stat. ch. 54, sees. 
 26, 27, and ch. 85, sees. 7, 8. Accordingly, it has been held that, 
 when the owner died without having capacity to dispose of the fund,
 
 III. 2.] CHANGE FROM REAL TO PERSONAL AND REVERSE. yi 
 
 it was to be regarded as land, in respect to the right of succession. 
 Scull v. Jernigan, 2 Dev. & Bat. Eq. 144; Gillespie v. Foy, 5 Ired. 
 Eq. 280. Those cases show also, that the receipt of the money by 
 the infant's guardian makes no difference. The acts of that person, 
 or the dealings between him and the infant's administrator, cannot 
 change the equitable nature of the fund, so as to disturb the rights 
 of the heir-at-law. The interest, indeed, which accrued during the 
 infant's life, is personalty, as the profits of the land during that 
 period would have been. But the capital and the interest thereon 
 since her death belong to the heirs-at-law. 
 
 Decree accordingly. 
 
 CRAIG v. LESLIE. 
 
 3 Wheaton (U. S.), 563. — 1818. 
 
 Mr. Justice Washington delivered the opinion of Court. — The 
 incapacity of an alien to take, and to hold beneficially, a legal or 
 equitable estate in real property, is not disputed by the counsel for 
 the plaintiff; and it is admitted by the counsel for the State of 
 Virginia, that this incapacity does not extend to personal estate. 
 The only inquiry, then, which this court has to make is whether the 
 above clause in the will of Robert Craig is to be construed, under 
 all the circumstances of this case as a bequest to Thomas Craig of 
 personal property, or as a devise of the land itself? 
 
 Were this a new question, it would seem extremely difficult to 
 raise a doubt respecting it. The common sense of mankind would 
 determine, that a devise of money, the proceeds of land directed to 
 be sold, is a devise of money, notwithstanding it is to arise out of 
 land; and that a devise of land, which a testator by his will directs 
 to be purchased, will pass an interest in the land itself, without 
 regard to the character of the fund out of which the purchase is to 
 be made. 
 
 The settled doctrine of the courts of equity correspond with this 
 obvious construction of wills, as well as of other instruments, 
 whereby land is directed to be turned into money, or money into 
 land, for the benefit of those for whose use the conversion is 
 intended to be made. In the case of Fletcher v. Ashburner, 1 Bro. 
 Ch. Cas. 497, the master of the rolls says, that " nothing is better 
 established than this principle, that money directed to be employed 
 in the purchase of land, and land directed to be sold and turned into 
 money, are to be considered as that species of property into which
 
 72 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 they are directed to be converted, and this, in whatever manner the 
 direction is given." He adds, " the owner of the fund, or the con- 
 tracting parties, may make land money, or money land. The cases 
 establish this rule universally." This declaration is well warranted 
 by the cases to which the master of the rolls refers, as well as by 
 many others. See Dougherty v. Bull, 2 P. Wms. 320; Yeates v. 
 Compton, Id. 358; Trelawney v. Booth, 2 Atk. 307. 
 
 The principle upon which the whole of this doctrine is founded is, 
 that a court of equity, regarding the substance, and not the mere 
 forms and circumstances of agreements and other instruments, con- 
 sider things directed or agreed to be done as having been actually 
 performed, where nothing has intervened which ought to prevent a 
 performance. This qualification of the more concise and general 
 rule, that equity considers that to be done which is agreed to be 
 done, will comprehend the cases which come under this head of 
 equity. 
 
 Thus, where the whole beneficial interest in the money in the one 
 case, or in the land in the other, belongs to the person for whose 
 use it is given, a court of equity will not compel the trustee to exe- 
 cute the trust against the wishes of the cestui que trust, but will per- 
 mit him to take the money or the land, if he elect to do so before 
 the conversion has actually been made; and this election he may 
 make, as well by acts or declarations clearly indicating a determina- 
 tion to that effect, as by application to a court of equity. It is this 
 election, and not the mere right to make it, which changes the 
 character of the estate so as to make it real or personal, at the will 
 of the party entitled to the beneficial interest. 
 
 If this election be not made in time to stamp the property with a 
 character different from that which the will or other instrument gives 
 it, the latter accompanies it, with all its legal consequences, into 
 the hands of those entitled to it in that character. So that in case 
 of the death of the cestui que trust, without having determined his 
 election, the property will pass to his heirs or personal representa- 
 tives, in the same manner as it would have done had the trust been 
 executed, and the conversion actually made in his lifetime. 
 
 In the case of Kirkman v. Mills, 13 Ves., which was a devise of 
 real estate to trustees upon trust to sell, and the moneys arising, 
 as well as the rents and profits till the sale, to be equally divided 
 between the testator's three daughters, A., B. and C. The estate 
 . upon the death of A., B. and C, considered and treated as 
 personal property, notwithstanding the cestui que trusts, after the 
 death of the testator, had entered upon, ami occupied the land for 
 about two years prior to their deaths; but no steps had been taken
 
 III. 2.] CHANGE FROM REAL TO PERSONAL AND REVERSE. 73 
 
 by them, or by the trustees, to sell, nor had any requisition to that 
 effect been made by the former to the latter. The master of the 
 rolls was of opinion, that the occupation of the land for two years 
 was too short to presume an election. He adds, " the opinion of 
 Lord Rosslyn, that property was to be taken as it happened to be 
 at the death of the party from whom the representative claims, had 
 been much doubted by Lord Eldon, who held that without some 
 act, it must be considered as being in the state in which it ought 
 to be; and that Lord Rosslyn's rule was new, and not according to 
 the prior cases. 
 
 The same doctrine is laid down and maintained in the case of 
 Edwards v. The Countess of Warwick, 2 P. Wms. 171, which was a 
 covenant on marriage to invest ^10,000, part of the lady's fortune, 
 in the purchase of land in fee, to be settled on the husband for life, 
 remainder to his first and every other son in tail male, remainder 
 to the husband in fee. The only son of his marriage having died 
 without issue, and intestate, and the investment of the money not 
 having been made during his life, the chancellor decided that the 
 money passed to the heir-at-law; that it was in the election of the 
 son to have made this money, or to have disposed of it as such, and 
 that, therefore, even his parol disposition of it would have been 
 regarded; but that something to determine the election must be 
 done. 
 
 This doctrine, so well established by the cases which have been 
 referred to, and by many others which it is unnecessary to mention, 
 seems to be conclusive upon the question which this court is called 
 upon to decide, and would render any further investigation of it 
 useless, were it not tor the case of Roper v. Radcliff, which was cited, 
 and mainly relied upon by the counsel for the State of Virginia. 
 [ The discussion of this case is omitted. The court disapprove of it and 
 decide further that it is not an authority in point. ] 
 
 As to the idea that the character of the estate is affected by this 
 right of election, whether the right be claimed or not, it appears to 
 be as repugnant to reason, as we think it has been shown to be, to 
 principle and authorities. Before anything can be made of the 
 proposition, it should be shown that this right or privilege of election 
 is so indissolubly united with the devise as to consitute a part of it, 
 and that it may be exercised in all cases, and under all circum- 
 stances. This was, indeed, contended for with great ingenuity and 
 abilities by the counsel for the State of Virginia, but it was not 
 proved to the satisfaction of the court. 
 
 It certainly is not true that equity will extend this privilege in 
 all cases to the cestui que trust. It will be refused if he be an infant.
 
 74 REAL AND PERSONAL PROPERTY. [PT. I. CH. II. 
 
 In the case of Seeley v. /ago, i P. Wms. 389, where money was 
 devised to be laid out in land in fee, to be settled on A., B. and C, 
 and their heirs, equally to be divided: on the death of A., his 
 infant heir, together with B. and C, filed their bill claiming to have 
 the money, which was decreed accordingly as to B. and C. ; but the 
 share of the infant was ordered to be put out for his benefit, and 
 the reason assigned was, that he was incapable of making an election, 
 and that such election, if permitted, would, in case of his death, be 
 prejudicial to his heir. 
 
 In the case of Foon v. Bloant, Cowp, 467, Lord Mansfield, who is 
 compelled to acknowledge the authority of Roper v. Radcliffe in 
 parallel cases, combats the reasoning of Chief Justice Parker upon 
 this doctrine of election, with irresistible force. He suggests, as 
 the true answer to it, that though in a variety of cases this right 
 exists, yet it was inapplicable to the case of a person who was dis- 
 abled by law from taking land, and that, therefore, a court of equity 
 would, in such a case, decree that he should take the property as 
 money. 
 
 The case of Walker v. Denne, 2 Ves. Jr. 170, seems to apply with 
 great force to this part of our subject. The testator directed money 
 to be laid out in lands, tenements, and hereditaments, or on long 
 terms, with limitations applicable to real estate. The money not 
 having been laid out, the crown, on failure of heirs, claimed the 
 money as land. It was decided that the crown had no equity against 
 the next of kin to have the money laid out in real estate in order 
 to claim it by escheat. It was added, that the devisees, on becom- 
 ing absolutely entitled, have the option given by the will; and a 
 deed of appointment by one of the cestui que trusts, though a. feme 
 covert, was held a sufficient indication of her intention that it should 
 continue personal against her heir, claiming it as ineffectually dis- 
 posed of for want of her examination. This case is peculiarly strong, 
 from the circumstance that the election is embodied in the devise 
 itself; but this was not enough, because the crown had no equity to 
 force an election to be made for the purpose of producing an escheat. 
 
 Equity would surely proceed contrary to its regular course, and 
 the principles which universally govern it, to allow the right of 
 election where it is desired, and can be lawfully made, and yet refuse 
 decree the money upon the application of the alien, upon no 
 other reason, but because, by law, he is incapable to hold the land: 
 \w short, to consider him in the same situation as if he had made an 
 'ion, which would have been refused had he asked for a con- 
 veyani e. The more just and correct rule would seem to be, that 
 where the cestui que trust is incapable to take or to hold the land
 
 III. 2.] CHANGE FROM REAL TO PERSONAL AND REVERSE. 75 
 
 beneficially, the right of election does not exist, and, consequently, 
 that the property is to be considered as being of that species into 
 which it is directed to be converted. [Some further discussion of 
 Roper v. Radcliff is omitted here. ,] 
 
 Now, what is the situation of an alien? He can not only take an 
 interest in land, but a freehold interest in the land itself, and may 
 hold it against all the world but the king, and even against him until 
 office found, and he is not accountable for the rents and profits pre- 
 viously received. Vide Jackson ex dem. State of New York v. Clarke, 
 3 Wheat. 12, n. c. In this case the will being valid, and the alien 
 capable of taking under it, there can be no resulting trust to the 
 heir, and the claim of the State is founded solely upon a supposed 
 equity, to have the land by escheat, as if the alien had, or could, 
 upon the principles of a court of equity, have elected to take the 
 land instead of the money. * * * 
 
 Upon the whole, we are unanimously of opinion that the legacy 
 given to Thomas Craig, in the will of Robert Craig, is to be con- 
 sidered as a bequest of personal estate, which he is capable of taking 
 for his own benefit. 
 
 Certificate accordingly.
 
 CHAPTER III. 
 Corporeal and Incorporeal Property in Land. 
 
 HUFF v. McCAULEY. 
 
 53 Pennsylvania State 206. — 18S6. 
 
 Strong, J. — In the court below the defendants relied for their 
 defense upon an arrangement alleged by them to have been made 
 between the plaintiff, McCauley, and George Huff, by which the 
 latter was authorized to take as much coal from McCauley's land as 
 he wanted for the use of his salt-works, and to take it as long as he 
 wished, in consideration of his agreement that McCauley might use 
 his drift and scaffold to take out coal for himself. Under the 
 instructions given to the jury, they must have found either that no 
 such arrangement had been made, or, that if it had, Huff had made 
 no expenditure upon the faith of it. To which of these conclusions 
 they came it is impossible to tell. If there had been no such arrange- 
 ments made, what the court declared would have been its legal effect, 
 if made, is of no importance. The jury may, however, have found 
 that the parties had entered into such mutual agreements; but that 
 Huff had made no expenditure of money in reliance upon them, and 
 hence that he was not in a condition to set up an estoppel in pais 
 against the plaintiff. It becomes necessary, therefore, to consider, 
 whether the defendants were injured by the instruction given to 
 the jury, respecting the rights of the parties to such an arrangement. 
 It was a case of verbal agreement, and the charge of the court was, 
 in effect, that if made, it was a revocable license and no more. In 
 tins it is insisted there was error, and it is argued that there having 
 been a consideration given for the privilege accorded to Huff, in the 
 allowance to McCauley to use Huff's drift and scaffold, that which 
 otherwise might have been only a license became an irrevocable 
 contract. Jt is manifest that if Huff took anything under the agree- 
 ment, it must have been a license, or an easement, or an interest in 
 land, or an incorporeal right arising out of it. It is observable that 
 the 1 ase is unlike that class in which it has been held by the courts 
 of this State, that a lii ense to do something on the licensor's land, 
 when followed by the expenditure of money on the faith of it, is 
 
 [76]
 
 CHAP. III.] CORPOREAL AND INCORPOREAL PROPERTY. JJ 
 
 irrevocable, and is to be treated as a binding contract. Of this 
 class Lefevre v. Lefevre, 4 S. & R. 241, is the leading case. It was 
 followed by Rerick v. Kern, 14 S. & R. 267; by Swartz v. Swartz, 4 
 Barr. 353; by Ebner v. Stichter, 7 Harris, 19, and perhaps by others. 
 All these decisions rest upon the principle of estoppel. The parties 
 cannot be placed in statu quo after the license has been executed, 
 and work done, or money expended on the faith of it, and hence 
 such a case is regarded as presenting a sufficient reason for a chan- 
 cellor's interference to restrain any action of the licensor which 
 would deprive the licensee of the benefit of the expenditure he was 
 encouraged to make by the very party who seeks to make it fruit- 
 less. Equity treats the license thus executed as a contract giving 
 absolute rights, and protects the licensee in the enjoyment of them- 
 In doing so, however, the courts of this State have gone beyond the 
 common law, and beyond the rulings of courts of equity elsewhere. 
 But where there has not been expenditure on the faith of a license, 
 as in the present case, there is no foundation for an estoppel, and 
 the same reason does not exist for holding it irrevocable. Even if- 
 there has been a consideration paid, there is nothing in the way of 
 restoring the parties to their original condition. No case in this 
 State has gone to the length of ruling, that it is converted into a 
 contract giving irrevocable interests in or out of lands, by the mere 
 fact that a consideration was agreed to be paid or allowed for it. 
 Such was not either of the cases that have been cited. In all of 
 them something had been done in reliance upon the license, and it 
 was impossible to restore the licensees to the position they occupied 
 before the licence was given. Revocation, therefore, would have 
 been a fraud. 
 
 We do not propose, however, to decide that the arrangement 
 alleged to have been made between the plaintiff and George Huff, if 
 made at all, was a revocable license. As already said, it was that, 
 or the creation of an easement in lands, or the assurance of an interest 
 either in or out of lands. If it was a revocable license, the instruc- 
 tion given by the court to the jury was confessedly right. If it was 
 a contract, it was in parol, and the defendants could not defend 
 under it. In neither aspect of the case have they been injured by 
 the charge of the court. Let it be assumed that it was what they 
 claim it to have been, it was still an attempted parol grant of a right 
 or an easement upon the plaintiff's land. The right which it pur- 
 ported to give was a right of " profit a prendre," the privilege of 
 taking minerals from the plaintiff's land for the defendants' salt 
 works. Perhaps it was not technically an easement; if not, it was 
 more. Some modern decisions have called it an easement, though
 
 78 CORPOREAL AND INCORPOREAL PROPERTY. [PART I. 
 
 it was a privilege on another's land with a profit. In Pttger v. 
 Parker, 8 Cush. 145, the Supreme Court of Massachusetts defined 
 an easement or servitude to be " a right which one proprietor has 
 to some profit, benefit or lawful use out of or over the estate of 
 another proprietor." And in Post v. Pearsall, 22 Wend. 425, Chan- 
 cellor Walworth, in speaking of rights of profit a prendre, said, that 
 " such easements are either personal and confined to an individual 
 for life merely, or are claimed in reference to an estate or interest in 
 other lands, as the dominant tenement for a. profit a prendre in the 
 land of another, when not granted in favor of some dominant tene- 
 ment, cannot properly be said to be an easement but an interest or 
 estate in the land itself." 
 
 In Doe v. Wood, 2 B. & Aid. 724, a grant of a right to search for 
 metals in another's land, and to raise and dispose of the same when 
 found, was called " an incorporeal privilege." It matters not, how- 
 ever, whether the right claimed by the defendants be an easement 
 or an incorporeal privilege in the land. It is incorporeal, as all 
 easements and profits a prendre are. Whether one or the other, it is 
 incapable of creation in any other way than by grant or prescription. 
 It is well settled that an easement cannot exist in parol. Professor 
 Washburne has collected a large number of cases to that effect in 
 his work on Easements, page 18, note. It is equally true that an 
 interest in land or arising out of it, whether corporeal or incorporeal, 
 must be in grant. It can pass only by deed. The Statute of Frauds 
 is applicable to all such interests, and with especial reason when 
 they are incorporeal. Its language is very comprehensive. It applies 
 to all estates, interests of freehold, or terms of years (excepting 
 leases not exceeding three years), or any uncertain interest of, in or 
 out of any messuages, manors, lands, etc., without regard to any 
 consideration that may have passed. In Yeakle v. Jacob et a/., 9 
 Casey, 376, a right to cut timber on a tract of land to make rails for 
 the repair of fences on another's tract, was held to be an interest 
 in land within the Statute of Frauds. The agreement in that case 
 having been by parol, it was said to be nothing but a license at will, 
 though there was a consideration for it. It was not an agreement 
 made with a view to immediate severance, and not, therefore, a 
 mere sale of growing timber. There is no distinction to be made 
 between that case and this, founded in the fact that it was a per- 
 petual right. All easements and profits <) prendre may be held for lift- 
 in fee, or for years, and the right was no more perpetual in that case 
 than it is in this. All agreements for the sale of growing timber, 
 not made with a view to immediate severance, are contracts for the
 
 CHAP. III.] CORPOREAL AND INCORPOREAL PROPERTY. 79 
 
 sale of interests in land, and therefore within the statute. Addison 
 on Cont. 31; Crosby v. Wadsworth, 6 East, 610. 
 
 Without prosecuting the subject further, enough has been said to 
 show that the defendants have no protection in the agreement they 
 set up. 
 
 It is clear, therefore, that no error was committed in the court 
 below of which they can complain. 
 
 Judgment affirmed. 1 
 
 1 The rents reserved in Ingersoll v. Sergeant and Van Rensselaer v. Hays, pp. 
 81 and 86, infra, are incorporeal heieditaments. See in particular p. 84. — Ed.
 
 CHAPTER IV. 
 
 Absolute and Special or Limited Property in Land. 
 
 GOODWIN v. GOODWIN. 
 
 33 Connecticut, 314. — 1866. 
 [Reported herein at p. 8.] 
 
 EATON v. BOSTON, CONCORD AND MONTREAL 
 RAILROAD. 
 
 51 New Hampshire, 504. — 1872. 
 
 [Reported herein at p. I.] 
 
 [So]
 
 CHAPTER V. 
 
 Allodial and Feudal Property in Land. 
 
 VAN RENSSELAER v. HAYS,, 
 
 
 19 New York, 68. — 1859. 
 
 Action to recover rent in arrear. Plaintiff is a devisee of Stephen 
 Van Rensselaer, deceased. Further facts appear in opinion. 
 
 Denio, J. — The defendant's position is, that the covenant for the 
 payment of the rent is, in law, personal between the grantor and 
 grantee, or what is sometimes called in the books a covenant in 
 gross, and, consequently, that after the death of the original parties 
 no action to recover rent can be maintained in favor of or against \ 
 any persons except their respective executors or administrators. As 
 the law contemplates that the estates of deceased persons shall be 
 speedily settled, and in the natural course of things the personal 
 representatives of a man disappear with the generation to which 
 they belong, the intention of the parties to the indenture to create 
 a perpetual rent issuing out of the premises will, if that position-^ 
 can be maintained, be entirely disappointed; and the argument is^ 
 in effect, that the law does not permit arrangements by which a rent 
 shall be reserved upon a conveyance in fee, and that where it is 
 attempted the reservation does not affect the title to the land, but 
 the conveyance is absolute and unconditional. The design of the 
 parties to create relations which should survive them, and continue 
 to exist in perpetuity by being annexed to the ownership of the 
 estate of the grantee of the land on the one hand, and of the rent 
 on the other, is manifest from the language of the instrument. 
 They were careful to declare that the obligation to pay the rent 
 should attach to those who should succeed the grantee as his heirs 
 and assigns, and should run in favor of the heirs and assigns of the 
 grantor; and the nature of a perpetually recurring payment requires 
 that there should be an endless succession of parties to receive and 
 to pay it. We have a legislative declaration, in an act of 1805, 
 passed about ten years after this conveyance, that grants in fee 
 reserving rents had then long been in use in this State (ch. 98); and 
 the design of the Legislature by that enactment was not only to 
 
 LAW OF PROP. IN LAND — 6 [8l]
 
 82 
 
 ALLODIAL AND FEUDAL PROPERTY IN LAND. [PART I. 
 
 render such grants thereafter available according to their intention, 
 but to resolve, in favor of such transactions, the doubts which it is 
 recited had been entertained respecting their validity. Still, if, by 
 a stubborn principle of law, a burden in the form of an annual pay- 
 ment cannot be attached to the ownership of land held in fee simple, 
 or if the right to enforce such payment cannot be made transferable 
 by the party in whom it is vested, effect must be given to the rule, 
 though it may have been unknown to the parties and to the Legisla- 
 ture; unless, indeed, the interposition of the latter, by the statute 
 which has been mentioned, can lawfully operate retrospectively 
 upon the conveyance under consideration. It is not denied but that, 
 by the early common law of England, conveyances in all respects 
 like the present would have created the precise rights and obliga- 
 tions claimed by the plaintiff; but it is insisted that the act respect- 
 ing tenures, called the statute of quia emptores, enacted in the 
 eighteenth year of King Edward I., and which has been adopted in 
 this country, rendered such transaction no longer possible. The 
 principles of that statute have, in my opinion, always been the law 
 of this country, as well during its colonial condition as after it became 
 an independent State. A little attention to the pre-existing state 
 of the law will show that this must necessarily have been so. In the 
 early vigor of the feudal system, a tenant in fee could not alienate 
 the feud without the consent of his immediate superior; but this 
 extreme rigor was soon afterwards relaxed, and it was also avoided 
 by the practice of subinfeudation, which consisted in the tenant 
 enfeoffing another to hold of himself by fealty and such services as 
 might be reserved by the act of feoffment. Thus a new tenure was 
 created upon every alienation, and thence there arose a series of 
 lords of the same lands, the first, called the chief lords, holding 
 immediately of the sovereign; the next grade holding of them; and 
 so on, each alienation creating another lord and another tenant. 
 This practice was considered detrimental to the great lords, as it 
 deprived them, to a certain extent, of the fruits of the tenure, such 
 as escheats, marriages, wardships, and the like, which, when due 
 from the terre-tenants, accrued to the next immediate superior. 
 This was attempted to be remedied by the 32d chapter of the Great 
 Charter of Henry III. (A. D. 1225), which declared that no freeman 
 should thenceforth give or sell any more of his land, but so that of 
 the residue of the lands the lord of the fee might have the service 
 due to him which belonged to the fee. 1 Ruffhead's Statutes at 
 Large, 8. The next important change was the statute of quia 
 emptores y enacted in [290 , which, after reciting that " forasmuch as 
 purchasers of lands and tenements {quia emptores terrarum et tene~
 
 CHAP. V.] ALLODIAL AND FEUDAL PROPERTY IN LAND. 83 
 
 mentorum), of the fees of great men and other lords had many times 
 entered into their fees to the prejudice of the lords,"' to be holden 
 of the feoffors and not of the chief lords, by means of which these 
 chief lords many times lost their escheats, etc., " Which things 
 seemed very hard and extreme unto these lords and other great 
 men," etc., enacted that from henceforth it should be lawful for\ ,. 
 every freeman to sell at his own pleasure his lands and tenements, . 
 or part of them, so that the feoffee should hold the same lands and], 
 tenements of the chief lord of the same fee by such services andj rj 
 customs as his feoffor held before. Id. 122. The effect of this 
 important enactment was, that henceforth no new tenure of lands 
 which had already been granted by the sovereign could be created. 
 Every subsequent alienation placed the feoffee in the same feudal 
 relation which his feoffer before occupied; that is, he held of the 
 same superior lord by the same services, and not of his feoffor. The 
 system of tenures then existing was left untouched, but the progress 
 of expansion under the practice of subinfeudation was arrested. 
 Our ancestors, in emigrating to this country, brought with them 
 such parts of the common law and such of the English statutes as 
 were of a general nature and applicable to their situation; 1 Kent, 
 473, and cases cited in note a to the 5th ed. ; Bogardus v. Trinity 
 Church,^ Paige, 178; and when the first constitution of this State 
 came to be framed, all such parts of the common law of England 
 and of Great Britain and of the acts of the Colonial Legislature as 
 together formed the law of the Colony at the breaking out of the 
 Revolution, were declared to be the law of this State, subject, of 
 course, to alteration by the Legislature. Art. 35. The law as to 
 holding lands and of transmitting the title thereto from one subject 
 to another must have been a matter of the first importance in our 
 colonial state; and there can be no doubt but that the great body 
 of the English law upon that subject, so far as it regarded the trans- 
 actions of private individuals, immediately became the law of the 
 Colony, subject to such changes as were introduced by colonial legis- : , p- ' 
 lation. The lands were holden under grants from the crown, and 
 as the king was not within the statute quia emptores. a certain tenure, 
 which, after the act of 12 Charles II. (ch. 24), abolishing military 
 tenures, must have been that of free and common socage} was 
 created as between the king and his grantee. I have elsewhere 
 expressed the opinion that the king might, notwithstanding the 
 statute against subinfeudation, grant to his immediate tenant the 
 right to alien his land to be holden of himself, and thus create a 
 manor, where the land was not in tenure prior to the 18th Edward I. 
 The People v. Van Rensselaer, 5 Seld. 334. But with the exception
 
 84 ALLODIAL AND FEUDAL PROPERTY IN LAND. [PART I. 
 
 of the tenure arising upon royal grants, and such as might be created 
 by the king's immediate grantees under express license from the 
 crown, I am of opinion that the law forbidding the creating of new 
 tenants by means of subinfeudation was always the law of the 
 Colony, and that it was the law of this State, as well before as after 
 the passage of our act concerning tenures, in 1787. A contrary 
 theory would lead to the most absurd conclusions. We should have 
 to hold that the feudal system, during the whole colonial period, and 
 for the first ten years of the State government, existed here in a con- 
 dition of vigor which had been unknown in England for more than 
 three centuries before the first settlement of this country. We should 
 be obliged to resolve questions arising upon early conveyances, 
 under which many titles are still held, by the law which prevailed in 
 England during the first two centuries after the Conquest, before 
 the commencement of the Year Books, and long before Littleton 
 wrote his Treatise upon Tenures. * * * 
 
 We are, then, to ascertain the effect of a conveyance in fee reserv- 
 ing rent, upon the assumption that the statute of quia emptores 
 applies to such transactions. In the first place, no reversion, in the 
 sense of the law of tenures, is created in favor of the grantor; and 
 as the right to distrain is incident to the reversion, and without one 
 it cannot exist of common right, the relation created by this convey- 
 ance did not itself authorize a distress. The fiction of fealty did 
 not exist. The rent in terms reserved was not a rent-service. Litt., 
 sees. 214, 215. It was, however, a valid rent-charge. According to 
 the language of Littleton, " if a man, by deed indented at this day, 
 maketh a feoffment in fee, and by the same indenture reserveth to him 
 and to his heirs a certain rent, and that if the rent be behind it shall 
 be lawful for him and his heirs to distrain, etc., such a rent is a 
 rent-charge, because such lands or tenements are charged with such 
 distress by force of the writing only, and not of common right." 
 Id., sees. 217, 218. And the law is the same where the conveyance 
 is by deed of bargain and sale under the statute of uses. Co. Litt. 
 143 b. Mr.Hargrave, in his note to this part of the commentaries, 
 expresses the opinion that a proper fee farm rent cannot be reserved 
 upon a conveyance in fee, since the statute of quia emptores; but he 
 ( on< edes that where a conveyance in fee contains a power to distrain 
 and to re-enter, the rent would be good as a rent-charge. Note 235 
 to Co. Litt. [43 b. Blackstone says that upon such a conveyance 
 the land is liable to distress, not of common right, but by virtue of 
 the < lause in the deed. 2 Bl. Com., 42. * * * 
 
 These authorities establish the position that upon the conveyance 
 under consideration a valid rent was reserved, available to the
 
 CHAP. V.] ALLODIAL AND FEUDAL PROPERTY IN LAND. 
 
 8 1 
 
 grantor by means of the clause of distress. This rent, though not 
 strictly an estate in the land, Payne v. Peal, 4 Denio, 405, is never- 
 theless a hereditament, and in the absence of a valid alienation by the 
 person in whose favor it is reserved, it descends to his heirs. Its 
 nature, in respect to the law of descents, is explained by Lord 
 Coke, who at the same time points out the distinction between such 
 a rent as we are considering and a rent-service reserved upon a feoff- 
 ment which created a tenure. He says that if a man seized of a 
 manor, as heir on the part of his mother, before the statute of quia 
 emptores, had made a feoffment in fee of parcel, to hold of him by 
 rent and service, albeit they (the services) are newly created, yet 
 for that they are parcel of the manor, they shall, with the rest of 
 the manor, descend to the heir on the part of the mother. If a 
 man so seized, that is by inheritance from his mother, maketh 
 [now] a feoffment in fee, reserving a rent to him and his heirs, this 
 rent shall go to the heirs on the part of the father. Co. Litt. 12, b. 
 The reason is given in a case in Hobart, thus: " If, upon a feoff- 
 ment of lands which I have on the part of the mother, or in Borough 
 English (where the youngest son is the heir) I reserve a rent to me 
 and to my heirs, it shall go to my heirs at common law, for it is not 
 within the custom, but it is a new thing divided from the land itself " 
 Counden v. Clerk, 31, b. The distinction is this: A rent-service, 
 such as arose upon an alienation of a fee at common law, was inci- 
 dent to the reversion, and, therefore, a part of the estate remaining 
 in the feoffor; and upon his death it passed in the same channel of 
 descent as the estate would have done if there had been no aliena- 
 tion. But where there is no reversion, as in the case of a convey^ 
 ance in fee since the statute, the rent reserved is an inheritable estate; 
 newly created, and descends according to the general law of inherit-' 
 ance, to the heirs of the person dying seized, without regard to the 
 heritable quality of the estate, the conveyance of which formed the 
 consideration of the rent. Preston states the principle thus: " A 
 rent incident to the reversion will descend with the reversion as a 
 part thereof; but a rent reserved on a grant in fee, or limited by 
 way of use in a conveyance to uses, will be descendible as a new 
 purchase from the person to whom it is reserved or limited." 
 3 Essay on Abstracts of Title, 54. Further on he says that in such 
 cases " the instruments amount to, first, a grant of the land from 
 the owner of the same; and, secondly, a grant of the rent on the part 
 of the grantee." Id. 55. To the same purpose see 3 Cruise, 313 (N. Y. 
 ed. of 1834). The descendible quality of these rents was early estab- 
 lished in this State in the case of The Executors of Van Rensselaer v. 
 The Executors of Plainer, decided in the year 1800. * * * 
 

 
 86 ALLODIAL AND FEUDAL PROPERTY IN LAND. [PART I. 
 
 But the plaintiff in this case sues as devisee of the grantor and 
 must establish the position that he is entitled in that character to sue 
 upon the covenant. * * * In England, it is perhaps a debatable 
 question at this day, whether the assignee of the grantor can main- 
 tain the action. [Some English cases are considered at this point. ] [Sir 
 Edward Sugden] says the rent-charge is an incorporeal hereditament, 
 and issues out of the land and the land is bound by it. The covenant, 
 therefore, he adds, may well run with the rent in the hands of an 
 assignee; the nature of the subject, which savors of the realty, 
 altogether distinguishes the case from a matter merely personal. 
 [After considering certain New York cases and statutes it is decided that 
 the devisee of Van Rensselaer can sue, upon the covenant, any one upon 
 I whom the covenant is binding, and that it is binding upon the defendant.] 
 
 Judgment affirmed. 1 
 
 INGERSOLL v. SERGEANT. 
 
 i Wharton (Pa.), 336. — 1836. 
 
 Replevin by Ingersoll against Mrs. Sergeant to recover chattels 
 distrained for rent. Defendant avowed for rent in arrear and a 
 verdict was found in her favor, subject to the opinion of this court. 
 
 Plaintiff insists that the release of a portion of the premises from 
 the burden of the rent extinguished the whole rent. 
 
 Kennedy, J. — The plaintiff alleges that the rent in question is in 
 its nature strictly a rent-charge, and that the defendant, therefore, 
 by releasing to Jonathan Smith a part of the ground upon which, 
 according to his own phrase, it was charged, released the whole rent. 
 It becomes material, therefore, to inquire and see whether it be a 
 rent-charge or not; and if not, whether it is not a rent-service; 
 because if it be a rent-service, the defense set up against the payment 
 of it cannot avail, at most, beyond what shall be considered a pro- 
 portional part, according to the value of the land released. 
 
 According to Littleton, there are three sorts of rent, which he 
 specifies in section 213; namely, rent-service, rent-charge, and rent- 
 seek. " A rent-service," he says, " is where the tenant holdeth his 
 land of his lord by fealty and certain rent, or by homage, fealty and 
 
 1 Feudal tenures under the old crown grants continued in New York until 
 the R. S of 1830. Grants under the State government were allodial from the 
 first. In 1830 all holdings of land in New York were made allodial. Seel 
 R. S. 718, ,';' 1 and 3. See also const, of 1894, art. I, §§ 11 and 12. — Ed.
 
 CHAP. V.J ALLODIAL AND FEUDAL PROPERTY IN LAND. 87 
 
 certain rent, or by other services and certain rent. And if rent- 
 service at any day, that ought to be paid, be behind, the lord may 
 distrain for that of common right." And in section 218, he also shows 
 how a rent-charge and a rent-seek were created before the passage 
 of the statute quia emptor es terrarum, (18th Edw. 1, stat. 1, c. 1). 
 He there says, " if a man seized of certain land, grant by deed poll, 
 or his indenture, a yearly rent, to be issuing out of the same land to 
 another in fee, or fee tail, or for term of life, etc., with a clause of 
 distress, etc., then this is a rent-charge; and if the grant be without 
 clause of distress, then it is a rent-seek; and idem est quod redditus 
 siccus, for that no distress is incident unto it." And in the 217th 
 section, he lays it down that " if a man by deed indented at this day 
 (which was after the statute quia emptores had come into operation,) 
 maketh a gift in fee tail, the remainder over in fee, or a lease for 
 life, the remainder over in fee, or a feoffment in fee;- and by the 
 same indenture, he reserveth to him and to his heirs a certain 
 rent, and that if the rent be behind, it shall be lawful for him 
 and his heirs to distrain, etc., such a rent is a rent-charge; because 
 such lands or tenements are charged with such distress by force 
 of the writing only, and not of common right." But before the 
 passage of the statute quia emptores, it was clearly otherwise; for 
 in the 216th section, he says, " before that statute, if a man had 
 made a feoffment in fee simple by deed or without deed, yielding to 
 him and to his heirs a certain rent, this was a rent-service, and for 
 this he might have distrained of common light; and if there were no 
 reservation of any rent, nor of any service, yet the feoffee held of the 
 feoffor by the same service as the feoffer did hold over of his lord next 
 paramount." Hence it is evident that the ground rent in question 
 cannot be considered a rent-charge, unless it be so by the force of the 
 statute quia emptores; but if it shall appear, upon examination, that 
 this statute is not and never has been in force in Pennsylvania, then 
 it would seem to be equally evident, that it must be held to be a 
 rent-service. King Charles the 2d, in granting the province of 
 Pennsylvania to William Penn and his heirs, gave it to be held in 
 free and common socage and by fealty only, for all services; (see 
 section 3 of the charter.) And by the 17th section thereof, William 
 Penn, his heirs and assigns, had full and absolute power given to 
 them, at all times thereafter, and forever, to assign, alien, grant, 
 demise or enfeoff such parts and parcels thereof, to such persons as 
 might be willing to purchase the same, their heirs and assigns, in 
 fee simple, fee tail, for term of life, lives, or years to be held of 
 the said William Penn, his heirs and assigns, as of the seigniory 
 of Windsor by such services, customs and rents as should seem fit,
 
 88 ALLODIAL AND FEUDAL PROPERTY IN LAND. [PART I. 
 
 to the said William Penn, his heirs and assigns, and not immediately 
 of the said King Charles, his heirs or successors.' And again by 
 the 18th section, it was further provided, that the purchasers from 
 William Penn, his heirs or assigns, should hold such estates as might 
 be granted to them, either in fee simple, fee tail, or otherwise, as 
 to the said William Penn, his heirs or assigns should seem expedient, 
 the statute of quia emptores terrarum in anywise notwithstanding. 
 From these provisions, it appears most clearly, that it was the inten- 
 tion of King Charles to grant the lands of the province to William 
 Penn, his heirs and assigns, so as to enable them to hold and dis- 
 pose of the same as if the statute quia emptores had not been in exist- 
 ence. That it has been ever so understood may be seen and fairly 
 inferred from both our legislative and judicial proceedings. * * * 
 Then an act of the assembly for ascertaining the descent of lands, 
 and better disposition of the estates of persons dying intestate was 
 passed; [app. to Hall & Sellers, vol. Pro. L. p. 4]. This act, 
 after making all the lands as well as the personal estate of the 
 intestate, liable to be seized and sold by his administrators for 
 the payment of his debts, directed, by the second section thereof, 
 that in case he should leave no known kindred, then all his 
 lands, tenements and hereditaments should descend and go to the 
 immediate landlord, of whom such lands were held, his heirs and 
 assigns; and if held immediately of the proprietary, then to the pro- 
 prietary, his heirs and assigns; and all goods, chattels, and personal 
 estate to the proprietary and governor, his heirs and assigns Now, 
 here we have the right of escheat established upon and regulated 
 according to the right of subinfeudation, and the principle of tenure, 
 between the last feoffee or terre-tenant and his immediate feoffor or 
 vendor. The same provision in regard to the right of escheat was 
 introduced into a new intestate law passed in 1705 (Hall & Sellers, 
 vol. Pro. L. 35), which continued in force till after the Revolution. 
 This regulation of the right of escheat was in direct contravention 
 to the statute quia emptores; which was enacted expressly for the pur- 
 pose of securing it to the lord paramount, instead of the immediate 
 landlord or feoffor or vendor, in every case of the terre-tenant's dying 
 without heirs; together with the right of marriage and of wardship, 
 which were also claimed as the fruits of the feudal system. The 
 two last of these rights, however, were taken away by 12 Car. 2, c. 
 34, some six years before the granting of the province to William 
 Penn; so that the door seems to have been completely closed from 
 the firsl in the province, against the introduction of the only remain- 
 ing right that existed under the authority of the statute quia emptort r 
 terrarum. As to judicial evidence of the non-existence of this
 
 CHAP. V.] ALLODTAL AND FEUDAL PROPERTY IN LAND. 89 
 
 statute here, I refer first to the case of Dunbar, Heir of Dunbar v. 
 Jumper, Assignee of Thompson, 2 Yeates, 74, where upon a mutual 
 deed executed by the vendor and the vendee, by which the vendor 
 sold and conveyed an acre of land to the vendee in fee, it being 
 necessary for a grist-mill of the vendee, in consideration of the 
 vendee's yielding and paying to the vendor and the lawful heir of 
 his body, the privilege of grinding such grain as might be used or 
 consumed by the vendor in his private family, on the plantation 
 which he then occupied, or the heir of his body, on the said planta- 
 tion after his decease, free of toll, as long as the mill should be in 
 order to grind, it was held by Shippen and Yeates, Justices, at Nisi 
 Prius, at Carlisle, in 1796, that an action of covenant was maintain- 
 able by the heirs-at-law of the vendor against Jumper, the assignee 
 of Thompson, the vendee, for refusing to grind grain toll free for 
 the plaintiff, according to the terms of the deed. Now, under the 
 statute quia emptores, if it had been in force here when this case was 
 decided, and our lands, considered as held under feudal tenures, the 
 grinding of the grain ought to have been regarded as a rent-charge, 
 and perhaps more properly so, than a ground-rent reserved on a 
 deed poll. But a covenant to pay a rent-charge is merely personal 
 and collateral to the land, and therefore will not render the assignee 
 liable to an action of covenant for the non-performance of it. 
 Brewster v. Kitchen, Kitchell or Kidgell, 1 Ld. Raymond, 322, s. c, 
 Holt, 175; 5 Mod. 374; 1 Salk. 198; 12 Mod. 170-1; Cookv. Earl of 
 Arundel, Hardr. 87; Piatt on Co. 65, 475. Hence, we may very 
 fairly conclude, that the court in Dunbar and Jumper did not con- 
 sider the statute of quia emptores in force here, otherwise they would 
 not have held, as they did, that the covenant of the vendee to grind 
 toll free ran with the land, and that the assignee or terre-tenant 
 thereof became liable to an action of covenant for not fulfilling 
 
 1 j- *t* *p "p 
 
 This statute then being out of the way, we have seen that, accord- 
 ing to the principles of the common law (Littleton, sec. 216), the 
 rent in question is clearly a rent-service. And Lord Coke, in his 
 commentary upon this section (Co. Litt. 143 a), adds " at the com- 
 mon law, if a man had made a feoffment in fee by parol, he might 
 upon that feoffment have reserved a rent to him and his heirs, 
 because it was a rent-service and a tenure thereby created." It was 
 called a rent-service, because it was a compensation for the services 
 to which the land was originally liable; 3 Cruise, Dig. Rents, tit. 
 28, c. 1, sec. 6. And at this day, the tenant (says Chief Baron 
 Gilbert), does the corporeal service of fealty; Gilb. on Rents, 9; 
 and therefore it is still called a rent-service, because it hath always
 
 90 ALLODIAL AND FEUDAL PROPERTY IN LAND. [PART I. 
 
 some corporeal service incident to it, which at the least is fealty. 
 Gilb. on Distress, 5; 1 Inst. 142 a. 
 
 The rent in question then being a rent-service and not a rent- 
 charge, the doctrine contended for, as well as the authorities cited 
 by the plaintiff's counsel on the argument, showing what in law will 
 amount to an extinguishment of the whole rent, where it is a rent 
 charge, and that it is not in its nature apportionable by the act of 
 the parties, will be found to be wholly inapplicable to a rent-service. 
 A rent-charge was considered repugnant to the principles of the 
 feudal policy, inasmuch as it created an incumbrance upon the land 
 of the tenant, and rendered him the less able to perform the 
 services incident to his tenure; and being looked on as against com- 
 mon right, the law did not attach the remedy by distress for its 
 recovery when in arrear, so that it is only given by virtue of the 
 clause to that effect in the deed creating it. Gilb. on Rents, 155; 
 Littleton, sec. 217; 3 Cruise, Dig. tit. 28, Rents, ch. 1 sec. 9. In 
 short it was regarded with disfavor by the law, and any act, there- 
 fore, on the part of the owner of it, which could in any way be con- 
 strued to be incompatible with the future assertion of right to the 
 same, was held to amount to a release or an extinguishment of it, 
 without regard to the intention; as, for instance, if he purchased or 
 released a part of the land from the rent, upon which it was charged ; 
 this was held to be an entire extinguishment of his right to the whole 
 rent; Littleton, sec. 222; 1 Inst. 147 b; Gilb. on Rents, 152; 18 Vin. 
 Abr. 504; Bro. tit. Apportionment, pi. 17; 3 Cruise Dig. tit. 28, 
 Rents, ch. 3, sees. 13, 16. But a rent-service being given as a com- 
 pensation for the services to which the land was originally liable 
 under the feudal system (3 Cruise Dig. tit. 28, ch. 1, sec. 6), must, 
 therefore, be judged of by the rules which regulated the perform- 
 ance of those services. Accordingly, Littleton lays it down expressly 
 in section 222, " if a man which hath a rent-service, purchase parcel 
 of the land out of which the rent is issuing, this shall not extinguish 
 all, but for parcel ; for a rent-service in such case may be apportioned 
 according to the value of the land." If the rent, however, in such 
 case should be indivisible, as if it consist of a horse, hawk, etc., it 
 would be taken away; Bruerton's Case, 6 Co. 1 b; Co. Litt. 149 a; 
 8 Co. 155 a; Mo. 203; Gilb. on Rents, 151, 165. So if the lord 
 purchase a part of the tenancy in fee, a proportional part only of 
 the rent becomes extinct, and the residue will continue in esse, 
 be< ause of the enjoyment of the remaining part of the land by the 
 tenant, which is the consideration for the payment of the rent. 
 / cough's Case, 9 Co. 135; Co. Litt. 148 b. Lord Hale, Chief Jus- 
 tice, in Hodgkins v. Robson, 1 Ventr. 276, may possibly be thought to
 
 CHAP. V.] ALLODIAL AND FEUDAL PROPERTY IN LAND. 91 
 
 go still further, when he lays it down that if a lessee assign part of 
 the land which he holds on lease, to a stranger without reserving 
 any rent, and the stranger assigns it to the lessor, there shall be no 
 apportionment or suspension of any part of the rent, because the 
 tenant, by assigning part, made himself answerable for the whole 
 rent; and the lessor claiming under a stranger, is entitled to the 
 benefit of his contract. This proposition is also repeated with seem- 
 ing approbation, by Lord Chief Justice Baron Gilbert, in his treatise 
 on Rents, 181. The reason of the difference mentioned between 
 rent-charge and rent-service is stated by Lord Chief Baron Gilbert 
 to be this: In case of rent-service, the tenant is under obligation 
 of the oath of fealty, to bear faith to his lord, and to perform the serv- 
 ices for the land which he holds of him; and this obligation has its 
 force, while the tenure of the lord continues, and the tenure could not 
 be discharged by purchase of part of the tenancy ; for that construction 
 would not only be attended with this absurdity, that the part remain- 
 ing in the tenant's hands would be held of nobody, and in conse- 
 quence would produce this public inconvenience, that the remainder 
 of the tenancy would be free of all feudal duties; which in the height 
 of the feudal tenures must have been a detriment to the public; 
 wherefore, since for this reason, the tenure between the lord and 
 the tenant, continued for so much of the land as remained unpur- 
 chased, the tenant, by his oath of fealty, was obliged to perform the 
 services of it. But as it would ha<ve been unreasonable to have com- 
 pelled him to perform the whole services that were reserved upon 
 the old donation, when the lord had wilfully resumed part of the 
 land, which was the consideration upon which the obligation to make 
 the annual return of services was founded, the medium between the 
 two extremes was adopted; that as the enjoyment of the land was 
 the consideration for the services, the return ought always to be 
 made according to the proportion of the land, which the tenant 
 continued in the possession and enjoyment of. But in the case of 
 a rent-charge, when the grantee purchases parcel of the land, the 
 whole rent is extinguished, because there is no feudel dependency 
 between the grantor and the grantee by the deed of grant, which 
 created the rent-charge, as there was by the feudal donation which 
 created the rent-service. And, therefore, as these grants were of no 
 benefit to the public, and afforded no addition of strength or pro- 
 tection to the kingdom, the law carries them into execution only 
 so far as the rent could take effect, according to the original inten- 
 tion of it; and, therefore, if the grantee had wilfully, by his own act 
 prevented the operation of the grant according to the original inten- 
 tion of it, the whole grant was to determine. And as a rent-charge
 
 92 ALLODIAL AND FEUDAL PROPERTY IN LAND. [PART I. 
 
 issues out of every part of the land, and consequently every part of 
 the land is subject to a distress for the whole rent, therefore, when 
 the grantee purchases part of the land, it is become impossible by 
 his own act, that the grant should operate in that manner, because 
 it is absurd that the grantee should distrain his own lands, or bring 
 an assize against himself. Gilbert on Rents, 152-3-4, 3 Cruise Dig. 
 tit. 28, Rents, ch. 3, sec. 14. But rent-service being something given 
 by way of retribution, to the landlord for the land demised by him 
 to the tenant, and the obligation of the latter to pay the rent arising 
 from his having enjoyed the land under a contract with his landlord, 
 it is reasonable that the extent of his obligation to pay should be 
 regulated by the extent of his enjoyment; and, therefore, it is that 
 if he be legally deprived of the enjoyment of part of the land 
 demised, he shall be released from the rent only in proportion to 
 the value of the land evicted. And in no case will an eviction of 
 part of the demised premises, where the tenant continues to enjoy 
 the residue thereof, discharge him from the payment of the whole 
 rent, unless it be by the tortious act of the landlord himself, who 
 shall forfeit all right to receive it in such case, as long as he prevents 
 the tenant against his will, from occupying and enjoying any part of 
 the land. Gilb. on Rents, 147 ; 10 Co. 128 a; 1 Roll. Abr. 235 ; Dyer, 
 56; Co. Litt. 148 b; 1 Ventr. 277; Gilb. on Rents, 178-9. * * * 
 I have now presented my views in regard to the questions involved 
 in this case; and the reasons which have determined me in coming 
 to the decision adopted by the court, to wit, that the release is only 
 an extinguishment of so much of the rent as may be equal to the 
 comparative value of the ground bought by Mr. Smith of the plain- 
 tiff, at the time of the sale thereof; and the defendant is entitled to 
 recover the residue of the rent due at the time of the distress. This 
 apportionment, however, can only be made by a jury; Hodgkins v. 
 Rohson, 1 Ventr. 276, s. c. Pollex, 141; Fish v. Campion, 1 Roll. Abr. 
 237 ; and as the verdict found by the jury does not provide for it, the 
 matter will have to be submitted to another jury, unless tht parties 
 will agree to take the price mentioned in the deed from Mr. Reed to 
 Mr. Ingersoll, as the value of the whole of ground subject to the 
 ground-rent, at the time the release was given, and the price men- 
 tioned in the deed from Mr. Ingersoll to Mr. Smith, as the value of 
 the part released from the rent. If this be agreed to, the whole case 
 he settled now; otherwise the verdict must be set aside and a 
 
 Venire de novo awarded. 1 
 
 'As 10 the present existence of tenure in Pennsylvania see Wallace v. 
 Harmstad, 44 Pa. 492 (18M), and the comment thereon in Gray's " Rule Against 
 Perpetui 26. — Ed,
 
 CHAPTER VI. 
 Legal and Equitable Property in Land. 
 
 JAQUES v. TRUSTEES OF M. E. CHURCH. 
 
 17 Johnson (N. Y.), 548. — 1820. 
 
 Appeal from the Court of Chancery. Mary Jaques, deceased, 
 was the wife of appellant, John D. Jaques. Prior to her marriage, 
 being the owner of a large amount of property, a marriage- 
 settlement was made, by which the said Mary conveyed all her real 
 and personal estate to one Cruger to the use of said Mary, until the 
 marriage should take place and after the marriage for her sole and 
 separate use, free from the control of her husband and at her absolute 
 
 
 "Ta 
 
 disposal. Mrs. Jaques afterwards conveyed her interest to Robert 
 Jaques upon certain trusts — among other things to pay over one- 
 third after her decease to the Trustees of the M. E. Church. This _ 
 is a bill for an accounting against John D. Jaques who is alleged to 
 have obtained for his own use a considerable part of his wife's prop- 
 erty, real and personal, during her life, with her consent and for his 
 own use. 
 
 Spencer, Ch. J. * * * It appears that Mrs. Jaques was the 
 owner of considerable real and personal estate; and it does not admit 
 of a doubt that her object in making the deed of settlement, was to 
 guard against the legal effects of a marriage, which, by operation of 
 law, would divest her absolutely of her personal estate, and take 
 from her, during the coverture, all control over her real estate. Her 
 motives could not be to guard against herself, but to retain dominion 
 over her estate, and to prevent her intended husband from inter- 
 meddling with her estate any further than she was pleased to allow. 
 
 The deed of settlement is upon the trust, that the trustee should 
 permit her to hold, enjoy and let the premises conveyed, and 
 receive and take the rents and profits, and that her receipts 
 should alone be sufficient discharges; so that the same should 
 not be subject to the debts, control or intermeddling of her 
 intended husband, but should be to the only use, benefit and 
 disposal of her, during her natural life, and then to the use of those 
 to whom she should grant or devise the same, by her last will 
 and testament, lawfully executed. The question is, whether Mrs. 
 
 [93]
 
 94 LEGAL AND EQUITABLE PROPERTY IN LAND. [ PART l - 
 
 Jaques, with respect to her estate, is not be regarded in a court of 
 equity as a feme sole, and may not dispose of it as she pleases, with- 
 out regard to her trustee; there being nothing in the deed of settle- 
 ment requiring the consent or concurrence of her trustee, nor any 
 negation of an unlimited power of disposition of the estate by her. 
 
 I have examined this case with the unfeigned respect which 
 I always feel for the learned chancellor who has denied the right 
 of Mrs. Jaques to dispose of her estate without the consent or 
 concurrence of her trustee; and I am compelled to dissent from his 
 opinion and conclusions. From the year 1740 until 1793 (with 
 the single exception of the opinion of Lord Bathurst in Hulme v. 
 Tenant, which occurred in 1778, and in which case a rehearing was 
 granted by Lord Thurlow and the opinion reversed), there is an 
 unbroken current of decisions, that a feme covert, with respect to her 
 separate estate, is to be regarded in a court of equity as a. feme sole, 
 and may dispose of her property without the consent or concurrence 
 of her trustee, unless she is specially restrained by the instrument 
 under which she acquires her separate estate. * * * 
 
 The mistake into which I think the chancellor has fallen consists 
 in considering Mrs. Jaques restrained from disposing of her estate 
 in any other way than that mentioned in the deed of settlement. The 
 cases, in my apprehension, are clearly opposed to this distinction ; and 
 I am entirely satisfied that the established rule in equity is, that 
 when a feme covert, having separate property, enters into an agree- 
 ment and sufficiently indicates her intention to affect by it her 
 separate estate, when there is no fraud or unfair advantage taken of 
 her, a court of equity will apply it to the satisfaction of such 
 engagement. * * * 
 
 This is the first case in which the power of a married woman hav- 
 ing separate property, to dispose of it at her will and pleasure, when 
 not expressly restrained in the mode of exercising that will, has 
 xarisen in our courts. I confess that my partialities in favor of mar- 
 riage settlements are not so strong as to induce my desire to see the 
 law altered. Generally speaking, the rules of the common-law, 
 which give to the husband all the wife's personal property, and the 
 rents and profits of her real estate during coverture, are better 
 calculated, in my judgment, to secure domestic tranquility and hap- 
 piness, than settlements securing to the wife a property separate 
 from and independent of the control of the husband. An improvi- 
 dent and dissipated husband may squander his wife's property, and 
 redui e both of them to penury and distress. On the other hand, 
 the possession by the wife of property, independent of and beyond 
 the control of the husband, would be likely to produce perpetual
 
 CHAP. VI.] LEGAL AND EQUITABLE PROPERTY IN LAND. 95 
 
 feuds and contention. Marriage is a union of persons and interests, 
 pro bono et malo, and the ancient provisions of the common law show 
 forth, in our own country, decisive proof of its benign and salutary 
 influence. I have all along intended to be understood that the dis- 
 position by the wife must be free, neither the result of flattery, nor 
 of force, or harsh and cruel treatment; and in the present case there 
 is no evidence that Jaques treated his wife with unkindness, or 
 employed any censurable means to induce her to bestow her bounty 
 on him; on the contrary, the evidence is that he uniformly treated 
 her with kindness and affection. 
 
 It necessarily results from the power which I suppose Mrs. Jaques 
 to have had over her property, that she might give it away, without 
 any formal act, in the same manner as though she had been sole; 
 and her agreement that the family expenses were to be borne out of 
 her estate, especially when executed by her, was a valid act. She 
 was well situated as regards property, while her husband was in quite 
 moderate circumstances. She chose, after the marriage, to main- 
 tain her former equipage, and the husband acquiesced in her wishes. 
 It would be extremely hard and unjust to throw upon him the charge 
 of her establishment, when it is clear that she meant to defray the 
 expense of it herself. My opinion, accordingly, is that the agree- 
 ment is valid, and that the husband is not only not to be charged 
 with any sums of money expended for the maintenance of the 
 family, but that he is to be allowed for all advances for that object; 
 and also for moneys advanced for necessary reparations to her 
 estate. * * * 
 
 Decree reversed. 
 
 Kennedy, J., in PULLEN v. RIANHARD. 
 
 1 Wharton (Pa.), 514. — 1836. 
 
 The chief question here is settled by the principles laid down in 
 the case of Lancaster v. Dolan, 1 Rawle, 231. In that case, the con- 
 veyance to the trustees was upon trust " to permit the party, (who 
 at the time was feme sole, but contemplated being married), to use, 
 improve, occupy, possess and enjoy; and to receive all and singular, 
 the rents, issues and profits," and it was considered that the trus- 
 tees took the estate with the use executed. The Chief Justice who 
 delivered the opinion of the Court, says, " a use thus limited to 
 any other than a married woman ox feme in contemplation of mar- 
 riage, would be executed; but it is immaterial whether the trust be 
 to pay a married woman the profits, or to permit her to receive them,
 
 g6 LEGAL AND EQUITABLE PROPERTY IN LAND. PART I.] 
 
 it being necessary to a separate provision, that the legal estate 
 should remain in the trustees, to prevent the husband from taking 
 the profits, and defeating the very object of the conveyance." It is 
 certainly true, that a distinction has been made between a devise to 
 a person to pay over the rents and profits to another, and a devise 
 in trust to permit another to receive the rents and profits. In the 
 first case it has been held that the legal estate should continue in 
 the first devisee, so that he might perform the trust, because with- 
 out having the control of the estate he could not receive the rents 
 and pay them over as directed. Neville v. Saunters, i Vern. 415. 
 But in the second case, it has been adjudged that tne legal estate is 
 vested by the statute of uses in the person who is to receive the 
 rents. Boughton v. Langley, 2 Ld. Raym. 873. This distinction, 
 however, as the Chief Justice has said in Lancaster v. Dolan, does 
 not exist in the case of a. feme covert, where the estate is conveyed or 
 devised to trustees for her separate use. The courts in such case 
 will, if possible, construe the grant or devise, so as to vest the legal 
 estate in the trustees, for the purpose of carrying into execution, in 
 the most effectual manner practicable, the intention of the donor. 
 Harton v. Jfarlo/i, 7 Term. Rep. 648; 1 Cruise's Dig. tit. 12, Trust, 
 ch. 1, pi. 15, page 456, and pi. 19, page 457. As to the intention of 
 donor in this case, there can be but one opinion respecting it. It is the 
 most unequivocally declared to be to give the wife the separate use 
 and benefit of the estate during her natural life, without subjecting 
 it to the control of her husband, or to liability in any way whatever, 
 for the payment of his debts. This being the intention expressed 
 in the deed, it is manifest that it would be entirely defeated, if it 
 were to be held that the use was executed in the wife; for this would 
 be putting the estate under the control and direction of her hus- 
 band, so as to enable him to take the rents in despite of her, and to 
 dispose of them as he pleased. The design, therefore, of the donor 
 can only be carried into effect by considering tht legal estate as 
 vested under the deed in the trustee. That this was intended is 
 still further indicated by the clause giving the wife the power to 
 dispose of it for the benefit of herself and children, which requires 
 the trustees, in case of such disposition being made by her, to exe- 
 cute such writing as should be required by law to carry it into effect; 
 which could be of no avail, and was unnecessary, unless he thought 
 he was investing him with the legal estate.
 
 PART II. 
 Of Land as the Subject of Property. 
 
 chapter I. 
 Subdivision of Land for Purposes of Ownership. 
 
 I. The ordinary and usual mode of subdivision. Presumption as to 
 ownership of the underlying strata and of the space above the 
 surface. Effect of this rule on things in such space. 
 
 HOFFMAN v. ARMSTRONG. 
 48 New York, 201. — 1872. 
 
 Action for assault and battery. Appeal from judgment for 
 plaintiff. 
 
 Certain branches of a cherry tree on Dr. Hoffman's land overhang 
 the lands of defendant. Plaintiff, a member of Dr. Hoffman's 
 family, went upon the line fence and undertook to pick the cherries 
 from such overhanging limbs. Defendant forbade her and, as she 
 persisted in her attempt, he tried to prevent her by force and did 
 her a personal injury. 
 
 The court below charged the jury, that " every person upon whose 
 lands a tree stands owns the whole of that tree, notwithstanding 
 portions of it may overhang the lands of another; * * * and is 
 entitled to all the fruit growing thereon," and that one who inter- 
 feres forcibly with his attempt to gather the fruit is a wrongdoer. 
 Defendant excepted to this and asked the judge to charge in sub- 
 stance that the limbs of the tree overhanging the lands of defendant 
 belonged to him and that he was entitled to the fruit thereon and 
 had a right, by the use of all necessary force, to prevent plaintiff 
 from picking it. This was refused and defendant excepted. 
 
 Lott, Ch. C. — The only material question presented in this case 
 is whether the owner of land overhung by the branches of a fruit 
 tree standing wholly on the land of an adjoining owner is entitled 
 to the fruit growing thereon. 
 
 LAW OF PROP. IN LAND — J [qj]
 
 98 SUBDIVISION OF LAND. [PT. II. CH. I. 
 
 The defendant claims that the ownership of land includes every- 
 thing above the surface, and bases his claim on the maxim of the 
 law, " Cujus est solum ejus est usque ad caelum, " and that, consequently, 
 he was the owner of the overhanging branches and the fruit thereon. 
 The general rule unquestionably is, that land hath in its legal signi- 
 fication an indefinite extent upward, including everything terrestrial, 
 not only the ground or soil, but everything which is attached to the 
 earth, whether by the course of nature, as trees, herbage, and water, 
 or by the hands of man, as houses and other buildings. See Co. 
 Litt. 4 a; 2 Black. Com. iS; 3 Kent's Com. p. 401; 2 Bouvier's Ins. 
 sec. 1570. 
 
 This rule, while it entitles the owner of the land to the right to 
 it, and to the exclusive use and enjoyment of all the space above it, 
 and to erect any superstructure thereon that he may see fit — and 
 no one can lawfully obstruct it to his prejudice — yet if an adjoining 
 owner should build his house so as to overhang it, such an encroach- 
 ment would not give the owner of the land the legal title to the part 
 so overhanging. It would be a violation of his right, for which the 
 law would afford an adequate remedy, but would not give him an 
 ;ownership or right to the possession thereof. See Aiken v. Benedict, 
 39 Barb. 400. 
 
 Although different opinions have been held as to the rights of 
 owners of adjoining land in trees planted, the bodies of which are 
 wholly upon that of one, while the roots extend and grow into that 
 of the other and derive nourishment therefrom, it was considered by 
 Allen, J., in giving the opinion of the Court in Dubois v. Beaver, 25 
 N. Y. Rep. 123, etc., that the tree is wholly the property of him 
 upon whose land the trunk stands. This principle is sustained in 
 ) Masters v. Bo/lie, 2 Rol. Rep. 141; Holder v. Coates, 1 Moody & 
 Malkin, 112, 22 E. C. L. R. 264. 
 
 The ground or reason assigned in those cases for holding that the 
 owner of land on which no part of a tree stands, but into which the 
 roots extend, has any interest, is that the tree derives its nourish- 
 ment from both states, and not the ground or maxim on which the 
 defendant's claim is based. 
 
 \\ '<• have not been referred to any case showing that where no 
 I tart of a tree stood on the land of a party, and it did not receive any 
 nourishmenl therefrom, that he had any right therein, and it is laid 
 down in Bouvier's Institutes (section 1573), that if the branches of ,1 
 tree only overshadow the adjoining land, and the roots do not enter 
 into it, tli'- tree wholly belongs to the estate where the roots grow 
 See also Masters v. /'<>lli<\ 2 Rol. Rep. 141; Waterman v. 'J'opcr, 1 
 Ld. Raymond, 737.
 
 I.] MODE OF SUBDIVISION. 99 
 
 The rule or maxim giving the right of ownership to everything 
 above the surface to the owner of the soil has full effect without 
 extending it to anything entirely disconnected with or detached from 
 the soil itself. 
 
 It follows, from the views above expressed, that the ruling of the 
 judge at the Circuit was right, and the judgment appealed from must 
 be affirmed, with costs. 
 
 Judgment affirmed. 1 
 
 GRANDONA v. LOVDAL. 
 
 70 California, 161. — 1886. 
 
 Action to compel defendant to remove a certain line of trees on 
 or near the boundary of his land and lands of plaintiff and to recover 
 damages alleged to have been caused by their existence during the 
 preceding four years. Defendant demurred to the complaint on the 
 grounds that it did not state facts sufficient to constitute a cause of 
 action; that several causes of action were improperly joined and not 
 separately stated, and that it was ambiguous, unintelligible and 
 uncertain as not specifically stating the amount of the several items 
 of damage. Demurrer sustained and judgment for defendant. 
 Plaintiff appeals. 
 
 McKinstry, J. — The court below sustained a demurrer to the 
 complaint. " Trees whose branches extend over the land of another 
 are not nuisances, except to the extent to which the branches over- 
 hang the adjoining land._ To that extent they are nuisances, and 
 the person over whose land they extend may cut them off or have 
 his action for damages, and an abatement of the nuisance against 
 the owner or occupant of the land on which they grow, but he may 
 not cut down the tree, neither can he cut the branches thereof 
 beyond the extent to which they overhang his soil." Wood on 
 Nuisances, sec. 112, citing Commonwealth v. Blaisdell, 107 Mass. 234; 
 Commonwealth v. McDonald, 16 Serg. & R. 390. 
 
 So, it would seem, he may have abated the roots projecting into 
 his soil, at least if he has suffered actual damage thereby. 
 
 The general demurrer should have been overruled. * * * 
 
 While we are compelled to hold that the complaint is not subject 
 to general demurrer, nor to a demurrer for misjoinder of actions, 
 we think that it is ambiguous and uncertain. 
 
 Judgment affirmed. 
 
 1 See also Skinner v. Wilder reported infra, p. 154. — Ed.
 
 IOO SUDIVISION OF LAND. [PT. II. CH. I. 
 
 II. There may be longitudinal as well as vertical subdivisions for 
 ownership. 
 
 LORING v. BACON. 
 
 4 Massachusetts, 575. — 1808. 
 
 Parsons, C. J. — The plaintiff declares in case upon several 
 promises. The first count is indebitatus assumpsit in the sum of eighty 
 dollars, according to the account annexed to the writ, the items of 
 which are for timber, boards, shingles, nails and labor, and victual- 
 ling the workmen. The second count is a quantum meruit for the 
 same items, technically supposed to be different but similar. The 
 third count is a general indebitatus assumpsit for eighty dollars laid 
 out and expended. 
 
 The facts being agreed by the parties, the question of law comes 
 before the court on a case stated. From this case it appears that 
 the defendant is seized in fee simple of a room on the lower floor of 
 a dwelling-house and of the cellar under it; and that the plaintiff 
 is seized in fee of a chamber over it, and of the remainder of the 
 house; that the roof of the house was so out of repair that unless 
 repaired no part of the house could be comfortably occupied; that 
 the defendant, though seasonably requested by the plaintiff, refused 
 to join with him in repairing it; and the plaintiff then made the 
 necessary repairs, and has brought this action to recover damages 
 for her refusal to join in the repairs. It is also agreed that the parties 
 had from time to time repaired their respective parts of the house 
 at their several expense. And the question submitted to the court 
 is, whether the plaintiff can recover in this action. 
 
 This is an action of the first impression. No express promise is 
 admitted; but if there is a legal obligation on the defendant to con- 
 tribute to these repairs, the law will imply a promise. 
 
 We have no statute, nor any usage upon this subject, and must 
 apply to the common law to guide us. 
 
 Although in the case the parties consider themselves as severally 
 seized of different parts of one dwelling-house, yet in legal contem- 
 plation each of the parties has a distinct dwelling-house adjoining 
 together, the one being situated over the other. The lower room 
 and the cellar are the dwelling-house of the defendant. The cham- 
 ber, roof, and other parts of the edifice are the plaintiff's dwelling- 
 house. And in this action it appears that, having repaired his own 
 house, he calls upon her to contribute to the expense, because his 
 house is so situated that she derives a benefit from his repairs, and 
 would have suffered a damage if he had not repaired. 
 
 Upon a very full research into the principles and maxims of the
 
 II. J LONGITUDINAL SUBDIVISIONS. IOI 
 
 common law, we cannot find that any remedy is provided for the 
 plaintiff. 
 
 Houses for the habitation, and mills for the support of man are of 
 high consideration at common law; and when holden in common or 
 joint tenancy, remedies are provided against those tenants who refuse 
 to join in necessary reparation, by the writ de reparatione facienda. 
 In Co. Lit. 56b, it is said, that if a man has a house so near to the 
 house of his neighbor, and he suffers it to be so ruinous that it is 
 like to fall on his neighbor's house, he may have a writ de domo 
 reparanda, and compel him to repair his house. In Keilway, 98b, pi. 
 4, there is a case reported, in the time of Henry the Eighth, in which 
 Fineux and Brudenell, justices of the king's bench, were of opinion 
 that if a man have a house underneath, and another have a house 
 over it, as is the case in London, the owner of the first house may 
 compel the other to cover his house, to preserve the timbers of the 
 house underneath; and so may the owner of the house above compel 
 the other to repair the timbers of his house below; and this by 
 action of the case. But some of the bar were of opinion that the 
 owner of the house underneath might suffer it to fall; yet all agreed 
 that he could not pull it down to destroy the house above. And in 
 Fitz. N. B. 296 there is a writ of this kind. But in the case of 
 Tenant v. Goldwin, 6 Mod. 314, Lord Holt was of opinion, that this 
 writ was by virtue of a particular custom, and not of the common 
 law; and he doubted the case in Keilway. 
 
 But there is unquestionably a writ at common law de domo repa- 
 randa, the form of which we have Fitz. N. B. 295, in which A. is 
 commanded to repair a certain house of his in N. which is in danger 
 of falling, to the nuisance of the freehold of B. in the same town, 
 and which A. ought, and hath been used to repair, etc. This writ, 
 Fitzherbert says, lies, when a man who has a house adjoining to 
 the house of his neighbor, suffers his house to lie in decay, to the 
 annoyance of his neighbor's house. And if the plaintiff recover, 
 he shall have his damages; and it shall be awarded that the defend- 
 ant repair, and that he be restrained until he do it. But it is other- 
 wise in an action of the case; for there the plaintiff can recover 
 damages only. And there appears no reasonable cause of distinction 
 in the cases, whether a house adjoined to another on one side, or 
 above, or underneath it. 
 
 But if the case in Keilway is law, the plaintiff cannot recover ; for by 
 that case the defendant could have compelled the plaintiff to repair 
 his house, or compensate her in damages for the injury she had sus- 
 tained from his neglect to repair it. And he has the like remedy 
 against her.
 
 102 SUBDIVISION OF LAND. [PT. II. CH. I. 
 
 If the case in Keilway is not law, then upon analogy to the writ at 
 common law, the plaintiff cannot compel the defendant to contribute 
 to his expenses in repairing his own house. But if his house be 
 considered as adjoining to hers, she might have sued an action of 
 the case against him, if he had suffered his house to remain in decay- 
 to the annoyance of her house. 
 
 In every view of this case, there is no legal ground on which the 
 plaintiff's action can be supported. We do not now decide on the 
 authority due to the case in Keilway; but if an action on the case 
 should come before us founded on that report, it will deserve a 
 further and full consideration. The plaintiff must be called. 
 
 CALDWELL v. FULTON. 
 31 Pennsylvania State, 475. — 1858. 
 
 Caldwell sues Fulton for digging and taking away 20,000 bushels 
 of stone coal from under his lands. Caldwell's ancestor had conveyed 
 to one Greer sixteen acres of the tract and " also the full right, title 
 and privilege of digging and taking away stone coal to any extent 
 the said Greer may think proper to do, or cause to be done under 
 any of the land now owned and occupied by the said Caldwell; pro- 
 vided, nevertheless, the entrance thereto, and the discharge there- 
 from, be on the foregoing described premises." 
 
 Greer afterwards conveyed an undivided half of the sixteen acres 
 and of the coal to a third party. Fulton has taken coal under a 
 lease from the owner of one of the undivided shares. Plaintiff 
 claims that the sale of a half interest extinguished the right to take 
 coal. Judgment for defendant. Plaintiff appeals to this court. 
 
 Strong, J. — This record presents the same question which was 
 here at October Term, 1855, in an action between the same parties. 
 The writ of error is designed to bring under review the adjudication 
 which was then made. At that time, this court was of opinion that 
 the deed from Caldwell to Greer was an absolute and exclusive con- 
 veyance of all the coal under the grantor's land, and not a mere 
 license, or incorporeal hereditament. Such a construction of the 
 deed is supposed to have been erroneous, and we have heard an 
 earnest and able argument in support of the opposite interpretation. 
 
 The question is all-important to the rights of the parties; for, if 
 the interest of the grantee is incorporeal, and not exclusive, it is 
 necessarily indivisible; and (Ireer, having divided it by his own act, 
 by alienation of part, extinguished it. 4 Co. 1; Van Rensselar v.
 
 II.] LONGITUDINAL SUBDIVISIONS. IO3 
 
 Raddiffe, 10 Wend. 639. On the other hand, if the deed was a grant 
 of all the coal, it might be conveyed without extinction of the right, 
 either in entirety or in parts. The deed conveys in fee two tracts 
 of land, and in its granting part, after describing the tracts by 
 metes and bounds, adds, " also the full right, title, and privilege of 
 digging and taking away stone coal, to any extent the said George 
 Greer may think proper to do, or cause to be done, under any of the 
 land now owned and occupied by the said James Caldwell ; provided, 
 nevertheless, the entrance thereto, and the discharge therefrom, be 
 on the foregoing described premises." Then follow the habendum 
 and covenants of warranty, in one of which this subject of the grant 
 is called " the aforesaid right to the stone coal," and in the other 
 " the right of stone coal hereby given." The consideration men- 
 tioned is single, for the entire subject conveyed by the deed. It is 
 to be observed in the description of the thing granted, that there 
 are no limits fixed upon the extent to which coal might be taken 
 from the land then owned and occupied by the grantor. The 
 grantee's right was coextensive with his will; not necessarily to be 
 exercised by himself, but one which might be enjoyed by others 
 whom he should authorize. No form of words other than those 
 employed could have given him larger dominion. 
 
 Coal and minerals in place are land. It is no longer to be doubted 
 that they are subject to conveyance as such. Nothing is more com- 
 mon in Pennsylvania than that the surface right should be in one 
 man, and the mineral right in another. It is not denied, in such a 
 case, that both are landowners, both holders of a corporeal heredita- 
 ment. Our English ancestors, indeed, found difficulty in con- 
 ceiving of a corporeal interest in an unopened mine — separate 
 from the ownership of the surface — because livery of seisin was 
 in their minds inseparable from a conveyance of land, and livery 
 could not be made of an unopened mine. The consequence was, 
 that they were disposed to regard such rights as incorporeal, though 
 they are not rights issuing out of land, but the substance itself. In 
 this State, however, livery of seisin is supplied by the deed and its 
 registration, and there is nothing incongruous in considering a grant 
 of the substratum a grant of land, as much as is a conveyance of the 
 surface itself. It is often by far the most valuable, and sometimes 
 embraces all for which the land is worth owning. Even in England, 
 so long ago as the reign of James I., it was held that ejectment 
 would lie for a coal mine. Comynv. Wheatly, Cro. Jac. 150. It was 
 objected that it was beneath the soil, and that an habere facias could 
 not be made thereof; but the objection was disallowed. Yet, eject- 
 ment cannot be sustained for an incorporeal hereditament, except,
 
 104 SUBDIVISION OF LAND. [PT. II. CU. [. 
 
 perhaps, in the case of a common appendant or appurtenant. With 
 us, unfettered as we are by the necessity of livery of seisin, and 
 abounding in mineral districts, I am not aware that it has been 
 seriously doubted that the ownership of a coal bed or seam is a cor- 
 poreal interest in land. Cases not unfrequently occur in which the 
 owner of lands sells merely the surface right, retaining the minerals 
 which lie in place below the surface. Now, as his whole interest 
 was corporeal before the sale, and as by his deed only the surface 
 passed, that which remains ungranted must be corporeal. This 
 proposition needs no further argument, and it has not been ques- 
 tioned in the discussion before us. In Turner v. Reynolds, n Harris, 
 199, a plaintiff in ejectment was allowed to recover a coal mine 
 which he had described in his writ as land, and this, though his title 
 was under a conveyance to him, not of the tract of land, but of the 
 coal. 
 
 If, then, the ownership of the coal or other minerals in a tract of 
 land may be vested in one person, while the right to the surface 
 belongs to another, the next inquiry is, by what words it may be 
 granted. There are two modes in which the subject-matter of a 
 deed may be described, both equally potential. The one is by a 
 description of the thing itself, as of land by metes and bounds, or 
 by a known name, and the other is by a designation of its usufruct, 
 or of the dominion over it. Thus, a grant of the rents, issues and 
 profits of a tract of land is uniformly held to be a grant of the land 
 itself: Co. Litt. 4b. Judgments abound to this effect in regard to 
 devises, and though in wills and deeds the rules of construction differ 
 relative to words limiting the estate granted, yet they are the same 
 of words describing the subject-matter of the grant. There are also 
 cases of the same character to be found in regard to deeds. Thus, 
 it has been held that by the grant of a boilery of salt the land passes, 
 for that is the whole profit, Co. Litt. 4b; or a mine of lead, Id. 6a. 
 So by the grant of all growing trees, Cro. Eliz. 522. See also 4 
 Mass. 266; Fish v. Sawyer, 11 Conn. 545. The reason is that the 
 grant of a thing can be no more than the grant of the full and 
 unlimited use of it. So, too, the general power of disposal without 
 liability to account is equivalent to ownership itself, it being the 
 highest attribute of ownership, and a gift of the one necessarily 
 carries with it the other. This is the doctrine of Morris v. P/iah-n, 
 1 Watts, 389. 
 
 Applying these principles to the case in hand, why was not the 
 deed of Caldwell to Greer a conveyance of the coal in the land 
 owned and oc< upied by the grantor? Because, says the plaintiff in 
 error, it is not a grant of the thing itself, but of a right to take it
 
 II.] LONGITUDINAL SUBDIVISIONS. 105 
 
 and until it is seized or taken the property in the thing remains in 
 the grantor. But if the conveyance of the whole use of a thing, and 
 of the absolute dominion over it, is a grant of the thing itself, only 
 differing in the mode of describing the subject, it is not easy to see 
 what more Caldwell could have sold than he did. If in another 
 form of words he had described the coal as the subject of the grant, 
 Greer would have possessed no greater beneficial rights than were 
 given to him by the form adopted. The ownership of the coal in 
 the ground is but a " full right, title, and privilege " to dig and 
 carry it away, nothing more, nothing less. The words employed in 
 the deed express absolute dominion, and complete enjoyment. 
 These constitute property, and all that is understood in pro- 
 prietorship. 
 
 Again, says the plaintiff in error, this is but a grant of a right to 
 take and carry away part of the profits, and that while a grant of a 
 right to take all the rents, issues, and profits of a tract of land is 
 equivalent to a conveyance of the land itself, because it embraces 
 their whole usufruct, a grant of a right to take part, such as " iron 
 ore, coal," or " minerals," is not. It is said that in such a case 
 the grantee can only take in common with the grantor. 
 
 The argument is based upon a misconception. The subject alleged 
 to have been granted here is not the tract of land, but the coal in it, 
 which, as we have seen, is capable of a separate conveyance, and 
 which may be vested in one person, while the ownership of the tract 
 of land, as such, may be another's. The alleged subjects of the 
 grant then being the coal in the land, the substratum, the argument 
 is inapplicable. The whole usufruct of that, as well as the entire 
 dominion over it, was granted. The deed is not a conveyance of 
 part of the usufruct, nor of the usufruct of part of the coal, but of 
 the entire enjoyment. As already said, there was no limit to the 
 grantee's right but his own will. He could take out coal to any 
 extent. He could cause it to be taken out to any extent, and at all 
 times under any of the land. He was accountable to no one. His 
 entrance to it and his exit from it were, indeed, required to be on 
 his own land; but the right to take the coal itself was absolutely 
 unlimited. It would seem, therefore, that, according to well-estab- 
 lished rules of construction, the deed of Caldwell to Greer was a 
 conveyance of the coal itself, and not of a mere easement or incor- 
 poreal hereditament. 
 
 It is contended, however, that such a construction is in conflict 
 with the authorities, and we are referred to Lord Mountjoy's case as 
 the leading and principal one. [After reviewing this case (Anderson 
 307) and Chetham v. Williamson, If. East, J^.96j Doe v. Wood, 2 Barn.
 
 106 SUDIVISION OF LAND. [PT. II. CH. I. 
 
 & Aid. 719, and Grubb v. Bayard, 2 Wall. Jr. 81, the opinion proceeds 
 as follows] : 
 
 These are all the cases adduced to sustain the doctrine that a con- 
 veyance of a right to dig, take, and carry away the coal or minerals 
 in a tract of land, though the grant be unlimited in quantity, time, 
 or purpose for which the minerals may be taken, conveys no interest 
 in the coal or minerals until they are taken, passes only an incor- 
 poreal hereditament. None of them were decided upon the ground 
 of any supposed distinction between a right to take all the coal and 
 carry it away, and a right to the coal itself. They are all cases in 
 which there was no unrestricted power of taking and disposition con- 
 ferred upon the grantee. The coal or minerals was to be taken either 
 for a limited purpose, or in restricted quantities, and generally was 
 not to be paid for until taken. And in most of them it is easy to 
 see that the supposed necessity of livery of seisin, in order to pass 
 a corporeal interest in land, was a controlling consideration in the 
 minds of the judges. Even in Grubb v. Bayard, it seems not to 
 have been without influence. The impossibility of making livery is, 
 however, in Pennsylvania, no reason for refusing to give a construc- 
 tion to a deed accordant with the intention of the parties. When 
 the intent is to give the entire usufruct and power of disposal, the 
 legal title must be held to pass. Even in England, livery of seisin 
 is no longer indispensable to the grant of a corporeal hereditament. 
 Unopened mines may be conveyed, and the grantee takes more than 
 a right issuing out of land, or exercisable therein. He takes the 
 mines themselves. In Stoughton v. Leigh, 4 Taunt. 402, a widow 
 was held entitled to dower of mines, not only in lands in which her 
 husband had been seised in his lifetime and during coverture, but 
 also in those which were in the lands of other persons, the minerals 
 or substratum of which had been conveyed to him. It was also 
 ruled, that in assigning her dower, the sheriff should set off to her 
 not one-third of the profits but one-third of the mines themselves, 
 and that the partition might be made either by metes and bounds, or 
 by directing separate alternate periods of enjoyment. 
 
 It is not strange, therefore, that it had been held in this State, 
 before the controversy between these parties was first here, that an 
 unrestricted right to take and carry away all the coal in a tract of 
 land is a corporeal right and exclusive. In Benson v. The Miners' 
 Bank, 8 Harris, 370, we have this case: Reese was seised of two 
 undivided third parts of a tract of land, and of one-fifth of all the 
 fossil coal under it. He made a deed for the tract to Kepner, con- 
 taining the clause " excepting and for ever reserving the liberties 
 and privileges for the heirs and legal representatives of Samuel
 
 II. J LONGITUDINAL SUBDIVISIONS. IO7 
 
 Potts, deceased (of whom he was one), to dig, take, and carry away 
 all the stone coal that is or may hereafter be found on the above 
 described tract of land." The judgment of this court was, that the 
 deed conveyed no part of the stone coal to the grantee of the 
 land. Of course, it remained reserved or ungranted as a corporeal 
 hereditament. 
 
 Thus, after a careful review of the question, we are constrained to 
 hold that, by the deed from Caldwell to Greer, the title to the coal 
 in the lands then owned and occupied by the grantor was conveyed, 
 and not a mere license or incorporeal right. Such was the opinion 
 of this court in 1855, when the same deed was here for construction, 
 and the very able argument of the counsel for the plaintiff in error 
 has failed to convince us that the court was then mistaken. * * * 
 
 The judgment is affirmed.
 
 CHAPTER II. 
 Constituents and Incidents of Land. 
 
 I. The soil and accretions thereto. 
 
 i. Accretions. 
 
 DEERFIELD v. ARMS. 
 
 17 Pickering (Mass.), 41. — 1835. 
 
 Writ of entry to recover a parcel of land formed by alluvial 
 deposits on the bed and margin of Deerfield river. 
 
 Shaw, C. J., delivered the opinion of the court. — There are 
 several points in this cause to which it seems proper to allude in the 
 outset, and upon which we entertain no doubt. 
 
 In the first place it seems very clearly settled that upon all rivers 
 not navigable (and all rivers are to be deemed not navigable above 
 where the sea ebbs and flows), the owner of land adjoining the river 
 is prima facie owner of the soil to the central line, or thread of the 
 river, subject to an easement for the public to pass along and over 
 it with boats, rafts and river craft. This presumption will prevail 
 in all cases in favor of the riparian proprietor unless controlled by 
 some express words of description which exclude the bed of the 
 river, and bound the grantee on the bank or margin of the river. 
 In all cases, therefore, where the river itself is used as a boundary, 
 the law will expound the grant as extending adfihan medium aqua. 
 
 We also consider it as a well-settled principle of law resulting in 
 part from the former, that where land is formed by alluvion, in a 
 river not navigable, by slow and imperceptible accretion, it is the 
 property of the owner of the adjoining land, who for convenience, 
 and by a single term, may be called the riparian proprietor. And 
 in applying this principle, it is quite immaterial whether this alluvion 
 forms at or against the shore, so as to cause an extension of the 
 shore or bank of the river, or whether it forms in the bed of the 
 river and becomes an island. And where an island is so formed in 
 the bed of the river as to divide the channel and form partly on 
 1 side of the thread of the river, if the land on the opposite 
 sides of the river belong to different proprietors, the island will be 
 
 [108]
 
 I. i.] ACCRETIONS. IO9 
 
 divided according to the original thread of the river, between the 
 rival proprietors. 
 
 This view of the subject disposes of one of the questions of fact 
 in relation to which some evidence was given; namely, whether the 
 alluvial formation in controversy was separated by water from the 
 eastern bank of the river, claimed by the demandants as riparian 
 proprietors, or whether the newly formed land, at that point, extends 
 quite to the eastern bank. We think this fact entirely immaterial to 
 the rights in controversy between these parties. [The Judge then 
 discusses the title of Deerfield to the lands on the east bank of the river 
 {deciding in favor of such title) and the principles on which the accretion 
 is to be divided among the several riparian proprietor s.] 
 
 GODDARD v. WINCHELL. 
 
 86 Iowa, 71. — 1892. 
 
 Replevin for an aerolite. Appeal from judgment for plaintiff. 
 
 Granger, J. — The District Court found the following facts, with 
 some others not important on this hearing: " (1) That the plaintiff, 
 John Goddard, is, and has been since about 1857, the owner in fee 
 simple of the north half of section No. 3, in township No. 98, range 
 No. 25, in Winnebago county, Iowa, and was such owner at the time 
 of the fall of the meteorite hereinafter referred to. (2) That said 
 land was prairie land, and that the grass privilege for the year 1890 was 
 leased to one James Elickson. (3) That on the second day of May, 
 1890, an aerolite, passed over northern and northwestern Iowa, and 
 the aerolite, or fragment of the same, in question in this action, 
 weighing, when replevied, and when produced in court on the trial 
 of this cause, about sixty-six pounds, fell onto plaintiff's land, 
 described above, and buried itself in the ground to a depth of three 
 feet, and became imbedded therein at a point about twenty rods 
 from the section line on the north. (4) That the day after the 
 aerolite in question fell it was dug out of the ground with a spade by 
 one Peter Hoagland, in the presence of the tenant, Elickson; that 
 said Hoagland took it to his house, and claimed to own same, for 
 the reason that he had found same and dug it up. (5) That on May 
 5, 1890, Hoagland sold the aerolite in suit to the defendant, H. V. 
 Wincheli, for $105, and the same was at once taken possession of by 
 said defendant, and that the possession was held by him until same 
 was taken under the writ of replevin herein; that the defendant
 
 IIO CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 knew at the time of his purchase that it was an aerolite, and that it 
 fell on the prairie south of Hoagland's land. . . . (10) I find 
 the value of said aerolite to be one hundred and one dollars ($101), 
 as verbally stipulated in open court by the parties to this action; 
 that the same weighs about sixty-six pounds, is of a black, smoky 
 color on the outside, showing the effects of heat, and of a lighter 
 and darkish gray color on the inside; that it is an aerolite, and fell 
 from the heavens on the second of May, 1890; and that a member 
 of Hoagland's family saw the aerolite fall, and directed him to it." 
 As conclusions of law, the District Court found that the aerolite 
 became a part of the soil on which it fell; that the plaintiff was the 
 owner thereof; and that the act of Hoagland in removing it was 
 wrongful. It is insisted by the appellant that the conclusions of law 
 are erroneous; that the enlightened demands of the time in which we 
 live call for, if not a modification, a liberal construction, of the 
 ancient rule " that whatever is affixed to the soil belongs to the 
 soil," or the more modern statement of the rule, that " a permanent 
 annexation to the soil of a thing in itself personal makes it a part 
 of the realty. ' ' In behalf of appellant is invoked a rule alike ancient 
 and of undoubted merit — " that of title by occupancy " — and we 
 are cited to the language of Blackstone, as follows: " Occupancy 
 is the taking possession of those things which before belonged to 
 nobody; " and " Whatever movables are found upon the surface of 
 the earth, or in the sea, and are unclaimed by any owner, and sup- 
 posed to be abandoned by the last proprietor, and as such are 
 returned into the common stock and mass of things, and, therefore, 
 they belong, as in a state of nature, to the first occupant or finder." 
 In determining which of these rules is to govern in this case, it will 
 be well for us to keep in mind the controlling facts giving rise to 
 the different rules, and note wherein, if at all, the facts of this case 
 should distinguish it. The rule sought to be avoided has alone 
 reference to what becomes a part of the soil, and hence belongs to 
 the owner thereof, because attached or added thereto. It has no 
 reference whatever to an independent acquisition of title, that is 
 to an acquisition of property existing independent of other property. 
 The rule invoked has reference only to property of this independent 
 character, for it speaks of movables " found upon the surface of the 
 earth or in the sea." The term " movables " must not be con- 
 strued to mean that which can be moved, for, if so, it would include 
 much known to be realty; but it means such things as are not 
 rally parts of earth or sea, but are on the one or in the other. 
 Animals exist on the earth and in the sea, but they are not, in a 
 proper sense, parts of either, If we look to the natural formation
 
 I. i.] ACCRETIONS. I I I 
 
 of the earth and sea, it is not difficult to understand what is meant 
 by " movables" within the spirit of the rule cited. To take from 
 the earth what nature has placed there in its formation, whether at 
 the creation or through the natural processes of the acquisition and 
 depletion of its particular parts, as we witness it in our daily observa- 
 tions, whether it be the soil proper or some natural deposit, as of 
 mineral or vegetable matter, is to take a part of the earth and not 
 movables. 
 
 If, from what we have said, we have in mind the facts giving rise 
 to the rules cited, we may well look to the facts of this case to 
 properly distinguish it. The subject of the dispute is an aerolite of 
 about sixty-six pounds weight, that " fell from the heavens " on the 
 land of the plaintiff, and was found three feet below the surface. It 
 came to its position in the earth through natural causes. It was 
 one of nature's deposits, with nothing in its material composition to 
 make it foreign or unnatural to the soil. It was not a movable thing 
 " on the earth." It was in the earth, and in a very significant sense 
 immovable; that is, it was only movable as parts of earth are made 
 movable by the hand of man. Except for the peculiar manner in 
 which it came, its relation to the soil would be beyond dispute. It 
 was in its substance, as we understand, a stone. It was not of a 
 character to be thought of as " unclaimed by any owner," and, 
 because unclaimed, " supposed to be abandoned by the last proprie- 
 tor," as should be the case under the rule invoked by the appellant. 
 In fact, it has none of the characteristics of the property contem- 
 plated by such a rule. 
 
 We may properly note some of the particular claims of appellant. 
 His argument deals with the rules of the common law for acquiring 
 real property, as by escheat, occupancy, prescription, forfeiture, and 
 alienation, which it is claimed were all the methods known, barring 
 inheritance. We need not question the correctness of the statement, 
 assuming that it has reference to original acquisition, as distinct 
 from acquisitions to soil already owned by accretion or natural causes. 
 The general rules of the law by which the owners of riparian titles 
 are made to lose or gain by the doctrine of accretions are quite 
 familiar. These rules are not, however, of exclusive application to 
 such owners. Through the action of the elements, wind and water, 
 the soil of one man is taken and deposited in the field of another; 
 and thus all over the country, we may say, changes are constantly 
 going on. By these natural causes the owners of the soil are giving 
 and taking as the wisdom of the controlling forces shall determine. 
 By these operations one may be affected with a substantial gain, and 
 another by a similar loss. These gains are of accretion, and the
 
 112 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 deposit becomes the property of the owner of the soil on which it 
 is made. 
 
 A scientist of note has said that from six to seven hundred of 
 these stones fall to our earth annually. If they are, as indicated in 
 argument, departures from other planets, and if among the planets 
 of the solar system there is this interchange, bearing evidence of 
 their material composition, upon what principle of reason or authority 
 can we say that a deposit thus made shall not be of that class of 
 property that it would be if originally of this planet and in the same 
 situation? If these exchanges have been going on through the count- 
 less ages of our planetary system, who shall attempt to determine 
 what part of the rocks and formations of especial value to the 
 scientist resting in and upon the earth, are of meteoric acquisition, 
 and a part of that class of property designated in argument as 
 " unowned things," to be the property of the fortunate finder instead 
 of the owner of the soil, if the rule contended for is to obtain? It 
 is not easy to understand why stones or balls of metallic iron, 
 deposited as this was, should be governed by a different rule than 
 obtains from the deposit of boulders, stones, and drift upon our 
 prairies by glacier action ; and who would contend that these deposits 
 from floating bodies of ice belong, not to the owner of the soil, but 
 to the finder? Their origin or source may be less mysterious, but 
 they, too, are " tell-tale messengers " from far-off lands, and have 
 value for historic and scientific investigation. 
 
 It is said that the aerolite is without adaptation to the soil, and 
 only valuable for scientific purposes. Nothing in the facts of the 
 case will warrant us in saying that it was not as well adapted for use 
 by the owner of the soil as any stone, or, as the appellant is pleased to 
 dominate it, " ball of metallic iron." That it may be of greater 
 value for scientific or other purposes may be admitted, but that fact 
 has little weight in determining who should be its owner. We can- 
 not say that the owner of the soil is not as interested in, and would 
 not as readily contribute to, the great cause of scientific advance- 
 ment as the finder, by chance or otherwise, of these silent messen- 
 gers. This aerolite is of the value of $101, and this fact, if no other, 
 would remove it from uses where other and much less valuable 
 materials would answer an equally good purpose, and place it in the 
 sphere of its greater usefulness. 
 
 The rule is cited, with cases for its support, that the finder of lost 
 articles, even where they are found on the property, in the building, 
 or with the personal effects <>f third persons, is the owner thereof 
 against all the world except the true owner. The corectness of the 
 ride may be conceded, but its application to the case at bar is very
 
 I. 2.] LEGAL CHARACTER OF DETACHED SOIL. II3 
 
 doubtful. The subject of this controversy was never lost or aban- 
 doned. Whence it came is not known, but, under the natural law 
 of its government, it became a part of this earth, and, we think, 
 should be treated as such. It is said by the appellant that this case is 
 unique, that no exact precedent can be found, and that the conclu- 
 sion must be based largely upon new considerations. No similar 
 question has, to our knowledge, been determined in a court of last 
 resort. In 15 American and English Encyclopaedia of Law, page 
 388, is the following language: " An aerohte is the property of the 
 owner of the fee upon which it falls. Hence a pedestrian on the 
 highway, who is first to discover such a stone, is not the owner of 
 it; the highway being a mere easement for travel." It cites the 
 case of Mans v. Amana Soc, 16 Alb. Law J. 76, and 13 Ir. Law T. 
 381, each of which periodicals contains an editorial notice of such a 
 case having been decided in Illinois, but no reported case is to be 
 found. Anderson's Law Dictionary states the same rule of law, 
 with the same references, under the subject of "Accretions." In 
 20 Alb. Law J. 299, is a letter to the editor from a correspondent, 
 calling attention to a case determined in France, where an aerolite 
 found by a peasant was held not to be the property of the " pro- 
 prietor of the field," but that of the finder. These references are 
 entitled, of course, to slight, if any, consideration, the information 
 as to them being too meagre to indicate the trend of legal thought. 
 Our conclusions are announced with some doubts as to their cor- 
 rectness, but they arise not so much from the application of known 
 rules of law to proper facts as from the absence of defined rules for 
 these particular cases. The interest manifested has induced us to 
 give the case careful thought. Our conclusions seem to us nearest 
 analogous to the generally accepted rules of law bearing on kindred 
 questions, and to subserve the ends of substantial justice. The 
 question we have discussed is controlling in the case, and we need 
 not consider others. 
 
 The judgment of the District Court is affirmed. 
 
 2. Soil or Rock Detached. 
 McGONIGLE v. ATCHISON. 
 
 33 Kansas, 726. — 1885. 
 
 [Reported herein at p. 65.] 
 
 LAW OF PROP. IN" LAND — S
 
 114 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 NOBLE v. SYLVESTER. 
 
 42 Vermont, 146. — 1869. 
 
 Trover for a stone. Defendant appeals from judgment for 
 plaintiff. The facts are sufficiently set forth in the opinion. 
 
 Pierpoint, C. J. — It appears from the case that the stone in con- 
 troversy was split out and removed from its original connection and 
 position in the ledge, and laid up preparatory to its removal from 
 the farm on which it was originally situated. This was done by the 
 plaintiff, who was then the owner of the farm, and the object of 
 splitting it out and putting it in such position was to remove it from 
 the farm and use it in the construction of a tomb. This being the 
 case, the stone may be regarded as being governed by the same 
 principles that are applicable to timber, fence rails, and the like, that 
 have been removed from the freehold in fact, but remain upon the 
 premises for the purpose of being used there in the construction of 
 fences, etc., and if on the land at the time the premises are conveyed 
 they will pass by the deed, but if they are there not for the purpose 
 of being used upon the premises, but to be removed elsewhere, then 
 they do not pass by the deed. So of this stone, it having been 
 severed from the freehold for the purpose of removing it from the 
 premises to be used for a specific purpose elsewhere, we think it 
 would not necessarily pass by the deed; but as there was nothing 
 about the stone, or the position in which it was placed, to indicate 
 the use to which it was to be put, whether for fencing or underpin- 
 ning, or the like, upon the premises, or for use elsewhere, it was a 
 proper subject of explanation between the plaintiff and Wallace, at 
 the time the deed was executed, and such explanation might well be 
 by parol; it was not an exception of that which would otherwise 
 pass by the deed, but the giving to Wallace a knowledge of facts 
 showing that it would not pass, and thus avoiding all misunder- 
 standing or controversy about it in the future. The fact that such 
 information was accompanied by an exception in form, does not 
 vary the principle. We think there was no error in admitting the 
 parol testimony. And in submitting the question to the jury whether 
 there was a parol exception or not, if there was error, it is not an 
 error of which the defendant has any right to complain, as it was 
 putting the case, in this respect, in quite as favorable a light as he 
 could legally claim. 
 
 We think it was not error in the court to allow the plaintiff to 
 show his own sayings in respect to his ownership of the stone made 
 after the deed to Wallace, not for the purpose of proving what took
 
 I. 2.] LEGAL CHARACTER OF DETACHED SOIL. I 1 5 
 
 place between him and Wallace at the time the deed was made, but 
 for the purpose of showing that he had not abandoned the property, 
 inasmuch as the defendant in his pleadings and proof sets up the 
 fact that the plaintiff had permitted the stone to remain where it 
 was when the deed was executed up to the time the defendant took 
 it away, as one ground of defense, and we are to assume that the 
 court, in admitting the testimony for that special purpose, took 
 care that the jury should understand that they were not to use, or 
 regard, it for any other. 
 
 But it is insisted that even if the plaintiff did retain the property 
 in this stone, so that the title did not pass to. Wallace, still he has 
 lost his right to it by suffering it to remain on the premises of Wallace 
 down to the time it was sold to the defendant and he took it away. 
 
 The jury have found that the stone was excepted in the sale and 
 remained the property of the plaintiff; that it was left upon the 
 premises with the knowledge and assent of Wallace, and remained 
 there over thirty years before the defendant purchased it of Wallace. 
 The case shows that Wallace never interfered with the stone in 
 any manner, never made any claim to it, never objected to its 
 remaining there, or ever requested the plaintiff to remove it, 
 but suffered it to remain there just as it was left when the deed was 
 executed. The defendant now claims that the title to this stone 
 became vested in Wallace by lapse of time, and we are called upon 
 by his counsel to say, if thirty years under such circumstances is not 
 sufficient to change the title, what time is sufficient? We do not feel 
 called upon to give a definite answer to that question; but we feel 
 safe in saying when the property of one man is left upon the 
 premises of another, with the knowledge and assent of the owner of 
 such premises, that so long as such owner suffers such property to 
 remain upon his premises, without objection or request to remove 
 it, exercising no act of ownership over it and making no claim to it, 
 just so long the title to the property remains the same, and is not 
 divested from the one and vested in the other by mere lapse of 
 time. 
 
 Wallace never was the owner of this stone, and if the plaintiff had 
 abandoned it, it would not necessarily revert to Wallace; but the 
 case does not show an abandonment, and it does not appear to have 
 been put upon that ground at the trial below. 
 
 The lapse of time was an element proper to be considered by the 
 jury in determining the question submitted to them, and it is claimed 
 that the County Court erred in not giving the jury special instruc- 
 tions in respect to it. It does not appear that there was any con- 
 troversy upon the trial as to the propriety of their considering it,
 
 Il6 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 and there was no request, from either side, that the court should 
 give any specific charge upon it. The evidence upon this point, as 
 upon all others, was submitted to the jury; it was doubtless com- 
 mented upon by the counsel on both sides in their arguments, and 
 we have no reason to suppose it was not duly considered and weighed 
 by the jury. Under the circumstances it was no more error to omit 
 to refer to this particular piece of testimony, than it was not to 
 refer to any or every piece of testimony, put in on either side, and 
 it has never been regarded the legal duty of the court to refer 
 specifically to each and every piece of testimony in the case, in the 
 charge, especially when there is no such request. We find no error 
 in the trial below. 
 
 The judgment of the County Court is affirmed. 
 
 II. Water as "land." 
 
 i. Nature of Property in Surface or Standing Waters. 
 CURTISS v. AYRAULT. 
 
 47 New York, 73. — 1871 
 [Reported herein at p. 126.]' 
 
 2. Nature of Property in Running Waters. 
 GARWOOD v. N. Y. CENT. AND HUD. R. R. R. CO. 
 
 83 New York, 400. — 1881. 
 
 Danforth, J. — The argument in behalf of the appellant raises no 
 doubt as to the correctness of the judgment rendered by the Supreme 
 Court, or its conformity to well-settled rules of law and equity. 
 The diversion of the water is conceded; the jury have found that it 
 was injurious to the plaintiff; he was, therefore, entitled to damages 
 already sustained. It was continuous and under a claim of right; 
 and to prevent further injury preventive relief was proper, for without 
 it there would be vexatious litigation and multiplicity of suits. Story's 
 Eq Jur. vol. 2, sec. 927; Gardner v. Newburgh, 2 Johns. Ch. 162; 
 Swindon Water -Works Co. v. W. & B. Canal Co., 7 Eng. & Irish 
 Appeal Cas. (L. K.), 697; Campbell v. Seaman, 63 N. Y. 568. The 
 plaintifl has obtained nothing more; nor has the court in its deci- 
 
 1 Sec |i|). [26 and [30 in particular. — En.
 
 II. 2.] PROPERTY IN RUNNING WATERS. 117 
 
 sion gone beyond the issues in the action. In measuring the rights 
 and obligations of the defendant, it was treated as a riparian pro- 
 prietor, for the purpose of enjoying the powers especially granted to 
 it, and such as might be necessary to carry those powers into effect. 
 This was proper in view of the concession by the plaintiff that the 
 defendant was the owner of the land upon which the water was 
 drawn. How it became such owner, whether by purchase or by 
 proceedings under the statute (Laws of 1850, ch. 140, sec. 14) does 
 not appear. The court, therefore, was not called upon to determine 
 what the defendant's position would have been if the lands had 
 been acquired under the statute, supra, and properly regarded the 
 question as one to be determined by the law regulating the rights of 
 upper and lower riparian owners. That law is well settled, and in 
 defining it the authorities cited by the parties to this appeal agree. 
 Each has a right to the ordinary use of water flowing past his land, 
 that is, ad lavandum et ad potandum, for domestic purposes and his 
 cattle, although some portion may be thereby exhausted; and this 
 is so, without regard to the effect which such use may have upon the 
 lower owner. The water may also be used for irrigation or for 
 manufacturing purposes. The cases cited by the appellant are 
 abundant to show this; but in every one the irrigation is of the land 
 to which the right to use the water is an incident, or with which the 
 manufacturing purpose is connected, but even this privilege cannot 
 be exercised if thereby the lawful use of the water by a lower pro- 
 prietor is interfered with to his injury. Miner v. Gilmour, 12 Moore's 
 P. C. 156; Tyler v. Wilkinson, 4 Mason, 397. Now, in the case 
 before us, the defendant has done something more; it has not been 
 content with exercising this privilege; it has diverted a considerable 
 portion of the stream not for any use upon the land past which it 
 flows, but for the transaction of its business in other places and for 
 purposes in no respect pertaining to the land itself. The pipes and 
 reservoirs of the defendant are not laid or constructed for the mere 
 purpose of detaining the water a short time, or applying it to 
 machinery or other object upon the land itself, and afterward restor- 
 ing it, but for facility in filling the defendant's locomotives, in order 
 that they, with power generated from it, may pass as the interest of 
 the defendant may require, to the east or west, returning no portion 
 of it, even in the form of vapor, to the stream from which it was 
 taken. So far as the plaintiff is concerned, it has carried away from 
 his premises the water, as effectually as if it had been turned into 
 another channel and discharged at Albany or Buffalo; and from 
 this, as the jury has found, he has sustained damage. Not only 
 this, but it has been done under a claim of right by the defendant,
 
 Il8 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CM. II. 
 
 which, if acquiesced in by the plaintiff, would in course of time ripen 
 into a realty and destroy the incident of his property — the right of 
 the plaintiff as riparian owner to have the water flow as it had there- 
 tofore been accustomed to flow. For in that case, although the 
 defendant could not claim the right as riparian proprietor, it might 
 claim it by prescription; and to prevent this result also, the plaintiff 
 had a clear right to an injunction. The terms of the one granted 
 are sufficiently well guarded. The defendant is " restrained " only 
 " from diverting the water, to the injury of the plaintiff." But the 
 learned counsel for the appellant contends that inasmuch as both 
 plaintiff and defendant require the water for artificial as distinguished 
 from natural uses — the one as a power for mill purposes, the other 
 as material or the means of producing power for railroad purposes — 
 it may be abstracted by the defendant, even to the other's injury, 
 although he concedes the rule would be different if the plaintiff 
 required the water for natural purposes. It is difficult to see how 
 such a distinction can be maintained. The plaintiff requires the 
 current because its momentum supplies power. The defendant, as 
 riparian owner, has no right to remove the water and so diminish it. 
 If the defendant's use was for natural purposes, there might be some 
 reason for giving it priority; but this is not pretended. To justify 
 a use beyond that, a grant or license would be necessary. The 
 defendant exhibits neither, but in its answer asserts that its use has 
 been adverse to the plaintiff for more than twenty years. The evi- 
 dence does not sustain the claim. As to it, therefore, the case 
 presents no exception to the rule, that a riparian proprietor has no 
 right to divert any part of the water of the stream into a course 
 different from that in which it has been accustomed to flow, for any 
 purpose, to the prejudice of any other riparian owner. This is the 
 doctrine both of the common and civil law, 3 Kent's Com. 585, and 
 it stands upon the familiar maxim, sic utere tuo ut non laedas alieno. 
 In substance the defendant's claim is, that it has a right to use all 
 the water it pleases; but it does not show the origin or foundation 
 of the right. As the case stands, then, the defendant has diverted 
 the water without right and to the plaintiff's injury; its use, there- 
 fore, could not be reasonable, and the inquiry desired by the defend- 
 ant, as to whether it was or not, would not be applicable. To this 
 effect also are the cases cited in behalf of the appellant. One much 
 insisted upon is Elliott v. Fitchburg R. R. Co., 10 Cush. 191. There, 
 also, the defendants used the water of the stream " for furnishing 
 their locomotive steam engines with water." The plaintiff sought 
 to recover nominal damage, without proof of actual damage; but 
 the court held against him, and the conclusion was that one riparian
 
 II. 2.] PROPERTY IN RUNNING WATERS. II9 
 
 proprietor cannot maintain an action against an upper proprietor for 
 a diversion of part of the water of a natural water-course flowing 
 through their lands, unless such diversion causes the plaintiff actual, 
 perceptible damage. It should be noticed that this was an action 
 at law. The Earl of Sandivich v The Great Northern R. R. Co., L. 
 R. 10 Ch. Div. 707, was a case in equity and upon facts, with one 
 exception hereafter noted, not unlike those now before us. The 
 plaintiff asked both damages and an injunction. It was held that 
 the purpose for which the water was taken was a lawful purpose; 
 that it was a reasonable enjoyment of the property of the defendant; 
 that the quantity taken was not excessive, and when the quantity 
 returned to the stream was taken into consideration, the diversion 
 was very slight. The court says: "Is that a case in which, if 
 there is nothing else in it, the plaintiff could ask in this court for an 
 injunction? What injunction is he entitled to? Is there any damage 
 donetohim?" And again says: " Nothing that the defendants have 
 done has exceeded the limits of their lawful right to deal with the 
 water, and there is no particle of evidence to show that the plaintiffs 
 have suffered injury, or that the right which they enjoyed and are 
 entitled to enjoy has been in any degree invaded or interfered with by 
 anything that has been done by the defendants; " and the bill was 
 denied. Now, the exception which distinguishes the cases cited 
 from the one in hand is this: Here the jury have found, on suffi- 
 cient evidence, that the defendant has so diverted the water of the 
 creek above the plaintiff as to " perceptibly reduce the volume of 
 water flowing therein," and " materially reduce or diminish the 
 grinding power of the plaintiff's mill," and in consequence thereof, 
 that he has sustained damage to a substantial amount. In the cases 
 cited similar facts are wanting. They lie at the foundation of the 
 one before us and are sufficient to call for the interposition of a 
 court, whether of law or equity. 
 
 The effect and proper construction of the act of 1869 (Laws of 
 1869, chap. 237), or its amendment (Laws of 1877, chap. 224), con- 
 ferring upon railroad corporations certain powers to take water, are 
 not before us, for the plaintiff is not shown to have acquired any 
 right thereunder. As the case now stands, no reason is shown why 
 the judgment appealed from should not be affirmed, and that, I 
 think, must be the result of this appeal. 
 
 Judgment appealed from affirmed, with costs.
 
 120 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 Shepley, J., in HEATH v. WILLIAMS. 
 
 25 Maine, 209. — 1845. 
 
 The report [of the referee] further states " that defendant has a 
 clothing mill on the stream above plaintiff's dam. It is fed by a dam 
 which, with its predecessor on the same site, has stood for more than 
 twenty years prior to the alleged trespass. That the plaintiff's 
 dam and mill were built between the years 1829 and 1833. That the 
 defendant next contended " that as his mill and dam were the oldest, 
 he had a right of priority to the water and might lawfully break the 
 flume, as he did." Referee was of this opinion, unless the legal 
 principle was controlled or rendered inapplicable by other considera- 
 tions belonging to the case. 
 
 The cases cited in the arguments of counsel decide, that priority 
 of appropriation of the water of a stream comers no exclusive right 
 to the use of it. A riparian proprietor who owns both banks of a 
 stream has a right to have the water flow in its natural current with- 
 out any obstruction injurious to him, over the whole extent of his 
 land, unless his rights have been impaired by grant, license, or an 
 adverse appropriation for more than twenty years. The defendant 
 appears to be the undisputed owner of the land on both banks of 
 the stream below his mill nearly or quite to the plaintiff's dam, 
 unless that title shall prove to be defective in the manner hereafter 
 stated. While it is contended that the plaintiff's " dam and mill were 
 erected with suuh knowledge and concurrence of the defendant's 
 grantors as amounted to a license," it is not contended that he has 
 acquired any right by grant or by an appropriation for more than 
 twenty years to cause the water to be flowed back upon the defend- 
 ant's mill. It is not necessary to decide whether the defendant had 
 acquired a right to have the water of the stream so used as to pre- 
 vent its being thereby flowed back upon his mill by an appropriation 
 of it without such an occurrence for more than twenty years, as 
 decided in the case of Saunders v. Newman, 1 B. & Aid. 258. 
 Although he could not derive any right from the statute, c. 126, 
 sec. 2, or from priority of appropriation, yet the common law would 
 afford him sufficient protection against the flow of water back upon 
 his own land to the injury of his mill by the acts of another. Failing 
 to obtain relief from the continuance of such an injury without it, 
 In- might lawfully < titer upon the land of the plaintiff and remove, so 
 fir a ary, the obstruction which occasioned it. 1 
 
 1 This doctrine ■>■ to priority oi appropriation is modified in some of the States 
 by ili-- " Mill acl tiled. Sec note to Heath v. Williams in 43 Am. Dec. 
 
 265 at p. 276. I 'i omi "i iIh- western States and territories it is modified also 
 t<, meel the ne< oi irrigation and of mining. Id. at p. 279. — Ed.
 
 II. 2.] PROPERTY IN RUNNING WATERS. 121 
 
 CORNING v. TROY IRON AND NAIL FACTORY. 
 40 New York, 191. — 1869. 
 
 This action was brought to restrain defendant from diverting the 
 waters of Wynant's Kill from along the line of plaintiff's land and 
 to compel it to restore to their bed a part of the waters of said Kill 
 already diverted by it. 
 
 At the place in question the Kill makes a bend to the north leaving 
 a one acre-parcel in the bend on the south of the creek. A seven- 
 acre parcel is on the northerly side of the creek and surrounds the 
 one-acre parcel on the east, north and west. The defendant owns the 
 one-acre parcel and for many years held the seven-acre parcel under 
 a lease which expired three or four years before this action was com- 
 menced. While leaseholder of the seven-acre lot defendant diverted 
 the stream from its channel between the two lots and caused it to 
 flow across the one-acre lot. The seven-acre parcel now belongs to 
 plaintiff. 
 
 The last judgment below was for plaintiff and the defendant 
 appeals therefrom to this court. 
 
 Grover, J. — * * * The defendant entered into possession 
 and occupied under this lease for the entire term. These facts 
 show that the defendant was bound to restore the land with the 
 water running in its natural channel, at the expiration of the lease, 
 unless relieved from such obligation by some immediate act of the 
 lessors, or of those holding their title. While in possession under 
 this lease, in 1839, the defendant constructed an artificial channel 
 for the stream, by which it was wholly diverted from the seven 
 acres, and conducted across the excepted acre, and used upon, a 
 large overshot wheel, constructed to operate the extensive machinery 
 of the defendant. At this time the plaintiffs were the owners of six 
 acres upon the stream, below the premises in question, upon which 
 was extensive machinery, operated by them, by means of the water 
 power of the creek, but having no interest in the seven acres. The 
 plaintiffs drew down their pond at this time, to enable the defendant 
 to excavate a tail race from its wheel to the bed of the stream. It 
 is insisted by the defendant that this precludes the claim of the 
 plaintiffs to have the stream restored to its natural channel, thereby 
 causing a great loss to the defendant in respect to the operation of 
 its machinery. The answer to this is, that the plaintiffs base their 
 claim to such restoration upon their title to the seven acres, which 
 they obtained, in part, in 1852, and the residue in 1856, and that it 
 was known to the defendant at the time that the plaintiffs then had
 
 122 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 no interest therein. It was, therefore, not then in their power to 
 affect any right appurtenant to the reversion in the seven acres, as 
 against the then owners or those subsequently acquiring the title. 
 It is further insisted by the defendant that Defreest, one of the 
 defendant's lessors, was precluded from requiring the restoration of 
 the stream, by his assent to its diversion at the time it was made in 
 1839, and that if his right was thus cut off, no grantee from him 
 could assert, under his grant, any better right thereto than he had. 
 The conclusion is doubtless correct under the facts of this case, as 
 the water was in fact diverted at the time Defreest conveyed to the 
 plaintiffs. This was sufficient to put the plaintiffs upon inquiry as 
 to any right, legal or equitable, of the defendant to make the diver- 
 sion. Such inquiry would have led to information of the acts of 
 Defreest, and the plaintiffs are, therefore, chargeable with notice of 
 such acts. They are not, therefore, to be regarded as bona fide pur- 
 chasers in this respect, but take the land subject to any legal or 
 equitable right of diversion the defendant had as against Defreest. 
 It must, therefore, be determined what such right, if any, was as 
 against the latter. The case shows that Defreest lived at the time 
 in the immediate vicinity, was frequently at the place while the work 
 was in progress, conversed several times with the managing agent 
 of the defendant, expressed to such agent his opinion that the change 
 would improve the water power, and would benefit his property in 
 the vicinity. That he knew that the contemplated change and 
 improvements would cause the expenditure of a large sum of money, 
 and that while these large expenditures were being incurred, made no 
 objection to the diversion of the water. It is claimed that he must 
 have known, from the amount of the expenditure and the character 
 of the improvement, that the diversion was designed to be per- 
 manent. The latter fact is strongly controverted by the plaintiff; 
 but, in considering this question, I shall assume its truth. It is 
 insisted by the defendant that these facts constitute an estoppel 
 upon Defreest from asserting any claim to a restoration of the 
 water to the prejudice of the defendant. The answer to this position 
 is, that the defendant at the time had not only the possession of the 
 seven acres, and the full control of the water belonging thereto, 
 but, also, the right of possession and control for the unexpired term 
 of the lease, a period of thirteen years, and that during that time 
 Defreest had no right to object to any use of the stream by the 
 d ifendant, except such as worked an injury to the reversion, which 
 the diversion of the stream, dining that period, clearly would not. 
 That the defendant, at the time, knew that upon the expiration of 
 the lease its right to divert the water would cease under it, just as
 
 II. 2.] PROPERTY IN RUNNING WATERS. 123 
 
 well as Defreest did, and there was no pretense of any other claim 
 by the defendant to any other right to divert the stream from the 
 seven acres. The defendant was not, therefore, in any sense, misled 
 or deceived as to its right by anything done or omitted by Defreest. 
 The case does not, therefore, come within the principle of the class 
 of cases cited by defendant's counsel, holding that when one, in the 
 belief that he has title, makes improvements with the knowledge 
 and encouragement of the owner, such owner shall be estopped from 
 asserting his title to the prejudice of the party having made such 
 improvements. The estoppel is based upon the fraudulent conduct 
 of the owner. There is no such reason applicable to Defreest. He 
 was not estopped, and it follows that the plaintiffs, as his grantees, 
 are not. There is no pretense of an estoppel upon the co-tenants 
 of Defreest, who are also grantees of the plaintiffs. It is insisted 
 by the defendant that the plaintiffs acquired no right to a restora- 
 tion of the stream, under their deed, although such right existed in 
 their grantors, for the reason that the diversion was prior to the 
 grant, and that the defendant was holding the stream adversely at 
 the time. The land was at the time in the possession of the 
 grantors. There is no question but the title to that passed by the 
 grant to the plaintiffs, with everything incident or pertaining thereto. 
 The right to the flow of the stream in its natural channel was an inci- 
 dent to the land. 3 Kent's Com. 439, 1st R. S. sec. 147, p. 739, 
 declares that grants of land shall be void when such lands shall, at 
 the time, be in the actual possession of another, claiming under a 
 title adverse to that of the grantor. This applies to an adverse 
 holding of land, and not to such holding of some right appurtenant 
 thereto, which passes with the land. The purchaser of the land is 
 entitled to such appurtenant rights. Mason v. Hill, 4 Barn. & 
 Adolphus. It follows that the plaintiffs had the right to have the j 
 stream flow in its natural channel along the seven acres purchased ' 
 by them. For a violation of this right by the defendant they had 
 a right of recovery, without proof of actual damage, irrespective of 
 any use of the water power by them. Tyler v. Wilkison, 4 Mason, 
 400; 3 Kent, 539; Adams v. Bunny, 25 Vermont, 225; Embury v. 
 Oicen y 6 Exch. 368; Townsend v . McDonald, 2 Kernan, 381. It fol- 
 lows that the plaintiffs were entitled to recover damages of the 
 defendant for the wrongful diversion of the stream. It may now be 
 assumed as settled that the plaintiffs could, in the same action, 
 obtain all the relief to which the facts entitled them, arising out of 
 the diversion of the water, whether such relief was legal or equitable, 
 or both. Code, sec. 167. They were clearly entitled to recover 
 damages, and the judge, therefore, erred in dismissing the com- 
 
 & 

 
 124 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 plaint, and the General Term were right in reversing the judgment 
 and ordering a new trial. This leads to an affirmance of the order 
 appealed from, and to final judgment against the defendant; but 
 whether such judgment shall be for damages only, or in addition 
 thereto shall award a mandatory injunction for the restoration of 
 the water to its natural channel, remains to be considered. It is 
 urged by the defendant that the latter ought not to be included foj> 
 various reasons, the principal of which are, that it would be pro- 
 ductive of great injury to the defendant, and be of little benefit to 
 the plaintiffs. The former fact is established by the evidence. 
 The latter rests upon the hypothesis that, inasmuch as the plaintiffs 
 have not heretofore used the power and have made no preparations 
 to use it, they do not desire it for use. The facts show that its 
 restoration would give a power sufficient for a grist-mill grinding 
 fifteen bushels per hour, or a cotton factory with forty looms. The 
 question then comes to this, whether the defendant, who has wrong- 
 fully diverted from the plaintiffs a stream affording such a water 
 power, shall be permitted to continue such wrongful diversion, and 
 thus to deprive the plaintiffs of what is clearly theirs without their 
 assent, upon the ground simply that its restoration would be a great 
 damage to it. In other words, that by its continuance wrongfully 
 to appropriate to its own use the property of the plaintiffs, it derives 
 a much greater benefit than the plaintiffs could by being restored to 
 their own. The bare statement of the question would seem to sug- 
 gest the only proper answer. The very idea of justice is to give to 
 each one his due. The use of the natural flow of the stream is the 
 due of the plaintiffs, and to justify withholding it from them requires 
 some better reason than loss to the wrongdoer consequent upon its 
 restoration. It is insisted that the equitable right of restoration has 
 been lost by delay. The statute of limitation, either at law or in 
 equity, has not attached so as to bar the right. The case has, there- 
 fore, no analogy to that class of cases where equity has refused 
 relief upon the ground that the legal remedy was barred by the 
 statute. The defendant has expended no money upon improve- 
 ments since the expiration of the lease, consequently the principle 
 of the cases holding that where, during the delay of a party in 
 asserting his right, expenditures have been made in improvements, 
 equity will not interfere, do not apply. Lewis v. Chapman, 3 Beavan, 
 is one of this 1 lass. The plaintiff sought to restrain, by injunction, 
 tin publication of a work of which he was the owner of a copyright. 
 It appeared that lie had lain still for six years and upwards and seen 
 the defendant expending his money in printing the work, etc., etc.; 
 upon this ground, equity refused to relieve the plaintiff. There are
 
 II. 2.] PROPERTY IN RUNNING WATERS. 125 
 
 numerous cases of this description found in the books, but they all 
 rest upon the same principle. All there is of the delay in this case 
 is, that the plaintiffs finding the defendant using their water power 
 have permitted it to continue such use for about four years 
 Clearly this indulgence furnishes no reason for the refusal of equity 
 to aid the plaintiffs in the recovery of their legal rights. It is 
 insisted by the defendant that equity ought not to interpose in 
 behalf of the plaintiffs, for the reason that they do not want the 
 water power afforded by the stream for use. This is a mere 
 assumption. It is true, they have not heretofore used the power, 
 perhaps, for the very good reason that they have not had the ability 
 to use it on account of the defendants witholding it from them. It 
 is said that the plaintiffs have erected no machinery for that purpose. 
 This is true. The plaintiffs have not constructed machinery to rot 
 while litigating with the defendant for the recovery of the stream. 
 But if the facts claimed were clearly established, it would not protect 
 the defendant in wrongfully withholding the stream. No man is 
 justified in withholding property from the owner when required to 
 surrender it, on the ground that he does not need its use. The 
 plaintiffs, may do what they will with their own. Upon established 
 principles this is a proper case of equity jurisdiction. First, upon 
 the ground that the remedy at law is inadequate. The plaintiffs 
 are entitled to the flow of the stream, in its natural channel. Legal 
 remedies cannot restore it to them and secure them in the enjoyment 
 of it. Hence the duty of a court of equity to interpose for the 
 accomplishment of that result. A further ground requiring the 
 interposition of equity is to avoid multiplicity of actions. If equity 
 refuses its aid the only remedy of the plaintiffs, whose rights have 
 been established, will be to commmence suits from day to day, and 
 thus endeavor to make it for the interest of the defendant to do 
 justice by restoring the stream to its channel. If the plaintiffs have 
 no other means of recovering their rights, there is a great defect in 
 jurisprudence. But there is no such defect. The right of the 
 plaintiffs to the equitable relief sought is established by authority 
 as well as principle. Webb v. The Portland Manufacturing Co., 3 
 Sumner, 190 and cases cited; Tyler v. Wilkison, 4 Mason, 400; 
 Townsend v. McDonald, 2 Kernan, 381; 2 Story's Equity, sees. 901, 
 926-7; Angell on Water Courses, sees. 449-50. It is further insisted 
 by the defendant that equity will not interpose until the right has 
 been settled at law. That, formerly, was the universal rule, where 
 there was any substantial doubt as to the legal right. Gardner v. 
 The Trustees of Newburgh, 2 Johns. Chan. 162. But that rule no 
 longer prevails in this State. We have before seen that all the
 
 126 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CII. II. 
 
 relief to which a party is entitled, arising from the same transaction, 
 may, under the Code, be obtained in one suit. Beside, there is no 
 doubt as to the legal right in the present case. My conclusion is, 
 that the plaintiffs are entitled to the aid of equity in restoring the 
 stream to its natural channel, and this whether the loss to the 
 defendant is more or less. The defendant was bound to restore the 
 stream upon the expiration of the lease, equally with the land. 
 The order appealed from should be affirmed, and final judgment given 
 against the defendant for the damages sustained by plaintiffs, and 
 that they restore the stream to its natural channel. * * * 
 
 Order of General Term affirmed and judgment final ordered for 
 the plaintiffs for damages to be assessed, and a mandatory injunction 
 that the defendant restore the water within twelve months from the 
 entry of judgment. 
 
 3. Artificial Watercourses. 
 
 CURTISS v. AYRAULT. 
 
 47 New York, 73. — 1871. 
 
 Action to recover damages for the diversion of a part of the 
 waters flowing in a artificial channel which had been dug by a prior 
 owner from whom both plaintiff and defendant deduce their titles. 
 
 Judgment for defendant. Plaintiff appeals. 
 
 Folger, J. — We have examined with care the testimony in this 
 case, particularly those portions of it to which we are pointed by 
 the brief of the appellant, and which he claims show the existence 
 in former days of a natural stream. We are of the opinion that the 
 jury would not have been warranted in finding that there was ever 
 a natural stream running from the mouth of Indian Creek or from 
 the marsh into the cove. * * * 
 
 The waters which stood upon the marsh, or were held in partial 
 suspense in the earth, were in legal effect surface waters. They 
 belonged to the owner of the soil on which they stood or through 
 winch they soaked. He might lawfully lead them off in such direc- 
 tion and in such quantity as he saw fit, and no neighbor could com- 
 plain, for no neighbor had a right to receive them by percolation. The 
 owner had only to see to it that he did not injure a neighbor by 
 <lis< harging them upon him in unusual quantity, or at unusual place. 
 'I he following authorities sustain this position: Ellis v. Duncan t Ct. 
 of App , cited in Goodale v. Tattle, 29 N. Y. 466; Buff urn v. Harris,
 
 II. 3-] ARTIFICIAL WATERCOURSES. 127 
 
 5 Rd. 1, 243; Rawstron v. Taylor, 11 Exch. 369; Broadbent v. Rams- 
 botham, Id. 602; Wheatley v. Branch, 1 Casey, 25 Penn. St. 528. 
 
 This state of facts and this rule of law accompanying them, con- 
 tinued until Newbold, after having made ditches, divided the tract 
 into parcels and conveyed the parcels to different grantees. And 
 even had he, without having made the ditches, divided the tract and 
 conveyed the parcels to different owners, the same rule would have 
 applied. The grantee of any parcel would have had the right to 
 have carried off these, being surface waters, without affecting any 
 right of any one to receive them from his land. See cases above 
 cited. 
 
 But Newbold, being the owner of the whole tract, did very much 
 affect and change its material condition, and the relations of different . 
 parts of it to each other. By digging ditches and deepening and 
 extending them, he made a permanent channel by which these , 
 waters flowed in a continuous stream, from and through the parcel 
 conveyed to the grantor of the defendant, through other parcels, on 
 to and through the parcel conveyed to the plaintiff's grantor. There 
 is no doubt but that he benefited the lands now owned by the 
 defendant by freeing them from standing water, and that the benefit 
 conferred would continue so long as the ditch was kept open and free 
 below. There is no doubt but that at the present day the continu- 
 ance of the ditch and the keeping of it open and free above would 
 be a benefit to the lands of the plaintiff in the constant and ample 
 supply of good water which it would afford. And if at the time 
 Newbold made sale of these parcels of land, these reciprocal benefits 
 and burdens were existing and apparent, and were part of the 
 advantages possessed by these lands, and part of the value attached 
 to them in the estimation of those dealing with each other in regard 
 to them, and if they contracted with reference to such a condition 
 of the lands, neither Newhold nor his respective grantees had right 
 after that to change the relative condition of one parcel to the injury 
 of another parcel, in these respects. This principle is distinctly 
 stated and clearly elucidated in Lampman v. Milks, 21 N. Y., 505, 
 and does not need particular discussion here; and see Dunkles v. The 
 Milton R. R. Co., 4 Foster N. H. 489. 
 
 The only difficulty is whether the facts of this case exactly square 
 with the requirements of the rule in 21 N. Y., laid down in these 
 words: " The parties are presumed to contract in reference to the 
 condition of the property at the time of the sale, and neither has a 
 right, by altering arrangements then openly existing, to change 
 materially the relative value of the respective parts." Now some 
 stress is laid upon the purpose which Newbold had in making the
 
 128 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 ditch, and it is claimed that it was naught else than to drain his 
 lands. But the application of the ride does not depend solely upon 
 the purpose for which the changes have been made in the tenement 
 by the owner. It is the open and visible effect upon the parts which 
 the execution of the purpose has wrought, which presented to the 
 view of the purchaser, is presumed to influence his mind, and to 
 move him in his bargaining. We have held in Simmons v. Cloonan 1 
 (decided, December, 187 1), that this presumption may be repelled 
 by the actual knowledge of the contracting parties, which may nega- 
 tive any deductions to be drawn from the visible physical condition 
 of the property. And so far, a knowledge of the purpose of the 
 owner is an element. But there was testimony tending to show 
 that though the first and always the chief purpose of Newbold was 
 to drain the lands more immediately affected by the marsh, there 
 was an auxiliary purpose, to furnish all other lands a constant and 
 full supply of water. The question whether the purchaser from 
 " Newbold contracted with him, and bought these lands in reference 
 to their condition at the time of sale, depends as well upon what 
 was their purpose and understanding, and what from the physical 
 view of the land, might be inferred to be the effect upon them in 
 their estimate of their advantages and value with this artificial stream 
 of water led through the different parts of it. And the question for 
 decision at the trial was: Considering all the facts established 
 by the testimony, and all the inferences properly to be made from 
 it, and all the presumptions properly to be indulged, did the grantor 
 of the plaintiff, in arriving at the price he would pay, consider and 
 have a right to consider, as an element of the value of the land he 
 was bidding for, this ditch across the tract giving this supply of 
 water through it? Now, there is testimony tending to an affirmative 
 answer; and in our judgment, it was not a correct disposition of the 
 case to take it from the consideration of the jury, and to direct to 
 them their verdict in the negative. 
 
 In the first place we have shown the fact that this pure, clear 
 water ran to this parcel of land in full and constant supply. This 
 condition of things was open and visible. The presumption arises 
 at once that a person of even ordinary judgment in quest of a farm 
 must perceive this advantage and be influenced by a consideration 
 of its value. Then there is express testimony that the plaintiff's 
 grantor, the grantee of Newbold, had been before the conveyance 
 to him, the agent of Newbold and familiar with the premises, and 
 that he knew that Newbold was used to pasture cattle in part on this 
 
 ■47 N. V 3. -Yak
 
 II. 3-] ARTIFICIAL WATERCOURSES. 129 
 
 parcel of land, and that they found their supply of water in the stream 
 and in the cove. The testimony also tends to show that the lands 
 are peculiarly advantageous for the pasturage of cattle in the sum- 
 mer and of keeping them through the winter, with the ultimate pur- 
 pose of marketing them as fat cattle; and that the supply of this 
 water through this ditch was useful and necessary therefor. And 
 the proof is ample that the water was of use to the land and of great 
 value, and there is testimony tending to show that it is highly 
 necessary to its full enjoyment. 
 
 We think that with instructions from the court to the jury in 
 accordance with the rules announced in 21 N. Y. supra, it should 
 have been submitted to them to say whether the grantee of New- 
 bold of the parcel of land now owned by the plaintiff, contracted for 
 it in reference to its condition in respect to this ditch and its water 
 at the time of the sale, and whether to be deprived of it is to lose 
 something of value and of necessity. 
 
 Nor would an affirmative answer to it and a judgment in accord- 
 ance therewith impose upon the defendants, as is argued, the neces- 
 sity of keeping up a swamp on his land. The benefits and burdens 
 of this ditch are reciprocal, to be enjoyed and borne by all the lands. 
 As the ditch was to the observation as much an aqueduct from one 
 parcel as an aqueduct to another, so it must continue to be. And 
 the defendant has as good right that it should lead away all the 
 surface water and all that Indian Creek brought down, as the plain- 
 tiff has that it should be led. So that, as the defendant may not •, 
 obstruct the ditch to divert the water, the plaintiff may not obstruct 
 it to prevent its flow. And as the plaintiff claims that the defendant 
 may not ditch on his own land and drain away this water in another 
 direction, he must permit him to keep open the ditch on the plain- 
 tiff's land, so that it be effectual for the defendant's benefit. 
 
 It is also urged that the act of the defendant complained of by the 
 plaintiff violated no right of his, for that the ditch, the capacity of 
 which he increased, was upon the land of the defendant's grantor 
 when Newboid sold to the plaintiff's grantor. The act which the 
 plaintiff complains of is the diversion of water which, when his 
 grantor bought of Newboid, .was flowing to the land purchased. It 
 matters not how this diversion is effected, whether by digging a new 
 ditch or deepening an oid one. The reciprocal rights of the parties/ 
 (a certain state of facts existing) are to have the status of the tract! 
 maintained as it was when Newboid sold. If water then ran 
 through the ditch which Ayrault has deepened, he may keep a 
 stream there of the same volume it then had, but may not increase 
 
 LAW OF PROP. IN LAND — 9
 
 130 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 its volume by a diversion of the water which then flowed to the 
 plaintiff's land. 
 
 And we remark here, that we do not mean to conflict with cases 
 cited by the respondent, such as Arkivright v. Gill, 5 Me. & Welsby, 
 203. We think that they will be found to be cases in which the 
 owner of land, having for a time drained the surface water from it 
 in a certain direction, while still the owner of the same tract, and 
 the owner of the whole of it, sees fit to change the direction of the 
 drainage. Though he may have yielded in the first place a benefit 
 to other land by his method, he was not precluded from abandon- 
 ing it and adopting another, for he had sold none of the land bene- 
 fited to one who had contracted for it in reference to its condition 
 of benefit. It was doing with his own as he had a right, the right 
 of no one else having intervened by his act. It was a dominant 
 tenement foregoing the enjoyment of an easement upon a servient 
 one. In the case in hand both tenements, by the acts of the former 
 owner of both as a whole, have become each dominant and each 
 servient to the other, as their respective needs require. Had there 
 been no drain until the severance of the great tract into parcels, 
 and then the defendant on his parcel had made drains leading to 
 the plaintiff's parcel, which stopping afterwards, he had made others 
 elsewhere, and of this the plaintiff had complained, the cases cited 
 would have been in point. 
 
 The point is not taken in this court by the respondent that the 
 complaint of the plaintiff does not put his right of action upon this 
 ground. Nor does it appear to have been taken below. Doubtless, 
 if it had been, the ample power of the court to allow amendments 
 would have obviated the objection without injury to either party. 
 
 The judgment of the court below should be reversed, a new trial 
 
 ordered, with costs to abide the event. 
 
 Judgment reversed. 
 
 4. Property in Underground Waters. 
 
 OCEAN GROVE CAMP-MEETING ASSOCIATION v. 
 ASBURY PARK. 
 
 40 New Jersey Equity, 447. — 1885. 
 
 Bird, V. C. — More than fifteen years ago the complainants pur- 
 chased a large tract of land fronting upon the ocean, chiefly for the 
 purpose of a summer resort, to exercise the right of worship. The 
 enterprise has so grown that in winter it has a population of about
 
 II. 4-] UNDERGROUND WATERS. I 3 I 
 
 five thousand, and in summer of ten thousand or fifteen thousand. 
 The authorities soon discovered that to preserve the good health of 
 the residents and visitors it was absolutely necessary to improve 
 their water supply and sewerage system. To do this they bored for 
 water, and at the depth of over four hundred feet struck water 
 which gave them a flow of fifty gallons per minute at an elevation 
 above the surface of twenty-eight feet. This they carried into the 
 city by means of pipes, and supplied therewith about seventy hotels 
 and cottages. They also applied it to the improvement of their 
 sewerage system. The volume of water thus produced continued 
 to flow undiminished in quantitly and with unabated force until the 
 action of the defendants now complained of, and to restrain which 
 the bill in this cause was filed. 
 
 The commissioners of Asbury Park, a corporate body, purchased 
 a large tract of land immediately north and adjacent to the tract 
 owned by Ocean Grove. Under their management this, too, has 
 become a famous seaside resort. Its population is equal to, if not 
 greater, at all times, than that of Ocean Grove. The authorities 
 saw a like necessity for an increased supply of wholesome water. 
 They entered into a contract with others, a portion of these defend- 
 ants, to procure for them water by boring in the earth. These, 
 their agents, sank several shafts to the depth of over four hundred 
 feet without satisfactory success. One shaft yielded about four 
 gallons to the minute, and another, which yielded the most, only 
 nine. All of these wells, were upon the land and premises of the 
 Asbury Park Association. It became evident, and is manifest to 
 the most casual observer, that these wells would not supply the 
 volume of water needed. It was also manifest that the experiment 
 to procure water by digging upon their own land had been quite 
 reasonably extended, although not so complete as to satisfy the 
 mind that they cannot obtain water on their own premises as well 
 as elsewhere, since it is in evidence that there are two wells on their 
 premises, sunk by individuals, which produce fifteen gallons each 
 per minute, being as much in quantity as they procure from the well 
 which is complained of. 
 
 Failing in their efforts upon their own premises they go elsewhere, 
 on the land owned by individuals, and, procuring a right from 
 individual owners, sink a shaft upon the public highway, near to the 
 land of the complainants, and within five hundred feet of the com- 
 plainant's well. This bore extended to the depth of four hundred 
 and sixteen feet, within eight feet of the depth of complainant's 
 well. At this depth they secured a flow of water at the rate of thirty 
 gallons per minute, and the supply from the complainant's well was
 
 I32 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 almost immediately decreased from fifty gallons to thirty per minute. 
 The diminution in water was immediately felt by many of those who 
 depended for a supply from this source in Ocean Grove. 
 
 The Asbury Park authorities propose to sink other wells still 
 nearer the well of the complainants. This bill asks that they may 
 be prohibited from so doing, and that they may be commanded to 
 close the well already opened, which, it is alleged, is supplied from 
 the same source that the complainants' well is supplied from. 
 
 The complainants are first in point of time. They are upon their 
 own land and premises. They procure water from their own soil to 
 be used in connection with their said premises, in the improvement 
 and beneficial enjoyment of their occupation. 
 
 In this they have exercised an indefeasible and unqualified 
 right. It matters not whether the water which they obtain is from 
 a pond or underground basin, or only the result of percolation, or 
 from a flowing stream. The defendants went from their own land 
 upon the land of strangers, and obtained permission to bore for 
 water, and there sink their shaft, procuring water from the same 
 source that the complainants procured their water, and diverted it 
 and carried it to their premises, three-eighths of a mile, for use. 
 
 Can they be restrained from doing this? A very careful considera- 
 tion of a great many authorities leads me to the conclusion that they 
 cannot at the instance of the complainant: Angell on Water- 
 Courses, sees. 109-114, inclusive; Gould on Waters, sec. 280; Bal- 
 lard v. Tomlinson, L. R. 26 Ch. Div. 194; Chasemore v. Richards, 7 
 H. L. Cas. 349; 5 H. & N. 982; Acton v. Blundell, 12 M. & W. 324; 
 Chase v. Silverstone, 62 Maine, 175; Roath v. Driscoll, 20 Conn. 533; 
 Delhi v. Youmans, 45 N. Y. 362; Goodale v. Tattle, 29 N. Y. 459; 
 JVheatley v. Baugh, 25 Pa. St. 528; Brazier v. Brown, 12 Ohio 
 St. 294. 
 
 The courts all proceed upon the ground that waters thus used and 
 diverted are waters which percolate through the earth, and are not 
 distinguished by any certain and well-defined stream, and, conse- 
 quently, are the absolute property of the owner of the fee as com- 
 pletely as are the ground, stones, minerals, or other matter to any 
 depth whatever beneath the surface. The one is just as much the 
 subject of use, sale, or diversion as the other. The owner of a mine 
 en< ounters innumerable drops of water escaping from every crevice 
 and fissure; these, when collected, interfere with his progress, and he 
 may remove them, although the spring or well of the landowner 
 below l>e diminished or destroyed. So, the owner or owners of a 
 , marsh, or meadow may sink wells therein, and carry off the 
 water < olid ted in them, to the use or enjoyment of a distant village
 
 II. 4-] UNDERGROUND WATERS. I33 
 
 or town, although the waters of a large stream upon the surface be 
 thereby so diminished as to injure a mill-owner who had enjoyed the 
 use of the waters of the stream for many years. Upon these prin- 
 ciples there can be no doubt but that every lot-owner in Ocean Grove 
 or Asbury Park could sink a well on his lot to any depth, and, in 
 case one should deprive his neighbor of a portion or all of his sup- 
 posed treasure, no action would lie. A moment's reflection will 
 enable every one to perceive that such conditions or contingencies 
 are necessarily incident to the ownership of the soil. 
 
 In the case before me there is no proof that the waters in question 
 are taken from a stream, and I have no right to presume that they 
 are. The presumption is the other way. 
 
 It seems to be my very plain duty to discharge the order to show 
 cause, with costs. 
 
 THE TRUSTEES OF THE VILLAGE OF DELHI v. 
 YOUMANS. 
 
 45 New York, 362. — 1871. 
 
 By the Court, Peckham, J. — If the action of the defendant took 
 the water away from the springs, after it had reached there, after it 
 had become part of an open, running stream, then this action would 
 lie. Rawstron v. Taylor, $$ Eng. L. & Eq. 428; Broadbent v. Rams- 
 botham, 34 Id. 553; Chasemore v. Richards, 7 House of Lords Cases, 
 349; Pixley v. Clark, 35 N. Y. 520; Goodale v. Tuttle, 29 Id. 459; 
 Ellis v. Duncan, 21 Barb. 230, affirmed in this court, but not reported. 
 
 But if it merely prevent the water from reaching the spring or 
 open, running stream, by intercepting its percolation or underground 
 currents, by digging a well upon the defendant's own land, for the 
 use of his family and stock, this action will not lie. The law is 
 settled in that way, both here and in England. (See same cases.) 
 
 The facts in this case, as found by the justice who tried it, do not 
 show that the water has been taken away from the spring or running 
 surface stream after it had reached there. On the contrary, the 
 inference from his findings would rather seem the other way. Nor 
 is there any request to find otherwise, nor any exception on that 
 point. 
 
 Every inference and presumption that can be reasonably enter- 
 tained must be indulged in favor of affirming a judgment. It is a 
 well-settled rule that the party who alleges error must show it. 
 
 The doctrine of lateral support of adjoining land cannot aid the
 
 134 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CII. II. 
 
 plaintiff's case. I do not think it has any application to the facts 
 as found. 
 
 It may well be that the plaintiffs have been injured, legally injured, 
 by the acts of the defendant. But the facts as found do not make 
 it appear. In the absence of any request to find, or exception to 
 refusal to find, other facts, we cannot consider the evidence with a 
 view to decide whether other facts may not be regarded as suffi- 
 ciently proved. 
 
 Judgment affirmed. 
 
 HALE v. McLEA. 
 53 Cal., 578. — 1879. 
 
 Suit for an injunction. 
 
 The court below found: " That the plaintiff and defendant were 
 the owners of coterminous tracts of land. In the vicinity of the 
 division line, running north and south between the parties, is the 
 subject of the controversy. Upon the side of a ridge, upon the land 
 of plaintiff, at a point about twenty-eight feet east of the land of 
 defendant, a natural spring flows from the surface of the ground. 
 This spring is a small one, furnishing a very small supply of water. 
 It has been utilized by the plaintiff for many years, and the water 
 conveyed to troughs, furnishing water for the stock of the plaintiff. 
 The spring furnishes the principal supply of the plaintiff's farm at 
 this point, and is the only water he has for the cattle that pasture 
 upon this part of his land. He also proposes to use and will require 
 this water for a proposed residence he intends to soon build. From 
 this natural spring upon the land of plaintiff, extending toward the 
 west, and upon the land of defendant, a line of bushes, usually found 
 nowhere except over watercourses, appeared, but there was no other 
 indication of a subterranean stream upon defendant's land at this 
 point than that indicated by these bushes. There was no stream upon 
 the surface, and no depression or channel whatever appeared upon 
 the surface of either tract at this point, and the surface of the 
 ground was rocky and dry. The line of bushes above referred to 
 was connected and frequent up to the line extending from this fence 
 to and upon the land of defendant, and to the pit there sunk by 
 defendant. In October, 1875, defendant dug a trench upon his land, 
 about eleven feet from the division line. The trench was parallel 
 with the division line, and at right angles with the line of bushes, 
 and was dug for the sole purpose of intercepting a subterranean 
 Stream which defendant supposed flowed to the spring of plaintiff.
 
 II. 4-] UNDERGROUND WATERS. 1 35 
 
 Any person of ordinary judgment would have expected to intercept 
 the stream at this point, from the apparent situation and surround- 
 ings. * * * At the bottom of the trench, and upon the western 
 side, was found a fissure of loose, fragmentary rock, of which the 
 hill was chiefly composed. Through these fragments at this particu- 
 lar point, flowed a small stream of water. The defendant opened 
 this pit, and connected it with pipes laid through the trench, and so 
 arranged it that all the water flowing in from the crevice was taken 
 in a pipe through his trench. Immediately upon the opening of his 
 trench and the laying of this pipe, the water ceased to flow in the 
 spring of the plaintiff and has not since flowed there. The defendant 
 in digging this trench had but one purpose, namely, to secure to 
 himself the subterranean water that he believed existed at this point; 
 he knew that this was the source of the supply to plaintiff's spring, 
 and if intercepted, no water would flow to the spring of plaintiff. 
 He was not actuated by malice." 
 
 Judgment for plaintiff. Defendant appealed. 
 
 By the Court, Crockett, J. — An examination of the English 
 and American decisions on the questions of law involved in this 
 appeal leads us to the conclusion that, on the facts admitted by the 
 pleadings or found by the court, the right of the defendant as 
 against the plaintiff to use the water of the subterranean stream, 
 which is the subject of the action, is, at most, no greater than if it 
 was a surface stream, on which the defendant was the upper and the 
 plaintiff a lower riparian owner. Tested by this rule, the utmost 
 that can be claimed for the defendant on the facts is, that he is 
 entitled to take from the stream as much water as he needs for 
 watering his cattle and for domestic uses, such as cooking, washing, 
 and the like, leaving the surplus to flow to the spring of the plaintiff 
 in its natural channel. But the findings show that the defendant 
 has diverted the whole body of the stream through pipes, in such a 
 manner that no portion of the water can reach the spring; and the 
 surplus, at the commencement of the action, was running to waste, 
 as appears from the admissions in the pleadings. If it were a surface 
 stream, the plaintiff would be entitled to have it flow to and across 
 his lands, in its natural channel, subject only to the right of the 
 defendant to use so much of the water as is necessary to supply his 
 natural or primary wants as above indicated; nor, on the facts 
 found, can the defendant exercise any greater right in respect to a 
 subterranean stream. Assuming, therefore, that the rights of the 
 defendant are precisely the same as though it was a surface stream, 
 he has exceeded them by diverting the whole body of water from
 
 I36 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 its natural channel, instead of allowing the surplus to flow to the 
 spring in its accustomed bed. 
 
 But the exigency of the case does not require us to decide that 
 the defendant has the same right in respect to a subterranean stream 
 as though it was a surface stream flowing across his land; and our 
 decision is only to the effect that, if it be assumed his rights are the 
 same, he has, nevertheless, exceeded them by diverting the whole 
 body of the stream, instead of allowing the surplus to flow to the 
 spring in its natural channel. 
 
 There is no question in this case involving the right of a riparian 
 owner to the use of water for purposes of irrigation ; nor is the point 
 before us whether or not a landowner may be restrained from divert- 
 ing or obstructing the flow of an underground current, running in a 
 denned channel across his land, and which supplies a spring or well 
 of the adjoining lands, if it become necessary to divert or obstruct 
 the stream in the prosecution of the business of mining, or any other 
 legitimate enterprise on his own land; nor to what extent, if at all, 
 it would affect the question if the underground current was not 
 known to exist until the fact was discovered in the prosecution of 
 the work. These are grave questions which the exigency of the 
 
 present case does not require us to decide. 
 
 Judgment affirmed. 
 
 Rhodes, J., concurring: — I concur in the judgment on the ground 
 that the defendant, in my opinion, has no right to divert the waters 
 of the subterranean stream, if the spring of the plaintiff will thereby 
 be materially injured. 
 
 III. lee as incident to land. 
 
 1. Ice Formed Over Lands of Private Owners. 
 
 WASHINGTON ICE CO. v. SHORTALL. 
 
 101 Illinois, 46. — 1881. 
 
 Mr. Justice Sheldon delivered the opinion of the Court. 
 
 This was an action of trespass quare clausum f regit, brought in the 
 Circuit Court of Cook county, by Shortall, against the Washing- 
 ton Ice Company, for cutting, removing, and appropriating, in 
 January and February, 1879, a quantity of ice which had formed 
 over the bed of the Calumet river, within the limits of plaintiff's 
 land, 111 Cook county. Defendant pleaded the general issue, and 
 libcrum tenementum. A verdict and judgment were rendered in favor
 
 III. i.] ICE OVER LANDS OF PRIVATE OWNERS. 137 
 
 of plaintiff for $562.40, which judgment, on appeal to the Appellate 
 Court for the First District, was affirmed, and defendant appealed 
 to this Court. 
 
 On the trial, the patent from the United States to Lafrombois and 
 Decant was introduced in evidence, showing that there was no 
 restriction or reservation by the government, and that the locus in 
 quo was embraced in the 125.31 acres the patent conveyed. Under 
 this patent plaintiff derived title. 
 
 From the evidence it appears that the call of 125.31 acres con- 
 tained in the patent, required that the bed of the river should be 
 included to make that quantity; that the Calumet river extended 
 from Lake Michigan westward past the plaintiff's premises, where it 
 is between 165 and 200 feet wide, is in fact a navigable river; that 
 the defendant company owned ice-houses on its own property on the 
 next lot east of plaintiff's, and that in operating on the ice it did not 
 go on the plaintiff's land, save as it entered upon the ice; that it 
 first gathered the ice in front of its own land from the river, and 
 then commenced to take the ice opposite the plaintiff's premises. 
 
 The court, at plaintiff's request, instructed the jury that the 
 plaintiff was the owner of the whole bed of the river flowing through 
 his premises; that when the water became congealed, the ice attach- 
 ing to the soil constituted a part thereof, and belonged to the owner 
 of the bed of the stream, and that he could maintain trespass for 
 the wrongful entry and taking the ice; and that the measure of 
 damages, in case of a finding for plaintiff, would be the value of the 
 ice as soon at it existed as a chattel — that is, as soon as it had been 
 scraped, plowed, sawed, cut and severed, and ready for removal. 
 Defendant excepted to the giving of such instruction, and asked the 
 court to instruct the jury that a riparian owner on the banks of a 
 river, navigable in fact, has no property in the ice formed in the 
 midst of the stream, where he has done nothing to pond or separate 
 it; but that any person might, as against such riparian owner, where 
 he could gain access without passing over the shore or banks of the 
 owner, enter upon the ice and remove the same, without cause of 
 action or damage to such riparian owner, and that if such access, as 
 above stated, had been gained, then, at most, plaintiff could recover 
 but nominal damages, even if the action of trespass be sustained, — 
 which was refused, and defendant excepted. The giving and refus- 
 ing of instructions is assigned as error. 
 
 It may be well to inquire, first, whether plaintiff, as riparian pro- 
 prietor on both sides of the Calumet river, is the owner of the bed 
 of the stream within the limits of his land. By the common law, 
 only arms of the sea, and streams where the tide ebbs and flows are
 
 138 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 regarded navigable. The stream above the tide, although it may 
 be navigable in fact, belongs to the riparian proprietors on each side 
 of it to its center, and the only right the public has therein is an 
 easement for the purpose of navigation. Chancellor Kent, in his 
 commentaries, declares it as settled that grants of land bounded on 
 rivers or upon their margins, above tide-water, carry the exclusive 
 right and title of the grantee to the center of the stream, subject 
 to the easement of navigation, unless the terms of the grant clearly 
 denote the intention to stop at the edge or margin of the river. If 
 the same person be the owner on both sides of the river, he owns 
 the whole river to the extent of the length of his lands upon it. 
 3 Comm. 427, 428, Marg. And this title to the middle of the stream 
 includes the water, the bed, and all islands. 2 Hilliard on Real 
 Prop. 92; Angell on Water-Courses, sec. 5. 
 
 This rule of the common law has been adopted in thi^s State, and 
 is here the settled doctrine. It was so held in Middletonv. Pritch- 
 ard, 3 Scam. 510, and If ouch v. Yates, 82 111. 179, with regard to 
 the Mississippi river where it bounds this State; in Braxon v. Bressler, 
 64 111. 488, as to Rock river; City of Chicago v. Laflin, 49 111. 172, 
 and, City of Chicago v. McGinn, 5 111. 266, in regard to the Chicago 
 river. 
 
 The Calumet river then, being non-tidal, and plaintiff owning 
 lands on both sides of it, he is the owner of the whole of the bed of 
 the stream to the extent of the length of his lands upon it. 
 
 The next question respects the ownership of ice formed over the bed 
 of the river passing through the land. It is objected by defendant 
 that water in a running stream is not the property of any man — that 
 no proprietor has a property in the water itself, but a simple usufruct 
 while it passes along; but manifestly different considerations apply 
 to water in a running stream when in a liquid state and when frozen. 
 
 In Agawam Canal Co. v. Edwards, 36 Conn. 497, it is said: ' The 
 principle contained in the maxim, ' cujus est solum ejus est usque ad 
 tcelum,' gives to a riparian owner an interest in a stream which runs 
 over his land. But it is not a title to the water — it is a usufruct 
 merely, — a right to use it while passing over the land. The same 
 right pertains to the land of every other riparian proprietor on the 
 same stream and its tributaries; and as each has a similar and equal 
 usufructuary right, the common interest requires that the right should 
 be exercised and enjoyed by each in such a reasonable manner as 
 not to injure unnecessarily the right of any other owner, above or 
 below." 
 
 In Elliott v. Fitchburg Railroad Co., 10 Cush. 191, Shaw, C. J., 
 says; " The right to flowing water is now well settled to be a right
 
 III. i.J ICE OVER LANDS OF PRIVATE OWNERS. 139 
 
 incident to property in the land, it is a right publico juris, of such 
 character that whilst it is common and equal to all through whose 
 land it runs, and no one can obstruct or divert it, yet as one of the 
 beneficial gifts of Providence, each proprietor has a right to a just 
 and reasonable use of it as it passes through his land; and so long 
 as it is not wholly obstructed or diverted, or no larger appropriation 
 of the water running through it is made than a just and reasonable 
 use, it cannot be said to be wrongful or injurious to a proprietor 
 lower down. . . . Still, the rule is the same, that each proprie- 
 tor has a right to the reasonable use of it for his own benefit, for 
 domestic use, and for manufacturing and agricultural purposes." 
 
 In Rex v. Wharton, 12 Mod. 510, Holt, C. J., says: " If a river 
 run contiguously between the land of two persons, each of them is, of 
 common right, owner of that part of the river which is next his land. ' ' 
 
 Hilliard states that a water-course is regarded in law as a part of 
 the land over which it flows. 2 Hilliard on Real Prop. 100. 
 
 It will thus be seen that the riparian owner, as such, has rights 
 with respect to water in a running stream, — he has a right of use, 
 which right authorizes the actual taking of a reasonable quantity of 
 the water for his purposes. The limitation in extent of the use of 
 the water is, that it shall not interfere with the public right of navi- 
 gation, nor in a substantial degree diminish and impair the right of 
 use of the water by a lower or upper proprietor, as it passes along 
 his land. The only opposing rights are such rights of the public, 
 and such upper and lower proprietors. But when the water becomes 
 congealed, and is in that state, these opposite rights are in nowise 
 concerned. The ice may be used and appropriated without detri- 
 ment to the right of navigation by the public, or to other riparian 
 owners' right of use of the water of the stream when flowing over 
 their land. The just and reasonable use of the water which belongs 
 to the riparian proprietor would be, in such case of congealed state 
 of the water, the unlimited use and appropriation of the ice by him, 
 as it would be no interference with rights of others. We are of 
 opinion there is such latter right of use, and that it should be held 
 property, of which the riparian owner cannot be deprived by a mere 
 wrongdoer. When water has congealed and become attached to the 
 soil, why should it not, like any other accession, be considered 
 part of the realty? Wherein, in this regard, should the addition of 
 ice formed over the bed of a stream be viewed differently from 
 alluvion, which is the addition made to land by the washing of the 
 sea or rivers? And we do not perceive why there is not as much 
 reason to allow to the riparian owner the same right to take ice as 
 to take fish, which latter is an exclusive right in such owner.
 
 140 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 In McFarlin v. Essex Co., 10 Cush. 309, Shaw, Ch. J., remarked: 
 " It is now perfectly well established as the law of this Common- 
 wealth, that in all waters not navigable in the common-law sense 
 of the term, — that is, in all waters above the flow of the tide, — the 
 right of fishery is in the owner of the soil upon which it is carried 
 on, and in such rivers that the right of soil is in the owner of the 
 land bounding upon it, if the same person owns the land on both 
 sides, the property in the soil is wholly in him, subject to certain 
 duties to the public; and if different persons own the land on oppo- 
 site sides, each is proprietor of the soil under the water to the 
 middle or thread of the river." 
 
 The riparian proprietor has the sole right, unless he has granted 
 it, to fish with nets or seines in connection with his own land. Angell 
 on Water-Courses, sec. 67. 
 
 In Adams v. Pease, 2 Conn. 481, it was held that the owners of 
 land adjoining the Connecticut river above the flowing and ebbing 
 of the tide, have an exclusive right of fishery opposite to their land, 
 to the middle of the river; and that the public have an easement in 
 the river as a highway, for passing and repassing with every kind 
 of water craft; so, too, sea weed thrown upon the shore belongs to 
 the owner of the soil upon which it is cast. Emans v. Turnbull, 2 
 Johns. 313. 
 
 The exclusive right in the owner to take the ice formed over his 
 land, is an analogous right to those other ones which are acknowl- 
 edged to exist in the subjects which have been mentioned, and may, 
 with like propriety, be recognized. It is connected with and in the 
 nature of an accession to the land, being an increment arising from 
 formation over it, and belonging to the land properly, as being 
 included in it in its indefinite extent upwards. 
 
 Ice, from its general use, has come to be a merchantable com- 
 modity of value, and the traffic in it a quite important business. It 
 would not be in the interest of peace and good order, nor consistent 
 with legal policy, that such an article should be held a thing of com- 
 mon right, and be left the subject of general scramble, leading to 
 acts of force and violence. In reference to the rule which we here 
 adopt, of assigning to the owner of a bed of a stream property in 
 the ice which forms over it, we may well use, as fitly applying, the 
 language of Hosmer, J., in Adams v. Pease, supra, in speaking of the 
 common-law rule as to the right of Fishery, viz.: ' The doctrine 
 of the common law, as 1 have stated it, promotes the grand ends of 
 civil society, by pursuing that wise and orderly maxim of assigning 
 to everything capable of ownership a legal and determinate owner." 
 
 The views we hold are in accordance with the holding in The State
 
 III. i.] ICE OVER LANDS OF PRIVATE OWNERS. 141 
 
 v. Potimeyer, 2>2, Ind. 4° 2 > that when the water of a flowing stream 
 running in its natural channel is congealed, the ice attached to the 
 soil constitutes a part of the land, and belongs to the owner of the 
 bed of the stream, and he has the right to prevent its removal. 
 See, further, relative to the subject, Myer v. Wkitaker, 55 How. Pr. 
 Rep. 376; Lorman v. Benson, 8 Mich. iS; Mill River Woolen Manu- 
 facturing Co. v. Smith, 34 Conn. 462; Brown v. Brown, 30 N. Y. 519. 
 
 Defendant claims that it committed no trespass in taking the ice, 
 because the ice in the midst of a stream navigable in fact, is naturally 
 an obstruction to navigation, and that anyone has the right, having 
 obtained access independent of the riparian owner, to enter upon 
 the ice and remove it. We said in Braxon v. Bressler, above cited: 
 " Where the river is navigable, the public have an easement or a 
 right of passage upon it as a highway, but not the right to remove 
 the rock, gravel, or soil, except as necessary to the enjoyment of 
 the easement." The same is to be said as to the ice here. But it 
 was not removed as necessary for the enjoyment of the public ease- 
 ment of navigation, — it was for the purpose only of the appropria- 
 tion of it for defendant's gain. 
 
 As to the instruction as to the measure of damages, we think the 
 case is analogous to those where coal is taken from the soil, and 
 that the instruction is sustained by former decisions of this court in 
 those cases: Illinois and St. Louis R. R. and Coal Co. v. Ogle, 92 
 III. 353; McLean County Coal Co. v. Lenuou, 91 Id. 561; Illinois and 
 St. Louis R. R. and Coal Co. v. Ogle, 82 Id. 627; McLean Cou/itv 
 Coal Co. v. Long, Si Id. 359; Robertson v. Jones, 71 Id. 405. 
 
 Perceiving no error in the giving or refusing of instructions by the 
 Circuit Court, the judgment of the Appellate Court is affirmed. 
 
 THE BROOKVILLE AND METAMORA HYDRAULIC 
 COMPANY v. BUTLER. 
 
 91 Indiana, 134. — 1883. 
 
 Elliott, J. — Under the general internal improvement act of 
 1836, the State, in 1837, for the purposes of constructing a canal, 
 seized land then owned by the heirs of Charles Collett. During 
 that year, and prior to 1842, work was done upon the canal by the 
 State; at the session of the Legislature of the year 1842, a corpora- 
 tion was created named White Water Valley Canal Company, and 
 all the right and title of the State to the land seized was vested in 
 that corporation; the canal was afterwards completed and was
 
 142 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 operated by the grantee of the State until the year 1865; in Decem- 
 ber of that year the canal company conveyed its estate in the canal 
 and appurtenances, reserving, however, all water power and all 
 water rights owned by itself or its lessees; the grantee of the canal 
 company leased to the appellant all the unoccupied water on that 
 part of the canal which is upon the land once owned by the Collett 
 heirs; on that land there was a low piece of ground through which 
 the canal passed; upon this low piece, and immediately adjoining 
 the bank of the canal, is a large pond formed by the water thrown 
 from the channel of the canal; on this pond ice formed in the 
 winter of 1878 and 1879, and was cut and appropriated by the appel- 
 lees, who were the defendants below. 
 
 It is within the power of the Legislature to authorize the seizure 
 of the fee, when that estate is required for the public purpose. 
 When the fee is taken, the owner must be awarded, as compensa- 
 tion, the value of that estate. Our cases declare that the act of 
 1836 authorized the seizure of the fee, and that this was the estate 
 taken by the State and transmitted to the grantees. City of Logans- 
 port v. Shirk, 88 Ind. 563; Cromie v. Board, etc., 71 Ind. 208; Nelson 
 v. Fleming, 56 Ind. 310; Water Works Co. v. Burkhart, 41 Ind. 364. 
 It is not without reluctance that we yield to the rule declared in 
 these cases, but we feel that it has become a rule of property which 
 we should not change. * * * 
 
 The title which the appellant acquired was to the canal and its 
 appurtenances. Sheets v. Selden, 2 Wal. 177. If the land on which 
 the ice formed can be deemed an appurtenance, then the State 
 acquired and transmitted it to her grantee. But land can never be 
 appurtenant to land. This old rule, old as the law itself, forbids 
 the conclusion that the land passed as an appurtenance. 
 
 The right to flow lands conveys no right to the land itself; it 
 vests a mere easement in the possessor. The right which the canal 
 company had in the land adjoining the channel of the canal was an 
 easement, and nothing more. The pond which formed is not shown 
 to have been a reservoir or basin of the canal, nor to have consti- 
 tuted any part of the channel. All that can be inferred from the 
 use of the low ground by the appellant and its grantors is that there 
 ted a right to overflow it. A prescriptive right can never be 
 broader than the claim evidenced by user. Phear, Rights of 
 Water, 90. 
 
 The appellant owns an easement vesting in it a right to do what- 
 the owner of an easement to overflow another's land may right- 
 fully do; 1 In- owners of the fee possess the right to do all acts which 
 a landowner may lawfully do, not inconsistent with, or injurious to,
 
 III. i.] ICE OVER LANDS OF PRIVATE OWNERS. 1 43 
 
 the easement. The former as owner of the dominant estate has all 
 the rights that such an estate confers; the latter all the rights of a 
 owner of land burdened with an easement. 
 
 We come to the decisive question: Is the owner of an easement 
 to flow another's land entitled to the ice which forms on the water 
 covering the land? There is some diversity of opinion upon this 
 question, but our decisions declare that the ice belongs to the owner 
 of the servient estate. In State v. Pottmyer, 1$ Ind. 402, 5 Am. R. 
 224, the question was examined thoroughly, and it was held that the 
 landowner might cut the ice, provided no injury was done to 
 the rights of the owner of the dominant estate; and this was the 
 decision in Edgerton v. Huff, 26 Ind. 35. This last case has, it is 
 true, been overruled upon one point, but not upon the point to 
 which it is here cited. Again, in Julien v. IVoodsmall, 82 Ind. 568, 
 this question came before the court, and it was held that the right 
 to overflow the land of another for mill purposes did not confer the 
 right to cut the ice formed on the pond. The doctrine of these 
 cases is consistent with long-established principles, and is supported 
 by analogous cases. The owner of a servient estate has a right to 
 all the profits which may arise from the soil, and may make such a 
 use of the soil as is not inconsistent with the easement. In the old 
 case of Goodtitle v. Alker, 1 Burr. 133, it is said that " The owner of 
 the soil has a right to all above and under ground, except only the 
 right of passage, for the king and his people." This general doctrine 
 applies to a private way. Gates may be erected across it, wells may 
 be dug on it, waterways may be constructed under it, seaweed may 
 be gathered off of it, and herbage may be cropped from it. Bean 
 v. Coleman, 44 N. H. 539; O' Linda v. Lotkrop, 21 Pick. 292; Baker 
 v. Frick, 45 Md. 337, 24 Am. R. 506; Emans v. Turnbull, 3 Am. 
 Dec. 427, n. An admirable statement of the rule is that of the court 
 in Maxwell v. McAtee, 9 B. Mon. 20. There, in speaking of the 
 grant of an easement, it was said: " Notwithstanding such a grant, 
 there remains with the grantor the right of full dominion and use of 
 the land, except so far as a limitation of his right is essential to the 
 fair enjoyment of the right of way which he has granted. It is not 
 necessary that the grantor should expressly reserve any right which 
 he may exercise consistently with a fair enjoyment of the grant. 
 Such rights remain with him because they are not granted. And 
 for the same reason the exercise of any of them cannot be com- 
 plained of by the grantee, who can claim no other limitation upon 
 the rights of the grantor, but such as are expressed in the grant, or 
 necessarily implied in the right of reasonable enjoyment." The 
 right of a mill-owner to pond water on another's land, the right of
 
 144 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 one owner to use another's land for a sluice-way, the right of one 
 owner to use another's land for drainage purposes, are all easements, 
 and nothing more. Baer v. Martin, 8 Blackf. 317; Snowden v. 
 Wilas, 19 Ind. 10. Easements do not take from the owner of the 
 fee the right to make any profitable use he can of his property not 
 inconsistent with the enjoyment of the dominant estate. It is 
 immaterial whether the easement is to flow water over the land or to 
 pond it on the land; in either case, as said in Mason v. Hill, 5 B. & 
 Ad. 1, the owner of the fee may use it for " profitable purposes." 
 Such a right is said to be "a privilege without profit." Earl v. De 
 Hart, 1 Beasley, 280. The right to back or pond water on the land 
 of another, whether acquired under the statute or by prescription, 
 gives no right to the land itself, nor to the profits which a use of it, 
 not injurious to the easement, will produce. Williams v. Nelson, 23 
 Pick. 141; Paine v. Woods, 10S Mass. 160; Storm v. Manchaug Co., 
 13 Allen, 10. The close analogy between the class of cases to which 
 we have referred and those of State v. Pottmeyer, supra, and Edgerton 
 v. Huff, supra, is very readily perceived, and is strong proof that the 
 latter cases are founded on solid principle, for no one doubts that 
 the former are well grounded in principle. 
 
 There are well considered cases directly sustaining the view 
 adopted by our decisions. In Dodge v. Berry, 26 Hun, 246, it was 
 held that a mill-owner who has the right to flow the lands of another, 
 does not own the ice which forms over the lands of such person, and 
 that the latter may take the ice unless he perceptibly injures the 
 owner of the mill. The same conclusion was reached in Marshall 
 v. Peters, 12 How. Pr. 218. The court, in Washington Ice Co. v. 
 Shortall, 101 111. 46, 40 Am. R. 196, held that ice belonged to the 
 owner of the fee, and, in the course of the opinion, said: ' The 
 views we hold are in accordance with the holding in The State v. 
 Pottmeyer, $1 Ind. 4° 2 > tnat when the water of a flowing stream run- 
 ning in its natural channel is congealed, the ice attached to the soil 
 constitutes a part of the land, and belongs to the owner of the bed 
 of the stream, and he has the right to prevent its removal." This 
 doctrine is again held in Village of Brooklyn v. Smith, 104 111. 429, 
 44 Am. R. 90. 
 
 In Paine v. Woods, 108 Mass. 160, the courts thus stated the law 
 upon this subject: " The owner of the land thereby flowed must 
 not, indeed, draw off by canals, aqueducts or ditches, the water 
 which has been raised by the dam. Cook v. Hull, 3 Pick. 269; 
 Storm v. Manchaug Co., 13 Allen, 10. But he may use it for water- 
 ing his cattle, or irrigating his crops and gardens, or any other 
 reasonable purpose which docs not practically and in a perceptible
 
 III. I.] ICE OVER LANDS OF PRIVATE OWNERS. I45 
 
 and substantial degree impair the right to run the mill; and so he 
 may take and carry away the water when formed into ice, for use or 
 sale, provided he does not thereby appreciably diminish the head of 
 water at the dam of the mill-owner. Cummings v. Barrett, 10 Cush. 
 186. And his land may be of peculiar value by reason of its situation 
 affording opportunities to do this. Ham v. Salem, 100 Mass. 350." 
 These cases lend strong support to the doctrine which prevails in 
 this court, and, with the exception of the case of Mill River, etc. Co. 
 v. Smith, 34 Conn, 462, and Myer v. Whitaker, 5 Abbott, N. C. 172, 
 we have found none asserting a contrary doctrine. Of the latter case 
 we need only say it is confessedly against the weight of authority, 
 is condemned by the courts of the same State, is the decision of a 
 single judge, and is not well reasoned. The decision in the first of 
 these cases is that of a divided court, and the reasoning upon which 
 it is founded is unsatisfactory. It proceeds thus: " Many of the 
 mill ponds of the State, used in the grinding of grain and sawing of 
 timber, are small and shallow, and often in the winter season, when 
 rain falls infrequently and the fountains are frozen, water is scarce, 
 and anything which further lessens it is a material injury." This 
 seems to us a narrow view and one not in harmony with authority 
 or consistent with sound principle. It may possibly be that if the 
 evidence in a particular case should show a diminution of the supply 
 of water, the landowner might then be prevented from taking ice; 
 this, however, affords no ground for a broad general rule; the 
 court has as little ground for presuming that taking the ice would 
 diminish the supply of water, as for presuming that allowing a dozen, 
 or a half dozen horses to drink from the pond would appreciably 
 injure the owner of the easement. It is difficult, if not impossible, 
 to reconcile the ruling in that case with the decision in the subse- 
 quent case of Seeley v. Brush, 35 Conn. 419; but, however this may 
 be, we are clear that it is not a case which should be regarded as 
 authority. It is a mistake to suppose that the case of Higgins v. 
 Kusterer, 41 Mich. 318; s. c, 32 Am. R. 160, is against the views of 
 this court, for nothing more is there decided than that parties may, 
 by express contract, treat ice as personal property. It is said in 
 that case that " there can be no doubt that the original title to the 
 ice must be in the possessor of the water where it is formed; " and 
 this is in harmony with our cases. In a later case in the same court, 
 it was held that a riparian proprietor had a right to gather ice on a 
 navigable river, and that the owners of a boat which carelessly 
 destroyed it were liable. People ' s Ice Co. v. Steamer "Excelsior," 44 
 Mich. 229; s. c, 38 Am. R. 246. The right of the riparian proprietor 
 was likened to that of the owner of land adjoining a public road or 
 
 LAW OF PROP. IN LAND — 10
 
 I46 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 street, and upon this basis was grounded his right to recover. This 
 is the real foundation of our own cases, and they are, therefore, 
 supported, indirectly, at least, by the one just cited. The case of 
 Wood v. J^ow/er, 26 Kan. 682; s. c, 40 Am. R. 330, decides that 
 where the stream is a navigable one, and the adjoining proprietor 
 owns only to the bank, he has no superior claim to the ice; but the 
 court refers with approval to the cases which hold that where the 
 riparian proprietor owns the land he also owns the ice. 
 
 Our conclusion is, that where the user is of such a character as to 
 establish an easement to pond water on the land, or to use it as a 
 water way for surplus water, the right to gather ice which forms on 
 the pond is in the owner of the fee, and not in the owner of the 
 dominant estate. 
 
 Judgment affirmed. 
 
 2. Ice on Public Waters. 
 
 WOOD v. FOWLER. 
 
 26 Kansas, 682. — 1882. 
 
 Brewer, J. — This is a petition for an injunction. A demurrer 
 thereto was sustained in the District Court, and the plaintiffs bring 
 the case here for review. The petition alleges substantially that on 
 the 20th of January, 1880, one Matthias Splitlog was the owner and 
 had the exclusive possession of a tract of land in the neighborhood 
 of Kansas City and Wyandotte, and bordering on the Kansas river, 
 and extending to the middle of the channel; that he then leased said 
 tract to these plaintiffs for ten years, and placed them in the same 
 exclusive possession; that these plaintiffs are ice dealers, engaged 
 in gathering ice, and that they have erected ice-houses on the 
 banks of the Kansas river and in close proximity to this tract of 
 land, for the storage and preservation of ice in great quantities; that 
 merchantable ice is a commodity of great value, and the value 
 thereof greatly enhanced, as it can be gathered in close proximity 
 to the market; that the cities of Kansas City and Wyandotte furnish 
 a good market for the sale of ice to consumers, as well as for export 
 trade; and that merchantable ice of superior quality formed upon 
 tin surface of said Kansas river within the limits of said premises, 
 which adhered to the banks of the stream and extended therefrom 
 to the center of the channel. The petition contained further allega- 
 tions that the di fen lants were entering the premises and removing 
 the i' e, and other fat is showing that the plaintiffs were entitled to
 
 III. 2.] ICE ON PUBLIC WATERS. 147 
 
 an injunction if they were the owners of the ice, or if they had such 
 an interest therein that they could prevent any removal of it. 
 
 The question, then, is fairly presented as to the extent of the 
 interest which a riparian owner has in the ice formed adjacent to his 
 property. The petition alleges ownership and possession to the 
 center of the channel; but the defendants insist that this allegation 
 must be disregarded, because the Kansas is a navigable stream, and 
 that the owner of the adjacent soil in such case only owns to the 
 bank, and not to the center of the stream; that this court is bound 
 to take judicial notice of such fact — the official records of United 
 States surveys showing that the stream was meandered, and its navi- 
 gability being also indicated by early Kansas legislation and its actual 
 navigation a fact of early Kansas history. We think the claim of 
 the defendants is correct — that the court is bound to take judicial 
 notice of the navigability of the stream. * * * 
 
 It is true, in 1864 (Laws 1864, p. 180), an act was passed by the 
 State Legislature declaring the Kansas and certain other rivers not 
 navigable; but the plain implication of the act is that the streams 
 had theretofore been considered navigable, and its purpose was to 
 sanction the bridging and damming of such streams. It certainly 
 was not the purpose and the act had not the effect, to enlarge the 
 title of the riparian owners, or to recognize them as possessed of 
 higher rights than heretofore. Indeed, where title is once vested, 
 a mere change in the condition or character of the current or the 
 uses to which the stream is put, will not transfer any title. People 
 v. Tibbets, 19 N. Y. 527; Wheeler v. Spinola, 54 N. Y. 377. It was 
 an assertion of State control over a stream wholly within its terri- 
 torial limits; a control which, notwithstanding the general supremacy 
 of the federal government over navigable streams, was asserted to 
 exist in the State in the case of Naederhauser v. The State, 28 Ind. 
 supra, as well as in many other authorities. So that for all t'ie pur- 
 poses of this case, and any question in it, we may assume that the 
 Kansas is, at the point in controversy, a navigable stream. The 
 stream having been meandered, the lines of the surveys are bounded 
 by the bank; the patents from the United States passed title only 
 to the bank; Splitlog, as riparian owner, owned only to the bank. 
 The title to the bed of the stream is in the State. Stevens v. Rid. 
 Co., 34 N. J. Law, 532; Pollard's Lessee v. Hagan, 3 How. U. S. 212. 
 It is true a distinction was recognized in England, and that streams 
 were considered navigable only in so far as they partook of the sea, 
 and to the extent that their waters were affected by the ebb and flow 
 of the tide, and only so far was the title of the riparian owner limited 
 to the bank; above such point, even although the stream was large
 
 I4§ CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 enough to be used, and in fact was used, for purposes of navigation, 
 the riparian owner owned the soil ad medium filum aquce. So that 
 really three distinct characters of streams were recognized: First, 
 those smaller streams, which could not be used for any purpose of 
 navigation, in which the title to the soil was in the riparian owner, 
 and along which the public had no rights of highway or otherwise; 
 an intermediate class, in which the riparian owner owned to the 
 middle of the channel, but along whose stream the public had all the 
 rights of a highway; and third, that which was called technically 
 the navigable streams, where the title to the bed of the stream was 
 in the sovereign, and all rights were in the public. The same doc- 
 trine of riparian ownership to the center of the stream in all rivers 
 unaffected by the ebb and flow of the tide, is recognized in some 
 States of the Union; but the better and more generally accepted 
 rule in this country is, to apply the term " navigable " to all the 
 streams which are in fact navigable; and in such case to limit the 
 title of the riparian owner to the bank of the stream. Especially 
 is this true in the States where the lands have been surveyed and 
 patented under the federal law. See the following authorities. 
 Rid. Co. v. Schurmeir, 7 Wall. 272; McManus v. Carmichael, 3 Iowa, 
 1; Haight v. Keokuk, 4 Iowa, 199; Tombden v. Rid. Co., 32 Iowa, 
 106; Flannigan v. City of Philadelphia, 42 Pa. St. 219; Bridge Co. v. 
 Kirk, 46 Pa. St. 112; People v. Tibbets, 19 N. Y. 523; People v. 
 Loomis, 33 N. Y. 461. These conclusions seem to compel an affirm- 
 ance of the judgment of the District Court; for whatever might be 
 the case where a riparian owner owns to the center of the channel, 
 and whatever ownership and control he may have over the ice which 
 forms upon the stream upon his premises, (and as to the extent of 
 his rights, see the following authorities: State v. Pottmeyer, $$ Ind. 
 402, also reported in 5 American Reporter, 224; Mill River Co. v. 
 Smith, 34 Conn. 462; Marshall v. Peters, 12 How. Pr. 218; Meyer 
 v. Whittaker, 18 Alb. L. J. 128; 4 Cent. L. J. 500; 7 Cent. L. J. 
 141; //iggius v. Kusterer, 41 Mich. 318, reported in 9 Cent. L. J. 
 247; People's Ice Co. v. The Excelsior, 11 Cent. L. J. 347; Paine v. 
 Wood, 108 Mass. 173; Gage v. Stumphaus, Sup. Ct. Mass. reported 
 in 24 Alb. L. J. 516; Washington fee Co. v. Short all, 111. Sup. Ct. 13 
 Rep. 9), it would seem that where there is no ownership of the sub- 
 jacent soil, a riparian proprietor has no title to the ice. The title 
 to the soil being in the State, and the stream being a public high- 
 way, obviously the ownership of the ice would rest in the general 
 public, or in the State as the representative of that public. The 
 riparian proprietor would have no more title to the ice than he would 
 to tin- fish. It simply is this, that his land joins t he land of the
 
 III. 3.] SALE OF ICE. I49 
 
 State. The fact that it so joins, gives him no title to that land, or 
 to anything formed or grown upon it, any more than it does to any- 
 thing formed or grown or found upon the land of any individual 
 neighbor. Undoubtedly, in view of the importance that ice is 
 rapidly assuming as a merchantable commodity, it would be wise for 
 the State to legislate in reference to the ice. product of the navigable 
 streams; but until such legislation is had, it would seem that the 
 one who first appropriates and secures the ice which is formed is 
 entitled to it, and on the same principle that he who catches a fish 
 in one of those rivers owns it. Hickey v. Hazard, 3 Mo. App. 480; 
 Gage v. Steinkrans and Rowell v. Doyle, Mass. Sup. Ct. 25 Alb. L. 
 
 J- 23. 
 
 There being no other questions in the case, the judgment of the 
 District Court will be affirmed. 
 
 3. Sale of Ice. 
 
 HIGGINS v. KUSTERER. 
 
 41 Michigan, 318. — 1879. 
 
 Campbell, C. J. — Higgins recovered below a judgment against 
 Kusterer for the value of a quantity of ice. Kusterer claims that 
 title never passed to Higgins, and that the property was lawfully 
 acquired by himself from one Loder, who cut it on a pond belonging 
 to one Coats and sold it to defendant. 
 
 The facts are briefly these: The ice in question was formed upon 
 water which had spread over a spot of low ground partly belonging 
 to Hendrick Coats, forming a basin, the land being dry in summer, 
 and the rest of the year overflowed from a small brook leading into 
 it. After the ice formed, and in February, 1878, Coats, by a parol 
 bargain, sold all the ice in his part of the basin to Higgins, for fifty 
 cents. The parties at the time stood near by in view of the ice, and 
 the quantity sold was pointed out, and the money paid. The ice 
 was then all uncut. 
 
 About two weeks thereafter John Loder, knowing that Higgins 
 had purchased and claimed the ice, and having been warned thereof 
 by Coats, offered Coats five dollars for the ice, which Coates accepted, 
 and Loder cut it, and sold it to Kusterer who had made a previous 
 verbal contract with Loder for it. Higgins was present when the 
 ice was loaded on Kusterer's sleigh and forbade the loading and 
 removal on the ground that he had purchased it from Coats. Kus- 
 terer referred the matter to Coats who said he had sold it to Loder.
 
 150 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 The only question presented is whether Higgins was owner of 
 the ice. 
 
 The case was argued very ably and very fully, and the whole sub- 
 ject of the nature of ice as property was discussed in all its bearings. 
 We do not, however, propose to consider any question not arising 
 in the case. 
 
 The record is free from any complications which might arise under 
 other circumstances. There are no conflicting purchasers in good 
 faith without notice. Loder and Kusterer had full notice of the 
 claims of Higgins before they expended any money. The sale to 
 Higgins was not a sale of such ice as might, from time to time, be 
 formed on the pond, but of ice which was there already, and which, 
 if not cut, would dissapear with the coming of mild weather and 
 have no further existence. It was not like crops or fruit connected 
 with the soil by roots or trees through which thsy gained nourishment 
 before maturity. It was only the product of running water, a 
 portion of which became fixed by freezing, and if not removed in 
 that condition would lose its identity by melting. In its frozen con- 
 dition it drew nothing from the land, and got no more support from 
 it than a log floating on the water would have had. 
 
 Its only value consisted in its disposable quality as capable of 
 removal from the water while solid, and of storage where it might 
 be kept in its solid state, which could not be preserved without such 
 removal. If left where it was formed it would disappear entirely. 
 
 While we think there can be no doubt that the original title to ice 
 must be in the possessor of the water where it is formed, and while 
 it would pass with that possession, yet, it seems absurd to hold that 
 a product which can have no use or value except as it is taken away 
 from the water, and which may at any time be removed from the 
 freehold by the moving of the water, or lose existence entirely by 
 melting, should be classed as realty instead of personalty, when the 
 owner of the freehold chooses to sell it by itself. When once sev- 
 ered no skill can join it again to the realty. It has no more organic 
 connection with the estate than anything else has that floats upon the 
 water. Any breakage may sweep it down the stream and thus cut 
 off the property of the freeholder. It has less permanence than any 
 crop that is raised upon the land, and its detention in any particular 
 spot is liable to be broken by many accidents. It must be gathered 
 while fixed in place or not at all, and can only be kept in existence 
 by cold weather. In the present case, the peculiar situation of the 
 pond rendered it likely that the ice could not float away until nearly 
 destroyed, but it could not be preserved from the other risks and 
 incidents of its precarious existence. Any storm or shock might in
 
 IV. I.] FRUCTUS NATURALES: TREES. 151 
 
 a moment convert it into floating masses wnich no ingenuity of 
 black-letter metaphysics could annex to the freehold. 
 
 It does not seem to us that it would be profitable to attempt to 
 determine such a case as the present by applying the inconsistent 
 and sometimes almost whimsical rules that have been devised con- 
 cerning the legal character of crops and emblements. Ice has not 
 been much dealt with as property until very modern times, and no 
 settled body of legal rules has been agreed upon concerning it. So 
 far as the principles of the common law go, they usually, if not uni- 
 versally, treated nothing movable as realty unless either permanent!} - 
 or organically connected with the land. The tendency of modern 
 authority, especially in regard to fixtures, has been to treat such 
 property according to its purposes and uses as far as possible. 
 
 The ephemeral character of ice renders it incapable of any per- 
 manent or beneficial use as part of the soil, and it is only valuable 
 when removed from its original place. Its connection, — if its 
 position in the water can be called a connection, — is neither organic 
 nor lasting. Its removal or disappearance can take nothing from 
 the land. It can only be used and sold as personalty, and its only use 
 tends to its immediate destruction. We think that it should be 
 dealt with in law according to its uses in fact, and that any sale of 
 ice ready formed, as a distinct commodity, should be held a sale of 
 personalty, whether in the water or out of the water. 
 
 We shall not attempt to discuss cases where the bargain includes 
 
 future uses of land and water, and interests in ice not yet frozen. 
 
 Whether such dealings are to be regarded as leases or licenses, or 
 
 executory sales, may be properly discussed when they occur. We 
 
 think the sale in the present case was rightfully held to be a sale of 
 
 personalty. 
 
 The judgment must be affirmed, with costs. 
 
 IV. Vegetable products of the soil. 
 
 1. Fructus Naturales. 
 
 a. Classification and legal charade?- and oivnership. 
 
 (1) Trees and Their Fruit. 
 
 SLOCUM v. SEYMOUR. 
 
 36 New Jersey Law, 138. — 1873. 
 
 Bedle, J. — Slocum conveyed to Seymour by an ordinary deed of 
 conveyance, dated December 20, i860, all the wood and timber
 
 152 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 upon a certain tract of land, with the right, in the vendee, to cut 
 and remove the same before July i, 1862. The deed described the 
 tract by metes and bounds, and as the same premises conveyed to 
 Slocum by Abram W. Haring and wife, by deed of even date with 
 the deed to Seymour. The title of Slocum to a part of the tract 
 proved defective, and this suit is brought upon an alleged implied 
 covenant of title in the plaintiff's (Seymour's) deed. There is no 
 express covenant of title, but there is a covenant against the acts 
 of the grantor. The charge was based upon the assumption that 
 the parties had treated this as a sale of personal property, and that 
 a warranty of title would be implied by the law. Although there is 
 great diversity in the case, whether a sale of standing timber by the 
 owner of the freehold is of a chattel interest, I am satisfied that such 
 a sale is of an interest in lands, and not controlled by the doctrine 
 of warranty of title in sales of personal property. In no sense can 
 trees, the natural and permanent growth of the soil, be regarded as 
 partaking of the character of emblements, or fructus industriales, but 
 are a part of the inheritance, and can only become personalty by 
 actual severance, or by a severance in contemplation of law as the 
 effect of a proper instrument of writing. It may be conceded, and 
 such is the law, as in the case of Smith v. Surman, 9 B. & C. 561, 
 that there may be a valid parol contract for the sale of timber as a 
 chattel where it is to be cut and delivered by the vendor, although 
 designated as being upon certain land, and where the contract con- 
 templates no property to the vendee in the trees until after they are 
 actually cut down and reduced to chattels; yet, where the sale is of 
 an interest in the trees standing, without having been in legal effect 
 severed by the force of a previous written instrument, and although 
 the American cases differ upon the subject, the best considered of 
 them, and those which I think declare the law, hold that such a sale 
 is of an interest in land, within the meaning of the Statutes of 
 Frauds. Green v. Armstrong, 1 Denio, 551; Buck v. Pickwell, 27 
 Vt. 158; Putney v. Day, 6 N. H. 430; Olmsted v. Niles, 7 N. H. 522. 
 This also is a fair result of the English cases, although to some 
 extent conflicting. The only adverse ruling in point in England is 
 in 1 Lord Raymond, 182, where it is stated that Treby, C. J., 
 reported to the other justices that on a question before him at nisi 
 prius, whether the sale of timber growing ought to be in writing by 
 the statute of frauds, or might he by parol, he was of opinion, and 
 ruled accordingly, that it might be by parol, because it was a bare 
 chattel. The report also states, and Powell, J., agreed to this 
 opinion, but whether informally or in banc, it is difficult to tell from 
 the report. This ruling is also mentioned in Buller's Nisi Prius,
 
 IV. i.J FRUCTUS NATURALES: TREES. 1 53 
 
 282, as per Treby, C. J. But the case of Scorell v. Boxall, 1 Younge 
 & Jervis, 395, is directly to the contrary, and in it Hullock, B , 
 regards the report in Lord Raymond as a dictum merely and not as 
 an authority. That report is undoubtedly the foundation of all the 
 American cases to the same effect, but it is not considered as the 
 settled law in England. The case of Scorell v. Boxall was this: 
 The plaintiff had purchased, by parol, underwood standing, to be cut 
 by him, and brought his action against the defendants for cutting 
 and carrying it away. The Court of Exchequer held that the plain- 
 tiff's contract was a mere parol contract for the sale of growing 
 underwood, a part of the freehold, and in direct violation of the 
 statute of frauds — that it was the sale of an interest in land. See 
 also the case of Teal v. Auty, 2 B. & B. 99, to the same effect as to 
 the purchase of growing poles. 
 
 As already indicated, trees may become personalty when actually 
 severed, or when the property in claim has become distinct from 
 the freehold by written transfer. There may also be valid parol 
 contracts with the owner of the soil, with reference to their sale and 
 delivery as chattels in contemplation of severance, where no interest 
 in the trees standing is intended by the bargain, the same as con- 
 tracts for the sale of lumber to be cut, sawed and delivered as such; 
 but when the contract comprehends an interest in the trees standing, 
 with a right in the vendee to sever them, the subject-matter is then 
 an interest in land within the statute of frauds. Such was clearly 
 the character of the contract between these parties, as the deed 
 shows an intention to convey, and does convey, an interest in the 
 wood and timber standing, when a part of the freehold, in the hands 
 of the vendor. The deed secures to Seymour an actual property in 
 the trees as a part of the land, and not merely a right of action 
 under a contract of purchase of personal property. 
 
 The bargain having been consummated in this case by the delivery 
 and acceptance of a deed of conveyance, the doctrine of caveat 
 emptor must apply in the absence of fraud, unless the purchaser has 
 protected himself by a covenant of warranty of title in the deed. 
 Phillips v. City of Hoboken, 2 Vroom. 143; 4 Kent, 471, note. 
 
 In this deed there is no such covenant, and the law will not imply 
 one. For these reasons the action was not maintainable, and the 
 judgment must be reversed.
 
 154 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 SKINNER v. WILDER. 
 38 Vermont, 115. — 1865. 
 
 Peck, J. — In this case it appears that the plaintiff planted or set 
 apple trees on his own land six feet from the division line between 
 his land and the defendant's land; the trees grew until the roots 
 extended into, and the branches overhung, the defendant's land. 
 The question is whether the defendant is liable either in trespass on 
 the freehold or in trover for picking, carrying away and converting to 
 his own use, the apples growing on the branches overhanging his 
 own land. 
 
 Each party claims to be the sole owner of the fruit in question; 
 the plaintiff upon the ground that he is the owner of the tree, and 
 the defendant upon the ground that the branches and the fruit 
 thereon overhung his land, and that in virtue of his ownership of 
 his land he owns everything above it. It is true that whoever owns 
 land owns above it to an indefinite height, — that is, he owns the 
 space above, or rather, has the right to appropriate it to his use, so 
 that no one can lawfully obstruct it to his prejudice. But it is not 
 true in all cases that the owner of land owns everything upon or 
 above it, though placed there wrongfully by another. Certainly in 
 case one's personal property is wrongfully placed upon the land of 
 another the property in the thing is not thereby changed. The 
 owner of the soil has his remedy by action for damages, and he may 
 remove it; but he does not become the owner. If a man build a 
 house on his own land with the eaves and windows above the surface 
 of the ground projecting over the land of the adjoining proprietor, 
 he is liable to an action for damages, and generally, at least under 
 some circumstances, the adjoining proprietor may remove the 
 obstruction as a nuisance; but the material removed does not 
 become his property. In order to justify the act of removal in such 
 case, he must allege that the obstruction was wrongfully encumber- 
 ing his premises, and that he, therefore, removed it, doing no 
 unnecessary damage. If it appear that he unnecessarily destroyed 
 it, or appropriated it to his own use, the justification fails. This 
 shows that the right of removal does not depend on ownership, but 
 on his right to protect his own premises from invasion. The defend- 
 ant, therefore, cannot be regarded as the owner of the apples merely 
 because the branches on which they grew were wrongfully encum- 
 bering his ground. Suppose the defendant's counsel is correct, as 
 he probably is in the proposition that the defendant had the right to 
 cut the root- and branches of the tree to the division line so far as 
 penetrated or overhung his land, upon the ground that they
 
 IV. i.] FRUCTUS NATURALES: TREES. 1 55 
 
 were unlawfully encumbering his premises; this justification does 
 not extend to the carrying away and converting the apples upon 
 such branches to his own use, unless he was the owner of the apples, 
 either solely, or in common with the plaintiff. The title to the 
 apples depends upon the tide to the tree, and the defendant was not 
 the sole owner of any part of the tree. The defendant is liable in 
 either count in the declaration unless he had some property : n the 
 tree. 
 
 The remaining ground of justification on which the defendant 
 relies is, that he was tenant in common with the plaintiff of the tree, 
 and consequently of its product. A tree standing upon the division 
 line between adjoining proprietors so that the line passes through 
 the trunk or body of the tree above the surface of the soil, is the 
 common property of both proprietors as tenants in common. This 
 is not denied. This is another instance where the maxim that he 
 who owns land owns to the sky above it, is qualified and made to 
 give way to a rule of convenience, more just and equitable, and 
 more beneficial to both parties. To hold in such case that each is 
 the absolute owner of that part of the tree standing on or over his 
 own land, would lead to a mode of division of the tree when cut, 
 that would be impracticable, and give the right to one to hew down 
 his part of the tree to the line and thereby destroy the part belong- 
 ing to the other. The rule is, therefore, settled that in such case 
 the parties are tenants in common. It is claimed that the same 
 principle applies to this case, because some of the roots of the tree 
 extend into the defendant's land whence it draws part of its support. 
 Waterman v. Soper, 1 Ld. Raym. 737, is cited in support of this 
 proposition. In that case it is said that it was ruled at nisi prius, 
 " that if A. plants a tree upon the extremest limits of his land, and the 
 tree growing extends its root into the land of B. next adjoining, A. 
 and B. are tenants in common of the tree. But if all the root grows 
 into the land of A., though the boughs overshadow the land of B., 
 yet the branches follow the root and the property of the whole is in 
 A." There is an anonymous case in 2 Roll. 255, in which it is held 
 that if a tree grows in a hedge which divides the land of A. and B., 
 and the roots take nourishment of both their lands, they are tenants 
 in common of it. It is evident that neither of those cases is neces- 
 sarily decisive of the case at bar, and that they do not control it 
 unless the principle is fairly deducible from them that the adjoining 
 proprietors are tenants in common of a tree in all cases where the 
 roots penetrate the soil of both, without reference to the distance of 
 the tree from the division line. We think this broad principle is 
 not intended to be established in those cases. In the first. Water-
 
 156 CONSTITUExNTS AND INCIDENTS OF LAND. [PT. II. CM. II. 
 
 man v. Sopcr, it is a condition that the tree be planted on the 
 extremest limit of the land, so that growing it extends its roots into the 
 land of the adjoining proprietor. A tree thus planted must almost 
 inevitably in its subsequent growth extend its body more or less 
 upon the dividing line. In the other case the tree grew in the hedge 
 which divided the land of the two proprietors. Such a division 
 hedge, in England, like division fences here, is generally pri ma facie 
 the common property of both, and the tree may have been treated 
 as constituting part of the hedge, but if not, it must have stood in 
 close proximity to, if not upon the line. These cases may reasonably 
 be supposed to have been decided upon the ground that the trees 
 stood substantially upon the line, and not solely on the ground that 
 the roots extended into the land of each. This principle of tenancy 
 in common in a tree merely because some of its roots extend into 
 the land of the adjoining proprietor, regardless of the location of 
 the tree, would be attended with so much inconvenience, uncertainty 
 and embarrassment in its practical application, that it furnishes a 
 strong argument against the construction of these cases contended 
 for by the defendant, as well as against recognizing such a principle 
 unless the authorities lead to that result, or the purposes of justice 
 imperiously demand it. There is at first view an apparent equity 
 in the proposition that the proprietor from whose land a tree 
 draws a portion of its support should have some benefit in 
 return, but to allow him an equal right to the tree and its 
 fruits because a single root penetrates his soil, is quite as unjust 
 as to deny him any right in the tree whatever. If he is tenant 
 in common, what proportion does he own? If his interest is in pro- 
 portion to the portion of nourishment the tree draws from his land 
 how is the fact to be ascertained? Suppose the division line runs 
 through a grove, a fruit yard, a nursery of trees or a forest, and this 
 rule is adopted, there might be a belt of land rods in width, on 
 which the parties would be tenants in common of more or less of the 
 trees. How is each to know or ascertain what he owns solely, and 
 what in common, and in what proportion, especially as the rights of 
 the parties would be constantly changing by the growth and conse- 
 quent extension of roots across the division line. Principles of law 
 and rules of property must be such as are capable of practical appli- 
 cation to business affairs. But suppose these cases go to the extent 
 the defendant claims, then what are the authorities opposed to them? 
 In Masters v. Polite, 2 Roll. 141, it was adjudged that if a tree 
 grows in A.'s close, and roots in B.'s, yet the body of the tree being 
 in the soil of A., all the residue of the tree belongs to him also. 
 This case directly in point to show that the plaintiff in the case before
 
 IV. i.J FRUCTUS NATURALES: TREES. 1 57 
 
 us is the sole owner of the tree, and it is directly opposed to Water- 
 man v. Soper, upon the construction put upon that case by the defend- 
 ant's counsel; and also opposed to the anonymous case above cited, 
 2 Roll. 255, unless that case is to be interpreted as already stated; 
 but if those two cases stand on the ground heretofore stated, then 
 there is no such conflict. Miller v. Fondyce, Poph. 161, 163, and 
 Norris v. Baker, 3 Bulst. 178, seem to support the principle of 
 Masters v. Pollie, relied on by the plaintiff's counsel. The plaintiff's 
 counsel relies on Holden v. Coates, 22 E. C. L. 264. The facts in 
 that case were much stronger in favor of a tenancy in common than 
 in this case, and not so clearly in favor of an entire title in the party 
 on whose land the body of the tree stood, as in this case. The trunk 
 of the tree stood in the defendant's land, and the lateral or spur 
 roots grew in the land of both parties. The plaintiff gave evidence 
 to show that there was no tap root, and that all the principal roots 
 from which the tree derived its main nourishment were those which 
 grew in the plaintiff's land. The defendant's evidence was that 
 there was a tap root growing entirely in his land, and that the spur 
 roots grew alike in the land of each party. The action was trespass 
 for cutting the tree. Littledale, J., speaking of Masters v. Pollie 
 and Waterman v. Soper, says, " I remember when I read these cases 
 I was of opinion that the doctrine in the case of Masters v. Pollie 
 was preferable to that in Waterman v. Soper, and I still think so." 
 So far as this expression of opinion goes, the case makes for the 
 plaintiff; but as the case ultimately turned, this point can hardly be 
 said to have been decided. Had the court followed either of these 
 cases, a verdict would have been directed. But the court, after 
 telling the jury not to decide the case upon the relative proportion 
 of nourishment derived by the tree from the soil of the plaintiff and 
 defendant, left the case to the jury to find from the situation of the 
 trunk of the tree above the soil, and of the roots within it, on whose 
 land the tree was first planted, and to render their verdict accord- 
 ingly; telling them if they could not find that fact, he would then 
 give them directions on the questions they would then have to con- 
 sider. This view is also in favor of the plaintiff in the case at bar, 
 because the case shows that the plaintiff planted the tree on his own 
 land, six feet from the division line. The jury in that case, how- 
 ever, reported that they could not tell on whose land the tree did first 
 grow; and a verdict was taken for the defendant by consent, on 
 some terms agreed on between the parties; so that the case can 
 hardly be said to be of much authority as a decision. But Lyman v. 
 Hale, 11 Conn. 177, is identical with the present case in principle, 
 and in its facts also, except the tree in that case was two feet nearer
 
 158 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 the dividing line than in this case. The court in that case, on full 
 discussion and review of the authorities, decided that upon reason, 
 principle, and weight of authority, the tree and the fruit growing 
 on the branches overhanging the defendant's land, were the sole 
 property of the plaintiff on whose land the body of the tree stood, 
 and that the defendant was liable in trespass for gathering and con- 
 verting to his own use the fruit on such overhanging branches. The 
 elementary books cited are in conflict, all referring to Masters v. 
 Pollie, or Waterman v. Soper ; some following one and some the other 
 of these cases. 
 
 There seems to have been the same conflict of opinion in the civil 
 iaw on this subject, notwithstanding the law of vicinage and the 
 rights and duties of adjoining proprietors, were by the Roman Code 
 defined with much more particularity than by the common law. 
 There is a passage in the Institutes of Justinian that, as it is generally 
 translated, would seem to favor the doctrine of Waterman v. Soper, 
 as claimed by the defendant. After stating that if one sets his plant 
 in another's ground, it becomes the property of the owner of the 
 land where it is set after it has taken root, the passage proceeds as 
 follows: " So that if the tree of a neighbor borders so closely upon 
 the ground of Titius as to take root in it, and be wholly nourished 
 there, we may affirm that such tree is become the property of Titius; 
 for reason doth not permit that a tree should be deemed the prop- 
 erty of any other than of him in whose ground it hath rooted ; there- 
 fore if a tree planted near the bounds of one person, shall also extend 
 its roots into the land of another, it will become common to both." 
 Instit. 2, 1, 31, Coop. Just. 79. This passage may have reference 
 only to a tree so near the line as to be regarded as standing sub- 
 stantially upon the line. But however this may be, it is to be 
 observed that the civil law in the days of Rome required a boundary 
 of five feet to be left between farm and farm, or rather between the 
 trees of the two adjoining proprietors, except in the case of an olive 
 or a fig tree, where a space of nine feet was required. It is evident 
 that the passage above quoted has reference to trees set within the 
 prohibited distance from the extreme boundary line. There might 
 be more reason in saying if a party set his tree on the extreme limit 
 of his land, in violation of express law, that the adjoining: proprietor 
 should become tenant in common of the tree, than if no such legal 
 regulation existed, or if the tree was set no nearer the division line 
 than the law prescribed. On the other hand, it is laid down in 
 another book of the civil law, that such tree extended its roots into 
 the land of the adjoining proprietor, is nevertheless the property of 
 him in whose land it had its origin. Dig. 47, 7, 6, 2. This is the
 
 IV. i.] FRUCTUS NATURALES: TREES. 1 59 
 
 rule recognized by Littledale, J., in Holden v. Coates. This rule 
 generally would lead to the same result as the rule that the tree 
 belongs to him on whose land the trunk or body of the tree is situ- 
 ated; as a tree would naturally be supposed to grow where it was set 
 or planted. Yet in the case last cited the jury were unable to find 
 on whose land the tree was planted, although the trunk of the tree 
 was on the defendant's land, because the court told the jury to 
 determine it from the evidence as to the situation of the trunk of 
 the tree above the soil, and of the roots within it. Domat, in treat- 
 ing this subject, attributes no consequence to the setting of a tree 
 nearer the division line than the law allows, except that the party 
 thus offending may be compelled to remove it and pay the damages. 
 He does not intimate that the tree thereby becomes the common 
 property of the two adjoining proprietors. I Domat, Civil Law, 589, 
 tit. 6, sec. 1, art. 2; 591, sec. 2, art. 1; Cooper's Justinian, 460, 
 notes. The civil law on the whole is rather in favor of the plaintiff, 
 and is more in accordance with Masters v. Pollie. The civil code of 
 France regulates the subject by declaring the boundary hedges and 
 the trees within them, with some exceptions, common property. 
 The civil law cannot be referred to as authority, and can have no 
 bearing unless for its reason, and then only on a question not settled 
 by the common-law. 
 
 On the whole we think the weight of authority, reason and analogy, 
 as well as convenience, is in favor of the principle that a tree and its 
 products is the sole property of him on whose land it is situated; 
 and that considering the necessary uncertainty of evidence as to the 
 location and extent of the roots of a tree, its location and property 
 should be determined by the position of the trunk or body of the 
 tree above the soil, rather than by the roots within or branches 
 above it. But even if a tree standing with its trunk at the extreme 
 limit of one's land, with the main roots extending immediately into 
 the soil of the adjoining proprietor, should be regarded as so far 
 substantially upon the line as to become common property, it cannot 
 be so regarded in relation to the tree in question, situate six feet 
 from the division line. 
 
 No importance is attached to the agreement between the plaintiff 
 and the defendant's grantor as to the distance at which each might 
 set trees; as the defendant, especially as for aught that appears, 
 purchased without notice of it, and is not bound by such verbal 
 agreement. 
 
 Judgment reversed and new trial granted.
 
 l6o CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 HOFFMAN v. ARMSTRONG. 
 
 48 New York, 201. — 1872. 
 [Reported herein at p. 97.] 
 
 PURNER v. PIERCY. 
 
 40 Maryland, 212. — 1874. 
 
 Stewart, J., delivered the opinion of the court. — * * * There 
 then remained but the fifth count, upon which the plaintiff could 
 recover, which alleged the purchase from the plaintiff by the defend- 
 ant of the fruit growing in his peach orchard, and that the defendant 
 took possession thereof and carried it away. We think the jury 
 were clearly and correctly instructed by the granting of the plain- 
 tiff's prayer. * * * * 
 
 But the defendant's counsel insists that the contract was invalid 
 under the operation of the fourth section of the statute of frauds. 
 That section provides that no action shall be brought to charge any 
 person upon any contract or sale of lands, or any interest in or con- 
 cerning them, unless the agreement upon which such action shall be 
 brought, or some memorandum thereof, shall be in writing, etc. 
 
 Agreement and contract seem to be considered in the section of 
 the same purport, and the appellant's counsel insists the contract or 
 agreement relied upon here to charge the defendant is for lands, 
 or some interest in or concerning them, and therefore not to be 
 established by parol proof. 
 
 It would be giving to the statute a very latitudinarian construction 
 to bring the case in question within the mischief designed to be 
 avoided by the statute. We have been referred to no case in this 
 State, and have found none to sanction such doctrine. The cases 
 of Ellicott v. Peterson s Ex rs, 4 Md. 476, and Smith v. Bryan, 5 Md. 
 141, are against such enlarged construction. 
 
 The first case, in regard to agreements to be performed within a 
 year, decides that a complete performance by one of the parties 
 within the year is sufficient compliance with the requirements of the 
 statute. 
 
 The latter case substantially holds that the sale of standing trees, 
 under the cir< umstance of that case, was a sale of goods, and con- 
 formed to the demands of the seventeenth section, and refers with 
 approval to sec. 271 of Greenleaf's Evidence. 
 
 There is certainly some conflict in the adjudged cases in regard 
 to the interpretation of contracts for the sale of crops and the
 
 IV. i.] FRUCTUS NATURALES: TREES. l6l 
 
 natural products growing upon land; and it is difficult to deduce 
 therefrom any clearly defined rule upon the subject. 
 
 Mr. Alexander, in his admirable treatise on the British Statutes in 
 force here, has carefully referred to numerous cases, both English 
 and American, and deduced therefrom the distinctions which seemed 
 to have prevailed in regard to the operation of the statute in relation 
 to growing crops and other produce of land. At page 532 et seq., 
 contracts, as to the natural product of the land, are distinguished 
 from such as relate to crops raised by the industry of man, and yield- 
 ing an annual profit. A distinction is also noted between the natural 
 produce when severed by the seller or by the buyer. He refers to 
 the recent work of Benjamin on Sales, 84 et seq., for a fuller dis- 
 cussion. Mr. Benjamin, at p. 99, remarks, from all that precedes, 
 the law on the subjects of the sale of growing crops may be summed 
 up in the following proposition, viz.: Growing crops, if fructus 
 industriales, are chattels, and an agreement for the sale of them, 
 whether mature or immature, whether the property in them is trans- 
 ferred before or after severance, is not an agreement for the sale of 
 any interest in land, and is not governed by the fourth section of 
 the Statute of Frauds. Growing crops, if fructus ziaturales, are part 
 of the soil, before severance, and an agreement therefore vesting an 
 interest in them in the purchaser before severance is governed by 
 the fourth section; but if the interest is not to be vested till they 
 are converted into chattels by severance, then the agreement is an 
 executory agreement for the sale of goods, wares and merchandise, 
 governed by the seventeenth, and not by the fourth section of the 
 statute. 
 
 Assuming these distinctions to be well founded, still what is the 
 natural and what the artificial product remain to be determined in 
 each case. Mr. Phillips, in his work on Evidence, 3 vol. 250, says, 
 the statute does not include agreements for the sale of the pro- 
 duce of a given quantity of land, and which will afterwards become 
 a chattel; though some advantage may accrue to the vendee by its 
 continuing for a time in the land. 
 
 In Taylor's recent book on the Law of Evidence, 2d vol. sec. 952, 
 the following propositions are submitted: 1st. A contract for the 
 purchase of fruits of the earth, ripe, though not yet gathered, is not 
 a contract for any interest in lands, though the vendee is to enter 
 and gather them. 2d. A sale of any growing produce of the earth, 
 reared annually by labor and expense, and in actual existence, at 
 the time of the contract, as, for instance, a growing crop of corn, 
 hops, potatoes, or turnips, is not within the fourth section, though 
 the purchaser is to harvest or dig them. 3d. An agreement respecting 
 
 LAW OF TROP. IN LAND — II
 
 l62 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 the sale of a growing crop of fruit, or grass, or of standing under- 
 wood, growing poles or timber, is within the fourth section, and a 
 written contract of sale cannot be dispensed with. 
 
 However sound his first and second propositions, we think his 
 third is to be taken with some qualification — and that a growing 
 crop of peaches or other fruit, requiring periodical expense, industry 
 and attention, in its yield and production, may be well classed as 
 fructus industriales, and not subject to the fourth section of the 
 statute. 
 
 Brown on Statute of Frauds, in sections 236, 237, 246, 247, and 
 249, and Greenleaf's Ev. 1 vol. sec. 271, have furnished from the 
 adjudged cases, a construction more in consonance with our views 
 upon the subject, and is substantially to the following effect: There 
 is nothing in the vegetable or fruit which is an interest in, or con- 
 cerning land, when severed from the soil, whether trees, grass and 
 other spontaneous growth (prima vesturd) or grain, vegetables, or 
 any kind of crops (fructus industriales}, the product of periodical 
 planting and culture; they are alike mere chattels, and the severance 
 may be in fact, as when they are cut and removed from the ground; 
 or in law, as when they are growing, the owner in fee of the land, 
 by a valid conveyance, sells them to another person, or where he 
 sells the land, reserving them by express provision. 
 
 As a general rule, if the products of the earth are sold specifically, 
 and by the terms of the contract to be separately delivered, as chat- 
 tels, such a sale is not affected by the fourth section of the statute, 
 as amounting to a sale of any interest in the land. When such is the 
 character of the transaction, it matters not whether the product be 
 trees, grass and other spontaneous growth, or grain, vegetables, or 
 other crops raised periodically by cultivation — and it is quite imma- 
 terial whether the produce is fully grown or in the process of grow- 
 ing, at the time of making the contract. 
 
 The circumstance that the produce purchased may, or probably, 
 or certainly will derive nourishment from the soil between the time 
 of the contract and the time of the delivery, is not conclusive as to 
 the operation of the statute. 
 
 If the contract, when executed 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 <>( making a profit of the growing surface, 
 it is affected by the statute, ami must be in writing, although the 
 purchaser is at the last to take from the land only a chattel. 
 
 To put a reasonable construction upon the terms of the fourth
 
 IV. i.] FRUCTUS NATURALES: TREES. 163 
 
 section of the statute, from the evidence in this case, it is clear that 
 the contract in question is not within its meaning. It had been 
 executed by the plaintiff, and the fruit had been gathered, and in 
 fact paid for at the time of the suit. 
 
 It was in proof that a part of the fruit was prematurely ripe at the 
 time of the contract. 
 
 It would be a perversion of the objects of the statute to hold as 
 invalid the sale, in other respects legal, of the growing crop of 
 peaches, with no intent of the parties to sell or purchase the soil, 
 but affording a mere license, express or implied, to the purchaser to 
 go upon the land, to gather the fruit and remove the same. Sub- 
 stantially, to use the language of sec. 271, of 1 Greenleaf's Ev., 
 the transaction takes its character of realty or personalty from the 
 principal subject-matter of the contract, and the interest of the 
 parties, and, therefore, a sale of any growing produce of the earth, 
 in actual existence, at the time of the contract, whether it be in a 
 state of maturity or not, is not to be considered a sale of an interest 
 in, or concerning land. Where timber or other produce of the land, 
 or any other thing annexed to the freehold, is specifically sold, 
 whether to be severed from the soil by the vendee, or to be taken by 
 the vendee, under a special license to enter for that purpose, it is 
 still, in contemplation of the parties, a sale of goods only, and not 
 
 within the statute. 
 
 Judgment affirmed. 
 
 SMITH v. PRICE. 
 
 39 Illinois, 28. — 1865. 
 
 Mr. Justice Lawrence delivered the opinion of the Court. — This 
 was a bill in chancery filed by Smith, plaintiff in error, to enjoin 
 Price, the defendant in error, from removing certain fruit trees 
 growing in a nursery, and certain ornamental shrubbery, from a 
 tract of land sold by the latter to the former. Price answered (the 
 oath to his answer having been waived), and on the coming in of 
 the answer a motion was made to dissolve the injunction. A repli- 
 cation was filed and the case seems to have been irregularly set 
 down for final hearing at the same time with hearing the motion to 
 dissolve, and to have been finally disposed of upon the pleadings and 
 the affidavits filed for and against the motion. As no exception was 
 taken to this proceeding, it was probably had by consent. The 
 Court rendered a decree making the injunction perpetual as to a part 
 of the trees, and dissolving it as to a part; and from this decree the 
 complainant prosecutes a writ of error.
 
 164 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 The defendant admits a sale of the land by himself to the com- 
 plainant, and that the latter went into possession under the contract 
 of purchase, but insists that one of the terms of the sale was a 
 verbal reservation of the nursery trees and some other ornamental 
 shrubbery. The proof made in the affidavits upon this point is 
 uncertain and contradictory. 
 
 While fruit trees and ornamental shrubbery grown upon premises 
 leased for nursery purposes would probably be held to be personal 
 property, as between the landlord and tenant, yet there is neither 
 authority nor reason for saying that, as between vendor and vendee, 
 such trees and shrubbery would not pass with a sale of the land. 
 They are annexed to, and a part of the freehold. As between vendor 
 and vendee, even annual crops pass with the land where possession 
 is given. Bull v. Griswold, 19 111. 631. Under the contract of sale 
 and the delivery of possession by Price to Smith, the latter became 
 the owner of the trees as well as of the soil, and it would be a viola- 
 tion of the most familiar rules of evidence to receive proof of a 
 verbal arrangement cotemporaneous with the written contract and 
 impairing its legal effect. The parties, in executing the written 
 instrument, deliberately made it the exclusive evidence of the terms 
 of their agreement. This instrument shows a sale of the land in 
 such terms as to pass the trees. No reservation is made, and to 
 permit the vendor now to show that there was a verbal agreement 
 for their reservation, would be to permit him to prove a verbal con- 
 tract, inconsistent with the legal import of that executed by the 
 parties under their hands and seals. This the law forbids. We find 
 nothing in the case to make it an exception to this familiar principle, 
 and it is, therefore, unnecessary to advert to the evidence in detail. 
 As the record shows that Pri^e has actually removed a part of the 
 shrubbery, and claimed the right to move much more, it was a 
 proper case for an injunction, and the decree will be reversed and 
 the cause remanded, with instructions to the court to proceed in 
 conformity with this opinion. 
 
 Decree reversed. 
 
 BATTERMAN v. ALBRIGHT. 
 
 122 New York, 484. — 1890. 
 
 A.I 1 ion for damages for alleged conversion by defendant of nursery 
 trees, grape-vines and bushes standing and growing on a farm which 
 was formerly the property ot Peter S. Markle, who was a nursery- 
 man. The farm was subject to a mortgage made in 1868. Plaintiff
 
 IV. i.] FRUCTUS NATURALES: TREES. 165 
 
 now claims title to the trees, etc., in question by virtue of an execution 
 sale in 1877, on a judgment against Markle. Defendant took pos- 
 session of the premises under a foreclosure sale in 1878, had on the 
 mortgage in question. Judgment below for the defendant. Plain- 
 tiff appeals. 
 
 Bradley, J. — It may be assumed that, as against Markle, the 
 judgment-debtor, the plaintiff, by his purchase at the sale made by 
 the constable upon the execution, took title to the nursery trees and 
 the right to remove them. The question for consideration has rela- 
 tion to the effect, upon such rights, of the foreclosure of the mort- 
 gage, and the title to the premises derived from it. The trees and 
 bushes in question had been grown in the nursery since the mortgage 
 was made; and the plaintiff's claim of title was derived wholly from 
 his purchase on the execution sale. As against the mortgagor, the 
 foreclosure and sale were effectual to vest the title to the trees in 
 the purchaser, and in the defendant as his grantee. The rule, as 
 between mortgagor and mortgagee as to crops growing in mortgaged 
 premises, is no less favorable to the claim of the plaintiff than that 
 relating to nursery trees, which partake of the same character. 
 And the principle applicable to both in such case may be treated as 
 the same. The doctrine on the subject of emblements, and who, 
 in their relation to the land on which they were growing, were 
 entitled to them, was well defined at common-law; and it was 
 distinct from that of fixtures. They were treated as so distinct 
 from the real estate as to be subject to many of the incidents of 
 personal chattels. Co. Litt. 55b; 2 Bl. Comm. 404. And although 
 they did not go to the heir, they did to the devisee, and to the 
 remainderman for life. Broom's Leg. Max., 305. And in this State 
 .they go to the devisee, subject only to the payment of_ debts 
 of the testator and the legacies given by his will. Bradner v. 
 Faulkner, 34 N. Y. 347; Stall v. Wilbur, 77 1:1. 158. They, 
 belonging to the grantor, also passed with a conveyance of the 
 land, and such is now the rule. And the common law, in respect 
 to emblements, is not very greatly modified by the statute, which 
 provides that they be deemed assets and shall go to executors 
 and administrators to be applied and distributed as personal estate. 
 2 R. S. 82, sec. 6. It may be observed that the doctrine applicable 
 to growing crops is distinguishable from that relating to Other per- 
 sonal property on land as between grantor and grantee and mort- 
 gagor and mortgagee; the theory on which it rests is that they in 
 some sense appertain to the realty. And the general rule as declared 
 from an early day by text and judicial writers, is that a party enter-
 
 1 66 CONSTITUENTS AND INCIDENTS OK LAND. [PT. II. CII. II. 
 
 ing into possession by title paramount to the right of the tenant 
 takes them. Co. Litt. 55b; Davis v. Eyton, 7 Bing. 154. Whether, 
 without the aid of some statute, that rule is subject to any qualifica- 
 tions or exceptions, and if so, what, it is now unnecessary to inquire 
 or determine. In the present case, the mortgagor had been in 
 default several years at the time of the plaintiff's purchase of the 
 nursery trees on the execution sale. And the defendant's entry into 
 possession of the premises was by title paramount to any right which 
 could have been derived from the mortgagor in them subsequently 
 to the time the mortgage was given. Although since the right to 
 maintain ejectment is denied to a mortgagee by statute (2 R. S. 312, 
 sec. 57; Code, sec. 1498), his mortgage is a mere security, 
 and the title to the mortgaged premises remains in the mort- 
 gagor, the foreclosure and sale in practical effect operates to 
 eliminate the defeasance, and the purchaser takes the title of the 
 mortgagor as of the time the mortgage lien was created. Rector, etc. 
 v. Mack, 93 N. Y. 488. And while the plaintiff, as against the mort- 
 gagor and without liability to the mortgagee, may have taken the 
 nursery trees from the premises prior to the time of the foreclosure 
 of the mortgage, he had no such right, as against the purchaser or 
 his grantee who had entered under the title perfected by the sale on 
 foreclosure and the conveyance made pursuant to it. Lane v. King, 
 8 Wend. 584; Shepard v. Philbrick, 2 Den. 174; Gillet v.Balcom, 6 
 Barb. 370; Jeivett v. Keenholts, 16 Id. 194; Sherman v. Willet, 42 
 N. Y. 146; Aldrich v. Reynolds, 1 Barb. Ch. 613; Adams v. Beadle, 47 
 la. 439, 29 Am. Rep. 487. The suggestion of the plaintiff's counsel 
 that there has been a modification of the rule of law on the subject, 
 and that the case of Lane N.King is not, therefore, entitled to the 
 weight of authority, may be applicable to fixtures to which the 
 authorities cited by him relate. But emblements are not fixtures 
 within the meaning of the rule applied to them. The subject of the 
 former is treated in the law as distinct from the latter; and while 
 they may be taken on execution, supported by a judgment, not a lien 
 upon the realty, those things which have become fixtures cannot. 
 But the doctrine peculiar to growing crops, originating in considera- 
 tions deemed beneficial to the interests of agriculture, has remained 
 substantially unchanged, and the rule, as stated in Lane v. King, was 
 not only followed in some of the cases before cited, but that case 
 and its doctrine have more recently been judicially cited and referred 
 to with approval in this State, Harris v. Frink, 49 N. Y. 31; Samson 
 v. Rose, 65 id. 416, and it quite uniformly prevails where the com- 
 mon law on the subject remains in force. The rigor of the old 
 common law, which gave forfeiture as the consequence of default in
 
 IV. i.] FRUCTUS NATURALES: TREES. 167 
 
 payment of a mortgage, has been modified so as to permit payment 
 at any time before sale on foreclosure. But that does not affect the 
 question under consideration. And our attention is called to no 
 reason why the considerations upon which the doctrine relating to 
 emblements was founded, and has since been observed, are now any 
 less entitled to sanction than formerly. The fact that the right to 
 ejectment is taken away from the mortgagee by the statute and the 
 mortgage reduced to a mere chose in action secured by lien upon the 
 land, while the defeasance remains effectual, does not seem to have 
 any essential bearing upon the question, inasmuch as the perfecting 
 of title under it has relation to the time it became a lien. The case 
 of Mott v. Palmer, 1 N. Y. 564, is not analogously inconsistent with 
 the view here taken. There the right of the plaintiff, under his 
 agreement with the owner of the premises, arose before the sale and 
 conveyance to the defendant. And if the right of the plaintiff in 
 the present case had been acquired to the trees prior to the mort- 
 gage, a different question would have been presented. In that event, 
 the sale upon the execution and purchase by the plaintiff may have, 
 so far as essential, been treated as a severance of the growing trees 
 from the realty. But they cannot be so treated as against the title 
 paramount of the defendant. Shepard v. Philbrick, 2 Den. 174; 
 Gillett v. Balcom, 6 Barb. 370. These views lead to the conclusion 
 that the plaintiff was not entitled to recover, if the foreclosure of 
 the mortgage was effectually made. The plaintiff's counsel contends 
 that it was not because: (1) One Mary M. Markle was not made a 
 party to the foreclosure action, and (2) the plaintiff was not a party 
 to it. The first objection was founded on the fact that the mort- 
 gagee had assigned a partial interest in the mortgage to Mary M. 
 Markle. This did not render the decree invalid. The mortgagee 
 was a proper party plaintiff, and the omission to unite the other 
 party having a claim upon a portion of the amount secured by the 
 mortgage furnished no ground for a collateral attack by the mort- 
 gagor or the plaintiff. The equity of redemption was barred by 
 the foreclosure. And the plaintiff had no relation to the realty 
 to make him a necessary party for any purpose essential to the 
 title derived from the foreclosure of the mortgage. He could 
 acquire no interest in it by his purchase upon his execution sale. 
 Nor is it found that the mortgagee, at the time of the foreclosure 
 sale had any notice of the claim of the plaintiff founded upon his 
 purchase. Code, sec. 1671. 
 
 Judgment affirmed.
 
 l68 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 DUBOIS v. BEAVER. 
 
 25 New York, 123. — 1862. 
 
 Trespass by one of two adjoining landowners against the other 
 for cutting down line trees. Judgment for plaintiff. Defendant 
 appeals. 
 
 Allen, J. * * * It is not necessary to determine whether the 
 parties were technically tenants in common of the trees growing 
 upon the boundary lines separating their respective farms, with all 
 the ordinary rights and incidents of such an estate. The trees thus 
 growing are called, in the case, " line trees." By this, I under- 
 stand, is meant, not trees marked and set apart by the parties as evi- 
 dences or monuments of the division line, but trees deriving their 
 nourishment from roots extending on both sides of the line, and with 
 bodies so directly over the line, and necessarily on both sides of that 
 line, that it could not be determined upon which side of the line the 
 tree was originally planted ; as was the case in Holder v. Coates, 1 
 Moody & Malkin, 112. Different opinions have been held, as to the 
 rights of the owner of adjoining estates in trees planted, and the 
 bodies of which are wholly upon one, while the roots extend and 
 grow into the other; some holding that, in such cases, the tree, by 
 reason of the nourishment derived from both estates, becomes the 
 joint property of the owners of such estates. Watermanv. Soper, 1 
 Ld. Raym. 737; Griffin v. Bixby, 12 N. H. 454; 2 Bouv. Inst. 158; 
 while others, with better reasons, as it seems to me, hold that the 
 tree is wholly the property of him upon whose land the trunk stands. 
 Holder v. Coates, supra; Lyman v. Hale, 11 Con. 177; Masters v. 
 Pollic, 2 Roll. R. 141; Crabbe on Real Property, sec. 96. The same 
 reasons, and the proprietorship of the soil, would give to the owner 
 of the estate that part of the trunk of a tree which was upon or over 
 his land, when the trunk was divided by the line separating the 
 estates. The ownership of the soil would be several, in the proprie- 
 tors of the two estates, while the tree, standing and growing partly 
 upon the soil of each, not capable, as an entire thing of several 
 ownership by the two, would be the property of the two in common, 
 and as tenants in common. If a tree grows in a hedge, that divides 
 the land of A. and B., and by its roots takes nourishment in the 
 land of both, they are tenants in common. Anon, 2 Roll. 255; 
 Crabbe 's Law of Real Property, supra. 
 
 The same difficulty and conflict of opinions upon this branch of 
 the law has also existed in the civil law, and in France the difficulty 
 has been avoided by legislation, and boundary hedges, and the trees
 
 IV. i.] FRUCTUS NATURALES: TREES. 169 
 
 in them, are declared to be common property of the owners of the 
 two estates. Note to Holder v. Coates, 22 E. C. L. R. 265. So long 
 as neither can make title upon any principles of right known to the 
 law, to the exclusion of the other, a common property necessarily 
 exists in both, and the rule of the French code is but the rule of the 
 common law resulting from the principle which gives to the owner 
 of the soil an exclusive right to an indefinite extent upward and 
 downward, and which makes trees and bushes, growing and being 
 upon land, a part of the land itself. Trees thus standing upon the 
 boundary line, as mete-stones or monuments set up for marking the 
 boundary line, are not like party walls erected with reference to 
 the usual occupation of adjacent premises. The wall is erected for 
 the use of each, and each may use it, and each owns that which is on 
 his own premises, but there is no tenancy in common. Matts v. 
 Hawkins, 5 Taunt. 20. This case was, however, decided under the 
 party-wall act of 14 Geo. III., c. 78, and it would seem that but for 
 such act the presumption would be that the wall and the land on 
 which it stands belong to the owners of the adjoining lands in equal 
 moieties as tenants in common. Cubitt v. Porter, 8 B. & C. 257. 
 
 Ordinarily, trespass will not lie by one tenant in common against his 
 oo-tenant, but when one tenant in common ousts his co-tenant, 
 ejectment will lie at the suit of the latter; and when one tenant in 
 common destroys the subject of the tenancy, trespass will lie at the 
 suit of the injured party. Co. Litt. 200a, 200b; Crabbe's Law of Real 
 Property, sec. 2318b; Waterman v. Soper, supra. If one tenant in 
 common destroy the thing in common, as if he grub up and destroy 
 a hedge or prevent his co-tenants of a folding erecting hurdles, tres- 
 pass lies. Browne on Actions, 414; Voyce v. Voyce, Gow. 201; Cubitt 
 v. Porter, supra. If one tenant in common enter upon his co-tenant 
 and oust him of his premise^, trespass quare clausum f regit lies for 
 the injury. Erwin v. Olmsted, 7 Cow. 229. Here there was a total 
 destruction of the trees, and the plaintiff had his remedy by action 
 for the wrong done. If the parties were not tenants in common, 
 the defendant was clearly a trespasser in cutting and carrying off 
 that portion which belonged to the plaintiff in realty as being upon 
 his land. 
 
 The judgment must be affirmed. 
 
 
 \ 
 
 V* NA*' — \S>Nv 1
 
 170 CONSTITUENTS AND INCIDENTS TO LAND. [PT. II. CH. II. 
 
 BRACKETT v. GODDARD. 
 
 54 Maine, 309. — 1866. 
 
 Appleton, C. J. — This is an action brought to recover the price 
 of certain logs sold by the defendant to the plaintiff. The claim is 
 based upon an alleged failure of the defendant's title. 
 
 The defendant, while owning a lot of land in Hermon, cut down 
 a quantity of hemlock trees thereon. After peeling the bark there- 
 from and hauling it off the land, he conveyed the lot to one Works, 
 by deed of warranty, without any reservation whatever. At the date 
 of this deed, the hemlock trees in controversy were lying on the lot 
 where they had been cut, with the tops remaining thereon. 
 
 The defendant, after his deed of the land to Works, conveyed the 
 hemlocks cut by him to the plaintiff. Works, the grantee of the 
 defendant, claimed the same by virtue of his deed. The question 
 presented is whether the title to the logs is in the plaintiff or in 
 Works. 
 
 Manure made upon a farm is personal property and may be 
 seized and sold on execution. Staples v. Emery, 7 Greenl. 301. So, 
 wheat or corn growing is a chattel and may be sold on execution. 
 Whipple v. Foot, 2 Johns. 419. Yet it is held that growing crops and 
 manure, lying upon the land, pass to the vendee of the land, if not 
 excepted in the deed. 2 Kent, 346, or by statute, as in this State 
 by R. S. c. 81, sec. 6, clause 6. Fencing materials on a farm, which 
 have been used as a part of the fences, but are temporarily detached, 
 without any intent of diverting them from their use, as such, are a 
 part of the freehold, and pass by a conveyance of the farm to a pur- 
 chaser. Goodrich v. Jones, 2 Hill, 142. Hop poles, used necessarily 
 in cultivating hops, which were taken down for the purpose of 
 gathering the crop and piled in the yard, with the intention of being 
 replaced in the season of hop raising, are part of the real estate. 
 Bishop v. Bishop, 1 Kenan, 123. 
 
 Timber trees, if blown down, or severed by a stranger, pass by a 
 deed of the land. "We think that it cannot admit of a doubt," 
 remarks Richardson, C. J., in Kittredge v. Wood, 3 N. H. 503, " that 
 trees felled and left upon the land, fruit upon trees, or fallen and 
 left under the trees where it grew, and stones lying upon the earth, 
 go with the land, if there be no reservation." The hemlock trees 
 were lying upon the ground. The tops and branches were remain- 
 ing upon them. They were not excepted from the defendant's deed, 
 and, being in an unmanufactured state, they must, from analogy to 
 the instances already cited, pass with the land. Such, too, is the 
 statute of 1867, c. 88, defining the ownership of down timber. It
 
 IV. i.] FKUCTUS NATURALES: BUSHES AND SMALL FRUITS. 171 
 
 would have been otherwise, had they been cut into logs or hewed 
 into timber. Cook v. Whitney, 16 111. 481. 
 
 The defendant, at the plaintiff's request, traveled from another 
 State, as a witness, to testify for him in his suit against Works. He 
 claims to have his fees allowed in set-off in this suit. His account 
 in set-off was regularly filed. He is entitled to compensation there- 
 for, which, as claimed, will be travel from his then place of residence, 
 and attendance, in accordance with the fees established by statute. 
 
 Offset allowed. 
 
 (2.) Bushes and Small Fruits. 
 
 SPARROW v. POND. 
 
 49 Minnesota, 412. — 1892, 
 
 Sparrow, in 1886, recovered a judgment against Pond and others. 
 Pond owned land, a part of which was planted to blackberries. 
 The bushes were cultivated and cared for in the usual way. In 1891, 
 Pond was about to gather the berries, when the sheriff made a levy 
 upon them under execution on Sparrow's judgment. The crop was 
 sold to plaintiff on the execution. Pond prevented the plaintiff from 
 taking the berries, and Sparrow brings this action in replevin. 
 Verdict and judgment for defendant. Plaintiff appeals. 
 
 Mitchell, J. — At common law those products of the earth which 
 are annual, and are raised by yearly manurance and labor, and 
 essentially owe their annual existence to the cultivation by man, 
 termed "emblements," and sometimes "fntctus industriales" were, 
 even while still annexed to the soil, treated as chattels with the 
 usual incidents thereof as to seizure on attachment during the 
 owner's life, and transmission after death. 
 
 This class included grain, garden vegetables, and the like. On 
 the other hand, the fruit of trees, perennial bushes, and grasses 
 growing from perennial roots, and called, by way of contradistinc- 
 tion, "fructus /uzturales," were, while unsevered from the soil, con- 
 sidered as pertaining to the realty, and as such passed to the heir at 
 the death of the owner, and were not subject to attachment during 
 his life. 4 Kent, Coram, p. *73; 4 Bac. Abr. 372, tit. " Emble- 
 ments; " Freem. Ex'ns, sec. 113; 1 Schouler, Pers. Prop., sec. 100 
 et seq. ; State v. Gemmill, 1 Houst. 9 ; Craddock v. Riddlesbarger, 2 
 Dana, 205; 4 Amer. & Eng. Enc. Law, tit, "Crops;" Rodwell v. 
 Phillips, 9 Mees. & W. 501. 
 
 A possible exception to this classification is the case of hops on
 
 172 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 the vines, which have been held to be personal chattels, and subject 
 to sale as such. The ground upon which this seems to be held is 
 that, although the roots of hops are perennial, the vines die yearly, 
 and the crop from the new vines is wholly or mainly dependent 
 upon annual cultivation. The decisions upon that question, how- 
 ever, seem to be all based upon the old case of Latham v. Atwood, 
 Cro. Car. 515. See Frank v. Harrington, 36 Barb. 415. 
 
 It is sometimes stated that the test whether the unsevered product 
 of the soil is an emblement, and, as such, personal property, is 
 whether it is produced chiefly by the manurance and industry of the 
 owner. But, while this test is correct as far as it goes, it is incom- 
 plete. Under modern improved methods, all fruits are cultivated, 
 the quality and quantity of the yield depending more or less upon 
 the annual expenditure of labor upon the trees, bushes, or vines; 
 but it has never been held that fruit growing upon cultivated trees 
 was subject to levy as personal property. No doubt all emblements 
 are produced by the manurance and labor of the owner, and are 
 called "fructus industriales" for that reason; but the manner, as well 
 as purpose, of planting is an essential element to be taken into con- 
 sideration. If the purpose of planting is not the permanent enhance- 
 ment of the land itself, but merely to secure a single crop, which is 
 to be the sole return for the labor expended, the product would 
 naturally fall under the head of " emblements." On the other hand, 
 if the tree, bush, or vine is one which requires to be planted but 
 once, and will then bear successive crops for years, the planting 
 would be naturally calculated to permanently enhance the value of 
 the land itself, and the product of any one year could not be said to 
 essentially owe its existence to labor expended during that year; 
 and hence it would be classed among "fructus natura/es," and the 
 right of emblements would not attach. Darlington, Pers. Prop. 26. 
 
 This classification is, of course, more or less arbitrary, but it is 
 the one uniformly adopted by the courts (unless hops be an excep- 
 tion), and it is the only one which will furnish a definite and exact 
 rule. Blackberry bushes are perennial, and when planted once yield 
 successive crops. They grow wild, but, like every other kind of 
 fruit or berry, are improved by cultivation. The quantity and 
 quality of the yield is largely dependent upon the amount of annual 
 care expended upon them, but the difference in that respect between 
 them ami other fruits is only one of degree. 
 
 It seems t" us quite clear that at common law such berries, while 
 growing upon the bushes, were not subject to levy on execution as 
 personal property, and we have no statute changing the rule. Evi- 
 dently the main purpose of 1878, (1. S. ch. 66, sec. 315, was, while
 
 IV. i.] FRUCTUS NATURALES: GRASSES. 173 
 
 permitting immature growing crops to be levied on, to prohibit their 
 sale until they were ripe and fit to be harvested. 
 
 The word " crops " had, long before this statute, acquired in law 
 a meaning synonymous with or equivalent to the common-law term 
 " emblements," and neither of them included fruits or perennial 
 trees or shrubs, and it is to be presumed that the term " crops " is 
 used in the statute in this same sense. The only change effected by 
 the statute as to the kinds of products of the earth which may be 
 levied on while still attached to the soil is, perhaps, to include 
 perennial grasses. As we are of opinion that these berries, while 
 growing on the bushes, were not subject to levy as personal prop- 
 erty, it becomes unnecessary to consider any other question in the 
 case. 
 
 To prevent misapprehension hereafter, it may be well, however, 
 to say, with reference to the question whether crops growing upon 
 a homestead under the statutes of this State are subject to levy, or 
 whether their seizure would be an interference with the beneficial 
 use and control of the homestead by the debtor, that it is not 
 determined, as counsel for appellant assumes, by the case of Erick- 
 son v. Paterson, 47 Minn. 525, 50 N. W. Rep. 699. In that case the 
 grain grew upon land entered under the United States homestead 
 law, by the provisions of which the land was not liable for debts 
 contracted prior to the issuing of the patent, the exemption not being 
 at all dependent upon occupancy and use as a home. 
 
 Hence, that case would not necessarily control the question dis- 
 cussed in the present case. 
 
 Judgment affirmed. 
 
 (3.) Grasses. 
 
 IN RE CHAMBERLAIN. 
 
 140 New York, 390. — 1893. 
 
 Andrew, Ch. J. — We think the surrogate erred in charging the 
 executrix with the sum of $173.29, the amount received by her for 
 hay grown upon the farm in 1889. The testator died in June of that 
 year, and the tenant of the farm, who worked it upon shares, cut 
 the grass thereafter and paid over to the executrix that sum as her 
 share of the proceeds of the hay under the agreement with the 
 testator. The executrix was devisee for life of the farm. Growing 
 grass partakes of the nature of realty. Neither at common law nor 
 under our statute does it go as assets to the executor or administra- 
 tor, but follows the land and belongs to the heir or devisee. Evans 
 
 ■
 
 - 
 
 1/4 CONSTITUENTS AND INCIDENTS OF LAND. [PT. IK CH. II. 
 
 v. Roberts, 5 B. & C. 820; Kaine v. Fisher, 6 N. Y. 597; 2 Rev. St. 
 82, sec. 6, sub. 6. 1 On the other hand, corn and other annual crops 
 produced by care and cultivation, and not growing spontaneously, 
 are at common law, as between heir and executor or administrator, 
 treated as chattels, and under our statute are assets for the payment 
 of debts even as against the devisee. Williams on Ex'rs, vol. 1, p. 
 70; 2 Rev. St. 82, sec. 6, sub. 5; State v. Wilbur, 77 N. Y. 158. 
 
 It must be assumed, in the absence of evidence, that the executrix 
 took the proceeds of the hay in the character of iife tenant and not 
 as executrix. There was no change in the legal character of the 
 grass by any act or contract of the testator in his lifetime. His 
 share in the proceeds of the grass was in the nature of rent reserved, 
 which accrued after the testator's death. The decree should, there- 
 fore, be modified by deducting from the amount charged against the 
 executors the sum of $173.29, and any interest which may have been 
 allowed thereon. * * * 
 
 The judgment below should be modified in conformity with this 
 opinion and as modified affirmed, without costs to either party. 
 
 Judgment accordingly. 
 
 b. Effect on fructus naturales of sale, devise, or mortgage of the land. 
 
 (1.) In General. 
 
 COCKRILL v. DOWNEY. 
 4 Kansas, 426. — 1868. 
 
 By the Court, Bailey, J. — This was an action for trespass, com- 
 menced before Alonzo Cottrell, J. P., by plaintiff in error, against 
 defendant in error, to recover the value of three loads of wood, 
 hauled from the land of the plaintiff in error, by the defendant in 
 error, claiming triple damages under the provisions of ch. 208 of the 
 Comp. L. The action was commenced on the 28th day of Decem- 
 ber, 1866, and after several continuances, was tried by a jury, who 
 found a verdict for the plaintiff. The defendant appealed, and the 
 cause was again tried at the April term of the District Court of 
 Marshall county, 1867, and judgment rendered for the defendant. 
 
 The plaintiff in error, who was also the plaintiff below, now brings 
 the case to this court to procure a reversal of the last mentioned 
 judgment. 
 
 It appears from the bill of exceptions that the defendant, Downey, 
 and one Abraham Gossuck, were the former owners of the land on 
 
 'See ;' 2712, X. Y. Code Civ. Procedure. — Ed.
 
 IV. i.] FRUCTUS NATURALES: IN GENERAL. 1 75 
 
 which the alleged trespass was committed, and that Gossuck and 
 wife conveyed all their interest in the land to Caloni Walworth, by 
 deed dated February 10th, 1865, and that subsequently, on the 28th 
 of August, 1865, defendant, Downey, conveyed all his interest in 
 said land to Walworth, without any reservation whatever, and that 
 said Walworth conveyed the land to plaintiff by deed of warranty, 
 without reservation. 
 
 Ou the trial, the defendant filed no answer to plaintiff's petition 
 on appeal, but offered himself as a witness to prove, with others, 
 that there was a parol reservation of the dead and down timber in 
 the deed from Downey to Walworth, and also in the deed from Wal- 
 worth to plaintiff, Cockrill. Objection was made to this evidence, 
 but the objection was overruled by the court, and the evidence 
 admitted. We think the court erred in admitting the evidence. The 
 policy of our laws, as evinced by the whole tenor of the legislation 
 as to registration of deeds and the like, is to make titles to real 
 estate depend upon the written deeds of the parties, leaving the 
 smallest possible margin for parol contracts, understandings and 
 reservations. 
 
 A deed of land must be, we think, deemed to involve all timber 
 standing or growing on it, unless specially excepted. As to trees 
 standing and growing in the soil, we apprehend that no question 
 would be made; but a tree maybe standing and not growing, or 
 growing in a horizontal position, not standing. 
 
 Must the law apply a different rule in each case? Suppose the case 
 of trees prostrated by a tornado, but with roots still adhering to the 
 soil; shall they pass by the deed, or be reserved by parol? Obvi- 
 ously, such trees must be considered as part of the realty, and we 
 think that there can be no safer general rule, than that founded on 
 the old maxim, "Cujus est solum ejus est usque ad ccelum" which may, 
 perhaps, be liberally translated, " The owner of the soil owns from 
 the center of the earth up to the sky." Various qualifications and 
 limitations have been established as to fixtures, emblements, and the 
 like; but we find no judicial warrant or authority for the claims of 
 the defendant in this case. 
 
 The judgment must be reversed, and the case remanded for a new 
 trial.
 
 176 CONSTITUENTS AND INCIDENTS OF LAND. . [PT. II. CH. II. 
 ■ 
 BRADY v. WALDRON. 
 
 2 Johnson's Chancery (N. Y.), 148. — 1816. 
 
 Bill filed by the plaintiff, a mortgagee, for an injunction to stay 
 waste in cutting timber on the mortgaged premises, whereby the land 
 would become an insufficient security for the debt. There was no 
 suit pending for a foreclosure. 
 
 The Chancellor — An injunction lies against a mortgagor in 
 possession to stay waste. The court will not suffer him to prejudice 
 the security. Dick. 75; 3 Atk. 210, 237, 3 Ves. 105. 
 
 Injunction granted. 
 
 (2.) How Exceptions or Reservations Must be Made. Their Effect. 
 
 COCKRILL v. DOWNEY. 
 
 4 Kansas, 426. — 1868. 
 
 [Reported herein at p. 174.] 
 
 CLAP v. DRAPER. 
 
 4 Massachusetts, 266. — 1808. 
 
 Parsons, C. J. [After stating the action and reciting the substance 
 of the special verdict.] — The two deeds in this case, executed on 
 the same day, the latter referring to the former, and relating to the 
 same transaction, must be considered as intended to effect the same 
 contract, and must be construed together. The result of this joint 
 construction is, that the grantor conveyed the close to the grantee 
 in fee, reserving to himself an inheritance in the trees and timber, 
 not only then growing, but which might thereafter be growing in 
 the close. This is the natural effect of the grantee's agreement that 
 the grantor and his heirs should have all the trees and timber stand- 
 ing and growing on the close forever, and not merely those then 
 standing, or which should be standing within a limited time; and of a 
 perpetual license to cut and carry them away. The plaintiff having 
 all the estate- in the trees, timber and close, which the grantor had after 
 
 execution of these two deeds, he has an inheritance in the trees 
 and timber, with an exclusive interest in the soil so far only as it 
 may be necessary for the support and nourishment of the trees. 
 
 >. 271; Cro. Jac. 487; 2 Roll. Abr. 455, 20; 11 Co. 46.
 
 IV. I.] FRUCTUS NATURALES: EXCEPTIONS IN SALE. 177 
 
 For cutting down and carrying away the trees, trespass undoubtedly 
 lies. 2 Leon. 213; Hitchcock v. Harvey. 
 
 But the defendant insisted that the plaintiff could not maintain 
 trespass for breaking the close. Upon looking into the cases, we 
 are satisfied that the plaintiff, having an inheritance in the trees, 
 and an exclusive right in the soil of the close, as far as was necessary 
 for their support and nourishment, may maintain trespass for break- 
 ing the close, as well as for cutting. It appears to be a principle of 
 law well settled, that where a man has a separate interest in the soil 
 for a particular use, although the right of the soil is not in him, if 
 he be injured in the enjoyment of his particular use of the soil, he 
 may maintain trespass quare clausum f regit ; but not if his interest 
 is in common with others. Thus, this action lies for him who has 
 the herbage, although not a right to the soil. Moor. 355; Hoe v. 
 Taylor, — Co. Litt. 4b; Dalison 47, — ; Moor. 302, — ; Cro. Eliz. 
 421. But if he is entitled to a portion of the herbage for a particu- 
 lar part of the year, he cannot maintain this action, but may main- 
 tain an action of trespass for spoiling his grass. 2 Leon. 213. Vide 
 also Yelv. 187, Dewclas et al. v. Kendall et al. 
 
 The latest case on this subject is the case of Wilson v. Mackreth, 
 3 Burr. 1824. The plaintiff had an exclusive right to take the turf 
 in a several parcel of ground, in which, and in other parcels adjoin- 
 ing, he and the other tenants of the manor had common of pasture, 
 the right of the soil being in the lord of the manor. The defendant 
 dug and carried away peats in the place in question, and it was held 
 that the plaintiff might maintain trespass quare clausum /regit against 
 him. And the difference there taken is between exclusive rights and 
 rights in common; that if the plaintiff had only a common of turbary, 
 trespass would not lie. 
 
 Upon the authority of this case, as well as the reasonableness of 
 the principle, in the plaintiff, in consequence of his inheritance in 
 the trees had such an interest in, although not the right of soil, that 
 he may maintain trespass quare clausum /regit in this case, and must 
 have judgment on the special verdict. 
 
 SALTONSTALL v. LITTLE. 
 90 Pennsylvania State, 422. — 1879. 
 
 Ejectment by Little, as executor of Kingsbury, against defendants 
 as trustees, succeeding to the interest of Veazie. 
 
 Kingsbury, in 1859, sold to one Hyde certain standing timber to 
 be taken off within twelve years. A few days later he deeded the 
 
 LAW OF PROP. IN LAND — 12
 
 178 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CM. II. 
 
 land to Veazie, reserving said timber with the right to take it off 
 within twelve years from date of deed. 
 
 It was agreed at the hearing below that if the court should be of 
 opinion that the property in said pine timber, remained in Kings- 
 bury, his heirs, etc., after the expiration of the term of twelve years, 
 limited in the deed, then there should be judgment for the plaintiff, 
 but if the court be of opinion, that after the expiration of said term 
 the property passed to Veazie and his assigns, then judgment 
 should be entered for defendants. 
 
 Judgment for plaintiffs. Defendants bring writ of error. 
 
 Paxton, J. — Whether we regard the clause in controversy, in 
 the deed from Kingsbury to Veazie, as a reservation or an excep- 
 tion, the result is the same, for in either event Kingsbury or his 
 grantee of the timber was restricted to twelve years, in which to cut 
 and remove it. The reservation of the timber was not an absolute 
 severance of it from the freehold. It was a severance only upon the 
 condition of its removal within twelve years. It is true no such 
 express condition appears, and the words, proviso, ita quod and sub 
 conditionc, so much relied upon by Lord Coke, are not to be found 
 in the reservation. But conditions may be implied as well as 
 expressed. There is abundance in the reservation from which such 
 a condition may be implied. " If a man grant all his trees to be 
 taken within five years, the grantee cannot take any after the expira- 
 tion of five years, for this is in the nature of a condition annexed to 
 the grant." Bacon's Abridgment, tit. Grant. In Bouttsv. Mitchell, 
 3 Harris, 371, there was a sale of the land, " excepting and reserv- 
 ing therefrom, all the timber that is suitable for rafting and sawing 
 of every description." In that case no time was limited within 
 which the timber must be removed, yet it was held that " the grant 
 was in its very nature determinable; the right to cut timber was not 
 to continue forever at the pleasure of the grantee and his assigns; 
 and if from the destruction of the trees, the subject of it, or the 
 refusal of the party to exercise his right after a reasonable notice to 
 do so, the right itself is determined; the privilege of entry is gone 
 with it, and the owner of the land may sue for breach of close, 
 though he may not recover in damages the value of trees taken, the 
 property of which is not in him." In the case in hand, the parties 
 have fixed the time during which the trees may be removed. Had 
 no lime been limited, the law would have allowed a reasonable time 
 in order that the grantor might not be defeated of his reservation. 
 Bi t he would have been compelled to remove them upon reasonable 
 notii e, Otherwise the reservation would have been a perpetual servi- 
 tude, which was nol contemplated by the parties, and is repugnant
 
 IV. i.] FRUCTUS NATURALES: SEPARATE SALE. 1 79 
 
 to the grant. Having fixed their own time for the removal of the 
 timber, it is too clear for argument, that the right of entry falls with 
 its expiration. It was contended, however, that even if the right of 
 entry is gone, the right of property in the trees remains, and the 
 case stated was evidently framed to meet this possibility. It would 
 certainly be a barren right to own trees upon another's land, with 
 no right of entry to take them away. The plaintiffs have no such 
 property in the timber. The limitation upon the right of entry was 
 a limitation upon the exception itself. It was a reservation of the 
 timber for twelve years and no longer. After that time, the trees 
 remaining passed with the grant of the soil to which they were 
 attached. This is the construction placed upon such agreements in 
 the lumber regions where they are frequent, and it accords with 
 reason and common sense. We made a somewhat similar ruling 
 in Leconte v. Rover, decided in 1877. 
 
 It also appears by the case stated, that Kingsbury sold the timber 
 in question, to one Joseph S. Hyde, twenty-six days before his deed 
 to Veazie, with the right to take it off for twelve years from the date 
 of the sale. Whatever the rights of the defendants may be, the 
 plaintiffs, by their own showing have none. 
 
 The judgment is reversed, and judgment on the case stated for 
 the defendant. 
 
 C. Separate sale or mortgage of fructus naturales — how made. 
 
 (1.) The General Rule. 
 
 HIRTH v. GRAHAM. 1 
 
 50 Ohio State, 57. — 1893. 
 
 {Reported herein at p. 34.] 
 
 KILLMORE v. HOWLETT. 
 
 48 New York, 569. — 1872. 
 
 Action for damages for breach of a parol contract by which 
 defendant agreed to cut the trees then standing and growing on his 
 lot into cord-wood and deliver the same to plaintiff at his wood yard. 
 
 Judgment for plaintiff. Defendant appeals. 
 
 Gray, C. — If the standing trees upon the lot, which by the con- 
 tract were to have been cut by the defendant and made into cord- 
 
 1 See also Green v. Armstrong, 1 Den., 550, reported supra, p. 38. 

 
 ISO CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 wood, and delivered by him to the plaintiff at Syracuse,. had, instead 
 of the wood to be made therefrom, been sold in their standing con- 
 dition, " rooted in the soil," the right of the plaintiff to enter and 
 fell them, and make them into wood, would have been a sale of an 
 interest in the land, and without being evidenced by writing would 
 have been void. Green v. Armstrong, i Denio, 550, 553, et seq. This 
 was not a sale of the trees in their standing condition, but rather a 
 contract by the defendant to bestow work and labor upon his own 
 material, and deliver it in its improved condition to the plaintiff. In 
 a similar case, Littledale, J., in Smith v. Sumam, 9 B. & C. 561, 566, 
 held it not to be the intention to give the vendee any property in 
 the trees until they were severed from the freehold. Apply the rule 
 contended for by the defendant, and a writing would be indispensa- 
 ble to the validity of a contract by the owner of a peat bed or a sand- 
 bank to deliver a load from it. Such contracts are never regarded 
 as carrying an interest in the real estate from which the thing sold 
 was to be taken by the owner. The judgment should be affirmed. 
 
 Judgment affirmed. 
 
 (2.) The Kentucky Doctrine. 
 
 BYASSEE v. REESE. 
 4 Met. (Ky.), 372. — 1863. 
 
 Bullitt, J. — Byassee filed a petition alleging that he had pur- 
 chased from one Head, agent of one Walters, 100 trees standing upon 
 land belonging to said Walters; that he was to have choice of the 
 trees standing upon said land, and selected and marked 100 trees 
 which said Head agreed he should have; and that Reese, with 
 knowledge of plaintiff's right thereto, was cutting them down, and 
 converting them to his own use; and praying that he might be 
 enjoined from doing so, and for damages for those that had been 
 converted. 
 
 Reese did not controvert any of those allegations in the manner 
 required by the Code of Practice, (section 125,) except the allega- 
 tion, that he had cut any of the trees marked by the plaintiff; but it 
 was proved that he had cut some of them, and in his answer he 
 claimed the right to cut them all; averring that the land had been 
 decreed \>> Mrs. Walters by the Louisville chancery court, in a 
 divorce suit, that she had sold it to Moss, and that Moss had sold it 
 to defendant. But these averments were not sustained by any 
 c v i 1 1 e 
 
 B issee appeals from a judgment dismissing his petition.
 
 IV. i.] FRUCTUS NATURALES: SEPARATE SALE. l8l 
 
 We find in the record a copy of a paper purporting to have been 
 signed by Head, which contains written evidence of said sale of 
 trees, but we cannot consider the paper, because it is not referred to 
 in the petition. As the petition does not aver that the contract was 
 in writing, nor refer to any writing, we must assume that it was a 
 verbal contract. 15 B. Mon. 443; 3 Met. 474. 
 
 The first question is, whether or not a sale of standing trees is 
 embraced by that provision of the statute of frauds which relates to 
 contracts for the sale of land. This question has produced some 
 conflict of opinion. But, according to the weight of authority, a 
 sale of standing trees, in contemplation of their immediate separa- 
 tion from the soil, by either the vendor or the vendee, is a construc- 
 tive severance of them, and they pass as chattels, and, consequently, 
 the contract of sale is not embraced by the statute. Green, Ev., sec. 
 271. And such is the ruling of this court. Cain v. McGuire, 13 B. 
 Mon. 340. 
 
 The phrase, " in contemplation of immediate separation from the 
 soil," is used to distinguish a sale of standing trees, or growing 
 crops, which passes no interest in the land, except a license to enter 
 upon it for the purpose of removing them, from a contract conferring 
 an exclusive right to the land for a time for the purpose of making 
 a profit out of the growth upon it. (See authorities above cited.) 
 
 The case under consideration clearly belongs to the former class, 
 though it does not appear that any definite time was fixed for the 
 removal of the trees. 
 
 As the trees were sold as chattels, the selection and marking of 
 them by the purchaser, with the knowledge and consent of the vendor, 
 was a constructive delivery, and the title vested in the purchaser. 
 
 But, though Byassee may be entitled to the trees, as against 
 Walters, yet, if Reese, or his vendor, acquired title to the land by a 
 bona fide purchase, for a valuable consideration paid, before he had 
 notice of Byassee's right to the trees, Reese is entitled to them, and 
 Byassee must look to Walters for damages. In such a state of case, 
 the fact that Reese had notice of Byassee's claim, before cutting the 
 trees, would be immaterial. But, if Reese. had no title to the land, 
 he was not entitled to notice. 
 
 Upon the return of the cause each party should have leave to 
 amend his pleadings. 
 
 The judgment is reversed, and the cause remanded for further 
 proceedings not inconsistent with this opinion. 1 
 
 1 See also Erskine v. Plummer, 7 Me. 447 (1831). For a clear statement of the 
 rules which it would seem should control the decision of the cases now under 
 consideration see §•§ 118 and 120, Benjamin on Sales, ed. of 1S92. — Ed.
 
 182 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 (3.) The Massachusetts Doctrine. 1 
 DRAKE v. WELLS. 
 
 11 Allen (Mass.), 141. — 1S65. 
 
 Tort in the nature of trespass quare clausum. 
 
 The standing wood and timber on the close described was sold at 
 auction to the defendant who was to have a certain stated time 
 within which to remove the same from the land. Later on, at the 
 same auction, the land itself was put up for sale and sold to plaintiff. 
 There were no reservations in the deed of the land. The acts of 
 trespass complained of consisted in cutting off the trees within the 
 time limited therefor. 
 
 Bigelow, C. J. — The doctrine is now well settled that a sale of 
 timber or other product of the soil, which is to be severed from the 
 freehold by the vendee under a special license to enter on the land 
 for that purpose is, in contemplation of the parties, a sale of chattels 
 only, and cannot be regarded as passing an interest in the land, and 
 is not for that reason required to be in writing as being within the 
 statute of frauds. Such license to enter on the land of another, so 
 far as it is executed, is irrevocable; because, by the severance of the 
 timber or other growth of the soil from the freehold, in execution of 
 the license, it becomes personal property, the title to which is vested 
 in the vendee absolutely, and the rule applies that where chattels 
 belonging to one person are placed or left on the land of another, 
 with the permission or assent of the latter, the owner of the chattels 
 has an implied irrevocable license to enter and remove them. In 
 such case the owner of land cannot, by withdrawing his assent to 
 enter on his premises, deprive the owner of chattels of his property, 
 or prevent him from regaining possession of them. The law will 
 not lend its aid to the perpetration of a fraud. But it is otherwise 
 where the contract has not been executed by a severance of the sub- 
 ject-matter of a contract of sale from the freehold. So long as the 
 timber or other product of the soil continues in its natural condition, 
 and no act is done by the vendee towards its separation from the 
 soil, no property or title passes to the vendee. The whole rests in 
 contract. A revocation of the license to enter on the land does not 
 defeat any valid title; it does not deprive an owner of chattels of his 
 property in or possession of them. The contract being still execu- 
 tory, no title has passed to the vendee, and the refusal of the vendor 
 to permit the vendee to enter on the land for the purpose of discon- 
 
 'See also Purner v. Piercy, 40 Md. 212, reported supra, p. 160. — En.
 
 IV. i.] FRUCTUS NATURALES: SEPARATE SALE. 183 
 
 necting from the freehold the property agreed to be sold is only a 
 breach of contract, the remedy for which is an action for damages, 
 as in the common case of a failure or refusal to deliver ordinary 
 chattels in pursuance of a contract of sale. 
 
 These principles have been recognized and established as the law 
 of this commonwealth in several adjudicated cases. In Clafiin v. 
 Carpenter, 4 Met. 580, 582, it was held that a contract for the sale 
 of standing wood to be cut and severed from the freehold was to be 
 construed " as passing an interest in the trees when they are 
 severed," and that a license to enter on the land under such con- 
 tract could not be countermanded after it had been acted on. So 
 in Nettleton v. Sikes, 8 Met. 34, it was said by the court that a bene- 
 ficial license to be exercised on land, when acted upon under valid 
 contract cannot be countermanded." To the same effect are Nelson 
 v. Nelson, 6 Gray, 385, and Douglas v. Shunnvay, 13 Gray, 498. In 
 these cases it appeared that the license had been acted on by the 
 vendee, who had entered on the land and cut the timber which was 
 the subject of the contract of sale, and had thereby acquired a title 
 to the wood as personal property. In Giles v. Simonds, 15 Gray, 
 441, a case was presented where a vendee had entered on land under 
 a contract of sale of standing wood, and had cut down a part of 
 those which were agreed to be sold, when he was forbidden by the 
 vendor, the owner of the land, from proceeding any further in the 
 execution of the contract, and also from removing those which had 
 been severed from the freehold. He nevertheless did go on the 
 land and take away such of the trees as had been previously cut down. 
 It was held that the vendor had a right to terminate the contract 
 and revoke the license as to the trees left standing, but that he could 
 not do so as to those which had been already cut, and that an action 
 of trespass would not lie for entering and taking away the latter. 
 See also Burton v. Scherpf, 1 Allen, 135. 
 
 The application of the principles established by these cases is 
 decisive of the rights of the parties to these actions. Taking the 
 most favorable view of these cases in behalf of the defendants, they 
 had acquired no title to the wood standing on the land of the 
 plaintiff. They had only an executory contract for the purchase of 
 the trees growing on the premises, with a license from the plaintiff's 
 grantor to enter and cut and remove the same. This license, 
 not having been acted on, was revocable. And it was revoked by 
 the deed of the land to the plaintiff by the licensor, by which it was 
 conveyed absolutely and free of all encumbrances to the plaintiff. 
 In Cook v. Stearns, 11 Mass. 533, 538, it was held that the transfer 
 of land to another, or even a lease of it, without any reservation,
 
 I84 CONSTITUENTS AND INCIDENTS OF LAND. [l'T. II. CH. II. 
 
 would, of itself, be a countermand of a license. Clearly it must be 
 so, because an unqualified grant of land carries with it the title to 
 everything which is part of the realty or annexed to the freehold, 
 and is inconsistent with a right in any other person than the grantee 
 to enter on the land and remove therefrom trees growing thereon or 
 other products of the soil. Coleman v. Foster, i Hurlst. & Norm. 37. 
 It follows that the ruling of the court was erroneous at the trial of 
 this cause. The defendants were trespassers, and were liable to the 
 plaintiff for entering her close and cutting and removing wood 
 therefrom. 
 
 Exceptions sustained. 
 
 WHITE v. FOSTER. 
 
 102 Massachusetts, 375. — li 
 
 Colt, J. — By the deed of May 17, 1865, the demandant's grantor 
 conveyed to the tenants all the standing timber on the demanded 
 premises, with a proviso that it should be removed within three 
 years. He afterwards mortgaged the land by a deed containing a 
 reservation of all the trees growing on the same, describing them as 
 having been sold to the tenants, and then conveyed it, July 1, 1867, 
 to the demandant, with full covenants of warranty, excepting only 
 the said mortgage. We are to take it as proved, in accordance with 
 the tenant's offer of evidence, that the demandant (White), when he 
 took his deed, had actual notice of the previous sale of the trees to 
 them. This writ of entry is brought before the expiration of the 
 term limited for the removal of the timber, and describes the 
 premises in the usual way, by metes and bound. The tenants dis- 
 claim any title except that which they have under the deed of May 17. 
 
 Upon the case thus presented, we are of opinion that the title of 
 the tenants to this timber may be maintained according to the honest 
 intention of the original parties, as against the present demandant, 
 without infringing any rule of law necessary for the security of title 
 to real property. It is to be distinguished from most of the cases 
 I, in the important fact that the tenants claim under a deed, con- 
 taining apt words for the conveyance of an interest in real estate, 
 which was duly executed and delivered. When cases have arisen 
 under parol or simple contracts for the sale of growing timber, to be 
 cut and severed from the freehold by the vendee, such agreements, 
 with reference to the statute of frauds, and in order to give effect 
 em, have hem construed as not intended by the parties to con- 
 vey any interest in land, and therefore not within the statute. Such
 
 IV. i.] FRUCTUS NATURALES: SEPARATE SALE. 185 
 
 contracts are held to be at least executory contracts for the sale of 
 chattels, as they shall be thereafterwards severed from the real estate, 
 with a license to enter on the land for the purpose of removal. 
 Claflin v. Carpenter, 4 Met. 583; Giles v. Simonds, 15 Gray, 441; 
 Drake v. Wells, 11 Allen, 141; Delaney v. Root, 99 Mass. 546; Spurr 
 v. Andrew, 6 Allen, 420; Browne on St. of Frauds, sees. 249, 251. 
 
 Growing timber constitutes a part of the realty, is parcel of the 
 inheritance, and, like any other part of the estate, may be separated 
 from the rest by express reservation or grant, so as to form itself a 
 distinct inheritance. It was early so held by this court in Clap v. 
 Draper, 4 Mass. 265, and trespass by the grantee of such an estate 
 against the owner of the soil was maintained, for cutting down the 
 trees. See also Putnam v. Titttle, 10 Gray, 48. When so separated 
 and made a distinct estate, it has the incidents of real property so 
 long as it remains uncut, and the rules which govern the title and 
 transfer of such property must apply. It is like property in mines 
 and minerals, which may in like manner be separated from the gen- 
 eral ownership of the soil, and become distinct estates in freehold, 
 with all the incidents belonging to such estates. Adam v. Briggs 
 Iron Co., 7 Cush. 367. 
 
 It may be difficult in many cases to determine, from the terms of 
 the contract, whether the parties intend to grant a present estate in 
 the trees while growing, or only a right, either definite or unlimited 
 as to time, to enter and cut, with a title to the property when it 
 becomes a chattel. If the former be the true construction, then it 
 comes within the statutes, and must be in writing; if the latter, 
 then, though wholly oral, it may be enforced. 
 
 For the purpose of arriving at the intention of the parties, the 
 mode in which the contract is made, whether oral or written, and, if 
 the latter, whether under seal or not, must be regarded, and may be 
 decisive. A simple oral contract for the sale of trees, to be removed 
 in a definite time, would be construed as not intended to convey an 
 interest in the land, because the parties must have known that such 
 could not be its effects; while the same words, if incorporated into 
 the granting part of a deed, with the usual clauses and formalities 
 appropriate to a conveyance of real estate, and especially if full 
 covenants of warranty be added, will be held to convey an interest 
 111 the realty, and carry a present title in the property to the grantee. 
 So a permission which, if oral, would only amount to a license to do 
 an act or series of acts on another's land without possession of any 
 estate therein, would, if put in the form of an agreement under seal, 
 convey a permanent incorporeal right or easement; and that, simply 
 because the latter is the appropriate mode of creating such an
 
 186 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 estate. It is not true, therefore, as claimed by the demandant, that, 
 if the contract is in writing and under seal, no other or greater 
 interest passes than would pass by the use of the same language in 
 an oral sale. The subject-matter of the contract is the same in both, 
 but the contracts themselves may receive a different interpretation. 
 
 The deed under which the tenants claim, thus interpreted, with- 
 out doubt conveys an interest in real estate. A present interest in 
 the trees was granted; and, by the rule that the grant of a thing 
 carries with it, as incident, all that is necessary to its beneficial 
 enjoyment, there passed by the same deed a right to the soil upon 
 which they grew. This last named right, for the reasons above sug- 
 gested, was not a mere license to enter upon the land and remove 
 the trees within a limited time, revocable, except so far as already 
 acted upon; but rather a peculiar incorporeal right or easement in 
 the grantor's land, so far as necessary for the support and growth 
 of the trees, with rights of entry and of way during the time named, 
 and not revocable by the grantor. 
 
 The estate which the tenants acquired in this case may be regarded 
 either as giving full title to the trees, defeasible by failure to cut 
 and remove the same within three years, with such interest in the 
 demandant's other land, by way of easement or incorporeal right, as 
 is necessary to the enjoyment of the estate granted; or as giving to 
 the tenants a leasehold estate in the premises for three years, with 
 a right of appropriation to be exercised during the term. In either 
 aspect, they establish a good defense under their plea and specifica- 
 tion, notwithstanding the deed was not regularly recorded. If the 
 estate created was of the latter description, then, as it was for only 
 three years, there was no necessity that the deed should be recorded. 
 If it was the former, then proof of actual notice to the demandant 
 of the previous sale of the trees, with the reference in his deed to the 
 mortgage to Beals, in which the trees are reserved as having been 
 sold to the tenants, will give them a valid and effectual title, as 
 against the subsequent deed to the demandant. Gen. Sts. c. 89, 
 sec. 3. It is not necessary, to such actual notice, that there should 
 have been an actual exhibition of the deed. It has been held that a 
 description in a deed, bounding on land of a party by name, was 
 notice to the grantee in the deed that the land bounded upon was so 
 owned by virtue of some proper instrument of conveyance. George 
 v. Kent) 7 Allen, 16; Pike v. Good now, 12 Allen, 472. 
 
 Verdict set aside ; new trial ordered.
 
 IV. 2.] FRUCTUS INDUSTRIALES. 187 
 
 d. Separate levy of execution on frucius naturales. 
 
 ADAMS v. SMITH. 
 
 1 Breese (III.), 221. — 1828. 
 
 Opinion of the Court by Justice Lockwood. — This was an action cf 
 trespass quare clausum f regit. The defendants plead not guilty, and 
 Adams justified under an execution from a justice of the peace 
 against the plaintiff, by virtue of which, he seized and took the 
 apple trees, etc., in the plaintiff's declaration mentioned. 
 
 To this plea, plaintiff below (Smith), demurred, and the court sus- 
 tained the demurrer, and on trial of the issue of not guilty, the jury 
 found. a verdict for plaintiff below for $130, and judgment was given 
 thereon. To reverse which, a writ of error has been brought to this 
 court. The first error assigned is, that the Circuit Court erred in 
 sustaining the demurrer. The only question presented by the 
 demurrer is, whether on an execution from a justice of the peace, a 
 constable can enter on land, and sell fruit trees there standing and 
 growing? This question is easy of solution. Fruit trees are part 
 and parcel of the freehold, and can, in no sense, be considered as 
 goods and chattels. How far trees growing in a nursery might be 
 considered goods and chattels, is not involved in the question 
 decided by the demurrer, for the plea does not allege them to be 
 nursery trees intended for sale. . The demurrer was, therefore, cor- 
 rectly decided. 
 
 Another error assigned is, that the court erred in overruling the 
 motion for a new trial. It has been frequently decided by this 
 court, that overruling a motion for a new trial cannot be assigned 
 for error. The judgment below must be affirmed with costs. 
 
 Judgment affirmed. 
 
 2. Fructus Industriales. 
 a. What they are. 1 
 
 SPARROW v. POND. 
 
 49 Minnesota, 412. — 1892. 
 [Reported herein at p. 171.] 
 
 1 See also Graves v. Weld, 5 B. & Ad. 105, reported infra, p. 403. — Ed.
 
 188 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 SMITH v. PRICE. 
 
 39 ILLINOIS, 28. — 1865. 
 [Reported herein at p. 163.] 
 
 b. Effect on fructus industriales of sale of land. 
 
 (1.) In General. 
 
 TRIPP v. HASCEIG. 
 
 20 Michigan, 254. — 1870. 
 
 Graves, J. — The plaintiff in error sued Hasceig for the alleged 
 conversion of a quantity of standing corn, which Tripp claimed as 
 his property, and upon the trial a verdict passed for Hasceig. Tripp 
 now brings error and insists that the circuit judge erred in charging 
 the jury, and he asks that the judgment be reversed therefor. 
 
 The evidence conduced to show that Tripp, being the owner of a 
 farm in Kalamazoo county, on which he resided and on which he 
 had raised a field of corn in the season of 1865, conveyed the farm to 
 defendant about the 13th of December, in the same year, by warranty 
 deed, while the corn was still standing, unsevered, where it grew, 
 and without inserting in the deed any exception or reservation; and 
 that Hasceig took and appropriated a part of the crop as properly 
 conveyed to him by the deed. It was claimed by Tripp on the trial 
 that the crop, being over ripe when the deed was given, did not pass 
 by the conveyance, but the circuit judge advised the jury that the 
 corn, though ripe and no longer deriving nourishment from the 
 ground, would, if still attached to the soil, pass by conveyance of 
 the land; and this is one of the rulings complained of. 
 
 We think this instruction was right, and we concur in the sugges- 
 tion of the circuit judge, that whether the corn would pass or not, 
 could no more depend upon its maturity or immaturity, than the 
 passage of a standing forest tree by the conveyance of the land, 
 would depend upon whether the tree was living or dead. 
 
 It is true that the authorities in alluding to this subject very gen- 
 erally use the words growing crops, as those embraced by a convey- 
 ani e of the land, but this expression appears to have been commonly 
 employed to distinguish crops still attached to the ground, rather 
 than to mark any distinction between ripe and unripe crops. 
 
 In some eases, where the question has been raised under the statute 
 of frauds, as to the validity of verbal sales of unsevered crops, a
 
 IV. 2.] FRUCTUS INDUSTRIALES. 189 
 
 distinction has been drawn between such as were fit for harvest, and 
 such as were not, upon the supposition that the former would not be 
 within the statute, while the latter would be embraced by it. See 
 cases referred to in Austin v. Sawyer, 9 Cow. R. 39. ' In Austin v. 
 Sawyer, however, Chief Justice Savage seems to have rejected the 
 distinction, as he held that a verbal sale of growing crops was valid 
 in New York. 
 
 But one case has been cited, or is remembered, in which it has 
 been intimated that a mature and unsevered crop would, because 
 of its being ripe, remain in the grantor of the land, on an absolute 
 conveyance of the premises without exception or reservation; and 
 that is the case of Powell v. Rich, 41 111. 466, and the point was not 
 essential to the decision there. 
 
 There are many authorities, however, opposed to the distinction 
 suggested in that case. 2 Bl. Com. 122, note 3; Broom's Maxims, 
 354, margin. 
 
 In Kittredge v. Woods, 3 N. H. 503 Judge Richardson cites Went- 
 worth, 59, for the proposition that " When the land is sold and con- 
 veyed without any reservation, whatever crop is upon the land 
 passes," and after stating that ripe grain in the field is subject to 
 execution as a chattel, Judge Richardson adds: " Yet no doubt 
 seems ever to have been entertained that it passes with the land 
 when sold without any reservation." And in the case of Heavilon v. 
 Heavilon, 29 Ind. 509, cited by plaintiff's counsel on another ground, 
 the court expressly admit that until severance, the crop, as between 
 vendor and purchaser of the land, is part of the realty. Indeed, the 
 authorities are quite decisive that, whether the crop of the seller of 
 the farm goes with the land to the purchaser of the latter, when 
 there is no reservation or exception, depends upon whether the crop 
 is at the time attached to the soil, and not upon its condition as to 
 maturity. And this seems to be the most natural and most practical 
 rule. When parties are bargaining about land, the slightest observa- 
 tion will discover whether the crops are severed or not, and there 
 will be no room for question or mistake as to whether they belong 
 with the land or not, if owned by the vendor. 
 
 If, however, the crops are to be considered as land or personal 
 chattels, as they continue or do not continue to draw nourishment 
 from the soil, the instances will be numerous in which very difficult 
 inquiries will be requisite to settle the point. 
 
 It was further urged by plaintiff in error that, if it should be con- 
 sidered that the corn would pass by the deed, still the jury should 
 
 1 Reported supra, p. 31. — Ed.
 
 190 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 have been allowed to inquire whether the parties did not enter into 
 a contemporaneous verbal agreement, by which the grain was to 
 belong to Tripp as part of the consideration for the farm. Without 
 pausing to consider whether the plaintiff could be permitted to make 
 the proof suggested, or could support his action by any arrangement 
 like that supposed, it is quite sufficient to observe that there does 
 not appear to have been any evidence fairly tending to show the 
 existence of such an agreement. The plaintiff was himself on the 
 stand, and yet he did not hint at the existence of a bargain of that 
 kind. 
 
 It was finally insisted that the charge of the court was erroneous 
 in stating that a subsequent agreement by the vendee, that the 
 vendor should have the corn, would be void for want of considera- 
 tion; and we are told that the error on this point is shown by the 
 circumstance that there was enough to warrant the jury in finding 
 that defendant was under an equitable obligation, to have the deed 
 so reformed as to except the corn, and that this fact constituted a 
 sufficient consideration for an agreement by Hasceig, that the crop 
 should belong to Tripp. 
 
 This argument assumes, that if the nonreservation of the corn in 
 the deed was by mistake satisfactorily ascertained or admitted, that 
 then an equity would arise for the correction of the deed, which in 
 turn would be an adequate consideration to support a subsequent 
 agreement by Hasceig, that the grain should belong to Tripp. We 
 need not examine the validity of this view, since it is quite manifest 
 that the case contemplated by it, is not found in the record 
 before us. 
 
 The position taken implies that there was evidence before the jury 
 to establish, according to the requirements of a court of equity, a 
 mistake in the deed in not reserving the corn, and that there was 
 also evidence conducing to prove a subsequent agreement that Tripp 
 should have the corn, and resting for consideration on the right to 
 have the deed corrected in equity. 
 
 There was a little evidence favoring the idea of a subsequent parol 
 recognition by Hasceig of the right of Tripp to the corn under the 
 i onveyance of the land, but we look in vain for evidence of the 
 assumed mistake in the deed. 
 
 It is well settled that to raise an equity to correct a deed, there 
 
 • n'>{ only be an error on both sides, but the mistake must be 
 
 eradmitted or directly proved. Adams' Eq. 171, margin; Fry on 
 
 if, Per, (2d Am. ed. ), p. .; 1 2, top, and note 11. The language of 
 
 ral of the ' ited by plaintiff's counsel is to the same effect. 
 
 I i Kennardv. Geoi \\\ \\ 140, the court say that the mistake
 
 IV. 2.] FRUCTUS INDUSTRIALES. I9I 
 
 must be clearly proved. In Cancdy v. Marcy, 13 Gray, 373, it is said 
 the court has jurisdiction to reform a deed upon clear oral evidence 
 of the mistake, and in Beardsley v. Knight, 10 Vt. 185, the expression 
 is still stronger. It is there declared that the court will correct a 
 misatake in a conveyance " when undeniably proved," and that 
 " unless it be so proved it will not interfere." It is very certain 
 that the record before us fails to show that a mistake in the deed was 
 established on the trial below, or that any evidence was there intro- 
 duced, fairly tending to show that fact, and therefore upon the 
 theory of plaintiff's counsel, there was no evidence of any considera- 
 tion for a subsequent agreement by Hasceig, that Tripp should have 
 the corn. 
 
 The charge of the court should be construed in the light of the 
 evidence before the jury, and when viewed in this way we discover 
 nothing of which the plaintiff can justly complain. 
 
 In order to preclude all misapprehension as to the scope of this 
 decision, we deem it not improper to add, that we express no opinion 
 as to whether Tripp would be liable to Hasceig for any part of the 
 crop appropriated by the former, with the acquiescence of the latter, 
 under a verbal reservation. 
 
 The judgment of the court below is affirmed with costs. 
 
 Christiancy, J. — I concur with my brethren in the opinion of my 
 brother Graves; but had it appeared in the case that it was the cus- 
 tom of the country where the farm was situated, (as it is in some of 
 the western States,) to keep the ripe corn in the field for the 
 winter, or till wanted for use or market, and to be taken only on the 
 like occasions or for the like reasons as if stored in the crib or 
 granary, — thus using the field merely as a substitute for such crib 
 or granary, — I am inclined to think I might have agreed in the 
 opinion intimated by the Supreme Court of Illinois in Powell v. Rick, 
 41 111. 466, cited by Brother Graves. 
 
 BAKER v. JORDAN. 
 3 Ohio State, 438. — 1854. 
 
 Assumpsit. August 18, 1874, plaintiff contracted verbally for the 
 purchase from defendant of certain real estate, whereon there was 
 standing a number of acres of corn which was reserved by parol. 
 Two days later the deed was made containing no reservation or 
 exception of the crop. Defendant offered to prove the parol reser-
 
 192 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 vation. This evidence was received under objection. Verdict for 
 defendant. Motion for a new trial, and the court being equally- 
 divided on the motion, the case was, by consent, reserved for decision 
 in this court. 
 
 Warden, J. — That growing corn will pass by common deeds of 
 the lands whereon it grows, when no valid conversion of it into 
 personalty is shown to have preceded the conveyance, cannot be 
 doubted. But whether such a conveyance always purports to carry 
 the title to growing crops, is another question. Many things may 
 be in or on the ground when a deed is made, which the parties do 
 not intend, and which no inflexible rule of law requires to fall under 
 the conveyance. Such things are realty or personalty, according to 
 the intention of the parties. Lands may be sold while under lease; 
 the lessee may have built, for manufacturing purposes or the like, 
 with the right, as between landlord and tenant, to remove his build- 
 ings at the end of his term; in such a case, would a deed to a stranger 
 purport to convey the buildings? It is certain, that when the vendor 
 is in possession, and has himself made such erections on his lands, 
 they would pass by his deed. Why not, then, construe the deed as 
 pretending to convey them in every case? And why admit proof 
 outside of the deed, to show that the buildings were of the nature 
 first supposed, and thus to manifest the understanding of the parties 
 that they were not touched by the conveyance? Is it not because 
 such proof does not vary, enlarge, diminish, or contradict the deed, 
 that it is admissible, as an answer to whatsoever complaint the 
 vendee may prefer, on the ground that he has failed to get what his 
 deed purports to convey? 
 
 When we consider the case of a parol sale of growing corn to A., 
 and a subsequent deed of the land to B., while the corn continued 
 to grow on the land, we must allow that proof of such sale, and 
 notice of the fact given to B., when he took his deed, would 
 establish satisfactorily that the parties to the deed never intended 
 to treat the corn as part of the realty, or as within the conveyance. 
 Does the evidence of such intention vary or contradict the deed? 
 I think not. But these are all cases in which the vested, fixed rights 
 of some third person are involved. 
 
 However little favor should be shown to reservations made by the 
 vendor by parol, when he is in possession, there must be some such 
 reservations which are valid. It is, in such instances, a question of 
 intent. Where that intent relates to things which may sometimes 
 be treated as realty, and sometimes as personalty, the evidence of 
 its manifestation in the conduct of the parties, or in their words, at 
 the date of the deed, does not seem to alter, enlarge, or limit their
 
 IV. 2.] FRUCTUS INDUSTRIALES. I93 
 
 written contract. For, as already observed, that contract does not 
 necessarily embrace such things 
 
 The case of a deed, then, is clearly distinguishable from that of 
 many other written contracts. What such an instrument purports 
 to convey, is to be known from the legal rules which have assigned 
 to it a definite legal character. And when those rules are attentively 
 considered, it will be found that the common words describing the 
 ground conveyed, must always leave it an open question, whether 
 the growing crops were intended as part of the thing, in which the 
 property was to change. In the absence of any proof that any 
 other valid disposition of them attended, or had preceded the deed, 
 that instrument would certainly convey them. But proof of such 
 other disposition would as certainly withdraw them from the convey- 
 ance, where the right of any third person interposed itself. Is there 
 any reason for holding that other disposition void, because it was 
 between the parties to the deed, and none other? If not, is such 
 disposition void because the evidence of it is not carried into the 
 writing of conveyance on any presumption that all the agreement 
 is therein witnessed? 
 
 This question is not without difficulty. Among the purely artificial 
 rules of evidence, none much more commends itself to regard than 
 that which forbids the parties to a solemn contract, reduced to the 
 certainty of a writing, to alter, vary, limit, enlarge, or contradict 
 what they have thus made certain, by the recollections of witnesses 
 attempting to show what the parties said before or at the time of 
 signing the contract. If, in some instances, the strict observance 
 of this rule may work hardship, such cases are so exceptional, and 
 the reason of the rule is so evident, that nothing less than the cau- 
 tion of a chancellor can make a safe departure from it to correct or 
 set aside the solemn evidence of what the parties have agreed or 
 declared. 
 
 From the wise policy of that rule of evidence we^are not disposed 
 to depart. But, after a careful examination of the question, and 
 notwithstanding some contrary opinions elsewhere, we have felt it 
 our duty to respect the common understanding of our people on this 
 subject. Custom in Ohio, if not in most of the States, treats growing 
 crops as personalty, even where the strict law laid down by some of 
 the courts would not allow it to assume that character. It would 
 not be difficult to establish that growing wheat, corn, and the like, 
 are generally looked upon as though severed from the land, when a 
 conveyance of the latter is made. On this subject, a section in 
 Greenleaf's Evidence, 337, deserves attention: " Upon the same 
 principle, parol evidence of usage or custom is admissible ' to annex 
 
 LAW OF PROP. IN LAND — 1 3
 
 194 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CII. II. 
 
 incidents,' as it is termed; that is, to show what things are custom- 
 arily treated as incidental and accessorial to the principal thing which 
 is the subject of the contract, or to which the instrument relates. 
 Thus it may be shown by parol that a heriot is due, by custom, on 
 the death of a tenant for life, though it is not expressed in the lease. 
 So a lessee by deed may show that, by the custom of the country, 
 he is entitled to an away-going crop, though no such right is reserved 
 in the deed. This evidence is admitted on the principle that the 
 parties did not intend to express in writing the whole of the contract 
 by which they were to be bound, but only to make their contract 
 with reference to the known and established usages and customs 
 relating to the subject-matter. But, in all cases of this sort, the 
 rule for admitting the evidence of usage or custom must be taken 
 with this qualification, that the evidence be not repugnant to, or 
 inconsistent with, the contract; for otherwise it would not go to 
 interpret and explain, but to contradict that which is written. This 
 rule does not add new terms to the contract, which, as already shown, 
 cannot be done; but it shows the full extent and meaning of those 
 which are contained in the instrument." Now, it is to be observed, 
 that our courts are to take notice of a usage far more respectable 
 than any of the customs above alluded to — a usage showing a com- 
 mon acceptation and understanding of the rules relating to growing 
 crops, which appears rightly to interpret their spirit and purpose. 
 " It has been sometimes said," observed Lord Ellenborough, " com- 
 munis error facit jus; but I say, communis opinio is evidence of what 
 the law is — not where it is an opinion merely speculative and theo- 
 retical, floating in the minds of persons, but where it has been made 
 the groundwork and substratum of practice." Isherwood v. Old- 
 know, 3 M. & S. 396. This language has more fitness, perhaps, 
 when the opinion of lawyers is that respected; but it is not without 
 force when related to a popular construction of the law, which is not 
 forbidden by its terms. Applied to the common understanding of 
 the legal rules res'pecting growing crops, it seems entitled to regard. 
 In our statute law it is written, that " the emblements are annual 
 crops raised by labor, and whether severed or not from the land of 
 the deceased at the time of his death, shall be assets in the hands of 
 the executor or administrator,and shall be included in the inventory." 
 What more natural than such an enactment in a community like 
 ours? The law harmonizes with the common understanding; and 
 that common understanding itself perfectly agrees with other rules 
 of law on the same subject. In the excellent work of the late Mr. 
 Gwynne, those rules are thus stated : " Wheat growing is a chattel, 
 and may be levied upon, under an execution against a defendant who
 
 IV. 2.] FRUCTUS INDUSTRIALES. I95 
 
 is raising it on land of another. Such annual productions or fruits of 
 the earth as clover, timothy, spontaneous grasses, apples, pears, 
 peaches, cherries, etc., are not personal property, but incidents to 
 the land. Everything produced by annual planting, cultivation, or 
 labor, such as corn or potatoes, may be sold on ajl.fa., even when 
 growing and immature. In such a case, the sheriff may wait until 
 the wheat or other crop is ripe for harvest, then cut and carry it 
 away, and sell it. He need not, however, wait, unless required to 
 do so by statute, but may sell before the crop is matured or severed 
 from the ground. Where growing corn is sold, it need not be 
 removed by the purchaser until it is ripe. If left, it will not be 
 liable to distress for rent (where distress is allowed), unless it is left 
 for an unreasonable time. A purchaser on execution of a growing 
 crop, raised annually by labor and cultivation, acquires the right and 
 interest of the defendant in execution to the crop, with the right of 
 ingress, egress, and regress, for the purpose of cutting and carrying 
 it away. The purchaser may lawfully enter and remove the crop, 
 provided it belonged, when sold, to the defendant in execution, 
 although the land on which it was growing, and the crops, were held 
 fraudulently by another person. He does not become a trespasser 
 thereby; nor, by entering with the sheriff to levy and sell, nor by 
 purchasing at the sale." It is due the learned and lamented author 
 of the work from which these sentences are taken (Gwynne on 
 Sheriffs, 220, 221), to keep in mind the subject of his treatise. For 
 the purpose of a levy, growing wheat is certainly, always a chattel; 
 and there is no want of accuracy in what he has said, when his 
 object and meaning are considered in the construction of his 
 language. As we shall presently see, however, the rule is not quite 
 as he has given it. 
 
 The language of C. J. Lane, in Cassilly v. Rhodes, 12 Ohio, 95, 
 does not, at first, appear to clash with that just cited. He says: 
 " If the question were between the grantor and grantee, whether 
 growing crops, annual or other, pass by a deed of sale, it would be 
 of easy solution. They are not, technically, ' emblements,' but 
 ' issues,' or ' profits,' and part of the land, while in the owner's 
 hands; and, unless excepted, pass by the deed, because it is con- 
 strued most strongly against him who makes it." But his citation 
 of authorities, 9 Cow. 39, 15 Mass. 159, would furnish a construc- 
 tion of his words such as would, if it must prevail, require a large 
 modification of Mr. Gwynne's language. The latter writer says: 
 '' Wheat growing is a chattel." C. J. Lane calls it a " part of the 
 land while in the owner's hands." The true rule is not fully given 
 by either. To Mr. Gwynne's rule, as well as to that of C. J. Lane,
 
 196 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 qualifications are to be annexed. Wheat growing is not always a 
 chattel; nor even while the lands whereon it grows are held by the 
 owner, is it always a part of the land. No question of reservation 
 by parol was involved, or attempted to be raised in 12 Ohio. We 
 are not called upon to overrule any decision, in saying, as we do, 
 that growing corn, or the like, may sometimes be a mere chattel, 
 though not always so, and on the other hand, may be such mere 
 chattel, although unsevered from the lands, while the latter are in 
 the hands of the owner himself. 
 
 Thus regarding the legal character of growing corn, or the like, 
 we feel authorized to declare, that a parol reservation of it may be 
 proven, notwithstanding a subsequent deed between the same parties, 
 in the common form. And in so declaring, we make no departure 
 from the wholesome rule of evidence, which gives so much respect 
 to the solemn, written contracts of parties. 
 
 A deed purports to convey the realty. But what is the realty? 
 Growing corn may be part of it, for some purposes, but it is gen- 
 erally to be considered as personalty. If the parties to a deed, 
 either by words or their behavior, signify their understanding that as 
 between them it is personalty, the law will so regard it and will respect 
 their intention in the construction of the deed. When the evidence 
 of such understanding is produced, it is not to contradict the deed, 
 for with that it is perfectly consistent; but it is to show that what 
 in some instances would go with the lands as part of the realty, was, 
 in that case, converted into personalty by the will of the parties, and 
 thus to hold the deed to its true meaning and effect. 
 
 There was no error in admitting the evidence objected to in this 
 case. 
 
 The motion for new trial will be overruled, and judgment given for 
 the defendant. 
 
 (2.) Exceptions or Reservations, — How to Be Made. 
 
 AUSTIN v. SAWY ER. 
 
 9 Cowen (N. Y.), 39.— 1828. 
 
 [Reported herein at p. 31.] 
 
 SMITH v. PRICE. 
 
 39 Illinois, 28. — 1865. 
 
 [Reported herein at p. [63.]
 
 IV. 2.] FRUCTUS INDUSTRIALES. I97 
 
 BAKER v. JORDAN. 
 
 3 Ohio State, 438. — 1854. 
 [Reported herein at p. 191.] 
 
 (3.) Effect of Sale of Land on Foreclosure. 
 LANE v. KING. 
 
 8 Wendell (N. Y.), 584. — 1832. 
 
 By the Court, Sutherland, J. — The question in this case is, 
 whether the lessee of a mortgagor is entitled, .as against the mort- 
 gagee to the crops growing on the mortaged premises at the time of 
 the foreclosure and sale, the mortgagee having become the purchaser. 
 In England the mortgagee may sustain an action of ejectment against 
 the mortgagor or any one claiming under him, by title subsequent 
 to the mortgage, without any notice to quit; they are considered 
 mere tenants at will. Keech v. Hall, Doug. 21; Moss v. Gallimore, 
 Id. 269; Pow. Mort. 205, 206, ch. 7. In this State, however, it has 
 been held that a mortgagor is entitled to notice to quit before he 
 can be treated as a trespasser, on the ground that there is an implied 
 consent and agreement between him and the mortgagee, that the 
 former may continue to occupy the premises. Jackson v. Longhead, 
 2 Johns. 75; Jackson v. Fuller, 4 Johns. 215; M' ' Kercher v. Hawley, 
 16 Johns. 289. A purchaser of the interest of the mortgagor, or a 
 lessee under him, or any third person, stands upon the same footing 
 here as in England, and is not entitled to notice to quit from the 
 mortgagee. There is no privity of contract or estate between the 
 mortgagee and such third person — as to him they are trespassers. 
 4 Johns. 215; 16 Id. 289; 20 Id. 61. The English doctrine, therefore, 
 in relation to the rights of a mortgagee against a mortgagor or his 
 grantees or assignees, is entirely applicable to this case. 
 
 In Keech v. Hall, Doug. 21, already referred to, the mortgagee 
 brought an action of ejectment against a tenant, who claimed under 
 a lease from the mortgagor, given after the mortgage without the 
 privity of the mortgagee. Ld. Mansfield, in delivering the opinion 
 of the court, said: "On full consideration we are all clearly of 
 opinion, that there is no inference of fraud or concert against the 
 mortgagee to prevent him from considering the lessee of the mort- 
 gagor as a wrongdoer." The question turns upon the agreement 
 between the mortgagor and the mortgagee; when the mortgagor is 
 left in possession, the true inference to be drawn is an agreement that
 
 198 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 he shall possess the premises at will in the strictest sense and, there- 
 fore, no notice is ever given him to quit and he is not even entitled 
 to reap the crops as other tenants at will are because all are liable to 
 the debt, on payment of which the mortgagee's title ceases. The 
 mortgagor has no power, express or implied, to let leases not sub- 
 ject to every circumstance of the mortgage; the tenant stands 
 exactly in the situation of the mortgagor. 
 
 This court, in Af' Kercher v. Hawley, 16 Johns. 292, also held that 
 the relation subsisting between the mortgagor and mortgagee, did 
 not imply a right on the part of the mortgagor to lease. The mort- 
 gagor, therefore, in giving a lease becomes as to the mortgagee a 
 disseisor; vide also Jackson v. Hopkins, 18 Johns. 487; Jackson v. 
 Dickerson, 6 Cow. 147; Woodf. 237; and if during the disseisin, he 
 should cut down the grass, trees or corn growing on the land, the 
 disseisee, after re-entry, may have an action of trespass vi et armis 
 against him for the trees, grass or corn ; for after re-entry, the law, 
 as to the disseisor and his servants, supposes the freehold always to 
 have continued in the disseisee, though perhaps trespass vi et armis 
 would not lie against the lessee, for the fiction of law shall not by 
 relation make him a wrongdoer vi et armis, who comes in by color 
 of title, because in fictione juris semper aquitas existat Lifford's Case, 
 11 Co. 51. But though the lessee shall not be treated as a trespasser, 
 still if he cuts the grass and trees, or sows the land and cuts and 
 carries away the crops, they may be recovered by the disseisee after 
 re-entry; the re-entry by relation vests the property in him, as well 
 for the emblements as the freehold, and equally against the feoffee 
 or lessee of the disseisor as against disseisor himself, though it will 
 not, as against a person coming in by color of title, give him an 
 action of trespass vi et armis. 11 Co. 51; Dyer, 31, 173; Pow, Mort. 
 213, 214, ch. 7. Mr. Powell observes, that as to emblements there is 
 a distinction between tenants who have particular estates that are 
 uncertain, defeasible by the act of the parties, or by the act of God, 
 or those who have particular estates uncertain — defeasible by a 
 right paramount; for in the latter case, he that hath the right para- 
 mount shall have the emblements. The mortgagee undoubtedly, as 
 against the mortgagor and his grantees, has the paramount right. 
 Mi-. Powell considers the right of a mortgagee to emblements as 
 against the lessee of the mortgagor, as necessarily resulting from 
 the doctrine established by Ld. Mansfield, in Kerch v. Hall, Doug. 
 21, that a mortgagor lias no right to lease; he observes, that he can 
 see no ground on which the case of such lessee, as to emblements, 
 'an lie distinguished from any other tenant under a tortious title; 
 for if he be considered a wrongdoer as to his occupation of the
 
 IV. 2.] FRUCTUS INDUSTRIALES. I99 
 
 premises, he cannot be considered in a different character as to the 
 emblements, nor can there be any ground to imply a consent to 
 cultivate the property, when no implication is admitted of a consent 
 to occupy it. Jac. Law Die, Emblements; 4 Rep. 21. 
 
 This reasoning appears to me to be conclusive. The plaintiff, 
 therefore, according to the stipulation of the parties in the case, is 
 entitled to judgment for $40 damages and $30 costs. 1 
 
 HECHT v. DETTMAN. 
 56 Iowa, 679. — 1881. 
 
 Beck, J. — I. Two cases are -presented together in this appeal. 
 They involve the same facts and rules of law, and are between the 
 same parties; they are, therefore, properly submitted together upon 
 the same abstract. There is no dispute as to the facts, which are as 
 follows: The property replevied is barley, cut and in shocks, and 
 oats, being partly threshed and partly in bundles or sheaves, all upon 
 the premises where it was grown. The defendant had rented the 
 land of one Ehrke, who had previously executed two mortgages 
 thereon, one, the senior incumbrance, to the New England Loan 
 Company, and the other to the plaintiff, Hecht. After defendant 
 had rented the land plaintiff foreclosed his mortgage, and on the 
 7th day of July, 1879, the time for redemption from the sale, as 
 prescribed by the statute, having expired, a deed was executed by 
 the sheriff. The other mortgage was foreclosed and the land was 
 sold to one not a party to this transaction and the time of redemp- 
 tion under the statute expired August 15, 1879, when a sheriff's deed 
 was made. The foreclosure and sale under this mortgage cut off 
 all claim or title held by plaintiff as well as by the mortgagor. 
 Defendant continued in possession of the land up to the trial in the 
 court below. At the time plaintiff received his deed the grain was 
 not cut, but it was mature and ready for harvesting before that day. 
 Rainy weather had prevented the defendant from cutting the grain 
 before plaintiff's deed was executed. The court instructed the jury 
 that the title of the grain passed to plaintiff by the sheriff's deed and 
 directed a verdict for plaintiff. We are required to determine 
 whether this view of the law be correct. 
 
 II. The sheriff's deed executed upon the foreclosure sale vested 
 plaintiff with the title of the land and the right to all growing crops 
 followed the title thus acquired. Downardv. Groff, 40 Iowa, 597. 
 
 1 See Batterman v. Albright, 122 N. Y. 484; supra, p. 164. — Ed.
 
 200 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 This rule, we think, is not applicable to grain which has matured 
 and is ready for the harvest. It then possesses the character of 
 personal chattels, and is not to be regarded as a part of the realty. 
 See i Schouler's Personal Property, 125, 126; Bingham on Sales of 
 Real Property, 180, 181. 
 
 This conclusion is well supported upon the following reasons: 
 The grain being mature, the course of vegetation has ceased and the 
 soil is no longer necessary for its existence. The connection 
 between the grain and the ground has changed. The grain no 
 longer demands nurture from the soil; the ground now performs no 
 other office than affording a resting place for the grain — it has the 
 same relations to the grain that the warehouse has to the threshed 
 grain or the field has to the stacks of grain thereon. It will not be 
 denied that when the grain is cut it ceases to be a part of the realty. 
 The act of cutting, it is true, appears to sever the straw from the 
 land. But it is demanded by the condition of the grain. It is no 
 longer growing; it is no longer living blades which require the 
 nourishment of the soil for its existence and development. It is 
 changed in its nature from growing blades of barley or oats to grain 
 mature and ready for the reaper. Now the mature grain is not 
 regarded by the law like the growing blades, as a part of the realty, 
 but as grain in a condition of separation from the soil. 
 
 Suppose the defendant had cut a part of the seventy-two acres of 
 grain in controversy; the grain so cut, it will not be denied, would 
 not have passed to plaintiff. There is no valid reason why the act 
 of cutting should change the property in the grain. The work 
 required time and, therefore, plaintiff loses a part of his property. 
 All of the grain is in the same condition, all ready for the reaper. 
 The part cut is his property, while the part uncut belongs to the land- 
 owner. We think the ownership of the grain should be determined 
 by its condition, not by the act of cutting, which cannot be done as 
 soon as it is demanded by its condition. We conclude that for the 
 reason x the grain was mature and was uncut because defendant has 
 been unable to do the work, it cannot be regarded as part of the 
 realty which passed with the deed to plaintiff. 
 
 Counsel for defendant insists that as defendant was in the 
 adverse possession of the land, the action of replevin will not lie to 
 recover the grain. We find it unnecessary to determine the question 
 thus raised, as we hold that defendant's right of property in the 
 grain accrued when the grain matured, whether he did or did not 
 hold adversely to the plaintiff after the sheriff's deed was executed. 
 The judgment of the Circuit Court must be reversed.
 
 IV. 2.] FRUCTUS INDUSTRIALES: SEPARATE SALE. 201 
 
 WILLIS v. MOORE. 
 
 59 Texas, 628. — 1883. 
 
 Moore was the owner of a cotton plantation which he mortgaged 
 by a deed of trust to secure a debt to Reed & Smith. Thereafter 
 he let one John A. Gill into possession of the premises to work the 
 same on shares, and then sold his own share of the proceeds to Alex. 
 J. Gill. Later on and while the crop of 1881 was ungathered the land 
 was sold under the mortgage and bought by plaintiff Willis. A. J. 
 Gill sold the crop and claimed the one-half of the proceeds under 
 his contract with Moore. Willis sues for this money, making all per- 
 sons likely to be interested parties to the action. Judgment for 
 the defendants. Plaintiff appeals. 
 
 Stayton, J. — The deed in trust made by Lewis Moore to secure 
 the notes executed by him to Reed & Smith, having been duly 
 recorded, it must be held that A. J. Gill bought the interest of Lewis 
 Moore in the crop upon the land on the 1st of August, 1881, with 
 notice of whatever right the appellant, by virtue of the transfer of 
 the notes, which carried with them as an incident the security evi- 
 denced by the trust deed, had in the crops then standing ungathered 
 upon the land. 
 
 There might be some difficulty in determining the true relation 
 which existed between Lewis Moore and J. A. Gill, under the agree- 
 ment of date December 24, 1877; but it is treated by appellant's 
 counsel as a partnership, in which, for their mutual benefit, the land 
 was cultivated by the latter, the material for that purpose being in 
 part furnished by each, the net proceeds to be equally divided 
 between them. This is probably the true relationship of the parties, 
 rather than that they were landlord and tenant, and we will so con- 
 sider them in disposing of the case. It does not appear when the 
 notes to Reed & Smith matured, but it is found that they were due 
 and unpaid on the 8th of September, 1881, at which time the substi- 
 tuted trustee sold the land, and thereby the appellant became the 
 owner thereof. 
 
 The question for our decision then is, is the purchaser of mort- 
 gaged lands, as against the mortgagor or any person claiming under 
 him by a purchase of the crops, entitled to such crops as were stand- 
 ing ungathered upon the land at the time of his purchase? A. J. 
 Gill does not necessarily stand in the same relation to this question 
 as would Lewis Moore were he the claimant. 
 
 That in England and in many States of this Union, the mortgagee 
 is deemed the holder of the legal title, cannot be questioned; and
 
 202 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 that upon such title he may maintain ejectment against the mort- 
 gagor. Where such is the rule, many decisions are to be found in 
 which it is held that neither the mortgagor, nor a tenant under him 
 claiming through a lease made after the execution of the mortgage, 
 is entitled to carry away the crops growing upon the mortgaged land 
 at the time of foreclosure or actual entry by the mortgagee; and 
 this upon the theory that, from the date of the mortgage, the mort- 
 gagor is but a tenant at sufferance; and that a lease made by him, 
 being unauthorized, works a disseisin. [The judge then quoted at 
 length from Lane v. King, reported herein at p. 197. J 
 
 In the case of Keech v. Hall, 1 Doug. 23, in reply to a suggestion 
 that the tenant of a mortgagor was entitled to emblements, Lord 
 Mansfield said: " I give no opinion upon that point; but there may 
 be a distinction, for the mortgagor may be considered as receiving 
 the rents in order to pay the interest by an implied authority from 
 the mortgagee, till he determine his will. As to the lessee's right 
 to make the crop which he may have sown previous to the determina- 
 tion of the will of the mortgagee, that point does not arise in this 
 case, the ejectment being for a warehouse; but however that may 
 be, it would be no bar to the mortgagee's recovering in ejectment. 
 It would only give the lessee a right of ingress and egress to take 
 the crop; as to which, with regard to tenants at will, the text of 
 Littleton is clear." 
 
 In this State it has been held, from an early day, that a mortgage 
 is but a security for a debt; that the title to property mortgaged 
 remains in the mortgagor, and with it the right of possession, which 
 is one of the ordinary incidents of title. Duty v. Graham, 12 Tex. 
 427; Wright v. Henderson, 12 Tex. 44; Wootton v. Wheeler, 22 
 Tex. 338. 
 
 Such being the legal effect of a mortgage in this State, it will be 
 readily seen that the foundation upon which the rights of mortgagees 
 is based in England and in some of the States wholly fails: 
 
 1st. There the paramount title is held to be in the mortgagee; 
 here the paramount title remains in the mortgagor, and no estate 
 passes to the mortgagee unless through foreclosure. 
 
 2d. There the right to the immediate possession of the mortgaged 
 property vests in the mortgagee, with the consequent right to 
 appropriate the fruits and revenues without liability to account, 
 unless called upon to do so in a proceeding to enforce the equity of 
 redemption; here no right to the possession, nor to the fruits and 
 revenues so long as the mortgage stands unforeclosed, unless under 
 some proceeding peculiarly equitable. 
 
 3d. There the mortgagor, under the conflict of authority, is held
 
 IV. 2.] FRUCTUS INDUS! RIALES. 203 
 
 to be either a tenant at sufferance or a tenant at will, with no power 
 to do aught else than, under the strict rules of the common law, a 
 tenant with the feeblest tenure may do, a lease by him operating as a 
 disseisin of the mortgagee, and making himself and his lessee tort 
 feasors; here he is the owner of the fee, if such be his estate in the 
 land which he mortgages, recognizing no landlord, neither a tenant 
 at will nor a tenant at sufferance, in any sense in which these terms 
 can be legitimately applied, for the owner cannot be, in the nature 
 of things, the tenant of any one; he has power to lease without dis- 
 loyalty to any one, his lease, if made after mortgage, subject, how- 
 ever, to be terminated in case of foreclosure before its expiration. 
 
 The reason sometimes given, why a mortgagor should not be per- 
 mitted to have the crops still standing upon the land at time of fore- 
 closure, is, that he may obtain their value in account upon bill to 
 redeem; with us this reason can have no effect, for there is no such 
 thing in our practice as the right to redeem after foreclosure, which 
 is made by sale. 
 
 The crops were planted, cultivated, and, in fact, must have been 
 almost, if not quite, matured before the sale in September, and while 
 the paramount title to the land upon which they grew was still in 
 Moore, the vendor of Gill, Moore sold them. The element of 
 uncertainty, in so far as Gill was concerned, as to the continuance 
 of title in his vendor, was very nearly as great as though he had held 
 as tenant at will. The direction of the creditor to sell under the 
 deed of trust, and thereby place in himself or some other person 
 the title to the land was an act of will, without the exercise of 
 which the paramount title to the land would continue in Moore; and 
 even such exercise of the will would not necessarily affect that 
 result; for Moore might be able to pay the indebtedness and thereby 
 effectually prevent the divestiture of his title. 
 
 Where the mortgage is held to vest the title in the mortgagee, no 
 such elements of uncertainty exist; he may enter whenever he 
 pleases. 
 
 The right of a person purchasing under a foreclosure of a mort- 
 gage, where it is held that the mortgage passes no estate, but is a 
 mere security, to have the crops on the land at time of foreclosure is 
 questioned by Mr. Washburn. 1 Washburn on Real Property, 124. 
 The reasons for the rule in question not existing here, it seems to 
 us the rule must be held not to exist. 
 
 The deed of trust seems to evidence the fact that the parties con- 
 templated, even if sale was made under it, that Moore and those 
 claiming under him should not at once surrender the land to the pur- 
 chaser, but from the time of the sale should attorn to the purchaser,
 
 204 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 which carries with it, by implication, at least an agreement that, 
 from such time, Moore or his assigns should, as tenants, recognize the 
 purchaser as the landlord and pay rent for the land from the time of 
 foreclosure. 
 
 By attornment is meant " the act of recognition of a new landlord, 
 implying an engagement to pay rent and perform covenants to him. 
 The word is taken from the feudal law, where it signifies the transfer, 
 by act of the lord and consent of the tenant, of the homage, service, 
 fealty, etc., of the tenant to a new lord who had acquired the estate." 
 Abbott's Law Dictionary. 
 
 It is true that the trust deed provides that the holding shall be as 
 tenant at sufferance; but there can be no such thing as tenant by 
 sufferance when the tenancy is the result of agreement such as is 
 found in the trust deed, with reference to which the purchaser must 
 be presumed to have bought, and by which he is as much bound as 
 though he had been a party to that instrument; and in the absence 
 of something in the agreement evidencing that it was the intention 
 of the parties, after the foreclosure, to have their rights to stand 
 strictly upon the relation of landlord and tenant at sufferance, the 
 parties should be held to have intended that such a tenancy should 
 exist as is created by agreement; at least a tenancy at will, which 
 would carry with it the right to the crops then nearly or quite matured, 
 but ungathered at time of foreclosure. 
 
 A tenancy by sufferance " is of such a nature as necessarily implies 
 an absence of any agreement between the owner and the tenant, and 
 if express assent is given by the owner to such possession, the tenancy 
 is thereby instanter converted into a tenancy at will or from year to 
 year, according to the circumstances." Wood's Landlord and 
 Tenant, 15. It matters not what parties may designate such a 
 tenancy. 
 
 This view of the case would be conclusive of the question, but 
 there is another view of the case which is equally so. 
 
 A mortgage being simply a lien to secure the payment of a debt, it 
 cannot be held to give to a mortgagee or person purchasing under it 
 any greater right to ungathered crops standing upon the mortgaged 
 land than would a person have who purchased under a lien acquired 
 in any other manner prior to the time the crop was planted, or the 
 right to plant it accrued. Hogsett v. Ellis, 17 Mich. 363. 
 
 " Crops, whether growing or standing in the field ready to be 
 harvested, are, when produced by annual cultivation, no part of the 
 realty. They are, therefore, liable to voluntary transfer as chattels. 
 It is equally well settled that they may be seized and sold under 
 execution." Freeman on Kxecutions, 113, and citations; Benjamin
 
 IV. 2.] FRUCTUS INDUSTRIALES. 205 
 
 on Sales, 120. Such being the case, if there be nothing in the con- 
 tract of the parties by which land is conveyed, nor in the circum- 
 stances attending the sale, evidencing the intention of the parties 
 that crops nearly or quite matured should pass with land sold, it is 
 difficult to see upon what principle it can be held that property 
 strictly personal in its character should pass by an instrument which 
 upon its face purports only to convey land. The weight of authority, 
 however, is to the effect that such crops will pass by the sale of the 
 land if they belong to the owner of the land at time of sale. The 
 application of this rule to sales made under mortgages, having only 
 such effects as mortgages hers are held to have, upon crops pro- 
 duced many years after the mortgage was given, need not further 
 be considered. As, however, the crops are separate and distinct 
 in their nature from the land upon which they grow, the ownership 
 of the one, even on mortgaged property, may be in one person, and 
 the title to the other in another; and whenever crops growing or 
 standing upon land covered by a lien given by the owner of the land, 
 or acquired by law, have in law or in fact been severed in ownership, 
 or actually severed from the land prior to sale of the land under the 
 lien, title thereto will not pass by the foreclosure of the lien. 
 
 A mortgagor is entitled to sever in law or fact the crops which 
 stand upon his land at any time prior to the destruction of his title 
 by sale under the mortgage; this results from his ownership and 
 consequent right to the use and profits of the land, and the mortgage 
 is taken with knowledge of that fact. 
 
 In the case of Meyers Assignees v. White, 1 Rawle, 355, it appeared 
 that Meyers had executed a mortgage upon a tract of land, subse- 
 quent to which he had a crop upon the land, which, with the land, 
 he assigned for the benefit of his creditors. There was subsequently 
 a sale under a foreclosure of the mortgage, and the purchaser at that 
 sale of the land claimed the crop, and it was held that the crop 
 passed to the assignees, and not to the purchaser under the fore- 
 closure of the mortgage; and this upon the ground that the crop, by 
 conveyance to the assignees, had been severed. The court said: 
 " As there is no difference in this respect between a judgment and 
 a mortgage creditor, this case has been virtually decided in Hambach 
 v. Yeates, not yet reported, in which it was held that grain growing 
 in the ground is personal property, and might be levied upon and 
 sold as such, and that it did not pass by a sale to the sheriff's vendee. 
 Peter Meyers, before judgment on the scire facias, had parted with 
 his interest in the crop. At the time of the sale, all his right was 
 vested in his assignees for the benefit of his creditors." 
 
 In the case of Stambaugh v. Yeates, 2 Rawle, 161, Yeates had
 
 2o6 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 recovered a judgment against Kyrm and caused a. fieri facias to be 
 levied upon his land and returned, after which the land was sown in 
 grain, and another creditor caused a levy to be made upon the grain 
 under a judgment which he had obtained, and the grain was sold; 
 afterwards the land was sold under a venditioni exponas, and it was 
 held that the creditor who levied on the grain was entitled to the 
 proceeds. 
 
 These cases are approved and applied in Bear v. Bitzer, 16 Pa. St. 
 178, and in Groffv. Levan, Id. 179. 
 
 All of these cases, as well as the case of Bittinger v. Baker, 29 Pa. 
 St. 70, were considered in the case of Metzgar 6° Crugg v. Hershey, 
 90 Pa. St. 218, and were reviewed and approved; and referring to 
 the case of Bear v. Bitzer, the court say: " The latter case rules 
 that a purchaser of land at sheriff's sale is entitled to the growing 
 grain thereon, which had not been severed before the sale. There 
 the owner of the land which was sold owned the crop, and there 
 had been no act of separation. The test is, whether there has been 
 a severance of the growing grain; if so, it does not pass to him who 
 purchases the land subsequent to the severance; if not, it goes with 
 the land." All these cases recognize a sale by the owner or by 
 judicial process, if made before the sale of the land, as a severance. 
 
 The Court of Appeals of Maryland, in Purner v. Piercy, 40 Md. 
 223, in speaking of what constitutes severance, say: " There is 
 nothing in the vegetable or fruit which is an interest in or concern- 
 ing land, when severed from the soil. . . . Whether grain, 
 vegetables, or any kind of crop [fructus industrials), the product of 
 periodical planting and culture; they are alike mere chattels, and the 
 severance may be in fact, as where they are cut and removed from 
 the ground, or in law, as when they are growing, the owner in fee 
 of the land, by a valid conveyance, sells them to another person, or 
 when he sells the land, reserving them by an express provision." 
 To the same effect is the case of Titus v. Whitney, 1 Harrison, 85. 
 
 In Buckout v. S7vift, 27 Cal. 443, it was held that a house which 
 stood on mortgaged land, but which was severed from the land sub- 
 sequently by a storm, did not pass by the sale under foreclosure. 
 
 There is no error in the judgment, and it is affirmed. 
 
 Affirmed. 
 
 SHERMAN v. WILLETT. 
 42 New York, 146. — 1870. 
 \JReported herein at p. 209.]
 
 IV. 2.] FRUCTUS INDUSTRIALES. 20J 
 
 c. Devise of the land, — effect on crops in ground at testator s death. 
 
 STALL v. WILBUR. 
 
 77 New York, 158. — 1879. 
 
 Earl, J. — This appeal is from a judgment overruling defendant's 
 demurrer to plaintiff's complaint. Two grounds of demurrer are 
 specified: That the complaint does not state facts sufficient to con- 
 stitute a cause of action; and that there is a defect of parties plain- 
 tiff, in that Richard E. Wilbur and Erastus C. Wilbur should have 
 been joined as plaintiffs. 
 
 The complaint alleges that Ephraim Wilbur died February 24, 
 1873, leaving a will, by which he devised to Richard E. Wilbur, 
 Erastus C. Wilbur, Mary J. Harris, and to the defendant and the 
 plaintiff, a farm, subject to certain advancements to the devisees, 
 which advancements had been satisfied and equalized by the partition 
 and sale of the farm; that the will had been admitted to probate; 
 that at the time of the testator's death there was growing on the 
 farm a crop of wheat, put in on shares by the defendant, under an 
 agreement with the testator, by which he was to cultivate, harvest 
 and thresh the crop, and deliver to the testator one-half thereof on 
 the farm; that after the testator's death the crop matured, and was 
 harvested and threshed by the defendant; that he retained posses- 
 sion of the whole of the crop, and although the plaintiff had often 
 demanded of him her share of one-fifth of one-half thereof, the 
 whole crop being 450 bushels, and her share under the will being 
 forty-five bushels, refused to deliver to her her share, but had sold 
 and converted the same to his own use. There was a second count, 
 precisely similar, based upon an assignment to the plaintiff of the 
 share in the crop of Mary J. Harris. 
 
 Growing crops are not part of the real estate upon which they are 
 growing. They are personal property. They can be sold and 
 transferred as such. Austin v. Saivyer, 9 Cow. 40. They can be taken 
 upon execution, and at common law they could be distrained for 
 rent. Whipple v. Foot, 2 J. R. 418. At common law also, upon the 
 death of the owner of the real estate, they passed, not to the heirs, 
 but to the executor or administrator, to be administered as personal 
 assets. They pass with a conveyance of the real estate, as apper- 
 taining thereto. Tripp v. Hasceig, 20 Mich. 254. At common law \ 
 also, they passed to the devisee of the real estate, not as a parcel I 
 thereof, but upon the presumed intention of the devisor that he who 
 takes the land should also take the crops growing thereon. Gilbert
 
 203 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 on Ev. 499; Williams on Ex. 713; Cooper v. Woolfitt, 2 Hurl. & N. 
 122; West v. Moore, 8 East, 339; Bradner v. Faulkner, 34 N. Y. 347. 
 
 This common-law rule was somewhat changed by the Revised 
 Statutes. They provide that growing crops " shall goto the execu- 
 tors or administrators, to be applied and distributed as part of the 
 personal estate of their testator or intestate, and shall be included 
 in the inventory thereof." 2 R. S. 83. ' Under this provision, the 
 executor takes possession of the growing crops, as he does of all 
 other personal property. But he takes possession only for the pur- 
 pose of administration according to law. He may sell it, if neces- 
 sary, for the payment of debts and legacies. But when the land, 
 upon which the crop is growing, has been devised in such form as 
 to convey it to the devisee, then the crop, in my opinion, is to be 
 put upon the footing of a chattel specifically bequeathed; and it 
 cannot be sold for the payment of general legacies, and can be sold 
 for the payment of debts only after the other assets, not specifically 
 bequeathed, have been applied. 2 R. S. 87. * * * 
 
 It was not necessary for the plaintiff to allege that there were no 
 legacies to be paid under the will, or that there was sufficient other 
 personal property to pay the legacies, as this property specifically 
 given, as shown above, could not be taken or sold to pay legacies. 
 It could no more be taken for such a purpose than other personal 
 property specifically bequeathed. * * * 
 
 As stated, the defendant is in no better position than if he had 
 been executor; and he cannot make a defense which an executor 
 could not make. It matters not whether an executor was appointed 
 or not. The facts showed that the plaintiff was entitled to this 
 property, and that she is the only person injured by the conversion 
 thereof by the defendant. 
 
 The complaint is not defective in not joining as plaintiffs the two 
 other co-tenants named in the demurrer. As to such property, 
 separable in respect to quantity and quality by weight or measure, 
 each tenant in common may demand of his co-tenant having pos- 
 session of the whole his share, and upon refusal or a conversion by 
 such co-tenant, may sue in his own name, without joining all the 
 other co-tenants. Channon v. Lusk, 2 Lans. 211; Lobdellx. Stowell, 
 37 How. 88; s. c. 51 N. Y. 70. 
 
 The judgment must, therefore, be affirmed, with costs. 
 
 Judgment affirmed. 
 
 'See i 2712 N. Y. Code Civ, Pro., with subds. 5 and 6. — Ed,
 
 IV. 2.] FRUCTUS INDUSTRIALES. 209 
 
 d. Death of owner hi testate — effect on crop in ground. 
 
 SHERMAN v. WILLETT. 
 
 42 New York, 146. — 1S70. 
 
 Action to recover the value of a crop of rye alleged to have been 
 converted by Cornelius Willett, defendant's testator. 
 
 Elmer Willett owned a farm on which he planted the crop in ques- 
 tion and died before it was harvested. He had mortgaged the farm 
 to one Cornell and was in default on the mortgage when the crop 
 was planted. Cornell was appointed administrator, and as such sold 
 the growing crop to plaintiff at auction. Afterward, and before the 
 crop was gathered, Cornell foreclosed his mortgage and the land was 
 sold to P. K. Willett, who conveyed the same to defendant's testator. 
 Notice of reservation of the rye was given at the foreclosure sale. 
 Defendant's testator was present at both sales, went into possession 
 of the premises, and would not permit plaintiff to reap the rye, but 
 took it himself. This is the conversion complained of. Judgment 
 below for the plaintiff. Defendant appeals. 
 
 Earl, Ch. J. — The crop of rye was personal property, and as 
 such passed to the personal representatives of Elmer Willett as 
 assets, to be applied and distributed as part of his personal estate. 
 2 R. S. 82, sec. 6; Bradner v. Faulkner, 34 N. Y. 347. The admin- 
 istrators had the right to sell it. They have always had the right to 
 sell the personal property of their intestate, and that right is not 
 limited by section 25, 2 R. S. 87. They have the right to sell for 
 the payment of debts and legacies, and also for the purpose of dis- 
 tribution. Willard on Executors, 268. But if it be true, as claimed 
 by the counsel for the appellants, that they have the right only to 
 sell personal estate so far as may be necessary for the payment of 
 debts and legacies, they are not required to get an order of the sur- 
 rogate authorizing the sale; and when they sell, certainly, in the 
 absence of any proof to the contrary, it will be presumed, in favor 
 of a faithful discharge of their official duty, that they acted legally, 
 and that the exigencies existed authorizing the sale. Hence there 
 is no room for doubt, that the sale of the crop of rye to the plaintiff 
 on the 21st day of October, 1863, by the administrators, was a valid 
 and legal sale. 
 
 The plaintiff, by this sale, took his title to the rye subject to the 
 contingency that it might be wiped out by a foreclosure of the mort- 
 gage given by the intestate upon the land before the crop of rye was 
 sown. Shepard v. Philbrick, 2 Denio, 174; Simers v. Saltus, 3 Denio, 
 214; Lane v. King, 8 Wend. 584. If nothing had been done before 
 
 LAW OF PROP. IN LAND — 14 
 

 
 2IO CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 the mortgage foreclosure or at the mortgage sale affecting the title 
 to the rye, it would have passed to the purchaser under the fore- 
 closure sale. Was the plaintiff's title, then, under the facts as they 
 exist in this case, cut off by the foreclosure sale ? 
 
 While a mortgagee is not bound to sell the mortgaged premises 
 in parcels unless they are in the mortgage described in parcels, 
 Lamer son v. Marvin, 8 Barb. 9; Griswold v. Fowler, 24 Barb. 135, yet 
 I have no doubt he may do so where the premises are so situated 
 that he can sell in parcels; and in such a case, when he has sold 
 land enough to satisfy his mortgage, he need sell no more; and in 
 such a case, if any one can complain of a sale by parcels, and seek 
 to avoid the foreclosure, it certainly cannot be a purchaser, but must 
 be some one at the time interested in the equity of redemption. 
 When it is admitted that a mortgagee can release a portion of the 
 premises and sell the remainder, although they are described as a 
 whole in the mortgage, I do not see why he may not sell the same 
 portion before releasing any. In this case, the mortgage was a lien 
 upon the whole premises, including the rye, and at the time of sale, 
 the mortgagee announced that he would not sell the rye, but would 
 sell the balance. The purchaser knew this, and bid with this under- 
 standing. The rye was not sold. The purchaser did not buy it. 
 How can he claim it? If the sale was void because not regularly 
 made, and because the entire premises were not sold, then certainly 
 the defendant has no standing upon which he can base any claim to 
 the rye. Hence, if I am right so far, the plaintiff's title to the rye 
 is good. But I go further and hold that this title is good also upon 
 the doctrine of estoppel. Zina Cornell, the administrator, was also 
 the mortgagee. He sold this rye to the plaintiff, professing to give 
 him a good title free from the lien of his mortgage. He induced 
 him to buy and pay for the rye. After making this sale, he was 
 estopped both as mortgagee and as representing the intestate, the 
 mortgagor, from setting up any title or claim against his own sale. 
 The defendant holds under the mortgagor and mortgagee, and he 
 has no greater title than they could give him; and when his grantor 
 purchased at the foreclosure sale he was also present, and they both 
 knew of the facts constituting the estoppel and bid recognizing the 
 rights of the plaintiff. Hence he is equally bound by the estoppel. 
 
 It is true that the affidavits of foreclosure, as filed, show a sale of 
 the entire premises without any reservation; but these affidavits are 
 not conclusive upon the plaintiff, who was not a party to the fore- 
 closure. They are by statute only made presumptive evidence of 
 the facts contained in them. Any person, unless it be the mort- 
 e, and those 1 [aiming under him, can controvert them by parol
 
 IV. 2.] FRUCTUS INDUSTRIALES: SEPARATE SALE. 211 
 
 evidence. Arnot v. McClure, 4 Denio, 41. In the case cited, Judge 
 Bronson says: " As the affidavits are an ex parte proceeding, and 
 are only made presumptive evidence of the facts therein contained, 
 there can be no doubt that they may be controverted by the mort- 
 gagor and those claiming under him. All or any of the facts stated 
 in the affidavits may be disproved." 
 
 The judgment should be affirmed. 
 
 e. Separate sale of crops in ground?- 
 SEXTON v. BREESE. 
 135 New York, 387. — 1892. 
 
 Gray, J. — The action was in replevin for the purpose of recover- 
 ing a crop of wheat which had been harvested from a farm, and the 
 question presented relates to the respective rights thereto of the 
 plaintiff, as mortgagee of the farm, and claiming to be in possession 
 as such, and of the defendant, as the vendee of the growing crop, under 
 a bill of sale from the owner and mortgagor. The mortgage was exe- 
 cuted and delivered in 1875 to the plaintiff's firm, as a collateral 
 security for any liabilities which the mortgagor might thereafter 
 incur, and was to become due, by its terms, one month after demand. 
 In February, 1879, the owner of the farm left the place, allowing 
 the defendant, to whom he was in debt for moneys borrowed, to 
 have possession of the farm and to work it for himself. 
 
 In the following month he sold to the defendant the standing or 
 growing crop of wheat in question, and which he had himself sowed 
 in the previous autumn; the bill of sale giving to defendant the right 
 to secure and harvest the crop. In the following month of April, 
 the owner of the farm executed and delivered a certain instrument 
 to the plaintiff, wherein he authorized him " to take possession of 
 my farm at Macedon and to rent same and after paying all expenses 
 to apply the net income upon my indebtedness to him." He entered 
 upon' the farm under this instrument, and it is his claim that thereby 
 he become mortgagee in possession. When the wheat had ripened 
 the defendant went upon the farm to cut it, but was prevented from 
 doing so by the plaintiff, who proceeded to harvest it for himself. 
 Before, however, the plaintiff had gotten in the wheat from the field, 
 the defendant entered, early in the morning, and carried it off. 
 This action then resulted. 
 
 1 See case last reported. — Ed.
 
 212 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 I do not think that the instrument, under which the plaintiff 
 entered into the possession of this farm, had the effect of making the 
 possession that of the mortgagee, as that is technically understood. 
 Its very terms seem to preclude that idea; for the possession, which 
 the plaintiff was authorized to take, was qualified and limited to the 
 exercise and enjoyment of certain prescribed acts; namely, to rent it 
 and to apply the net income upon the indebtedness. The mortgage 
 had not become due, inasmuch as there had been no demand for the 
 payment of any indebtedness accrued and to be secured by it, or at 
 any rate, such a demand as the nature of this mortgage required. 
 But I do not think it very important to our decision whether we 
 hold that the possession was technically that of a mortgagee, or one 
 authorized by and assumed under the writing referred to. Although, 
 if that question should be deemed essential, I should regard the 
 possession taken by plaintiff through this instrument of April, 1879, 
 as not equivalent to a possession by surrender of the land from the 
 mortgagor. In this State it must be regarded as settled by the cases 
 that the title of the mortgagor to the land is not changed by the 
 mortgage. It remains as before; while the mortgagee has in the 
 mortgage a security for the mortgagor's debt, which is impressed 
 upon the lands described and incumbers them with the burden of 
 the debt. It must also be regarded as settled that even if the mort- 
 gagee goes into possession of the premises by a surrender of them 
 from the mortgagor, the legal title or fee still remains in the mort- 
 gagor; and what the mortgagee thereby acquires is the possession of 
 the pledged property. He holds it then for the purpose of paying 
 off the debt, with which it was incumbered, but takes no estate in 
 the land. Kortright v. Cady, 21 N. Y. 343; Trimm v. Marsh, 54 Id. 
 599. In Trimm v. Marsh, the question of the effect upon the title, 
 where the mortgagee acquires the possession of the land, was quite 
 fully discussed upon theory and in the light of earlier cases, and the 
 decision should be considered as settling, and, as I think, quite in 
 accordance with the reason of the thing, that a mortgagee, who 
 merely is let into the possession of the mortgaged land does not 
 acquire the legal title. 
 
 If we assume that the plaintiff was in possession of the land as by 
 an actual surrender from the mortgagor, his rights in its use were 
 subject to the previous disposition made of the growing crop of 
 grain by the owner of the land. He had planted the crop and it 
 was perfectly competent for him to dispose of it while he held the 
 title to the land. Though, in a sense, a growing crop of grain is a 
 part of the real estate, it, nevertheless, possesses the characteristics 
 of a chattel and is salable and transferable as other personal property
 
 IV. 2.] FRUCTUS INDUSTRIALES: SEPARATE SALE. 213 
 
 is, and may be taken upon execution and sold in discharge of a 
 judgment debt. Whipple v. Foot, 2 Johns. 422; Stall v. Wilbur, 77 
 N. Y. 158. 
 
 The relation which growing crops bear to the land has been fre- 
 quently the subject of discussion in the courts and is in some respects 
 a peculiar one. They pass to the grantee in a conveyance of the 
 land as appertaining thereto. Wintermutc v. Light, 46 Barb. 283; 
 Stall v. Wilbur, supra. And equally upon a sale in foreclosure of a 
 mortgage, the purchaser would acquire with the title to the land 
 the right to the growing crops. Shepard v. Philbrick, 2 Denio, 174. 
 
 In England growing crops, which were fructus industriales, that is 
 to say, annual products of a tillage of the earth by the labor of the 
 occupier, have been regarded as chattels, quite independent of the 
 land. Any supposed confusion in the decisions, with respect to 
 their relation to the land, arose rather in the consideration of the 
 question of the validity of their transfer by parol, under the statute 
 of frauds, than in any difference in opinion as to their being chattels. 
 
 Distinctions, of course, were made between growing crops of grain 
 and trees, the fruits of trees and perennial plants. Crosby v. Wads- 
 worth, 6 East, 602; Evans v. Roberts, 5 B. & (J. 829; Jones v. Flint, 
 10 A. & E. 753; Rodwell v. Phillips, 9 M. & W. 501. 
 
 Those views, as to the legal relation of these annual products of the 
 land to the land itself, obtained and were held here in the early cases 
 of Whipple v. Foot, supra; Shepard v. Philbrick, supra; Green v. Arm- 
 strong, 1 Denio, 550; and more recently in the case of Stall v. Wilbur, 
 to which I have referred. Probably the rights of a third person to 
 the growing crops of grain, under a contract of purchase with the 
 owner, would be annulled by the sale upon the foreclosure of a mort- 
 gage of the land, according to the decisions in Shepard v. Philbrick, 
 supra, and Lane v. .King, 8 Wend. 584, for then the transfer of the 
 title to the mortgaged premises would carry with it to the purchaser 
 a paramount title to the growing crop. But, in the present case, 
 that proposition is not before us and the title of the mortgagor to 
 the mortgaged land was not divested or transferred to the mort- 
 gagee with the possession. The defendant, Breese, was the pur- 
 chaser of the growing crop of wheat and, upon its becoming ripe for 
 harvesting, as well under the express authority of his bill of sale, as 
 without it, impliedly, he had the right of ingress to gather and to 
 carry it away. Stewart v. Doug/ity, 9 Johns. 108. 
 
 His vendor's legal title to the land had not ceased, and the fact of 
 the mere possession having changed to another person, was not 
 sufficient to annul Breese's contract, and was, consequently, inopera- 
 tive upon his right to enter and carry away the ripened wheat.
 
 214 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 We think the conclusion reached by the General Term that the 
 defendant was entitled to the verdict at circuit was correct and, as 
 no other error appears from the record, their order denying plain- 
 tiff's motion for a new trial upon his exceptions, and directing judg- 
 ment on the verdict, should be affirmed with costs. 
 
 Order affirmed and judgment accordingly. 
 
 f. Levy of execution on growing crops. 
 
 PARHAM v. THOMPSON. 
 
 2 J. J. Marshall (Ky.j, 159. — 1829. 
 
 Robertson, J. — The only question which it is necessary to decide 
 in this case, is whether a creditor who has a fieri facias against the 
 estate of his debtor, is guilty of a trespass, by entering on land in 
 the possession of the debtor, for the purpose of assisting the officer 
 to levy the execution on the growing crops, and afterwards entering, 
 to bid at the sale of the crop, before it is ripe, or is secured. & fieri 
 facias may be levied on a growing crop; it is a chattel. It is " fructus 
 industrialist which goes to the executor. 2 Tidd's Pra. 917; Gill, 
 Executor, 19; 1 Salk. 368; 2 Bl. Com. 428; Toller, 204. 
 
 Corn growing, passes to the devisee of the personal property, and 
 not to the devisee of the land. Toller, 204; Swin. 933. It passes 
 by parol contract. Roberts on Frauds, 126; Noble v. Smith et a/., 
 2 Johnson's Rep. 52; 1 Ld. Raym. 182; Bui. Ni. Pri., 34. 
 
 Consequently, although it may be inconsistent, and injurious to 
 sell growing corn, and therefore, the general practice is to wait after 
 the levy until it shall be gathered; yet the legal right to sell it before 
 it shall be gathered, results from its personal character and the right 
 to levy on it. See Tidd, 91, and Whipple v. Foote % 2 Johnson's 
 Rep. 422. The argument " ab inconvenienti" applies no more to this 
 case than it would to the mere right to sell anything else which is 
 immature; as a colt or a pig. 
 
 The creditor, therefore, is not a trespasser, by entering with the 
 sheriff, to levy and to sell; nor for directing the sale, and purchasing 
 the crop, if the process be regular, the judgment valid, and the sale 
 fair, as they all seem to have been in this case. 
 
 Wherefore, us in this case the court decided according to this 
 opinion the judgment of the Circuit Court is affirmed.
 
 IV. 2.] FRUCTUS INDUSTRIALES: EXECUTIONS. 215 
 
 CRADDOCK v. RIDDLESBARGER. 
 2 Dana (Ky.), 205. — 1834. 
 
 Robertson, Ch. J. — Riddlesbarger having obtained a judgment 
 against Craddock, for damages for the conversion of a field of grow- 
 ing corn, which he (Riddlesbarger) had bought at a sale under a 
 fieri facias, as the property of one of the defendants in the execu- 
 tion, Craddock now urges a reversal of the judgment, and relies on 
 three grounds: — First, that there was no judgment that authorized 
 the execution; second, that growing corn was not liable to sale in 
 virtue of a fieri facias ; third, that the Circuit Court erred in reject- 
 ing evidence offered by Craddock, and in instructing the jury, and 
 in withholding instructions. 
 
 As we are of the opinion, that the judgment and the replevin 
 found exhibited in the record, authorized the execution, and suffi- 
 ciently correspond with it, and with each other, for every purpose 
 of reasonable certainty, we shall, without a more particular notice 
 of the first ground, proceed to the consideration of the second and 
 third grounds. 
 
 Second. Although such annual productions or fruits of the earth 
 as clover, timothy, spontaneous grasses, apples, pears, peaches, 
 cherries, etc., are considered as incidents to the land in which they 
 are nourished, and are, therefore, not personal, nevertheless every- 
 thing produced from the earth by annual planting, cultivation and 
 labor, and which is, therefore, denominated for the sake of contra- 
 distinction, fructus industrials, is deemed personal, and may be sold, 
 as personalty, even whilst growing and immature. And the pur- 
 chaser of such an article in such a growing state will have the conse- 
 quential right of ingress and egress, for purposes of cultivation, 
 preservation and removal, though he will have acquired no interest 
 in the land itself, nor any other control or dominion over it, than 
 such as may be necessarily incident to his right to the growing 
 fructus. Parham v. Thompson, 2 J J. Marshall, 159, and the 
 authorities therein cited; and also Eaton v. Southby, 2 Willis, 131. 
 
 The authorities leave no pretext for doubting that growing corn 
 is a chattel and as such, may be sold by the owner, or taken by an 
 officer in virtue of a process of fieri facias. The only doubt which 
 has been intimated, is as to the proper time of selling under an exe- 
 cution. But, though some have expressed the opinion, that the 
 sale should be postponed until after the corn shall have been matured 
 and severed from the land, and though such a course might often be 
 advantageous to all parties concerned, still it seems to us that, prior
 
 2l6 CONSTITUENTS AND INCIDENTS OF LAND. [l'T. II. CII. II. 
 
 to an act of the last Legislature, the law conceded the right to sell 
 the corn in the condition in which it was when the execution was 
 levied on it. The right to levy implies the right to sell, as soon as 
 legal notice can be published of the time and place of sale, and of 
 the thing to be sold. Was it the duty of an officer to keep posses- 
 sion of growing corn for months after his levy, and, in the meantime, 
 cultivate and gather it, or be responsible for its deterioration in con- 
 sequence of non-cultivation, or for the wasting, or destruction, or 
 abduction of it by the owner, or by other persons? Or was all such 
 hazard and burthen devolved on the creditor? What might have 
 been most expedient in a given case, or what the sheriff, (with the 
 concurrence of the creditor and debtor or either of them,) might 
 have done, is far different from what he had the power to do in 
 virtue of his legal authority. A.nd, not doubting his power to sell 
 growing corn, we must decide accordingly. It is our duty to 
 declare, not to give, the law. * * * 
 
 Judgment affirmed. 
 
 PENHALLOW v. DWIGHT. 
 
 7 Massachusetts, 34. — 1810. 
 
 Trespass for breaking and entering plaintiff's close, and cutting 
 down and carrying away his corn " thereon growing and then fully 
 ripe and fit to be gathered." Defendant justified under an execu- 
 tion against plaintiff. 
 
 Curia. — As the defendant had the right, and indeed was obliged 
 by the duty of his office, to enter the close of the plaintiff, and to seize 
 any personal property of the plaintiff, whereby he might satisfy the 
 excution he then held against the plaintiff; the only question is 
 whether corn, then in a proper state to be gathered, but found 
 standing, might, lawfully be cut down and disposed of to raise the 
 money due upon the execution. And we have no doubt that corn 
 or any other product of the soil, raised annually by labor and cul- 
 tivation is personal estate; and would go to the executor, and not 
 to the heir, on the decease of the proprietor. It is therefore liable 
 to be seized on execution, arid may be sold as other personal estate. 
 
 An entry for the purpose of taking unripe corn, or other produce, 
 which would yield nothing, but in fact be wasted and destroyed by 
 tin- very a< t <>f severing it from the soil, would not be protected by 
 this decision. 
 
 Let the defen hint have judgment for his costs.
 
 IV. 2.] FRUCTUS INDUSTRIALES: EXECUTIONS. 21 J 
 
 ELLITHORPE v. REIDESIL. 
 71 Iowa, 315. — 1887. 
 
 Reed, J. * * * Plaintiff acquired title to the premises on the. 
 sixth of July, 1885, by deed from the Iowa Railroad Land Company. 
 In 1880 that company had executed a contract for the sale of the 
 land to W. R. Able. M. R. Elitlhorpe became the owner of this 
 contract by assignment, and he went into possession of the 
 premises in 1884. He cultivated the land during that year, and 
 raised a crop thereon during that year. He also planted the 
 crops in question in 1885. At some time before the date of the 
 deed from the land company, he assigned the contract to plaintiff, 
 who paid the balance of the purchase money due thereon and 
 received the conveyance; but the date of that assignment was not 
 shown. The defendant, Reidesil, recovered a judgment against 
 M. R. Ellithorpe in Justice's Court, on which an execution was issued 
 on the sixth of June, 1885. The constable to whom this execution 
 was directed attempted to levy the same on the crops growing on 
 the premises, and on the sixth of July following he offered them for 
 sale under the execution, and they were bid in by defendant Lein- 
 miller. At the time of the levy and sale, the crops were all imma- 
 ture, some of them having been planted but a short time before the 
 levy. Leinmiller entered upon the premises some three or four 
 weeks after this purchase, and harvested a portion of the crop, and 
 removed a small portion of the grain from the premises; and these 
 are the acts of which plaintiff complains. 
 
 Plaintiff claimed that his purchase of the contract was made 
 before the sale on execution; but, as stated above, the date of the 
 assignment was not proven. Nor did he prove that Leinmiller had 
 any notice of his purchase when he bid in the crops at the execution 
 sale. The Circuit Court ruled that, as Leinmiller had no notice 
 of plaintiff's ownership of the premises when he bid in the prop- 
 erty, he acquired title to it and was not guilty of a trespass in 
 gathering the crops after they matured. This ruling cannot be 
 sustained. There is no pretense that constable had any author- 
 ity or power to levy on or sell any interest in the real estate. 
 Nor is it claimed that he did so. The whole proceeding was 
 on the theory that the crops were personal property, and could 
 be levied on and sold as such. But while they remained immature, 
 and were being nurtured by the soil, they were attached to and 
 constituted part of the realty. They could no more be levied upon 
 and sold on execution as personalty than could the trees growing
 
 2l8 CONSTITUENTS AND INCIDENTS OF LAND. [FT. II. CH. II. 
 
 upon the premises. The doctrine is elementary, and it has fre- 
 quently been declared by this court. See Downard v. Graff, 40 
 Iowa, 597; Burleigh v. Piper, 51 Id. 649; Hecht v. Dettman, 56 Id. 
 679; Martin v. K/iapp, 57 Id. 336. The case is very different in its 
 facts from Nulkolls v. Pence, 52 Id. 581. In that case, although the 
 crop was immature when plaintiff purchased the premises, it was 
 mature when the execution against the vendor was levied upon it 
 and it was sold; and it was held that it was then personalty; and as 
 the purchaser at the execution sale had no notice of the change of 
 ownership, he acquired title by his purchase. But in the present 
 case it pertained to the realty when the attempt to sell it was made. 
 The purchaser, therefore, acquired nothing by his purchase. Con- 
 ceding that the plaintiff had no interest in the premises before the 
 execution of the deed from the land company, as the crops were then 
 immature, they passed to him by the conveyance as part of the 
 realty. Reversed. 
 
 V. Fixtures. 1 
 
 1. Necessity for "Annexation," Either Mediately or 
 Immediately, to the Soil. 
 
 a. Actual and constructive annexation. 
 
 WALKER v. SHERMAN. 
 
 20 Wendell (N. Y.), 636. — 1839. 
 
 Partition. The parties were tenants in common of a woolen 
 factory, a house, barn and twenty acres of land. The commissioners 
 to make partition failed to take into account certain articles of 
 machinery, regarding them as personal property. Defendants allege 
 this as error and move to set aside the report. 
 
 By the Court, Cowen, J. — Judging from the affidavits before us, 
 the machinery which the commissioners excluded as being personal 
 property, was such only as was movable, and in no way physically 
 attached to the factory or land, though it had been used for several 
 years, as belonging to the factory, and was as material to its per- 
 formance in certain departments of its work, as the machinery which 
 
 1 "A fixture may be defined as an article or structure which, in itself personal 
 property, has been annexed, or has become accessory to real estate," Chase's 
 Bla< kstone | jrd <•<!.), n. p. 223. As thus defined " fixtures " are either " remov- 
 able " or "irremovable." For other definitions see cases reported herein. 
 on houses .- l 1 1 < 1 other structures built on the land are included here under 
 the head of " fixtures." — Ed.
 
 V. i.] FIXTURES: ANNEXATION. 219 
 
 was actually affixed. Did the commissioners err in disregarding the 
 movable machines? That is the only question. If they were right, 
 the equality and justice of the partition are apparent upon the 
 proofs; if wrong, the report should be set aside, and the commis- 
 sioners be required to review their decision. 
 
 The question is one between tenants in common, the owners of 
 the fee; and is, we think, to be decided on the same principle as 
 if it had arisen between grantor and grantee, or as if partition had 
 been effected by the parties through mutual deeds of bargain and 
 sale. As between such parties, the doctrine of fixtures making a 
 part of the freehold, and passing with it is more extensively applied 
 than between any others. As between tenant for life or years and 
 reversioner or remainderman, all erections by the former for the 
 purposes of trade or manufactures, though fixed to the freehold, are 
 considered as his personal property, and as such, may be removed by 
 him during his term, or be made available to his creditors on a fieri 
 facias. On his death, they go to his executors or administrators; 
 yet by a conveyance, they pass to the vendee. Fructus industriales 
 it is well known, always go, on the owner's death, to the executor 
 or administrator, not to the heir; whereas, they are carried by a 
 devise or other conveyance of the land, to the devisee or vendee. 
 Spencer s Case, Winch. 51; Austin v. Sawyer, 9 Cow. 39; Wilkins v. 
 Vashbinder, 7 Watts, 378, and cases cited overruling Smith v. Johnston, 
 1 Pa. 471, contra. The general rule is, that anything of a personal 
 nature, not fixed to the freehold, cannot be considered as an inci- 
 dent to the land, even as between vendor and vendee. The English 
 cases on this subject are, most of them, well collected and arranged 
 in Amos & Ferard, Law of Fixtures, p. 1, ch. 1, and p. 180, ch. 5, 
 Am. ed. 1830. For some still later, see Gibbons, Law of Fixtures, 
 15, ch. 2. The American cases are mostly collected in 2 Kent, 
 Com. 345, 3d ed., n. c. I have said that, as a general rule, they 
 cannot be considered an incident unless they are affixed. This 
 is not universally so. A temporary disannexing and removal, 
 as of a millstone to be picked, or an anvil to be repaired, will 
 not take away its character as a part of the freehold. Locks 
 and keys are also considered as constructively annexed; and 
 in this country it must be so with many other things which are 
 essential to the use of the premises. Our ordinary farm fences of 
 rails, and even stone walls, are affixed to the premises in no other 
 sense than by the power of gravitation. It is the same with many 
 other erections of the lighter kind about a farm. I shall hereafter 
 have occasion to notice these and a few other like instances of con- 
 structive fixtures. I admit that some of the cases are quite too strict
 
 220 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 against the purchaser; but as far as I have looked into them, and 
 I have examined a good many, both English and American, they are 
 almost uniformly hostile to the idea of mere loose, movable 
 machinery, even where it is the main agent or principle thing in 
 prosecuting the business to which a freehold property is adapted 
 being considered as a part of that freehold for any purpose. To 
 make it a fixture, it must not only be essential to the business of the 
 erection, but it must be attached to it in some way; at least, it must 
 be mechanically fitted, so as, in ordinary understanding, to make a 
 part of the building itself. 
 
 The question has been occasionally examined in this court as 
 between grantor and grantee, and in some other relations. The 
 most material cases are Heermance v. Vernoy, 6 Johns. 5 ; Cresson v 
 Stout, 17 Johns. 116, 121; Miller v. Plumb, 6 Cow. 665; Austin v. 
 Sawyer, 9 Cow. 39; and Raymond v. White, 7 Id. 319. None of them 
 treat a personal thing as a fixture short of physical annexation; and 
 some are peculiarly strong against the purchaser. * * * 
 
 The cases of constructive annexation, where the article is seldom 
 or never corporally attached to the realty, are few, and may be set 
 down as exceptions to the general rule. They are said to be the 
 charters or deeds of an estate and the chest containing them, deer 
 in a park, fish in a pond, and doves in a dove-house. 2 Com. Dig. 
 Biens, B. 6 Greenl. 157; 3 Dane's Abr. 156; 3 N. H. 505. The 
 deer, fish and doves are set down by Amos & Fer. Fixt. 168, as heir- 
 looms; and so of various other animals. Heirlooms are a class of 
 property distinct from fixtures. But " the doors, windows, locks, 
 keys and rings of a house will pass as fixtures, by a conveyance of 
 the freehold, although they may be distinct things; because they are 
 constructively annexed to the house." Amos & Fer. Fixt. 183, and 
 the book there cited. Many other obvious cases may be supposed. 
 One is, our ordinary Virginia fence on country farms. No vendor 
 would consider that as mere personal property. And in Kittredge v. 
 Woods, 3 N. H. 503, it was held that manure lying about a barn yard 
 passed by a conveyance of the land as an incident. 
 
 These instances seem fully to justify the courts when they speak 
 of the great difficulty in fixing on any certain criterion which shall 
 rn all cases. They lead to a strain of reasoning by Mr. Dane, 
 in the third vol. of his Abridgment, p. 156, as well as by Weston, J., 
 in Farrar v. Stackpole, by which, if followed out in practice, the 
 mai hinery now in question might well be considered as a part of the 
 realty; and, therefore, the subject of partition, Mr. Dane says, that 
 in all the instances put by him, the articles " are very properly a 
 pari of the real estate and inheritance, and pass with it because not
 
 V. i.] FIXTURES: ANNEXATION. 221 
 
 the mere fixing or fastening to it is alone to be regarded; but the 
 use, nature and intention." * * * 
 
 The ancient distinction, however, between actual annexation and 
 total disconnection is the most certain and practical; and should, 
 therefore, be maintained, except where plain authority or usage has 
 created exceptions. The reasoning of Mr. Dane, and of the learned 
 Judge in Farrar v. Stackpole, before cited, while it cannot be too 
 extensively applied to modern machinery in subordination to that 
 distinction, does not appear to be sustained by authority, when it 
 seeks to raise a general doctrine of constructive fixtures, from the 
 moral adaptation of what is in fact a mere movable, to the carrying 
 on a farm or factory, etc., however essential the movable may be 
 for such purpose. The argument in that shape proves too much. 
 Such adaptation and necessity might be extended even to the use of 
 domestic animals on a farm, and certainly to many implements in a 
 manufactory which could never be recognized as fixtures, without 
 utterly confounding the rule by which the rights of the heir or the 
 purchaser have been long governed. The judicial application of the 
 rule is already sufficiently nice and difficult. As between heir and 
 executor, it was partially altered by 2 R. S. 24, sec. 6, sub. 4, 2d 
 ed. 1 By this, " Things annexed to the freehold, or to any building, 
 for the purpose of trade and manufacture, and not fixed into the 
 wall of a house, so as to be essential to its support," pass to the 
 executor. And see 3 Id. 638, 9, 2d ed. Appendix. This provision 
 certainly indicates anything but a legislative intent to enlarge the 
 rights of freehold. • Taken literally, it would strip the heir of the 
 wheels, gearing and all the other machinery fixed in the ordinary 
 way to a mill or manufactory inherited by him. It is certainly con- 
 trary to the ancient common law; see 11 Vin. 167, Executors, Z. pi. 
 6; Amos &: Fer. Fixt. 133, and cases there cited on to p. 138; and 
 seems to derive very questionable countenance from more modern 
 authority. Squire v. Mayer, a short note of which is given in 2 Freem. 
 246, goes the farthest towards our statute rule; but how very doubt- 
 ful this and some other modern cases of the like tendency are may 
 be seen by Amos & Fer. Fixt. ch. 4, sec. 2, p. 151, and cases there 
 cited. See also Gibbons, Fixt. 11, 12. As between devisee and 
 executor, the suggestion of Vice-Chancellor Hart in Lushington v. 
 Sewell, 1 Sim. 435, 4S0, seems to go beyond any adjudged cases in 
 favor of the freehold. He inclined to think that the devise of a 
 West India estate would pass the incidental stock of slaves, cattle 
 and implements; because such things are essential to render the 
 
 1 New York Code of Civil Procedure,' § 2712, Subd's 4 and 9. — Ed.
 
 222 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 estate productive ; and, denuded of them, it would be rather a burden 
 than a benefit. 
 
 It is, I think, obvious, not only from our statute, but from both 
 the English and American cases, that there is a stronger tendency to 
 consider fixtures for the purpose of trade as mere personal property, 
 than we find either in regard to those of an agricultural or domestic 
 character. See Gibbons, Fixt. 10, n; Amos & Fer. Fixt. 138, ed. 
 of 1830. By several English cases cited in these treatises the 
 executor was in respect to trade fixtures preferred in his claim 
 against the heir, though the doctrine is far from being settled. By 
 several American cases we have seen, that such fixtures were denied 
 to have passed even as between the vendor and vendee of the free- 
 hold ; though such a rule derives no countenance, or certainly very 
 little, from any English authority, and seems to be against the weight 
 of American adjudication. 
 
 On the whole, I collect from the cases cited, and others, that, 
 as a general rule, in order to come within the operation of a 
 deed conveying the freehold, whether by metes and bounds of 
 a plantation, farm or lot, etc., or in terms denoting a mill 
 or factory, etc., nothing of a nature personal in itself will pass, 
 unless it be brought within the denomination of a fixture by being 
 in some way permanently, at least habitually, attached to the land 
 or some building upon it. It need not be constantly fastened. It 
 need not be so fixed that detaching will disturb the earth or rend 
 any part of the building. I am not prepared to deny that a machine 
 movable in itself, would become a fixture from being connected in 
 its operations by bands, or in any other way, with the permanent 
 machinery, though it might be detached, and restored to its ordinary 
 place, as easily as the chain in Farrar v. Stackpole. I think it would 
 be a fixture notwithstanding. But I am unable to discover, from the 
 papers before us, that any of the machines in question before the 
 commissioners were even slightly connected with the freehold. For 
 aught I can learn, they were all worked by horses or by hand, hav- 
 ing no more respect to any particular part of the building, or its 
 water-wheel, than the ordinary movable tools of such an establish- 
 ment. These would have their common place, and be essential to 
 its business. So a threshing machine, and the other implements of 
 the farmer. But it would be a solecism to call them fixtures, where 
 they arc not steadily, or commonly attached, even by bands or 
 hooks, to any part of the realty. The word " fixtures " is derived 
 from the things signified by it being fastened or fixed. " It is a 
 maxim of great antiquity, that whatever is fixed to the realty is 
 thereby made a part of the realty, to which it adheres, and partakes
 
 V. I.] FIXTURES: ANNEXATION. 223 
 
 of all its incibents and properties." Toml. Law Die. Fixtures. 
 Hence " fixtures " are denned to be chattels or articles of a personal 
 nature which have been affixed to the land." Id. " It is an ancient 
 principle of law," says Weston, J., in Farrar v. Stackpole, " that 
 certain things, which in their nature, are personal property, when 
 attached to the realty, become part of it as fixtures." And see, 
 Amos & Fer. Fixt. ch. 1, p. 1. 
 
 It is not to be denied that there are strong dicta, and perhaps we 
 may add the principle of several adjudicated exceptions, upon which 
 we might, with great plausibility, declare the machines in question, 
 so essential to the purposes of the manufactory, although entirely 
 disassociated with the freehold, a fit subject for entering into the list 
 of constructive fixtures. 
 
 The general importance of the rule, however, which goes upon 
 corporal annexation, is so great that more evil will result from frit- 
 tering it away by exceptions, than arise from the hardship of adher- 
 ing to it in particular cases. 
 
 Nor can we possibly say, as in the case of the steelyard or engine 
 in the cotton manufactory, cited from Caldecott, that the machines 
 in question must in the nature of the thing, be annexed to the free- 
 hold. It appears, by the papers before us, that they have been used 
 with the factory for several years, and have passed with it in con- 
 veyances. But the affidavits do not state that they are affixed in any 
 way. They are treated by both parties, for aught I can see, as 
 entirely detached, though the defendant ventures to express an 
 opinion that some of them constitute a part of the factory itself. 
 He gives no particulars, however, from which we can say they make 
 a part, any more than if they were so many chairs to sit on. 
 
 It is true, that this factory seems to have been pretty much dis- 
 mantled. The principal part of its machinery has been treated as 
 mere movables. Both the defendant and Mr. Smith, one of the com- 
 missioners, concur in stating that nothing about the factory was 
 treated as a fixture, except the water-wheel, fulling-mill, dye-kettle, 
 press and tenter-bars; and Mr. Smith says the factory was impelled 
 by a valuable water-power. The suspicion would, indeed, be quite 
 strong, from such facts standing alone, that, at least, some of the 
 important and valuable machinery excepted, might be brought within 
 the legal notion of fixtures; and yet the defendant himself has not 
 ventured to state, as I can find, that any part of the particular 
 machinery excepted from the report was in the least dependent for 
 its operation on the water-wheel or other permanent parts of the 
 factory; while Mr. Goodrich, one of the commissioners, says, in his 
 affidavit, that the excepted machinery was not affixed to the building
 
 224 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 or land. There the case is left; not one of the deponents pointing 
 out any connection whatever. No authority cited on the argument, 
 nor any that I have seen, goes so far as to say that mere loose and 
 movable machines totally disconnected with, and making no part of 
 the permanent machinery of a factory, can be considered a fixture 
 even as between vendor and vendee. 
 
 We think the motion must be denied with costs, and the report of 
 the commissioners is confirmed. 
 
 VOORHIS v. FREEMAN. 
 
 2 Watts and Sergeant (Pa.), 116. — 1841. 
 
 Trover by Voorhis against Freeman for the conversion of one 
 hundred and six soft and chilled rolls, part of the machinery of an 
 iron-rolling mill. Defendant claims under the foreclosure of a mort- 
 gage made by Sample, a former owner; plaintiff claims under an 
 execution sale of the rolls as personal property on a judgment against 
 Sample. Judgment below for the defendant. Plaintiff brings the 
 case on writ of error to this court. 
 
 Gibson, C. J. — It is true we ruled in an unreported case, Chaffee v. 
 Stewart, that the spindles and other unattached machinery in a cotton 
 mill, were personal property for purpose of execution, on the authority 
 of certain decisions to that effect, because we were indisposed to be 
 wise above what is written; but an examination of their foundation 
 would probably have led us to a different conclusion It is unneces- 
 sary to pass the learning of the subject in review, as a clear birds-eye 
 view of it has been spread before the profession by Mr. Justice Cowen 
 in Walker v. Sherman, 20 Wend. 636, from which it is evident that no 
 distinctive principle pervades the cases universally, and that the 
 simple criterion of physical attachment is so limited in its range, 
 and so productive of contradiction even in regard to fixtures in 
 dwellings to which it was adapted before England had become a 
 manufacturing country, that it will answer for nothing else. My 
 objection to the conclusion drawn from it in that case, is that the 
 court adhered to the old distinction when the question related to a 
 woolen factory, instead of following out the principle started by 
 Mr. Justice Weston in Farrar v. Stackpoh\ 6 Greenleaf, 157, which 
 must, sooner or later, rule every case of the sort. The courts will 
 In- drawn to it by its liberality and fitness, while they will be drawn 
 away from the old criterion by its narrowness and want of adapta- 
 tion to the business and improvements of the age. By the mere
 
 V. i.] FIXTURES: ANNEXATION. 225 
 
 force of habit, they have adhere J to it in almost all cases after it 
 has ceased to be a guide in any but a few; for nothing but a passive 
 regard for old notions could have led them to treat machinery as 
 personal property when it was palpably an integrant part of a manu- 
 factory or a mill, merely because it might be unscrewed or unstrapped, 
 taken to pieces, and removed without injury, to the buildings. 
 It would be difficult to point out any sort of machinery, however 
 complex in its structure, or by what means soever held in its place, 
 which might not with care and trouble be taken to pieces and 
 removed in the same way, and the greater or less facility with which 
 it could be done, would be too vague a thing to serve for a test. It 
 would allow the stones, hoppers, bolts, meal-chests, screens, scales, 
 weights, elevators, hopper-boys, and running gears of a grist-mil!, 
 as well as the hammers and bellows of a forge, and parts of many 
 other buildings erected for manufactories, to be put into the class of 
 personal property, when it would be palpably absurd to consider 
 them such. If physical annexation were the criterion in regard to 
 such things, the slightest tack or ligament ought to constitute it; 
 else if we were to get away from it even ever so little, we should 
 have no criterion at all. There are so many fashions, methods, and 
 means of it, and so many degrees of connection between material 
 substances, that there is nothing about which men would more 
 readily differ than whether a thing held by a band or a cleat were 
 permanently annexed to the freehold, or only for a season; and the 
 proof of this is seen in the result of the decisions professedly regu- 
 lated by it. To avoid discrepance it would be necessary to hold the 
 slightest fastening to be sufficient, but to exclude from the character 
 of real property, as well everything constructively attached to it by 
 the nature of the thing, as everything held to the ground by the 
 attraction of gravitation. Thus cleared of its exceptions, the rule 
 of physical annexation, though at best a narrow one, might furnish 
 a criterion of universal application, though without them it would 
 make havoc of the cases already decided, and indeed, produce the 
 most absurd consequences by stripping houses of their window 
 shutters and doors, and farms of the houses themselves. When, 
 therefore, we reflect on the necessary exceptions to the rule, as well 
 as the cases of constructive attachment without the semblance of a 
 tack or ligament, we are not surprised at the confusion and embar- 
 rassment in which we are left by the decisions. The inherent 
 imperfections of the rule required so many exceptions to it in order 
 to avoid absurdity and injustice in its application, that it has almost 
 ceased to be a rule at all. Being purely artificial, and having no 
 regard to the purposes for which capital is invested, a rigid applica- 
 
 LAW OF l'ROP. IN LAND — 15
 
 226 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 tion of it would be ruinous to the manufacturer. In Pennsylvania, 
 where a statute directs that real estate shall not be sold on execu- 
 tion before the rents, issues, and profits, shall have been found by 
 an inquest insufficient to satisfy the debt in seven years, not only 
 might this conservative provision be evaded, but a cotton-spinner, 
 for instance, whose capital is chiefly invested in loose machinery, 
 might be suddenly broken up in the midst of a thriving business, by 
 suffering a creditor to gut his mill of everything which happened not 
 to be spiked and riveted to the walls, and sell its bowels not only 
 separately but piecemeal. A creditor might as well be allowed to 
 sell the works of a clock, wheel by wheel. His interest, it may be 
 said, would forbid him to do so; but in the case of a manufactory, 
 he would often be compelled to sell a part, or to sell many times the 
 worth of the debt, and none but a person entering into the business 
 would purchase either a part or the whole. The sacrifice that would 
 be induced by either course, is incalculable; but that is not all. The 
 bare walls of the buildings would be comparatively of little value. 
 They might perhaps answer the purposes of a barn; but so might 
 the walls of a dwelling, when deprived of their doors and windows, 
 and why are these considered a part of the dwelling? Simply 
 because it would be unfit for the purposes of a dwelling without them. 
 What, then, is demanded in the case of a building erected for a 
 manufactory, but an application of the same principle? Whether 
 fast or loose, therefore, all the machinery of a manufactory which is 
 necessary to constitute it, and without which it would not be a manu- 
 factory at all, must pass for a part of the freehold. This is no more 
 than an enlargement of the principle of constructive attachment; 
 and it is the principle of Farrar v. Stackpole, glanced at by Lord 
 Mansfield in Lawton v. Lazuton, i H. B. 259, note, who seems to have 
 foreseen its day. I speak not here of questions between tenant and 
 landlord or remainderman, but of those between vendor and vendee, 
 heir and executor, debtor and execution creditor; and between 
 co-tenants of the inheritance. With this limitation, nothing said or 
 done by this court, except its decision in Chaffee v. Stewart, already 
 mentioned, and an obiter recognition of an adverse decision, by the 
 judge who delivered the opinion of the court in Gray v. HoIds/iip, 17 
 Serg. & Rawle, 415, will be found to conflict with the principle pro- 
 posed. Certainly nothing else ever said by us gives countenance to 
 the notion that the rolls of an iron mill may be seized and sold as 
 personal property. 
 
 But such rolls, being adapted to the manufacture of bars of differ- 
 1 nt shapes .nil sizes, cannot all be used at once; and according to 
 the ordinary criterion, only those in place and fixed for use would be
 
 V. I.] FIXTURES: ANNEXATION. 227 
 
 deemed a part of the mill. But by the criterion proposed, they must 
 be deemed equally a part of it when unfixed to give place to others; 
 for a rolling mill without rollers for all work, would be as incom- 
 plete as a hatter's shop without blocks for all heads. By this, how- 
 ever, I mean not to be understood as intimating that any such block 
 is part of the realty. On the principle, then, that a thing temporarily 
 severed from the freehold does not cease to belong to it, the whole 
 set must be considered a part of the mill. Some two or three of 
 these rolls, however, were duplicates; but all of them had, at one 
 time or another, been in actual operation, and it is impossible to say 
 which were the proper members of the set, and which the super- 
 numeraries. But even if that could be told, all might nevertheless 
 be deemed a part of the mill, seeing that they are often broken and 
 cannot be instantly replaced if they are not kept ready on hand. 
 Duplicates necessary and proper for an emergency consequently 
 follow the realty on the principle by which duplicate keys of a bank- 
 ing-house, or the toll-dishes of a mill, follow it. 
 
 We are of opinion, therefore, that the rolls in question passed as 
 a part of the freehold by the mortgage and sale on the levari facias ; 
 but that if they had not passed, they could not have been sold as 
 chattels on the plaintiff's fieri facias against the n. ortgagor; acd 
 were it necessary, we would further hold that they might have 
 passed, had they been chattels, by force of the word apparatus in 
 the description of the premises. On all these points the case is 
 with the defendants. Judgment affirmed. 
 
 FARRAR v. STACKPOLE. 
 
 6 Maine, 154. — 1829. 
 
 Trover for a mill-chain, dogs and bars. Plaintiffs claimed title 
 through a deed from defendant. It was proved that the chain, dogs 
 and bars were in their proper places when the deed was made. As 
 the chain in question was prepared for being hooked and unhooked 
 at pleasure, the trial judge ruled that it was a personal chattel which 
 would not pass by the deed of the mill, unless by uniform and 
 general usage it should be considered a part of the same. The 
 question as to usage was left to the jury on the evidence and they 
 founr/ for plaintiff. The questions of construction and of admissi- 
 bility of parol evidence as to usage were reserved for this court 
 
 Weston, J., delivered the opinion of the Court: 
 If the chain in question passed as a constituent part of the mill, 
 the plaintiffs have made out their title, and have a right to judg-
 
 228 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 ment on the verdict. A considerable portion of the machinery and 
 power of a mill, like that conveyed by the defendant, is designed 
 to be applied to draw up logs into the mill; which is essential to the 
 operation of one of this construction. It is not denied that other 
 parts of the machinery intended for this purpose, go with the mill; 
 but it is insisted that the chain is of the nature of personal property, 
 and therefore passes not by a deed of the realty unless specially 
 named. To this it may be answered, first, that if it be an essential 
 part of the mill it is included in that term, whether real or personal; 
 secondly, that that which is in its nature personal may change its 
 character, if fixed, used, and appropriated to that which is real. Is 
 it too much to say that the mill is incomplete without a chain, a 
 cable, or other substitute? It maybe that a mill-wrightwho contracts 
 to erect a mill, and to furnish materials, may be deemed to have com- 
 pleted his engagement without supplying a chain. One mill-wright, 
 a witness in this case, has testified that such is his impression. And 
 if this is urderstood generally his contract might not extend further. 
 But the owner would find that he had yet something more to procure 
 before the mill could be in a condition to operate. The chain is the 
 last of the parts in the machinery to which the impelling power is 
 communicated to effect the object in view. Its actual location in 
 the succession of parts can make no difference. If it is in its nature 
 essential to the mill it is included in that term; and that, as has 
 been before remarked, whether it be personal or real property. But 
 upon consideration, we are of opinion that it ought to be regarded 
 as appertaining to and constituting a part of the reality. 
 
 It is an ancient principle of law that certain things which m their 
 nature are personal property, when attached to the realty, become 
 part of it,as fixtures. One criterion is that if that which is ordinarily 
 personal be so fixed to the realty that it cannot be severed there- 
 from without damage, it becomes part of the realty; as wainscot 
 work and old fixed and dormant tables and benches. Other things 
 pass as incident to the realty, as doves in a dove-house, fish in a 
 pond, or deer in a park: 2 Com. Dig. Biens, B. On the other hand, 
 as between landlord and tenant, for the benefit of trade, in modern 
 times many things are regarded as personal which, as between the 
 heir and executor, would descend to the heir as part of the inheritance. 
 
 Although the being fastened or fixed to the freehold is the leading 
 principle in many of the cases in regard to fixtures it has not been 
 the only one. Windows, doors, and window-shutters are often hung 
 lint ;mt fastened to a building, yet they are properly part of the real 
 estate, and pass with it; because it is not the mere fixing or fasten- 
 ing which is regarded, but the use, nature, and intention. Dane's
 
 V. I.] FIXTURES: ANNEXATION. 229 
 
 Abr. ch. 76, art. S, sec. 39. Modern times have been fruitful in 
 inventions and improvements for the more secure and comfortable 
 use of buildings as well as of many other things which administer to 
 the enjoyment of life. Venetian blinds, which admit the air and 
 exclude the sun, whenever it is desirable so to do, are of modern 
 use; so are lightning-rods, which have now become common in this 
 country and in Europe. These might be removed from buildings 
 without damage; yet, as suited and adapted to the buildings upon 
 which they are placed, and as incident thereto, they are doubtless 
 part of the inheritance, and would pass by deed as appertaining to 
 the realty. But the genius and enterprise of the last half-century 
 has been in nothing more remarkable than in the employment of 
 some of the great agents of nature, by means of machinery, to an 
 infinite variety of purposes, for saving of human labor. Hence there 
 has arisen in our country a multitude of establishments for working 
 in cotton, wool, wood, iron, and marble, some under the denomina- 
 tion of mills, and others of factories, propelled generally by water 
 power, but sometimes by steam. These establishments have in 
 many instances, perhaps in most, acquired a general name, which is 
 understood to embrace all their essential parts; not only the build- 
 ing which shelters, incloses, and secures the machinery, but the 
 'machinery itself. Much of it might be easily detached, without 
 injury to the remaining parts or to the building. But it would be a 
 very narrow construction which should exclude it from passing by 
 the general name by which the establishment is known, whether of 
 mill or factory. The general principles of law must be applied to 
 new kinds of property, as they spring into existence, in the progress 
 of society, according to their nature and incidents, and the common 
 sense of the community. The law will take notice of the mutations 
 of language, and of the meaning of new terms applied to new sub- 
 jects as they arise. In other words, it will understand terms used 
 by parties in their contracts, whether executed or executory, whether 
 in relation to real or personal estate, according to their ordinary 
 meaning and acceptation. 
 
 There was at Bath, in this State, a saw-mill propelled by steam, 
 generally called the steam saw-mill. Suppose this establishment had 
 been conveyed by the name of the steam saw-mill, without a more 
 particular description. What would pass? There is nothing in the 
 books with respect to this species of property, for it is of quite 
 modern invention ; and there is no other mill of the kind in this part 
 of the country. If you exclude such parts of the machinery as may be 
 detached without injury to the other parts or to the building, you 
 leave it mutilated, incomplete, and insufficient to perform its intended
 
 230 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 operations. The parties in using the general term would intend to 
 embrace whatever was essential to it, according to its nature and 
 design; and the law would doubtless so construe the conveyance as 
 to effectuate the lawful intention of the parties. Salt-pans have 
 been held to pass with the realty, and to belong to the inheritance; 
 because adapted and designed for and incident to an establishment 
 for the manufacture of salt. The principle is that certain things, 
 personal in their nature, when fitted and prepared to be used with 
 real estate, change their character, and appertain to the realty, as 
 an incident or accessory to its principal. Upon this ground we are 
 satisfied that the chain in question, being in the mill at the time, 
 and essential to its beneficial enjoyment, passed by the deed of the 
 defendant to Asa Redington, under whom the plaintiffs claim, 
 independent of any reference to usage. The verdict is therefore 
 sutained, although not upon a ground in accordance with the 
 impressions of the judge who presided at the trial. This, we think, 
 upon the whole, a fair application of the principles of law to the 
 case. Had the term mill, however, by uniform and general usage, 
 been understood not to embrace the chain, a different construction 
 would no doubt have obtained; for it is a term of art the proper 
 meaning of which would be fixed by the general understanding of 
 those who are skilled and experienced in it. If they were not agreed, 
 the law would adopt that which was most general, and which would 
 best accord with the nature and character of the subject-matter. 
 The jury have found, upon the evidence submitted to them, that by 
 general and uniform usage the chain passed by a deed of the mill. 
 This finding was somewhat stronger than the evidence warranted. 
 It did appear that there had been exceptions to this usage, but the 
 weight of evidence went to support it. At any rate, it is apparent 
 that the usage is rather in favor than against the construction we 
 have adopted. But as we are of opinion that the title of the plain- 
 tiffs is well supported by the deed, independent of usage, it becomes 
 unnecessary to decide upon the competency or effect of the testi- 
 mony adduced upon this point. 
 
 Judgment on the verdict.
 
 V. I.] FIXTURES: ANNEXATION. 23 1 
 
 SNEDEKER v. WARRING. 
 
 12 New York, 170. — 1S5 4.. 
 
 Action to recover the value of a statue and sun-dial withheld by 
 defendant from plaintiff. Verdict and judgment for plaintiff. 
 Defendant appeals. 
 
 Parker, J. — The facts in this case are undisputed, and it is a 
 question of law whether the statue and sun-dial were real or personal 
 property. The plaintiffs claim they are personal property, having 
 purchased them as such under an execution against Thorn. The 
 defendant claims they are real property, having bought the farm on 
 which they were erected at a foreclosure sale under a mortgage, 
 executed by Thorn before the erection of the statue and sun-dial, 
 and also as mortgagee in possession of another mortgage, executed 
 by Thorn after their erection; the claim of the defendant under the 
 mortgage sale is not impaired by the fact that the property in con- 
 troversy was put on the place after the execution of the mortgage. 
 Corliss v. Van Sagin, 29 Maine R. 115 ; Winslow v. Merchants' 1 Ins. Co., 
 4 Mete. R. 306. Permanent erections and other improvements, 
 made by the mortgagor on the land mortgaged, become a part of 
 the realty and are covered by the mortgage. In deciding whether 
 the property in controversy was real or personal, it is not to be con- 
 sidered as if it were a question arising between landlord and tenant, 
 but it is governed by the rules applicable between grantor and 
 grantee. The doubt thrown upon this point by the case of Taylor 
 v. Townsend, 8 Mass. R. 411, is entirely removed by the later 
 authorities, which hold that, as to fixtures, the same rule prevails 
 between mortgagor and mortgagee as between grantor and grantee. 
 15 Mass. 159; 4 Mete. R. 306; 3 Edw. Ch. R. 246; 1 Hilliard on 
 Mortgages, 294 note /, and cases there cited; and see Bishop v. 
 Bishop, 1 Kern. 123, 126. 
 
 Governed, then, by the rule prevailing between grantor and 
 grantee, if the statue and dial were fixtures, actual or constructive, 
 they passed to the defendant as part of the realty. No case has 
 been found in either the English or American courts, deciding in 
 what cases statuary placed in a house or in grounds shall be deemed 
 real and in what cases personal property. This question must, 
 therefore, be determined upon principle. All will agree that statuary 
 exposed for sale in a workshop, or wherever it may be before it 
 shall be permanently placed, is personal property; nor will it be 
 controverted that where statuary is placed upon a building, or so 
 connected with it as to be considered part of it, it will be deemed
 
 232 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 real property, and pass with a deed of the land. But the doubt in 
 this case arises from the peculiar position and character of this 
 statue, it being placed in a court-yard before the house, on a base 
 erected on an artificial mound raised for the purpose of supporting 
 it. The statue was not fastened to the base by either clamps or 
 cement, but it rested as firmly on it by its own weight, which was 
 three or four tons, as if otherwise affixed to it. The base was of 
 masonry, the seams being pointed with cement, though the stones 
 were not laid in either cement or mortar; and the mound was an 
 artificial and permanent erection, raised some two or three feet 
 above the surrounding land, with a substantial stone foundation. 
 
 If the statue had been actually affixed to the base by cement or 
 clamps, or in any other manner, it would be conceded to be a fixture 
 and to belong to the realty. But, as it was, it could have been 
 removed without fracture to the base on which it rested. But is 
 that circumstance controlling? A building of wood, weighing even 
 less than this statue, but resting on a substantial foundation of 
 masonry, would have belonged to the realty. A thing may be as 
 firmly affixed to the land by gravitation as by clamps or cement. 
 Its character may depend much upon the object of its erection. Its 
 destination, the intention of the person making the erection, often 
 exercise a controlling influence, and its connection with the land is 
 looked at principally for the purpose of ascertaining whether that 
 intent was that the thing in question should retain its original 
 chattel character, or whether it was designed to make it a permanent 
 accession to the lands. * * * 
 
 No evidence could be received more satisfactory of the intent of 
 the proprietor to make a statue part of his realty, than the fact of 
 his having prepared a niche or erected a permanent base of masonry 
 expressly to receive it; and to remove a statue from its place, under 
 such circumstances, would produce as great an injury and do as 
 much violence to the freehold, by leaving an unseemly and 
 uncovered base, as it would have done if torn rudely from a fasten- 
 ing by which it had been connected with the land. The mound and 
 base in this case, though designed in connection with the statue as 
 an ornament to the grounds, would, when deprived of the statue, 
 become a most objectionable deformity. 
 
 There are circumstances in this case, * * * greatly strength- 
 ening the presumption of such intent. The base was made of red 
 sandstone, the same material as the statue, giving to both the statue 
 and base the appearance of being but a single block, and both were 
 also of the same material as the house. The statue was thus 
 peculiarly fitted as an ornament for the grounds in front of that
 
 V. I.] FIXTURES: ANNEXATION. 233 
 
 particular house. It was also of colossal size, and was not adapted 
 to any other destination than a permanent ornament to the realty. 
 The design and location of the statue were in every respect appro- 
 priate, in good taste, and in harmony with the surrounding objects 
 and circumstances. 
 
 I lay entirely out of view in this case the fact that Thom testified 
 that rre intended to sell the statue when an opportunity should offer. 
 His secret intention in that respect can have no legitimate bearing 
 on the question. He clearly intended to make use of the statue to 
 ornament his grounds, when he erected for it a permanent mound 
 and base; and a purchaser had a right so to infer and to be governed 
 by the manifest and unmistakable evidences of intention. It was 
 decided by the Court of Cassation in France, in Homelle v. Enregistr. 
 2 Ledru Rollin, Journal du Palais, Repertoire, etc., 214, that the 
 destination which gives to movable objects an immovable character 
 results from facts and circumstances determined by the law itself, 
 and could neither be established nor taken away by the simple 
 declarations of the proprietor, whether oral or written. There is as 
 much reason in this rule as in that of the common law, which deems 
 every person to have intended the natural consequences of his own 
 acts. 
 
 There is no good reason for calling the statue personal because it 
 was erected for ornament only, if it was clearly designed to be per- 
 manent. If Thom had erected a bower or summer-house of wicker- 
 work, and had placed it on a permanent foundation in an appropriate 
 place is front of his house, no one would doubt it belonged to the 
 realty; and I think this statue as clearly belongs to the realty as a 
 statue would placed on the house, or as one of two statues placed 
 on the gate-posts at the entrance to the grounds. 
 
 An ornamental monument in a cemetery is none the less real 
 property because it is attached by its own weight alone to the 
 foundation designed to give it perpetual support. 
 
 It is said the statues and sphinxes of colossal size which adorn the 
 avenue leading to the Temple of Karnak, at Thebes, are secured on 
 their solid foundations only by their own weight. Yet that has been 
 found sufficient to preserve many of them undisturbed for 4,000 
 years. Taylor's Africa, 11$ et seq. And if a traveler should pur- 
 chase from Mehemet Ali the land on which these interesting ruins 
 rest, it would seem quite absurd to hold that the deed did not cover 
 the statues still standing, and to claim that they were the still unad- 
 ministered personal assets of the Ptolemies, after an annexation of 
 such long duration. No legal distinction can be made between the 
 sphinxes of Thebes and the statue of Thom. Both were erected
 
 234 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 for ornament, and the latter was as colossal in size and as firmly 
 annexed to the land as the former, and by the same means. 
 
 I apprehend the question whether the pyramids of Egypt or Cleo- 
 patra's needle are real or personal property does not depend on the 
 result of an inquiry by the antiquarian whether they were originally 
 made to adhere to their foundations with wafers, or sealing-wax, or 
 a handful of cement. It seems to me puerile to make the title to 
 depend upon the use of such or of any other adhesive substances, 
 when the great weight of the erection is a much stronger guaranty 
 of permanence. 
 
 The sun-dial stands on a somewhat different footing. It was 
 made for use as well as for ornament, and could not be useful except 
 when firmly placed in the open air and in the light of the sun. 
 Though it does not appear that the stone on which it was placed 
 was made expressly for it, it was appropriately located on a solid 
 and durable foundation. There is good reason to believe it was 
 designed to be a permanent fixture, because the material of which 
 it was made was the same as that of the house and the statue, and 
 because it was in every respect adapted to the place. 
 
 My conclusion is, that the facts in the case called on the judge of 
 the circuit to decide, as a matter of law, that the property was real, 
 and to nonsuit the plaintiff; and if I am right in this conclusion, the 
 judgment of the Supreme Court should be reversed. 1 
 
 What mode or degree of annexation is conclusive against removability j 
 
 what is not. 
 
 W ARD y. KILPATRICK. 
 
 85 New York, 413. — 1SS1. 
 
 Finch, J. — There is one serious question in this case, and a great 
 many which may be disposed of without difficulty. As to the latter 
 a very brief statement of our conclusions must suffice. 
 
 The action was to foreclose a mechanic's lien under the act of 
 1875 (chap. 379), applicable to the city of New York. The defend- 
 ant was the owner of eight houses in process of construction, and 
 had contracted with plaintiff for mirror frames to be set in the parlor 
 and hall of each house; those in the halls to be arranged to serve 
 the purpose of hat-racks and umbrella-stands. The work having 
 been completed as plaintiff claimed, he presented his bill, and pay- 
 
 1 The part> of the opinion omitted contain a discussion of the legal character 
 of statuary in the Roman Law.— Ki>.
 
 V. i.] FIXTURES: ANNEXATION. 235 
 
 ment being refused filed, the mechanic's lien, which is now sought to 
 be foreclosed. * * * 
 
 Some other minor objections were taken in the case, not important 
 to be considered, and it now becomes necessary to determine the 
 principal question, whether the articles furnished became so attached 
 to the buildings in progress of construction as to justify a lien under 
 
 the act of 1S75. The language of its first section is " every person 
 performing labor upon, or furnishing materials to be used in the con- 
 struction, alteration, or repair of any building, etc., shall have a lien 
 upon the same." Labor upon the building, materials used in its 
 construction are the test'of the lienor's rights. In other words, the 
 work and the materials both in fact and in intention must have 
 become part and parcel of the building itself. The inquiry 
 approaches so nearly the doctrine of fixtures as to make the 
 decisions in that respect authoritative, and the necessary guides to 
 our conclusion. If, as between vendor and vendee, the mirror< 
 frames in question would have passed by a deed of the real estateJ 
 without special enumeration or description, it will follow that they) 
 formed part of the house, and were elements in its construction, and\ 
 so furnished a basis for the lien claimed. The general subject was, 
 much discussed in this court in McRea v. Central Nat. Bank of Troy, 
 66 N. Y. 489. The results arrived at were as precise and definite as 
 the nature of the subject would permit, and must form the basis of 
 our judgment. The question arose between mortgagor and mort-i 
 gagee, and three requisites were named as the tests of a fixture. 
 These were, first, actual annexation to the realty or something - 
 appurtenant thereto; second, application to the use or purpose to 
 which that part of the realty to which it is connected is appropri- 
 ated ; and, third, the intention of the party making the annexation to 
 make a permanent accession to the freehold. 
 
 The mirror frames in the present case were actually annexed to 
 the realty. They were so annexed during the process of building, 
 and as part of that process. They were not brought as furniture 
 into the completed house, but themselves formed part of such com- 
 pletion. Those in the hall filled up and occupied a gap left in the 
 wainscoting. They were an essential part of the inner surface of 
 the hall, and of a material and construction to correspond with and 
 properly form part of such inner surface. Those in the parlor fitted 
 into a gap purposely left in the base-board. Both those in the hall 
 and those in the parlor were fastened to the walls with hooks and 
 screws. They could be removed, but their removal would leave 
 unfinished walls and require work upon the house to supply and repair 
 their absence. 
 
 
 ^>^<~\^Si^ \JI^\<^JW^N^^^j^^^
 
 230 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 They were fitted to the use and purpose for which the part of the 
 building they occupied was designed. They formed part of the inner 
 wall. Their construction and finish was made to correspond with 
 the cabinet work of the rooms. In each house they faced each other 
 and formed the most prominent feature of the internal orna- 
 mentation. 
 
 They were intended by the owner to be permanently attached to 
 the buildings and to go with them when sold as essential parts of 
 the construction. Three of the houses were in fact thus sold. The 
 owner testified as to these frames, that he regarded them as " the 
 most attractive portion of the house; " that he stated to the agent 
 of the maker, that it was very important to have a few of the frames 
 in immediately " so that a party who would be desirous of purchas- 
 ing the house could see these mirrors and hat-racks; " that the 
 agreement with Mr. Evers was that he should go on immediately 
 and put in the frames in two or three of the houses " so as to be able 
 to show what the houses would be, without delay; " that the kind 
 of work he called this particular work that was to be done, was 
 ' cabinet carpentering; " that on one or more occasions he com- 
 plained of the work not having been done, adding " and that I could 
 not get my houses ready for market; " and that he was very strenu- 
 ous about having the frames put up " because he wished to show 
 the houses to some parties." These facts indicate very plainly the 
 purpose and intention of the owner to permanently attach the 
 frames to the building and make them a part of the structure. It 
 follows that they became parcel of the realty, and as between vendor 
 and vendee would have passed by deed. The recent case of 
 McKeage v. Hanover Fire Insurance Co., 81 N. Y. 38, does not con- 
 flict with this conclusion. In that case the proof showed that the 
 mirrors " were not set into the walls; " were put up after the house 
 had been built; were capable of being easily detached without inter- 
 fering with or injuring the walls; and were as much mere furniture 
 as pictures hung in the usual way. The difference between the cases 
 is obvious. 
 
 We are of opinion, therefore, that the work done by the lienor was 
 work upon the house, and the materials furnished were used in its 
 construction. The objection that no lien attached cannot be 
 sustained. 
 
 We find in the numerous exceptions no sufficient ground for 
 reversal, and the judgment should be affirmed, with costs. 
 
 Judgment affirmed.
 
 v. i.] fixtures: annexation. 237 
 
 O'BRIEN v. KUSTERER. 
 
 27 Michigan, 289. — 1873. 
 
 Graves, J. — On the 13th of August, 1868, the complainants in 
 the original bill, O'Brien and Calkins, leased to the defendant 
 Kusterer and one Werner, for three years from the 15th of the suc- 
 ceeding September, the east basement of Phcenix hall in Grand 
 Rapids, for an eating house or saloon, at a yearly rent of six hundied 
 dollars, payable quarterly. The lessors, at considerable expense, 
 fitted up the property with a bar and other conveniences to adapt it 
 to the business to be carried on by the lessees. Some time in the fall 
 the lessees entered under the lease. In some little time afterwards 
 one Schoeding became associated with Werner, and the room was 
 extensively altered and fitted up by the tenants with bowling-alleys, 
 which were put down and connected with the floor and sleepers in a 
 very substantial manner. The changes were numerous and thorough, 
 and the character of the establishment was completely altered. In 
 the course of a few months the defendant Kusterer united in himself 
 the whole leasehold interest, by purchase or otherwise, and on the 
 24th of May, 1870, assigned to the defendant Conkey, and took back 
 a chattel mortgage to secure three hundred and fifty dollars of the 
 purchase price. In this transaction Kusterer assumed to sell and 
 take back a mortgage upon the alleys and other fittings, and they 
 were described in the mortgage as " all and singular the bar, bar 
 fixtures, ice box, four bowling-alleys, with the balls and pins apper- 
 taining thereto, with all the chairs and tables therein, one chandelier 
 over the bar, two street lamps and signs, with all keys, faucets, stock 
 on hand, and all fixtures and furniture, all in the Court Place saloon, 
 so called, in the basement of the Phcenix block, so called, on the 
 north side of Lyon street, in said city of Grand Rapids, being the 
 same property this day sold by said Kusterer to said Conkey, and 
 this mortgage being given for a part of the purchase price thereof." 
 
 About June 1st, 1870. Conkey sold the same property to James 
 Irons, the complainant in the cross-bill, for the consideration of 
 one thousand and fifty dollars, and Irons assumed, as part of the 
 consideration, the payment of the chattel mortgage given by Conkey 
 to Kusterer. At this time Kusterer assured Irons that the property 
 was "all right," and that he would "stand between him (Irons) and 
 all harm." A controversy had previously arisen between the com- 
 plainants in the original bill, O'Brien and Calkins, and Kusterer, as 
 to the ownership of the alleys and some other things in the estab- 
 lishment.
 
 238 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 O'Brien and Calkins claimed that the bar, bar fixtures, cupboard, 
 bowling-alley ways and racks, were permanent fixtures and belonged 
 to them as owners of the reversion, and the defendant Kusterer 
 insisted that they were removable articles and subject to and held by 
 his mortgage from Conkey. The mortgage becoming due, and Irons 
 declining to pay it while the title to the property was thus in dis- 
 pute, Kusterer threatened to enforce his mortgage lien and remove 
 the property from the premises. O'Brien and Calkins thereupon 
 filed the original bill to prevent any interference with, or removal 
 of, the property claimed by Kusterer, and to restrain the alleged 
 injury and waste which a removal would be likely to produce. Irons 
 then filed the cross-bill to protect his interests as they should be 
 affected by results. 
 
 The Circuit Court, in passing upon the case of the original bill, 
 decreed that the bar, bar fixtures, cupboard, bowling-alley ways and 
 racks were fixtures attached to the building, and owned by com- 
 plainants, and awarded a perpetual injunction; and in passing upon 
 the cross-cause adjudged that the defendant Kusterer should pay to 
 Irons nine hundred dollars, with interest thereon from June 24th, 
 1870, in the place of the fixtures. 
 
 But two questions were made on the hearing in this court. The 
 first being whether the things in question were so annexed to the 
 freehold as to belong to it. This question is decisively answered in 
 the affirmative by the evidence, and it would be a waste of time to 
 repeat it. 
 
 The second question is whether Calkins' conduct was such as to 
 estop himself and O'Brien from claiming, against the mortgage 
 right of Kusterer, that the property was permanently and immovably 
 attached, and I think upon a fair estimate of the evidence this ques- 
 tion should be answered in the negative. 
 
 Kusterer was a tenant holding of Calkins and O'Brien when the 
 annexations were made, and they are to be considered as made by 
 his direction and authority, or at all events, with his sanction; and 
 by itself, his sale of the things so annexed, as personalty, and the 
 taking a chattel mortgage back upon them, could not invest him 
 with any new right as against his landlord. Such a transaction, 
 Standing alone, could not affect the right of the landlord derived 
 from the annexation. It might tend more or less to show that the 
 tenant 'lid not consider the fixtures immovable. But the landlord 
 would nol In- concluded, unless shown in some satisfactory way to 
 have assented to their being dealt with by the tenant as personalty, 
 or things removable. 
 
 The fixtures now in question were made a part of the realty, so
 
 V. i.] FIXTURES : ANNEXATION. 239 
 
 far as mechanical annexation could make them so, before Kusterer 
 sold to Conkey and got the mortgage back; and the evidence does 
 not show that when that annexation occurred, it was one which left 
 the tenant at liberty to sever and remove what was annexed. When 
 this transaction with Conkey occurred, Kusterer had no title, as 
 against O'Brien and Calkins, to these things as personalty, and he 
 gained none by the mortgage from Conkey, unless O'Brien and 
 Calkins in some way waived or relinquished their right derived from 
 the annexation, or precluded themselves from asserting it against 
 him, and this, I think the evidence, when fairly considered, shows 
 they did not do. 
 
 The decree below should be affirmed, with costs. 
 
 CROSS v. MARSTON. 
 17 Vermont, 533. — 1845. 
 
 Hebard, J. — There is no question made by either side but that 
 the articles in controversy in this suit, at the time the plaintiff 
 became possessed of them, were personal property; but it is insisted 
 that they became attached to the building, and passed by the deed 
 from Day to the defendant on the 22d of April, 1843. The plaintiff 
 purchased the articles in question in 1836, while he and Day had a 
 mortgage upon the building, in which they then were, and took the 
 case of drawers from the building and carried them to his store. In 
 1838, Day, who had then acquired the whole title to the building, 
 carried the case of drawers back to the building and leased the build- 
 ing for a book store; and at this time the case of drawers was put in 
 its original place and nailed to the wall, — but in such manner that 
 it might be taken away without injury to the case of drawers, or to 
 the building; and in this situation it remained until 1843, when Day 
 deeded the premises to the defendant; — and it appears, also, from 
 the case, that the plaintiff was not ignorant of the disposition and 
 use of the case of drawers. 
 
 The case was disposed of by the County Court, by their informing 
 the parties, that they should instruct the jury, that these articles 
 were so far fixed to the freehold, that they would pass by Day's deed 
 to the defendant; and that, if the plaintiff knew of Day's putting 
 them into the shop, in the situation described, as early as 1838, and 
 acquiesced in their remaining there until after the sale, he would 
 stand in no better situation, in regard to the property, than Day 
 would, had he owned it; and that the jury might infer the acqui- 
 escence of the plaintiff, in the use to which Day put the articles, from
 
 240 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CI1. II. 
 
 his long silence, — he knowing of that use. The argument of the 
 case has proceeded mainly with reference to the fact, whether this 
 property, by the use to which it had been put, had become a fixture. 
 
 This question about fixtures most frequently arises between land- 
 lord and tenant. As between grantor and grantee, it is more proper 
 to inquire whether the thing was so attached to the freehold, that it 
 will pass by the deed; and such is the case in numerous instances, 
 when the same thing might have been taken away by the tenant. 
 And in all these cases, the party fixing the chattel to the freehold, 
 was, at the time, the owner of it. Such was not the fact in this 
 case. The thing was originally a chattel, and the plaintiff was the 
 owner; and there is no proof that he ever parted with his title to it, 
 except by the act of Day, and his own acquiescence in that act. 
 And the inquiry here is, whether that can change the ownership of 
 the property, while the property itself preserves its identity. 
 
 It is a principle of law, in relation to this subject, that the owner 
 may pursue his property, wherever he can trace it. But when the 
 property has lost its identity, it ceases to have its legal existence; — 
 as, if one man should convert a quantity of bricks and erect them 
 into a house, and then deed the house to a third person, these bricks 
 will have lost their identity, — they are so changed in their character 
 that they cease to be chattels, and the owner cannot pursue them 
 against such third person. But in this case I apprehend there was 
 no such change of the property, as would give it a different character. 
 The nailing it to the building did not incorporate it into and make 
 it a part of the building. It was merely a part of the furniture of 
 the building, and, as the case finds, capable of being taken away 
 without injury to the property, or to the house. No one would 
 doubt, probably, but what the outgoing tenant would have the right 
 to take property similarly situated. 
 
 That, as between Day and the defendant, this property would 
 have passed by the sale, providing Day had owned it, cannot be 
 decisive of the question; for if so, it would apply to all sales, — as 
 when B. sells the horse of A. to C, as between B. and C. the title 
 to the horse passes; but A., being the owner, may pursue the horse, 
 notwithstanding the sale. The main question, in relation to this 
 part of the case, is, whether the property has lost its identity; if it 
 has, the plaintiff cannot pursue it; if it has not, he may pursue it 
 into whatever hands it may have chanced to come. 
 
 The defendant relies somewhat upon the case of Goddard v. 
 Holster, (> Greenl. 427. But, in relation to that case, whatever there 
 may he peculiar to it, the ground upon which it was put does not 
 conflict with tin- plaintiff's claim in this case. That decision goes
 
 V. i] FIXTURES: ANNEXATION. 241 
 
 upon the ground that the plaintiff's brother, in the erection of the 
 mill, and the putting in the mill stones and mill irons, acted but as 
 the agent of the plaintiff; and, as the mill was on the plaintiff's land, 
 and erected by the plaintiff's agent, which was the same as if erected 
 by the plaintiff himself, the mill and all its attachments were the prop- 
 erty of the plaintiff. No such consideration is involved in the 
 case now before us. The plaintiff did not put the drawers into the 
 building himself, nor was Day his agent in doing it. The plaintiff 
 had no interest in the building, nor in the land upon which it stood 
 This case, then, loses all its analogy to the case cited. Miller v 
 Plit /nb, 6 Cow. 665, presents only the same question, that would arise 
 if Day claimed this property and had sued the defendant for it 
 Cohgrave v. Dias Santos, 9 E. C. L. 30, is to the same effect; the 
 question was, whether the vendor could recover of the vendee for 
 fixtures, after having given up the possession. Long staff ' v . Meagoe, 
 29 E. C. L. 60, was decided upon the authority of the case of Cole- 
 grave v. Dias Santos. 
 
 The conclusion, therefore, to which we come, is, that this property 
 was not so attached to the freehold, as to change its character, or 
 lose its legal existence. It once being the property of the plaintiff, 
 it will continue to be his, until he has parted with his interest in it 
 by his own consent, or by the operation of some law. And that 
 presents the inquiry in relation to the other part of the charge of 
 the court. The jury were to infer an acquiescence on the part of 
 the plaintiff in the disposition which Day made of the property, 
 from his long silence. 
 
 If Cross had stood by and seen Day sell the property, without 
 remonstrating, he would be estopped from claiming it of the pur- 
 chaser; but I do not suppose that anything is to be inferred, in a 
 legal point of view, unfavorable to his claim, simply because he has 
 delayed to assert his claim, unless barred by the statute. As the 
 claim is not barred by the statute, and as the case does not find that 
 the plaintiff ever stood by and saw Day attempt to pass over the 
 property, without objecting, we do not see how he has, either by his 
 own consent, or by the operation of law, parted with his interest in 
 the property, or forfeited his right to pursue and claim his property 
 wherever he can find it. 
 
 Indeed, the question of acquiescence, it seems to me, has nothing 
 to do with the case. If Day could transfer a title in the property 
 to the defendant, it was because it had ceased to be a chattel inter- 
 est; if that was the condition of the property, it was the attaching 
 the property to the building, that wrought the metamorphosis; 
 therefore the property became changed, and the plaintiff lost his 
 
 LAW OF PROP. IN LAND — l6
 
 242 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 interest in it the moment the nail was driven, if he ever lost it. 
 But we have already said that this was not such a use of the property 
 as was inconsistent with the nature and character of the property 
 itself, or with the plaintiff's claim and title to it. 
 
 Judgment reversed. 
 
 MURDOCK v. GIFFORD. 
 
 iS New York, 28. — 1858. 
 
 Johnson, Ch. J. — The question in this case is, whether the 
 twenty-five broad looms levied upon under the executions of the 
 defendants, Gifford, Sherman, and Innis, were personal property; 
 or whether, as being part of the realty, they were bound by the lien 
 of the mortgage which the plaintiffs are seeking to foreclose. The 
 mortgage was of " all that estate and real property, known as the 
 Owasco Woolen Factory, situate on the Owasco outlet, in the city of 
 Auburn, county of Cayuga and State of New York, the same being 
 the plot of ground, buildings and water privileges lately owned by 
 the Auburn Woolen Company, and the same being all the property 
 recently conveyed by the trustees of said company, by deed to 
 Harris & Waterman; and it is intended that the whole property con- 
 veyed by said deed, and every part thereof, is included in and 
 covered by this deed, with all the machinery and the fixtures of all 
 kinds whatever now in the mills lately belonging to said woolen com- 
 pany, together with all and singular the tenements, hereditaments and 
 appurtenances," etc. Conceding that the looms now in question 
 were intended to pass and did pass by the terms of the mortgage, 
 the question is, whether they passed as part of the real estate. For 
 if they did not pass as realty, then it was necessary, as there was no 
 actual change of possession, that the mortgage should be filed as a 
 chattel mortgage, which was not done. The question for this pur- 
 pose is, therefore, the same as would have been presented if the 
 mortgage had described, by metes and bounds, and had conveyed, 
 in terms, the land on which the factory was situated, without speci- 
 fying the building, machinery and fixtures. For, although the intent 
 of parties is to govern as to the subject on which a conveyance is to 
 operate, it is beyond their power to make a conveyance operative 
 without a compliance on their part with the rules of law in respect 
 to the mode of conveyance appropriate to the kind of property 
 sought to be conveyed. As they could not, by writing without seal, 
 pass the title of land, though their written agreement termed it per- 
 sonalty and declared it should pass, so they cannot, by an instrument
 
 V. i.] FIXTURES: ANNEXATION. 243 
 
 and by ceremonies appropriate to pass land, transfer chattels in 
 mortgage, as against creditors of the mortgagors, without either an 
 actual change of possession, or filing the instrument as a chattel 
 mortgage. 
 
 The question then is, were these looms realty as between mort- 
 gagor and mortgagee? Between these parties and between grantor 
 and grantee, the effort of a court is always to ascertain the intent 
 of the parties, and to give it effect. If their language affords evi- 
 dence that a chattel is intended to pass, it will pass, of course, 
 whether it be a mere chattel or one which by annexation has become 
 part of the realty. But where no specific intention is collectible, or 
 where the conveyance is of land by metes and bounds, and on the 
 land a building stands in which is the thing in controversy, there it 
 will pass or not, according as the thing is or is not, in law, part of 
 the realty. In such a case, the only specific intention is, that the 
 realty shall pass, and the inquiry to which a court in such a case 
 addresses itself is, does the law regard the thing in question as per- 
 taining to the realty? It is obvious that this question presents itself 
 in the neatest way, completely unembarrassed by any collateral con- 
 sideration, upon the death of the general owner in fee of the land. 
 The chief distinction between the different species of property, is in 
 the course of devolution on the general owner's death. Realty 
 goes to the heir, personalty to executor or other personal repre- 
 sentative. Accordingly, the cases of heir and executor, and of 
 vendor and vendee, in the absence of evidence of specific intention, 
 have always been deemed identical in respect to their right in a 
 chattel claimed to be a part of the realty. It was so held in 21 Hen. 
 7th, 26, and it has continuously since been so held. Holmes v. 
 Tremper, 20 Johns. 30; Miller v. Plumb, 6 Cow. 668; Farrar v. 
 Chaufetete, 5 Denio, 527. And whenever it has become necessary 
 to consider such a question between vendor and vendee, resort has 
 been had for its solution to the case of heir and executor, where 
 the same question was presented, unembarrassed by evidence 
 of any particular intention; a kind of evidence from which a 
 deed from grantor to grantee would rarely be free. A stat- 
 ute, therefore, determining the course of devolution of prop- 
 erty on the death of the general owner, if it is not conclusive to fix 
 the character of property for all purposes, is at least very strong 
 evidence in respect to its legal character. When the statute gives 
 a particular species of property to the executor, and gives lands, 
 tenements and hereditaments to the heir, it should be regarded at 
 least as furnishing very clear proof, that in the legislative mind that 
 kind of property is considered as not being in any sense included in
 
 244 CONSTITUENTS AND INCIDENTS OF LAND. [I'T. II. CH. II. 
 
 lands, tenements or hereditaments. The Revised Statutes (2 R. S. 
 83, sec. 7) declare that things annexed to the freehold, or to any 
 building, shall not go to the executor, but shall descend with the 
 freehold to the heirs or devisees, except such fixtures as are men- 
 tioned in the fourth subdivision of the sixth section, and that subdi- 
 vision declares that " things annexed to the freehold or to any build- 
 ing, for the purpose of trade or manufacture, and not fixed into the 
 wall of a house, so as to be essential to its support," shall be deemed 
 assets, and shall go to the executors or administrators. 
 
 The looms in question were merely placed on one of the floors of 
 the factory, and were fastened to the floor by means of ten screws 
 in each loom, as the case states, " merely for the purpose of keeping 
 the said looms in their places and in a steady position, and not 
 otherwise, during the operation and working of the said looms " 
 They were worked by a band carried by the fixed machinery. Any 
 one of them could be separately disconnected with the motive power, 
 and they could be easily and conveniently removed without injury 
 to themselves or to the building. 
 
 In House v. House, 10 Paige, 158, the chancellor had occasion to 
 consider the statutory provisions which have been cited, and he 
 observes that it was impossible, in a sentence of three lines, to define 
 what was to be considered as part of the freehold itself, and what 
 mere fixtures or things annexed to the freehold for the purposes of 
 trade or manufacture; and that it was, therefore, still necessary to 
 resort to the principles of the common law and to the decisions of the 
 courts, in order to ascertain what is a substantial part of the freehold 
 and what is a thing annexed thereto for the purpose of trade or 
 manufacture. These observations are certainly just; for it is quite 
 obvious that the statute does not mean that the executor shall take 
 everything not essential to the support of the walls of a building, 
 but that only such things are spoken of as are not a constituent 
 part of the freehold, or of the artificial structure erected on the land. 
 
 The case Lawton v. Salmon, decided by Lord Mansfield, and 
 reported in a note to Fitzherbert v. Shaw, 1 H. Bl. 25S, furnishes a 
 criterion by which the character of chattels annexed to the freehold 
 may be determined. That was a case of salt-pans, made of ham- 
 mered iron and riveted together, which were brought into the salt- 
 house in pieces and might be removed in pieces. Davenport, for 
 the defendant, argued that if the salt-pans were removed, the house 
 would go useless to the heir and the executor gain nothing but old 
 iron. Lord Mansfield says: ' The salt spring is a valuable inheri- 
 tani e, but no profit arises from it unless there is a salt-work, which 
 ists of a building, etc., for the purpose of containing the pans,
 
 V. i.] FIXTURES: ANNEXATION. 245 
 
 etc., which are fixed to the ground. The inheritance cannot be 
 enjoyed without them. They are accessories necessary to the 
 enjoyment and use of the principal. The owner erected them for 
 the benefit of the inheritance, he could never mean to give them to 
 the executor, and put h ; m to the expense of taking them away with- 
 out any advantage to him, who could only have the old material, or 
 a contribution from the heir in lieu of them." The ground of the 
 decision was, that the pans had a specific relation to the inheritance. 
 They were adapted to use in connection with the inheritance, and, 
 by removal, would lose all the value which that adaptation gave 
 them, and become merely old iron. It was this on which the case 
 turned. The specific form which the iron had received, fitted the 
 pans for use with and made them valuable in relation to, the inheri- 
 tance, and not valuable as property unconnected with the inheritance. 
 Applying this principle to the case of a factory, the wheel or engine 
 which furnishes the motive power, and all that part of the gear- 
 ing and machinery which has special relation to the building with 
 which it is connected, would belong to the freehold; while an inde- 
 pendent machine like a loom, which, if removed, still remains a loom, 
 and can be used as such wherever it is wanted and power can be 
 applied to it, will still retain its character of personalty. With the 
 rule as thus stated, many of the cases coincide, and those, too, 
 which have been carefully examined. Powell v. Monson Co., 3 
 Mason, 459; Gale v. Ward, 14 Mass. 352; Cresson v. Stout, 17 John. 
 117; Swift v. Thompson, 9 Conn. 63; Teaff v. Hewitt, 1 McCook, 
 511; Vanderpoel v. Van Allen, 10 Barb. 157. It is true that, upon 
 this subject, all the cases cannot be reconciled, and that perhaps no 
 rule can be laid dov\n, in abstract terms, which will furnish a clear 
 guide in every case. But in respect to the species of property, the 
 rule we act upon in this case is not difficult of application, and it 
 will, we think, generally coincide with the actual intention of per- 
 sons erecting and owning such property. 
 
 McKEAGE v. HANOVER FIRE INSURANCE CO. 
 
 81 New York, 38. — 1880. 
 
 Rapallo, J. — The mirrors and gas fixtures in controversy were 
 placed in the house in 1870 by Mr. Curtis, who was then owner 
 thereof. We concur with the court below in its conclusion that 
 they were not so attached to the building as to form part of the 
 realty. Gas pipes which run through the walls and under the floors
 
 246 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 of a house, are permanent parts of the building, but the fixtures 
 attached to these pipes are not. They are not permanently annexed 
 but simply screwed on projections of the pipes from the walls, left 
 for that purpose, and can be detached by simply unscrewing them. 
 It was shown that the fixtures in question were simply put on in the 
 usual way. The mirrors were not set into the walls, but were put 
 up after the house had been built, being supported in their places 
 by hooks or supports, some of which were fastened with screws to 
 the wood work and others driven into the walls, and were capable 
 of being easily detached from these supports without interfering 
 with or injuring the walls. All these articles were, in their nature, 
 mere furniture, and, therefore, chattels, and not appurtenances to 
 the building. Winslow v. Merchants' Ins. Co., 4 Met. 311; Vaughen 
 v. Haldeman, $$ Penn. 523; Rogers v. Crow, 40 Miss. 91; Montague 
 v. Dent, 10 Rich. L. R. (So. Car.), 135; Shaw v. Lenke, 1 Daly, 
 487; Lawrence x. Kemp, 1 Duer, 363; Beck v. Rebow, 1 P. Wms. 94. 
 In respect to such articles, the mere declaration of the owner that 
 he intends that they shall go with the house does not make them 
 realty. They no more constitute part of the realty than would 
 pictures supported by fastenings driven into the wall. Assuming 
 that such fastenings or support become part of the building, it does 
 not follow that the mirrors or pictures which they support acquire the 
 same character. 
 
 On the sale of the house by Curtis to Nelson, the gas fixtures and 
 mirrors were specially bargained for and purchased by Nelson, with 
 the house. They were not mentioned in the deed, nor was any bill 
 of sale of them given, but these were not necessary, for the title to 
 the chattels passed to the purchaser by delivery. 
 
 Nelson, after this purchase, executed the mortgage to the defend- 
 ant, under the foreclosure of which it claims these chattels. He 
 testified that they were in the house when he mortgaged it, and that 
 when he applied for the loan he represented to the defendant that 
 they were to go with the house; that the house included mirrors, gas 
 fixtures and so forth. No mention of them was, however, made in 
 the mortgage, nor was any separate mortgage of them given. 
 
 Nelson afterward sold and conveyed the house and lot to one 
 Shrope who afterward conveyed to Cornelius C. Westervelt. These 
 conveyances stated that the premises conveyed were subject to the 
 mortgage to the defendant, but made no mention of the gas fixtures 
 and mirrors. 
 
 The plaintiff's tit le to them is founded upon a hill of sale executed 
 by Westervelt to William McKeage, dated the nth of December, 
 1874, and delivered in the same month, purporting to have been
 
 V. i.] FIXTURES: ANNEXATION. 247 
 
 made in consideration of $1,500. Westervelt's title to the fixtures 
 does not appear, except from the statement in defendant's answer, 
 that they passed, by the deeds, from Nelson to Shrope and from 
 Shrope to Westervelt. Whether there was, or was not, any further 
 transfer, written or verbal, was not shown on the trial. They may 
 have passed in the same way that they did from Curtis to Nelson. 
 It was shown, however, that Westervelt was in possession of them 
 at the time of the execution by him of the bill of sale to William 
 McKeage, and that he delivered possession of them to McKeage, to 
 whom he had contracted to sell the house, together with the gas 
 fixtures and mirrors. This was sufficient prima facia evidence of 
 Westervelt's title, which was not disputed. 
 
 Before the foreclosure sale McKeage paid a large part of the pur- 
 chase-money payable under his contract with Westervelt, by convey- 
 ing to him certain real estate in New Jersey, which was, by the con- 
 tract, to be taken as a payment of $23,000 of such purchase-money. 
 
 The sale, under the foreclosure of the defendant's mortgage took 
 place in April, 1875. The defendant became the purchaser and 
 received a deed from the referee; this deed contained no mention 
 of the articles in controversy. The defendant, however, cla'med 
 that they passed by this deed as part of the realty, and prevented 
 McKeage from removing them. 
 
 The claim that they became part of the realty by annexation can- 
 not be sustained, for the reasons before stated, but the defendant 
 contends that by reason of the verbal representations and state- 
 ments made by Nelson, when negotiating for the loan, they should 
 be deemed part of the realty and covered by the mortgage. These 
 statements could not change the character of the property, and even 
 if some equity, as between Nelson and the defendant, could be 
 claimed by reason of these representations, subsequent purchasers 
 for value, having no notice of them, could not be affected thereby. 
 It does not appear, nor is it alleged, that before the foreclosure sale, 
 either Shrope, Westervelt, or McKeage had any such notice, and it 
 does appear that Wm. McKeage, before defendant claimed the arti- 
 cles, paid a large part of the purchase money payable under his con- 
 tract with Westervelt, which contract embraced the chattels in 
 question. There was no legal mortgage of them, and the purchaser 
 from Westervelt, without notice was not affected by a merely 
 equitable lien of the mortgagee, if any such existed. Nor was any 
 such lien asserted or enforced in the foreclosure suit. We do not, 
 however, intend to decide that such a lien did exist. 
 
 It is further claimed that Wm. McKeage, having been present at 
 the foreclosure sale, and having failed to give any notice of his claim
 
 248 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CII. II. 
 
 of title to the chattels, his silence estops him from asserting it 
 against the purchaser. It is sufficient to say on this point, that the 
 property exposed for sale was the house and lot only, and there was 
 no announcement that the chattels in question were to be included 
 in the sale. There was no occasion, therefore, for any protest or 
 other proceedings on the part of McKeage. 
 
 The plaintiff claims by assignment from Wm. McKeage executed 
 after the cause of action for a conversion of the property by the 
 defendant had accrued. This assignment transferred McKeage's 
 title to the property as well as the cause of action. The considera- 
 tion for it was not a material subject of inquiry so long as it was 
 valid between the parties, and a recovery by the plaintiff would pro- 
 tect the defendant against any claim by Wm. McKeage. 
 
 The judgment should be affirmed. 
 
 Judgment affirmed. 1 
 
 HOYLE v. PLATTSBURGH AND MONTREAL RAIL- 
 ROAD CO. 
 
 54 New York, 314. — 1873. 
 
 Suit to foreclose two mortgages given by the Plattsburgh and 
 Montreal R. R. Co. upon its railway, corporate and other franchises 
 and equipments. The instruments were duly recorded as real estate 
 mortgages but were not filed under the chattel mortgage act of 1833. 
 The defendant Vilas answers, claiming to be the owner of the roll- 
 ing-stock of the road under execution sales made since the giving of 
 the mortgages. 
 
 A reference was ordered to determine whether or not the rolling- 
 stock was subject to the lien of the mortgages. The referee held 
 that, though the mortgages covered the property in question, they 
 were void as to that property, as against subsequent judgment 
 creditors because not filed as chattel mortgages. Plaintiff excepted 
 and the exceptions were allowed by the Special Term, which decision 
 the General Term upheld. Defendant now appeals to this court. 
 
 Johnson, C. — The first question necessarily to be decided in this 
 case is, whether the rolling stock of a railroad is personal property, 
 or whether it is to be deemed constructively annexed to the road 
 upon which it runs, so as in law to be regarded as part of the realty. 
 If it If determined that rolling-stock retains its character of persona] 
 property, then the question arises whether a mortgage of a railroad 
 
 1 Sec also McRae v. Bank, j>. 271, infra.
 
 V. i.] FIXTURES: ANNEXATION. 249 
 
 and its equipment needs to be filed under the statute of 1833, requir- 
 ing mortgages of personal property to be filed when the possession 
 of the property is not immediately delivered to the mortgagee. Laws 
 of 1833, chap. 279, p. 402. The questions thus presented are not 
 authoritatively determined in this State. The opinion of the Supreme 
 Court has been given in four reported cases. The earliest was that 
 of The Farmers' 1 Loan and Trust Co. v. Hendrickson, 25 Barb. 484, in 
 which the judgment rendered in October, 1857, by Justices S. B. 
 Strong, Birdseye and Davies, declared that as between mortgagees 
 and judgment creditors the rolling-stock was to be deemed fixtures, 
 and consequently that such a mortgage did not need to be filed under 
 the act of 1833. In this case the mortgage specified engines, tenders, 
 cars, etc., as part of the property mortgaged, and the rights of the 
 plaintiffs might have been sustained by holding either that the 
 chattel mortgage law did not apply to railroad mortgages, or that 
 engines and cars were fixtures. The court rejected the former 
 ground and placed the decision on the position that the rolling-stock 
 was part of the realty. 
 
 In Stevens v. The Buffalo & AT V. C. R. R., 31 Barb. 590, decided 
 in September, 1858, Justices Green, Grover and Marvin held that 
 rolling-stock was personalty, and that a mortgage thereof was 
 required to be filed under the act of 1833. Elaborate opinions were 
 written in support of these conclusions, in which the Hendrickson 
 Case, before cited, and that of Coe v. Hart, in the United States 
 Circuit Court, before Mr. Justice McLean, that of Corey v. The Pitts- 
 burgh 6° F. W. R. Co., and Mitchell v. Winslow, 2 Story, 690, were 
 examined with the result before mentioned. 
 
 In December, 1859, Mr. Justice Allen decided Beardsley v. Ontario 
 Bank, 31 Barb. 619. The mortgage was of the railroad, real estate, 
 chattels and franchises of the corporation. It was held that the 
 rolling-stock was not covered by the mortgage, not being part of 
 the realty. The last two decisions were acquiesced in; the first, 
 the case of Hendrickson, was taken to the Court of Appeals in 1863, 
 and resulted in an order for reargument, and subsequently the case 
 was settled. The case now under consideration is reported in 47 
 Barb. 109, before Justice Sutherland, at Special Term in 1867. He 
 held that rolling-stock does not become part of the realty, and that 
 it passed by the two mortgages in question, as specially named, and 
 not as part of the realty. • He also held that mortgages of the cor- 
 porate property and franchises of railroads should not, as to the 
 personal property covered by them, be deemed to be subject to the 
 provisions of the chattel mortgage act of 1833. At General Term 
 the case came before Justice Ingraham, Sutherland and G. G. Bar-
 
 250 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 nard, and the decision appealed from was affirmed, Judge Ingraham 
 giving the only opinion. After declaring himself not prepared to 
 accede to the opinion at Special Term, that rolling-stock is in all 
 cases to be considered as personal property, he holds that the intent 
 of the parties is evident that the rolling-stock should pass as part 
 of the realty, and that such a construction should be given to the 
 transaction. He further holds that the chattel mortgage act does 
 not apply to a mortgage executed by a railroad company under 
 authority of section 28 of the general railroad act of 1850. That 
 section warrants a mortgage of the corporate property and fran- 
 chises of a railroad company to raise moneys for completing, finish- 
 ing or operating its road. Such a mortgage was intended by the 
 Legislature, the learned judge says, to be treated as a mortgage of 
 the road and its accessories, and, therefore, need not be filed as a 
 chattel mortgage. While upon each proposition involved, a majority 
 of judges appear to have been against the claim that rolling-stock 
 may be effectually mortgaged without filing, under the act of 1833, 
 the question still remains open for decision. 
 
 In respect to the legal methods of disposition, all property is dis- 
 tributed by law under the head either of real or personal ; and in order 
 effectually to be disposed of, the act of disposition must conform to 
 the mode appropriate to the kind of property. What method shall 
 be sufficient to transfer property is matter of positive regulation by 
 law; and it is not in the power of parties to waive or alter, by their 
 private agreement, any of these regulations. These regulations 
 have been adopted with regard not only to the interests of the parties 
 immediately concerned, but also with regard to the interest of others 
 in ascertaining the ownership of property. In regard to realty, a 
 conveyance by metes and bounds of a parcel of land carries with it 
 everything which the law recognizes as part of the realty, whether 
 it was originally personal in its nature or not, as fully and com- 
 pletely as by the most minute enumeration and specification. It 
 draws to itself and binds everything afterward made part of the land 
 by any method of annexation or affixing which the law recognizes as 
 effectual, whether actual or constructive in character. Murdoch v. 
 Gifford, 18 N. Y. 30; Matt v. Palmer , 1 Comst. 564; Leroy v. Piatt, 
 4 Paige, 77. 
 
 In view of these well settled and universally recognized rules, the 
 sui h as Prim v. Emery, 32 N. H. 484, and Pinnock v. Coe, 
 23 How. 1 17, which, as well on grounds of reason as authority, labor 
 to maintain that after-acquired rolling-stock is bound by a previous 
 mortgage, that in terms is declared to bind such after-acquired prop- 
 erty — point irresistibly to the conviction that rolling-stock is not
 
 V. i.] FIXTURES: ANNEXATION. 25 1 
 
 part of the realty. No one ever doubted that a mortgage of land 
 bound a house subsequently built upon it; nor that it bound any- 
 thing originally personal which became afterward part of the land. 
 The labored attempt to prove that rolling-stock, acquired after the 
 date of the mortgage, will be bound by it, shows how strongly the 
 incongruity is perceived of treating it as part of the realty. 
 
 The general doctrine is, that things originally personal in their 
 nature remain personal, though used in connection with land. All 
 the implements of agriculture have their use only in the cultivation 
 of land; and yet they are never thought to be part of the realty. 
 Some element of annexation, usually physical in its character, is the 
 common criterion for determining whether things personal in their 
 origin have lost that quality and become part of the realty Gen- 
 erally, the connection is appreciable by the senses; so that what 
 belongs to the land and what is personal may be determined by 
 inspection alone. Cases of constructive annexation are few, and 
 rest upon peculiar and obvious reasons of their own. Thus keys, 
 which must be movable to answer their end, and which are a neces- 
 sary part of the fixed locks to which they are adapted; sashes and 
 window frames, and the old example of an upper mill-stone, removed 
 to be picked, illustrate the same principle. Deer in a park, rabbits 
 in a warren, doves in a dove cot, and fish in a pond, depend on a 
 different reason. In these conditions they are reckoned not prop- 
 erty at all; but any of them, caught and secured, becomes at once 
 personal property. Williams on Personal Property, 19. In respect 
 to all cases of constructive annexation, there exists both adaptation 
 to the enjoyment of the land and localization in use as obvious ele- 
 ments of distinction from mere chattels personal. Even in respect 
 to cases of actual annexation to the realty and consequent change 
 of character from chattel personal to realty, it is held that there 
 ought to be the concurrence of actual annexation, of applicability to 
 the use to which that part of the realty is appropriated with which 
 it is connected, and lastly an intention on the part of the party 
 making the annexation to make a permanent accession to the free- 
 hold. Potter v. Cromwell, 40 N. Y. 287; Voorhies v. McGinnis, 48 id. 
 278. Looking now at the rolling-stock of a railroad, it is originally 
 personal in its character, it is subservient to a mere personal trade, 
 the transportation of freight and passengers. The tracks exist for 
 the use of the cars rather than the cars for the use of the track. 
 There is no annexation, no immobility from weight, there is no 
 localization in use. The only element on which an argument can be 
 based to support the character of realty is adaptation to use, with 
 and upon the track. Even in respect to this, were the same contri-
 
 252 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 vance adopted by a tenant for use in his trade upon leased 
 lands his right to remove both cars and track would be beyond 
 question. It is perhaps fortunate that this question was not finally 
 adjudicated in the early days of railroad enterprise, for then unity 
 of ownership in track and cars and independence of roads upon each 
 other seemed to render it possible to consider rolling-stock part of 
 the realty without introducing great inconvenience. At the present 
 time, independent companies exist, owning no tracks, whose trains 
 run through State after State on the railroad track of other com- 
 panies. It is no uncommon sight to see the cars of half a dozen 
 companies formed into a single train and running from New York to 
 Illinois and Missouri. It is impossible to deal with such property 
 as part of the realty without introducing anomalies and uncertainties 
 of the gravest character. Call cars and engines part of the realty; 
 where shall they be taxed? Real estate is to be taxed at its site. 
 What is the site of a railroad train running from New York to Buffalo 
 in a day? Shall it be taxed in each town where the assessors catch 
 sight of it rushing by at thirty miles an hour? Or if a judgment be 
 docketed in one county on the line, will its lien attach on each car 
 as it is whirled past? And how shall conflicting liens in such cases 
 be marshaled? The difficulties which follow on admitting that roll- 
 ing-stock can be part of the realty are partly disclosed in Minnehaha 
 Co. v. St. Paul Co., 2 Wall. 609. There the court is supposed to 
 have adjudged that a company owning a long line of railroad and all 
 the rolling-stock upon it may assign particular portions of rolling- 
 stock to particular parts of the road and mortgage such parts of the 
 road with their particular portion of rolling-stock; that whether this 
 had been done was a question of intention, and that in the case 
 before the court it had been done. But upon examining the case 
 it will be found that it was so decided by the District Court in another 
 suit, the decree in which bound the parties then before the court, 
 and concluded them so that the question spoken of could not be 
 adjudicated (p. 636). To this judgment three of the justices dis- 
 sent, and in expressing their views say, " we agree that the rolling- 
 stock upon this road covered by the several mortgages, and as 
 respects any other valid liens upon the same, is inseparably con- 
 nected with the road; in other words, is, in technical language, a 
 fixture to the road, so far as in its nature and use it can be called a 
 fixture. But it is a fixture extending over the entire track of the 
 road. It is not a fixture upon any particular division or portion, but 
 attaches to every part or portion." 
 
 While I can see that views like these are accommodated to rail- 
 roads in the character of mortgagors in their relation with the holders
 
 V. i.] FIXTURES: ANNEXATION. 253 
 
 of their bonds, they cannot be allowed to prevail without introduc- 
 ing inextricable confusion and uncertainty in respect to the laws of 
 taxation and of judgment liens, and great embarrassment in dealing 
 in respect to this class of property. It is vastly better that changes 
 of this sort, if thought to be needed, should be introduced by legis- 
 lation. In my judgment, the want of the element of localization in 
 use is a controlling and conclusive reason why the character of realty 
 should not be given to rolling-stock of a railroad. For want of 
 that element, rolling-stock cannot be subjected to the laws regu- 
 lating taxation and liens on real property. For a statement of all 
 the decided cases to 1869, I refer to Redfield on Railways, vol. 2, p. 
 507, sec. 235, and notes. 
 
 Taking it, then, to be the law, that rolling-stock of a railroad does 
 not become part of the realty so as to pass by a conveyance of the 
 land as part thereof, the next question is whether the law of 1833 
 requires a mortgage of such property to be filed where no change of 
 possession takes place. That the case falls within the language of 
 the law, is plain. It is universal in its requirement. If this case is 
 to be excepted, it must be either on account of the character of the 
 mortgage or of the property mortgaged, or on account of some pro- 
 vision of the statute law taking away the necessity of filing. \_The 
 court finds no ground for exception by reason of character of mortgage or 
 property mortgaged, and proceeds as follows :] 
 
 Nor does the statute authority, conferred by the act of 1850 to 
 mortgage for certain purposes corporate property and franchises, 
 touch the question. The statute is silent as to the manner in which 
 the power shall be exercised. It might as well be argued that a 
 mortgage filed as one of personal property should, by this filing, 
 operate to give priority as one of land, without being recorded, as 
 to maintain the converse of the proposition. The pov/er is given, but 
 to be effectually exercised the method must be pursued which is 
 appropriate to the kind of property. What is real, must be dealt 
 with as real; what is personal, as personal. This view of the statute 
 is confirmed by the subsequent statute of 1868 (chap. 779, p. 1747), 
 which enacts that mortgages by railroad companies of real and per- 
 sonal property need not be filed as chattel mortgages, if recorded as 
 real estate mortgages, in each county in or through which the road 
 runs. * * * 
 
 Judgment reversed. 1 
 
 1 In some states statutory or constitutional provisions have set aside decisions 
 holding rolling-stock realty. See Const, of Illinois. — Ed.
 
 254 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 2. Severance of a Chattel Which Has Once Been Annexed. 
 
 a. Severance by owner of land. 
 
 (i.) Actual. 
 
 (a.) With intent that severance shall be permanent. 
 
 HARRIS v. SCOVEL. 
 85 Michigan, 32. — 1891. 
 
 Morse, J. — This is an action of trover for the conversion of 2,000 
 fence rails, commenced in Justice's Court, and subsequently appealed 
 to the Circuit Court of Wayne county. Plaintiff recovered judgment 
 in both courts. 
 
 The plaintiff, in the partition of reai estate, February 6, 1886, 
 became the owner of a piece of land 175 feet wide and 1,601 feet in 
 length. There was then a fence on the land which, before the par- 
 tition, made a lane. She sold the land to defendant October 3, 1888. 
 The deed of conveyance was a warranty deed in the ordinary form. 
 Having no use for a lane on the premises, about a year before she 
 sold to the defendant the plaintiff took down the fence, and piled up 
 the rails on the premises, intending, as she testifies, to remove them 
 to a farm that she owned in Dearborn. She had drawn 84 posts 
 upon this land, and made some preparation to build a board fence 
 as a division fence between her land and that of others, as, at the 
 time partition was made, it left the premises allotted to her open 
 and unfenced. She testified, against objection, that at the time she 
 made the agreement with defendant to sell him the land she reserved 
 the rails. There was no reservation in the deed. The rails, prior 
 to being piled up by plaintiff, had been in this lane fence nearly fifty 
 years. Plaintiff had no use for the lane after the partition. Defend- 
 ant testified that plaintiff, when making the agreement to sell, wanted 
 to reserve the rails, but he would not consent to it, and bought the 
 place as it was. 
 
 The circuit judge submitted the question to the jury, instructing 
 them that the rails piled upon the premises, and not being in any 
 existing fence at the time of the sale, were personal property, and that, 
 unless they found that the plaintiff sold the rails to the defendant, — 
 agreed that they should go with the land, — she was entitled to 
 re< over. The court was right, and the judgment must be affirmed. 
 Kails piled up, under the circumstances that these were, are personal 
 property. There can be no claim that fence rails are of necessity 
 part of the realty unless they are in a fence, and even in such case,
 
 V. 2.] FIXTURES: SEVERANCE. 255 
 
 they may remain as personalty, if such be the agreement between 
 the parties interested at the time the fence is built. Curtis v. 
 Leasia, 78 Mich. 480. 
 
 The contention is made that plaintiff is estopped from claiming 
 these rails, because, following the description by metes and bounds 
 of the premises in her warranty deed to defendant, the deed con- 
 tinues as follows: 
 
 " Being the same premises which were assigned by said commis- 
 sioners in partition to Mary E. Harris, . . . together with all 
 and singular the hereditaments and appurtenances thereunto belong- 
 ing," etc. 
 
 It is argued that she thereby conveyed these rails, because they 
 were a part of the realty when she received it in partition. We do 
 not consider this statement in the deed to be, or to have been 
 intended to be, a covenant that the premises were to be conveyed to 
 defendant in exactly the same condition as to fences, timber, and 
 growing crops as they were when she received them. Such a con- 
 struction would be absurd. If the rails must pass under the war- 
 ranty, because of this clause, then she must also account, under 
 such warranty, to the defendant for all the timber standing or crops 
 growing upon the premises when she received them by partition, 
 which she may have removed since that time and before the sale to 
 defendant. The deed cannot, in reason, be so construed. 
 
 Affirmed, with costs. 
 
 (b.) Without intent that severance shall be permanent. 
 
 GOODRICH v. JONES. 
 2 Hill (N. Y.), 142. — 1841. 
 
 Trover by Jones against Goodrich for taking and converting 
 manure and boards, alleged to be the property of Jones. 
 
 Jones contracted to sell a farm to Goodrich and later conveyed a 
 part thereof to Goodrich, and the residue, with consent of Goodrich, 
 to one Vose. When the deeds were executed the boards were on 
 Vose's part. They had all been in a fence on that part and some 
 still remained so; though a good many of them were displaced, some 
 let down and and some blown down. After the transfer Goodrich 
 converted to his own use both boards and manure. 
 
 Judgment by the justice for Goodrich. On certiorari by Jones the 
 Common Pleas reversed this judgment on the ground that the man- 
 ure was personal property and did not pass to the vendee. Goodrich 
 brings error to this court.
 
 256 CONSTITUExNTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 By the court, Cowen, J. — The Common Pleas appear to have taken 
 the same view of Goodrich's or rather Vose's title to the boards, as 
 did the justice. There cannot be a doubt that they were right. 
 Fences are a part of the freehold; and that the materials of which 
 they were composed are accidentally or temporarily detached, with- 
 out any intent in the owner to divert them from their use as a part 
 of the fence, works no change in their nature. Vid. Walker v. Sher- 
 man, 20 Wend. 639, 640. 
 
 With regard to the manure, we have held that even as between 
 landlord and tenant, it belongs to the former; in other words, it 
 belongs to the farm whereon it is made. This is in respect to the 
 benefit of the farm, and the common course of husbandry. The 
 manure makes a part of the freehold. Middlebrook v. Corwin, 15 
 Wend. 169. Nay, though it be laid up in heaps in the farmyard. 
 Lassell v. Reed, 6 Greenl. 222; Daniels v. Pond, 21 Pick. 367, The 
 rule has always been still stronger in favor of the vendee as against 
 vendor, and heir as against executor. In Kittredge v. Woods, 3 N. 
 H. Rep. 503, it was accordingly decided, that manure lying in a 
 barn-yard passes to the vendee. Vid. also Daniels v. Pond, before 
 cited. 
 
 The case of Kittredge v. Woods, was very well considered; and the 
 right of the vendee to the manure, whether in heaps or scattered in 
 the barn-yard, vindicated on principle and authority I think quite 
 satisfactorily. 
 
 There are several English dicta which conflict with our views of 
 the right to manure, as between landlord and tenant, and that of 
 the court in New Hampshire, as between vendor and vendee. And 
 Vid. 2 Kent's Com. 346, note c, 4th ed., and Carver v. Pierce, Sty. 
 66. But they may all be considered as repudiated by Middlebrook v. 
 Corwin, Vide, the introductory remarks of Mr. Justice Nelson, 15 
 Wend. 170. 
 
 The judgment of the Common Pleas must be reversed; and that 
 of the justice affirmed. 
 
 Judgment reversed. 
 
 VOORHIS v. FREEMAN. 
 
 2 Waits and SERGEANT (Pa.), 116. — 1841. 
 
 {Reported herein at p. 224.]
 
 V. 2.] FIXTURES: SEVERANCE. 257 
 
 (2.) Constructive Severance ky Sale, Exception, Mortgage or 
 Agreement. 
 
 (a.) Sale or exception : by parol or deed, 
 
 LEONARD v. CLOUGH. 
 
 133 New York, 292. — 1892. 
 
 Earl, Ch. J. — The material facts in this case are as follows: 
 Prior to March 29, 1884, Adaline Clough owned a lot of land in the 
 city of Auburn, upon which there was a small barn, and on that day 
 she conveyed the lot by an ordinary warranty deed to the defendant, 
 Robie Clough, who owned the adjoining lot on the northerly side of 
 the lot thus conveyed. On the 1st day of April, 1884, Robie Clough, 
 by an ordinary warranty deed, conveyed the same lot to her daughter, 
 Mary Gilbert, with the exception of a strip six feet by twelve rods 
 reserved from the northerly side of the lot. About one-third of the 
 barn was upon the strip thus reserved, and thus the dividing line 
 between the two lots after that conveyance ran through the barn, 
 leaving about one-third thereof upon the land of Robie Clough and 
 two-thirds thereof upon the land of Mary Gilbert. At the time of 
 the execution of the deed by Robie Clough to Mrs. Gilbert and 
 immediately thereafter she said to Mrs. Clough and her husband: 
 " Now pa, and ma, the barn is yours; there can nobody interfere with 
 you," and Robie Clough and her husband have ever since been in 
 the occupancy of the barn. On the 28th day of October, 1886, Mrs. 
 Gilbert by an ordinary warranty deed, conveyed the lot to Julia M. 
 Sherwood, and at the time of that conveyance Mrs. Sherwood was 
 informed that the barn belonged to Mrs. Clough and there was a 
 parol reservation of the same. On the 1st day of November, 1886, 
 Mrs. Sherwood, by an ordinary warranty deed, conveyed the lot to 
 Mrs. Eunice Nellis, and at the time of that conveyance Mrs. Nellis 
 was informed by parol that Mrs. Clough owned the barn and that it 
 did not pass. On the 8th day of November, 1888, Mrs. Nellis, by 
 an ordinary warranty deed, conveyed the lot to the plaintiff, and at 
 the time of that conveyance he was informed by parol that the barn 
 belonged to Mrs. Clough and did not pass with the conveyance 
 After he had purchased the lot, Mrs. Clough informed him that she 
 claimed the barn and intended to move it from the lot, and he told 
 her not to move it. After that the defendants moved the barn 
 from the lot, and then the plaintiff brought this action to recover 
 for the value of so much of the barn as stood upon his lot and claimed 
 to recover treble damages. 
 
 LAW OF PROP. IN LAND — 17
 
 258 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 The barn was a wooden structure, worth less than $200., and rested 
 upon four large stones at the corners and smaller stones at other 
 places. 
 
 Upon the trial the plaintiff objected to the parol evidence given 
 by the defendants to show the parol reservation of the barn at the 
 times of the several conveyances of the lot. But the court over- 
 ruled the objections and received the evidence. The court below 
 held that the evidence was competent; that the barn after the con- 
 veyance by Mrs. Clough to her daughter became and remained per- 
 sonal property, and that she had a lawful right to remove the same, 
 and judgment was entered upon the verdict in favor of the 
 defendants. 
 
 We think a few plain principles of law require a reversal of this 
 judgment. This barn at the time of the conveyance by Mrs. Clough 
 to Mrs. Gilbert was a part of the realty, and there could be no parol 
 reservation of it. The grantor could no more reserve the barn by 
 parol than she could reserve trees growing upon the land, or a ledge 
 of rocks or a mine or a portion of the soil. As between the grantor 
 and grantee it is very clear that the grantor would not have been 
 permitted to show that the barn was reserved by parol, as that evi- 
 dence would have contradicted the deed which was absolute in form. 
 If the grantor had removed the barn the grantee could have sued her 
 for trespass and she could not have defended by showing a parol 
 reservation of the barn. If it had been claimed in such a suit that 
 it was part of an oral agreement or reservation that the barn should 
 not pass, that fact could not have been shown, as it would have con- 
 tradicted the deed. The deed contained covenants of warranty 
 which covered the entire title to the real estate, and the grantor 
 could not in such a suit have shown by parol that any part of the real 
 estate was not covered by the covenants. So, too, if it be claimed 
 that what was said by Mrs. Gilbert to Mrs. Clough immediately after 
 the deed was delivered constituted a parol gift of the barn to her 
 father and mother, the gift could not be operative because the barn 
 at that time was a part of the realty. It had never been severed 
 from the realty and had never been by any acts of the parties or the 
 owners made personal property, and the parol gift of a portion of 
 the real estate could not be upheld without violating the statute of 
 frauds. The one-third of the barn which rested upon the lot owned 
 by Mrs. Clough was and remained realty, and it is impossible to 
 pen eive how by mere words the other two-thirds could be converted 
 into personalty. ( )an trees and other portions of real estate be con- 
 verted into personalty by a mere parol gift and without severance? 
 
 It is clear that after the conveyance from Mrs. Clough to Mrs.
 
 V. a.] FIXTURES: SEVERANCE. 259 
 
 Gilbert the barn remained a part of the realty, and was covered by 
 the deed and the covenants of warranty therein contained; and so 
 the barn passed to each successive purchaser, and no grantor could 
 dispute that the grantee took title to the barn; and thus the title 
 to so much of the barn as stood upon this lot was finally vested in 
 the plaintiff. All the deeds contained covenants of warranty. Those 
 covenants run with the land, and each successive grantee could have 
 the benefit of all the prior covenants. The plaintiff is in privity of 
 estate with Mrs. Clough, and his rights are the same as they would 
 have been if he had been her immediate grantee. He holds under 
 her deed, and in an action by him for a breach of her covenants she 
 could not dispute that the barn was a part of the realty. And in 
 this action against her for removing the barn she cannot dispute that 
 it passed under her deed. His rights are the same as Mrs. Gilbert's 
 would have been if she had disputed Mrs. Clough's right to the barn, 
 and, before she had conveyed, had sued her for removing it. 
 
 A careful scrutiny of the cases cited on behalf of the defendants 
 shows that there is absolutely no authority for their contention in a 
 case like this. If at the time of the conveyance of Mrs. Clough the 
 barn had been personal property in the ownership of some other 
 person, and the grantees had been notified of that fact, the title to 
 it would not have passed by the successive conveyances. If this 
 barn had been placed upon the lot by some third person with the 
 consent of the owner and with the understanding that such third 
 person could at any time remove it, it would have remained personal 
 property and would not have passed to a purchaser under any form 
 of conveyance providing such purchaser had notice of the fact. But 
 where the land and the buildings thereon belong to the same person, 
 then the buildings are a part of the real estate and pass with it upon 
 any conveyance thereof. In such a case the grantor can retain 
 title to the buildings only by some reservation in the deed or by 
 some agreement in writing which will answer the requirements of 
 the statute of frauds. Any other rule would be exceedingly 
 dangerous, and would enable a grantor, in derogation of his grant, 
 upon oral evidence, to reserve buildings and trees and other portions 
 of his real estate, and thus, perhaps, defeat the main purpose of 
 the grant. For these views the case of Noble v. Boszvorth, 19 Picker- 
 ing, 314, is a very precise authority. 
 
 We are, therefore, of opinion that the judgment should be reversed 
 and a new trial granted, costs to abide event. 
 
 Judgment reversed.
 
 260 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CM. II. 
 
 TYSON v. POST. 
 
 108 New York, 217. — 1S8S. 
 
 Andrews, J. — The question whether the defendant Post acquired 
 title to the plant and machinery of the marine railways embraced in 
 the plaintiff's mortgage, as security for the $6,200 paid by him to 
 the plaintiffs at the request of Carroll, to enable the latter to com- 
 plete the first payment on the contract with the plaintiffs for the 
 purchase of the land, does not depend upon the character of the 
 property, whether real or personal, when placed upon the mortgaged 
 premises. There can be little doubt, however, that the machinery, 
 shafting, rollers and other articles became, as between vendor and 
 vendee, and mortgagor and mortgagee, fixtures and a part of the 
 realty. McRae v. Central Nat. Bank, 66 N. Y. 4S9. But as by 
 agreement, for the purpose of protecting the right of vendors of 
 personalty, or of creditors, chattels may retain their character as 
 chattels, notwithstanding their annexation to the land in such away 
 as in the absence of an agreement would constitute them fixtures, 
 Ford v. Cobb, 20 N. Y. 344; Sisson v. HibbarJ, 75 Id 542, so also, it 
 would seem to follow, that by convention, the owner of land may 
 reimpress the character of personalty on chattels, which, by annexa- 
 tion to the land, have become fixtures according to the ordinary rule 
 of law, provided only that they have not been so incorporated as to 
 lose their identity and the reconversion does not interfere with the 
 rights of creditors or third persons. The plant and machinery in 
 question were personal property when placed on the land, and the 
 only issue presented is, did the plaintiffs agree with Post that he 
 might take the title to the plant and machinery for his security, free 
 of the mortgage, and remove them at any time from the mortgaged 
 premises, thereby reimpressing the property with the character of 
 personalty. In determining this question is does not seem to us to 
 be very material to inquire whether the deed from the plaintiffs to 
 Cooney (the nominee of Carroll), and the mortgage back embraced, 
 or was intended to embrace, the plant and machinery. Post was 
 not a party to the instrument and is not concluded by them. The 
 rights of Post depend wholly upon this agreement with the plaintiff, 
 and if they received his money upon the agreement that he should 
 have the plant and machinery, with the right to remove them with- 
 out restriction as to time, the agreement was valid although by parol, 
 and even if it contradicts the legal import of the mortgage; it being 
 an agreement between different parties, it is not within the rule 
 which forbids parol evideni 1 to < ontradict .1 written instrument. The 
 only point of disagreement between the parties relates to a restriction
 
 V. 2.] FIXTURES: SEVERANCE. 261 
 
 alleged to have been placed on the time within which Post should 
 exercise the right of removal. The plaintiffs concede that the right 
 of removal was given to Post, but they allege that it was subject to 
 the limitation that the right should be exercised before any proceed- 
 ings were taken to foreclose the mortgage. The defendant, on the 
 other hand, claims that the right was unrestricted and absolute. The 
 paper executed by the plaintiff on the closing of the transaction con- 
 tains the restriction claimed by the plaintiffs. But we think the evi- 
 dence sustains the contention of the defendant, that the paper was 
 not delivered to or accepted by him, and that he had no knowledge 
 of its contents. The question of fact, therefore, depends upon the 
 other evidence bearing upon the actual agreement. It would not be 
 useful to state the evidence in detail. It is sufficient to say that 
 after a careful examination of the testimony, we have reached the 
 conclusion that the claim of the defendant is most consistent with 
 the conceded facts and is supported by a preponderance of evidence. 
 The order of the General Term should, therefore, be affirmed, and 
 judgment absolute directed in accordance with the stipulation. 
 
 Judgments accordingly. 
 
 (b.) Mortgage: real or chattel. 
 
 TRULL v. FULLER. 
 
 28 Maine, 545. — 1848. 
 
 Trover for a shingle machine and clap-board machine. 
 
 In April, 1840, Jacob Chamberlain gave plaintiff a mortgage on 
 the machines in question, then fixtures upon his land. This mortgage 
 was not recorded as a real estate mortgage, but was regarded as a 
 mortgage of personalty. In Oct., 1840, one Ingalls obtained a judg- 
 ment against Chamberlain on which a levy was made on the real 
 estate, including said machines as a part thereof. Defendant claims 
 under the execution and judgment. 
 
 Tennev, J. — It is competent for the owner of real estate to sell 
 upon good and sufficient consideration, fixtures thereon, which would 
 pass under a conveyance of the realty, if they were not excepted. 
 The purchaser would be entitled to sever the same within the time 
 stipulated, or if no time was agreed upon, within a period, which 
 under all the circumstances, and according to the character of the 
 subject of the purchase, would be deemed reasonable. But without 
 a severance, or some indication, actual or constructive, that they
 
 262 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 had been sold, they would, as between the purchaser and attaching 
 creditors, or subsequent purchaser of the real estate to which they 
 attached, be considered as still a part of the freehold. 
 
 A conveyance of real estate to be valid, excepting against the 
 grantor, his heirs, devisees and those having actual notice, must be 
 by deed acknowledged and recorded in the office of the register of 
 deeds in the county where the estate is situated. Rev. St. c. 91, 
 sees. 1, 24 and 26. These provisions are substantially the same as 
 those of the statutes of 1821, c. 136, sec. 1. 
 
 It follows, that to convey that which constitutes a part of the real 
 estate, but which by a severance may become a chattel, so as to be 
 effectual against those who are not excepted in the statute, the same 
 formalities are required, unless a severance takes place. Against 
 those who can legally insist upon these formalities, the interest 
 attempted to be sold does not become personal property till there is 
 a severance in fact, or until all that is required to convey real estate 
 is perfected; before its former character can be changed by a sale, 
 the sale must be such, as is necessary to convey property of that 
 character; by a performance of a part only of what is required to 
 pass a title to real estate, it does not cease to be what it was, prior 
 to the first steps taken towards a conveyance. 
 
 This construction is not only necessarily inferred from the provisions 
 of the statute, but upon a different construction, the registration law 
 would be but an imperfect security to the grantees of real estate. It is 
 often the case, that the most valuable portion of the estate referred 
 to, in a deed of conveyance, are the buildings and fixtures thereon; 
 and it is understood, that the title which a grantee obtains by a deed 
 of land, is whatever the registry shows to be that of the grantor, 
 unless he has actual notice of a different state of the title. This 
 embraces not only the soil, but whatever is attached thereto, making 
 a part of the freehold. If the owner could, without a severance and 
 without the forms required, for the transfer of real estate, transmit 
 machines in a mill or factory, as personal chattels, when they are so 
 situated as to make a part of the freehold, while held by him, he 
 could in the same manner convey the mill or factory or any buildings 
 standing upon the land described in the deed by which he should 
 subsequently convey the land to another, having no notice of the 
 previous sales of the buildings. 
 
 The registry in the town clerk's office of mortgages of personal 
 property, is intended to be of that property which was personal 
 before it was mortgaged; it is unnecessary that the instrument 
 which is the evidence of an absolute sale of chattels should be 
 recorded at all; and it could not have been designed that a mort-
 
 V. 2.] FIXTURES : SEVERANCE. 263 
 
 gage of that, which was a part of the realty, before the mortgage 
 was executed, should be recorded in the office of the town clerk, 
 instead of the registry of deeds; nothing short of the latter could 
 be constructive notice to attaching creditors or subsequent 
 purchasers. 
 
 The machines which are in controversy, in this suit, have been 
 decided to be a part of the real estate in a former hearing of this 
 case. There is no evidence that they were severed from the free- 
 hold, before the levy, under which the defendant claims, or that he 
 was notified of the mortgage to the plaintiff. The mortgage was 
 not recorded in the office of the register of deeds of the county 
 where the land was situated, but it was recorded in the town clerk's 
 office, in the town where the mortgagor resided, before the levy. 
 In every respect, the plaintiff treated the machines as personal chat- 
 tels, and not as partaking of the character of a part of the real estate 
 on which they were placed. The steps taken were insufficient to 
 give him title as against the creditor, who made the levy upon the 
 real estate. 
 
 This view renders it unnecessary to consider whether there was a 
 valid attachment upon the writ in the action, which resulted in the 
 judgment on which the levy was made. 
 
 Plaintiff nonsuit. 
 
 (3.) When Landowner May Not Sever Fixtures. 
 WITMER'S APPEAL. 
 
 45 Pennsylvania State, 455. — 1863. 
 
 Bill to restrain defendants from selling certain machinery severed 
 by one Henry Thoma from his real estate. It is alleged that the 
 articles were so attached to the realty as to be a part thereof and 
 subject to certain liens thereon, and that Thoma severed the same 
 therefrom in collusion with Witmer and other execution creditors to 
 enable them to levy thereon as chattels, the prior liens being more 
 than the entire premises were worth. 
 
 The decree below required the defendants to replace the machinery 
 and enjoined them from selling the same. From this decree Witmer 
 appeals. 
 
 Wooward, J. — In affirming this decree, we wish to be understood 
 as neither affirming nor denying the broad proposition that equity 
 will, at the suit of a mere judgment-creditor, interpose to restrain 
 such acts of a judgment-debtor, in possession as owner of real estate, 
 as would constitute waste at common law. A judgment-creditor is
 
 264 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. ClI. II. 
 
 not within the protection of our Act of Assembly of 29th March, 
 1832, Purdon, 1008, until he has brought his debtor's land to liability 
 to sale on a venditioni exponas; but whether, independently of the 
 statute, he is entitled to protection in equity before levy and con- 
 demnation, is the main question decided by the learned judge below, 
 and the precise question which we do not mean to decide. 
 
 On another ground, there is not the least difficulty in affirming the 
 decree. That is the ground of fraud, to which, there can be no 
 question, the equity jurisdiction extends. The case disclosed by the 
 bill and answer is that of a plaintiff with judgments to a large 
 amount against a defendant conceded to be insolvent, and the real 
 estate on which these judgments are liens admitted to be insufficient 
 for their security. It consisted of about forty acres in Union town- 
 ship, Lebanon county, with a steam grist and saw-mill thereon, which 
 mills contained a steam engine, boilers, and other machinery neces- 
 sarily connected and used together, essential to the working of said 
 mills, and so annexed, fixed, and imbedded in the structure of said 
 mills as to be part of the freehold. The defendant admitted that 
 he detached the steam engine and converted it into personalty, for 
 the purpose of enabling certain of his creditors to levy upon it, and 
 sell it in satisfaction of their claims. He claims to have done this 
 on his own mere motion, and without confederacy with the creditors 
 for whose benefit it was done; but he admits that they levied on 
 it as personalty, and thus appropriated to themselves the benefits of 
 his act. if they did not help him to perform it. They were subse- 
 quent judgment-creditors to the plaintiff in this bill, and had no 
 legal right to be first paid out of the debtor's property. If the real 
 estate, before severance of the engine, was inadequate to secure 
 prior lien-creditors, it is manifest the severance, which sensibly 
 impaired the value of the estate, was a great wrong done to them. 
 The learned judge pronounced it a palpable fraud and an illegal pref- 
 erence of creditors. When the principle was pressed upon him, 
 that equity will not ordinarily restrain the sale of chattels, after they 
 have been severed from the freehold, he put himself distinctly on 
 the ground that the acts of Thoma were a fraud in law, " intended 
 and calculated to give a later judgment-creditor an advantage over 
 an earlier one, and that all the parties defendants were participants 
 in the fraud, and cannot take advantage of their own wrong." 
 
 This was the true ground of the decree, and it is upon this ground 
 \' affirm it. 
 
 It is due, however, to the very able argument that has been sub- 
 mitted on the part of the plaintiff in error, that we should notice its 
 main positions.
 
 V. 2.] FIXTURES: SEVERANCE. 265 
 
 It is maintained, in the first place, that it is the right of an owner 
 of realty, though insolvent, to disannex fixtures and to convert them 
 into personalty, with the view of paying the debt of a bona fide 
 creditor. 
 
 The abstract right to sever fixtures is, unquestionably, inherent 
 in the full dominion over land which ownership confers, and though 
 an insolvent owner may not assign his property in trust, so as to 
 create a preference among his creditors, yet he may, by encum- 
 brances confessed or by absolute and direct conveyances, prefer one 
 creditor to another. Worman v. Wolf 'she rger's Executors, 7 Harris, 
 61; Breading v. Boggs, 8 Id. 37; Covanhoven v. Hart, 9 Id. 495; 
 Uhlerv. Maul/air, 11 Id. 381; Siegelv. Chidsey, 4 Casey, 279; York 
 County Bank v. Carter, 2 Wright, 446. 
 
 But after the liens have attached, may he commit waste for the 
 purpose of preferring creditors? This is the real question here. The 
 wrong complained of consisted, not so much in converting the 
 fixtures to the use of subsequent creditors, as in the damage done 
 to the freehold, which was the only security of the prior creditors. 
 When their liens attached, the engine formed part of the freehold, 
 and was bound by them. Although a judgment-creditor has no 
 estate in the lands of his debtor, it cannot be said that he has not 
 an incerest which may be defended. He may seize them in execu- 
 tion, and then our statute entitles him to estrepement to stay waste, 
 and on conversion of the land into money, he has a right, secured 
 by another statute, to take the money in preference to the owner or 
 encumbrancers, however meritorious, who are subsequent to himself. 
 In Gray v. Holdship, 17 S. & R. 415, it was held that a mechanic's 
 lien against a brewery in which a boiler had been distrained for rent, 
 and severed, would hold the boiler, as against a purchaser of it as a 
 chattel. In Voorhees v. Freeman, 2 W. & S. 119, and Pyle v. Pennock, 
 Id. 390, the detached rolls of a rolling-mill were held to be part 
 of the freehold, and bound by the lien of a mortgage; and in Hoskin 
 v. Wood7oard, ante, 42, it was held that a mortgage of a machine-shop 
 included a lathe therein erected, and that a sale and removal of the 
 lathe was such a violation of the rights of the mortgagee, that he 
 might follow and recapture it from the purchaser. " He may even 
 treat it as personalty as against the wrongdoer, for the wrongful act 
 cannot be alleged by the wrongdoer as a measure of shelter for him- 
 self," said the chief justice, in delivering the opinion of the court. 
 
 True, these were cases of mortgage, but in respect to an interest 
 in the land of the debtor, what is the difference in Pennsylvania 
 betwixt a mortgagee and a judgment-creditor? 
 
 The mortgagee has no estate in the land, any more than the judg-
 
 266 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CII. II. 
 
 ment-creditor. Both have liens upon it, and no more than liens. 
 This was expressly asserted hi A say v. Hoover, 5 Barr. 35, and has 
 been substantially, if not expressly, affirmed in many cases. Rickert 
 v. Madeira, 1 Rawle, 228; Edmonson v. Nichols, ro Harris, 79; 
 Wilson v. Shoenberger s Executors, 7 Casey, 299. 
 
 As to estate and interest, then, no substantial difference exists 
 between these two classes of creditors; diversities that do exist, have 
 reference to the extent and duration of the liens and the remedies 
 for enforcing them. If a mortgagee have an interest in the mort- 
 gaged premises, which may be defrauded by a severance and sale of 
 a fixture, so, we may conclude, has a judgment-creditor. The 
 fraudulent character of the severance must be determined by the 
 circumstances of each case. So long as the debtor uses his estate 
 for its ordinary purposes, according to its nature, he cannot be 
 impeached for fraudulent waste. As was said in Hoskin v. Wood- 
 ward^ he may sell, in the usual way, the " lumber, firewood, coal, 
 ore, fruit, or grain," produced by his land, without violating the 
 rights of lien-creditors. But as to the machinery, which is a con- 
 stituent part of a mill or manufactory, to the purposes of which the 
 building has been adapted, and without which it would cease to be 
 such a mill or manufactory, the rule is different. To dismantle 
 such an establishment on the eve of bankruptcy is to destroy its 
 customary use and to defraud lien-creditors, whether by judgment 
 or mortgage. Though not waste under our statute, it is so at com- 
 mon law, and, like other acts contrary to law, is restrainable in equity. 
 
 The other argument of the plaintiffs in error is akin to the former, 
 that before a creditor can question the disposition of a debtor's 
 property, he must have completed his title by judgment and execu- 
 tion. This is true as to personal property, and for this reason, that 
 the execution only, and not the judgment, is a lien on chattels. 
 English cases were cited to show that it is true also as to real estat e 
 in England, and for precisely the same reason that a judgment there 
 is no lien on land. It is the execution which establishes the legal 
 relation between the creditor and the debtor's land, as here it is the 
 execution which establishes the legal relation between the creditor 
 and the debtor's goods. But our statutes bring judgment-creditors, 
 as the contract of mortgage brings mortgagees, into direct relation 
 with the debtor's lands, and because the law creates the relation, 
 equity will protect it — will protect it not from such reasonable use 
 and enjoyment of the lands by the owner as are usually incident to 
 unencumbered ownership, but will protect it from such wanton and 
 injurious acts as are of the nature of waste. 
 
 The decree is affirmed.
 
 V. 2.] FIXTURES: SEVERANCE. 267 
 
 b. Severance by stranger or by the forces of nature. 
 
 ROGERS v. GILINGER. 
 
 30 Pennsylvania State, 185. — 1858. 
 
 Trover by Rogers and another, assignees of Beek against Gilinger 
 and others, purchasers at sheriff's sale of realty of Beek, to recover 
 value of ruins of a house alleged to be personal property and to have 
 been converted by defendants. Judgment below for defendant. 
 Plaintiffs sue out this writ of error. 
 
 Strong, J. — The owner of a lot of ground upon which had been 
 erected a large frame building, conveyed the property to assignees 
 in trust for the benefit of creditors. Prior to the assignment, a 
 judgment had been recovered against the assignor, which was a lien 
 upon the real estate conveyed. Two days after the assignment had 
 been made, a storm of wind demolished the building, leaving the 
 foundation and floors nearly entire, but breaking superstructure ' so 
 that its materials could not be replaced, or used in the construction 
 of a similar building. While in this condition the whole was levied 
 upon and sold under executions founded upon the judgments against 
 the assignor, and the voluntary assignees now claim that the ruins 
 of the frame building did not pass at the sheriff's sale; that they 
 were personal property, and that the purchaser under the venditioni 
 exponas having used them, is responsible to the assignees in an action 
 of trover. 
 
 It may be premised that the assignees stand precisely in the shoes 
 of Beek, the first owner. If he could not assert against the purchaser 
 at sheriff's sale, supposing no assignment had been made, that the 
 fragments of the building were personalty, neither can they. It 
 may also be remarked that the purchaser under the judgment has 
 obtained all upon which the judgment was a lien. 
 
 Now clearly Beek, the first owner, could not have torn down the 
 building, and converted the materials from realty into personalty, 
 without diminishing the security of the judgment, impairing its lien, 
 and wronging the judgment-creditor. Though the statutory writ 
 of estrepement might not have been demandable until after levy and 
 condemnation of the property, yet equity would have enjoined 
 against any such wrong. The building, as such, constituted a large 
 part of the creditor's security, and his lien embraced every board 
 and rafter which made a constituent part of the structure. Nor 
 
 ■Superstructure was "severed from its supports and broken up." — Ed.
 
 268 CONSTITUENTS AND INCIDENTS OF LAND, [PT. II. CH. II. 
 
 were the rights of the assignees any more extensive. They were mere 
 volunteers. They took the property as land only, encumbered as 
 a whole, and in every part, by the lien of the judgment. Their title 
 was in one sense subordinate to the right of the judgment creditor 
 to take all which passed to them in satisfaction of his debt. 
 
 In Herlakenden's Case, 4 Rep. 62a, it was resolved that if a 
 lessee pulls down a house, the lessor may take the timber as a thing 
 which was parcel of his inheritance. So in Bowles' Case, 11 Rep. 
 Sib, it was held that if the lessee cut down timber, the lessor may 
 take it. Though severed, it is a parcel of the inheritance. 
 
 Nor will the tortious act of a stranger be allowed to injure the 
 reversion. 2 M. & S. 494; 1 Term. Rep. 55; Garth v. Sir John 
 Cotton, 1 Vesey, Sr. 524. These principles are reasserted in SJudt v. 
 Barker, 12 S. & R. 272; 7 Conn. 232; 3 Wendell, 104. Nor will a 
 severance by the owner of that which was a part of the realty, unless 
 the severance be with the intent to change the character of the thing 
 severed, and convert it into personalty, prevent its passing with the 
 land to a grantee. Thus it was held in Goodrich v. Jones, 2 Hill, 
 142, that fencing materials on a farm which have been used as part 
 of the fences, but are temporarily detached without any intent to 
 divert them from their use as such, area part of the freehold, and as 
 such pass by a conveyance of the farm to a purchaser. 
 
 Is the rule different when the severance occurs not by a tortious 
 act, nor by a rightful exercise of proprietorship, without any intent 
 to divert the thing severed from its original use, but by the act of 
 God? The act of God, it is said, shall prejudice no one (4 Co. 86b), 
 yet the maxim is not true if a tempest be permitted to take away the 
 security of a lien-creditor, and transfer that which was his to the 
 debtor or the debtor's assignees. If trees are prostrated "per vim 
 venti," they belong to the owner of the inheritance, not to the lessee. 
 Herlakenderi 's Case, ut supra. He takes them as a part of the realty. 
 True, he may elect to consider them as personalty, and this he 
 does when he brings trover for their conversion, but until such 
 election they belong to him as a parcel of the inheritance. If a 
 tenant hold " without impeachment of waste," the property in the 
 timber is in him; but if there be no such clause in his lease, and he 
 remove from the land trees blown down, such removal is waste. 
 That could not, however, be, unless, notwithstanding the severance, 
 they continue part of the realty, for waste is an injury to the 
 realty. 
 
 I am aware that it is said to have been held that if an apple tree 
 l,r blown down, and the tenant cut it, it is no waste. 2 Rolle Abr. 
 S20. That may well be, for the falling of the tree is through the
 
 V. 2.] FIXTURES: SEVERANCE. 269 
 
 act of God, not of the tenant, and the cutting of the fallen timber 
 is but an exercise of the tenant's right to estovers; but if he remove 
 from the land fallen timber, it has been ruled to be waste. 
 
 What then is the criterion by which we are to determine whether 
 that which was once a part of the realty has become personalty on 
 being detached? Not capability of restoration to the former con- 
 nection with the freehold, as is contended, for the tree prostrated 
 by the tempest is incapable of reannexation to the soil, and yet 
 remains realty. The true rule would rather seem to be, that which 
 was real shall continue real until the owner of the freehold shall by 
 his election give it a different character. In Shepherd's Touchstone 
 90, it is laid down that, " that which is parcel or of the essence of 
 the thing, although at the time of the grant it be actually severed 
 from it, does pass by a grant of the thing itself, and therefore by the 
 grant of a mill, the mill-stone doth pass, although at the time of the 
 grant it be actually severed from the mill. So by the grant of a 
 house, the doors, windows, locks, and keys do pass as parcel 
 thereof although at the time of the grant they be actually severed 
 from it." 
 
 It must be admitted that the case before us is one almost of the 
 first impression. Very little assistance can be derived from past 
 judicial decision. There is supposed to be some analogy between 
 the character of these fragments of the buildings and that of a dis- 
 placed fixture. The analogy, however, if any, is very slight. These 
 broken materials never were fixtures, though they had been fixed 
 to the land. They had been as much land as the soil on which they 
 rested. Severance had never been contemplated. One of the best 
 definitions of fixtures is that found in Shean v. Rickie, 5 Mees. & W. 
 171. They are those personal chattels which have been annexed to 
 the freehold, but which are removable at the will of the person who 
 has annexed them, or his personal representatives, though the prop- 
 erty in the freehold may have passed to other persons. Yet even 
 fixtures, which but imperfectly partake of the character of realty, 
 go to the purchaser, at sheriff's sale of the land, though they have 
 been severed tortiously, or by the act of God. Thus, where a copper 
 kettle had been detached from its site in a brewery by one not the 
 owner, had remained detached for a long period, and while thus 
 severed, had been pledged by the personal representatives of the 
 owner, it was still held to have passed by a sheriff's sale of the 
 brewery under a mechanic's lien, filed before the severance. Gray 
 v. Holdship, 17 S. lSc R. 413. 
 
 Without, however, discussing the question further, it will be per- 
 ceived that in our opinion the broken materials of the fallen building
 
 2/0 CONSTITUENTS AND INCIDENTS OF LAND. [FT. II. CH. II. 
 
 must be considered as a parcel of the realty as between the assignees 
 and the purchaser at sheriff's sale, and consequently that they passed 
 by the sale to the purchaser. 1 
 
 The judgment is affirmed. 
 
 C. Sale of fixtures on execution. 
 
 RICE v. ADAMS. 
 
 4 Harrington (Del.), 332. — 1848. 
 
 Harrington, J. — The property levied on by this execution, so 
 far as the present motion appears, consists of real fixtures placed 
 upon the premises by the owner of the property, and by him attached 
 to the freehold. They became by his act a part of the foundry, not 
 for a temporary purpose, but as a fixed establishment; and, as such, 
 were used by the defendants in copartnership, the owner of the 
 premises being one of the partners. Having thus acquired the 
 character of real property by such a union and connection with the 
 realty as unquestionably made them, in his hands, a part of the free- 
 hold, subject to real estate liens, and not liable to be seized as chattels, 
 this character could not be changed otherwise than by actual sever 
 ance ; nor could they be transferred before severance except as a part 
 of the realty, and by forms of conveyance suited to real property. 
 The parol sale, therefore, to Adams, Betts & Hodgson, evidenced by 
 the written memorandum without date, even if made before the entry 
 of Orrick & Campbell's judgment, would not prevent the lien of that 
 judgment, nor subject these fixtures to seizure on plaintiff's execu- 
 tion as the personal chattels of the defendants in preference to the 
 judgment of Orrick & Campbell. We are, therefore, of opinion that 
 the rule in this case should be made absolute; and we do not con- 
 sider this as in any degree conflicting with adjudged cases in relation 
 to trade fixtures set up by tenants, for their own use and convenience, 
 to facilitate the carrying on their business. 
 
 'See also Goodrich v. Jones, supra, p. 255. — Ed.
 
 V. 3-] FIXTURES: INTENTION IN ANNEXING. 2J I 
 
 3. The Intention of the Party Annexing as Bearing on the 
 Question of Removability. 
 
 a. Relative importance of this test. 
 
 McREA v. CENTRAL NATIONAL BANK OF TROY. 
 
 66 New York, 489. — 1876. 
 
 Action by plaintiff as real estate mortgagee against defendants, 
 who are judgment-creditors of the mortgagor and the sheriff holding 
 executions on their judgments, to restrain them from selling on such 
 executions certain machinery which plaintiff claims to be part of the 
 realty. The further facts sufficiently appear in the opinion. The 
 plaintiff succeeded in the trial court and on an appeal to the General 
 Term. Defendant appeals to this court. 
 
 Rapallo, J. — The court found as facts that the articles of 
 machinery described in the complaint were fixtures and part of the 
 freehold, and as facts showing that they were fixtures: First, that 
 the building in which the machinery was, was erected for the purpose 
 of a twine factory, and machinery specially adapted to it and used 
 with it; second, that the original intention of this annexation was to 
 make this machinery permanently a part of the building and the 
 freehold; and, third, that the mortgage under which the plaintiff 
 claims title was to secure to him the payment of the purchase money 
 of the premises described therein, and was taken by him and given 
 to him with the intention of holding the machinery in question as 
 part of the realty, and not as personal property. 
 
 In supplemental findings made at the request of the defendants 
 and inserted in the case on settlement, the court found, as further 
 facts, that each of the machines, except two, was a machine com- 
 plete in itself, which received no support from the walls, ceilings or 
 roof of the building, and would operate, with the proper power 
 applied to it, wherever it was placed, and that all the machines 
 could be taken apart without injury to themselves or to the building 
 in which they were placed, except such injury as would result from 
 the loosening of the fastenings, and could, without injury, be put 
 together again and operated in any place where there was sufficient 
 room for them to stand and where the necessary power could be 
 applied. That none of the machines, except the two iron softeners, 
 were attached to the building except as follows: Some of them 
 were fastened to the floor at the end where the belt went on, by 
 angle bolts made for the purpose, which held the feet of the machines 
 to the floor; these bolts went down through the floor, and were held
 
 2~J2 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 by nuts screwed on below the floor. Others were held by nails of 
 similar construction; others by common nails, and one or two by 
 cleats of wood, nailed down on each side of the machine; they were 
 also attached to the gearing. That the bolts, nails and cleats were 
 so placed for the purpose of steadying the machines and preventing 
 them from being moved or lifted up by the action of the belt. But 
 to this finding the court added that that was not the only purpose. 
 On these findings, assuming them to be sustained by evidence, I 
 think it clear on all the authorities cited, that the conclusion that, 
 as between the present parties, the machines were fixtures and part 
 of the freehold was correct. The rule declared by statute (2 R. S. 
 83, sees. 6 and 7), as between the personal representatives and the 
 heirs of a deceased party, is not controlling in cases between vendor 
 and vendee. Potter v. Cromwell, 40 N. Y. 287; Voorhees v. McGinnis, 
 48 Id. 278; House v. House, 10 Paige, 158. That enactment makes 
 the mode of annexation the test whether the property retains its 
 character of personalty, and gives to the executor or administrator 
 things annexed to the freehold, or to any building, for the purpose 
 of trade or manufacture, and not fixed into the wall of a house, so 
 as to be essential to its support. But, as between vendor and 
 vendee, the mode of annexation is not the controlling test. The 
 purpose of the annexation, and the intent with which it was made, 
 is in such cases the most important consideration. The permanency 
 of the attachment does not depend so much upon the degree of 
 physical force with which the thing is attached as upon the motive 
 and intention of the party in attaching it. If the article is attached 
 for temporary use with the intention of removing it, a mortgagee 
 cannot interfere with its removal by the mortgagor. If it is placed 
 there for the permanent improvement of the freehold, he may. Crane 
 v. Bingham, 3 Stockton, N. J. 29; Potter v. Cromwell, 40 N. Y. 296, 
 297. The mode of annexation may, it is true, in the absence of 
 other proof of intent, be controlling. It may be in itself so insepa- 
 rable and permanent as to render the article necessarily a part of the 
 realty, and in case of less thorough annexation, the mode of attach- 
 ment may afford convincing evidence that the intention was that the 
 attachment should be permanent; as, for instance, where the build- 
 ing is constructed expressly to receive the machine or other articles, 
 and it could not be removed without material 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. These are tests which have been 
 frequently applied in determining whether the annexation was 
 intended to be temporary or permanent, but they are not the only
 
 V. 3-J FIXTURES: INTENTION IN ANNEXING. 273 
 
 ones, nor is it indispensable that any of these conditions should 
 exist. In the case of Potter v. Cromwell, 40 N. Y. 287, before 
 referred to, this court, after a full examination of the numerous 
 authorities, gave its approval to the criterion of a fixture as stated 
 in Teaffx. Hewitt, 1 McCook, 511, viz., the union of three requi- 
 sites. First. Actual annexation to the realty or something appur- 
 tenant thereto. Second. Application to the use or purpose to which 
 this part of the realty with which it is connected is appropriated. 
 Third. The intention of the party making the annexation to make a 
 permanent accession to the freehold. By the application of that 
 criterion this court, with only one dissenting voice, decided that a 
 portable grist-mill for grinding flour, placed in a building which had 
 been used as a tannery, and was provided with steam power pre- 
 viously placed in the building to grind bark for the tannery, became 
 part of the freehold, as between a judgment-creditor and a pur- 
 chaser of the realty. It was found by the referee that the grist-mill 
 was placed there by the owner of the realty for the purpose of being 
 used as a permanent structure for a custom grist-mill for the neigh- 
 borhood, and on that ground it was held by this court to have 
 become part of the realty, notwithstanding the fact that it was not 
 attached to the walls of the building, but annexed, as in the present 
 case, only to the floor. It had been built elsewhere, and was con- 
 structed in such a manner as to be readily taken apart without injury 
 to itself or to the building, and moved from place to place. There 
 was a very slight difference in the mode of annexation from tnat 
 in the present case, to wit: That to support the floor, upright posts 
 were placed under it resting on the cellar floor, while in the present 
 case the building was constructed expressly for the purpose of 
 receiving machinery of the description which was placed there, and 
 of sufficient strength to render additional support unnecessary, 
 although, in the present case, some of the machines weighed three 
 or four times as much as the portable grist-mill. The case of 
 Murdoch v. Gifford, 18 N. Y. 28, which is mainly relied upon by the 
 appellant here, was distinguished by showing that, in that case, not 
 only was there an entire absence of any finding that the looms were 
 placed in the building and attached thereto for the purpose of 
 becoming a permanent part of it, but that that fact was expressly 
 negatived by the finding that the attachment was for the sole pur- 
 pose of keeping them steady in their places — a fact which the court, 
 in the present case, although requested expressly, refused to find. 
 Numerous other cases are referred to, where, notwithstanding similar 
 attachments, the property was held to be personalty; but it appears 
 that in all these cases the object of the attachment excluded the 
 
 LAW OF PROP. IN LAND — l8
 
 274 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 intention of rendering them permanent fixtures. The object, and 
 not the method of the attachment, appears to be considered the con- 
 trolling feature. " The principles applicable as between vendor and 
 purchaser must vary with the varying circumstances of each case. 
 The question of intention enters into and makes an element of each 
 case. The circumstances are to be taken into account to show 
 whether the erections were made for the permanent improvement of 
 the freehold or for the temporary purpose of trade." Farrar v. 
 Chauffetcte, 5 Denio, 527. These principles are recognized in the 
 case of Voorhees v. McGinnis, 48 N. Y. 278. The annexation in that 
 case, it is true, was of a much more complete character than in the 
 present case, or in that of Potter v. Cromwell, 40 N. Y. 287, but the 
 intention of the parties in making the annexation is recognized as 
 one of the tests, and it is conceded that the circumstances that the 
 machinery may or may not be removed without injury to the building 
 or to itself is not now deemed to be controlling, and Washburn on 
 Real Property, vol. 1, p. 8, is cited, in which the author says: " It may 
 be stated that whether a thing which may be a fixture becomes a part 
 of the realty by annexing it depends, as a general proposition, upon 
 the intention with which it was done." 
 
 That the machinery in question was adapted to the use for which 
 the building was constructed is conceded, and, without further 
 pursuing the authorities, I will briefly refer to those cited in the 
 opinion of my learned brother, Allen, J., in support of the propo- 
 sition that these were not fixtures. Hellaivcll v. Eastwood, 6 Exch. 
 W., H. & G., 295, was a case between landlord and tenant. The 
 alleged fixtures, presumably, were put in by the tenant, as they were 
 distrained for rent. The object and purpose of the annexation was 
 stated by the court not to have been to improve the inheritance, but 
 merely to render the machines steadier and more capable of use as 
 chattels. 
 
 Walker v. Sherman, 20 Wend. 636, was partition, and although the 
 machines in dispute had been for many years in the building, the 
 difficulty was that they were not affixed or fastened to the building 
 in any manner, and the commissioners treated them as personalty; 
 but other machinery in the same factory, which was fastened to the 
 building, was treated as realty. (See pp. 637, 638.) This case holds, 
 in respect to machinery, that the two characteristics of adaptation 
 to the enjoyment of the realty and annexation to it must concur, but 
 tin! where the former characteristic is present, the slightest fasten- 
 ing; will be sufficient to constitute annexation. (See pp. 651, 653, 
 655O It is enough that it is permanently or habitually attached. 
 In Vanderpoel v. Van Allen, 10 Barb. 157, the machines merely stood
 
 V. 3-] FIXTURES : INTENTION IN ANNEXING. 275 
 
 upon the flaor, without being attached in any way, except by the 
 belts which were used for motion and not for fastening, except as 
 to some of the pieces, in respect to which cleats were used to make 
 them stand level, and there was no evidence of any intention to 
 make them part of the freehold, but all the facts tended to the con- 
 trary. Murdoch v. Gijford, 18 N. Y. 28, has already been referred 
 to, and only establishes that the mode of attachment shown in that 
 case was not of itself sufficient to make the machines fixtures, where 
 the purpose of the attachment was solely for the more convenient 
 use of them as chattels, and in the absence of any intention that it 
 should be permanent. 
 
 The finding of the court that, in the present case, the original 
 intention of the annexation was to make the machinery permanently 
 a part of the building is not, I think, unsupported by evidence. 
 The building was proved to have been erected especially for the pur- 
 pose of a twine factory, and with reference to holding this descrip- 
 tion of machinery. The machines were of great weight, many of 
 them weighing from one to four tons. They were all permanently 
 fastened to the floor of the building, and it is conceded that the)' 
 were adapted to the purposes for which the building was erected. 
 The plaintiff testified that they were placed there for permanent use. 
 The fair interpretation of this evidence is that they were placed there 
 for permanent use in that building; they constituted part of the 
 twine factory, and about two-fifths in value of the entire establish- 
 ment; and it appeared in evidence that although they were capable 
 of removal they would be of less value if taken out and sold than if 
 they remained where they were, as part of the factory. From this 
 evidence the court was, I think, justified in finding that they were 
 intended as a permanent part of the structure, quite as much so as 
 the portable grist-mill in the case of Potter v. Cromwell, 40 N. Y. 
 287. The dealings between the plaintiff and his vendee, also showed 
 that they were regarded as fixtures which passed with the land; and 
 although, if the property had in its own nature a determinate legal 
 character, either as realty or personalty, the manner in which the 
 parties treated it would not change that character; yet when, as in 
 this case, the character of the property is not so fixed, but depends 
 upon the intention with which it was annexed, the conduct of the 
 party who annexed it has an important bearing, as throwing light 
 upon that intention. He evidently understood that it was part of 
 the realty, which he could not have done if he had placed it on the 
 premises for temporary use merely, and with the intention that it 
 should remain personalty. When contracting for the sale of the 
 property, he described it as the real estate situate in Johnsville, viz.,
 
 2/6 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 the twine factory and flax-mill, etc., etc., with the machinery, etc., 
 and sold the whole for a gross sum of $28,000. By this oontract he 
 includes the machinery under the general head of real estate, and in 
 fulfillment of that contract he tendered a conveyance describing the 
 land only, and took back a mortgage for $21,000 of the purchase- 
 money, describing the land only, although the land and buildings, 
 without the machinery, were worth a much less sum than the amount 
 of the mortgage. The fact that at the request of the purchaser he 
 afterwards executed a supplementary bill of sale is not of much 
 significance. It is found by the court that there were some tools and 
 machinery which were loose and are not claimed in the action. The 
 bill of sale also includes fixtures, which necessarily passed with the 
 deed. It was not a necessary instrument, as whatever was person- 
 alty would have passed by delivery; but it was probably given 
 because it conformed to the intention of the plaintiff and was a 
 simple confirmation of what he believed he had already done, and 
 was requested by the purchaser or his adviser. 
 
 After it has been so repeatedly declared by the courts that the 
 character of articles of the description now in controversy attached 
 to a building, whether they are to be regarded as realty or personalty, 
 is to be determined by the intent of the party attaching them, it 
 would be peculiarly unjust to depart from that doctrine in a case 
 like the present, where the owner of the land and buildings, who 
 himself made the annexation, and necessarily knows the intent with 
 which it was made, afterwards sells the whole establishment and 
 takes for the purchase-money a mortgage manifestly intended to 
 cover all the property sold, but which would be a totally inadequate 
 security if the property which he had annexed were not treated as 
 a part of the realty. There can be no equity in such a case in favor 
 of a mere judgment-creditor of the vendee as against the mortgagee. 
 
 On the whole case I think the findings of fact are sustained by 
 evidence, and that the decision of the court below should be 
 affirmed, with costs. 
 
 Folger, J. — I think that, either from the evidence or the findings, 
 the grantor and mortgagee placed the machinery in the building for 
 a permanent purpose and for the better enjoyment of his estate. 
 Walmsley v. Milne, 7 C. B. (N. S.) *i 15 ; that there did concur actual 
 annexation of the machinery; applicability to the use to which that 
 part of the real estate was appropriated, with which it was con- 
 ne< ted; and an intention of making the annexation so as to make a 
 permanent accession to the freehold. Ifoylr v. P. and M. Railroad, 
 54 x '- V. Ji|- 324. 
 
 I therefore concur in the opinion of Rappalo, J.
 
 v. a] fixtures: intention in annexing. 277 
 
 Allen, J. (dissenting). — The question presented by this appeal is, 
 whether the plaintiff, as mortgagee of real property, or the defend- 
 ants, as execution creditors of the mortgagor has the better legal 
 right to hold the machinery mentioned in the pleadings as security 
 for their respective debts. The property in controversy is in its 
 nature personal, subject to a levy and sale upon execution, and would 
 not ordinarily pass under a conveyance or mortgage of realty. It 
 can only be classed with, and treated as, a part of the realty upon 
 which it may be or in connection with which it is used by annexation 
 thereto, either actual or constructive. It belongs to that class of 
 property which, under some circumstances, may be annexed to real 
 property and become what is known in the law as a fixture, so as to 
 pass under a conveyance of the lands and as part of them, in con- 
 formity with the maxim, " Quicquid plantatur solo, solo cedit." 
 Whether a chattel has, by annexation, become a part of the realty 
 depends upon circumstances, and very much upon the intent of the 
 party by whom the annexation has been made, as such intent can be 
 gathered from what is said and done at the time — the character of 
 the chattel and the purposes for and the manner in. which the annexa- 
 tion is made. If the chattel is not a necessary accessory to the 
 building, and is placed in position merely for the purpose of using it 
 for manufacturing or trading purposes, and not with a view to the per- 
 manent benefit of the realty, it will not, ordinarily, become a part of 
 the realty. Where the object of affixing the chattel to the freehold is 
 for its more convenient use as a chattel, as shown by its nature and 
 the use to which it is put, it will retain the character which it had 
 before it was annexed. The law of fixtures has been the subject of 
 much discussion in the courts and by elementary writers, and any 
 attempt to reconcile the views of judges or commentators, or to 
 deduce from them any fixed or certain standard or rule by which to 
 determine whether, in any given case, a chattel has lost its character 
 as such and become a part of the freehold, would be vain. So a dis- 
 cussion at any length of the general principles of the law of fixtures, 
 or a review of the authorities, would not be profitable, in view of all 
 that has been written upon the subject. We are relieved from the 
 necessity of a consideration of the general rules applicable to this 
 branch of the law by adjudications heretofore made, which have, in 
 this State at least, become a rule of property, and cannot properly 
 be disregarded by us, and which are decisive of the questions 
 involved in this appeal. The chattels and machinery, the subject 
 of the controversy in this action, were not so annexed to the build- 
 ing as to become a part of it, or necessary to its support, but they 
 were susceptible of removal without material injury to themselves or
 
 278 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 the realty. The only fastenings were such as were required to keep 
 the machinery steady while in operation. The fastenings were only 
 for that purpose, and the only connection with the motive power 
 and other permanent machinery was by bands and straps, by means 
 of which it was operated. It was not a part of, or necessary to, the 
 stationary and permanent machinery. It was not peculiarly fitted 
 for or adapted to, the building in which it was, but was equally 
 capable of being used in any other building having strength to sup- 
 port it, and motive power for its operation. It was of the same 
 general character of machinery as was used for the same purpose 
 elsewhere, and its value was not impaired by removal. 
 
 The mortgage under which the plaintiff claims, follows the grant 
 by the plaintiff to the mortgagor and is of the realty described by 
 metes and bounds without mention of the machinery. The evidence 
 that the purchase by the mortgagor of the plaintiff was of the land 
 together with the " machinery, tools, and fixtures " belonging to 
 the vendor, for a sum in gross, does not tend to prove that the 
 machinery, any more than the tools, was a part of the realty. On 
 the contrary, the fact that both are mentioned independently and 
 separately is some indication that it was supposed neither would be 
 included in the sale of the lands without express mention. Aside 
 from the evidence admitted under objection of the purpose and 
 intent of the plaintiff to take security upon the machinery, fixtures 
 and tools, as well as the land, which we think was incompetent, there 
 was no evidence that the plaintiff at the time he put the machinery 
 in the mill had any intent other than to use it for the purpose to 
 which it was adapted so long as it should be convenient or profit- 
 able, or that he intended to connect it permanently with the realty 
 with a view to enhance its value. In other words, there was no evi- 
 dence to justify a finding that the machinery was put in the building 
 except for use as a chattel. If the property in controversy was not 
 described in the mortgage or covered by it as part of the property 
 mentioned and described therein, the purpose and intent of the mort- 
 gagee could not vary the legal effect of that instrument, or make it 
 operative upon property not within its terms. The case is clearly 
 within the principle, and cannot be distinguished from several well 
 considered cases, in which the question has arisen between owners 
 or mortgagees of the freehold and creditors. In Hellawell v. East- 
 wood, 6 Exch. W. H. & G. 294, it was adjudged, that machinery for 
 the purpose of manufacture (/. e., mules used for spinning cotton), 
 fixed by means of screws, some into the wooden floors of a cotton- 
 mill and some by being sunk into the some flooring and secured by 
 molten lead, were distrainable for rent. Fixtures are not the
 
 V. 3-] FIXTURES : INTENTION IN ANNEXING. 279 
 
 subjects of a distress for rent. In Walker v. Sherman, 20 Wend. 636, 
 machinery in a woolen factory, consisting of carding machines, 
 picking machines, looms, etc., although used for eleven years or 
 more, and passed from one owner of the factory to another as parts 
 of the factory, were treated as personal property and as not belong- 
 ing to the realty by commissioners in partition, and their decision 
 and action was affirmed by the Supreme Court upon an elaborate 
 review of all the authorities bearing upon the question. In Vander- 
 poel v. Van Allen, 10 Barb. 157, the question was between mort- 
 gagees of the realty and judgment-creditors of the mortgagors who 
 had levied upon the machinery in a cotton factory and other mills, 
 being the premises mortgaged to the plaintiffs. The machinery in 
 controversy there was the same as that in controversy here, and was 
 placed and fastened to the building substantially in the same man- 
 ner. It was held by Judge Brown, that the property was not part 
 of the realty or within the denomination of fixtures, and that the 
 judgment-creditors were entitled to a decree dissolving the injunc- 
 tion and establishing their right to the property in dispute. Murdock 
 v. Gifford, 18 N. Y. 28, was also a controversy between mortgagees 
 and creditors, involving the same question, and it received the same 
 solution as in Vanderpoel v. Van Allen, supra. Cases have been 
 since decided in this court distinguished by their circumstances 
 from those referred to, and the circumstances which have been 
 deemed sufficient to take them out of the principles adjudged in 
 Murdock v. Gifford, are pointed out by the judges pronouncing judg- 
 ment; but in no case that has come under my observation has the 
 authority of the case last mentioned been questioned. Many other 
 cases in this State, in other States and England, coincide with the 
 rule as stated in Murdoch v. Gifford. There is nothing in this case 
 to distinguish it from that and we are not at liberty, by reason of 
 any supposed equities in favor of either party, to unsettle the law so 
 well established in this State by taking distinctions immaterial and 
 without substance for the purpose of arriving at a different result. 
 These machines were not, as said before, fitted to this building and 
 insusceptible of use elsewhere, neither were they accessories neces- 
 sary to the enjoyment and use of the building in which they were. 
 The learned judge erred in holding that the several articles were 
 fixtures, and the facts found by him in support of such findings, so 
 far as they were authorized by the evidence were entirely insufficient 
 to make them a part of the freehold. 
 
 For affirmance: Church, Ch. J., Rapallo, Folger and Miller, 
 JJ. For reversal: Allen, Andrews and Earl, JJ. 1 
 
 1 For citations and discussions of this case, in cases reported herein, see pp. 
 235 and 260. — Ed.
 
 280 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 b. The actual intent of the annexer. 
 
 SNEDEKER v. WARRING. 
 
 12 New York, 170. — 1854. 
 
 [Reported herein at p. 231.] 
 
 McKEAGE v. HANOVER FIRE INSURANCE CO. 
 
 81 New York, 38.— 1880 
 [Reported herein at p. 245.] 
 
 c. The " reasonably presumable intent''' in annexing, as inferred from 
 the surrounding circumstances. 
 
 (1.) What is Meant by " Reasonably Presumable Intent." 
 
 THE STATE SAVINGS BANK v. KERCHEVAL. 
 
 65 Missouri, 682. — 1877. 
 
 Suit to enjoin the removal of a frame building. 
 
 Defendant Kercheval conveyed his lands to a trustee to secure a 
 debt due plaintiff. Thereafter he employed defendant, Allen, to 
 erect an office building on the premises. This structure was a tem- 
 porary affair, built with intention that it should be removed. Kerche- 
 val becoming insolvent, transferred it, in settlement of account, to 
 Allen, who is now about to remove it. 
 
 The court below granted a perpetual injunction. Defendant 
 appeals. 
 
 Henry, J. — The questions for consideration here are: 1st. Was 
 the building, which it is alleged the defendants were about to remove, 
 personal property? 
 
 2d. If not, would an action for damages have afforded an adequate 
 remedy. 
 
 It must be admitted that the law in regard to fixtures is in a some- 
 what chaotic state. It is frequently difficult to determine, upon 
 principle, whether an article of property is a fixture or not; there is 
 a must embarrassing conflict in the adjudged cases. On grounds of 
 publi< policy, to encourage trade, manufactures and agriculture, 
 many things are regarded as chattels in controversies between land- 
 lords and truants, which would unquestionably be held as fixtures as
 
 V. 3-] FIXTURES: INTENTION IN ANNEXING. 28l 
 
 between vendor and vendee; and the same rule prevails between 
 mortgagor and mortgagee, as between grantor and grantee. 1,\ 
 determining whether a building is part of and passes with the land, 
 a good deal depends upon the object of its erection, the use for 
 which it was designed. The intention of the party making the 
 improvement, ultimately to remove it from the premises, will not, 
 by any means, be a controlling fact. One may erect a brick or a 
 stone house, with an intention, after brief occupancy, to tear it 
 down and build another on the same spot, but that intention would 
 not make the building a chattel. " The destination which gives a 
 movable object an immovable character, result from facts and circum- 
 stances determined by the law itself, and could neither be established 
 not taken away by the simple declaration of the proprietor, whether 
 oral or written." Sncdeker v. Warring, 2 Kernan, 178. In Goff v. 
 O 'Conner, 16 111. 422, the court said: " Houses in common intend- 
 ment of the law, are not fixtures, but part of the land. 
 This does not depend, in the case of houses, so much upon the par- 
 ticular mode of attaching or fixing, and connecting them with the 
 land, upon which they stand or rest, as upon the uses and purposes 
 for which they were erected and designed." In Cole v. Stewart, n 
 Cush. 182, the building was intended by the owner to be temporary, 
 and was built with a view to ultimate removal. In a contest between 
 the mortgagee, whose mortgage was executed subsequent to the 
 erection of the house, and a purchaser of the building from the mort- 
 gagor, it was held to be a fixture. In the light of these cases, and 
 many others which we have examined, we do not regard the fact, 
 that the building in question was erected as a temporary building, 
 and with an intention of ultimate removal, at all decisive as to 
 whether it became a part of the realty or not. 
 
 The manner in which a building is placed upon land, whether upon 
 wooden posts, or a rock, or brick foundation, does not determine its 
 character. As was said by Parker, J., in Sncdeker v. Warring, above 
 cited: " A thing may be as firmly fixed to the land by gravitation 
 as by clamps or cement. Its character may depend upon the object 
 of its erection." In Teaff v. Hewett, 1 Ohio St. 511, it was held 
 that: ' The intention of the party making the annexation to make 
 the article a permanent accession to the freehold, this intention to 
 be 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 and use for which the annexation has 
 been made," is a controlling circumstance in determining whether 
 the structure is to be regarded as a fixture or not. In the case of 
 Benjamin F. Butler, Adm. v. Page, 7 Met. 42, Shaw, C. J., delivering
 
 282 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. 1 
 
 the opinion of the court, said: " All buildings erected and fixtures 
 placed on mortgaged premises by the mortgagor, must be regarded 
 as permanently annexed to the freehold. They go to enhance the 
 value of the estate, and will, therefore, inure to the benefit of the 
 mortgagee so far as they increase his security for his debt, and to 
 the same extent they enhance the value of the equity of redemption, 
 and thereby inure to the benefit of the mortgagor." In contro- 
 versies between mortgagor and mortgagee the rule is more favorable 
 to the mortgagee in relation to fixtures than that which is applied as 
 between landlord and tenant, and, applying the principles announced 
 in the cases which we have cited, which we believe to be sound and 
 salutary, we must hold that the building in question was a part of 
 the realty, and that neither the mortgagor, nor the purchaser from 
 him has a right to remove it. It becomes a part of the plaintiff's 
 security for its debt. 
 
 The remaining question is, did the facts alleged in the petition 
 warrant the court in restraining the parties by injunction from 
 removing the budding. It is not essential that the injury threatened 
 shall be irreparable, to warrant a resort to the remedy by injunction. 
 Our statute provides, sec. 24, page 1032, Wag. Stat., that " the 
 remedy by writ of injunction shall exist in all cases, when an injury 
 to real or personal property is threatened, and to prevent the doing of 
 any legal wrong whatever, whenever in the opinion of the court, an 
 adequate remedy cannot be afforded by an action for damages." 
 AVould an action for damages here have afforded an adequate remedy, 
 is *the question, and not whether the threatened injury would have 
 been irreparable. The building was erected to be used in connection 
 with, and as an office, for the mill. It was erected to supply the 
 place of an office formerly used, which had been appropriated to 
 another purpose. Its immediate and constant use was of importance 
 to the milling business. The value of the building which a jury 
 might have given as damages would not have been sufficient com- 
 pensation to the owner for its removal. The defendant Allen may 
 have been solvent, amply able to respond in damages for his tres- 
 pass, but it does not therefore follow that he could not be restrained 
 from severing from the land a house which belonged, not to him> 
 but to the owner of the land. If a man of large fortune, so wealthy 
 as to place beyond a doubt his ability to pay any damages which 
 might be assessed to me for his trespass, should determine and 
 threaten to tear down my dwelling over my head, will it be said that 
 a 1 'Hut of equity would be powerless to restrain him from executing 
 his threats and that 1 would have no remedy but to suffer the 
 wrong and sue for damages? There are inconveniences and per-
 
 V. 5-] FIXTURES: BY DESTINATION. 283 
 
 plexities to which one may be subjected by a trespass such as we are 
 considering, for which a jury could not, under the rules of law, fully 
 compensate him, and we think the provision of our statute broad 
 enough, however the law may have been before its enactment, to 
 authorize a resort to injunction proceedings in such cases. The 
 judgment of the Circuit Court is affirmed. 
 
 Affirmed. 
 
 (2.) How the " Reasonably Presumable Intent" in Annexing is 
 Ascertained. 
 
 (a.) From the nature of the chattel annexed} 
 
 (o ) From the mode and degree of annexation.' 1 
 
 (c.) From the apparent appropriation of the chattel to the use or purpose 
 of that part of the realty with which it is connected. 3 
 
 (d.) From the relation of the annexor to the chattel and to the land} 
 
 4. The Apparent Appropriation of the Chattel to the Use or 
 Purpose of that Part of the Realty With Which it is 
 Connected. Fixtures by Destination. 
 
 VOORHIS v. FREEMAN. 
 2 Watts and Sergeant (Pa.), 116. — 1841. 
 {Reported herein at p. 224. ] 5 
 
 5. The Relation of the Annexor to the Chattel and the 
 Land as Bearing on the '' Reasonably Presumable Intent " 
 in Annexing. 
 
 A. The chattel-owner has no interest in the land. 
 
 a. The chattel-owner is annexor. 
 
 (1.) He Annexes without License of, or Agreement with, Landowner. 
 
 RITCHMYER v. morss. 
 
 3 Keyes (N. Y.), 349. — 1867. 
 
 Davies, Ch. J. — The plaintiff claims in this action to recover the 
 value of a certain building located upon the lands of the defendants, 
 
 'See supra et infra, passim. 3 See p. 283, infra. 
 
 2 See p. 234, supra. 4 See p. 283, infra. 
 
 5 See also Snedeker v. Warring, p. 231, supra, and Farrar v. Stackpole, p. 227, 
 supra, and compare McKeage v. Insurance Co., p. 245, supra, and Hoyle v. R. 
 R. Co., p. 248, supra. — Ed.
 
 284 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 which he claims as owner, and which was taken possession of and 
 removed by defendants. The building was erected by one Vroman 
 in the fall of 1849, at which time the land upon which it was erected 
 was owned by Alonzo C. Paige and others. It was a good frame 
 building, as described by the plaintiff, fifteen by sixteen feet, ten feet 
 posts, nicely inclosed with pine siding, pine shingles, a good cornice 
 on one end> painted white, with two coats; one door outside and 
 one inside; two windows, one in the front end and one in the side, 
 and a window in the back end; there was a partition in it lathed and 
 plastered, counter and shelves in the front part of the building. The 
 building stood on a foundation of loose stones, with a back chimney 
 in it. The plaintiff purchased it on the 21st of November, 1859, 
 having previously occupied it for six years. The defendants removed 
 it in December, i860. The plaintiff testified he did not know by 
 whose authority the shop was built there; did not know for whose 
 benefit Vroman built it; he did not know that Vroman occupied as 
 tenant of anybody when he erected the building. 
 
 The defendants then proved that on the 16th day of June, i860, 
 they entered into a written contract with Paige and Potter, then the 
 owners of the land upon which said building was located, and agreed 
 to pay therefor the sum of $2,500, on the execution of a good and 
 sufficient deed therefor, and that the defendants took possession of 
 said land under said contract. That they were in possession under 
 that contract at the time the shop was removed; that there were 
 several other buildings on this lot at the time they bought, and the 
 defendants took possession of the whole lot and all the buildings, 
 including this shop; that the defendants subsequently received a 
 deed for said premises pursuant to the terms of their contract; that 
 the defendants have occupied all the premises since the contract to 
 them. 
 
 The judge charged the jury that as matter of law the plaintiff was 
 entitled to recover, to which charge the counsel for the defendants 
 then and there duly excepted. The judge further charged that the 
 only question for the jury to consider was the question of damages, 
 and to this the defendants also excepted. 
 
 I think the learned judge at the circuit was in error in holding as 
 a matter of law that upon this testimony the plaintiff was entitled to 
 recover. That testimony showed, in brief, that the plaintiff had 
 be< ome the purchaser of a building erected upon land owned by the 
 defendants, and that the defendants had taken possession of the 
 building and removed it, as they clearly had a right to do if it was 
 attached to the freehold and passed under the contract and convey- 
 ance to them. That it did so pass is establishedby authority. Mott
 
 V. 5.] FIXTURES: ANNEXER STRANGER TO LAND. 285 
 
 v. Palmer, 1 N. Y. 564. In that case Judge Bronson said: ' The 
 word ' land ' includes not only the soil but everything attached to 
 it, whether attached by the course of nature, as trees, herbage and 
 water, or by the hand of man, as buildings and fences. This is but 
 common learning, and there is no more room for question that a 
 grant of land, eo nomine, will carry buildings and fences than there 
 is that it will carry growing trees and herbage upon or mines and 
 quarries in the ground." 
 
 The cases relied upon to take this case out of this well-recognized 
 and firmly established rule of law do not apply to the facts as 
 proven on the trial of this action. In the first place, it was not 
 established that this building was erected upon any agreement 
 between Vroman and the then owners of the fee of the land that it 
 was to be considered strictly a personal chattel. Second, it was not 
 proven that the building was erected by a tenant for the purposes of 
 his trade and business, or that the relation of landlord and tenant 
 ever existed between Vroman and the defendant's grantors, or 
 between them and the plaintiff. The first proposition was necessary 
 to establish to make applicable the doctrine of the case of Smith v. 
 Benson, 1 Hill, 176. In that case, Cowen, J., said: "There both 
 parties agreed to consider it (the building in question) as in a state 
 of severance from the freehold, and no one had ever thought of its 
 being so fixed as to be irremovable. Prima facie, such a building 
 would be a fixture and irremovable. The legal effect of putting it 
 on another's land would be to make it a part of the freehold. But 
 the parties concerned may control the legal effect of any transaction 
 between them by an express agreement. They have in effect stipu- 
 lated that the placing this building on the ground should work noth- 
 ing more toward changing its nature than if it had been the loose 
 timber of the house, instead of the house itself. The law often 
 implies an agreement of nearly the same character from the relation 
 of lessor and lessee, or tenant and remainder-man. And surely the 
 parties may, by express agreement, do the same thing and even 
 more." Equally inapplicable is the doctrine of Ombony v. Jones (ubi 
 supra), as the second proposition above stated was not established 
 by proof. 
 
 The rule to be gathered from the cases is then stated thus by 
 Judge Grover: " That the tenant may remove during his term all 
 erections made by him for the purpose of trade that can be removed 
 without injury to the land or something attached thereto." But in 
 the case at bar no tenant sought to exercise any such right during 
 his term. There is an utter failure to establish the first foundation 
 for invoking the aid of such a principle, viz., that the relation of
 
 286 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 tenant at any time existed. When that fact was proven, it then 
 would have become needful to show that the building in question 
 was erected by the tenant for the purposes of trade or his business, 
 and that he exercised his right of removal during his term. 
 
 Upon the facts proven on this trial, there can be no doubt that 
 the defendants were the owners of the building in controversy, and 
 it follows that the plaintiff is not entitled to recover its value. The 
 learned judge erred in charging the jury that as a matter of law upon 
 the facts proven, the plaintiff was entitled to recover. The judgment 
 must be reversed and a new trial ordered, costs to abide the event. 1 
 
 (2.) Chattel-owner Has License of, or Agreement with Landowner. 
 
 MOTT v. PALMER. 
 
 1 New York, 564. — 1848. 
 
 Action for breach of covenant of seisin. Judgment below for 
 plaintiff (Palmer.) Mott appeals. The opinion states the facts. 
 
 Ruggles, J. — In December, 1841, Mott conveyed to Palmer a 
 farm of land in Columbia county, by a deed containing the following 
 covenant: 
 
 " And the said Philander Mott doth hereby covenant and agree 
 that at the delivery hereof he is the lawful owner of the premises 
 above granted, and seized of a good and indefeasible estate of 
 inheritance therein clear of all incumbrance." 
 
 This action was brought by Palmer, the grantee, on the covenant 
 in the deed, to recover the value of a rail fence which stood on the 
 land when the deed was executed, but which did not belong to Mott, 
 the grantor. The facts were, that the fence was erected on Mott's 
 land in 1840 by one Brown, (who owned the adjoining land,) under 
 an agreement between him and Mott, by which Brown was to fence 
 in, temporarily, a part of Mott's land with his own, and to cut and 
 tike away the grass growing on Mott's land, with leave to take away 
 the fence whenever he liked. After Mott conveyed to Palmer the 
 land on which the fence stood, Palmer removed the fence and con- 
 verteil it to his own use. Brown thereupon sued him before a jus- 
 
 1 PARKER, J., in a concurring opinion says, with regard to this building: 
 " It is undisputed that Vroman, who built it, was not the owner of the land on 
 which it was built, either in fee or as tenant for life or for years; nor is there 
 any evidence tending to show that he built it pursuant to any agreement or 
 itanding whatever with the owner of the land. So far as appears, he was 
 a trespasser in erecting it upon the land where it was placed." — Ed.
 
 V. 5.] FIXTURES: ANNEXER HAS LICENSE. 287 
 
 tice for the fence and recovered, Mott being a witness on that trial 
 against Palmer. Although the evidence to prove these facts was at 
 first offered by Palmer on the trial of this cause in the court below 
 and rejected by the court, it was afterwards given by the defendant 
 Mott. 
 
 The question now is whether in this action brought by Palmer, the 
 grantee, against Mott, his grantor, on the covenant of ownership and 
 seisin in the deed, Palmer is entitled to recover the value of the 
 fence. A grantor who executes a conveyance of land undertakes to 
 convey everything described in his deed; and by a covenant of seisin 
 he assumes to be the owner of all he undertakes to convey. The 
 deed in question purported to " grant and convey all that certain lot 
 or farm of land situate in the town of Chatham, county of Columbia, 
 bounded, etc., with the appurtenances," etc. The word land, when 
 used in a deed, includes not only the naked earth, but everything 
 within it and the buildings, trees, fixtures and fences upon it. Good- 
 rich v. Jones, 2 Hill, 143; Walker v. Sherman, 20 Wend. 639, 640, 
 646; Green v. Armstrong, 1 Denio, 554; Com. Dig. Grant, E. ; Co. 
 Litt. 4a; 2 Roll. 265. A deed passes all the incidents to the land as 
 well as the land itself, and as well when they are not expressed as 
 when they are. Fixtures belonging to the owner of the land, being 
 part of the land, cannot be reserved by parol when the land is con- 
 veyed; the deed conveys them to the grantee unless the reservation 
 be in writing. Noble v. Bosworth, 19 Pick. 314. If the fence had 
 belonged to Mott it would have passed by his deed; not by force of 
 the word appurtenances contained in the deed, but without that 
 word, and as part of the land. Trees, buildings, fixtures, and fences 
 on a farm are corporeal in their nature, and the subject of seisin, 
 like the land itself, of which they are regarded in the law as a part. 
 Fences are perishable by the effect of time, and so are trees and 
 houses; but indestructibility is not one of the essential attributes of 
 real estate. Fences are not only indispensable to the enjoyment of 
 real estate, but they are, in their nature, real estate to the same 
 extent that houses and other structures on the land are so. A rail, 
 before it is used in the construction of a fence, is personal property, 
 and so is a loose timber before it is used in the construction of a 
 house. When either is applied to its appropriate use in building a 
 fence or a house, its legal nature is changed. It becomes real estate, 
 and is governed by the law which regulates land, descending to the 
 heir as part of the inheritance, and passing by a deed as part of the 
 freehold. A fence may be easily detached from the earth, but not 
 more easily than the stones which lie on its surface, and both are 
 part of the land, and therefore it is that a building or fence belc
 
 288 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CIL II. 
 
 ing to the owner of the land will pass by his deed of the land without 
 being expressed or designated as part of the thing granted. 
 
 But the earth within specified boundary lines may be owned by one 
 man, and the buildings, trees and fences standing on it by another. 
 A man may have an inheritance in an upper chamber, although the 
 title to the lower buildings and soil be in another. Shep. Touch. 
 206; 1 Inst. 4Sb. And it is a corporeal inheritance. 10 Vin. 202. 
 Buildings and fixtures erected by a tenant for the purposes of trade 
 belong to him, and are removable without the consent of his land- 
 lord. Holmes v. Tremper, 20 Johns. 30; Miller v. Plumb, 6 Cowen, 
 665 ; Doty v. Gorham t 5 Pick. 489. Herlakenden s Case \ 4 Co. R. 63, 
 affords an instance in which one man owned the land and another 
 the growing trees upon it. In Rogers v. Woodbury, 15 Pick. 156, Put- 
 nam, J., in speaking of a house which a man had erected on land 
 which did not belong to him, said " it might or might not be parcel 
 of the realty. If the owner of the land owned the building, it would 
 be so. If he did not, and the owner of the building had no interest 
 in the land, the building would be personal property." Smith v. 
 Benson, 1 Hill, 176, was the case of a dwelling-house and grocery 
 belonging to one man, although standing on the land of another; and 
 in Russell 'v. Richard, 1 Fairf. 431, the owner of land on which another 
 man had erected a saw-mill by his consent, executed a deed for the 
 land and the mill, bat it was held that the conveyance passed no 
 title to the mill, because it was the property of him who built it. 
 The conclusion derived from these cases against the plaintiff's right 
 of recovery on the covenant is, that the defendant's deed purports 
 to be a grant of real estate only, and the fence in question being 
 personal property was not a part of the premises granted, and there- 
 fore not within the scope of the covenant which relates to the realty 
 only. 
 
 If this be a sound conclusion, a grantor could not be made liable 
 on the covenants in his deed, although he had previously and pri- 
 vately sold, with a view to removal, all the houses, buildings, mills, 
 fences, and growing timber on the land conveyed. Indeed, if this 
 doctrine prevails, the gravel, clay, stone and loam might also be 
 converted into personal property by such a sale, and carried off the 
 land, without violating the grantor's covenant. Let us test the cor- 
 rectness of this conclusion in a few words. It is true the fence in 
 one sense was not a part of the thing granted. It did not pass by 
 the deed. In the same sense, if some stranger had been the owner 
 of one-half the farm, that half would not have been part of the thing 
 granted, because it would not have passed by the deed. But the 
 e was within the description of the thing granted as clearly as
 
 V. 5-] FIXTURES: ANNEXER HAS LICENSE. 289 
 
 the land itself; and being witnin the description, it was a part of 
 that which the deed purported to convey, and of which the grantor 
 covenanted that he was the owner. If it be yet doubted whether the 
 fence (being in fact the personal property of Brown) was within the 
 description of what the grantor professed to convey, that doubt can 
 be solved in a moment by reflecting that it would undeniably have 
 passed by the deed if the grantor had been the owner of it; although 
 it could not have so passed if it had not been within the description. 
 
 It all comes to this: The grantor undertook to convey it as part 
 of the realty by a deed which would have been effectual for that pur- 
 pose if he had been the owner of it, as by deed he professed to be, 
 but was not. It is therefore a case in which the covenant of seisin 
 affords a remedy; and although the amount in controversy is trifling, 
 the right is clear; and it seems to be perfectly just that the grantor 
 should pay for the fence, because there is nothing in the case to 
 show that Palmer, when he accepted the deed, was informed by 
 Mott or otherwise knew that it belonged to Brown. 
 
 The judgment of the Supreme Court must therefore be affirmed. 1 
 
 REESE v. JARED. 
 
 15 Indiana, 142. — i860. 
 
 Perkins, J. — The facts in this case are substantially these: 
 Jared employed Reese to erect a house on a certain lot of ground, 
 and was to pay him therefor by conveying to him a certain other lot. 
 Reese was to furnish the materials. 
 
 Reese built the house, and then discovered that in the agreement 
 under which it was built, there were mistakes in the numbers of the 
 lots to be built upon, and to be taken in payment. Reese, appre- 
 hending loss to himself, and with a view to prevent it sold, while yet 
 in possession thereof, the house he had erected for Jared, to one 
 Schmall, and moved it on to a lot of his, placing it upon a permanent 
 brick foundation. 
 
 Jared then sued Reese and Schmall, not for the value of the house, 
 but to recover possession of the specific article; the house itself. It 
 does not appear that Schmall was aware of the fact, that Reese had 
 no right to sell and remove the house. 
 
 When the lumber, out of which the house in question was con- 
 structed was growing in the tree, it was real estate. While at the 
 saw-mill, in the log and lumber, it was personal estate. When 
 erected into a house, on a permanent foundation, on Jared's lot, it 
 
 1 See, however, Climer v. Wallace, 28 Missouri, 556. — 1859. — Ed. 
 
 LAW OF PROP. IN LAND — Ig
 
 29O CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 became real estate again. When traveling on rollers from Jared's 
 to Schmall's lot, it became, a second time, personal estate; and 
 when fixed on a permanent foundation on Schmall's lot, it returned 
 again to its original character of real estate. Whose real estate? 
 Kent lays down that, " If A. builds a house, with his own materials, 
 upon the land of B., the land, said Pothier, is the principal subject, 
 and the other is but accessory; for the land can subsist without the 
 building, but the building cannot subsist without the land on which 
 it stands; and, therefore, the owner of the land acquired, by right 
 or accession, the property in the building. It is the same thing, if 
 A. builds a house on his own land with the materials of another; for 
 the property in the land vests the property in the building by right 
 or accession, and the owner of the land would only be obliged (if 
 bound to answer at all) to answer to the owner of the materials for 
 the value of them." 2 Kent, 362. He further says, that " The 
 English law will not allow one man to gain a title to the property of 
 another upon the principle of accession, if he took the other's prop- 
 erty wilfully as a trespasser." Id. 363. According to the above 
 quoted authority, the recovery in this case should have been the 
 value of the house, not the house itself; and as the jury, in their 
 verdict, did not find the value of the house, we cannot correct the 
 judgment rendered, for want of data, and it must be reversed. 
 
 b. The landowner annexes the chattel of another. 
 
 LANSING IRON AND ENGINE WORKS v. WALKER. 
 
 91 Michigan, 409. — 1892. 
 
 Trover for a portable saw-mill. 
 
 Plaintiff agreed to sell to one Myers a portable saw-mill, title and 
 right of possession of same to remain in plaintiff until fully paid for; 
 
 1 The nature of the chattel and the mode and degree of its annexation may be 
 such as conclusively to change its legal character from personal to real. If this 
 is not the case then (a) the chattel-owner may never have assented to part with 
 either title or possession; (b) he may have intended to part with possession, but 
 not with title, as in bailment or conditional sale; (c) he may have acquired 
 (technical) title from the landowner by chattel mortgage before the annexation. 
 
 In any of these cases (a, b. c,) the question may arise between the chattel- 
 owner and (1) the grantee or mortgagee of the landowner, or (2) the execution 
 creditor of the landowner, and such third person may or may not have had 
 ootji e of 1 hattel-owner's title. The chattel mortgage may or may not have been 
 properly filed or registered. 
 
 Cases where landowner has sold chattel or given chattel-mortgage thereon 
 after annexation 1 ome under bead of " Severance," supra.
 
 V. 5-] FIXTURES: ANNEXER HAS LICENSE. 291 
 
 Myers to have possession subject to proper care of the machinery 
 and compliance with the terms of the contract. 
 
 Myers set up the mill upon a farm in which he owned an undivided 
 interest. Thereupon Myers quit-claimed the farm to defendant 
 Walker. Verdict and judgment below for plaintiff. Defendant 
 appeals. 
 
 McGrath, J. (after stating facts). — The case is ruled by Adams 
 v. Lee, 31 Mich. 440, and Robertson v. Corsett, 39 Id. 777. 
 
 In Adams v. Lee, the court say: " All the time, therefore, the 
 parties have had title to the machinery distinct from their title to 
 the land, and this fact of itself is conclusive that the former was per- 
 sonalty; for to constitute a fixture there must not only be physical 
 annexation in some form to the realty, but there must be unity of 
 title, so that a conveyance of the realty would of necessity convey 
 the fixture also. When the ownership of the land is in one person, 
 and of the thing affixed to it is in another, and in its nature is 
 capable of severance without injury to the former, the latter cannot, 
 in contemplation of law, become a part of the former, but must 
 necessarily remain distinct property, to be used and dealt with as 
 personal estate only. And the fact that the owner of the thing 
 affixed to the freehold has also an undivided interest in the latter, 
 cannot render the former a fixture when the interests are different 
 in extent. A thing cannot, as to an undivided interest therein, be 
 real estate, and as to another undivided interest be personalty. It 
 must be the one thing or the other. And the position which is 
 taken by Lee in this case involves this absurdity: That Kaufman, 
 at the time when he and Kinney were severally the owners of an 
 undivided half of the land, might have sold that, and, as a necessary 
 consequence, transferred an undivided one-half of the machinery 
 also, though the whole of the machinery belonged to Kinney as 
 exclusive owner. This would be the necessary result if the machinery 
 was real estate, for there could be no such a thing as attaching it 
 to an undivided interest in the land only." 
 
 In Morrison v. Berry, 42 Mich. 389, the ownership of the land and 
 of the thing affixed was in one and the same person. It was there 
 held that the annexation of the thing to the freehold was not the 
 wrongful act of the landowner, but that, by act and intervention of 
 the claimant, the article became a part of the freehold. 
 
 In Knowlton v. Johnson, 37 Mich. 47, T. owned the land and mill. 
 S. was the lessee. The water-wheels were a part of the structure. 
 Plaintiffs furnished the water-wheels to S., with the understanding 
 that they were to be put in the mill, and there used; and, against the 
 objection of T., the old wheels were taken out and the new put in.
 
 292 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CM. II. 
 
 Six months afterwards S. surrendered his lease, and T. leased to M. 
 T. finally sold the mill property to defendant, and plaintiffs brought 
 trover. The court say: 
 
 " The plaintiff deliberately agreed that the water-wheels should be 
 converted in all outward appearance into real property, and they 
 thereby put it in the power of Trimmer to make sale of the wheels 
 as part of the mill." 
 
 In the present case the contract of sale provided for the use of 
 the machinery, not only in the township of Sandstone, but in adjoin- 
 ing townships. Myers was not the sole owner of the land upon 
 which it was placed, but he was sole owner of the interest in the 
 machinery, and operated it solely in his own behalf. The structure 
 covering the boiler and engine was but a temporary one. The 
 machinery in question did not consist simply of a pulley, shaft, or 
 wheel which was to be attached to other machinery already a part 
 of a saw-mill, and, as such, a part of the realty, but it was a com- 
 plete outfit, designed by the agreement to be portable. There was 
 nothing done by plaintiff indicative of an intent to permit the 
 machinery to be so annexed to realty as to change its character. 
 The state of the title to the realty, and the conduct of Myers regard- 
 ing the machinery, negatived any intent on his part to allow his 
 interest in the machinery to be absorbed by the owners of the realty, 
 or to permit it to be merged. The circumstances of the purchase 
 by defendant clearly indicate that he took the entire interest in this 
 machinery, while he took but an undivided interest in the realty. 
 He afterwards operated the machinery as sole owner. 
 
 It was held in Wheeler v. Bedell, 40 Mich. 693, 696, that there is 
 no universal test by which the character of what is claimed to be a 
 fixture can be determined in the abstract; neither the mode of 
 annexation nor the manner of use is in all cases conclusive. It 
 must usually depend on the express or implied understanding of the 
 parties concerned. 
 
 In Coleman v. Manufacturing Co., 38 Mich. 30, 40, the court, com- 
 menting upon a line of authorities which seem to regard the manner 
 of the attachment to the realty as the test, say: 
 
 " This, however, is a very extreme view, and is hardly compatible 
 with the tenor of our own previous decisions. It seems to overlook 
 or ignore one test, and frequently the most important test, namely, 
 the intent of the party making the annexation." See, also, Man- 
 waring v. Jcnison, 61 Mich. 117. 
 
 The judgment is affirmed.
 
 V. 5-] FIXTURES: ANNEXER HAS LICENSE. 293 
 
 TIFFT v. HORTON. 
 
 53 New York, 377. — 1873. 
 
 Action to recover damages for alleged conversion of a boiler and 
 engine. 
 
 Plaintiff sold a Mrs. Brown an engine and boiler to be put up in 
 the latter's elevator. A chattel mortgage was given for the 
 machinery before it was delivered. There was a clause in the 
 chattel mortgage that the property should remain personal until 
 paid for, notwithstanding mode of annexation in elevator. They 
 were then affixed. 
 
 Defendants claim title under their real estate mortgages executed 
 by Mrs. Brown before the engine and boiler were set up on the 
 premises. Judgment below for plaintiff. Defendants appeal. 
 
 Folger, J. — It is well settled that chattels may be annexed to the 
 real estate and still retain their character as personal property. See 
 Voorhees v. McGinnis, 48 N. Y. 278, and cases there cited. Of the 
 various circumstances which may determine whether in any case this 
 character is or is not retained, the intention with which they are 
 annexed is one; and if the intention is, that they shall not by annex- 
 ation become a part of the freehold, as a general rule they will not. 
 The limitation to this is, where the subject or mode of annexation 
 is such as that the attributes of personal property cannot be pre- 
 dicated of the thing in controversy (Fordx. Cobb, 20 N. Y. 344), as 
 where the property could not be removed without practically 
 destroying, or where it or part of it is essential to the support of 
 that to which it is attached. Id. 
 
 It may in this case be conceded, that if there were no fact in it 
 but the placing upon the premises of the engine and boilers in the 
 manner in which they were attached thereto, they would have become 
 fixtures, and would pass as a part of the realty. But the agreement 
 of the then owner of the land and the plaintiff is express that 
 they should be and remain personal property until the notes given 
 therefor were paid; and by the same agreement, power was given to 
 the plaintiff, to enter upon the premises in certain contingencies, 
 and to take and carry them away. While there is no doubt but that 
 the intention of the owner of the land was that the engine and 
 boilers should ultimately become a part of the realty, and be per- 
 manently affixed to it, this was subordinate to the prior intention 
 expressed by the agreement. That fully shows her intention and 
 the intention of the plaintiffs, that the act of annexing them to the 
 freehold, should not change or take away the character of them as
 
 294 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 chattels, until the price of them had been fully paid. And as parties 
 may by their agreement, expressing their intention so to do, preserve 
 and continue the character of the chattels as personal property, 
 there can be no doubt but that as between themselves, the agree- 
 ment in this case was fully sufficient to that end. 
 
 But it is contended, that where in the solution of this question 
 the intention is a criterion, it must be the intention of all those who 
 are interested in the land; and that here the defendants, prior mort- 
 gagees of the real estate, were interested, and have not expressed nor 
 shown such intention. It is not to be denied, that as a general rule 
 all fixtures put upon the land by the owner thereof, whether before 
 or after the execution of a mortgage upon it, become subject to 
 the lien thereof. Yet I do not think that the prior mortgagee of 
 the realty can interpose, before foreclosure and sale, to prevent the 
 carrying out of such an agreement as that in this case. Had the 
 mortgagees taken their mortgage upon the lands, after the boilers 
 and engines had been placed thereon under this agreement, they 
 would have had no right to prevent the removal of them by the 
 plaintiff, on the happening of the contingencies contemplated by it. 
 The rights of a subsequent mortgagee are no greater than those 
 of a subsequent grantee, and he, it is held, cannot claim the chattels 
 thus annexed, and must seek his remedy for their removal by virtue 
 of such an agreement, upon the covenants in his conveyance of the 
 lands. Molt v. Palmer, i N. Y. 564, and see Ford v. Cobb, supra. 
 
 A prior mortgagee, who certainly has not been induced to enter 
 into his relation to the lands by the presence thereon of the chattels 
 in dispute subsequently annexed thereto, has no greater right than 
 a subsequent mortgagee. Neither could claim, as subject to the 
 lien of his mortgage, personal property brought onto the premises 
 with permission of the owner of the lands, and not at all affixed 
 thereto. Nor can either claim personal property as so subject, 
 from the mere fact of the affixing, where, by the express agreement 
 of the owner of the fee and the owner of the chattel, its character 
 as personal property was not to be changed, but was to continue, 
 and it to be subject to a right of removal by the owner of the 
 chattel on failure of performance of conditions. The language of 
 the authorities is, that the chattel in such case is personal property, 
 for which an action of trover for the conversion f it may be main- 
 tained. Smith v. Benson, 1 Hill, 176; Matt v. Palmer, supra; Farrar 
 v. Chauffetete, 5 Den. 527; Ford v. Cobb, supra. 
 
 Another consideration makes it clear, I think, that in this case, 
 the absence of a concurrent intention on the part of the prior mort- 
 gagees is of no weight. As above stated, as a general rule, all fixtures
 
 V. 5-] FIXTURES: ANNEXER HAS LICENSE. 295 
 
 put upon land by the owner thereof, became a part thereof, and sub- 
 ject to the lien of a prior mortgage; but sometimes it is doubtful if 
 they have been so annexed as to so become. And then, it is said, the 
 question may be decided by the presumed intent of the party making 
 the annexation of the chattels. Winslow v. Mer. Ins. Co., 4 Mete. 
 306. The law makes a presumption in the case of any one making such 
 annexation, and it is different as the interest of the person in the land 
 is different, that is, whether it is temporary or permanent. The law 
 presumes that because the interest of a tenant in the land is tempo- 
 rary, that he affixes for himself, with a view to his own enjoyment 
 during his term, and not to enhance the value of the estate; hence, 
 it permits annexations made by him to be detached during his term, 
 if done without injury to the freehold, and in agreement with known 
 usages. The law presumes that because the interest of the vendor 
 of real estate, who is the owner of it, has been permanent, that he 
 has made annexations, for himself to be sure, but with a view to a 
 lasting enjoyment of his estate, and for its continued enhancement 
 in value. So the mortgagor of land is the owner of it, and has a 
 permanent interest therein, and the law presumes that improvements 
 which he makes thereon, by the annexation of chattels, he makes for 
 himself, for prolonged enjoyment, and to enhance permanently the 
 value of his estate. Winslow v. Mer. Ins. Co., supra. These are 
 presumptions of the intention of the tenant alone, the vendor alone, 
 and of the mortgagor alone; nor are they ordinarily concerned at 
 all with the relation to the lands, or with the purpose of the land- 
 lord, or the vendee, or the mortgagee, though there may be cases in 
 which the intention of both parties may be of effect, as where a mort- 
 gagee has loaned money with the understanding that it shall be 
 applied to enhance the value of the estate by the addition of chattels 
 in such manner. And they are but presumptions, which in all cases 
 may be entirely done away with by the facts. Lancaster v. Eve, 5 
 C. B. N. S. *7 17. So in Elliott v. Bishop, 10 Exch. *496; s. c. in 
 error, 11 Exch. 113, it is recognized that the express agreement of 
 a tenant may prevent him from exercise of his right to detach his 
 annexations; which is the same as to say that his agreement having 
 shown that it was not his intention to remove them, the presumption 
 of contrary purpose which would otherwise arise, is repelled. So in 
 Potter v. Cromwell, 40 N. Y. 287, and cases cited, it is conceded that 
 if the intention of the vendor of lands be to retain, in chattels 
 annexed thereto, their character as personal property, such intention 
 will prevail. So in Voorhees v. McGinnis, supra, it is conceded that 
 if the intention of the mortgagor of lands had been that chattels 
 annexed were to be removable, the prior mortgagee could not have
 
 2Cj6 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 held them against the receiver of the goods, etc., of the mortgagor. 
 See, also, Cranes. Brigham. n N. J. Eq. (3 Stockton), 29, 35; Tcaff 
 v. Hewitt, 1 Ohio St. (McCook), 511-531. The general rule govern- 
 ing the right of parties in chattels thus annexed to the real estate 
 rests, as it appears, upon the presumptions which the law makes of 
 what their purpose is in the act of annexation. This presumption 
 grows out of their relation to and interest in the land, and not from 
 the relation or interest in it of others which may be opposite. And 
 as the presumption of their purpose grows alone out of their relation 
 and interest, it is repelled by whatever signifies a purpose different; 
 not a different purpose in those holding a relation which may become 
 hostile, but their own different purpose. Hence I conclude that the 
 agreement of the owner of the land with the plaintiffs, as it did fully 
 express their distinct purpose that these annexations of boiler and 
 engines should not make them a part of the real estate, was suffi- 
 cient to that effect without any concurring intention of the defend- 
 ants as prior mortgagees. 
 
 Though the defendants became the purchasers of the land on the 
 foreclosure of the mortgages, and were the owners of it in fee, and 
 probably in actual possession of it, and of the boilers and engines 
 annexed to it, before this action was brought or demand made of 
 them for these chattels, yet they are to be considered in this case 
 only as prior mortgagees of it. Such is the effect of the stipulation 
 made by them that the sale upon the decrees should not in any 
 manner change the legal rights of the plaintiffs in this action; but 
 for this, it would have been necessary to have determined the effect 
 upon the rights of the parties of the sale on foreclosure, and the 
 change of title and possession of the lands, and the application to 
 that state of facts of the principle laid down in Lane v. King, 8 Wend. 
 584, and kindred cases. 
 
 It appears that the boilers and engines cannot he removed without 
 some injury to the walls built about them, and which are a part of 
 the real estate; yet this fact will not debar the plaintiffs. The 
 chattels have not become a part of the building; the remvoal of 
 them will not take away or destory that which is essential to the sup- 
 port of the main building, or other part of the real estate to which 
 they were attached; nor will it destroy or of necessity injure the 
 chattels themselves; nor will the injury to the walls about them be 
 great in extent or amount. So that the limitation hereinbefore stated 
 does not apply. 
 
 It is proper to add, that the English case cited and much relied 
 upon by the defendants has not been overlooked. Walmsley v. 
 Milne. 7 C. B. N. S. * 1 1 5 . I do not gather from it that the decision
 
 V. 5-] FIXTURES: ANNEXER HAS LICENSE. 297 
 
 was placed upon the ground (as the defendants claim), that the 
 mortgagee of the land did not expect or understand that the chattels 
 annexed were removable or to be removed. The opinion of the 
 court seems summed up in the concluding sentence: "We think, 
 therefore, that when the mortgagor (who was the real owner of the 
 inheritance), after the date of the mortgage, annexed the fixtures 
 in question for a permanent purpose and for the better enjoyment of 
 his estate, he thereby made them a part of the freehold which had 
 been vested by the mortgage deed in the mortgagee." It is to be 
 borne in mind, too, that in England and in Massachusetts the rights 
 of a mortgagee of land in the mortgaged premises are greater than 
 in this State. He is regarded as the owner and the mortgagor in the 
 light of a tenant. So that things annexed to the land become fixtures 
 upon the land of the mortgagee, as it were. See case last cited, 
 page *i33; Butler v. Page, 7 Mete. 40. 
 
 The judgment should be affirmed, with costs to the respondents. 
 
 BINKLEY v. FORKNER. 
 
 117 Indiana. 176. — 1888. 
 
 Suit to foreclose a chattel mortgage. 
 
 One Kemper purchased a parcel of real estate, giving a mortgage 
 thereon for the purchase price. He had already bought an engine 
 and other machinery of Hadley, Wright & Co., to be used on the land, 
 and given this chattel mortgage therefor, agreeing orally that the 
 machinery should be treated as personal property until paid for. 
 The machinery was then annexed to the premises, but it appeared in 
 evidence that the machinery could be removed without material 
 injury to the building, except to the masonry which supported 
 engine and boiler, and without detriment to the machinery, and that 
 the value of the real estate would not be appreciably diminished 
 otherwise than by the absence of the machinery. 
 
 Later on a second mortgage was placed on the land in which the 
 mortgagor also mortgaged and warranted all machinery, describing 
 it, and provided that none of said machinery should be removed 
 until the mortgage should be paid. All the mortgages were duly 
 filed or recorded. 
 
 Mitchell, J. — * * * The controversy here is between the 
 appellant, Binkley, the assignee of the notes secured by the chattel 
 mortgage to Hadley, Wright & Co., and the Eckarts and the Dubois 
 County Bank, who were made parties defendant by Binkley, to a suit
 
 298 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 brought in the Superior Court of Marion county to foreclose the 
 chattel mortgage. 
 
 On the one hand the insistence is, that, notwithstanding the 
 annexation of the machinery to the real estate, as already described, 
 it retained the character of personalty in consequence of the prior 
 chattel mortgage, and the contemporaneous agreement that it should 
 be treated as personal property until the notes given for the pur- 
 chase price to Hadley, Wright & Co. had been paid. 
 
 Admitting that Hadley, Wright & Co. held a valid chattel mort- 
 gage upon the machinery prior to its annexation to the realty, the 
 result to which the argument leads, on the other hand, is, that, 
 because the machinery was annexed to the freehold by the owner, 
 and was peculiarly adapted to be used in connection with the build- 
 ing in which it was placed, the law will raise a conclusive presump- 
 tion that the owner intended it as a permanent accession to the land. 
 Hence the conclusion insisted upon is, the character of the machinery 
 as personal property came to an end when it was annexed to the 
 land, and that of realty became inevitably fixed upon it. 
 
 The question thus presented has been the subject of much discus- 
 sion, and the result deducible from the reported cases is not in every 
 respect harmonious, or of so definite and precise a character as could 
 be desired. Very much depends upon the relation which the per- 
 sons between whom the question arises sustain toward each other, 
 whether it be that of personal representative and heir of a deceased 
 person, landlord and tenant, vendor and vendee, mortgagor and 
 mortgagee or some other, which may give a peculiar character to 
 the case. While some rules of general application have been for- 
 mulated, in the very nature of the subject each case must in some 
 degree be controlled by the varying circumstances peculiar to it. 
 
 The united application of three requisites is regarded as the true 
 criterion of an immovable fixture: (1) Real or constructive annex- 
 ation of the article in question to the freehold. (2) Appropriation 
 or adaptation to the use or purpose of that part of the realty with 
 which it is connected. (3) The intention of the party making the 
 annexation to make the article a permanent accession to the free- 
 hold. Tcaff v. Hewitt, iOhio St. 511, 530; Potter v. Cromwell, 40 
 N. Y. 287; Ewell, Fixtures, 21; Tyler, Fixtures, 114; McRea v. 
 Central Nafl Bank, 66 N. Y. 489. 
 
 According to the elementary rule of the common law, whatever 
 is annexed to the freehold becomes, in legal contemplation, a part 
 of it, and is thereafter subject to the same incidents and conditions 
 as the soil itself. But the diversity of trade and the development of 
 manufactures required that the strict rules of the common law be
 
 V. 5-J FIXTURES: ANNEXER HAS LICENSE. 299 
 
 measurably relaxed, and it may now be said that the nature of the 
 articles and the manner in which they are affixed, and the intention 
 of the party making the annexation, together with the policy of the 
 law, are controlling factors in determining whether an article, which 
 may or may not be a fixture, becomes part of the realty by being 
 annexed to the freehold. The purpose or intention of the parties, 
 the effect and mode of annexation, and the public policy in relation 
 thereto, are all to be considered. 
 
 When the parties immediately concerned, by an agreement between 
 themselves, manifest their purpose that the property, although it is 
 to be annexed to the soil, shall retain its character as personalty, 
 then, except as against persons who occupy the relation of innocent 
 purchasers without notice, the intention of the parties will prevail, 
 unless the property be of such a nature that it necessarily becomes 
 incorporated into, and a part of, the realty by the act and manner 
 of annexation. Taylor v. Watkins, 62 Ind. 511; Yater v. Mullen, 24 
 Ind. 277. 
 
 Thus, if, in the course of constructing a house, brick should be 
 placed in the walls, and joists and beams in their proper places, the 
 brickmaker and sawyer would not be permitted to despoil the house 
 by asserting an agreement with the owner that the brick and beams 
 were to retain their character as personalty notwithstanding their 
 annexation. In such a case the mental attitude of the parties cannot 
 modify the legal effect resulting from the annexation. Campbell v. 
 Roddy (N. J.), 14 Atl. Rep. 279; Henkle v. Dillon, 17 Pac. Rep. 148; 
 Jones, Chat. Mortg., section 125. 
 
 But when chattels are of such a character as to retain their identity 
 and distinctive characteristics after annexation, and do not thereby 
 become an essential part of the building, so that the removal of the 
 chattels will not materially injure the building, nor destroy or 
 unnecessarily impair the value of the chattels, a mutual agreement 
 in respect to the manner in which the chattels shall be regarded 
 after annexation will have the effect to preserve the personal 
 character of the property between the parties to the agreement. 
 Rogers v. Cox, 96 Ind. 157; Price v. Malott, 85 Ind. 266; Hendy v. 
 Dinkerhoff, 57 Cal. 3; Haven v. Emery, ■$$ N. H. 66; Ewell, Fixtures, 
 66; Malott v. Price, 109 Ind. 22. 
 
 Accordingly, the proposition is well sustained that one who pur- 
 chases machinery with a view that it shall be annexed to, or placed 
 in, a building of which he is the owner, and who executes a chattel 
 mortgage on the property so purchased, thereby evinces his intention 
 that the property shall retain its character as personalty, regardless 
 of the manner in which it may be annexed to the freehold. Eaves
 
 300 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 v. Estes, 10 Kan. 314; Ford v. Cobb, 20 N. Y. 344; Sisson v. Hibbard, 
 75 N. Y. 542; Tifft v. Horton,$$ N. Y. 377; Campbells!. Roddy, supra; 
 Henkle v. Dillon, supra. 
 
 Except where the rights of innocent purchasers are involved, it is 
 the policy of the law to uphold such contracts in the interest of 
 trade. 
 
 The execution of a chattel mortgage by the owner of the land, 
 upon machinery which he afterwards places in a building thereon, is 
 regarded as an unequivocal declaration of his intention that the act 
 of annexation shall not change or take away the character of the 
 machinery as personalty, until the debt secured by the mortgage 
 has been fully paid. Tifft v. Horton, supra. 
 
 A provision in a chattel mortgage that, upon default of payment 
 of the mortgage debt, the mortgagee may take possession of the 
 mortgaged chattels and sell the same, if anything beyond the mort- 
 gage itself was needed, is equivalent to an express agreement that 
 the property shall continue to be regarded as personalty. 
 
 Having reached the conclusion that, when the nature of the prop- 
 erty admits of it, parties may by convention fix its character as per- 
 sonalty as between themselves, after it is annexed to the freehold, 
 and that a chattel mortgage, such as the one under consideration, 
 is equivalent to an express agreement in that respect, the case 
 would be of easy solution but for the intervention of the rights of 
 others than the immediate parties to the chattel mortgage. 
 
 It remains to be considered whether the chattel mortgage from 
 Kemper to Hadley, Wright & Co. was effectual to preserve the 
 character of the mortgaged chattels as against the purchase-money 
 mortgage given by Kemper to Eckart Bros., and the subsequent 
 mortgage to the bank. What are the rights of a mortgagee of 
 chattels of the description of those in question, who consents that 
 the mortgaged property may be taken out of the county in which his 
 mortgage is recorded, and that it may be annexed to real estate in 
 such a mariner as that, in the absence of an agreement or intention 
 to the contrary, the act of annexation, ipso facto, makes the prop- 
 erty accessory to the freehold? 
 
 In some jurisdictions, as will appear from the authorities already 
 cited, the rule seems to be that an agreement between the owner of 
 land and the vendor of chattels, which are to be annexed thereto, 
 concerning the character of the chattels, is valid, not only between 
 the parties, and against a prior mortgagee of the land, but also 
 against a subsequent mortgagee or purchaser without notice, while 
 in others an essentially different effect is attributed to such an agree- 
 ment. Thus, in Tifft v. Horton, supra, and Ford v. Cobb, supra, it
 
 V. 5-] FIXTURES: ANNEXER HAS LICENSE. 301 
 
 was held by the Court of Appeals, in the State of New York, that 
 neither a precedent nor subsequent mortgagee of real estate could 
 defeat the claim of one holding a chattel mortgage upon property 
 which had been annexed to the mortgaged premises under an agree- 
 ment that it should continue to be regarded as personalty. 
 
 These cases hold that the agreement between the holder of the 
 chattel mortgage and the owner of the land, that the chattels shall 
 retain their character as personalty, rebuts the presumption that 
 they were intended as permanent accessories to the land, and binds 
 both prior and subsequent mortgagees. 
 
 In Pierce v. George, 108 Mass. 78, a chattel mortgage was taken 
 upon certain machinery in contemplation that the machinery was to 
 be fastened to a building and annexed to real property owned by 
 the mortgagor, and it was held that a subsequent mortgagee of the 
 real estate could hold the chattels as a part of the land. So it was 
 held by the same court, in Hunt v. Bay State Iron Co., 97 Mass. 279, 
 that an agreement between the owner of iron rails and a railroad 
 company, that the rails should retain their character as chattels after 
 they had been fastened to the roadbed, would be unavailing as 
 against a previous mortgagee of the road or a purchaser without 
 notice. See, also, Stilhnan v. Flenniken, 58 Iowa, 450. 
 
 There is, therefore, no general rule which declares that machinery, 
 upon which there is a chattel mortgage, becomes necessarily subject 
 to an existing mortgage upon real estate to which it may afterwards 
 be annexed with the consent of the mortgagee, to the exclusion or 
 postponement of the prior chattel mortgage. 
 
 A prior mortgagee cannot occupy the attitude of an innocent pur- 
 chaser. The interests and rights of the holder of a chattel mortgage 
 upon property which is annexed to real estate upon which there is 
 an existing mortgage, must be determined by the practical applica- 
 tion of equitable principles to the rights of the respective parties. 
 
 Whether the chattel mortgage shall be postponed, notwithstand- 
 ing the agreement between the owner of the land and the mort- 
 gagee, must depend upon the inquiry whether or not the preservation 
 of the rights of the holder of the chattel mortgage will impair or 
 diminish the security of the real estate mortgagee as it was when 
 he took it. If it will not, then it would be inequitable that the 
 latter should defeat or destroy the security of the former. If it will, 
 then it was the folly or misfortune of the holder of the chattel mort- 
 gage that he permitted the property to be annexed to a freehold from 
 which it cannot be removed without diminishing or impairing an 
 existing mortgage thereon. As was said by the Court of Errors 
 and Appeals of New Jersey, in Campbell v. Roddy, supra, " Where
 
 302 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 the articles are of such a character that their detachment would 
 involve a destruction of or a dismantling of an important feature of 
 the realty, such annexation might well be regarded as an abandon- 
 ment of the lien by him who impliedly assented to the annexation." 
 
 Unless the detachment of mortgaged chattels would materially 
 affect the security of the real estate mortgagee, by depreciating the 
 value of the mortgaged property, or by dismantling it of an important 
 feature existing at the time the mortgage was taken, the precedent 
 real estate mortgage only attaches to the actual interest which the 
 mortgagor has in the personal chattels subsequently annexed at the 
 time of their annexation. Campbell v. Roddy, supra; United States v. 
 New Orleans Railroad, 12 Wall. 362; Fosdick v. Schall, 99 U. S. 235. 
 
 Or if, as in Bass Foundry, etc., v. Gallentine, 99 Ind. 525, the intro- 
 duction of the new machinery involved the dismantling of a mill upon 
 which a prior mortgage existed, so as to impair the security thus 
 afforded, a claim upon the machinery so introduced would not pre- 
 vail over the prior real estate mortgage. 
 
 In the present case it appears that the removal of the engine and 
 boiler and other machinery would not injure or impair the value of 
 the real estate or the building thereon. There can be no reason, 
 therefore, so far as the Eckart Brothers are concerned, why a court 
 of equity should practically destroy the security of the appellant, so 
 long as the preservation of his rights are not prejudicial to those of 
 the Eckart Brothers. As is in effect said in the well considered 
 case already quoted from, if the detachment of the articles so 
 annexed would occasion no damage to the realty, then the lien upon 
 them can be enforced by a court of equity in the same degree as if 
 they had remained chattels according to the agreement. If the 
 detachment would occasion some diminution in the value, as it would 
 have stood had the attachment not been made, then the deprecia- 
 tion must be made whole, and the rights of the parties adjusted by 
 the chancellor according to the equity of the case. 
 
 The distinction between chattels whose completeness and identity 
 as separate and distinct articles may be preserved, notwithstanding 
 their annexation, and those which necessarily become absorbed or 
 merged in the realty by being annexed, must be kept in view. 
 Porter v . Pittsburgh Steel Co., 122 U. S. 267, 283; Dunham v. Rail- 
 Co., 1 Wall. 254; Galveston Railroad v. Cowdrcy, 11 Wall. 459. 
 
 This disposes of the case so far as it relates to the precedent mort- 
 
 es. As to the holder of a chattel mortgage who consents to 
 
 have the mortgaged chattels placed in such an attitude in relation 
 
 to na] estate as that subsequent innocent purchasers and mortgagees 
 
 are liable to be misled by the owner of the land to which they are
 
 V. 5-] FIXTURES: ANNEXER HAS LICENSE. 303 
 
 annexed, there seems to be no equitable ground upon which his title 
 should be enforced as against such purchasers or mortgagees. 
 
 The peculiar character of the subsequent mortgage executed to 
 the bank in the present case, renders it unnecessary, however, that 
 we should enlarge upon this feature of the subject. Recurring to 
 the statement of the case, it will be seen that, after describing the 
 real estate upon which the factory and machinery were situate, the 
 engine, boiler, and other machinery are particularly and specifically 
 enumerated as being also and in effect separately mortgaged. 
 Coupled with this was the further stipulation that the mortgagor 
 should not remove any of the machinery enumerated from the land 
 on which it was then situate, until the mortgage debt was fully paid. 
 
 This feature of the mortgage was entirely unnecessary and mean- 
 ingless, except upon the theory that the parties recognized and 
 treated the engine and boiler and other enumerated articles as some- 
 thing distinct from the realty, in short, as personal property. This 
 being so, the rule, which requires that effect shall be given to every 
 part of a contract according to the manifest intention of the parties 
 as expressed by the language employed, also requires us to hold that 
 the intention of the parties to what is known as the bank mortgage, 
 was to regard the machinery as personal property, and to include it 
 in the mortgage as such. They took their mortgage, therefore, sub- 
 ject to the prior chattel mortgage of the appellant on the personal 
 property. * * * 
 
 The conclusions thus reached result in a reversal of the judgment. 
 
 The judgment is accordingly reversed. 
 
 RICHARDSON v. COPELAND. 
 6 Gray (Mass.), 536. — 1856. 
 
 Shaw, C. J. — This is an action of tort, in the nature of trover, to 
 recover the value of a steam engine and boiler. To maintain this 
 action, the plaintiff must prove property in himself, and a conversion 
 by the defendant. 
 
 Upon the facts stated, the court are of opinion that the engine 
 and boiler, having been erected on the premises of Josiah Richardson, 
 of which he was then the owner in fee, subject to several mortgages, 
 became annexed to the freehold. Winslow v. Merchants' Ins. Co., 4 
 Mete. 306. This real estate comprised a manufactory occupied and 
 carried on by said Richardson, and the engine was erected to furnish
 
 304 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 power for such manufactory. The steam boiler was permanently 
 set in brick work, and could not be removed without taking down 
 the brick work, and the engine was permanently annexed to the 
 buildings. This permanent annexation of the engine and boiler to 
 the freehold, de facto, rendered them part of the realty; and his 
 agreement with the builders to give them a mortgage thereon as 
 personal property, as against all those who took title to the estate 
 in fee, was inoperative and void. No title to these articles passed 
 as personal property to the mortgagees, which they could assert 
 against a third party. The engine and boiler thus remained part of 
 the realty till Josiah Richardson became insolvent, and the estate 
 passed to his assignees, subject to the right of the mortgagees of the 
 real estate; it was rightly sold by order of the commissioner, on 
 their petition, and a good title passed to Harlow, the purchaser. 
 He afterwards severed them, and thus reconverted them into per- 
 sonal property, as he lawfully might, and sold them to the defendant, 
 who thereby took a good title. 
 
 The evidence of usage was rightly rejected; it could not be 
 received to control the operation of law, arising from the actual 
 annexation of the engine and boiler to the freehold. If it be said, 
 it might have tended to show the intent of the parties; the answer 
 is, that the intent of the parties was manifest enough from the 
 agreement of the parties and the mortgage. But the difficulty was 
 (by mistake of the law, no doubt), that this intention was one which 
 the law could not carry into effect, that of hypothecating a portion 
 of the realty, as personal property, without severance. 
 
 The fact that Harlow had full knowledge of the history of the 
 mortgage, did not impair his right to be a purchaser. 
 
 It is to be observed, as a fact important to the present case, that 
 the engine and boiler were purchased and set up in the factory by 
 one who himself owned the freehold. Had they been so bought and 
 placed by a tenant on leased premises, the case might have presented 
 a different question. 
 
 Judgment for the defendant.
 
 V. 5-] FIXTURES: ANNEXER HAS LICENSE. 305 
 
 B. The chattel-owner, annexing, has an interest in the land} 
 
 a. The amiexer is the general owner of the land or is on his way to 
 
 become such. 1 
 
 (1.) The Question Arises Between Real and Personal Representatives of 
 
 the annexer. 
 
 («.) Between executor and administrator and the persons succeeding to a decedent's 
 
 real estate* 
 
 BISHOP v. BISHOP. 
 11 New York, 123. — 1854. 
 
 Action upon a promissory note. 
 
 In 1844 Lyman Bishop gave to one Blackman a mortgage upon 
 his farm. Thereafter Bishop planted a hop-yard on the farm, and 
 in 1849 died, still owning the farm, and while the hop-poles in ques- 
 tion in this action were in use in the yard. Plaintiff, as executrix, 
 sold the hop-poles, as personal property of the estate, to defendant, 
 and the note in suit was given for the price thereof. At the time 
 of such sale the hop-poles were in heaps in the hop-yard. Later on 
 the farm was sold on the mortgage to one Nichols, who took posses- 
 sion of the hop-poles which he found on the place. Defendant 
 alleges that Nichols got title to the hop-poles and that the considera- 
 tion of his note has failed. The decisions below were in favor of 
 defendant. Plaintiff appeals. 
 
 Gardiner, Ch. J. — The only question presented in this case is 
 whether the hop-poles, at the time of the sale to the defendant, were 
 personal property, or to be deemed part of the realty. This ques- 
 tion, I think, is settled by the facts stated in the answer, to which 
 the plaintiff has demurred. If hop-poles can constitute a portion 
 of the real estate, the defendant acquired no title to those purchased 
 by him, conceding the truth of the answer. Assuming, as we must, 
 the truth of the facts alleged by the defendant in his answer, the 
 hop-poles were, at the time of the sale, a part of the realty. Of 
 course, no title passed to the purchaser, and the note in question 
 was wholly without consideration. 
 
 1 "Annexations in sua solo." — Ed. 
 
 2 As by adverse possession or under a contract for the purchase of the 
 land. — Ed. 
 
 3 For the special rule in New York as to what "fixtures" are to be deemed 
 assets, see § 2712 Code Civ. Pro., subdivisions 4 and 9, and the case of Walker 
 v. Sherman, p. 218, supra. — Ed. 
 
 LAW OF PROP. IN LAND — 20
 
 306 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 The root of the hop is perennial, continuing for a series of years. 
 That this root would pass to a purchaser of the real estate, there 
 can be no question. The hop-pole is indispensable to the proper 
 cultivation of this crop. It is distinctly averred, and admitted, that 
 the poles belonged to the yard upon these premises, that they were 
 used for the purpose of cultivation, and were removed from the place 
 where they were set, in the usual course of agriculture, with a view 
 to gather the crop, and without any design to sever them from the 
 freehold; but, on the contrary, with the purpose of replacing them, 
 as the exigency of the new growth required. In a word, they were 
 to be permanently used upon the land, and were necessary for its 
 proper improvement. 
 
 If the poles had been standing in the yard at the time of the sale, 
 all admit that they would have formed a part of the realty. But 
 by being placed in heaps for a temporary purpose, they would not 
 lose their distinctive character, as appurtenant to the land, any more 
 than rails, or boards, from a fence in the same condition, would 
 become personal property. Indeed, the case cannot be distinguished 
 from Goodrich v. Jones, 2 Hill, 142, where it was held that manure 
 in heaps in the yard, and that fences, constitute a part of the free- 
 hold; and where the materials of which the fence is composed were 
 temporarily detached, without any intent to divert them from their 
 original use, it would work no change in their nature. 
 
 The opinion, in the case cited, was pronounced by Justice Cowen, 
 who was himself an advocate for the doctrine of corporeal annexa- 
 tion, as being in general the true criterion of a fixture. Walker v. 
 Sherman^ 20 Wend. 655. But all that was claimed by the learned 
 justice, in his elaborate opinion in Walker v. Sherman, was that the 
 chattel should be " habitually attached to the land, or some building 
 upon it." It need not, he adds, " be constantly fastened." I 
 think, according to this principle, that hop-poles which are put into 
 the ground every season, and continue there until they are removed 
 to gather the crop, and which are designed to be thus used, in the 
 same yard, for the same purpose, until they decay by lapse of time, 
 may without impropriety be considered as " habitually attached to 
 the land," although " not constantly fastened to it." 
 
 The judgment of the Supreme Court should be affirmed. 1 
 
 'Of the other judges, four concurred in this opinion. Denio and John- 
 son, JJ., dissented, regarding the hop-poles as mere tools or implements and so 
 chattels. — En.
 
 V. 5-] FIXTURES: ANNEXER HAS LICENSE. 307 
 
 {b.) Between execution Creditor of annexer and his vendor or mortgagor, 
 
 SNEDEKER v. WARRING. 
 12 New York, 170. — 1854. 
 [Reported herein at p. 231.] 
 
 (2.) Between Vendor (by Deed) and Vendee; Mortgagor and Mortgagee. 
 Between Tenants in Common. 
 
 FARRAR v. STACKPOLE. 
 
 6 Maine, 154. — 1829. 
 
 [Reported herein at p. 227.] 
 
 WALKER v. SHERMAN. 
 
 20 Wendell (N. Y.), 636. — 1839. 
 [Reported herein at p. 218.] 
 
 PEIRCE v. GODDARD. 
 22 Pickering (Mass.), 559. — 1839. 
 
 Wilde, J., drew up the opinion of the court. — This action is sub- 
 mitted on an agreed statement of facts, by which it appears that 
 one Davenport, being the owner of a lot of land with a dwelling- 
 house thereon, mortgaged the same to the plaintiff; that afterwards 
 he took down the house, and with the materials partly, and partly 
 with new materials, built a new house on another lot of his at some 
 distance; and that after the new house was completed, he, for a 
 valuable consideration, sold the last-mentioned lot and house to the 
 defendant. 
 
 There are two counts in the declaration, one, for the conversion 
 of the newly erected house, and the other, for the conversion of the 
 materials with which it was built, belonging to the old house. 
 
 The plaintiff's counsel insist, that the old house was the property 
 of the plaintiff, and that Davenport had no right to take it down, 
 and could not, therefore, acquire any property in the materials by 
 such a wrongful act; that the new house, being built with the 
 materials from the old house in part, became the property of the 
 plaintiff, although new materials were added by right of accession;
 
 308 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 and that Davenport, having no property in the house, as against the 
 plaintiff, could convey no title to it to the defendant. 
 
 That Davenport is responsible for taking down and removing the 
 old house cannot admit of a doubt; but it does not follow that the 
 property in the new house vested in the plaintiff. 
 
 The rules of law, by which the right of property may be acquired 
 by accession or adjunction, were principally derived from the civil 
 law, but have been long sanctioned by the courts of England and of 
 this country as established principles of law. 
 
 The general rule is, that the owner of property, whether the prop- 
 erty be movable or immovable, has the right to that which is united 
 to it by accession or adjunction. But by the law of England as well 
 as by the civil law, a trespasser, who wilfully takes the property of 
 another, can acquire no right in it on the principle of accession, but 
 the owner may reclaim it, whatever alteration of form it may have 
 undergone, unless it be changed into a different species and be inca- 
 pable of being restored to its former state; and even then the tres- 
 passer, by the civil law, could acquire no right by the accession, unless 
 the materials had been taken away in ignorance of their being the 
 property of another. 2 Kent's Comm. 362; Betts v. Lee, 5 Johns. 
 R. 348. But there are exceptions to the general rule. 
 
 It is laid down by Molloy as a settled principle of law, that if a 
 man cuts down the trees of another, or takes timber or plank pre- 
 pared for the erecting or repairing of a dwelling-house, nay, though 
 some of them are for shipping, and builds a ship, the property fol- 
 lows not the owners, but the builders. Mole de Jure Mar. lib. 2, c. 
 1, sec. 7. 
 
 Another similar exception is laid down by Chancellor Kent in his 
 Commentaries, which is directly in point in the present case. If, he 
 says, A. builds a house on his own land with the materials of another, 
 the property in the land vests the property in the building by right 
 of accession, and the owner of the land would only be obliged to 
 answer to the owner of the materials for the value of them. 2 Kent's 
 Comm. 360, 361. This principle is fully sustained by the authorities. 
 In Bro. tit. Property, pi. 23, it is said, that if timber be taken and 
 made into a house, it cannot be reclaimed by the owner; for the 
 nature of it is changed, and it has become a part of the freehold. 
 In Moore, 20, it was held, that if a man takes trees of another and 
 makes them into boards, still the owner may retake them, but that 
 if a house be made with the timber it is otherwise. 
 
 Id Popham, 3<S, this principle is further extended. The plaintiff 
 in that case had mixed his own hay with hay of the defendant on his 
 land, and the defendant took away the hay thus intermixed; and it
 
 V. 5-] FIXTURES: ANNEXER HAS LICENSE. 309 
 
 was held, that he had a right go to do. But it was also held, that 
 if the plaintiff had taken the defendant's hay and carried it to his 
 house and there intermixed it with his own hay, the defendant could 
 not take back his hay, but would be put to his action against the 
 plaintiff, for taking his hay. If there be any doubt of the doctrine 
 laid down in this case, it does not affect the present case. The 
 doctrine laid down in the former cases is fully supported by the year 
 books, 5 Hen. 7, 16; and I am not aware of any modern decison or 
 authority in which this old doctrine of the English law has been con- 
 troverted. 
 
 The case of Russell v. Richards, 1 Fairfield, 429, cited by the 
 plaintiff's counsel, was decided on the ground, that the building in 
 controversy was personal property and had never become a part of 
 the freehold. In the present case it cannot be questioned, that the 
 newly erected dwelling-house was a part of the freehold, and was the 
 property of Davenport. The materials used in' its construction 
 ceased to be personal property, and the owner's property in them 
 was divested as effectually as though they had been destroyed. It 
 is clear, therefore, that the plaintiff could not maintain an action 
 even against Davenport, for the conversion of the new house. And 
 it is equally clear, that he cannot maintain the present action for the 
 conversion of the materials taken from the old house. The taking 
 down that house and using the materials in the construction of the 
 new building was the tortious act of Davenport, for which he alone 
 is responsible. 
 
 Plaintiff nonsuit. 
 
 (3.) Between Land-contract-vendee Annexing, and His Vendor. 
 THE MICHIGAN MUTUAL LIFE INSURANCE CO. v. CRONK. 
 
 93 Michigan, 49. — 1892. 
 
 Montgomery, J. — The defendant, on the 18th day of June, 1887, 
 contracted in writing to purchase of one William L. Jenks the 
 N. W. one-quarter of S. W. one-quarter of section 19, township 7 
 N., range 16 E. The contract was in the usual printed form, and 
 contained a covenant on the part of the defendant that he would 
 not commit, or suffer any other person to commit, any waste or 
 damage to said lands or appurtenances, except for firewood or 
 otherwise for his own use, or while clearing off the lands for cultiva- 
 tion in the ordinary manner. Immediately after entering upon the 
 lands he erected a small dwelling-house thereon, and lived in it for 
 two years. He then made default in his payments, and the plaintiff,
 
 3IO CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 to whom the contract had in the meantime been assigned by Jenks, 
 terminated the contract, and required the defendant to surrender 
 possession. The house was a one-story frame house, 20 by 26, and 
 suitable for the purposes of a dwelling house, to be used upon the 
 land in question. After the removal of the house from the premises, 
 it was placed upon a 40 across the street, and plaintiff, after demand, 
 brought replevin. The circuit judge directed a verdict for the 
 plaintiff, and the defendant appeals. 
 
 Two questions only are presented in appellant's brief. It is first 
 claimed that replevin will not lie, because the house had become a 
 fixture upon the land to which it was moved, and was therefore real 
 estate; second, that, as the house was occupied as a homestead by 
 the defendant and his family, the wife was a necessary party. 
 
 We think that when this house was erected upon the land held 
 under contract it. became a part of the realty, and as such the prop- 
 erty of the owner of the land, subject only to the rights of the pur- 
 chaser therein. Kingsley v. McFarland, 82 Me. 231, 19 Atl. Rep. 
 442; Milton v. Colby, 5 Mete. (Mass.) 78; Iron Co. v. Black, 70 Me. 
 473; Tyler, Fixt. 78. It being severed from the land, it became 
 personal property, and replevin would lie unless it became affixed to 
 the realty by the tortious act of the defendant in removing it and 
 placing it upon other lands. But we think no such legal effect can 
 be given to the defendant's wrong. The house was moved upon land 
 of a third party. There was no privity of title between the owner- 
 ship of the house and the ownership of the land to which it was 
 removed. The cases cited by defendant of Morrison v. Berry, 42 
 Mich. 389, and Wagar v. Briscoe, 38 Id. 587, do not apply. 
 
 The house remaining personal property in the wrongful possession 
 of defendant, it follows that no homestead rights, which consist in an 
 interest in lands, attached. 
 
 The judgment is affirmed, with costs. 
 
 b. Annexer is tenant for life. 
 
 OVERMAN v. SASSER. 
 
 107 NORTH Carolina, 432. — 1890. 
 
 Casf. submitted without action. 
 
 Eliza Sasser and Amanda Cassely were the owners of a tract of land 
 
 in common. Mrs. Sasser died and her interest in the land descended 
 
 ie defendants as her heirs, her husband, Eli Sasser, becoming 
 
 tenant thereof for his life by the curtesy. Thereafter Eli Sasser
 
 V. 5-] FIXTURES: ANNEXER IS TENANT FOR LIFE. 31I 
 
 and others annexed certain machinery to this real estate for the 
 purpose of running a mill and a cotton-gin. 
 
 The life tenant died bequeathing these annexations to his second 
 wife and others, and plaintiff, as executor of his will, now seeks to 
 recover them from the remaindermen. 
 
 Judgment below for the executor. The remaindermen appeal. 
 
 Clark, J. — In the great case of Elwes v. Mawe, 3 East, 38, 2 
 Smith Ldg. Cases, Lord Ellenborough holds the doctrine of fixtures 
 to depend largely in its application, upon the relations of the parties, 
 which he divided into three clases. 
 
 1. Executor and heir. As between them, the common-law rule, 
 that whatever is affixed to the freehold becomes a part of it and 
 passes with it {guicquid plantatur solo, solo cedii) is observed in full 
 vigor. In this class fall also mortgagor and mortgagee, vendor and 
 vendee, as to whom the strict rule of the common law is still in 
 force. Foote v. Gooch, 96 N. C. 265. 
 
 2. Between executor of tenant for life, or in tail, and the remain- 
 derman, in which case the right to fixtures is considered more 
 favorable for the executor. 
 
 3. Between landlord and tenant, in which case, in favor of trade, 
 and to encourage industry, the greatest latitude is allowed, so that 
 all fixtures set up for better enjoyment of trade are retained by the 
 tenant, though this does not include fixtures used for agricultural 
 purposes. Where, however, they are used for mixed purposes of 
 trade and agriculture, they are held to belong to the tenant. Wil- 
 liams on Persona] Property, 16, note, and numerous cases cited. 
 
 The reason of the distinction is pointed out by Pearson, C. J., 
 very succinctly in Moore v. Valentine, 77 N. C. 188. When additions 
 are made to the land by the owner, whether vendor, mortgagor or 
 ancestor, the purpose is to enhance its value, and to be permanent. 
 With the tenant the additions are made for a temporary purpose, 
 and not with a view of making them part of the land, hence for the 
 encouragement of trade, manufacturing, etc., the tenant is allowed 
 to remove what had apparently become affixed to the freehold, if 
 affixed for purpose of trade, and not merely for better enjoyment of 
 the premises. Pemberton v. King, 2 Dev. 376. 
 
 In the present case, it is agreed that " the engine, cotton-gin and 
 condenser were attached to the mill by the tenant by the curtesy 
 after his term commenced, and not solely for the better enjoyment 
 of the land and farm, but for the purpose of milling corn and gin- 
 ning cotton for the neighborhood, as well as himself, and for the 
 mixed purpose of trade and agriculture."
 
 312 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 His Honor properly held that they belonged to the executor of the 
 life tenant as against the remaindermen. This case comes under 
 the second class mentioned by Lord Ellenborough, and there are 
 few adjudications on that class, but the ruling of the court below is 
 sustained by that of Lord Hardwicke in Lawton v. Lawlon, 3 Atk. 
 13, and in Dudley v. Wood, Amb. 113, and the observation of Lord 
 Mansfield in Lawton v. Salmon, 1 H. Bl. 260. There are subsequent 
 cases which all seem to follow the above precedents. Tyler on 
 Fixtures (ed. 1877), 490, 491, 496, 503. 
 
 In our own reports, Pcmberton v. King, 2 Dev. 376; Feinster v. 
 Johnson, 64 N. C. 259, and Railroad v. Deal, 90 N. C. no, which 
 recognized the right of tenant to remove, were cases between tenant 
 and lessor, while Bryan v. Lawrence, 5 Jones, 337; Latham v. Blakely, 
 70 N. C. 368; Deal v. Palmer, 72 N. C. 582; Bond v. Coke, 71 
 N. C. 97; Foote v. Gooch, 96 N. C. 265, and Home v. Smith, 105 
 N. C. 322, which adjudged the fixtures to have become part of the 
 freehold, all came under Lord Ellenborough's first class, supra. 
 
 This is the first instance in which the rule as to fixtures between 
 executor of tenant for life and the remainderman has come before 
 the courts of this State. It assimilates that between landlord and 
 tenant, the principal difference, perhaps, being that the executor 
 can remove such fixtures within a reasonable time after the death 
 of the life tenant, whereas, between landlord and tenant, the tenant 
 cannot go on the premises to remove the fixtures after the termina- 
 tion of his lease without being a trespasser, except in those cases 
 where the duration of his term is not fixed, but uncertain, or where 
 there is an agreement that he may remove after the expiration of 
 the lease. No error. 
 
 c. Annexer is tenant for years. 
 
 (1.) Trade Fixtures. 
 
 VAN NESS v. PACARD. 
 
 2 Peters, (U. S.) 137.— 1829. 
 
 Mr. Justice Story delivered the opinion of the court. — This is 
 a writ of error to the Circuit Court of the District of Columbia, sit- 
 ting U>r the county of Washington. 
 
 The original was an action on the case brought by the plaintiffs in 
 error against the defendant for waste committed by him, while tenant 
 of the plaintiffs, to their reversionary interest, by pulling down and 
 removing from the demised premises a messuage or dwelling-house
 
 V. 5-] FIXTURES: REMOVAL BY TENANT FOR YEARS. 3 1 3 
 
 erected thereon and attached to the freehold. The cause was tried 
 upon the general issue, and a verdict found for the defendant, upon 
 which a judgment passed in his favor; and the object of the present 
 writ of error is to revise that judgment. 
 
 By the bill of exceptions filed at the trial it appeared that the 
 plaintiffs in 1820, demised to the defendant, for seven years, a vacant 
 lot in the city of Washington, at the yearly rent of $112.50, with a 
 clause in the lease that the defendant should have a right to pur- 
 chase the same at any time during the term for $1,875. After the 
 defendant had taken possession of the lot he erected thereon a 
 wooden dwelling house, two stories high in front, with a shed of one 
 story, a cellar of stone or brick foundation, and a brick chimney. 
 The defendant and his family dwelt in the house from its erection 
 until near the expiration of the lease, when he took the same down 
 and removed all the materials from the lot. The defendant was a 
 carpenter by trade, and he gave evidence, that upon obtaining the 
 lease he erected the building above mentioned with a view to carry 
 on the business of a dairyman, and for the residence of his family 
 and servants engaged in his said business; and that the cellar, in 
 which there was a spring, was made and exclusively used for a milk 
 cellar, in which the utensils of his said business were kept and 
 scalded, and washed, and used; and that feed was kept in the upper 
 part of the house, which was also occupied as a dwelling for his 
 family. That the defendant had his tools as a carpenter, and two 
 apprentices in the house, and a work-bench out-of-doors; and car- 
 penter's work was done in the house, which was in a rough, unfinished 
 state and made partly of old materials. That he also erected on the 
 lot a stable for his cows of plank and timber fixed upon posts 
 fastened into the ground, which stable he removed with the house 
 before the expiration of his lease. 
 
 Upon this evidence the counsel for the plaintiffs prayed for an 
 instruction, that if the jury should believe the same to be true, the 
 defendant was not justified in removing the said house from the 
 premises; and that he was liable to the plaintiffs in this action. 
 This instruction the court refused to give; and the refusal constitutes 
 his first exception. 
 
 The defendant further offered evidence to prove that a usage and 
 custom existed in the city of Washington, which authorized a tenant 
 to remove any building which he might erect upon rented premises, 
 provided he did it before the expiration of the term. The plaintiffs' 
 objected to this evidence; but the court admitted it. This 
 constitutes the second exception. 
 
 Testimony was then introduced on this point, and after the exam-
 
 3H CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 ination of the witnesses by the defendant, the plaintiffs prayed the 
 court to instruct the jury that the evidence was not competent to 
 establish the fact that a general usage had existed or did exist in 
 the city of Washington which authorized a tenant to remove such a 
 house as that erected by the tenant in this case; nor was it compe- 
 tent for the jury to infer from the said evidence that such a usage 
 had existed. The court refused to give this instruction, and this 
 constitutes the third exception. 
 
 The counsel for the plaintiffs then introduced witnesses to disprove 
 the usage; and after their testimony was given, he prayed the court 
 to instruct the jury that, upon the evidence given as aforesaid in this 
 case, it is not competent for them to find a usage or custom of the 
 place by which the defendant could be justified in removing the 
 house in question; and there being no such usage, the plaintiffs are 
 entitled to a verdict for the value of the house which the defendant 
 pulled down and destroyed. The court was divided and did not give 
 the instruction so prayed; and this constitutes the fourth exception. 
 
 The first exception raises the important question, what fixtures 
 erected by a tenant during his term are removable by him? 
 
 The general rule of the common law certainly is that whatever is 
 once annexed to the freehold becomes part of it, and cannot after- 
 ward be removed, except by him who is entitled to the inheritance. 
 The rule, however, never was, at least as far back as we can trace 
 it in the books, inflexible and without exceptions. It was construed 
 most strictly between executor and heir in favor of the latter; more 
 liberally between tenant for life or in tail, and remainderman or 
 reversioner, in favor of the former; and with much greater latitude 
 between landlord and tenant in favor of the tenant. But an excep- 
 tion of a much broader cast, and whose origin may be traced almost 
 as high as the rule itself, is of fixtures erected for the purposes of 
 trade. Upon principles of public policy, and to encourage trade and 
 manufactures, fixtures which were erected to carry on such business 
 were allowed to be removed by the tenant during his term, and were 
 deemed personalty for many other purposes. The principal cases 
 are collected and reviewed by Lord Ellenborough in delivering the 
 opinion of the court in Elwes v. Mawe, 3 East's R. 38; and it seems 
 unnecessary to do more than to refer to that case for a full summary 
 of the general doctrine and its admitted exceptions in England. 
 The court there decided, that in the case of landlord and tenant 
 there had been no relaxation of the general rule in cases of erections 
 solely for agricultural purposes, however beneficial or important 
 they might be as improvements of the estate. Being once annexed 
 to the freehold by the tenant they became a part of the realty and
 
 V. 5-] FIXTURES: REMOVAL BY TENANT FOR YEARS. 315 
 
 could never afterward be severed by the tenant. The distinction 
 is certainly a nice one between fixtures for the purposes of trade and 
 fixtures for agricultural purposes; at least in those cases where the 
 sale of the produce constitutes the principal object of the tenant, and 
 the erections are for the purpose of such a beneficial enjoyment of 
 the estate. But that point is not now before us; and it is unneces- 
 sary to consider what the true doctrine is or ought to be on this sub- 
 ject. However well settled it may now be in England, it cannot 
 escape remark that learned judges at different periods in that 
 country have entertained different opinions upon it, down to the 
 very date of the decision in Elwes v. Mawe, 3 East's R. 38. 
 
 The common law of England is not to be taken in all respects to 
 be that of America. Our ancestors brought with them its general 
 principles, and claimed it as their birthright; but they brought with 
 them and adopted only that portion which was applicable to their 
 situation. There could be little or no reason for doubting that the 
 general doctrine as to things annexed to the freehold, so far as it 
 respects heirs and executors, was adopted by them. The question 
 could arise only between different claimants under the same ancestor, 
 and no general policy could be subserved by withdrawing from the 
 heir those things which his ancestor had chosen to leave annexed 
 to the inheritance. But between landlord and tenant it is not so 
 clear that the rigid rule of the common law, at least as it is expounded 
 in 3 East, 38, was so applicable to their situation as to give rise to 
 necessary presumption in its favor. The country was a wilderness, 
 and the universal policy was to procure its cultivation and improve- 
 ment. The owner of the soil as well as the public had every motive 
 to encourage the tenant to devote himself to agriculture, and to 
 favor any erections which should aid this result; yet, in the com- 
 parative poverty of the country, what tenant could afford to erect 
 fixtures of much expense or value if he was to lose his whole interest 
 therein by the very act of erection? His cabin or log hut, however 
 necessary for any improvement of the soil, would cease to be his 
 the moment it was finished. It might, therefore, deserve considera- 
 tion whether, in case the doctrine were not previously adopted in a 
 State by some authoritative practice or adjudication, it ought to be 
 assumed by this court as a part of the jurisprudence of such State 
 upon the mere footing of its existence in the common law. At 
 present it is unnecessary to say more than that we give no opinion 
 on this question. The case which has been argued at the bar may 
 well be disposed of without any discussion of it. 
 
 It has been already stated that the exceptions of buildings and 
 other fixtures for the purpose of carrying on a trade or manufacture
 
 316 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 is of very ancient date, and was recognized almost as early as the 
 rule itself. The very point was decided in 20 Henry VII., 13a. and 
 b., where it was laid down, that if a lessee for years made a furnace 
 for his advantage, or a dyer made his vats or vessels to occupy his 
 occupation, during the term, he may afterward remove them. That 
 doctrine was recognized by Lord Holt in Poole's Case, 1 Salk. 368, 
 in favor of a soap-boiler who was tenant for years. He held that 
 the party might well remove the vats he set up in relation to trade, 
 and that he might do it by the common law (and not by virtue of 
 any custom) in favor of trade and to encourage industry. In Lawton 
 v. Lawto/i, 3 Atk. R. 13, the same doctrine was held in the case of a 
 fire-engine set up to work in a colliery by a tenant for life. Lord 
 Hardwicke there said that since the time of Henry VII. the general 
 ground the courts have gone upon of relaxing the strict construc- 
 tion of law is that it is for the benefit of the public to encourage 
 tenants for life to do what is advantageous to the estate during the 
 term. He added, " one reason which weighs with me is its being a 
 mixed case, between enjoying the profits of the land, and carrying 
 on a species of trade; and in considering it in this light it comes 
 very near the instances in brew-houses, etc., of furnaces and coppers." 
 The case, too, of a cider-mill, between the executor and heir, etc., 
 is extremely strong, for though cider is a part of the profits of the 
 real estate, yet it was held by Lord Chief Baron Comyns, a very able 
 common lawyer, that the cider-mill was personal estate notwith- 
 standing, and that it should go to the executor. " It does not differ 
 it, in my opinion, whether the shed be made of brick or wood, for 
 it is only intended to cover it from the weather and other incon- 
 veniences." In Penton v. Robart, 2 East, 88, it was further decided 
 that a tenant might remove his fixtures for trade even after the 
 expiration of his term if he yet remained in possession; and Lord 
 Kenyon recognized the doctrine in its most liberal extent. 
 
 It has been suggested at the bar that this exception in favor of 
 trade has never been applied to cases like that before the court, 
 where a large house has been built and used in part as a family resi- 
 dence. But the question, whether removable or not, does not 
 depend upon the form or size of the building, whether it has a brick 
 foundation or not, or is one or two stories high, or has a brick or 
 other chimney. The sole question is whether it is designed for 
 purposes of trade or not. A tenant may erect a large as well as a 
 small messuage, or a soap-boilery of one or two stories high, and on 
 whatever foundations he may choose. In Lawton v. Lawton, 3 Atk. 
 R. 13, lord Hardwicke said (as we have already seen) that it made 
 no dill' ren< e whether the shed of the engine be made of brick or
 
 V. 5-] FIXTURES: REMOVAL BY TENANT FOR YEARS. 317 
 
 stone. In Penton v. Robart, 2 East's R. 88, the building had a brick 
 foundation, let into the ground, with a chimney belonging to it, 
 upon which there was a superstructure of wood. Yet the court 
 thought the building removable. In Elwes v. Mawe, 3 East's R. 
 38, Lord Ellenborough expressly stated that there was no difference 
 between the building covering any fixed engine, utensils, and the 
 latter. The only point is whether it is accessory to carrying on the 
 trade or not. If bona fide intended for this purpose, it falls within 
 the exception in favor of trade. The case of the Dutch barns before 
 Lord Kenyon, Dean v. Allalley, 3 Esp. 11; Woodfall's Landlord 
 and Tenant, 219, is to the same effect. 
 
 Then, as to the residence of the family in the house, this resolves 
 itself into the same consideration. If the house were built prin- 
 cipally for a dwelling-house for the family, independently of carry- 
 ing on the trade, then it would doubtless be deemed a fixture, 
 falling under the general rule, and immovable. But if the resi- 
 dence of the family were merely an accessory for the more beneficial 
 exercise of the trade, and with a view to superior accommodation 
 in this particular, then it is within the exception. There are many 
 trades which cannot be carried on well without the presence of many 
 persons by night as well as by day. It is so in some valuable manu- 
 factories. It is not unusual for persons employed in a bakery to sleep 
 in the same building. Now, what was the evidence in the present 
 case? It was, " that the defendant erected the building before men- 
 tioned, with a view to carry on the business of a dairyman, and for 
 the residence of his family and servants engaged in that business." 
 The residence of the family was then auxiliary to the dairy; it was 
 for the accommodation and beneficial operations of this trade. 
 
 Surely, it cannot be doubted, that in a business of this nature the 
 immediate presence of the family and servants was, or might be, of 
 very great utility and importance. The defendant was also a car- 
 penter, and carried on his business as such in the same building. It 
 is no objection that he carried on two trades instead of one. There 
 is not the slightest evidence of this one being a mere cover or evasion 
 to conceal another, which was the principal design; and unless we 
 are prepared to say (which we are not) that the mere fact that the 
 house was used for a dwelling-house as well as for a trade superseded 
 the exception in favor of the latter, there is no ground to declare that 
 the tenant was not entitled to remove it. At most, it would be 
 deemed only a mixed case, analogous in principle to those before 
 Lord Chief Barons Comyns and Lord Hardwicke, and therefore 
 entitled to the benefit of the exception. The case of Holmes v- 
 Tremper, 20 Johns. R. 29, proceeds upon principles equally liberal,
 
 3l8 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 and it is quite certain that the Supreme Court of New York were 
 not prepared at that time to adopt the doctrine of Elwes v. Mawe 
 in respect to erections for agricultural purposes. In our opinion the 
 Circuit Court was right in refusing the first instruction. 
 
 The second exception proceeds upon the ground that it was not 
 competent to establish a usage and custom in the city of Washington 
 for tenants to make such removals of buildings during their term. 
 We can perceive no objection to such proof. Every demise between 
 landlord and tenant in respect to matters in which the parties are 
 silent may be fairly open to explanation by the general usage and 
 custom of the country or of the district where the land lies. Every 
 person under such circumstances is supposed to be conusant of the 
 custom, and to contract with a tacit reference to it. Cases of this 
 sort are familiar in the books; as, for instance, to prove the right 
 of a tenant to an away-going crop. 2 Starkie on Evidence, part 
 IV., 453. In the very class of cases now before the court the cus- 
 tom of the country has been admitted to decide the right of the 
 tenant to remove fixtures. Woodfall's Landlord and Tenant, 218. 
 The case before Lord Chief Justice Treby turned upon that point. 
 Buller's Nisi Prius, 34. 
 
 The third exception turns upon the consideration whether the 
 parol testimony was competent to establish such a usage and custom. 
 Competent it certainly was, if by competent is meant that it was 
 admissible to go to the jury. Whether it was such as ought to have 
 satisfied their minds on the matter of fact was solely for their con- 
 sideration; open, indeed, to such commentary and observation as 
 the court might think proper in its discretion to lay before them for 
 their aid and guidance. We cannot say that they were not at liberty, 
 by the principles of law, to infer from the evidence the existence of 
 the usage. The evidence might be somewhat loose and indetermin- 
 ate, and so be urged with more or less effect upon their judgment; 
 but in a legal sense it was within their own province to weigh it 
 as proof of a usage. 
 
 The last exception professes to call upon the court to institute a 
 comparison between the testimony introduced by the plaintiff and 
 that introduced by the defendant against and for the usage. It 
 requires from the court a decision upon its relative weight and credi- 
 bility, which the court were not justified in giving to the jury in the 
 shape of a positive instruction. 
 
 Upon the whole, in our judgment, there is no error in the judgment 
 of tin- Circuil Court, and it is affirmed. 1 
 
 1 Foi a class "f cases in which tenant cannot remove trade fixtures, see 
 
 (>' /hi,n v. K u /•' ' . xupra, p. 237.-- Ed.
 
 V. 5-] FIXTURES: REMOVAL BY TENANT FOR YEARS. 319 
 
 LINAHAN v. BARR. 
 41 Connecticut, 471. — 1874. 
 
 Carpenter, J. — The sole question in the first case is, whether a ten- 
 ant who erected a building on leased property had a right to remove 
 the same at the termination of his lease. The circumstances were 
 these: — The premises consisted of a store in the city of Bridgeport. 
 The store burned down, leaving a vacant lot. The lease had then 
 about two years to run. The landlord offered the tenant fifty 
 dollars to surrender his lease, but he declined, saying that he was 
 about to erect another building on the land, that he knew that it 
 would belong to the landlord, that he did not intend to remove the 
 same at the expiration of his lease, and that the rent which he 
 should receive during the term would pay the cost of construction. 
 The building was one-story high, built of brick, with glass front, and 
 stood on the foundation walls of the burned building, except the 
 rear, which was an unbroken brick wall from the cellar bottom. 
 
 The respondent claims under the lessee, and insists that the build- 
 ing was a trade fixture which might lawfully be removed by the 
 tenant. 
 
 A question is made whether the declarations of the tenant were 
 admissible in evidence. We entertain no doubt on that question. 
 They tend directly to show the intention of the party in erecting the 
 building; and intention in these cases is always a material inquiry. 
 Had the parties agreed that the tenant might build and remove the 
 building, no one would doubt that that fact might be shown for the 
 purpose of proving that it was the personal property of the builder. 
 The intention and understanding of the parties at the time are neces- 
 sarily involved in the inquiry. 
 
 In this case it is apparent that both parties intended that the 
 building, at the termination of the lease should belong to the owner 
 of the land. This is evident, in the first place, from the materials 
 used, and the manner of construction. It was attached to the free- 
 hold in the same manner that buildings ordinarily are which are 
 designed to be permanent. This, although not conclusive, is an 
 important consideration. In the next place, the interview between 
 the parties at the time very clearly shows that neither party expected 
 or intended that the building should be removed. In view of all the 
 circumstances we think the court below was clearly right in holding 
 that the building was a part of the realty. Ombony v. Jones, 19 N. Y. 
 234; Shepard v. Spalding, 4 Met. 416; Curtis v. Hoyt, 19 Conn. 154; 
 Landon v. Piatt, 34 Conn. 517; Capen v. Peckham, 35 Conn. 88.
 
 320 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 The second case was a summary process to recover the possession 
 of the leased premises. The only question before the justice seems 
 to have been whether the plaintiff in error, who claimed the building 
 by purchase from the original lessee, was the lessee of the com- 
 plainant. The court found that he was, and rendered judgment 
 against him. 
 
 We fail to discover any question of law in the case which this 
 court can review. 
 
 The defendant claimed that the occupation of the premises while 
 he was claiming the ownership of the building, and while the injunc- 
 tion against his removal of it was in force, was not an acceptance of 
 a proposition by the plaintiff to lease the premises to him at a certain 
 rent named. The justice found that he had become a lessee of the 
 premises, that is, that his conduct was such an acceptance. 
 
 This was a question of fact. But even if it can be regarded as a 
 mixed question of law and fact, we cannot see that the justice 
 violated any principle of law in deciding as he did. 
 
 There is no error in either judgment. 
 
 HOLMES v. TREMPER. 
 20 Johnson (N. Y.), 29. — 1S22. 
 
 Spencer, Ch. J., delivered the opinion of the court. — The ques- 
 tion arising upon the pleadings has never been decided in this 
 court. * * * 
 
 It is admitted, in this case, that the defendant erected the cider-- 
 mill and press, at her own cost, during her tenancy, for the purpose of 
 making the cider on the farm. I confess, I never could perceive the 
 reason, justice or equity of the old cases, which gave to the landlord 
 such kind of erections as were merely for the use and convenience 
 of the tenant, the removal of which neither defrauds nor does the 
 least injury to the landlord. The rule anciently was very rigid; but 
 
 I think it has yielded materially to the more just and liberal notions 
 of modern times. In Lawton v. Laicton, 1 Atk. 13, the question 
 
 >e between the tenant for life and a remainderman. The subject 
 <.f < ontroversy was a fire-engine, set up by the tenant for life, for 
 the benefit of a colliery; and the point was, whether it should be 
 ■ onsidered as personal estate. It appeared, that, in building sheds 
 for securing tin- engine, holes were left for the ends of timber, to 
 facilitate removal, and they were capable of being removed. Lord 
 
 II 1: Iwicke, after observing that the rigor of the law was relaxed 
 upon this subject, pronounced it a mixed case between enjoying the
 
 V. 5-] FIXTURES: REMOVAL BY TENANT FOR YEARS. 32 1 
 
 profits of the land, and carrying on a species of trade. He adverted, 
 with evident approbation, to a decision of Chief Baron Comyns, at 
 the assizes at Worcester, in which the subject of discussion was a 
 cider-mill, and the question was between the executor and the heir. 
 In that case, it was decided, that though cider is part of the profits 
 of the real estate, yet it was personal estate, notwithstanding, and 
 should go to the executor. Lord Hardvvicke, in the principal case, 
 decided, that the fire-engine was personal estate; and he makes a 
 very strong distinction between the rights of a tenant from year to 
 year, as between him and the landlord, and between a tenant for 
 life and remainderman. In Lawton v. Salmon, 1 H. Bl. 259, in the 
 notes, Lord Mansfield stated the change that had taken place in the 
 law, as between landlord and tenant. He observed that many 
 things may now be taken away which could not be formerly; such 
 as erections for carrying on any trade, marble chimney-pieces, and 
 the like, when put up by the tenant. This, he adds, is no injury to 
 the landlord, for the tenant leaves the premises in the same state in 
 which he found them, and the tenant is benefited. 
 
 In the case of Culling v. Tufnal, Chief Justice, in 1694, Bull. 
 N. P. 34, the tenant had erected a barn on the premises, and put it 
 on pattens and blocks, but not fixed in, or to the ground, and 
 removed it off; he was held to be justified, because it was usual to 
 remove such buildings in that part of the country. But Buller states, 
 that the question would now be determined in favor of the tenant 
 without difficulty, for that, of late years, many things are allowed to 
 be removed by tenants, which were not formerly; and he specially 
 instances cider-mills, which the tenant may now remove. In Dean 
 v. Allallev, 3 Esp. Rep. 11, Lord Kenyon held, that the law would 
 make the most favorable construction for the tenant, where he had 
 made necessary and useful erections, for the benefit of his trade or 
 manufacture; and he said it had been held so, in case of cider-mills, 
 and in other cases; and he should not narrow the law, but hold 
 erections of that sort, made for the benefit of trade, or constructed 
 as the sheds were in that case, to be removable at the end of the 
 term. In the case of Elwes v. Mawe, 3 East, 38, the buildings 
 erected by the tenant, and which he removed, were of brick and 
 mortar, and tiled, and the foundations were one foot and a half 
 deep in the ground; and Lord Ellenborough said, that these were 
 fixtures, and not removable, as between landlord and tenant. This 
 case does not call for any expression of our opinion on the correct- 
 ness of that decision, not do we intend to approve or disapprove of 
 it. It is very materially different from the present case. Lord 
 Ellenborough refers to the decision of Chief Baron Comyns, in the 
 
 LAW OF PROP. IN LAND — 21
 
 322 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 case of the cider-mill, he says he may have considered it a mixed case, 
 between enjoying the profits of the land, and carrying on a species 
 of trade, and as considering the cider-mill as properly an accessory 
 to the trade of making cider; and I can see no good reason why it 
 may not thus be considered, for cider is an article of trade. He 
 refers, also, to the case before Chief Justice Treby, and admits that 
 the tenant might remove the barn on pattens and blocks; for, he 
 says, they were not fixed in or to the ground, and so they were not 
 fixtures. 
 
 The plea here states, that the mill and press were annexed to, and 
 parcel of, the farm; but it does not state how they were annexed; 
 whether the mill was let into the ground or not. It states a mere 
 matter of law, and not of fact. But it is immaterial whether the 
 mill was let into the ground or not. The tenant, in my judgment, 
 had an unquestionable right to remove it, as personal property. 
 
 The plaintiff's counsel supposes that the tenant could not remove 
 this mill after the end of the term. It is true, that if she entered 
 upon the plaintiff's possession, and took away the mill, she would 
 be a trespasser on the soil, and answerable for breaking the close; 
 but leaving the mill there, if it belonged to her, would not work any 
 change of the property; and in this action, the trespass for entering 
 on the premises is not in question; and when it is said that the 
 removal must be within the term, or else he will be a trespasser, it 
 means only a trespasser as regards the entry. 
 
 Judgment for the defendants. 
 
 (2.) Agricultural Fixtures. 
 
 Story, J., in VAN NESS v. PACARD. 
 
 2 Peter's (U. S.). 137. — 1829. 
 
 \Reported herein at p. 312]. 1 
 
 (3.) Domestic Fixtures. 
 GAFFIELD v. HAPGOOD. 
 17 Pickering (Mass.), 192. — 1835. 
 
 \ A' 1 ported herein at p. 323.] 
 
 1 ThK ( asr- is oil trade fixtures, but see at pp. 314 and 317 the discussion of 
 Elwi \ East (Eng.), 38, with regard to agricultural fixtures. See also 
 
 Jlolun; v. V" "!/•>. nfr.i. — El).
 
 V. 5-] FIXTURES : TIME OF REMOVAL. 
 
 (4.) Time of Removal of Fixtures by Tenan 
 GAFFIELD v. HAPGOOD. 
 
 17 Pickering, (Mass.), 192. — 1835. 
 
 Trover to recover the value of a fire-frame placed by one Bliss in 
 a house leased by him. Bliss sold the fire-frame to plaintiff and 
 removed from the house leaving it there in place. When plaintiff 
 went to remove it defendant (in possession under the landowner) 
 forbade its removal. Nonsuit ordered below. Plaintiff appeals. 
 
 Putnam, J. — The fire-frame was without doubt personal property 
 before it was fixed to the freehold. But afterwards it became a 
 part of the house, and would have passed by a deed of the house as 
 a door or window of the house would have passed, provided there were 
 no exception in the deed to the contrary. But although it is to be 
 considered as a fixture, yet the lessee during the continuance of his 
 lease might have removed it. Lawton v. Lawton, 3 Atk. 16, in notis. 
 But he must remove it during the term. He cannot lawfully do it 
 afterwards. In Lee v . Risdon, 7 Taunt. 188, Gibbs, C. J. says, unless 
 the lessee uses the privilege of severing fixtures during the term he 
 cannot afterwards do it; adding, "and it never was heard of that 
 trover could be afterwards brought." 
 
 While it remained fixed to the freehold, it is clear that if one had 
 unfixed and taken it away at one time, it would not have been a 
 felony, but a trespass. The case of Penton v. Robert, 2 East, 88, 
 might seem to recognize the right of the tenant to remove a fixture 
 after the expiration of the term. That was trespass for breaking a 
 close and removing a building. It was brought by a landlord against 
 the tenant. The defendant made no defense to breaking and enter- 
 ing the close, and the plaintiff recovered a shilling for that, but the 
 defendant pleaded a justification for removing the building as set 
 forth in the declaration, that it was a building erected by him on the 
 premises for the purpose of carrying on his trade, and that he still 
 continued in possession of the premises at the time when, etc. The 
 justification was held sufficient. The relation of landlord and tenant 
 must have been considered as having continued and as still existing 
 in respect to the demised premises notwithstanding the first term 
 had expired. The defendant, as it seems to me, might and ought 
 to have pleaded the general issue as to breaking and entering the 
 close and a justification as to the rest. 
 
 If the fixture should not be removed during the term, and the 
 tenant should quit, and the landlord should take possession after- 
 wards, the law is very clear, that the fixture becomes a part of the
 
 324 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 freehold, and that the party who was tenant cannot legally take it 
 away afterwards. 
 
 And there are no facts stated in the present case which will vary 
 this well-established rule of law. 
 
 The circumstance that the owner of the estate offered it for sale 
 with a reservation of the fire-frame for the tenant, who was then in 
 possession, is of no avail; because the sale was not made. The 
 tenant sold the fire-frame to the plaintiff on the day before he left 
 the premises. The vendee could not be in a better situation than 
 the tenant was. He might, as has been said, have severed the frame 
 from the chimney while his tenancy continued, but he left the 
 premises, with the frame attached and fixed by brick and mortar to 
 the house. It is very certain that thereupon it became the prop- 
 erty of the owners of the freehold. 
 
 There are various annexations to the freehold estate, which, if the 
 tenant make them at his own expense, cannot be removed by him 
 during the term. As if he put glass into the windows; Co. Litt. 
 53a; and the reason given is, that the glass is become part of the 
 house. It shall go to the heir and not to the executor, for as is said 
 in Herlakenden s Case, 4 Co. R. 62, if they (the windows) be open 
 to tempests and rain, waste and putrefaction of the timber would 
 follow. So I apprehend it would be, if the tenant should shingle the 
 house, or put another story upon it. Such necessary or even 
 expensive reparation or addition would, at this day, be considered 
 as given to the owner of the freehold. 
 
 But the law has accommodated itself to the existing advanced state 
 of society, and the tenant may, during the term, take away chimney- 
 pieces, and even wainscot, if put up by himself; Co. Litt. ubi sup. 
 (Hargr. note 5); which, as the law stood before and at the time of 
 Lord Coke, he could not have been permitted to do. 
 
 The reason of the relaxation of the rule is found in the public 
 policy and convenience, which permit the tenant to make the most 
 profitable and comfortable use of the premises demised, that can 
 be obtained consistently with the rights of the owner of the freehold. 
 The inheritance is not to be prejudiced. 
 
 The law upon this subject was very much discussed in Elwes v. 
 Maiuc, 3 East, 38, by the court and bar; and such annexations made 
 with regard to trade, were recognized; but such as were made in 
 regard to agricultural improvements were still left to the operation 
 of the old law; with what correctness of inference, it is not neces- 
 sary in the case now under consideration to decide. For this case 
 is 1 lear of all difficulty, and is decided in favor of the defendant for 
 the reasons before suggested. Plaintiff nonsuit.
 
 V. 5-] FIXTURES : TIME OF REMOVAL. 325 
 
 LOUGHRAN v. ROSS. 
 45 New York, 792. — 1871. 
 
 Action for breach of covenants of seisin and of quiet enjoyment 
 contained in a deed of certain real estate made in January, 1866, 
 by defendant to plaintiff. Prior to May, 1865, the premises had 
 been occupied under a lease for a term of years by tenants who had 
 erected certain buildings thereon. On the expiration of that lease 
 defendant had leased one of the lots to the former tenant (or to one 
 occupying under him) for one year by parol, and had demised the 
 other lot by written lease to the former tenant for a term of three 
 years, to become a lease from month to month in case of sale of 
 the premises. 
 
 After conveyance to plaintiff and before the 1st of May, 1866, the 
 buildings were removed by the tenants under claim of right. This 
 removal and alleged right of removal constitutes the breaches of 
 covenant relied upon by plaintiff. The trial court dismissed the 
 complaint. This is an appeal from an order of the General Term 
 affirming such disposition of the cause. 
 
 Allen, J. — It is not claimed by the defendant that the tenant 
 occupying the premises for the terms ending on the 1st of May, 1865, 
 having erected the buildings during their terms of tenancy, might 
 not, during the continuance of their terms and their occupancy under 
 the first leases, have removed the buildings; and the plaintiff does 
 not deny, that after the expiration of the terms, and the tenants had 
 ceased to occupy as tenants, their right to remove the buildings 
 would have been lost; that a surrender of the premises would have 
 been an abandonment of the claim to the buildings, and they would 
 have become the property of the landlord as a part of the realty. 
 The material question in the case is, as to the effect of the second 
 letting and occupation under it, after the expiration of the first 
 leases, upon the rights of the tenants and the ownership of the 
 building. The rule is, that whatever fixtures the tenant has a 
 right to remove must be removed before his term expires, except 
 when the time at which the term will end is uncertain, depending 
 upon a contingency, and it may be determined unexpectedly to the 
 tenant, in which case he may be entitled to a reasonable time for 
 removing fixtures after the expiration of the tenancy. Ellis v. 
 Paige, 1 Pick. 43; .Reynolds v. Shuler, 5 Cow. 323. The rule may be 
 subject to the further qualification, that the right to remove the 
 fixtures is not lost to the tenant so long as his possession as tenant 
 continues; and the claim of the plaintiff is, that this qualification
 
 326 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 includes and saves the right of a tenant continuing in possession 
 under a new lease. The right of the tenant to remove is a privilege 
 conceded to him for reasons of public policy, and may be waived by 
 him, and will be regarded as abandoned by any acts inconsistent with 
 a claim to the buildings as distinct from the land, and upon abandon- 
 ment of the right by the tenant, fixtures erected by him immediately 
 become the property of the landlord as a part of the land. A sur- 
 render of the premises, after the expiration of the lease, is such an 
 abandonment as vests the title in the landlord. In reason and 
 principle the acceptance of a lease of the premises, including the 
 buildings, without any reservation of right, or mention of any claim to 
 the buildings and fixtures, and occupation under the new letting, are 
 equivalent to a surrender of the possession to the landlord at the 
 expiration of the first term. The tenant is under a new tenancy, 
 and not under the old; and the rights which existed under the 
 former tenancy, and which were not claimed or exercised, are aban- 
 doned as effectually as if the tenant had actually removed from the 
 premises, and after an interval of time, shorter or longer, had taken 
 another lease and returned to the premises. A lease of lands and 
 premises carries with it the buildings and fixtures on the premises, 
 and the tenant, accepting a lease of the premises without excepting 
 the buildings, takes a lease of the lands with the buildings and 
 fixtures, and acknowledges the title of the landlord to both, and is 
 estopped from controverting it. In respect to the lot of which 
 there was a written lease for the new term, the tenant expressly 
 covenanted to surrender the premises, at the end of the term, " in 
 as good state and condition as a reasonable use and wear thereof 
 will permit, damages by the elements excepted; " and this covenant 
 relates to and includes the buildings then on the premises, and if 
 they are excluded from its operation it can have no effect. It fol- 
 lows that the tenant becoming a party to that lease, and occupying 
 under it, is estopped from claiming the buildings as his own, for he 
 has covenanted to surrender them, as a part of the premises and 
 included within the general description, to the landlord at the end 
 of the term, in good repair. Such is also the implied undertaking 
 of the tenant taking a new lease by parol. Elementary writers are 
 very well agreed that, when a tenant continues in possession under 
 a new lease or agreement, his right to remove fixtures is determined, 
 and he is in the same situation as if the landlord, being seized of the 
 land with the fixtures, had demised both to him. Taylor's L. and 
 T. Qr; Gibbons' Law of Fixtures, 42; and Grady's Law of Fixtures, 
 98. And it would seem that the position is warranted by authority. 
 When the tenant continues in possession after ejectment brought
 
 V. 5-] FIXTURES: TIME OF REMOVAL. 327 
 
 by the landlord, under an arrangement with him, and with his assent 
 to a stay of execution, the tenant's right to remove buildings from 
 the premises, erected by himself during his lease, is gone. Fitzher- 
 bert v. Shaw, 1 H. Black. 258. The court held that there was an 
 implied agreement that the tenant should deliver up the premises in 
 the same condition as they were in when the agreement was made. 
 The same was held in Heap v. Barton, 12 C. B. 274, Jervis, Ch. J., 
 saying: " If the tenants meant to avail themselves of their continu- 
 ance in possession to remove the fixtures, they should have said so." 
 The general form of expressing the right of the tenant to remove 
 fixtures, is that they must be removed within the term; that is, the 
 term during which they were erected, and unless the lessee uses, 
 during the lease, the privilege to sever them, he cannot afterwards 
 do it. Lee v. Risdon, 7 Taunt. 188; Lyde v. Russell, 1 B. & Ad. 
 394. But it may be done so long as the possession continues, 
 although the term may have ended, if there has been no new agree- 
 ment. Penton v. Robert, 2 East, 88. A case somewhat analogous in 
 principle to this was that of Thresher v. Proprietors of the East London 
 Water Works, 2 B. & C. 608, in which it was decided that a lessee, 
 who had erected fixtures, for the purposes of trade, upon the demised 
 premises, and afterwards took a new lease, to commence at the expi- 
 ration of the former one, which new lease contained a covenant to 
 repair, was bound to repair those fixtures, unless strong circum- 
 stances existed to show that they were not intended to pass under the 
 general words of the second demise, and a doubt was expressed 
 whether any circumstances, dehors the deed, could be alleged to 
 show that they were not intended to pass. 
 
 Alderson, B., in Weeton v. Woodcock, 7 M. &W.14, says: "The rule, 
 to be collected from the several cases decided seems to be this; that 
 the tenant's right to remove fixtures continues during his original 
 term, and during such further period of possession by him, as he 
 holds the premises under a right still to consider himself a tenant," 
 and the right to remove the fixtures was denied to the assignees 
 of the tenant, although they retained the possession, the plaintiff 
 having made an entry to enforce a forfeiture. See also Minshall v. 
 Lloyd, 2 M. & W. 450; Shepard v. Spaulding, 4 Mete. 416. The 
 tenants, holding under a new demise, had not the legal right to 
 remove the fixtures put by them on the premises during a former 
 term, there being no mention of the right in the second lease. 
 The offer to prove that, by custom in the city of New York, tenants 
 had a right to remove buildings, did no go beyond the right con- 
 ceded by the defendant. The evidence, therefore, if otherwise com- 
 petent, could not have aided the plaintiff.
 
 328 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 The difficulty is, that the conceded right was abandoned and lost 
 
 by its non-exercise during the tenancy under which the buildings 
 
 were erected. The remedy of the plaintiff was against the persons 
 
 wrongfully removing the buildings, and not on the defendant's 
 
 covenant. 
 
 Judgment affirmed. 
 
 Peckham, J., in LEWIS v. OCEAN NAVIGATION AND PIER 
 
 COMPANY. 
 
 125 New York, 341 (349). — 1891. 
 
 * * * If the evidence under discussion had been received and 
 submitted to the jury, the fact of a waiver of this right to claim a for- 
 feiture might have been found, and the case would then be that of a 
 tenant with a right to remove a fixture at the termination of his lease, 
 holding over after such termination, and on being evicted by sum- 
 mary proceedings on account of such holding over, claiming and being 
 refused the right to take such fixture with him. The defendant 
 claims the tenant has no such right after the termination of the 
 tenancy. He urges that the right must be exercised during the 
 running of the term, and if delayed longer than that time, even 
 though the tenant remain in possession he cannot remove the fixture. 
 I think no such absolute rule exists in this State. In Dubois v. Kelly, 
 10 Barb. 496, it was held that the right which a tenant has by agree- 
 ment with the landlord to remove such buildings as he may erect for 
 the purpose of his tenancy, remains with the tenant after his term 
 expires and while he still remains in possession of the premises. In 
 Qmbony v. Jones, 19 N. Y. 234, although the opinion in the Dubois 
 Case was somewhat criticised upon the question as to what things a 
 tenant had, in the absence of agreement, a legal right to remove 
 from the land to which they had been affixed, yet the question as to 
 the time of such removal (while the tenant still remained in pos- 
 session) was not criticised or discussed. It has not been denied, 
 that I can find, in any case here. The title of the landlord to fix- 
 tures which the tenant has left after the expiration of the term and 
 after his delivery of possession, and which the tenant would other- 
 wise have had the right to remove, is based upon the presumption of 
 abandonment by the tenant to the landlord. No such presumption 
 can attach so long as the tenant remains in possession. In Loughran 
 v. Ross, 45 N. Y. 792, it was held that where a tenant had a right to 
 remove fixtures erected by him on the demised premises, yet if he 
 accepted a new lease of the premises including such fixtures without
 
 V. 5] FIXTURES: TIME OF REMOVAL. 329 
 
 reservation or mention of any claim to them, and entered upon a 
 new term under the new lease, he lost the right of removal, even 
 though his possession had been continuous. The decision in that 
 case was placed upon quite technical reasoning, supported it is true 
 by some authorities, but it is not one of those cases whose principle 
 should be extended. The taking of a new lease where nothing is 
 said as to the fixtures is equivalent, it is said, to a surrender of the 
 premises as they exist to the landlord, and a taking of the premises 
 from him in the same condition, which at the end of the lease the 
 tenant is bound to surrender. What can be said on the other side 
 of this question has been urged by Mr. Justice Cooley in Kerr v. 
 Kingsbury, 39 Mich. 150, and in Second National Bank v. Merrill Co., 
 69 Wis. 501. See also title " Fixtures," vol. 8, page 63, Am. & Eng. 
 Enc. of Law. But where there has been no acceptance of a new 
 lease, and the tenant has simply continued in possession after 
 expiration of his term, the better authority seems to be decidedly 
 in favor of his right to remove the fixtures while he remains in pos- 
 session in his character as tenant. Taylor's Landlord and Tenant 
 (8th ed.), sec. 551 ; Penton v. Robert, 2 East, 88; IVeeton v. Woodcock, 
 7 Mees. & W. 14; Dubois v. Kelley, supra. Penton v. Roberts has 
 been somewhat unfavorably critcised in England, but the particular 
 point in question has not been directly overruled that I have seen. 
 Although the plaintiff was holding over subsequent to September, 
 1885, yet he was, nevertheless, still in possession by reason of the 
 original leasing. And even in the case of Loughran v. Ross, supra, 
 Judge Allen says, the removal may be made so long as the posses- 
 sion continues, although the term may have ended, if there has been 
 no new agreement. See also Clark v. Howland, 85 N. Y. 204. 
 There is no reason why the right should be lost before he quits pos- 
 session as tenant, even though he holds over. The rule is based 
 upon a question of public policy, which suggests that the tenant 
 shall remove during his term, i. c. while in possession as a tenant, 
 whatever he has the right to remove at all, so that the landlord may 
 be himself protected and so that the tenant shall not be permitted, 
 after his surrender of possession, to enter upon the possession of the 
 landlord or his succeeding tenant and remove what he might "have 
 taken before, but which by leaving he has tacitly abandoned, and 
 which the landlord may already have let to his succeeding tenant. 
 A regard for such succeeding interests requires the adoption of a 
 rule necessitating the removal of fixtures during the time of posses- 
 sion, but not in all cases during the running of the term. * * *
 
 330 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 TALBOT v. CRUGER. 
 151 New York, 117. — 1896. 
 
 Gray, J. — The plaintiff seeks to recover damages, which she 
 claims to have sustained " through the fraud and deceit of the 
 defendants in procuring from her a surrender of her house by falsely 
 representing to her that the paper they presented to her for execu- 
 tion, and which she signed, was a lease of the land on which the 
 house stood." The defendants are the agents of a former owner 
 of the land and a purchaser of the land at a judicial sale. The 
 plaintiff, in her complaint, alleged that by agreement with Mrs. 
 Field, in August, 1888, she became a tenant from year to year of 
 certain lands in New York city, at a certain yearly rental, and that 
 at the same time she became the owner, by purchase at an execu- 
 tion sale, of certain buildings which had been placed upon the lands 
 by a former tenant. It seems that in May, 1891, and as the result 
 of certain judicial proceedings, the lands were directed to be sold 
 and were purchased by defendant Coffey. Coffey, finding the plain- 
 tiff in occupation and claiming to own the buildings, complained to 
 the defendants Cruger & Co., who had been the agents of Mrs. 
 Field, and they endeavored, at first to get a lease from Coffey to 
 plaintiff and, not succeeding in that, then obtained the signature of 
 plaintiff to a writing surrendering her house for the compensation 
 of $25. She says she was unable to read the paper and did not have 
 its real purport made known to her and supposed she was signing a 
 new lease of the property. She elects to affirm the transaction, 
 however; but insists upon her right to maintain her action for dam- 
 ages, upon the ground that by the fraudulent devices of the defend- 
 ant she was cheated out of that which was her personal property. 
 
 This appeal must be determined by the question of whether the 
 plaintiff had any property in the buildings upon the land, and for that 
 we are limited to the case. They consisted in a house, shed, closet, 
 and fence, and under the general rule would partake of the incidents 
 and properties of realty. That is the general maxim of the law, and 
 if there be an agreement with the owner of the land, by which the 
 tenant's distinct ownership of the buildings is recognized and his 
 right to remove them conceded, it must, of course, be proved by 
 him. The legal presumption based upon the rule must be disproved 
 by affirmative evidence on the part of the tenant. The right of a 
 tenant to remove fixtures erected for trade is conceded to him for 
 reasons of public policy, and, being in the nature of a privilege, it 
 must be exercised before the expiration of the term, or before he
 
 V. 5-] FIXTURES: TIME OF REMOVAL. 33 1 
 
 quits possession. If the right to remove other fixtures exists by 
 virtue of some agreement, then it must be exercised in like manner. 
 By entering upon a new lease, in which the tenant's rights are not 
 reserved, the rights which may have existed under the former 
 tenancy are determined, and this is true even where there is a con- 
 tinuous holding of the premises, but not under the same lease. 
 A tenant may remain in possession after the old lease has expired; 
 but unless he reserves the right under the new lease to remove the 
 fixtures upon the land, the right will be deemed to have been aban- 
 doned and they will become the property of the landlord. Taylor's 
 Landlord and Tenant, sees. 551, 552; Loughran v. Ross, 45 N. Y. 792; 
 Watriss v. First National Bank, 124 Mass. 571. 
 
 In this case, the plaintiff claims to have become the owner of the 
 buildings by purchase, and that through an arrangement between 
 Hyland, who had erected them, and Mrs. Field, the then owner of 
 the land, it was agreed that they should be and remain Hyland's 
 personal property and subject to his right to remove them. Assum- 
 ing these facts to be true, there is the difficulty that the plaintiff did 
 not prove that she herself made any agreement with the landowner, 
 when she became the tenant of the premises. Hyland, or the 
 plaintiff, very possibly, may have been entitled to exercise the right 
 of removal before the expiration of Hyland's tenancy; but it would 
 not necessarily follow, when the plaintiff went into possession under 
 a lease from the landowner, that that right continued in force. It 
 was incumbent upon her to establish that she had made some arrange- 
 ment with Mrs. Field, which conceded to her such interests and 
 rights of ownership in the buildings as would authorize her to claim 
 them as her distinct property and to remove them from the land 
 while her tenancy lasted. There is no evidence as to the terms of 
 the plaintiff's tenancy under Mrs. Field and even if Cruger & Co., 
 who acted as Mrs. Field's agents, regarded, or treated the plaintiff 
 as the owner of the buildings, that does not prevent them from 
 objecting thereafter that she was not, and that she was bound to 
 prove the fact in such an action as this. The case comes down to 
 this, that, although the plaintiff at some prior time had become 
 the owner of the buildings, she did not show that by the terms of the 
 lease of the land to her, or by any agreement she made with the 
 lessor, her rights were saved from the operation of the general rule, 
 which vests in the owner of the land the property in fixtures not 
 removed before the expiration of the term, or the surrender of pos- 
 session; and that, during her own yearly tenancy, she at all times 
 remained the owner of these buildings and had the right to remove 
 them as her property. In the absence of such proof, the plaintiff
 
 $12 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CM. II. 
 
 was in no position to assert this claim for damages. Unless she 
 owned the buildings, which she says the defendants, by fraudulent 
 devices induced her to surrender possession of, she could not be 
 damaged by what they did in the matter. In this view of the case, 
 the direction of a verdict for the defendants was correct. There 
 was no foundation for a recovery by the plaintiff. 
 
 The principal assignment of error in the rulings of the trial judge 
 was with respect to his exclusion of evidence to show what was the 
 arrangement between Hyland, who, when tenant, put up the build- 
 ings in question, and the then agent of Mrs. Field. Assuming that 
 the arrangement comprehended his right to remove the buildings, 
 that fact would not aid the plaintiff. The material fact for her to 
 prove, in order to establish that she had an interest in the buildings, 
 which had not been lost, was that she had made an arrangement 
 with the owner of the land which preserved to her the right of 
 removal. It was immaterial what Hyland had the right to do, as 
 long as he had not exercised it, or if it had not been extended 
 to her. No other question demands further consideration and, for 
 the reasons given, the judgment should be affirmed, with costs. 
 
 KERR v. KINGSBURY. 
 39 Michigan, 150. — 1878. 
 
 Suit to foreclose a mortgage given by defendant Kingsbury to 
 complainant's testator. Complainant claims certain buildings 
 erected prior to the mortgage as part of the realty; defendant Lyon 
 claims the same buildings as " tenant's fixtures," under certain 
 leases. 
 
 The original leases were given to expire ten years from June 1, 
 1871. Lessees were to have thirty days after the termination in 
 which to remove any buildings they might erect. In February, 1874, 
 defendant Kingsbury deeded the land to G. P. K. This deed was 
 not recorded. In March, 1874, defendant gave the mortgage in 
 question. In January, 1876, G. P. K. gave the tenants a new lease 
 for five years and five months, including also certain lands not 
 red by the original leases. The tenants became insolvent and 
 m:ide an assignment to Lyon for the benefit of their creditors. 
 sion fur Lyon. Complainants appeal. 
 
 Coolky, J. * * * In brief, the claim on the part of the com- 
 plainants thai when Kingsbury & Bennett, in January, 1876, accepted 
 from <i. !'. Kingsbury a new lease, they in contemplation of law sur- 
 rendered the existing leases, and not having asserted and exercised
 
 V. 5] FIXTURES : TIME OF REMOVAL. 333 
 
 a right to remove the erections made previously, they thereby aban- 
 doned them to their landlord, and could not assert or transfer to 
 any one else the right to remove them afterwards. This is the 
 principal question in the case. 
 
 The right of a tenant to remove the erections made by him in fur- 
 therance of the purpose for which the premises were leased is con- 
 ceded. The principle which permits it is one of public policy, and 
 has its foundation in the interest which society has that every person 
 shall be encouraged to make the most beneficial use of his property 
 the circumstances will admit of. On the other hand, the require- 
 ment that the tenant shall remove during his term whatever he pro- 
 poses to claim a right to remove at all, is based upon a corresponding 
 rule of public policy, for the protection of the landlord, and which 
 is that the tenant shall not be suffered, after he has surrendered the 
 premises, to enter upon the possession of the landlord or of a suc- 
 ceeding tenant, to remove fixtures which he might and ought to 
 have taken away before. A regard for the succeeding interests is 
 the only substantial reason for the rule which requires the tenant to 
 remove his fixtures during the term; indeed, the law does not in 
 strictness require of him that he shall remove them during the term, 
 but only before he surrenders possession, and during the time that 
 he has a right to regard himself as occupying in the character of 
 tenant. Penton v. Robart, 2 East, 88; Weetotiv. Woodcock, 7 M. & 
 W., 14. 
 
 But why t-he right should be lost when the tenant, instead of sur- 
 rendering possession, takes a renewal of his lease, is not very 
 apparent. There is certainly no reason of public policy to sustain 
 such a doctrine; on the contrary, the reasons which saved to the 
 tenant his right to the fixtures in the first place are equally influential 
 to save to him on a renewal what was unquestionably his before. 
 What could possibly be more absurd than a rule of law which should 
 in effect say to the tenant who is about to obtain a renewal: " If 
 you will be at the expense and trouble, and incur the loss, of remov- 
 ing your erections during the term, and of afterwards bringing them 
 back again, they shall be yours; otherwise, you will be deemed to 
 abandon them to your landlord." 
 
 There are some authorities which lay down this doctrine. Merriti 
 v. Judd , 14 Cal. 59, is directly in point. That case is decided in 
 reliance upon previous decisions which do not appear to us to war- 
 rant it. Fitzherbert v. Shaw, 1 H. Bl. 258, was a case in which 
 ejectment having been brought against the tenant, he entered into 
 an agreement that judgment should be signed at a certain time with 
 stay of execution for a period; and the decision that the tenant
 
 334 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 could not afterwards remove fixtures was based upon the agreement. 
 Lyde v. Russell, i B. & Ad. 394, only asserts the general rule that 
 where the tenant surrenders possession without removing his fixtures 
 he loses his right. Thresher v. East London, 2 B. & C. 608, was 
 decided upon the construction of a covenant contained in the new 
 lease, by which the tenant undertook to repair the erections and 
 buildings, and at the end of the term the premises so repaired, etc., 
 to leave and yield up, etc. Shepard v. Spaulding, 4 Met. 416, has 
 some apparent analogy to the present case, but it is only apparent. 
 There the tenant surrendeed to his landlord without removing the 
 fixtures in controversy, but undertook to assert the right under a 
 lease made several years afterwards, and which he took when he 
 was as much a stranger to the premises as if he had never occupied 
 them. It is manifest that none of these cases affords any sup- 
 port to the conclusion in Merritt v. Judd. And we have been 
 unable to discover in Landon v. Piatt, 34 Conn. 517; Davis v. 
 Moss, 38 Penn. St. 346, or Haflick x . Stober, 11 Ohio (N. S.), 482, 
 to which our attention is called in this case, anything important to 
 this discussion. 
 
 The case of Loughran v. Ross, 45 N. Y. 792, is in accord with 
 the case in California. In that case Mr. Justice Allen, speaking for 
 the majority of the court, says: " In reason and principle the 
 acceptance of a lease of the premises, including the buildings, with- 
 out any reservation of right, or mention of any claim to the buildings 
 and fixtures and occupation under the new letting, are equivalent to 
 a surrender of the possession to the landlord at the expiration of the 
 first term. The tenant is in under a new tenancy, and not under the 
 old; and the rights which existed under the former tenancy, and 
 which were not claimed or exercised, are abandoned as effectually 
 as if the tenant had actually removed from the premises, and after 
 an interval of time, shorter or longer, had taken another lease and 
 returned to the premises." This is perfectly true if the second lease 
 includes the buildings; but unless it does so in terms or by neces- 
 sary implication, it is begging the whole question to assume that the 
 lease included the buildings as a part of the realty. In our opinion 
 it ought not to be held to include them unless from the lease itself 
 a;i understanding to that effect is plainly inferable. 
 
 In Davis v. Moss, 38 Penn. St. 346, 353, it is said by Mr. Justice 
 Woodward that "if a tenant remain in possession after the expira- 
 tion of his term, and perform all the conditions of the lease, it 
 amounts to a renewal <>f the lease from year to year, and I take it he 
 would be entitled to remove fixtures during the year." This in our 
 opinion is perfei tly reasonable, and it is as applicable to other
 
 V. 5-] FIXTURES: TIME OF REMOVAL. 335 
 
 tenancies as it is to those from year to year which are implied 
 
 from mere permissive holding over. * * * 
 
 We think the decree below was correct, and it must be affirmed 
 with costs. 
 
 WHITE v. ARNDT. 
 
 1 Wharton (Pa.), 91. — 1835. 
 
 Action for rent by Abraham Arndt against William White. 
 
 Jacob Arndt devised the premises in question to his wife for life, 
 remainder in fee to this plaintiff. Mrs. Arndt remarried, and together 
 with her husband, in July, 1829, leased the premises to White for a 
 term of three years. The life tenant died in December, 1829. White 
 continued in possession of the premises until April 1, 1832. This 
 action is for the last quarter's rent. 
 
 On the trial White offered to prove that he had erected certain 
 buildings upon the premises under an agreement with the life tenant 
 that he should have liberty to remove some of them and that the 
 others should betaken by the owners of the land at a valuation, etc. 
 Under objection, this evidence was excluded. Arndt sold the prem- 
 ises at public auction in February, 1832. White offered to prove 
 that at time of the sale he desired to give notice of his claim to the 
 buildings, which Arndt would not permit. Excluded. Verdict for 
 plaintiff below. White brings the case on error to this court. 
 
 Rogers, J. — It is a general rule of the common law, that what- 
 ever is annexed to the inheritance during the tenancy, becomes so 
 much a part of it, that it cannot be removed by the tenant, although 
 the improvements may have been made at his own expense. As in 
 Warner v. Fleehvood, 4 Rep. 63, glass put in by the tenant, or wain- 
 scot fastened by nails, was held part of the inheritance. To this 
 rule there are certain exceptions, nearly as old as the rule itself, as 
 between landlord and tenant, that whatever buildings or other 
 fixtures are erected for the purpose of carrying on trade or manu- 
 factures, may be removed by the tenant during the term. The 
 cases upon this subject are collected by Lord Ellenborough, in 
 Elwes v. Mawe, 3 East, 38, and by Mr. Justice Story, in Van Ness v. 
 Packard, 2 Peters' Rep. 145. As to substantial improvements, they 
 are usually made a consideration for extending the term of the 
 lease; or some collateral agreement is made, so as to allow of 
 some compensation to the tenant. The latter was the course 
 adopted by the parties to this contract. The tenant, White, erected 
 on the premises several improvements, among which was a stable,
 
 336 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 and two shops, which it is said greatly enhanced the value. It was 
 agreed at or about the time of the erection of these improvements, 
 between White and Mr. and Mrs. Lloyd, who had an estate for life, 
 that White was to have the liberty of selling or removing the stable, 
 and that the barber's shop, and other small buildings erected by him 
 were to be taken at a valuation; and that if a valuation should not 
 be agreed on, White was to have the privilege of removing the 
 materials of the shops. As between the parties to this contract, 
 this agreement was a good consideration; and any violation of it on 
 the part of Lloyd would have subjected him to an action. And I 
 am inclined to believe, on the authority of Van Ness v. Packard, 
 that if the estate of Lloyd had continued until the end of the term, 
 White would have had a right to remove the buildings from the 
 premises, without the consent of the owner of the remainder not- 
 withstanding the general principle, that whatever is annexed to the 
 freehold, becomes part of it, and cannot afterwards be removed, 
 except by him who is entitled to the inheritance. The exception in 
 favor of trade, which is founded on public policy, and intended to 
 encourage manufactures and the improvements of the country, may 
 well apply to this case; for the question does not depend upon the 
 size or form of the house, or the manner in which it is built; but the 
 only inquiry always is, whether it was intended for purposes of trade 
 or not; and I cannot believe that the nature of the business, whether 
 agricultural or mercantile, can make any difference. But while 
 these principles are conceded, I am unwilling to extend them 
 beyond the duration of the estate which the tenant for life has in the 
 premises, so as to subject the owner of the fee to payment for 
 the buildings, or to compel him to allow them to be removed. In 
 the case at bar, Lloyd's interest was in right of his wife, who had a 
 life estate. On her death, the interest in possession vested in 
 Arndt, the owner of the remainder in fee. 
 
 The death of Mrs. Lloyd put an end to White's lease. Now, there 
 is no principle better established by authority, than that, even, as 
 between landlord and tenant, fixtures must be removed during the 
 term. After the term they become inseparable from the freehold, 
 and can neither be removed by the tenant, nor recovered by him as 
 personal chattels, by an action of trover, or for goods sold and deliv- 
 ered, i Atk. 477; Ex parte Quincy, 3 Atk. 13; Lamb v. Lamb, and the 
 note, 2 Peters' R. ; Lord Dudley v. Lord Ward, Ambl. 113; Co. Lit. 
 53a; Brooke, Waste, 104, 142; Coopers Case, Moore, 177; Day v. 
 DisHtch^ Cro. E. 374; Lord Derby v. Asquith, Hob. 235; 4 Term 
 Rep. 7455 7 Term Rep. 157. 
 
 It lias hrcii contended by the counsel for the plaintiff in error,
 
 V. 5-] FIXTURES: TIME OF REMOVAL. 337 
 
 that the tenant for life can bind the remainderman by contract, so 
 as to compel him either to pay for improvements which enhance the 
 value of the property, or to permit them to be removed when it can 
 be done without injury to the inheritance. For this position, they 
 rely on Whiting v. Brastoto, 4 Pickering, 310, in which it is ruled, 
 that a tenant for life, years, or at will, may at the determination of 
 his estate remove such erections, etc., as were placed on the prem- 
 ises by himself, the removal of which will not injure the freehold, 
 or put the premises in a worse plight than when he entered. In 
 Whiting v. Brastoiv, the tenant removed a padlock used for securing 
 a bin-house, and movable boards fitted and used for putting up 
 corn in bins. That was a case between landlord and tenant, and 
 not between tenant for life and the remainderman; the rule being 
 that, as between the latter, in questions respecting the right to what 
 are ordinarily called fixtures, as between tenant for life or in tail 
 and the remainderman or reversioner, the law is considered more 
 favorable than between landlord and tenant. It is construed most 
 strictly between the executor and heir, in favor of the latter; more 
 liberally between tenant for life, or in tail, and the remainderman, 
 or reversioner, in favor of the former; and with much greater 
 latitude between landlord and tenant, in favor of the tenant. A dis- 
 tinction arises, also, between the cases, from the nature of improve- 
 ments. In Whiting v. Brastozv, the court treated the improvements 
 as personal chattels; but this cannot be said of these erections, 
 which are of a permanent, substantial kind, and which surely would 
 not have gone to the executors of Mrs. Lloyd, if the buildings had 
 been erected by her. It would have been waste in the tenant to 
 have removed them; for it is in general true, that when a lessee 
 having annexed anything to the freehold, during his term, after- 
 wards takes it away, it is waste. Co. Lit. 53; Moore, 177; 4 Co. 
 64; Hob. 234. 
 
 Doty v. Gorham, 5 Pickering, 487, merely decides that a shop 
 placed on the lands of the plaintiff, with his permission, was a chat- 
 tel, and as such may be sold, on an execution against the owner, and 
 that the purchaser has a right to enter on the land and remove the 
 shop. This principle it is not necessary to controvert, as the appli- 
 cation of it is not perceived. 
 
 It must be remarked, that the agreement does not purport to bind 
 Arndt, the owner of the remainder in fee, and seems to have been 
 made under the belief and with the wish, that the life interest would 
 last as long as the lease, which was but for three years. But if the 
 intention were to bind him, the objection arises, that it is not com- 
 petent for them to make an agreement, to affect the inheritance. 
 
 LAW OF PROP. IN LAND — 22
 
 338 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 On the falling in of the particular estate, the remainderman or 
 reversioner is entitled to all the improvements, which the law 
 denominates fixtures, without regard to the manner they are con- 
 structed, the persons who may have erected them, or whether they 
 may contribute to enhance the value of the property or not. If the 
 tenant for life, or the person with whom he contracts, wishes to 
 avoid the consequences, the improvements must be removed during 
 the continuance of the first estate; or the assent of the remainder- 
 man, or reversioner, must be obtained. There is nothing which 
 shows any assent to the agreement by Arndt. The deposition of 
 Lloyd proves nothing further than that the rent was made known to 
 Arndt, and that he made no objection against White being the ten- 
 ant for the remainder of the lease. But not a word was said, so far 
 as appears, about this agreement. It is in general true, that where 
 there is a lease for years, and by consent of both parties the tenant 
 continues in possession afterwards, the law implies a tacit renova- 
 tion of the contract. But that principle cannot fairly be made to 
 apply to this case; for here, although the lease terminated at the 
 death of Mrs. Lloyd, and the tenant continued in possession with 
 the consent of Arndt, yet that would bind the parties to nothing 
 more than what came within the terms of the lease. It would not 
 include the case of a collateral agreement, independent of the lease 
 itself. The agreement on which this case turns, was a collateral 
 agreement, of which it does not appear that Arndt was in any man- 
 ner apprized, or to which there is not the slightest evidence he 
 assented, either directly, or by necessary implication. 
 
 Judgment affirmed. 
 
 VI. Manure as incident to land. 
 
 i. Agricultural Lands. 
 
 a. As between vendor and vendee and heir and executor. 
 
 (i.) The General Rule. 
 
 GOODRICH v. JONES. 
 
 2 Hill(N. Y.), 142. — 1841. 
 
 \Reported herein at p. 255.]
 
 VI. i.j MANURE AS INCIDENT TO LAND. 339 
 
 FAY v. MUZZEY. 
 
 13 Gray (Mass.), 53. — 1859. 
 
 Action of contract on the probate bond of Elizabeth Muzzey, as 
 administratrix of Benjamin Muzzey, deceased, brought by the 
 administratrix de bonis non of said Benjamin. The administratrix 
 was to be charged with two items for the value of certain manure 
 unless this ceurt should think, as matter of law, that she should not 
 be chargeable therewith. The further facts appear in the opinion. 
 
 Hoar, J. — 1. The court are of opinion that manure from the barn- 
 yard of the homestead of the intestate, standing in a pile upon his 
 land, although " not broken up nor rotten, and not in a fit condition 
 for incorporation with the soil," is not therefore assets in the hands 
 of his administratrix, and that she is not chargeable therewith as a 
 part of his personal estate. Manure, made in the course of hus- 
 bandry upon a farm, is so attached to and connected with the 
 realty, that, in the absence of any express stipulation to the con- 
 trary, it passes as appurtenant to it. This has been so decided as 
 between landlord and tenant, in the cases of Daniels v. Pond, 21 
 Pick. 367; Lassell v. Reed, 6 Greenl. 222, and Middlebrook v. Corwin, 
 15 Wend. 169. The reason of the rule is, that it is for the benefit 
 of agriculture; that manure, which is usually produced from the 
 droppings of cattle or swine fed upon the products of the farm, and 
 composted with earth or vegetable matter taken from the soil, and 
 the frequent application of which to the ground is so essential to its 
 successful cultivation, should be retained for use upon the land. 
 Such is unquestionably the general usage and understanding, and a 
 different rule would give rise to many difficult and embarrassing 
 questions. 
 
 The same doctrine was applied, as between vendor and vendee, in 
 Kittredge v. Woods, 3 N. H. 503, and in Goodrich v. Jones, 2 Hill 
 (N. Y.) 142. The doctrine as to fixtures and incidents to the realty 
 is always most strictly held, as between heir and executor, in favor 
 of the heir, and against the right to disannex from the inheritance 
 whatever has been affixed thereto. Elwes v. Matve, 3 East, 51. 
 
 The circumstance that a thing is not permanently affixed to the 
 freehold, but is capable of detachment, and is even temporarily 
 detached from it, is not conclusive against the right of the owner of 
 the land. Thus keys of doors go to the heir, and not to the execu- 
 tor. Wentworth on Executors, 62; and in Goodrich v. Jones, ubi 
 supra, it was held, that fencing materials, which have been used as 
 a part of the fence, accidentally or temporarily detached from it,
 
 3 10 CONSTITUENTS AN. INCIDENTS OF LAND. [PT. II. CH. II. 
 
 an) intent of the owner to divest them permanently from 
 I ...: use, do n I cease to be a part of the freehold. In 
 
 \ i ELernan, 123, the same pi to the case of 
 
 and laid in heaps for ; 
 the w ml t was h< 1, that 1 . w ouid pass by .1 
 
 conveya 
 
 rht manure fi l sta . which is agreed to have 
 
 ... i state, and w as in -. entory, must 
 
 it is no si I account 
 
 I say that s as expen< real estate which has - 
 
 ts There is 00 wa\ in whieh it 
 
 can - icreased th< amount received from 
 
 sal( of the real estate ; and if this wen esta shed, an adminis- 
 
 trat 1 .-.as no right thus to expend th( pers ... property of her 
 
 state. * * * 
 
 1 udgment accordingly 
 
 (a.) rm Nvw i:'Ksv\ Doctrine 
 
 RUCKMAN ;. 01' rWA 1'KR. 
 
 b8 N 3 s Law, 581. — i860 
 
 H unes, J. — ro an action of assumpsit, the plaintiff in error 
 [Ruckman], who was the defendant below, pleaded payment with a 
 notice oi set-off, in which he charged the plaintiff below with a 
 
 quantity of manure sold and delivered. To sustain this charge, he 
 in evidence a deed of conveyance, from the plaintiff to him, of 
 a farm, in the county of Bergen, containing no exception or reser- 
 vation of manure or of fixtures. And he further proved that the 
 I . by his e insent, remained in th< possession of the \'vcw. - ■- 
 theexecution of the deed, and that, while he continued in such 
 ss ss >n, the plaintiff took and carted away the manure, which 
 was lying in and spread over the barn-yard, and not in heaps, at the 
 time of the sale and conveyance of the farm. 
 
 The court was requested to charge th< jury that the manure - 
 
 the barn-yard, and not in heaps at the time of the sale and 
 
 of the farm, if n< es vendor, passed by 
 
 leed with and as a part of the farm. The court refused so t ) 
 
 charge, but instructed the jury, in effect, that the title to the 
 
 manure did not pass by the (\ecd. and that the defendant, as pur- 
 
 chaser "f the farm, could not claim as ^i right the manure that had 
 
 .ted in the barn-yard. On this the error - ass gned, and 
 
 ; gment s ught to I - s< d
 
 VI. i.] MANURE AS INCIDENT TO LAND. 341 
 
 The question thus presented is, whether, by the deed of convey- 
 ance of a tract of land without any clause of reservation, the title 
 to the manure lying in and around the barn-yard, where it had 
 accumulated, passed to the grantee. 
 
 By an ordinary deed of conveyance of land nothing passes to the 
 grantee but the real estate and its appurtenances, and whatsoever 
 is so attached or affixed to it, that it cannot be removed without 
 injury to the freehold. Hence the question arises, whether manure 
 so lying in a barn-yard is a part of the real estate, or an appurtenant 
 to it, or so attached to the freehold that it passes with it by virtue 
 of the deed of conveyance. 
 
 The question is not to be determined by the rules of law regulat- 
 ing fixtures, for the property in question is in no respect a fixture, 
 an article of a personal nature affixed to the freehold, and which 
 cannot be removed without injury to it, nor is it claimed as such. 
 It is claimed as a part of the freehold itself, an appurtenant to it, 
 and which, for the sake of agriculture and good husbandry, should 
 not be removed. 
 
 But, as between the grantor and grantee, I can discover no reason, 
 nor can I find any satisfactory authority for such claim. Manure in 
 the yard is as much personal property as the animals and the litter 
 from which it is produced, as much so as the grain in the barn or the 
 stacks of hay in the meadow. And it is not material whether it lies 
 up in heaps or scattered around the yard; whether as thrown from 
 the doors or windows of the stable; or where it accumulated from 
 the droppings of the cattle. But when it is spread upon the land, 
 and appropriated to it for fertilizing purposes, then, and not until 
 then, does it become a part of the freehold. Posts and rails, 
 designed for the farm, are personal property so long as they 
 remain in piles or otherwise unappropriated; but as soon as they 
 are converted into fence they become a part of the freehold affixed 
 to it, so as to lose the character of personalty. As well may the 
 timber, stones, and other materials brought together for the con- 
 struction of a building be regarded as a part of the farm before the 
 building is erected, as the manure before it is applied. Between the 
 vendor and the vendee the rule, as to what is personal and what real 
 estate, is the same as between the heir at law and the executor. 
 As between the latter, it obtains with the most rigor in favor of the 
 inheritance and against the right to consider as personal property 
 anything which has been affixed or is appurtenant to the freehold. 
 Yet, as between them, manure has ever been regarded as personal 
 property and sold by the executor without a question of the right 
 to do so. In 1 Williams on Executors, 511, we find it declared
 
 342 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 " that dung in a heap is a chattel, and goes to the executor; but if 
 it lies scattered on the ground, so that it cannot well be gathered 
 up without gathering a part of the soil with it, then it is parcel of 
 the freehold." Toller, in his Law of Executors, page 150, says: 
 " Manure in a heap, before it is spread on the land, is a personal 
 chattel." In Carver v. Pierce, Styles, 66, cited in 11 Vin. Abb. 
 175, Executor 2, Roll, J., as early as Mich. Term of 23 Charles, 
 held that dung in a heap is a chattel, but if spread upon the land it 
 is not. 
 
 Such is the rule of the common law, and also of the ecclesiastical 
 law, and as we have no statute on the subject, it is also the law of 
 New Jersey, and I can find no satisfactory reason in any commen- 
 tary or in the adjudication of other states for changing the rule. 
 
 In 2 Kent's Com. 346, it is laid down that manure lying upon the 
 land, and fixtures erected by the vendor for the purpose of trade 
 and manufactures, such as potash kettles, pass to the vendee of the 
 land. But the author is there treating of fixtures, and refers for 
 authority to cases which, so far as they relate to manure, cannot be 
 sustained on the principles of the common law, as between vendor 
 and vendee, or landlord and tenant, in the absence of some cove- 
 nant or local custom to control them. Miller v. Plumb, 6 Cowen, 
 665, relates strictly to the question of fixtures, the right to potash 
 kettles, troughs, and leaches. In Kirwan v. Latour, 1 Har. & 
 Johns. 289, the right to a still-house apparatus and utensils for 
 carrying on a distillery was a question. Powell v. Monson, 3 
 Mason, 459, relates to the mill-wheel and gearing of a factory, and 
 Farrar v. Stackpole, 6 Greenl. R. 154, to the fixtures of a saw-mill. 
 Unless the discriminating commentator can be supposed to have 
 adopted the fallacy of the reasoning in Kittredge v. Woods, 3 New 
 Hamp. R. 503, it is fair to presume that, in speaking of manure 
 lying upon the ground, he had reference to such as had been spread 
 upon the land, and appropriated to it. 
 
 In Kittredge v. Woods, 3 New Hamp. R. 503, decided in 1829, Ch. 
 Just. Richardson, in a very elaborate opinion, held that all manure, 
 whether it be in heaps about barns or made in other places on the 
 land, goes with the land to the vendee. As this is a leading case, 
 which has been followed and relied upon by the courts in nearly all 
 the cases in New England and New York, it may be proper to 
 examine the principles on which it is based. 
 
 After discussing the law of fixtures between parties in their vari- 
 ous relations, the Chief Justice refers to authorities to show that 
 things which, although not affixed to the freehold, go to the heir as 
 appurtenances to the inheritance, namely, doves able to fly, which
 
 VI. i.] MANURE AS INCIDENT TO LAND. 343 
 
 with the dove-cote go to the heir, while young doves in the dove- 
 house not able to fly belong to the executor. He refers, also, to 
 the keys of the doors and to chests containing the title deeds, which 
 go to the heir, and then adds: " We are inclined to think that the 
 principle of these decisions will give to the heir the manure which may 
 be carried out and left upon the field in heap for dressing, or which 
 may be left lying in heaps about the barns upon the land." 
 
 But I am at a loss to perceive how the rules for the disposition of 
 such articles can change or modify the equally well-settled rules as 
 to manure. Doves are animals / 'era natura, except when in the care 
 or custody of an owner, as when confined in a dove-cote or pigeon- 
 house, or when in the nest not able to fly. Bouvier's L. Diet. 448, 
 title Dove. When not in such care they are not, in contemplation 
 of law, the property of any individual, and are not the subject of 
 larceny. 2 East PI. Crown, 607, § 41. But young doves, not able 
 to fly or leave the cote, may be the subject of ownership, and as per- 
 sonal property, go to the executors, while those able to fly are not 
 strictly property, personal or real, and go where they please, and 
 alight where they list. If there be any ownership in such birds, it 
 is in the nature of heirlooms, and as such, like hares in a warren, or 
 fish in a pond, go to the heir with the inheritance. 
 
 So title deeds are not personal property, and the stealing of them 
 is no larceny, but only a trespass, because they concern the land, 
 or, in technical language, savor of realty, and are considered a part 
 of it by the law; and so they descend to the heir, together with the 
 land which they concern. 4 Bl. Com. 234. They are necessary to 
 secure the enjoyment of the land, and are annexed to, and are called 
 heirlooms, and descend with the inheritance to the heir. 2 Bl. 
 Com. 28; 14 Viner's Abr. 291. And the boxes or chests in which 
 they are contained, and which are necessary to their preservation, 
 go with the deeds, as do the tapes and strings that tie them. On 
 the same principle, the keys of the doors of the house are a part of 
 the inheritance, and go with it. These articles are all regarded as 
 belonging to the freehold, although in fact severed from it. Hav- 
 ing been appropriated to the land, like boards which have fallen 
 from the fence or building, or like a mill-stone which has been lifted 
 from its bed for the purpose of being picked, they continue to be a 
 part of it. Hence, I have ventured to characterize the reasoning 
 and deductions of the case as fallacious. 
 
 Daniels v. Pond, 21 Pick. 367, decided in 1838, has also been con- 
 sidered as a leading case in relation to manure. In the opinion of 
 the court, expressed by Chief Justice Shaw, it was declared that 
 manure made on a farm occupied by a tenant at will or for years in
 
 344 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 the ordinary course of husbandry, consisting of collections from the 
 stable and barn-yard, or of compost formed by an admixture of 
 these with the soil or other substances, is by usage, practice, and 
 general understanding, so attached to and connected with the realty 
 that, in the absence of any express stipulation on the subject, the 
 outgoing tenant has no right to remove it, or to sell it to be 
 removed. This opinion is expressly based on usage, practice, and 
 general understanding, and is consequently of no value in a case 
 where there is no proof of any such usage or practice. 
 
 In Middlebrook v. Coriuin, 15 Wend. R. 170, determined in 1836, 
 Nelson, J., cites the English authorities above referred to as fixing 
 the rule on this subject, and adds, perhaps this rule is to be taken 
 with some qualifications. 
 
 The practice and usage of the neighboring country, and even in 
 relation to a particular farm, should enter into the decision of the 
 question; because the parties are presumed to enter into the engage- 
 ment with reference to it, wheie there is no express stipulation. 
 And he concludes a tenant has no right to remove the manure. 
 While this case recognizes the rule of the common law, it seeks to 
 modify it by the consideration of local usage; but it can have no 
 weight against that rule in this case, where there is no evidence of 
 any such usage. 
 
 The cases thus referred to and considered are leading cases, and 
 have had their influence on those which followed them, and it is 
 sufficient for the present purpose to say, that although they are 
 entitled to great respect and to much weight where they are appli- 
 cable, yet that the reasoning and the principle of none of them are 
 such as to induce us to make innovation upon the rule of the eccle- 
 siastical and common law long recognized and maintained by us. 
 
 The conclusion is that manure lying in and around the yard, not 
 spread upon the land, is personal property, and does not by virtue 
 of the deed of conveyance pass with the freehold; that there is no 
 error in the charge of the court below, and that the judgment must 
 be affirmed with costs 
 
 b. As between landlord and tenant. 
 
 MIDDLEBR00K v. CORWIN. 
 
 rs Wend. (N. Y.), 169.-1836. 
 
 By the Court, Nelson; J. — It is laid down in several books, that 
 t&anure in heaps, before it is spread upon the land, is a personal 
 chattel. 11 Viner, 175, tit. Executors; Toll. L.ofEx. 150; Matthew's
 
 VI. i.] MANURE AS INCIDENT TO LAND. 345 
 
 Ex. 27. It further appears that it is common to insert a covenant 
 in the lease of a farm, to leave the manure of the last year upon it. 
 All this would seem to imply that the article belongs to the tenant, 
 and that without a covenant he might remove it. If a farm is 
 leased for agricultural purposes, good husbandry, which without any 
 stipulation therefor is implied by law, would, unduubtedly, require 
 it to be left; if rented for other purposes, this conclusion might not 
 follow. In Watson v. Welch, tried in 1785, in summing up to the 
 jury, the judge said that it was matter of law to determine what was 
 using the land in a husbandlike manner, and expressed the opinion 
 that under a covenant so to work a farm, the tenant ought to use 
 on the land all the manure made there, except that when his time 
 was out, he might carry away such corn and straw as he had not 
 used there, and was not obliged to bring back the manure arising 
 therefrom. Woodf. Landl. & T. 255; 1 Esp. N. P. pt. 2, p. 131. 
 Perhaps this rule should be taken with some qualifications. The 
 practice and usage of the neighboring country, and even in relation 
 to a particular farm, should enter into the decision of the question. 
 4 East, 154; Dough. 201; Holt, N. P. R. 197; 2 Barn. & Aid. 15; 
 Aid. 746. This is reasonable, because the parties are presumed to 
 enter into the engagement with reference to it, where there is 
 no express stipulation. What may be good husbandry in respect 
 to one particular soil, climate, etc., may not be so in respect to 
 another. Independently, however, of the usage and custom of the 
 place, the rule of Mr. J. Buller, I apprehend, may be the correct 
 one. In the recent case of Brown v. Crump, r Marsh. 567, Ch. J. 
 Gibbs said, that he had often heard him (Mr. J. Buller) lay down 
 the doctrine, " that every tenant, where no particular agreement 
 existed dispensing with that engagement, is bound to cultivate his 
 farm in a husbandlike manner, and to consume the produce on it. 
 This is an engagement that arises out of the letting, and which the 
 tenant cannot dispense with, unless by special agreement." With- 
 out carrying the doctrine to this extent, we may, I think, safely 
 say, upon authority, that where a farm is let for agricultural pur- 
 poses, no stipulation or custom in the case, the manure does not 
 belong to the tenant, but to the farm; and the tenant has no more 
 right to dispose of it to others, or remove it himself from the prem- 
 ises, than he has to dispose of or remove a fixture. 
 
 Case is the appropriate action for the injury complained of. 
 1 Chitty' s. PI. 142. The tenant having no authority himself to 
 remove the manure, could give none to the defendant. The judgment 
 of the C. P. must be reversed, and that of the justice affirmed. 
 
 Judgment accordingly.
 
 346 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CM. II. 
 
 c. Separate sale of manure. 
 
 STRONG v. DOYLE. 
 
 no Massachusetts, 92. — 1872 • 
 
 Colt, J. — It was said in Fay v. Muzzey, 13 Gray, 53, that manure 
 made in the course of husbandry upon a farm is so attached to 
 and connected with the realty that, in the absence of any express 
 stipulation to the contrary, it passes as appurtenant to it. This rule 
 is applied in whatever situation or condition the material is before 
 it is finally expended upon the soil. It is till then an incident of the 
 real estate of such peculiar character that, while it remains only con- 
 structively annexed, it will be personal property if the parties inter- 
 ested agree so to treat it. Such an agreement, though it be unwrit- 
 ten, does not come within the statute of frauds, and is not to be 
 rejected, although contemporaneous with the conveyance of the real 
 estate. An oral contract for the sale of it is valid. In the case of 
 fixtures which are not incorporated with, but merely annexed to the 
 freehold, the rule is well settled that the statute does not apply. 
 Browne on St. of Frauds, § 234; Hallen v. Bunder, 1 C, M. & R. 
 266; Bostwick v. Leach, 3 Day, 476. 
 
 In the case at bar, evidence was offered that the defendant, while 
 negotiating for the farm and before its conveyance to him, made a 
 separate and distinct agreement for the purchase of the manure, to 
 be his only in case he was the highest bidder at public auction; that 
 the plaintiff advertised the sale as agreed, and the defendant at the 
 sale for the first time claimed that the manure belonged to him 
 under the plaintiff's deed, and that it was afterwards spread upon 
 the land by him. The deed was in the usual form, conveying the 
 land only, and reserving only to the plaintiff the right of occupying 
 until the first of April following. 
 
 In the opinion of the court, this evidence supports the plaintiff's 
 title to the property in dispute. It proves an independent prelimi- 
 nary agreement, by which it was severed from its relations to the 
 realty before the deed was made. It serves to ascertain the subject- 
 matter upon which the deed was intended to operate. 1 Greenl. 
 Ev., § 286; Ropps v. Barker, 4 Pick. 239. Such an agreement, 
 mule upon good consideration, with the owner of land before it is 
 conveyed, is, as a mode of severance, as effectual as a sale by the 
 r to a stranger, or an agreement between landlord and tenant 
 by which the manure becomes personal property. Noble v. Sylvester, 
 42 Vt. [46; Ford v. Cobb, 20 N. Y. 344. 
 
 This case differs from Noble v. Bosicortli, 19 Pick. 314, cited by
 
 VI. 2.] MANURE AS INCIDENT TO LAND. 347 
 
 the defendant. There the owner of land erected a dye-house upon 
 it, in which dye-kettles, firmly secured in brick, were set up. And 
 it was held that a verbal reservation of the kettles, before or at the 
 time of the delivery of the deed of the land, was inadmissible to 
 control the ordinary effect and operation of the deed. The prop- 
 erty in dispute had been actually annexed to the building, and 
 intentionally incorporated .with the real estate by the owner for the 
 purpose of permanent improvement. While in that condition before 
 severance it was subject to the rules which govern the title and 
 transfer of real estate, and passed by the deed. Here no act of 
 severance was necessary to detach the manure from the land, and 
 the agreement of the parties was sufficient. 
 
 Exceptions sustained. 
 
 2. Lands Not Agricultural or Not to be Used for Agri- 
 cultural Purposes. 
 
 FAY v. MUZZEY. 
 
 13 Gray (Mass.), 53. — 1859. 
 
 [Reported herein at p. 339.] 
 
 NEEDHAM v. ALLISON. 
 24 New Hampshire, 355. — 1852. 
 
 Bell, J., delivered the opinion of the court. — It is settled here 
 that manure, as between the buyer and seller, passes with the land, 
 whether it is drawn out upon the land for the purpose of use there, 
 or is lying in heaps, or otherwise, about the barns or yards. Kitt- 
 redge v. Woods, 3 N. H. Rep. 503. The same is regarded as the law 
 elsewhere in this country. Stone v. Proctor, 2 D. Chip. 115; Wether- 
 bee v. Ellison, 19 Vt. (4 Wash.) 379; Lassellv. Reed, 6 Greenl. 222; 
 Middleborough v. Corwin, 15 Wend. 169; Goodrich v. Jones, 2 Hill, 142; 
 Daniels x. Pond, 21 Pick. 371. 
 
 That principle, however, does not reach this case, since there is 
 here no question except in relation to the manure made upon the 
 premises subsequently to the sale, and while the defendant may be 
 regarded as a tenant of the purchaser. 
 
 In England, in the case of manure made by a tenant of merely 
 agricultural property, in the ordinary course of husbandry, Chan- 
 cellor Kent seems to be of the opinion that the custom is for the
 
 343 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II 
 
 outgoing tenant to sell or take away the manure. 2 Com. 347, 
 n., a. He cites Roberts v. Barker, 1 C. & M. 809, and the cases of 
 Higgon v. Mortimer, 6 C. & P. 616; Hut ion v. Warren, 1 M. & W. 
 466; 2 Gale, 71; Beatty v. Gibbons, 16 East, 116, support that view, 
 while the cases. of Broiun v. Crump, 1 Marsh. 567; Putney v. Sheldon, 
 5 Ves. 147, 260, n., and Onslow v. , 16 Ves. 173, seem to coun- 
 tenance a different rule, where there is no special contractor custom 
 of the country. 
 
 In this country, in some of the States, it has been held that the 
 manure made by the tenant during his term, is his property, which 
 he has the right to remove or sell, and which may be attached and 
 holden as his property for the payment of his debts. Staples v. 
 Emery, 7 Greenl. 201 ; Southtvick v. Ellison, 2 Iredell, 326. 
 
 In others, it is held that in the absence of special agreement, or a 
 special custom, the rules of good husbandry require that the manure 
 made upon a farm, in the ordinary course, should be expended upon 
 it; that such manure is an incident of the freehold, and belongs to 
 the landlord, subject to the right of the tenant to use it in the culti- 
 vation of the land; and that the tenant has no right to remove or 
 dispose of it, or to apply it to any other use, either during or after 
 the expiration of his tenancy. Wetherbee v. Ellison, 19 Vt. 
 (4 Wash.) 397; Middlebrook v. Coriuin, 15 Wend. 169; Goodrich v. 
 Jones, 2 Hill, 142; Lassell v. Reed, 6 Greenl. 222; Daniel v. Pond, 
 21 Pick. 371; to which add Kent's Opinion, 2 Com. 347, n., a. 
 
 But it is urged upon us, that whatever may be the rule as to agri- 
 cultural property, it is here immaterial because the tenancy was not 
 for agricultural purposes, in the ordinary course of husbandry. By 
 his deed, the defendant reserved the possession of the property from 
 its date in September, till the first of April following. He owned 
 the hay and stock from which this manure was made. He was 
 under no obligation to keep either upon the place, except for his 
 own convenience, and he was bound by no duties to the purchaser 
 resulting from contract, either express or implied, except that of 
 giving up the possession on the first of April. 
 
 It was substantially, so far as this question is concerned, a reser- 
 vation of the buildings merely, since the season of farming opera- 
 tions was chiefly passed, and the rights of the parties were rather 
 like those "f the lessor and lessee of livery stables, or the like, than 
 those of farming tenants. There would seem to be no doubt that 
 as to this kind of buildings there would be no pretense that the 
 or would have.: any claim to the manure, except such as might 
 result from express contract. Daniels v . Pond, 21 Pick. 367; Lassell 
 v. Reed y 6 Greenl. 222.
 
 VI. 2.] MANURE AS INCIDENT TO LAND. 349 
 
 This view strikes us as just and reasonable, and most consistent 
 with the reasonable understanding and expectations of the parties. 
 No one can doubt that this must have been the idea of the defend- 
 ant, or he would have made his reservation clear in this respect. 
 And it is not easy to imagine that the plaintiff should leave it a 
 subject for a doubt, if he supposed he was to have this manure, and 
 it was so understood. Upon this ground we are of opinion there 
 must be 
 
 Judgment for the defendant. 
 
 HASLEM v. LOCKWOOD. 
 
 37 Connecticut, 500. — 1871. 
 
 Park, J. — We think the manure scattered upon the ground, 
 under the circumstances of this case, was personal property. The 
 cases referred to by the defendant to show that it was real estate 
 are not in point. The principle of those cases is, that manure made 
 in the usual course of husbandry upon a farm is so attached to and 
 connected with the realty that, in the absence of any express stipu- 
 lation to the contrary, it becomes appurtenant to it. The principle 
 was established for .the benefit of agriculture. It found its origin 
 in the fact that it is essential to the successful cultivation of a farm 
 that the manure, produced from the droppings of cattle and swine 
 fed upon the products of the farm, and composted with earth and 
 vegetable matter taken from the land, should be used to supply the 
 drain made upon the soil in the production of crops, which otherwise 
 would become impoverished and barren; and in the fact that 
 manure so produced is generally regarded by farmers in this country 
 as a part of the realty and has been so treated by landlords and ten- 
 ants from time immemorial. Daniels x. Pond, 21 Pick. 367; Lewis 
 v. Lyman, 22 Pick. 437; Kittredge v. Woods, 3 N. Hamp. 503; 
 Lassell v. Reed, 6 Greenl. 222; Parsons v. Camp, 11 Conn. 525; Fay 
 v. Muzzy, 13 Gray, 53; Goodrich v. Jones, 2 Hill, 142; 1 Washb. on 
 Real Prop. 5, 6. 
 
 But this principle does not apply to the droppings of animals 
 driven by travelers upon the highway. The highway is not used, 
 and cannot be used, for the purpose of agriculture. The manure is 
 of no benefit whatsoever to it, but. on the contrary, is a detriment; 
 and in cities and large villages it becomes a nuisance, and is 
 removed by public officers at public expense. The finding in this 
 case is, " that the removal of the manure and scrapings was calcu- 
 lated to improve the appearance and health of the borough." It is,
 
 350 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 therefore, evident that the cases relied upon by the defendant have 
 no application to the case. 
 
 But it is said that if the manure was personal property, it was in 
 the possession of the owner of the fee, and the scraping it into 
 heaps by the plaintiff did not change the possession, but it continued 
 as before, and that therefore the plaintiff cannot recover, for he 
 neither had the possession nor the right to the immediate possession. 
 
 The manure originally belonged to the travelers whose animals 
 dropped it, but it being worthless to them was immediately aban- 
 doned, and whether it then became the property of the borough of 
 Stamford which owned the fee of the land on which the manure lay, 
 it is unnecessary to determine; for, if it did, the case finds that the 
 removal of the filth would be an improvement to the borough, and 
 no objection was made by any one to the use that the plaintiff 
 attempted to make of it. Considering the character of such accu- 
 mulations upon highways in cities and villages, and the light in 
 which they are everywhere regarded in closely settled communities, 
 we cannot believe that the borough in this instance would have had 
 any objection to the act of the plaintiff in removing a nuisance that 
 affected the public health and the appearance of the streets. At all 
 events, we think the facts of the case show a sufficient right in the 
 plaintiff to the immediate possession of the property as against a 
 mere wrongdoer. 
 
 The defendant appears before the court in no enviable light. He 
 does not pretend that he had aright to the manure, even when scat- 
 tered upon the highway, superior to that of the plaintiff; but after 
 the plaintiff had changed its original condition and greatly enhanced 
 its value by his labor, he seized and appropriated to his own use the 
 fruits of the plaintiff's Outlay, and now seeks immunity from respon- 
 sibility on the ground that the plaintiff was a wrongdoer as well as 
 himself. The conduct of the defendant is in keeping with his 
 claim, and neither commends itself to the favorable consideration of 
 the court. The plaintiff had the peaceable and quiet possession of 
 the property; and we deem this sufficient until the borough of Stam- 
 ford shall make complaint. 
 
 It is further claimed that if the plaintiff had a right to the prop- 
 erty by virtue of occupancy, he lost the right when he ceased to 
 retain the actual possession of the manure after scraping it into 
 heaps. 
 
 We do not question the general doctrine, that where the right by 
 OCCUpanc y exists, it exists no longer than the party retains the 
 actual possession of the property, or till he appropriates it to his 
 own use by removing it to some other place. If he leaves the prop-
 
 VII.] SEA WEED, WRECK, ETC. 351 
 
 erty at the place where it was discovered, and does nothing what- 
 soever to enhance its value or change its nature, his right by occu- 
 pancy is unquestionably gone. But the question is, if a party finds 
 property comparatively worthless, as the plaintiff found the prop- 
 erty in question, owing to its scattered condition upon the highway, 
 and greatly increases its value by his labor and expense, does he 
 lose his right if he leaves it a reasonable time to procure the means 
 to take it away, when such means are necessary for its removal. 
 
 Suppose a teamster with a load of grain, while traveling the high- 
 way, discovers a rent in one of his bags, and finds that his grain is 
 scattered upon the road for the distance of a mile. He considers 
 the labor of collecting his corn of more value than the property 
 itself, and he therefore abandons it, and pursues his way. A after- 
 wards finds the grain in this condition and gathers it kernel by ker- 
 nel into heaps by the side of the road, and leaves it a reasonable 
 time to procure the means necessary for its removal. While he is 
 gone for his bag, B discovers the grain thus conveniently collected 
 in heaps and appropriates it to his own use. Has A any remedy? 
 If he has not, the law in this instance is open to just reproach. We 
 think under such circumstances A would have a reasonable time to 
 remove the property, and during such reasonable time his right to it 
 would be protected. If this is so, then the principle applies to the 
 case under consideration. 
 
 A reasonable time for the removal of this manure had not elapsed 
 when the defendant seized and converted it to his own use. The 
 statute regulating the rights of parties in the gathering of sea-weed, 
 gives the party who heaps it upon a public beach twenty-four hours 
 in which to remove it, and that length of time for the removal of 
 the property we think would not be unreasonable in most cases like 
 the present one. 
 
 We therefore advise the Court of Common Pleas to grant a new 
 trial. 
 
 VII. Sea weed, wreck, stranded property. Mislaid goods. 
 
 MATHER v. CHAPMAN. 
 
 40 Connecticut, 382. — 1873. 
 
 Seymour, C. J. — The first count of the plaintiff's declaration is 
 in trespass for the taking and converting to his own use by the 
 defendant of large quantities of sea-weed alleged to be the proper 
 goods and estate of the plaintiffs. This sea-weed was cast upon the 
 shore adjoining the defendant's land, and was there, below high-
 
 352 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 water mark, taken by the defendant and converted to his own use. 
 The Court of Common Pleas, against the request of the plaintiffs, 
 instructed the jury, in substance, that sea-weed cast and left upon 
 the shore, (that is, between ordinary high and low-water mark), 
 prima facie belongs to the public and may lawfully be appropriated 
 by the first occupant. 
 
 To this charge the plaintiffs object, and the principal question in 
 the case arises upon this objection. 
 
 A different question arises under the second count, which will be 
 considered in its proper place. 
 
 It is conceded that by the settled law of Connecticut the title of a 
 riparian proprietor terminates at ordinary high-water mark. It is 
 also conceded that though his title in fee thus terminates, yet he 
 has certain privileges in the adjoining waters. 
 
 Among the most important of these privileges are (i) That of 
 access to the deep sea. (2) The right to extend his lands into the 
 water by means of wharves, subject to the qualification that he 
 thereby does no injury to the free navigation of the water by the 
 public. (3) The right by accretion to whatever lands by natural or 
 artificial means are reclaimed from the sea, subject, however, to 
 certain qualifications not necessary here to be mentioned. 
 
 The plaintiffs claim that among the privileges of the riparian pro- 
 prietor is also that of the exclusive right to the sea-weed which is 
 cast upon the shore and left there by the receding tide. 
 
 In respect to the weed cast by extraordinary floods upon the land 
 of the proprietor and there left above ordinary high-water mark, the 
 law of this state is settled, in conformity with what we understand 
 to be the common law of England. The owner of the soil has it 
 ratione soli. No other person can then take it without a trespass 
 upon the owner's land, and as owner of the land he is deemed to be 
 constructively the first occupant. 
 
 But below high-water mark the soil does not belong to the owner 
 of the upland. The sea-weed in dispute was not taken from the 
 plaintiff's land, and their title, if they have a title, is not ratione soli. 
 No trespass on the plaintiff's land was committed by the defendant 
 in taking the weed, for the taking of which recovery is sought in 
 this court. 
 
 Upon what ground then can the plaintiffs sustain the title which 
 they claim to the weed? While it was floating on the tide it was 
 publici juris . Why, when it is left on the shore by the receding tide, 
 should it become their property? 
 
 In Massai husetts and Maine, by virtue of the Colonial Ordinance 
 df [641, the individual title of proprietors adjoining navigable water
 
 VII.] SEA WEED, WRECK, ETC. 353 
 
 extends to low-water mark. [Citing and discussing Barker v. Bates, 
 reported at p. 355, below. ,] 
 
 The cases therefore in Massachusetts and Maine which decide 
 that sea-weed left on the shore belongs to the riparian proprietor 
 have no application here. In New Hampshire the Massachusetts 
 ordinance is adopted as law. 
 
 In New York the common-law rule is adopted, as with us, in rela- 
 tion to the boundary line between the public and the riparian pro- 
 prietor, and it is claimed that, in Emans v. Tumbull, 2 Johns. R. 
 313, the question before us is decided in conformity with the 
 plaintiffs' claim. The judgment in that case is pronounced by a 
 judge of profound learning, whose opinion upon the point now under 
 discussion, if really given, would be entitled to great weight; but 
 we are inclined to think that the sea-weed in that case was cast 
 upon the land of the plaintiff. The main argument at the bar and 
 on the bench relates to the title to the locus in quo. Chief Justice 
 Kent says: " If the marine increase be by small and imperceptible 
 degrees, it goes to the owner of the land. The sea-weed must be 
 supposed to have accumulated gradually." 
 
 In the case we are called on to decide, the sea-weed could not be 
 regarded as a marine increase of the plaintiff's land, for it had not 
 reached their land and was not attached to it nor connected with it. 
 To be a marine increase it must form part and parcel of the land 
 itself. Being between high and low-water mark, at each returning tide 
 it would be afloat, and even in Massachusetts sea-weed when afloat 
 is publici juris, although floating over soil which is private property. 
 
 The sea-weed in this suit is not treated as part of the real estate 
 which by small and imperceptible degrees had become part of the 
 plaintiff's land. It is treated as personal property, and the defendant 
 is sued for taking it as such and converting it to his Ovvn use. In 
 the case of Emans v. Tumbull the plaintiff's title was held good 
 upon a liberal construction of the jus alluvionis which implies that 
 the weed had then become part and parcel of the plaintiff's land 
 and must therefore have been above or upon ordinary high-water 
 mark. Title to personal property jure alluvionis would be a novelty 
 in the law. 2 Black. Com. 262. Title by accretion is substantially 
 the same as by alluvion. Both are modes of acquiring title to real 
 property. 
 
 Title, however, to personal property may be acquired by what in 
 law is called accession, but to acquire title by accession the acces- 
 sory thing must be united to the principal, so as to constitute part 
 and parcel of it. " Accessio " is defined by Bouvier as " a manner 
 of acquiring the property in a thing which becomes united with that 
 
 LAW OF PROP. IN LAND — 23
 
 354 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 which a person already possesses." The plaintiffs, therefore, seem 
 to us to have no title by alluvion, or by accretion, or by accession, 
 certainly none ratione soli, and they cannot be regarded as first occu- 
 pants by construction merely because of the propinquity of their 
 land to the property in dispute. 
 
 The question under discussion does not seem to be fully settled in 
 England. The soil of the seashore is there, as with us, prima facie 
 in the public, but it may become private property, and frequently 
 is so, where the adjoining lands are part of the manor. The author- 
 ity of Bracton is clearly in favor, (ist) of the common right of all 
 to the shores of the sea as part of the sea itself. (2d) In Liber 2, 
 speaking of the right of first occupancy, he says: " Item, locum 
 habet eadem species occupationis, in Us quae communia sunt, sicut in mare 
 et littore maris, in lappillis et ge minis et ceteris in littore maris invenlis." 
 Sea-weed must be included within the et ceteris of Bracton in this 
 passage, and upon his authority belongs to the first occupant. 
 
 The opinion of Lord Hale in favor of the common right to take 
 sea-weed on the shore is shown by the following passage in chapter 
 6 of Hale, de Jure Maris. After speaking of three kinds of shore 
 he says: ' This kind of shore, to wit, that which is covered by the 
 ordinary flux of the ocean, may belong to a subject, and may be 
 parcel of a manor, and the evidence to prove it parcel of a manor 
 are commonly these, constant and usual fetching of gravel and sea- 
 weed and sea-sand, between high and low-water mark, and licensing 
 others so to do." 
 
 In the case, however, of Bagott v. Orr, 2 Bos. & Pul. 472, the 
 court expressed doubts upon the right of the public to come upon 
 the shore and take shells which had been thrown up and left there 
 by the tide. 
 
 In the case of Blundcll v. Catterall there occurs a very learned and 
 interesting discussion upon the right of the public between high and 
 low-water mark, but the precise question now under our considera- 
 tion is not made the subject of comment. 
 
 The case of Church v. Meeker, 34 Conn. R. 421, is relied upon by 
 both parties. We think the opinion of Judge Butler in that case must 
 be construed as applicable solely to sea-weed found as it there was 
 above high-water mark. 
 
 In the case of Peck v. Lockwood, 5 Day, 22, the plaintiff owned a 
 portion <>f the shore below ordinary high-water mark, and it was held 
 that he could not maintain trespass against the defendant, who 
 entered the premises when the tide was out and dug for shellfish 
 and carried the fish away. That is a strong case in favor of the 
 < ommon right "f fishing.
 
 VII.] SEA WEED, WRECK, ETC. 355 
 
 But the right of taking sea-weed would seem to stand on the same 
 ground as the right of taking fish. We see no reason for making a 
 distinction between the vegetable and animal products of the ocean. 
 Neither in the state of nature is the property of any one ; the title to 
 both depends upon the first occupancy. It is agreed that while 
 afloat both are alike common; why, when the tide recedes and 
 leaves shellfish and sea-weed on the shore, should the sea-weed 
 belong to the riparian proprietor when confessedly the shellfish 
 remains common property? 
 
 We think the charge of the judge in regard to the first count was 
 correct. 
 
 BARKER v. BATES. 
 
 13 Pickering (Mass.), 255. — 1832. 
 
 Trespass for taking and carrying away a stick of timber from 
 plaintiff's land. 
 
 Shaw, C. J., delivered the opinion of the court. The sole and 
 single question in the present case is, which of these parties has the 
 preferable claim, by mere naked possession, without other title, to a 
 stick of timber, driven ashore under such circumstances as lead to 
 a belief that it was thrown overboard or washed out of some vessel 
 in distress, and never reclaimed by the owner. It does not involve 
 any question of the right of the original owner to regain his prop- 
 erty, in the timber, with or without salvage, or the right of the sov- 
 ereign to claim title to property as wreck, or of the power and juris- 
 diction of the governments, either of the commonwealth or of the 
 United States, to pass such laws and adopt such regulations on the 
 subject of wreck, as justice and public policy may require. 1 * * * 
 
 Considering it as thus established, that the place upon which this 
 timber was thrown up and had lodged, was the soil and freehold of 
 the plaintiff, that the defendants cannot justify their entry, for the 
 purpose of taking away or marking the timber, we are of opinion 
 that such entry was a trespass, and that as between the plaintiff and 
 
 1 The place where the stick of timber was found by defendant was " on the 
 sea-shore, between high and low-water mark " in front of plaintiff's beach. It 
 was contended, on the one hand, that by the common-law rule plaintiff's land 
 extended only to high-water mark. On the other it was insisted that an early 
 Massachusetts ordinance applied, in accordance with which the proprietor of 
 lands adjoining salt water owns to the low-water mark " where the sea does 
 not ebb and flow above a hundred rods." The court held the ordinance 
 applicable. — Ed.
 
 356 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CII. II. 
 
 the defendants, neither of whom had or claimed any title except by- 
 mere possession, the plaintiff had, in virtue of his title to the soil, 
 the preferable right of possession, and therefore that the plaintiff 
 has a right to recover the agreed value of the timber, in his claim 
 of damages. 
 
 SHELDON v. SHERMAN. 
 42 New York, 484. — 1870. 
 
 Hunt, J. — There is a large class of cases, in which injury is 
 suffered by a party, where the law gives no redress. If a tree 
 growing upon the land of one is blown down upon the premises of 
 another, and in its fall injures his shrubbery, or his house, or his 
 person, he has no redress against him upon whose land the tree 
 grew. If one builds a dam of such strength that it will give protec- 
 tion against all ordinary floods the occurrence of an extraordinary 
 flood by which it is carried away, and its remains are lodged upon 
 the premises of the owner below, or by means whereof the dam below 
 is carried away, or the mill building is destroyed, gives no claim 
 against the builder of the dam. If the house of A. accidentally take 
 fire, and the flames spread and consume the house of B., the latter 
 has no claim of indemnity upon A. If the horses of A., being prop- 
 erly equipped and driven, become unmanageable, without fault or 
 negligence, run away and injure the property or the person of his 
 neighbor, the latter must suffer the loss. In these cases the injury 
 arises from a fortuitous occurrence beyond the control of man. It 
 is termed " the act of God." The party through whom it occurs 
 is not responsible for it. The party suffering must submit to it, as 
 a providential dispensation. Ryan v. N. Cen. R. R. Co., 35 N. Y. 
 210; Anthony v. Harvey, 8 Bing. 191; Storey on Bail., § 83a, and 
 the learned note. Auth. post. 
 
 In all these cases, there is no liability on the part of him through 
 whose innocent instrumentality the injury occurs, and his promise 
 to respond to the damages would be without consideration and void. 
 
 In the instance before us, the logs were carried down the river 
 and deposited upon the plaintiff's land, without fault on the part of 
 the defendants or of those building or having charge of the boom. 
 The defendants were not responsible for an injury arising from their 
 being thus deposited, and a promise to make it good would be with- 
 out consideration, and not obligatory. Neither were the defend- 
 ants unconditionally liable for the injury arising from allowing the 
 logs to remain where deposited. If they chose to abandon their
 
 VII]. SEA WEED, WRECK, ETC. 357 
 
 property thus cast on shore, they had the right so to do, and no 
 one could call them to account. They were not compelled, how- 
 ever, to abandon it, but had the right to reclaim it; like one whose 
 fruit falls or is blown upon his neighbor's ground, the ownership is 
 not thereby lost, but the owner may lawfully enter upon the prem- 
 ises to recapture his property. When he does so reclaim or recap- 
 ture, his liability to make good the damage done by his property 
 arises. He then becomes responsible. Before he can reclaim or 
 recapture the property thus astray, justice and equity demand that 
 he should make good the injury caused by its deposit and its con- 
 tinuance. 
 
 The rule is sensibly expressed by Domat, in the article following, 
 viz. : " 1st. He who has found a thing that is lost is bound to pre- 
 serve it, and to take care of it in order to restore it to its owner. 
 . . . And when he does restore it, he cannot detain any part of 
 it nor demand anything for having found it. But he will recover 
 only what expense he has been at, as shall be explained in the fol- 
 lowing article. 2d. The person to whom one restores the thing 
 which he had lost, is obliged on his part to repay the money that 
 has been laid out either in keeping the thing or in delivering it to 
 him, as if it was some strayed beast which it was necessary to feed, 
 or that the carriage of the thing from one place to another had 
 obliged the person in whose custody it was to be at some charges; 
 or if any money has been laid out in advertisements or in having the 
 thing cried, in order to give notice to the owner. . . . 3d. The 
 proprietor of a ground on which is thrown the rubbish of a building 
 that has fallen down, or that which a flood has carried away from 
 another's ground, is obliged to suffer him who has had the loss to 
 take away what remains, and to allow him such free access to his 
 grounds as is necessary for that end. But upon the conditions that 
 are explained in the following article. 4th. In the cases of the 
 foregoing article, he who desires to have back the materials of his 
 building that is fallen down, or that which a flood hath carried awav 
 from his land and thrown upon another man's ground, is obliged, 
 on his part, not only to indemnify the proprietor of said ground, as 
 to what damage shall happen to be done by taking away the things 
 which have been thrown upon it, but he is moreover bound to repair 
 all the damage which has been already done to the ground by the 
 things since they were cast upon it. But if he choses rather not to 
 take away anything, he will owe nothing; for, if he abandons to the 
 proprietor of that ground all that has been cast upon it, he is not 
 bound to make good a damage that has happened by the bare effect 
 of that accident, and it is enough that he loses what the accident
 
 358 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 has carried away from him. 5th. If he, whose materials or other 
 things have been thrown by these accidents on the estate of another 
 person, be desirous to take them away, he will be obliged, besides 
 the making reparation for the damage sustained by the owner of the 
 ground, to take away as well the unprofitable stuff that can be of no 
 manner of use as that which is useful and which he is desirous to 
 take away, and to clear entirely the surface of the ground on which 
 the things have been thrown." Domat, vol. 1, pp. 334, 335, part 
 1, b. 2, tit. 9, § 2, arts. 1, 2, 3, 4, 5. Lond. ed. of 1722. 
 
 The logs in question were reclaimed by the authority of the 
 defendants and removed from the premises of the plaintiff. No 
 question is made as to Pond's authority to remove the property, 
 whatever may be said of his authority to promise payment. When 
 the defendants thus removed their property, they became at once 
 responsible for the payment of the damages. If they made no 
 express promise to pay them, the law raises the promise and will 
 sustain an action based upon it. " Where there is a legal right to 
 demand a sum of money and there is no other remedy, the law will 
 imply a promise of payment." Poor v. Guilford, 6 Seld. 276; 
 Newton v. Coon, 3 Denio, 134, 5 Greenleaf R., 519. 
 
 The doctrines of Domat are sustained by Amory v. Flyn, 10 ■ 
 Johns. R. 102, and Rider v. Anderson, 4 Dana, 193. See also Story 
 on Bail. 121, and note 621^. Nicholson v. Chapman, 2 H. Black. R. 
 254, is not analogous, and furnishes no authority to the contrary. 
 Nor is the case of Beinstead 'v. Bach, 2 W. Bl. 1117, or of 2 Strange, 
 278; 1 M. & S. 290, 20 J. R. 28; 10 Id. 249; 4 Wend., 652, to the 
 point. This is not the case of a gratuitous or voluntary service, for 
 which no compensation can be demanded. The use of the plain- 
 tiff's land was compulsory. He never consented to the use. He 
 had not the power to resist. Whether the logs remained upon the 
 premises an unreasonable length of time was a question of fact to 
 be decided by the jury, or by the judge acting in their place, if the 
 question became important. 3 B. & C. 213; 4 B. & Aid. 366, 387; 
 2 B. & B. 692. The finding in favor of the plaintiff determines this 
 question in his favor, upon the well-settled principle that every fact 
 not expressly found shall be deemed to have been found, and held 
 in such manner as to uphold the judgment 36 N. Y. 340; 32 Id. 
 464; 28 Id. 532; 22 Id. 425, 323; 21 Id. 551. 
 
 The recovery was upon general principles of law, without refer- 
 en< e to the statute. It is not necessary to invoke it in his behalf, 
 nor are his rights disturbed by its provisions. The judgment 
 should be affirmed with costs. 
 
 Judgment affirmed.
 
 VII.] SEA WEED, WRECK, ETC. 359 
 
 McAVOY v. MEDINA. 
 
 ii Allen (Mass.), 549. — 1866. 
 
 Dewey, J. — It seems to be the settled law that the finder of lost 
 property has a valid claim to the same against all the world except 
 the true owner, and generally that the place in which it is found 
 creates no exception to this rule. 2 Parsons on Con. 97 ; Bridges v. 
 Ifawkesworth, 7 Eng. Law and Eq. R. 424. 
 
 But this property is not, under the circumstances, to be treated 
 as lost property in that sense in which a finder has a valid claim to 
 hold the same until called for by the true owner. This property 
 was voluntarily placed upon a table in the defendant's shop by a 
 customer of his who accidentally left the same there and has never 
 called for it. The plaintiff also came there as a customer, and first 
 saw the same and took it up from the table. The plaintiff did not 
 by this acquire the right to take the property from the shop, but it 
 was rather the duty of the defendant, when the fact became thus 
 known to him, to use reasonable care for the safe keeping of the 
 same until the owner should call for it. In the case of Bridges v. 
 Hawkesivorth the property, although found in a shop, was found on 
 the floor of the same, and had not been placed there voluntarily by 
 the owner, and the court held that the finder was entitled to the 
 possession of the same, except as to the owner. But the present 
 case more resembles that of Latvrence v. The State, 1 Humph. 
 (Tenn.) 228, and is indeed very similar in its facts. The court 
 there take a distinction between the case of property thus placed by 
 the owner and neglected to be removed, and property lost. It was 
 there held that " to place a pocket-book upon a table and to forget 
 to take it away is not to lose it, in the sense in which the authorities 
 referred to speak of lost property." 
 
 We accept this as the better rule, and especially as one better 
 adapted to secure the rights of the true owner. 
 
 In view of the facts of this case, the plaintiff acquired no original 
 right to the property, and the defendant's subsequent acts in 
 receiving and holding the property in the manner he did does not 
 create any. 
 
 Exceptions overruled.
 
 360 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CII. II. 
 
 VIII. Property in fish and game ratione soli. 
 
 Breese, J., in BECKMAN v. KREAMER. 
 
 43 Illinois. 447. — 1867. 
 
 By the common law, a right to take fish belongs so essentially to 
 the right of soil in streams or bodies of water, where the tide does 
 not ebb and flow, that i'f the riparian proprietor owns upon both 
 sides of such stream, no one but himself may come upon the limits 
 of his land and take fish there; and the same rule applies so far as 
 his land extends, to wit, to the thread of the stream, where he owns 
 upon one side only. Within these limits, by the common law, his 
 right of fishery is sole and exclusive, unless restricted by some local 
 law or well-established usage of the state where the premises may 
 be situated. Washburn on the Law of Easements and Servitudes, 
 411, referring to Hargraves' Law Tracts, 5; Woolrych on Waters, 
 87; Chalder v. Dickinson, 1 Conn. 382; Waters v. Lilley, 4 Pick. 199; 
 Hooker v. Cummins, 20 Johns. 90; McFarlin v. Essex Co., 10 Cush. 
 
 3°4- 
 
 This right to take fish within the limits of one's land bounding 
 upon and including a stream not navigable, is so far a subject of 
 distinct property or ownership, that it may be granted, and will pass 
 by a general grant of the land itself, unless expressly reserved; or 
 it may be granted as a separate and distinct property from the free- 
 hold of the land, or the land may be granted, while the grantor 
 reserves the fishery to himself. 
 
 In this case the record shows, that the plaintiffs below showed 
 either a legal or equitable title to the lands on which the lake was 
 situate, and actual possession and cultivation of the adjacent lands 
 described in the title papers they exhibited. 
 
 It appears the lake is a small sheet of water about seven miles 
 from the Kankakee river, and has an outlet to that river. It 
 abounds in fish of a choice kind. The defendants went on it with 
 small boats they had brought with them, equipped with a seine, 
 which they dragged in the lake, against the will and protest of the 
 owners of the land. 
 
 This entering upon the land and fishery, which was exclusive in 
 the plaintiffs, was a trespass upon their premises, for which the 
 ai ti'.n of trespass lay, independently of the question of ownership 
 in the fish. The plaintiffs had, therefore, a clear right to recover 
 for the trespass. * * *
 
 VIII.] PROPERTY IN FISH AND GAME. 361 
 
 STERLING v. JACKSON. 
 69 Michigan, 488. — 1888. 
 
 Champlin, J. — This is an action for trespass upon land covered 
 with water, situated on fractional section 11 north of private claim, 
 township 7 south, range 9 east. 
 
 The declaration alleges that defendant broke and entered plain- 
 tiff's close, and with his boat, oars, and paddle, in rowing and punt- 
 ing, broke down and destroyed the wild rice and grass there 
 growing, and with his gun shot at, wounded, and killed and fright- 
 ened away the wild ducks and other game there resting and feeding, 
 and other injuries, etc. 
 
 The defendant pleaded the general issue, and gave notice that he 
 would show that the premises upon which the injuries were supposed 
 to have been committed were a common highway, and free to 
 defendant, and by virtue thereof, and in use thereof, he did all and 
 singular the acts complained of, as he lawfully might. * * * 
 
 There was a large amount of testimony introduced to show that 
 this bay, as well as Sandy creek, was navigable water, and in the 
 disposition made of the case in the court below the fact was con- 
 ceded that it was navigable, and used. as such, and I shall consider 
 that fact as established. 
 
 It is also a conceded fact that defendant was in a boat in the 
 navigable waters of the bay, and by the aid of some rushes that 
 grew up through the water, and a structure called "a hide," and 
 several artificial ducks as decoys, was engaged in shooting wild 
 ducks upon the premises covered by plaintiff's patent; that he was 
 requested to desist, and leave the premises, by plaintiff, through his 
 agent, but refused so to do, claiming the right to be where he was, 
 and to shoot ducks and game, because he was in the navigable 
 waters of Lake Erie. 
 
 A point is made by counsel for defendant that, at the time the 
 state issued its patent for this land in 1883, the shore had washed 
 away, and the bay existed as a part of the waters of Lake Erie, and 
 the mere grant of the land could convey no greater rights, as to 
 fishing and shooting, to the grantee than the grantor had. 
 
 It seems to me that plaintiff is unaffected by the changed condi 
 tion of the shore. In my opinion, the grant was effective to pass 
 the title to the submerged land. The patent from the state passed 
 such title as it had; and if, prior to its date, a portion of the land 
 had become submerged by the slow and imperceptible encroach- 
 ments of the waters of the lake, the state, unlike a private person, 
 still would be the owner, and could grant the bed of the lake to
 
 362 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CM. II. 
 
 whom it chose, so long as such grant did not interfere with private 
 vested rights. Smith v. Levinus, 8 N. Y. 472. * * * 
 
 It may be remarked, however, that Congress had not the remotest 
 intention of granting these lands for game .preserves, to be bought 
 up and controlled by individuals or clubs. While I have no doubt 
 that plaintiff may, for the purpose of reclaiming this land, construct 
 levees or embankment, and thus shut out the waters of Lake Erie, 
 and the public as well, yet, while he permits it to remain as a part 
 of the navigable water of Lake Erie, there is an implied license to 
 the public, under which the public have the right to navigate the 
 same, and to exercise all such rights as are incident to navigation, 
 and it is also subject to such rights as the public have in the navi- 
 gable waters of the state. 
 
 The plaintiff claims the exclusive right of hunting within the ter- 
 ritory covered by his patent from the state. He founds this right 
 upon his proprietary interests in the soil under the water. He does 
 not deny, so long as the premises remain in their present condition, 
 that the public have a right of navigation over his land, but he 
 claims such right is a mere easement, and extends simply to a right 
 of passage over his lands in such vessels as are capable of navigat- 
 ing the water over the same. He insists upon the exclusive right 
 to hunt, and to capture all wild game while on his own premises, and 
 that his right of capture is as much a right of property as the right 
 to make any other use of his own premises. He cites, in support of 
 these propositions, the following authorities: Moore v. Sanborne, 2 
 Mich. 519; Booming Co. v. Speedily, 31 Id. 336, 342; Lorman v. Ben- 
 son, 8 Id. 18; Rice v. Ruddiman, 10 Id. 125; Booming Co. v. Jarvis, 
 30 Id. 319; Attorney General v. Booming Co., 34 Id. 474; Ewing v. 
 Colquhoun, 2 App. Cas. 839; Walker v. Board, etc., 16 Ohio, 544; 
 Braxon v. Bress/er, 64 111. 4S8; June v. Purcell, 36 Ohio St. 396; 
 Ross v. Faust, 54 Ind. 471; Berry v. Snyder, 3 Bush, 266, 285; Over- 
 man v. May, 35 Iowa, 89; Ice Co. v. Shortall, 101 111. 46; McFarlin 
 v. Essex Co., 10 Cush. 309; Adams v. Pease, 2 Conn. 484; Cooley, 
 Torts, 329; Waters v. Lilley, 4 Pick. 145, Goff v. Kilts, 15 Wend. 
 550; Blades v. Higgs, 12 C. B. (N. S.) 501, 13 Id. 866; Ferguson v. 
 Miller^ r Cow. 243; Gillett v. Mason, 7 Johns. 16; Gould, Waters, §§ 
 
 93^, 158, i59- 
 
 The defendant's counsel contend that, the bay being navigable, 
 and free to the public for passage, the defendant, as one of the pub- 
 lic, had a right to go upon the waters, and shoot as he did; that the 
 entry upon the bay in his boat was no trespass; that, having the 
 right, as one of the public, to pass over these waters, and to be 
 where lie was, he had the right to fish in them, to shoot from his
 
 VIII.] PROPERTY IN FISH AND GAME. 363 
 
 boat wild ducks flying over them from the open lake, and to anchor 
 his decoys to attract such ducks; that the ownership of the soil is a 
 qualified ownership, subject to the public and common right of 
 passage, fishing, and shooting wild birds. In support of this, he 
 cites the following authorities: Pearce v. Scotcher, 9 Q. B. Div. 162; 
 Weston v. Sampson, 8 Cush. 347; Martin v. Waddell, 16 Pet. 367; 
 Smith v. State, 18 How, 74; Collins v. Benbury, 3 Ired. 277; Browne 
 x. Kennedy, 5 Har. & J. 195; State v. Falls Co., 49 N. H. 240; Car- 
 son v. Blager, 2 Bin. 475; Sloan v. Biemiller, 34 Ohio St. 492. 
 
 We have not been cited to any adjudicated case where this ques- 
 tion has arisen. Both parties have presented it on the analogies of 
 the right to fish in public navigable waters; and counsel for both 
 parties insist that, if the case is to be governed by the rights of fish- 
 ing, it should be decided for their clients. Both appeal to the doc- 
 trine of the common law, and find their vindication in its precepts. 
 One asks for the application of the doctrine of the right of fishing 
 in navigable waters where the tide ebbs and flows; and the other is 
 best suited with the common law as applied to non-tidal or fresh 
 water streams. 
 
 While the questions of fishing and hunting are in principle some- 
 what analogous, yet they have always in England been treated as 
 separate subjects of legislation and regulation. The forest and 
 game laws of England have always been treated under a separate 
 code, distinguished for its tyrannical inhibition of the common rights 
 of the subject, and detestable for the cruel punishments inflicted 
 for trivial offenses. 2 Bl. Com. 411 et sea.; Com. Dig., tit. " Jus- 
 tices of the Peace," B. 43, 45-49. The common law, which recog- 
 nized the right of hunting and of property in wild animals to be a 
 royal prerogative, and to vest in the king, has no existence in this 
 country, where no king and no royal prerogative exist. Here the 
 sovereign power is in the people, and the principle, founded upon 
 reason and justice, obtains, that by the law of nature every man, of 
 whatever rank or station, has an equal right of taking, for his own 
 use, all creatures fit for food that are wild by nature, so long as he 
 does no injury to another's rights. Laws have been passed to pro- 
 tect game during certain seasons, with a view to their preservation, 
 but none denying the right of any person to capture or kill game in 
 the allotted season. This right is restricted only as to place. 
 
 Since every person has the right of exclusive dominion as to the 
 lawful use of the soil owned by him, no man can hunt or sport upon 
 another's land but by consent of the owner. It will be conceded that 
 the owner of lands in this state has the exclusive right of hunting 
 and sporting upon his own soil, whatever may be the view enter-
 
 364 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CM. II. 
 
 tained when the land belongs to the United States or to the state, 
 there can be no question when the land passes to the hands of 
 private owners. 
 
 The defendant claims that he had the right to shoot the wild fowl 
 from his boat, because, as the waters were navigable where he was, 
 he had the right to be there; that there being no property in wild 
 fowl until captured, if he committed no trespass in being where he 
 was, no action will lie against him for being there and shooting the 
 wild duck. There is a plausibility in the position, which, considered 
 in the abstract, is quite forcible, and, if applied to waters where 
 there is no private ownership of the soil thereunder, would be unan- 
 swerable. But, so far as the plaintiff is concerned, defendant had 
 no right to be where he was except for the purpose of pursuing the 
 implied license held out to the public of navigating the waters over 
 his land. So long as the license continued, he could navigate the 
 water with his vessel, and do all things incident to such navigation. 
 He could seek the shelter of the bay in a storm, and cast his anchor 
 therein; but he had no right to construct a " hide," nor to anchor 
 his decoys for the purpose of attracting ducks within reach of his 
 shotgun. Such acts are not incident to navigation, and in doing 
 them defendant was not exercising the implied license to navigate the 
 waters of the bay, but they were an abuse of such license. * * * 
 [Several cases are here reviewed and are then summed up as follows :] 
 
 In each of these cases the defendant " was where he had a right 
 to be " at the time he committed the grievance complained of, 
 nevertheless this fact did not justify him in doing an act, the direct 
 consequence of which was to injure the owner of the land for his 
 own benefit. Is does not follow that, because a person is where he 
 has a right to be he cannot be held liable in trespass. A person has 
 the right to drive his cattle along the public highway, but he has no 
 right to depasture the grass with his cattle in the highway adjoining 
 the land of another person. Also, a person has the right to travel 
 along a public highway, but this gives him no right to dig a pit, or 
 remove the soil, or incumber it in front of lands belonging to others. 
 
 In the case under consideration, the defendant' had the right of 
 using the waters of the bay for the purpose of a public highway in 
 the navigation of his boat over it; but he had no right to interfere 
 with the plaintiff's use thereof for hunting, which belonged to him 
 as the owner of the soil. The public had a right to use it as a pub- 
 lic highway, but every other beneficial use and enjoyment belonged 
 to the owners of the soil. 
 
 Had this action been in case, with proper averments setting forth 
 plaintiff's ownership and use for sporting, and defendant's interfer-
 
 VIII.] PROPERTY IN FISH AND GAME. 365 
 
 ence and disturbance of plaintiff's enjoyment, the authorities last 
 above cited would have supported the action. I am not prepared to 
 say, after verdict, that trespass will not lie under the circumstances 
 of this case; more especially as no question is raised by defendant's 
 counsel that it is not the proper form of action, and as it appears to 
 have been planted to test the plaintiff's right to the private and 
 exclusive use of the land covered by his patent for sporting pur- 
 poses. As owner of the fee of the soil under the water, I think he 
 is entitled to such exclusive right, and that the judgment should be 
 affirmed. 
 
 I may add, in conclusion, that, aside from the ownership of the 
 plaintiff of the locus in quo, the only important question in this case 
 is whether a man has the exclusive right of fowling upon his own 
 land. If he has, it can make no difference with that right whether 
 it be upland or covered with water. As the question of the right to 
 fish in the navigable waters of the great lakes at places not affected 
 by private ownership does not arise in this case, I forbear to discuss 
 it. My views upon that subject were expressed in Lincoln v. Davis, 
 53 Mich. 375, 19 N. W. Rep. 103. 
 
 REXROTH v. COON. 
 
 15 Rhode Island, 35. — 1885. 
 
 Tillinghast, J. — This is an action on the case in trover for the 
 recovery of damages for the wrongful conversion of a hive of bees, 
 together with the honey and honey-comb belonging, as is alleged, 
 to the plaintiff. The case was originally brought and tried in the 
 Justice Court of the town of Westerly, from whence it was carried 
 by appeal to the Court of Common Pleas. In the Court of Common 
 Pleas jury trial was waived, and it was tried to the court upon the 
 law and the facts. It comes here by bill of exceptions, the only 
 exception taken being to the ruling of the court, that, upon the 
 facts which appeared in evidence, the plaintiff was not entitled to 
 recover. Said facts are incorporated in the bill of exceptions, and 
 are a part of the record of the proceedings. They are substantially 
 as follows, namely: In May, 1881, the plaintiff placed a small pine 
 box called a bee-hive, in the crotch of a tree in the woods on land 
 of Samuel Green, in the town of Hopkinton. It remained in this 
 position until about the first of September, 1883, when the defend- 
 ant went upon the premises and took and carried away the hive, 
 together with a swarm of bees that was then in it, also the honey
 
 366 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 and honey-comb, and appropriated the same to his own use. The 
 plaintiff had visited the hive about twice a year while it remained in 
 its position, for the purpose of ascertaining whether any bees were 
 in it or had been. He had found none. The plaintiff never had 
 any express permission or license from the owner of the land to 
 place or keep his hive in said tree. 
 
 The defendant never had any express permission or license from 
 the owner of the land to come upon it, and take and carry away said 
 property. Said hive was at some distance from any house, and no 
 person knew where said bees came from into said hive, although a 
 number of people kept bees in said town. There was evidence that 
 for several years signs had been posted up by said Green on his prem- 
 ises forbidding all persons from trespassing thereon, and that one 
 of said signs was within about twenty rods of said hive, but the 
 plaintiff testified that he never saw any of them, and that he never 
 had any notice to keep off said premises. The defendant split open 
 said hive took out its contents, and then nailed it together again and 
 replaced it in said tree in as good condition as it was before he took 
 it away. The defendant testified that he knew the owner of said 
 land had forbidden all persons from trespassing thereon, but that 
 said owner had told him that he did not put up said notice to keep 
 off his neighbors, and had given him permission to go upon said 
 land. Demand was made upon defendant in due form before the 
 commencement of suit. After the suit was commenced the defend- 
 ant turned over to said Green what then remained in his hands of said 
 bees and honey-comb. The value of the property taken was vari- 
 ously estimated at from $2.50 to $10. Upon said facts the court 
 ruled that the plaintiff was not entitled to recover, and rendered 
 judgment for the defendant for his costs, to which ruling the plain- 
 tiff duly accepted. 
 
 The only question, therefore, is whether said ruling was correct. 
 
 The plaintiff claims that he hived the bees, and that he thereby 
 acquired at least a qualified property in them, notwithstanding they 
 were upon the land of another, which was sufficient to enable him 
 to maintain this action. We do not think the claim can be substan- 
 tiated. The action is trover, and, in order to recover, the plaintiff 
 must prove title, some title, in himself, coupled with possession or 
 the right of immediate possession. We do not think he has proved 
 either. 
 
 Bees in /,7v natures and the only ownership in them until 
 rii [aimed and hived is r<iti<>>w so//. This qualified ownership, how- 
 ever, although exi eedingly precarious and of uncertain tenure, can- 
 not be changed or terminated by the act of a mere trespasser.
 
 VIII.] PROPERTY IN FISH AND GAME. 367 
 
 That is to say, the act of reducing a thing f era natura into posses- 
 sion, where title is thereby created, must not be wrongful. And if 
 such an act is effected by one who is at the moment a trespasser, no 
 title to the property is created. Blades v. Higgs, 11 H. L. 621. 
 " Property ratione soli," said the Lord Chancellor, in said case, " is 
 the common-law right which every owner of land has to kill and 
 take all such animals ferce natural as may from time to time be found 
 on his land, and, as soon as this right is exercised, the animal so 
 killed or caught becomes the absolute property of the owner of the 
 soil." It is further held in the same case that such animals, when 
 found, killed, and taken by a mere trespasser, became also the prop- 
 erty of the owner of the land, the same as if taken by him or his 
 servants. See Sutton v. Moody, Ld. Raym. 250; Earl of Lonsdale 
 v. Rigg, 11 Exch. Rep. 654; Rigg v. Earl of Lonsdale, 1 H. & N. 
 
 923- 
 
 We understand that the law in this country with regard to prop- 
 erty in animals fercz naturce is substantially in accord with that of 
 England, excepting, of course, all game laws and statutory regula- 
 tions, which are now very numerous upon this subject. See Idol v. 
 Jones, 2 Dev. 162. 
 
 In support of the plaintiff's position in the case at bar, he cites 
 the following authorities, namely: 1 Swift's Digest, 169; 2 Black- 
 stone Comment. *393; 2 Kent Comment. *35o; 2 Inst. 1, 14, 15; 
 Merrils v. Goodwin, 1 Root, 209; Gillett v. Mason, 7 Johns. Rep. 16; 
 and Goffv. Kilts, 15 Wend. 550. All of these authorities, in so far 
 as they are pertinent, omitting, of course, the citations from the 
 civil law, which is not in force here, tend in our judgment to support 
 the defendant's position rather than that of the plaintiff. 
 
 The case of Merrils v. Goodwin, cited by the plaintiff, decides 
 that a man's finding bees in a tree standing upon another man's 
 land, gives him no right either to the tree or the bees; and that a 
 swarm of bees going from a hive, if they can be followed and iden- 
 tified, are not lost to the owner, but may be reclaimed. That is to 
 say, a man may pursue his property of this sort even upon the land 
 of another, and retake it, and this, although the owner might be liable 
 for a trespass in so doing. 
 
 Gillett v. Mason, 7 Johns. Rep. 16, cited by the plaintiff, also 
 recognizes the doctrine of a qualified ownership in bees, ratione soli; 
 and while it decides that hiving or inclosing them gives property 
 therein, and that he who first incloses them in a hive becomes their 
 proprietor, yet it is clear from the general tenor of the case, as 
 from the note which follows it, that it " must be understood with 
 the restriction that a person could not come upon the land of
 
 368 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 another without his consent, for the purpose of taking bees, 
 although unreclaimed. " 
 
 The case of Goff v. Kilts, 15 Wend. 550, is clearly against the 
 position taken by the plaintiff. * * * See, also, Ferguson v. 
 Miller, 1 Cow. 243; Adams v. Burton, 43 Vt. 36, 38, and Bennett, 
 Farm Law, 64. 
 
 In the case at bar the plaintiff was a trespasser upon the land of 
 Green from the beginning. He had no right to place the box or 
 hive in the tree; and by placing it there he acquired no title to the 
 bees which subsequently occupied it, or to the honey which they 
 produced. Neither is it material to the issue for us to inquire 
 whether the defendant, by taking the bees and honey away without 
 previous permission from the owner of the land, was also a tres- 
 passer; for even admitting that he was, does not in any way aid the 
 plaintiff in this suit. The fact that A. commits a trespass upon land 
 of B., and carries away some of his personal property, would hardly 
 be considered a cause of action in favor of C. * * * 
 
 Exceptions overruled. 
 
 GOFF v. KILTS. 
 15 Wendell (N. Y.), 550. — 1836. 
 
 By the Court, Nelson, J. — Animals ferce naturce, when reclaimed 
 by the art and power of man, are the subject of a qualified prop- 
 erty; if they return to their natural liberty and wildness, without 
 the animus revertendi, it ceases. During the existence of the quali- 
 fied property, it is under the protection of the law the same as any 
 other property, and every invasion of it is redressed in the same 
 manner. Bees are ferx natune, but when hived and reclaimed, a 
 person may have a qualified property in them by the law of nature, 
 as well as the civil law. Occupation, that is, hiving or enclosing 
 them, gives property in them. They are now a common species of 
 property, and an article of trade, and the wildness of their nature 
 by experience and practice has become essentially subjected to the 
 art and power of man. An unreclaimed swarm, like all other wild 
 animals, belongs to the first occupant — in other words, to the per- 
 son who first hives them; but if a swarm fly from the hive of another, 
 his qualified property continues so long as he can keep them in sight, 
 and possesses the power to pursue them. Under these circum- 
 stances, no one else is entitled to take them. 2 Black. Com. 393; 
 2 Kent's Com. 394. 
 
 The quest ion here is not between the owner of the soil upon which 
 the tree stood that included the swarm, and the owner of the bees;
 
 VIII.] PROPERTY IN FISH AND GAME. 369 
 
 as to him, the owner of the bees would not be able to regain his 
 property, or the fruits of it without being guilty of trespass. But it 
 by no means follows, from this predicament, that the right to the 
 enjoyment of the property is lost; that the bees therefore become 
 again /era natura, and belong to the first occupant. If a domestic 
 or tame animal of one person should stray to the enclosure of 
 another, the owner could not follow and retake it, without being 
 liable for a trespass. The absolute right of property, notwithstand- 
 ing, would still continue in him. Of this there can be no doubt. 
 So in respect to the qualified property in the bees. If it continued 
 in the owner after they hived themselves, and abode in the hollow 
 tree, as this qualified interest is under the same protection of law as 
 if absolute, the like remedy existed in case of an invasion of it. It 
 cannot, I think, be doubted, that if the property in the swarm con- 
 tinues while within sight of the owner — in other words, while he 
 can distinguish and identify it in the air — that it equally belongs 
 to him if it settles upon a branch or in the trunk of a tree, and 
 remains there under his observation and charge. If a stranger has 
 no right to take the swarm in the former case, and of which there 
 seems no question, he ought not to be permitted to take it in the 
 latter, when it is more confined and within the control of the occupant. 
 It is said the owner of the soil is entitled to the tree and all 
 within it. This may be true, so far as respects an unreclaimed 
 swarm. While it remains there in that condition, it may, like birds 
 or other game, (game laws out of the question), belong to the owner 
 or occupant of the forest, ratione soli. According to the law of 
 nature, where prior occupancy alone gave right, the individual who 
 first hived the swarm would be entitled to the property in it; but 
 since the institution of civil society, and the regulation of the right 
 of property by its positive laws, the forest as well as the cultivated 
 field, belong exclusively to the owner, who has acquired a title to it 
 under those laws. The natural right to the enjoyment of the sport 
 of hunting and fowling, wherever animals /era natura could be 
 found, has given way, in the progress of society, to the establish- 
 ment of rights of property better defined and of a more durable 
 character. Hence no one has a right to invade the enclosure of 
 another for this purpose. He would be a trespasser, and as such 
 liable for the game taken. An exception may exist in the case of 
 noxious animals, destructive in their nature. Mr. Justice Black- 
 stone says, if a man starts game in another's private grounds, and 
 kills it there, the property belongs to him in whose ground it is 
 killed, because it was started there, the property arising ratione soli. 
 2 Black. Com. 419. But if animals /era natura that have been 
 
 LAW OF PROP. IN LAND — 24
 
 370 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CII. II. 
 
 reclaimed, and a qualified property obtained in them, escape into 
 the private grounds of another in a way that does not restore them 
 to their natural condition, a different rule obviously applies. They 
 are then not exposed to become the property of the first occupant. 
 The right of the owner continues, and though he cannot pursue and 
 take them without being liable for a trespass, still this difficulty 
 should not operate as an abandonment of the animals to their former 
 liberty. The rights of both parties should be regarded, and recon- 
 ciled as far as is consistent with a reasonable protection of each. 
 The cases of Herrmance v. Vernay, 6 Johns. R. 5, and Blake v. 
 Jerome, 14 Id. 406, are authorities for saying, if any were wanted, 
 that the inability of the owner of a personal chattel to retake it 
 while on the premises of another, without committing a trespass, 
 does not impair his legal interest in the property. It only embar- 
 rasses the use or enjoyment of it. The owner of the soil, there- 
 fore, acquiring no right to the property in the bees, the defendant 
 below cannot protect himself by showing it out of the plaintiff in 
 that way. It still continues in him, and draws after it the posses- 
 sion sufficient to maintain this action against a third person, who 
 invades it by virtue of no other claim than that derived from the 
 law of nature. This case is distinguished from the cases of Gillet 
 v. Mason, 7 Johns. R. 16, and Ferguson v. Miller, 1 Cowen, 243. 
 The first presented a question between the finder and a person 
 interested in the soil; the other between two persons, each claiming 
 as the first finder. The plaintiff in the last case, though the first 
 finder, had not acquired a qualified property in the swarm according 
 to the law of prior occupancy. The defendant had. Besides, the 
 swarm being unreclaimed from their natural liberty while in the 
 tree, belonged to the owner of the soil ratione soli. For these 
 reasons I am of opinion that the judgment of the court below should 
 be affirmed. Tudgment affirmed. 
 
 M'CONICO v. SINGLETON. 
 
 2 Mills (S. C. Const. Rep.), 244. — 1818. 
 
 Johnson, J., delivered the opinion of the court. — Until the bring- 
 ing of this action, the right to hunt on unenclosed and uncultivated 
 lands has never been disputed, and it is well known that it has been 
 universally exercised from the first settlement of the country up to 
 the present time; and the time has been, when, in all probability, 
 obedient as our ancestors were to the law of the country, a civil war 
 would have been tin- 1 onsequence <>f an attempt, even by the legis- 
 lature, to enforce a restraint on this privilege. It was the source
 
 VIII.] PROPERTY IN FISH AND GAME. 371 
 
 from whence a great portion of them derived their food and rai- 
 ment, and was to the devoted huntsman, (disreputable as the life 
 now is), a source of considerable profit. The forest was regarded 
 as a common, in which they entered at pleasure, and exercised the 
 privilege; and it will not be denied that animals, ferce naturce, are 
 common property, and belong to the first taker. If, therefore, 
 usage can make law, none was ever better established. This usage 
 is also clearly recognized as a right by the several acts of the legis- 
 lature on the subject; particularly the act of 1769 (Pub. Laws, 
 276), which restrains the right to hunt within seven miles of the 
 residence of the hunter. Now if the right to hunt beyond that, did 
 not before exist, this act was nugatory; and it cannot be believed 
 that it was only intended to apply to such as owned a tract of land, 
 the diameter of which would be fourteen miles. It appears to me 
 also, that there is no rule of the English common law, at variance 
 with this principle; but, it is said, that every entry on the lands of 
 another is a trespass, and the least injury, as treading down grass 
 and the like, will support it. (1 Esp. Dig., tit. Trespass, 221.) 
 But there must be some actual injury to support the action. Now 
 it will not be pretended that riding over the soil is an injury; and 
 the forest being the common, in which the cattle of all are used to 
 range at large, the grass, if perchance there be any, may also be 
 regarded as common property; and surely no action will lie against 
 a commoner for barely riding over the common. The right to hunt 
 on unenclosed lands, I think, therefore, clearly established, but if it 
 were doubtful, I should be strongly inclined to support it. Large 
 standing armies are, perhaps, wisely considered as dangerous to our 
 free institutions; the militia, therefore, necessarily constitutes our 
 greatest security against aggression; our forest is the great field in 
 which, in the pursuit of game, they learn the dexterous use and con- 
 sequent certainty of firearms, the great and decided advantage of 
 which have been seen and felt on too many occasions to be forgot- 
 ten, or to require a recurrence to. 
 
 Having come to the conclusion that it is the right of the inhabit- 
 ants to hunt on unenclosed lands, I need not attempt to prove that 
 the dissent or dissapprobation of the owner cannot deprive him of 
 it; for I am sure it never yet entered the mind of any man, that a 
 right which the law gives, can be defeated at the mere will and 
 caprice of an individual. * * * 
 
 Let the motion be dismissed. 1 
 
 1 See also Broughlon v. Singleton, 2 Nott & McCords (S. C), 338. — 1820. 
 The game laws of the various States usually have some bearing upon the 
 general question here discussed. — Ed.
 
 ^;2 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 IX. Minerals. 1 
 
 Coffev, J., in THE PEOPLE'S GAS CO. v. TYNER. 
 131 Indiana, 277. — 1891. 
 
 [Appellants contend] that they had the right to use their own 
 property as to them seemed best, and for that reason, they could 
 not be enjoined from exploding nitro-glycerine in their well for the 
 purpose of increasing the flow of natural gas, though such explosion 
 might have the effect to draw the gas from the land of the 
 appellee. * * * 
 
 On the other hand, it is contended by the appellee: * * * 
 that natural gas is property, and that the appellants have no legal 
 right to do anything upon their own land which will draw such gas 
 from his land, and appropriate it to their own use. * * * 
 
 It has been settled in this state that natural gas, when brought to 
 the surface of the earth and placed in pipes for transportation, is 
 property, and may be the subject of interstate commerce. State, 
 ex rel. v. Indiana, etc., Co., 120 Ind. 575. 
 
 Water, petroleum oil and gas are generally classed by themselves 
 as minerals possessing, in some degree, a kindred nature. As to 
 whether the owner of the soil may dig down and divert a well- 
 defined subterranean stream of water there is much diversity of 
 opinion and conflict in the adjudicated cases, but the authorities 
 agree that the owner of a particular tract of land may sink a well 
 and appropriate to his own use all the percolating water found 
 therein, though it may entirely destroy the well on his neighbor's 
 land. Angell, Watercourses, § 112; Hanson v. McCue, 42 Cal. 
 303; Wheatley v. Baugh, 25 Pa. St. 528; Frazier v. Brown, 12 
 Ohio St. 294- Acton v. Blundell, 12 M. & W. 324; Delhi, Trustees, 
 etc., of v. Youmans, 50 Barb. 316; Mosier v. Caldwell, 7 Nev. 363; 
 New Albany, etc., R. R. Co. v. Peterson, 14 Ind. 112; City of Green- 
 castle v. Hazelitt, 23 Ind. 186. 
 
 It is a familiar maxim that in contemplation of law land always 
 extends downward as well as upwards, so that whatever is in direct 
 line between the surface of any land and the center of the earth 
 belongs to the owner of the surface. Mr. Angell says that it would 
 -'•'11) to follow from this maxim that whether what is subterranean 
 be -.olid ruck, mines or porous soil, or salt springs, or part land and 
 put water, the person who owns the surface may dig therein and 
 
 1 See also Ffuff \. \fcCauley, 53 Pa. St. 200, supra, p. 76; Caldwtl! v. Fulton, 31 
 Pa. Si. 475, upra, \>. 102.
 
 IX.] MINERALS. 373 
 
 apply all that is there found to his own purposes ad libitum. 
 Angell, Watercourses, § 109. 
 
 Upon this principle it was held by this court in the case of New 
 Albany t etc., R. R. Co. v. Peterson, supra, that if an adjoining land- 
 owner, in lawfully digging upon his own land, draws the water from 
 the land of another, to his injury, such injury falls within the 
 description of damnum absque injuria, which cannot become the 
 ground of an action. 
 
 In the case of Haldeman v. Bruckhart, 45 Pa. St. 514, it was said: 
 " The purchaser of lands on which there are unknown sub-surface 
 currents, must buy in ignorance of any obstacle to the full enjoy- 
 ment of his purchase indefinitely downwards, and the purchaser of 
 lands on which a spring rises, ignorant whence and how the water 
 comes, cannot bargain for any right to a secret flow of water in 
 another's land." 
 
 Mr. Gould, in his works on " Waters," 2d ed., section 291, says: 
 " Petroleum oil, like subterranean water, is included in the compre- 
 hensive idea which the law attaches to the word land, and is a part 
 of the soil in which it is found. Like water, it is not the subject of 
 property except while in actual occupancy, and a grant of either 
 water or oil is not a grant of the soil or of anything for which eject- 
 ment will lie." 
 
 In recognition of the principle here announced, in the case of 
 Brown v. Vandegrift, 80 Pa. St. 142, it was said by the court that 
 " The discovery of petroleum led to new forms of leasing land. Its 
 fugitive and wandering existence within the limits of a particular 
 tract was uncertain, and assumed certainly only by actual develop- 
 ment founded upon experiment." 
 
 What is said of the fugitive character of percolating water and of 
 petroleum oil applies with greater force to natural gas. 
 
 In the case of Westmoreland, etc., Gas Co. v. DeWitt, 130 Pa. St. 
 235, it was said: " Water and oil, and still more strongly gas, may 
 be classed by themselves, if the analogy be not too fanciful, as 
 minerals feroz natures. In common with animals, and unlike other 
 minerals, they have the power and the tendency to escape without 
 the volition of the owner. Their fugitive and wandering existence 
 within the limits of a particular tract is uncertain. * * * They 
 belong to the owner of the land and are a part of it, so long as they 
 are on or in it, and are subject to his control; but when they 
 escape, and go into other land, or come under another's control, the 
 title of the former owner is gone. Possession of the land, therefore, 
 is not necessarily possession of the gas. If an adjoining, or even a 
 distant, owner, drills his own land, and taps your gas, so that it
 
 374 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CII. II. 
 
 comes into his well and under his control, it is no longer yours, 
 but his." 
 
 It is not denied by the appellee in this case that the appellants 
 have the perfect legal right to sink a well into their own land and 
 draw therefrom all the gas that may naturally flow to it; but he con- 
 tends that they have no right to explode nitro-glycerine in the well 
 to increase the natural flow. 
 
 When it is once conceded that the owner of the surface has the 
 right to sink a well and draw gas from the lands of an adjoining 
 owner, no valid reason can bt given why he may not enlarge his 
 well by the explosion of nitro-glycerine therein for the purpose of 
 increasing the flow. The question is not as to the quantity of gas 
 he may take, but it is a question of his right to take the gas at all. 
 
 So far as this suit seeks to enjoin the appellants from exploding 
 nitro-glycerine in their gas well, upon the ground that it will 
 increase the flow of the gas to the injury of the appellee, it cannot, 
 in our opinion, be sustained. 
 
 MOORE v. SMAW. 
 17 California, 199. — 1861. 
 
 Action by Moore to recover for gold extracted and removed from 
 his premises by defendant. A demurrer was interposed, the sub- 
 stance of which is that the title of the plaintiff, as disclosed by the 
 complaint, was of such a character as to vest in him only the owner- 
 ship of the soil, without any interest in the minerals of gold and 
 silver which it contained. 
 
 In the case of Fremont v. Flower, which involves the same ques- 
 tions, and was argued herewith, an answer was interposed, in which 
 it was alleged that Fremont never had any interest in the gold or 
 gold-bearing quartz contained in the soil, and further, in a first 
 count, that they are the absolute and exclusive property of the state 
 of California, and, in a second count, that they are in like manner 
 the absolute and exclusive property of the United States. 
 
 Plaintiffs trace back their title in each case to a grant from the 
 Mi :xi< an government confirmed by patents from the United States, 
 which patents make no reservations of minerals or mineral lands. 
 
 At tin- time of the original grants by the Mexican government 
 " it was the established doctrine of the Mexican law that all mines 
 of x<>\<\ ami silver in the country, though found in the lands of pri- 
 vate individuals, were the property of the nation. No interest in 
 the minerals passed by a grant from the government of the land in
 
 IX.] MINERALS. 375 
 
 which they were contained, without express words designating 
 them." There were no such words in these grants. 
 
 Field, C. J. — * * * VVe do not understand that this con- 
 clusion [that the gold did not pass under the Mexican grant] is con- 
 troverted by the defendants; but two positions are advanced by 
 them which, though inconsistent with each other, would, if sus- 
 tained, be equally availing against the claims of the plaintiffs: 
 ist, that the minerals of gold and silver, which passed by the ces- 
 sion, were held by the United States in trust for the future state, 
 and that upon the admission of California the ownership of them 
 vested in her; and, 2d, that the minerals remain the property of the 
 United States, and did not pass by their patents. 
 
 The first position finds support in the decision of Hicks v. Bell, 3 
 Cal. 219, where this court held that the mines of gold and silver 
 found in the public lands are the property of the state by virtue of 
 her sovereignty; and assumed that similar mines in the lands of pri- 
 vate citizens also belonged to her by the same right. That decision 
 has not met the approbation of the profession or retained the appro- 
 bation of the distinguished judge who delivered it. The question 
 as to the ownership of the minerals was not raised by counsel, and 
 its determination was not required for the disposition of the case. 
 But independent of this consideration which only goes to the force 
 of the decision as authority, we are clear that the doctrine there 
 advanced cannot be sustained. It is undoubtedly true that the 
 United States held certain rights of sovereignty over the territory 
 which is now embraced within the limits of California, only in trust 
 for the future State, and that such rights at once vested in the new 
 State upon her admission into the Union. But the ownership of the 
 precious metals found in public or private lands was not one of 
 those rights. Such ownership stands in no different relation to the 
 sovereignty of a State than that of any other property which is the 
 subject of barter and sale. Sovereignty is a term used to express 
 the supreme political authority of an independent State, or nation. 
 Whatever rights are essential to the existence of this authority are 
 rights of sovereignty. * * * To the existence of this political 
 authority of the State — this qualified sovereignty, or to any part of 
 it — the ownership of the minerals of gold and silver found within 
 her limits is in no way essential. The minerals do not differ from 
 the great mass of property, the ownership of which may be in the 
 United States, or in individuals, without affecting in any respect 
 the political jurisdiction of the State. They may be acquired by 
 the State, as any other property may be, but when thus acquired she 
 will hold them in the same manner that individual proprietors hold
 
 376 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CIL II. 
 
 their property, and by the same right; by the right of ownership, 
 and not by any right of sovereignty. 
 
 In Hicks v. Bell, the court states correctly that, according to the 
 common law of England, mines of gold and silver were the exclu- 
 sive property of the crown, and did not pass in a grant of the king 
 under the general designation of lands or mines, but it assumes that 
 this right of the crown — this regalian right — vested in the State. 
 " It is hardly necessary," in the language of the opinion, " at this 
 period of our history to make an argument to prove that the several 
 States of the Union, in virtue of their respective sovereignties, are 
 entitled to the jura regalia which pertained to the king at common 
 law." It is in this assumption that the error of the decision con- 
 sists. Under the general designation of jura regalia are compre- 
 hended not only those rights which pertain to the political character 
 and authority of the king, but also those rights which are incidental 
 to his regal dignity, and may be severed at his pleasure from the 
 crown and vested in his subjects. It is only to certain rights of the 
 first class that the States, by virtue of their respective sovereignties, 
 are entitled. It is to the second class that the right to the mines of 
 gold and silver belongs. 
 
 In the great case of The Queen v. The Earl of Northumberland, 1 
 Ploden, 310, which was argued before the Barons of the Exchequer 
 and all the justices of England, it was held by their unanimous 
 judgment, " that by the law all mines of gold and silver within the 
 realm, whether they be in the lands of the queen or of subjects, 
 belong to the queen by prerogative, with liberty to dig and carry 
 away the ores thereof and with other such incidents thereto as are 
 necessary to be used for the getting of the ore;" and also, " that 
 a mine royal, either of base metal containing gold or silver or of 
 pure gold and silver only, may, by the grant of the king, be severed 
 from the crown, and be granted to another, for it is not an incident 
 inseparable to the crown, but may be severed from it by apt and 
 precise words." This case was decided in 1568, during the reign of 
 Queen Elizabeth, and continues unto this day an authoritative 
 exposition of the doctrine of the common law. It is conclusive to 
 the point that the right to the mines was not regarded by that law 
 as an incident of sovereignty, but was regarded as a personal pre- 
 rogative of the king, which could be alienated at Ids pleasure. 
 
 No reasons in support of the prerogative are stated in the resolu- 
 tion of the judges, and those advanced in argument by the queen's 
 isel would be without force at the present time. Onslow, the 
 queen's solicitor, says Plowden, " alleged three reasons why the 
 king shall have mines and ores of gold and silver within the realm,
 
 IX.] MINERALS. 377 
 
 in whatsoever land they are found. The first was, in respect to the 
 excellency of the thing, for of all things which the soil within this 
 realm produces or yields, gold and silver is the most excellent, and 
 of all persons in the realm, the king is, in the eye of the law, most 
 excellent. And the common law, which is founded upon reason, 
 appropriates everything to the person whom it best suits, as com- 
 mon and trivial things to the common people, things of more worth 
 to persons in a higher and superior class, and things most excellent 
 to those persons who excel all others; and because gold and silver 
 are the most excellent things which the soil contains, the law has 
 appointed them (as in reason it ought) to the person who is most 
 excellent, and that is the king. . . . The second reason was, 
 in respect to the necessity of the thing. For the king is the head 
 of the weal-public and the subjects are his members; and the office 
 of the king, to which the law has appointed him, is to preserve his 
 subjects, and their preservation consists in two things, viz.: in an 
 army to defend them against hostilities, and in good laws. And an 
 army cannot be had and maintained without treasure, for which 
 reason some authors, in their books, call treasure the sinews of war; 
 and, therefore, inasmuch as God has created mines within this 
 realm, as a natural provision of treasure for the defense of the 
 realm, it is reasonable that he who has the government and care of 
 the people, whom he cannot defend without treasure, should have 
 the treasure wherewith to defend them. . . . The third reason 
 was, in respect of its convenience to the subjects in the way of 
 mutual commerce and traffic. For the subjects of the realm must, 
 of necessity, have intercourse or dealing with one another, for no 
 individual is furnished with all necessary commodities, but one has 
 need of the things which another has, and they cannot sell or buy 
 together without coin. . . . And if the subject should have it 
 (the ore of gold or silver), the law would not permit him to coin it, nor 
 put a print or value upon it, for it belongs to the king only to fix the 
 value of coin, and to ascertain the price of the quantity, and to put 
 the print upon it, which being done, the coin becomes current for so 
 much as the king has limited. But if the subject should have the 
 ore of gold and silver which is found in his land, he could not con- 
 vert it into coin, nor put any print or value on it. For if he makes 
 coin, it was high treason by the common law before the statutes of 
 25th Ed., 3 Cap. 2, as it appears by 23d Ass., where a woman was 
 burnt for forging or counterfeiting money, and it was high treason 
 to the king, because he has the sole power to make money. So that 
 the body of the realm would receive no benefit or advantage if the 
 subject should have the gold and silver found in mines in his lands;
 
 378 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 but, on the other hand, by appropriating it to the king, it tends to 
 the universal benefit of all the subjects in making their king able to 
 defend them with an army against all hostilities; and when he has put 
 the print and value upon it, and has dispersed it among his subjects, 
 they are thereby enabled to carry on mutual commerce with one 
 another, and to buy and sell as they have occasion, and to traffic at 
 their pleasure. Therefore, for these reasons, viz., for the excel- 
 lency of the thing, and for the necessity of it, and the convenience 
 that will accrue to the subjects, the common law, which is no other 
 than pure and tried treason, has appropriated the ore of gold and 
 silver to the king in whatever land it be found." 
 
 It would be a waste of time to show that none of the reasons thus 
 advanced in support of the right of the crown to the mines can avail 
 to sustain any claim of the State to them. The State takes no prop- 
 erty by reason of " the excellency of the thing," and taxation fur- 
 nishes all the requisite means for the expense of government. The 
 convenience of citizens in commercial transactions is undoubtedly 
 promoted by a supply of coin, and the right of coinage appertains 
 to sovereignty. But the exercise of this right does not require the 
 ownership of the precious metals by the State, or by the federal 
 government, where this right is lodged under our system, as the 
 experience of every day demonstrates. 
 
 The right of the crown, whatever may be the reasons assigned for 
 its maintenance, had in truth its origin in an arbitrary exercise of 
 power by the king, which was at the time justified on the ground 
 that the mines were required as a source of revenue. The same 
 regalian right was recognized on the continent, as in England, and 
 of its origin, Gamboa in his commentary on the mining ordinances 
 of Philip II. thus speaks: " Upon the breaking up of the Roman 
 Empire, the princes and States which declared themselves independ- 
 ent, appropriated to themselves those tracts of ground in which 
 nature has dispensed her most valuable products with more than 
 ordinary liberality, which reserved portions or rights were called 
 rights of the crown. Among the chief of the valuable products are 
 the metallic ores of the first class, as those of gold and silver, and 
 other metals proper for forming money, which it is essential for 
 reigns to be provided with in order to support their warlike 
 armaments by sea and land, to provide for the public necessities, 
 and to maintain the good government of their dominions." 
 
 It follows from the views we have thus expressed, that the first 
 position advanced by the defendants cannot be sustained; that the 
 gold and silver which passed by the cession from Mexico were not 
 held by the United States in trust for the future State; that the
 
 IX.] MINERALS. 379 
 
 ownership of them is not an incident of any right of sovereignty; 
 that the minerals were held by the United States in the same man- 
 ner as they held any other public property which they acquired from 
 Mexico; and that their ownership over them was not lost, or in any 
 respect impaired by the admission of California as a State. 
 
 The second position of the defendants is, that if the minerals did 
 not vest in the State by her admission into the Union, they remained 
 the property of the United States notwithstanding their patents to 
 the Fernandez and to Fremont. This position is not based upon 
 any language of the patents; for it is admitted that their terms of 
 grant would operate in case of a conveyance of an individual, to pass 
 all the interest which the grantor could possess in the land. It is 
 based upon the supposition that as the Act of March 3d, 185 1, pro- 
 vides for the recognition and confirmation of the rights acquired by 
 the grants from Mexico, the patents were only intended as evidence 
 on the part of the United States of such recognition and confirma- 
 tion. By those grants, as we have seen, no interest in the minerals of 
 gold and silver passed to the grantees, and if the patents amount only 
 to an acknowledgment of the rights derived from the former govern- 
 ment, that interest still remains in the United States. This view of 
 the patents is not justified by any provisions of the act. The object 
 of the act is to " ascertain and settle " private land claims in Califor- 
 nia. * * * " For all claims finally confirmed," reads the act, 
 " by the said commissioners, or by the said District of Supreme 
 Court, a patent shall issue to the claimant upon his presenting to 
 the general land office an authentic certificate of such confirmation, 
 and a plot or survey of the said land, duly certified and approved by 
 the surveyor-general of California." 
 
 There is nothing in the act restricting the operation of the pat- 
 ents thus issued to the interests acquired by claimants from the for- 
 mer government, or distinguishing the patents in any respect from 
 the general class of conveyance made, under that designation, by 
 the United States. To all claimants alike, whose claims have been 
 finally confirmed, patents are to issue without words of reservation 
 or limitation, with the exception that they shall not affect the inter- 
 ests of third persons, an exception which would exist independent 
 of its legislative recognition. Such being the case, the question 
 arises as to what passed by the patents to the Fernandez and to Fre- 
 mont, and to this question there can be but one answer: all the 
 interest of the United States, whatever it may have been, in every- 
 thing connected with the soil, in everything forming any portion of 
 its bed or fixed to its surface, in everything which is embraced 
 within the signification of the term land, and that term, says Black-
 
 380 CONSTITUENTS AND INCIDENTS OF LAND. [PT. II. CH. II. 
 
 stone, " includes not only the face of the earth, but everything 
 under it or over it. And, therefore," he continues, " if a man 
 grants all his lands, he grants thereby all his mines of metal, and 
 other fossils, his woods, his waters, and his houses, as well as his 
 fields and meadows." Book II. 19. Such is the view universally 
 entertained by the legal profession as to the effect of a patent from 
 the general government. The United States occupy, with refer- 
 ence to their real property within the limits of the State, only the 
 position of a private proprietor, with the exception of exemption 
 from State taxation, and their patent of such property is subject to 
 the same general rules of construction which apply to conveyances 
 of individuals. From the operation of conveyances of this nature, 
 that is, of individuals, the minerals of gold and silver are not 
 reserved unless by express terms. They pass with the transfer of 
 the soil in which they are contained. And the same is true of the 
 operation of the patent — the instrument of transfer of the govern- 
 mental proprietor, the United States; no interest in the minerals 
 remains in them without a similar reservation. Nor is there any- 
 thing in the language of the Supreme Court, in the opinion rendered 
 in the Fremont Case, which gives countenance to any other view. 
 The attorney-general of the United States objected to the confir- 
 mation of the claim of Fremont upon the ground that the grant of 
 Alvarado contained mines of gold and silver. His argument was to 
 this effect: that as the mines did not pass to the grantee by the 
 Mexican law, the claim should not be confirmed, as Fremont would 
 obtain as a consequence of such confirmation a patent which would 
 pass the minerals, to which, by the original grant, he was not 
 entitled. But to this the court replied that, under the mining laws 
 of Spain, the discovery of a mine of gold and silver did not destroy 
 the title of the individual to the land granted, and that the only 
 question before the court was the validity of the title; and whether 
 there were any mines in the land, and if there were any, what were 
 the rights of sovereignty in them were questions which must be 
 decided in another form of proceeding, and were not submitted to 
 the jurisdiction of the commissioners or the court by the act of 
 185 1 ; in other words, the court said, in substance, that its considera- 
 tion was confined to the title presented, and the effect of its decree 
 ami the patent following it upon the ownership of the minerals was 
 a matter with which it had nothing to do. 
 
 The construction .^iven by the United States to their patents ever 
 gince the organization of the government, has uniformly been to 
 the same effe< 1. In several of the States, particularly those carved 
 out of the territories ceded by Virginia, North Carolina, and
 
 IX. J MINERALS. 38 1 
 
 Georgia, and out of the territory acquired by the treaty with France 
 in 1803, and by the treaty with Spain in 1819, the title to a large 
 portion of the lands is held under patents from the United States. 
 Some of these patents were issued upon a sale of lands; some of 
 them upon a donation of lands; and some of them upon a confirma- 
 tion by boards of commissioners of previously existing grants of the 
 former governments. They were issued to extensive tracts in the 
 territories of Louisiana, Mississippi, and Florida, and in many 
 cases, they embraced lands in which minerals of gold and silver and 
 other metals existed. Yet in no instance, whether the patents were 
 issued upon a sale or donation of lands, or upon a confirmation of a 
 previously existing grant, have the United States asserted any right 
 to the mines as being reserved from the operation of the patents. 
 They have uniformly regarded the patent as transferring all inter- 
 ests which they could possess in the soil, and everything imbedded in 
 or connected therewith. Whenever they have claimed mines, it has 
 been as part of the lands in which they were contained, and when- 
 ever they have reserved the minerals from sale or other disposition, 
 it has only been by reserving the lands themselves. It has never 
 been the policy of the United States to possess interests in land in 
 connection with individuals. 
 
 Judgment affirmed. 1 
 
 'In some of the States the English rule is followed. See Gold Hill Quartz 
 Mining Co. v. IsA, 5 Oregon, 104 (1873). In New York the rights of the State 
 to precious metals is asserted by the Legislature. N. Y. Public Lands Law, 
 Chap. 317, 1094, §§ 80-85. — Ed
 
 PART III. 
 Of the Use and Profits of Land. 
 
 CHAPTER I. 
 Use by the General Owner in Possession. 
 I. General restrictions on such use. 
 
 i. The Maxim "sic utere tuo ut alienum non ljbdas." 
 
 BISHOP v. BANKS. 
 
 33 Connecticut, 118. — 1865. 
 
 Petition for an injunction against the keeping of a slaughter- 
 house on lands of respondent near the dwelling of the petitioner. 
 The case was reserved for the advice of this court. 
 
 Park, J. — The respondent has successfully answered all the 
 claims of the petitioner for a continuance of the injunction, with 
 but one exception, and that is, in relation to the bleating of calves 
 kept upon the premises for slaughter. We think the facts found by 
 the court below upon this subject are sufficient to require the inter- 
 position of the court to prevent its continuance. It is found that 
 the annoyance to the petitioner, proceeding from this cause, was so 
 great at times as to drive him and his family from the occupancy of 
 that part of his house nearest to the premises of the respondent. 
 The court presents an extreme case of the kind — one that will con- 
 stitute a nuisance, if a nuisance can be produced from such cause. 
 In the cases of Whitney v. Bartholomew, 21 Conn. 213, and of Brown 
 &° Brothers v. Illiiis, 27 Id. 84, this court distinctly recognize the 
 doctrine that a nuisance maybe produced by offensive sounds in the 
 prosecution of business lawful per sc. The same doctrine is held in 
 the case of Soltau v. De Held, 9 Eng. L. & Eq. R. 104, where an 
 injunction was granted to restrain the ringing of church bells by a 
 Roman Catholic community, although they were rung only upon the 
 Sabbath. They were located so near a person's residence that his 
 p< a< e and quiet were greatly disturbed. If sounds of such a char- 
 a< ter and so made can be sufficient to constitute a nuisance, how 
 <.iii it be questioned in the case under consideration? 
 
 1 382]
 
 II. i.] SPECIAL RESTRICTIONS ON USE. 383 
 
 It is difficult to conceive of any noise more destructive to the 
 comfort and happiness of a family than the constant wailing of ani- 
 mals in distress in the immediate vicinity of their residence. 
 Enjoyment under such circumstances would require nerves of brass 
 and a heart of steel. But it is unnecessary to pursue this subject, 
 for reason and law harmonize in declaring that the conduct of the 
 respondent in this particular is unlawful and wrong. He should 
 remember the maxim sic utere tuo ut alienum non Icedas, and conduct 
 accordingly. 
 
 The remaining claims urged by the petitioner for a continuance of 
 the injunction are not supported by the allegations of his bill and 
 we do not therefore consider them. 
 
 We advise the Superior Court to so modify the injunction that 
 the respondent may be allowed to prosecute his business, but to 
 prevent the bleating of calves and the raising of offensive smells to 
 the annoyance of the petitioner. 
 
 II. Special restrictions on such use of land. 
 
 1. Conditions and Limitations Forbidding Certain Uses 
 Limiting to Particular Uses. 
 
 PLUMB v. TUBBS. 
 
 41 New York, 442. — 1869. 
 
 Ejectment to recover the possession of land on account of the 
 breach of a condition subsequent contained in the deed from plain- 
 tiff. Judgment for plaintiff. Defendant appeals. 
 
 Hunt, Ch. J. — The appellant contends that the condition in the 
 deed from Plumb is invalid, as being repugnant to the nature of the 
 estate granted. He cites authorities to the effect, that a condition 
 annexed to a devise or conveyance in fee, that the devisee or pur- 
 chaser, shall not alien, is void; that a condition that the feoffee 
 shall not enjoy the land or take the profits, is void; and others of a 
 similar character. The cases cited have been recognized as sound 
 law from a very early period, and may be conceded to be based 
 upon sound principles. Wherever the condition in a deed is unlaw- 
 ful, impossible or repugnant to the nature of the estate granted, it 
 is not to be enforced. 2 Bl. Com. 156-7; Coke Lit. 206a., 206b.; 
 Bac. Abr., tit. " Condition." This condition is evidently neither 
 unlawful nor impossible. Is it repugnant to the estate gja-frte^L, 
 that its use should be restricted by preventing thereon, the sale of 
 
 
 
 •:• 

 
 - 
 
 384 USE OF LAND BY GENERAL OWNER. [PT. III. CH. I. 
 
 intoxicating liquors as a beverage? The cases in the books are 
 numerous and uniform in holding that the use of the property in 
 some directions, may be restricted. A condition that a school 
 house should not be erected on the premises, or a distillery, or a 
 blast furnace, or a livery stable, or a machine shop for iron manu- 
 facture, or a powder magazine, or a hospital, or a cemetery, have 
 been held to be valid conditions. Collins v.Marcy, 25 Conn. 242; 
 Craig v. Wells, 1 Kernan, 315; Gray v. BlancJiard, 8 Pick. 284; 
 Sperry v. Pound, 5 Ohio, 189; Nicoll v . Erie Railway Co., 2 Kern. 
 121. 
 
 The case of Colt v. Towle, in the English Chancery Appeals, so 
 late as in June, 1859, is like the one before us. The plaintiff sold a 
 piece of land to trustees of a land society, who covenanted that the 
 plaintiff should have the exclusive right of selling beer to any public 
 house erected on the land. The defendant, a member of the soci- 
 ety, acquired a portion of the land with notice of the covenant, and 
 erected on it a public house, which he supplied with his own beer. 
 The plaintiff filed his bill to restrain the defendant from supplying 
 beer. It was objected: 1. That the covenant was void for uncer- 
 tainty. 2. That there was a want of mutuality. 3. That the cove- 
 nant was void as being in restraint of trade. The court held the 
 objections to be insufficient, and sustained the bill. Law Rep. Eq. 
 Series, part 10, Oct., 1869, Chancery Appeals. 
 
 It is said that a condition, which avoids a grant on account of the 
 sale of a single glass of beer, is unreasonable and absurd, and, 
 therefore, void. It is said that a condition forbidding the keeping 
 of a hotel or a saloon, where liquors are regularly sold, might be 
 valid, while one depending upon the sale of a single glass of liquor, 
 would be trifling and ridiculous, and could not be sustained. The 
 grantor in the present case, evidently belonged to that class of 
 men, who consider the habitual use of intoxicating liquors, as a seri- 
 ous evil. He was the owner of a tract of land, which as I infer from 
 the case, he purposed to have formed into a town or village, by the 
 sale of lots to individuals who should build upon them. This would 
 give to his property remaining unsold, the advantage of the 
 enhanced price, resulting from such improvement. The increase of 
 inhabitants would give to himself and family the benefits of refined 
 SO< iety. It was his opinion, as we may infer from his restrictive 
 . cyances, that intemperance was a social evil, from which he 
 desired to protect himself and his family. We may infer, in the 
 -.uii' manner, that he considered his remaining property, as more 
 valuable if located in a community where no liquor was sold as a 
 beverage, than where its use was permitted. These views and
 
 II. i.] SPECIAL RESTRICTIONS ON USE. 385 
 
 wishes cannot be pronounced unreasonable and absurd. The 
 grantor had a right to hold them, and he had a right to use his 
 property in a manner that would accomplish them. 
 
 Few men would object to the sale of a single glass of liquor as a 
 beverage, if that were the end of it. The argument is made by the 
 grantor, that one sale or one glass leads to another, and that the 
 only way to prevent excess, is entirely to prevent its use. He 
 argues that there is no limit, which can be placed upon its sale or 
 use which will permit its moderate use, and which will insure that 
 such use shall not become immoderate. To accomplish, therefore, 
 his purpose of preventing intemperance, which he fears may reach 
 his own family; which he apprehends may increase taxation; which 
 he thinks will depreciate the value of his remaining property, he 
 determines to adopt a method, which must certainly be effectual. 
 He imposes a condition, that no intoxicating liquor in whatever 
 form, or to whatever extent, shall be sold upon the premises 
 granted. If faithfully observed, this condition would certainly 
 produce the result desired by the grantor. Whether this plan is wise 
 or unwise, is not for us to say. No man is bound by law to be 
 wise. He has a legal right to be wise or otherwise, in his own judg- 
 ment or as his own caprice may determine. It is enough here to 
 say that neither the purpose of the grantor nor his mode of accom- 
 plishing it can be pronounced unreasonable or absurd. 
 
 The question has also been recently considered in this court, and 
 we need not go beyond that case to ascertain how the present ques- 
 tion should be decided. Gilbert v. Peteler, 38 N. Y. R. 165. In 
 that case John C. Green paid the consideration money to one Davis, 
 for the purchase of certain premises, which, at his request, were 
 conveyed to one Bartlett, Green also owning other premises near 
 by. Bartlett and wife" afterward conveyed to Samuel M. Fox, the 
 latter covenanting not to erect, or suffer to be erected, any building 
 or structure, whereby the view or prospect of the bay from any part 
 of the dwelling-house of Green, should be obstructed or impaired. 
 In case of breach, the premises were to be forfeited to Green, his 
 heirs or assigns. After several intermediate conveyances, the title 
 passed to the plaintiff, who contracted to sell and convey them to 
 the defendant, the latter being required immediately to expend 
 $20,000 on improvements. The defendant expended $23,831 in 
 improvements upon the premises, then refused to complete his pur- 
 chase, and rescinded and demanded compensation for his improve- 
 ments, on the ground that the plaintiff could not convey a good 
 title by reason of the covenant or condition aforesaid. This court 
 held: 1st. That upon the facts above stated, the obligation not to 
 
 LAW OF PROP. IX LAND — 25
 
 386 USE OF LAND BY GENERAL OWNER. [PT. III. CH. I. 
 
 obstruct Green's view, was a condition subsequent. 2d. That it 
 was valid. 3d. That it afforded a sufficient ground for refusing to 
 accept the title. It was accordingly decreed that the contract be 
 rescinded, and that the defendant recover the value of the improve- 
 ments made by him. 
 
 This case is decisive of the principal question before us. 
 
 The appellant contends also, that he is relieved from this condi- 
 tion by the conveyance of the other lot from Butterfield to Ferris, 
 on the 13th of October, 1854, without restriction. By the original 
 deed, the grantee was to be relieved from the condition, if the 
 grantor, his heirs or assigns, " should sell other land without a 
 similar restriction, or manufacture or sell such liquor, to be used as a 
 beverage, at the said village, or permit the same to be done on any 
 other land now owned by the said Joseph Plumb, at the said 
 village." 
 
 This argument assumes, that by the conveyance from Butterfield 
 to Ferris without restriction, the latter held the land freed from the 
 condition. This is an error, the title passed from Plumb only sub- 
 ject to this condition. His deed was recorded, and the record was 
 notice of its contents (if any was needed), to every subsequent pur- 
 chaser. Whatever was contained in Ferris' deed or whatever was 
 omitted therefrom, if he violated the condition in the original deed 
 from Plumb, his title was forfeited, and Plumb could re-enter. 
 Gilbert v. Peteler, supra. This was exactly what was intended to be 
 secured to the appellant in his deed. He covenanted not to sell 
 intoxicating liquors as a beverage, but he did not intend to be thus 
 restricted if Plumb allowed others to sell. If all were thus 
 restricted, he was bound. The release was to result if lands were 
 sold to a purchaser, who should by such purchase obtain the right 
 to sell liquors on the premises. Whether the restrictions were con- 
 tained in the last deed, is not so much the point, or whether the last 
 purchaser was restricted. Ferris is thus restricted, and the appel- 
 lant is not relieved from the condition of the deed. Neither do I 
 think it certain that Butterfield is to be deemed an assignee of 
 Plumb, within the meaning of the terms of this condition. The 
 intention was to give this effect to the acts of Plumb or his heirs. 
 See Tankcrville v. IVi/igficId, 6 Eng. Com. Law R. 246. 
 
 There is no merit in the last objection, that Ferris sold one glass of 
 ale to a third party in the presence of the plaintiff. If it had been 
 stated that he had sold it with his assent, the case would have been 
 different. In some circumstances the bodily presence of the plain- 
 tiff might be evidence of an assent to the sale. In others, it would 
 have no such effect. At the most, it was evidence from which the
 
 II. 2.] SPECIAL RESTRICTIONS ON USE. 387 
 
 jury could have inferred an assent. If the defendant had desired to 
 give it such effect, he should have submitted it to the jury for their 
 decision. 
 
 It has been repeatedly held in this court, and in quite recent 
 cases, that no proof of an actual entry or demand of possession, 
 before commencing the action, was necessary. Cruger v. 
 McLawry, ante, p. 219; Hosfordw. Ballard, 39 N. Y. 147. 
 
 Judgment should be affirmed, with costs. 
 
 FIRST UNIVERSALIST SOCIETY v. BOLAND. 
 
 155 Massachusetts, 171. — 1892. 
 \_Reported herein at p. 525. ]* 
 
 2. Restrictive Covenants. 
 BLAKEMORE v. STANLEY. 
 
 159 Massachusetts, 6. — 1893. 
 
 Bill in equity to enforce restrictions contained in a deed of real 
 estate. Case reserved for the determination of this Court. 
 
 Lathrop, J. — No question is made as to the validity of the 
 restrictions in the present case, and the only question is as to their 
 interpretation. The language is, " that for ten years from January 
 1, 1891, no buildings shall be erected other than dwellings, with 
 necessary outbuildings, said dwellings to cost not less than $2,000 
 each, and all of said buildings to be not less than twenty feet from 
 the street line." 
 
 Although it is not stated in the report what the cost of the tent 
 was, yet, as the bill alleges that its cost was less than $2,000, and 
 the answer does not deny this, we assume that no question was 
 made on this point. Is, then, a tent such as is described in the 
 report and used in the manner therein set forth a building? The 
 ordinary meaning of this word, it is said by Mr. Justice Morton, in 
 Nowell v. Boston Academy of Notre Dame, 130 Mass. 209, is " a struc- 
 ture or edifice enclosing a space within its walls and usually covered 
 with a roof." The tent in question was used by the defendants to 
 live in with their families, although they did not sleep in it. It was 
 fitted up with a stove for cooking, and with other furniture. While 
 
 1 See also Congregational Society v. Stark, infra, p. 509. — Ed.
 
 388 USE OF LAND BY GENERAL OWNER. [PT. III. CH. I. 
 
 the defendants lived in their own house in another town in the win- 
 ter, the fair construction of the report is that the tent was used as a 
 dwelling at other times of the year during the daytime. Although 
 the report finds that the tent was placed temporarily on the lots, it 
 is also found that there is no intention of erecting a dwelling-house 
 soon. On these findings, a majority of the court are of opinion that 
 the tent was a violation of the terms of the restriction. 
 
 The remaining question is as to the stable. That a stable may be 
 a necessary outbuilding may be assumed. But an outbuilding is 
 something which is to be used in connection with a main building. 
 Commonwealth v. Intoxicating Liquors, 140 Mass. 287, 289. And as 
 there' was no main building of the kind called for by the terms of 
 the deed, we are of opinion that the stable in this case cannot be 
 deemed to be a necessary outbuilding. 
 
 It follows that the plaintiff is entitled to a decree directing the 
 removal of the tent and stable, and restraining the defendants from 
 using the lots in the manner in which they have been using them. 
 
 Decree accordingly. 
 
 ROWLAND v. MILLER. 
 139 New York, 93. — 1893. 
 
 Earl, J. — The main contention of the parties is over the mean- 
 ing and force of the restriction agreement. The claim of the appel- 
 lant that it simply restrains nuisances cannot be sustained, and 
 hence the numerous authorities cited by his counsel on the argu- 
 ment before us, have little or no application. If the agreement was 
 intended simply to restrain any trade or business which was/cr se a 
 nuisance, or which was carried on in such a way as to make it a 
 nuisance, then it was wholly unnecessary. The law will always, 
 upon the application of a party aggrieved, restrain and abate a pri- 
 vate nuisance. This case is not governed by the general law as to 
 nuisances, but by the force and effect of the covenants contained in 
 the agreement. 1 
 
 When the agreement was made, the parties thereto, desiring to 
 improve, protect and benefit their lots, and consulting their respect- 
 ive interests, absolutely prohibited the carrying on of certain kinds 
 ot business specified upon the lots. They determined for them- 
 selves thai those kinds of business were undesirable in the vicinity 
 of resident es, and < ovenantS restraining them can be enforced with- 
 
 1 Plaintifl and def< ndanl a< quired title to their respective lots from the same 
 • our< e and undei i imilar restrii live < ovenants. — Ed.
 
 II. 2.] SPECIAL RESTRICTIONS ON USE. 389 
 
 out any proof whatever that they are "injurious or offensive." 
 A person owning a body of land and selling a portion thereof, may, 
 for the benefit of his remaining land, impose any restrictions, not 
 against public policy, upon the land granted he sees fit, and a court 
 of equity will generally enforce them. Trustees of Columbia College 
 v. Lynch, 70 N. Y. 440; Same v. Thacher, 87 Id. 311; Hodge v. 
 Sloan, 107 Id. 244. (^ 
 
 The business carried on by the Taylor Company is not among those 
 kinds particularly specified in the agreement. 1 But the claim of the 
 plaintiff is that it is prohibited by the general clause in the agree- 
 ment as " injurious or offensive to the neighboring inhabitants." 
 This clause enlarges the scope of the agreement. It is a too nar- 
 row construction to hold that it prohibits only trades or kinds of 
 business which are nuisances/^;- se, for reasons already given, and 
 for the further reason that nearly, if not quite, all the trades and 
 business specially named are not such nuisances. Any kind of busi- 
 ness may become a nuisance by the manner in which it is carried on, 
 or from its location, and a business may be offensive to neighbor- 
 ing inhabitants and yet fall far short of being a legal nuisance, 
 which a court of equity will abate as such. 
 
 This clause in the agreement must have a reasonable construction. 
 We cannot suppose that the parties had in mind any business which 
 might be offensive to a person of a supersensitive organization, or to 
 one of a peculiar and abnormal temperament, or to the small class 
 of persons who are generally annoyed by sights, sounds and objects 
 not offensive to other people. They undoubtedly had in mind ordi- 
 nary, normal people, and meant to prohibit trades and business 
 which would be offensive to people generally, and would thus ren- 
 der the neighborhood to such people undesirable as a place of 
 residence. 
 
 It cannot be doubted that the business of the Taylor Company 
 was, within this definition, offensive to the neighboring residents. 
 People of ordinary sensibilities would not willingly live next to a lot 
 upon which such a business is carried on. An ordinary person 
 desiring to rent such a house as plaintiff's would not take her house 
 if he could get one just like it at the same rent at some other suit- 
 able and convenient place. Indeed, her house would be shunned by 
 people generally who could afford to live in such an expensive house. 
 
 The court can take judicial notice of the offensive character of 
 such a business. Judges must be supposed to be acquainted with 
 the ordinary sentiments, feelings and sensibilities of the people 
 
 'The Taylor Company was engaged in the business of embalming and 
 undertaking. — Ed.
 
 390 USE OF LAND BY GENERAL OWNER. [PT. III. CII. I. 
 
 among whom they live, and hence in this case the learned judge, 
 after the character of the business carried on by the Taylor Com- 
 pany had been proved, could have found, as matter of law, that it 
 was in violation of the restriction agreement, without any further 
 proof. It was, therefore, unnecessary for the plaintiff upon the trial 
 to call witnesses from the neighborhood to give their opinions that 
 this business was injurious and offensive. Even if such opinions 
 were erroneously received, they were unnecessary and harmless, as 
 upon the undisputed evidence as to the character of the business 
 carried on the legal conclusion of the trial judge must have been 
 the same. 
 
 But it is contended that the restriction agreement ought not in 
 this case to be enforced, because most of the lots in the block 
 between 42d and 43d streets and Madison avenue and Vanderbilt 
 avenue are no longer occupied for residences, and are devoted to 
 business purposes, and the counsel for the appellant cites as an 
 authority on this point our decision in the case of The Trustees of 
 Columbia College v. Thacher. The principles of that case are not 
 applicable to the facts of this. There it appeared that the contract 
 which the plaintiff sought to enforce was no longer of any value to 
 it, and that its enforcement would result in great damage to the 
 defendant, without any benefit to anyone. Here the plaintiff has 
 the right to occupy her house as a residence, and in such occupation 
 to have the protection of the restriction agreement. She has never 
 violated the agreement herself, or consented to or authorized or 
 encouraged its violation by others. In order to have the benefit of 
 the agreement, she is not obliged to sue all its violators at once. 
 She may proceed against them seriatim or she may take no notice of 
 the violations of the agreement by business carried on remotely from 
 her residence, and enforce it against a business specially offensive 
 to her by its proximity. This is not a case where the defendants can 
 ask for immunity in an equitable form, because others are in greater 
 or less degree also violators of the agreement. The plaintiff has 
 done nothing and omitted nothing which should authorize the occu- 
 pant of an adjoining lot, in violation of the agreement, to make her 
 residence uncomfortable and undesirable. Generally, whether an 
 equity court will refuse to restrain the violation of such an agree- 
 ment, and leave the parties to their legal remedies on account of the 
 < hanged conditions affecting the premises to which the agreement 
 relates, rests in the discretion of that court, and such discretion will 
 not be reviewed upon appeal here. The question to be determined 
 in the exercise of such discretion depends largely upon the facts, 
 and mainly whether the enforcement of the agreement would greatly
 
 II. 3-] SPECIAL RESTRICTION ON USE. 39I 
 
 harm the defendant without any substantial benefit to the plaintiff, 
 so as to make the enforcement inequitable, we cannot say, reviewing 
 all the evidence in this case, that it would be inequitable for the 
 plaintiff to enforce the agreement. 
 
 The appellant claims that the judgment is too broad in its 
 restraints. But we think all his rights are fully protected by the 
 sixth clause of the judgment, and the subsequent action of the 
 court under that clause upon the application of the Taylor Company. 
 
 The matters to which we have thus given attention cover the 
 whole ground of the appeal, and our conclusion is, that the judg- 
 ment must be affirmed, with costs. 
 
 Judgment affirmed. 
 
 3. Restriction as to Equitable Waste When There is an 
 Executory Devise Over. 
 
 TURNER v. WRIGHT. 
 
 2 De Gex, Fisher and Jones (Eng. Ch.), 234. — i860. 
 
 The Lord Chancellor. — In this case the plaintiff by his bill, 
 prayed an injunction " to restrain the cutting of any timber, or at 
 any rate of any ornamental timber," growing upon the lands devised 
 in fee to the defendant, subject to an executory devise over to the 
 plaintiff. 
 
 The decree of the vice-chancellor declared, " that the defendant 
 is entitled to fell all such timber on the devised estates as is mature 
 and fit to be cut, except such as has been planted or left standing 
 by way of ornament or shelter with reference to the occupation of 
 the mansion-house on the said devised estates; but that he is not 
 entitled to fell any unripe timber or any timber planted or left stand- 
 ing for ornament or shelter as aforesaid." 
 
 The result of the decision is, that the defendant is dispunishable 
 of legal, but not of equitable, waste. After great consideration, I 
 agree with the vice-chancellor on both questions. 
 
 As to the first, my opinion is clear and decided. The defendant 
 is tenant in fee simple, with all the incidents of such an estate, 
 although there be executory devises over in case he should die 
 without leaving issue living at the time of his decease. Not mak- 
 ing any unconscientious use of the powers belonging to him as ten- 
 ant in fee simple, why should he not reasonably exercise these 
 powers? Is there anything unconscientious or unreasonable in his 
 cutting down timber mature and fit to be cut, and not such as has
 
 392 USE OF LAND BY GENERAL OWNER. [PT. III. CH. I. 
 
 been planted or left standing by way of ornament or shelter? If we 
 are to regard the intention of the testator in such limitations, can 
 the intention be supposed to be, that the first taker, who is made 
 tenant in fee, should during the whole of his life, although he should 
 have numerous children and grandchildren, not be entitled to cut 
 down a tree upon the property, unless for his botes? In this case, 
 the presumed intention of the testator is strengthened by the first 
 executory devise over, which is for life and sans waste. He could 
 not have intended that the first taker, to whom he gave a fee, should 
 be more restricted in the management of the property than the 
 devisee over, to whom he gave only a life estate. Having given the 
 first taker a fee, he probably thought it quite unnecessary expressly 
 to make him dispunishable of waste. 
 
 So that equitable waste is not committed, the bountiful intention 
 of the testator in favor of the devisees over will be completely 
 fulfilled; for, on the happening of the contingencies limited, the 
 property will come to them in the same condition in which it would 
 have been if the testator, being a prudent man, had himself sur- 
 vived and had managed and enjoyed it till the time when the events 
 happen upon which they are entitled to enter. 
 
 The onus seems to lie upon the plaintiff to show, by authority, 
 that tenant in fee simple, subject to an executory devise over, is not 
 entitled to cut timber. It is admitted that no express decision to 
 this effect is to be found in the books, and that no instance has ever 
 yet occurred of an adult devisee in fee with an executory devise 
 over being restrained. 
 
 The plaintiff's counsel relied on dicta to be found in the reports of 
 three cases, Robinson v. Litton, 3 Atk. 209, Cru. Dig., tit. xvi., c. 7, 
 § 26; Stansfields. Habergham, 10 Ves. 273, and Wright v. Atkyns, 17 
 Ves. 255; 19 Ves. 299; 1 Ves. & Bea. 313; Turn. & Russ. 143. 
 According to Vesey, Jr., a very careful and accurate reporter, Lord 
 Eldon did say, in Stansfield v. Ha berg ham, 10 Ves. 273, " I should 
 by dissolving this injunction contradict what has been understood 
 to be the doctrine of this court; that, where there is an executory 
 devise over, even of a legal estate, this court will not permit the 
 timber to be cut down." But this doctrine is not to be found in 
 any text-writer, and it has never been acted upon. In Wright v. 
 Atkyns, 17 Ves. 255; 19 Ves. 299; 1 Ves. c\: Bea. 313; Turn. & Russ. 
 1 t 5, the power of the widow to cut down timber was only questioned 
 upon the supposition that she took no more in equity than an estate 
 for life. In Robinson v. Litton, 3 Atk. 209; Cru. Dig., tit. xvi., c. 7, 
 8 26, Lord Hardwicke was influenced by the consideration that the 
 tenant in fee simple with an executory devise over was the infant
 
 II. 3-] SPECIAL RESTRICTIONS ON USE. 393 
 
 heir of the testator, and was about to cut down timber improvi- 
 dently. The limitation was as stated by Cruise, 6 Cruise, 428, 429, 
 and the infant, though seized of the legal estate in fee, was entitled 
 to the rents and profits only until he attained twenty-one, i. e., for 
 a chattel interest. After that he was to become trustee for his sis- 
 ters; and, even according to the report in Atkyns, the circumstances 
 of the infant being a trustee for the benefit of his sisters was mainly 
 relied upon in granting the injunction. 3 Atk. 209. 
 
 Therefore, as to legal waste, I think there is no authority to out- 
 weigh the considerations which, upon principle, lead strongly to the 
 conclusion that, so far, the injunction ought to be dissolved. 
 
 Had there been a charge in the bill, supported by evidence, that 
 the cutting down of the ornamental and immature timber was mali- 
 cious, I should have entertained no doubt that this court ought to 
 interfere by injunction. Tenant in fee simple, subject to an execu- 
 tory devise over, of a mansion surrounded by timber for shelter and 
 ornament, cannot say that the property is his own; so that out of 
 spite to the devisee over, he may blow up the mansion with gun- 
 powder and make a bonfire of all the timber. The famous Raby 
 Castle Case, Vane v. Lord Barnard^ 2 Vern. 738, shows that such 
 things may not be done by tenant for life sans waste, and tenant in 
 fee with an executory devise over, actuated by malice, would not 
 have greater liberty to^destroy. 
 
 The waste which intervenes between what is denominated legal 
 waste and what is denominated malicious waste, viz., equitable 
 waste, may admit of a different consideration. But equitable waste 
 is that which a prudent man would not do in the management of his 
 own property. This court may interfere where a man unconscien- 
 tiously exercises a legal right to the prejudice of another; and 
 an act may in some sense be regarded as unconscientious if it be 
 contrary to the dictates of prudence and reason, although the actor, 
 from his peculiar frame of mind, does the act without any malicious 
 motive. The prevention of acts amounting to equitable waste may 
 well be considered as in furtherance of the intention of the testator, 
 who, no doubt, wished that the property should come to the devisee 
 over in the condition in which he, the testator, left it at his death; 
 the first taker having had the reasonable enjoyment of it, and hav- 
 ing managed it as a man of ordinary prudence would manage such 
 property were it absolutely his own. In the present case, the 
 devise being by the testator of " all his said mansion-house and 
 estate at Brattleby and North Kelsey, with the appurtenances," 
 there would be great difficulty in distinguishing for this purpose 
 between the mansion-house and the ornamental timber. Indeed,
 
 394 USE OF LAND BY GENERAL OWNER. [PT. III. GIL I. 
 
 Mr. Daniel contended that, in the absence of malice, this court could 
 not interfere to protect the mansion-house. I put to him hypotheti- 
 cally, in the course of his able argument, the supposition that a 
 mediaeval castle is devised to A. in fee, subject to an executory 
 devise over to B. in fee, and that A. from a sincere dislike of tur 
 rets and moats, and a genuine love of roses and lilies and gravel 
 walks, and believing that B. and all other sensible men must have 
 the same taste, declares that he means to throw down all the build- 
 ings and to convert the site of the castle into a flower garden, and 
 begins with setting men to strip the lead from the roof of the don- 
 jon tower. A bill being filed by B. for an injunction, would this 
 court interfere? Mr. Daniel answered: "A., acting bona fide, No." 
 Nevertheless I cannot help thinking that in spite of A,'s bona fides, 
 what A. contemplated would be in the nature of a destruction of the 
 subject devised, and would certainly be in contravention of the 
 intention of the devisor, so that B. would be entitled to an injunc- 
 tion. It may be said that this is an extreme case, but it is by an 
 extreme case that the soundness of a principle is to be tested. The 
 presence or absence of a bad motive will not alone enable us to 
 draw any satisfactory line between what is to be considered mali- 
 cious and what is to be considered equitable waste, and no line to 
 regulate the interposition of a court of equity by injunction can well 
 be drawn other than the recognized and well-established line 
 between legal and equitable waste. The application of this to the 
 facts of particular cases may sometimes be attended with difficulty; 
 but the principle on which the line is to be traced is known and 
 invariable. I am willing, with Vice-Chancellor Page Wood, to 
 accept the clew by which Lord Justice Turner, in Micklethwait v. 
 Micklethwait, i De G. & J. 504, 524, proposed to solve the diffi- 
 culty: " If a devisor or settlor occupies a mansion-house, with 
 trees planted or left standing for ornament around or about it, or 
 keeps such a mansion-house in a state for occupation, and devises 
 or settles it so as to go in a course of succession, he may reasonably 
 be presumed to anticipate that those who are to succeed him will 
 occupy the mansion-house; and it cannot be presumed that he 
 meant it to be denuded of that ornament which he has himself 
 enjoyed." However, I cannot go so far as the vice-chancellor, who 
 is reported to have added: "This reasoning obviously applies to 
 every case of an estate limited so as to go in a course of succes- 
 sion." " The tenant for life, sans waste, is as much owner of the 
 timber as the tenant in fee. Their legal rights in this respect are 
 identical." Turner v. Wright, John. 740-751. Where an estate tail 
 is < reated with successive estates tail in remainder, the estate
 
 II. 3] SPECIAL RESTRICTIONS ON USE. 395 
 
 entailed is '' limited to go in a course of succession," but a tenant in 
 tail is dispunishable of equitable as well as legal waste, because he 
 may at any time bar the entail, and give himself a pure and abso- 
 lute fee simple. Again, a tenant for life sans waste can hardly be 
 said to be as much owner of the timber as the tenant in fee; for 
 although the tenant for life (avoiding equitable waste), may fell and 
 dispose of the timber in his lifetime, were he to sell growing trees 
 they would go to the remainderman or reversioner, if not severed 
 from the soil in his lifetime; whereas, the tenant in fee might by 
 sale or conveyance give the purchaser an absolute and permanent 
 interest in the trees against all the world. Nevertheless I think 
 that the rights and liabilities of tenant for life sans waste may be 
 taken as a measure of the rights and liabilities of devisee in fee, 
 subject to an executory devise over. 
 
 The only analogy at all unfavorable to this view of the case is 
 that of tenant in tail, with the reversion in the crown, and tenant in 
 tail under an act of Parliament which precludes the barring of the 
 entail. Such tenants in tail are considered dispunishable of waste; 
 this being an incident of tenancy in tail, probably arising from the 
 power which generally subsists of barring the entail, and it not hav- 
 ing been thought fit to make an exception in respect of those rare 
 cases in which the power of barring the entail is withheld. But in 
 the Marlborough Case, 3 Madd. 498, although the court would not 
 interfere on the mere ground that the tenant in tail was prohibited 
 by statute from barring the entail; yet, having regard to the enact- 
 ment " that Blenheim House should in all times descend and be 
 enjoyed with the honors and dignities of the family." It was held 
 that the court ought to interfere not only to prevent the destruction 
 of the house, but also to protect the timber essential to the shelter 
 and ornament of the house. 3 Madd. 549. 
 
 There is an analogy which entirely accords with the distinction 
 made by the vice-chancellor in this decree between legal and equi- 
 table waste, viz., the case of " tenant in tail after possibility of 
 issue extinct," who is dispunishable of legal waste in respect of the 
 estate of inheritance which was once in him, but may be restrained 
 by injunction from committing equitable waste, this being an abuse 
 of his legal power. 
 
 For these reasons I think that the decree of the vice-chancellor, 
 as he pronounced it, should in all respects be affirmed, and that the 
 appeal must be dismissed with costs. 1 
 
 1 In Matthews v. Hudson, 81 Ga. 120 (1888) it was held that Hudson took a fee, 
 determinable upon his dying without a child or children, and the other children 
 of the testatrix were intended to take by executory devise in that event. It
 
 39^ USE OF LAND BY GENERAL OWNER. [ PT - IIL CIL L 
 
 4. Other Cases in Which General Owner May Be Responsible 
 
 as for Waste. 
 
 McKinstry, J., in McCORD v. OAKLAND QUICKSILVER 
 MINING COMPANY. 
 
 64 California, 134. — 1883. 
 
 The material questions presented are: 
 
 Does the excavation and removal of cinnabar from a quicksilver 
 mine, or the cutting of timber trees used in working the mine, by 
 one tenant constitute waste for which his co-tenants may recover 
 treble damages under section 732 of the Code of Civil Procedure? 
 
 Does such excavation and cutting and conversion constitute waste 
 which should be enjoined? 
 
 Are the plaintiffs entitled to an accounting? 
 
 1. Section 732 reads: " If a guardian, tenant for life or years, 
 joint tenant or tenant in common of real property, commit waste 
 thereon, any person aggrieved by the waste may bring an action 
 against him therefor, in which action there may be a judgment for 
 treble the damages." 
 
 In Elwcll v. Burnside, 44 Barb. 447, it was said: " By the com- 
 mon law one tenant in common could not be guilty of committing 
 waste; that is, the same acts which if committed by a tenant for life 
 or years would constitute waste, would not be waste when committed 
 by a tenant in common. He was not liable to his co-tenant in an 
 action for waste, for the injury done to their common estate. As 
 he is now, however, liable by statute 1 (referring to a statute similar 
 to the section of the code above recited), to respond to his co-ten- 
 ant in this form of action, for those acts which constituted waste 
 when committed by a tenant for life or years, we must resort to the 
 common law to ascertain whether the acts complained of in this case 
 would be waste, had they been committed by a tenant for life or 
 years." 
 
 In the case now before us the quicksilver mine had already been 
 
 led when plaintiffs and defendant became tenants in common. 
 
 If, therefore, it be conceded that under the provision of our code a 
 
 irsfrom the bill that Hudson had sold off large parcels to his co-defendants 
 and thai they were committing acts of irreparable waste on the land, stripping 
 off tin- timber " which was one of the greatest elements of value of the land." 
 The Court say: "It is conceded that if Hudson took a fee of any sort he is 
 exempt from the supervision oi chancery in respect to waste, and such 
 undoubtedly is the law. We think he took .1 qualified fee." — Ed. 
 ■See N. Y. Code Civ. Pro* ., .',', 1656-1658, for the N. Y. statute. — Ed.
 
 II. 4-] SPECIAL RESTRICTIONS ON USE. 397 
 
 tenant in common is subject to the action in like circumstances as 
 is a tenant for life or years, the plaintiffs cannot recover damages as 
 for waste. "As to all tenants for life, the rule has always been 
 that the working of open mines is not waste." And a tenant for 
 life may open new pits or galleries without committing waste. Neel 
 v. Ned, 19 Pa. St. 328. A tenant for years is not guilty of waste in 
 taking ore from the mine, the sole subject of the demise, during 
 his term. That is what he pays rent for*. 
 
 It may be argued that, as between lessor and lessee for years, 
 their contract contemplates the extraction of mineral, and in case of 
 a life estate, the grantor or donor must intend that his grantee or 
 donee shall receive some benefit from his estate. But, is it not also 
 true from the very nature of mining property in this state, valuable 
 only because of the mineral it is supposed to contain, that each of 
 the co-tenants may use it in the only way it can be used? The 
 co-tenants out of possession may at any time enter into an equal 
 enjoyment of their possessions; their neglect to do so may be 
 regarded as an assent to the sole occupation of the other. This is 
 but another application of the principle announced in Pico v. Colum- 
 bet, 12 Cal. 414. True the co-tenant will not be held to assent to 
 the commission of waste by the sole occupant, but the question 
 returns, What acts done by him are waste? 
 
 It cannot be doubted that on the part of a mere trespasser it is a 
 wrong in the nature of waste to remove any ore from a mine. The 
 cases cited by appellants fully sustain this proposition. But it is 
 not a just inference that as between tenants in common the rule is 
 the same. Section 732 of the Code of Civil Procedure does not 
 relate to trespasses committed by those who have no interest in the 
 property. Nor does it define " waste " or declare what acts com- 
 mitted by a guardian, tenant for life or years, or joint tenant or 
 tenant in common, as the case may be, shall be waste. For the 
 appropriate meaning of the word, as applicable to acts done by 
 these several classes of persons, we are relegated to the principles 
 of the common law, and to various considerations of policy arising 
 out of different conditions which the common law recognizes and 
 approves. 
 
 The word " waste " is not an arbitrary term to be applied inflexi- 
 bly without regard to the quantity or quality of the estate, the 
 nature and species of the property, or the relation to it of the per- 
 son charged to have committed the wrong. As was said by Roane, J., 
 in Findlay v. Smith, 6 Munf. 134, ''in considering what is waste 
 in this country, it is to be remarked that the common law by which 
 it is regulated adapts itself in this as in other cases to the varied
 
 398 USE OF LAND BY GENERAL OWNER. [PT. III. CII. I. 
 
 situations and circumstances of the country. . . . The law on 
 this subject must be applied with reasonable regard to circum- 
 stances.' * * * 
 
 In view of the character of the property, and of plaintiff's implied 
 assent to its sole occupation by defendant for mining purposes, we 
 regard the right of the latter to the proceeds of its operations as 
 partaking of the nature of an usufruct; the appropriation of the net 
 returns as a legitimate participation of the profits, and its acts of 
 mining as not impairing or consuming the estate to any greater 
 extent than must be presumed to have been intended to be allowable 
 by each of the parties in interest. * * * 
 
 And here it may be added, applying the rule of Hi/in v. Peck, it 
 would seem each tenant in common of a mine is at least entitled to 
 take out his share of the ore. That neither of the tenants can 
 " look into the ground " may be a reason why a court of equity 
 should order an account to be taken, but ought not to operate a 
 prohibition upon the working of the mine by anybody. 
 
 2. Ought the court below to have enjoined defendant from pro- 
 ceeding with its mining ? 
 
 " In case of joint tenants in common, with respect to whose acts of 
 waste the common law has provided no remedy, courts of equity 
 will interfere when it appears that waste has been committed or 
 threatened by one tenant in common, who has become possessed of 
 the whole premises." Taylor's Landlord and Tenant, 694. This 
 general proposition may be conceded to be correctly stated, but the 
 very question here is — has waste been committed ? At the com- 
 mon law the tenant had no redress for acts of admitted waste com- 
 mitted by his co-tenant. But the latter might be restrained in 
 equity from felling ornamental trees, or from doing other things 
 amounting to wanton and destructive waste, which were called 
 "equitable waste," because allowable at law. By our statute, how- 
 ever, a tenant may recover damages of his co-tenant in every case 
 of waste. Holding as we do that the acts of defendant were not, 
 under the circumstances, wanton or destructive, or any waste, it 
 follows plaintiffs were not entitled to an injunction. 
 
 O'Neall, J., in JOHNSON v. JOHNSON. 
 
 2 Hill's Equity (S. C), 277. — 835. 
 
 I think there is no doubt that the late Dr. Garden is liable to 
 account for waste, both as tenant for life of the whole, and as ten- 
 ant in common of the remainder in fee. This is not an application
 
 II. 4-] SPECIAL RESTRICTIONS ON USE. 399 
 
 to stay waste, but for an account of whatever may have been com- 
 mitted. In general, it may be admitted that one tenant in common 
 cannot have an injunction against his co-tenant. But even between 
 them, under special circumstances, the court might grant an injunc- 
 tion. As where the waste was destructive to the estate and not 
 within the usual and legitimate enjoyment. Hole v. Thomas, 7 Ves. 
 589; Twortv. Twort, 16 Ves. 128. And, as in the case of Hawley v. 
 Clowes, 2 J. C. R. 122, where the tenant in common in possession 
 was cutting down the timber and threatening to persevere. This last 
 case carries the proposition further than I should be willing to sanc- 
 tion; it ought, I think, to be shown that the cutting down the tim- 
 ber was not necessary to the enjoyment of the estate, and would 
 greatly prejudice the interest of the co-tenant. But without dwell- 
 ing further on a view of this part of the case not necessary to the 
 decision of the point now in dispute, I will proceed to state the 
 grounds upon which the defendant is liable to an account for waste. 
 In several cases in this State it has been held that a tenant in 
 common may use the estate to the extent of his interest in it; and 
 in the case of Kerr and wife et al. v. Robertson, it was held (by my 
 brethren), that for woodland cut down and cultivated by one tenant 
 in common, he was not liable to account to his co-tenant for rent, 
 but that the remedy of the latter would be for waste. In Backler v. 
 Farrmv, ante in (at the last term in Columbia), it was held that 
 co-tenants who had cut down and worn out a portion of the land 
 much beyond their shares, were liable in equity to account for the 
 waste, and the commissioner having reported a sum certain as to 
 the value of the waste committed, the defendants were ordered 
 to pay it. These cases sufficiently show the right of the plaintiffs to 
 come here against the representatives of their intestate's co-tenant 
 for an account for the waste by him committed. * * * Where a 
 tenant in common, by cutting down and clearing woodland, beyond 
 his interest, has greatly injured the interest of his co-tenant, he 
 would be liable for waste. And so if the tenant for life cuts down 
 more woodland than is necessary for the enjoyment of his estate, 
 and has injured the remainder, he would be guilty of waste, and 
 liable to the account. It is the ultimate injury done to the rights 
 of the plaintiffs, as co-tenants or in remainder, which gives them 
 the right to complain. For if the clearing of the land had improved 
 its value to the co-tenant or remainderman, it could not be pre- 
 tended that still the co-tenant, or tenant for life, would be liable for 
 waste. 1 
 
 1 There seems to have been no statutory provision on this subject in South 
 Carolina. — Ed.
 
 400 USE OF LAND BY GENERAL OWNER. [FT. III. CH. I. 
 
 VAN PELT v. McGRAW. 
 
 4 New York, iio. — 1850. 
 
 Pratt, J. — There is no doubt but that an action on the case will 
 lie for an injury of the character complained of in this case. It 
 forms no objection to this action that the circumstances of the case 
 are novel, and that no case precisely similar in all respects has pre- 
 viously arisen. The action is based upon very general principles, 
 and is designed to afford relief in all cases where one man is injured 
 by the wrongful act of another, where no other remedy is provided. 
 This injury may result from some breach of positive law, or some 
 violation of a right or duty growing out of the relations existing 
 between the parties. 1 Cow. Treat. 3. 
 
 The defendant AfcGraw, in this case, came into the possession of 
 the land subject to the mortgage. The rights of the holder of the 
 mortgage were therefore paramount to his rights and any attempt 
 on his part to impair the mortgage as a security, was a violation of 
 plaintiff's rights. But the case is not new in its circumstances. 
 The case of Gates v. Joke, 11 Johns. 136, was precisely like the case 
 at bar in principle. That action was brought by the assignee of a 
 judgment against a person for taking down and removing a build- 
 ing from the land upon which the judgment was a lien. The plain- 
 tiff's security was thereby impaired. The court in that case sus- 
 tained the action. The decision in that case was referred to and 
 approved in Lane v. Hitchcock, 14 John. 213, and in Gardner v. 
 Heartt, 3 Denio, 234. Nor is there anything in the case of Peter- 
 son v. Clark, 15 John. 205, which conflicts with the principle of 
 these cases. That was an action by a mortgagee in the usual form 
 of an action for waste. The declaration alleged seisin in the plain- 
 tiff, upon which the defendant took issue. There was no allegation 
 that the mortgagor was insolvent or the judgment as a security 
 impaired. The only issue to be passed upon was that in relation to 
 the seisin. It is quite clear that upon such an issue the mortgagee 
 must fail. Now this action is not based upon the assumption that 
 the plaintiff's land has been injured, but that his mortgage as a 
 security has been impaired. His damages, therefore, would be lim- 
 ited to the amount of injury to the mortgage, however great the 
 i v to the land might be. It could, therefore, be of no conse- 
 . whether the injury occurred before or after forfeiture of 
 the mortgage. The action is clearly maintainable. * * * 
 
 Judgment affirmed.
 
 I. 4.] BY HOLDER OF PARTICULAR ESTATE. 4OI 
 
 BRADY v. WALDRON. 
 
 2 Johnson's Chancery (N. Y.), 148. — 1816. 
 
 [Reported herein at p. 176.] 
 
 WITMER'S APPEAL. 
 
 45 Pennsylvania State, 455. — 1863. 
 [Reported herein at p. 263.] 
 
 STATE SAVINGS BANK v. KERCHEVAL. 
 
 65 Missouri, 682. — 1877. 
 [Reported herein at p. 280.] 
 
 CHAPTER II. 
 
 Use by Tenants for Life, for Years or at Will 
 in Possession. 
 
 I. Ordinary use. 
 
 1. The Temporary Uses and Profits — Crops and Rents- 
 Emblements in General. 
 
 BABB v. PERLEY 
 
 1 Maine, 6. — 1820. 
 
 (Reported herein at p. 27.) 
 
 SARLES v. SARLES. 
 
 3 Sandford's Chancery (N. Y.), 601. — 1846. 
 
 [Reported herein at p. 450.] 
 
 LAW OF PROP. IN LAND — 26
 
 402 USE OF LAND. [PT. III. CH. II. 
 
 WHIPPLE v. FOOT. 
 
 2 Johnson (N. Y ), 418. — 1807. 
 
 Trover for a quantity of wheat in the sheaf. Defendant, the 
 sheriff of Chenango county, had levied upon the wheat while growing 
 and removed the same. After it was gathered, notwithstanding a levy 
 thereon made by plaintiff, the sheriff of Madison county, after the 
 wheat was in the sheaf, defendant sold it. Verdict for defendant 
 subject to the opinion of the court. 
 
 Thompson, J., delivered the opinion of the court. If the execu- 
 tion, under which the defendant justifies the seizure and sale of the 
 wheat growing on the ground be deemed sufficient, it is unneces- 
 sary to determine the effect of the bill of sale, which forms a dis- 
 tinct branch of the defense. The defendant, soon after receiving 
 the execution, and between the teste, and return of it, went to the 
 house of Hatch, the debtor, and levied on his personal property, 
 and particularly mentioned the wheat in the ground. This was in 
 December. In the ensuing August, when the wheat was ripe for 
 harvest, the defendant, by virtue of the execution, and with all due 
 diligence, caused the wheat to be cut, carried away and sold. The 
 fee of the land on which the wheat was sowed, belonged to one 
 Smith; and Hatch had the use of it so long only as would be suffi- 
 cient to pay him for clearing. Under these circumstances, I see 
 no valid objections against considering this property as held by this 
 execution. The wheat growing on the ground, was a chattel, and 
 as such, subject to be taken in execution. 1 Salk. 368; 1 Bos. & 
 Pul. 397; 6 East, 604; note Rob. on Frauds, 126. The defendant, 
 when he levied, took all the possession which the subject-matter 
 would permit, and it was sold as soon as it was fit to be reaped. 
 This, therefore, could not be considered as a dormant execution, 
 and coming within the operation of the rule, that if a creditor seize 
 the goods of his debtor on execution, and suffers them to remain in 
 his hands, the execution is deemed to be fraudulent, and void as 
 against a subsequent execution. Prec. in Cha. 286; 1 Vernon, 
 245; 7 Mod. 37; 2 Term, 596. The reason of this rule is stated to 
 be, that in such case there is no change of possession, and so no 
 alteration of the property. But in the case before us, the sheriff 
 took all the possession of which the chattel was susceptible. The 
 nature of the property accounts for the delay, and destroys the pre- 
 sumption of fraud, that might otherwise exist. The sheriff might, 
 perhaps, have sold the wheat while growing, and the purchaser 
 would then have been entitled to enter for the purpose of cutting
 
 I. i.] BY HOLDER OF PARTICULAR ESTATE. 403 
 
 and carrying it away. But such a sale would probably have been 
 very unfavorable, as the certainty and value of the crop could not 
 be ascertained. (Owen, 70 Vent. 222.) The mere delay, in such a 
 case, to sell until the crops should be fit for harvest, will not, of itself, 
 amount to a fraud in law; and this is the only ground on which the 
 judgment and execution, under which the defendant justifies, has 
 been impeached. The justification having been made out, the 
 defendant would be entitled to judgment, but by the provision in 
 the case, we can only direct a judgment of nonsuit to be entered. 
 
 Judgment of nonsuit. 
 
 GRAVES v. WELD. 
 5 Barnewell & Adolphus (Eng., K. B.), 105. — 1833. 
 
 Denman, C. J. — In this case the plaintiff is undoubtedly entitled 
 to emblements. The question is, whether that which is here called 
 the second crop of clover falls under that description. We think it 
 does not. 
 
 In the very able argument before us, both sides agree as to the 
 principle upon which the law gives emblements was originally estab- 
 lished. That principle was, that the tenant should be encouraged 
 to cultivate, by being sure of receiving the fruits of his labor; but 
 both sides were also agreed that the rule did not extend to give the 
 tenant all the fruits of his labor, or the right might be extended in 
 that case to things of a more permanent nature, as trees or to more 
 crops than one; for the cultivator very often looks for a compensa- 
 tion for his capital and labor in the produce of successive years. It 
 was, therefore, admitted by each, that the tenant could be entitled 
 to that species of product only which grows by the industry and 
 manurance of man, and to one crop only of that product. But the 
 plaintiff insisted that the tenant was entitled to the crop of any 
 vegetable of that nature, whether produced annually or not, which 
 was growing at the time of the cesser of the tenant's interest; the 
 defendant contended that he was entitled to a crop of that species 
 only which ordinarily repays the labor by which it is produced 
 within the year in which that labor is bestowed, though the crop 
 may, in extraordinary seasons, be delayed beyond that period. And 
 the latter proposition we consider to be the law. 
 
 It is not, however, absolutely necessary to decide this question, 
 for, assuming that the plaintiff's rule is the correct one, the crop 
 which is claimed was not the crop growing at the end of the term. 
 The last cestui que vie died in July; the barley and the clover were
 
 404 USE OF LAND. [PT. III. CH. II. 
 
 then growing together on the same land, and a crop of both, 
 together, was taken by the plaintiff in the autumn of that year, 
 though the crop of clover of itself was of little value. Thus the 
 plaintiff has had one crop; and if it were necessary, either generally) 
 or in the particular case, that the crop taken should remunerate the 
 tenant, we must observe, that though the crop of clover alone did 
 not repay the expense of sowing and preparation, the case does not 
 find that both crops together did not repay the expenses incurred in 
 raising both. The decision, therefore, might proceed on this short 
 ground; but as the more general and important question has been 
 most fully and elaborately argued, we think it right to say we are 
 satisfied that the general rule laid down by the defendant's counsel 
 is the right one. 
 
 The principal authorities upon which the law of emblements 
 depends are Littleton, section 68, and Coke's Commentary on that 
 passage. The former is as follows: " If the lessee soweth the 
 land, and the lessor, after it is sowne and before the come is ripe, put 
 him out, yet the lessee shall have the corne, and shall have free entry, 
 egresse and regresse to cut and carrie away the corne, because he 
 knew not at what time the lessor would enter upon him." Lord 
 Coke, Co. Litt. 55, a, says, " the reason of this is, for that the 
 estate of the lessee is uncertaine, and, therefore, lest the ground 
 should be unmanured, which should be hurtful to the commonwealth, 
 he shall reap the crop which he sowed in peace, albeit the lessor doth 
 determine his will before it be ripe. And so it is if he set roots or sow 
 hempe or flax, or any other annual profit, if after the same be planted, 
 the lessor oust the lessee; or if the lessee dieth, yet he or his 
 executors shall have that year's crop. But if he plant young fruit 
 trees, or young oaks, ashes, elms, etc., or sow the ground with 
 acornes, etc., there the lessor may put him out notwithstanding, 
 because they will yield no present annual profit." These authorities 
 are strongly in favor of the rule contended for by the defendant's 
 counsel; they confine the right to things yielding present annual 
 profits, and to that year's crop, which is growing when the interest 
 determines. The case of hops, which grow from ancient roots, and 
 which yet may be emblements, though at first sight an exception, 
 really falls within this rule. In Latham v. Atwood, Cro. Car. 515, 
 they were held to be " like emblements," because they were " such 
 things as grow by the manurance and industry of the owner, by the 
 making of hills, and setting poles; " that labor and expense, with- 
 out which they would not grow at all, seems to have been deemed 
 equivalent to the sowing and planting of other vegetables. Mr. 
 Cruis*- in his Diycst, I., 1 10, Ed. 3, says that this determination was
 
 I. i.] BY HOLDER OF PARTICULAR ESTATE. 405 
 
 probably on account of the great expense of cultivating the ancient 
 roots. It may be observed, that the case decides that hops, so far 
 as relates to their annual product only, are emblements; it by no 
 means proves that the person who planted the young hops would 
 have been entitled to the first crop whenever produced. 
 
 On the other hand, no authority was cited to show that things 
 which take more than a year to arrive at maturity are capable of 
 being emblements, except the case of Kingsbury v. Collins, 4 Bing. 
 202, in which teazles were held by the Court of Common Pleas to 
 be so. But this point was not argued, and the court does not 
 appear to have been made acquainted with the nature of that crop 
 or its mode of cultivation, or it may be, that in the year when the 
 plant is fit to gather, so much labor and expense is incurred as to 
 put it on the same footing as hops. We do not, therefore, consider 
 this case as an authority upon the point in question. 
 
 The note of Sergeant Hill, in 9 Vin. Abr. 368, in Lincoln's Inn 
 Library, which Mr. Gambier quoted, is precisely in point in the 
 present case, and proves that, in the opinion of that eminent lawyer, 
 the crop of clover in question does not belong to the plaintiffs. It 
 is stronger, because there the estate of the tenant is supposed to 
 determine after harvest, whereas here it determined before. 
 
 The weight of authority, therefore, is in favor of the rule insisted 
 upon by the defendant. There are, besides some inconveniences, 
 doubts, and disputes, which were pointed out in the argument, 
 which would arise if the other rule were to prevail. Is the tenant 
 to have the feeding in Autumn, besides the crop in the following 
 year? If so, he gets something more than one crop. Is he to have 
 the possession of the land for the purpose? Or is the reversioner 
 to have the feeding; and, in that case, is the reversioner to be 
 liable to an action if he omits to feed off the clover, and thereby 
 spoils the succeeding crop? These inconveniences do not arise if 
 the defendant's rule is adopted. It also prevents the reversioner 
 from being kept out of the full enjoyment of his land for a longer 
 time than a year at most; whereas, upon the other supposition, that 
 period may be extended to two or more years, according to the 
 nature of the crop. 
 
 We are, therefore, of opinion that the rule regulating emblements 
 is that which the defendant has contended for, and that for this 
 reason also he is entitled to our judgment. 
 
 Judgment for the defendant.
 
 406 USE OF LAND. [PT. III. CH. II. 
 
 WHITMARSH v. CUTTING. 
 
 10 Johnson (N. Y.), 360. — 1813 
 
 Trespass quare clausum /regit for entering plaintiff's close and 
 carrying away a quantity of wheat and rye. One Hilton had a lease 
 of the premises in question and sowed the grain during his term. 
 After the expiration of his term plaintiff leased the premises and 
 gathered the grain. Defendant justifies the trespass under an exe- 
 cution against Hilton. Verdict for defendant. Plaintiff appeals. 
 
 Per Curiam. — The verdict was clearly against law. The crop 
 sown did not belong to Hilton, but to his successor. This lease was 
 for a year certain, and then renewed for the next year; and it was 
 his folly to sow when he knew that his term would expire before he 
 could reap. The doctrine of emblements is founded entirely on the 
 uncertainty of the termination of the tenant's estate, where that is 
 certain there exists no title to emblements. Without touching any 
 other points, we are of opinion that the verdict was against law and 
 evidence, and that the judgment below must be reversed. 
 
 Judgment reversed. 
 
 CLARK v. HARVEY. 
 
 54 Pennsylvania State, 142. — 1867. 
 
 Thompson, J. — By the custom, or as it has been called, the com- 
 mon law of Pennsylvania, the tenant of a farm under a lease from 
 year to year for agricultural purposes, is entitled to the way-going 
 crop. This is the law, in view of which, such letting must be pre- 
 sumed to have been made, if nothing to the contrary be said. In 
 the case before us this implication was attempted to be rebutted by 
 proof of bad husbandry, and a manifest trespass justified by an 
 alleged breach of contract. If there were bad husbandry in the 
 case, the redress for that was by suit, and not by confiscation of 
 the tenant's rights. The one thing was no defense to the other, and 
 the learned judge was entirely within the law in charging as he did. 
 The case of Lewis v. Jones, 5 Harris, 262, referred to by the counsel 
 for the plaintiffs in error, was upon a different subject from that 
 involved in this case, and is no authority for the ground assumed in 
 the case. The jury have.- found that the plaintiffs left a fall crop in 
 the ground when they left the premises, and have estimated its 
 value in the damages given. There being a crop in the ground,
 
 I. i.] BY HOLDER OF PARTICULAR ESTATE. 407 
 
 therefore, whether good or bad, the plaintiffs had a right to it and 
 to take it away when it ripened, and this being found by the verdict, 
 and that the defendants destroyed it, there was an end of the matter. 
 
 Judgment affirmed. 
 
 STEWART v. DOUGHTY. 
 
 g Johnson (N. Y.), 108. — 1812. 
 
 Kent, Ch. J. — There are several questions raised in this case, 
 which it will be necessary to consider. 
 
 1. The first question is, whether the plaintiffs be entitled, in any 
 form of action, to recover. 
 
 The lease was determined while the crop was in the ground, and 
 it was determined by the lessor, under the provision contained in 
 the twelfth article of the agreement. The right to the emblements 
 which would otherwise exist in the lessee, as the duration of his 
 estate depended upon the will of the lessor, does not appear to be 
 controlled or affected by the special contract of the parties. In 
 case of the determination of the estate by the lessor, the contract 
 provides for compensation only, " for preparing the ground for the 
 reception of seed, or for any other extra labor." This preparation 
 of the ground for the reception of seed is not necessarily a substitute 
 for the right to the emblements, for it may apply to clearing and 
 manuring and ploughing the ground, and these acts may have taken 
 place long before seed time. The common law has established a 
 distinction in respect to this very subject of emblements and the 
 cost of ploughing and manuring the ground, so that the determina- 
 tion of an estate at will would give to the lessee his emblements, but 
 not any compensation for these improvements. He might be ousted 
 of the possession before the crop was in the ground, and wholly lose 
 the expense of ploughing and manuring the land though if he was 
 ousted afterwards he would be entitled to the emblements. Bro. 
 Abr., tit. Emblements, pi. 7, tit. Tenant, per copie de court roll, pi. 3. 
 We ought to consider the compensation intended by the article 
 for such a case as this, and not as in equivalent for the crop itself. 
 The doctrine of emblements is founded on the clearest equity and 
 the soundest policy, and ought to receive a liberal encouragement. 
 Compensation for preparing the ground for seed is not an indemnity 
 for the loss of the crop, which includes the loss of the seed, the labor 
 of sowing and nursing it, and the hopes, to the laborer and his family, 
 of a fruitful harvest. 
 
 While the crop was in the ground, and before notice to quit, it
 
 408 USE OF LAND. [PT. III. CII. II. 
 
 was sold by the sheriff under an execution against the lessee, and 
 the plaintiff became the purchaser. This was a valid sale, and the 
 purchaser became entitled to the right of ingress, etc., to gather 
 the crop. He succeeded to all the interest of the original lessee in the 
 crop sown and so the law was understood by this court in the case 
 of Whipple v. Foot, 2 Rep. 423. The subsequent act of the lessee in 
 abandoning the premises soon after notice was given, did not impair 
 or affect the purchaser's right which had already vested. Quitting 
 the premises was not injurious to the lessor. He lost no rent by it. 
 It was in furtherance of his wishes, and in obedience to his notice; 
 and if the lessee had continued in possession for the whole six 
 months, he would probably have been an injury to the farm, by pre- 
 venting its improvement the ensuing season. His prompt abandon- 
 ment of the premises was no injury, and no reason why he should 
 lose his emblements, even if we were to admit that he had it in his 
 power, by this means, to affect the purchaser's interest. The lessor 
 himself did not intend by the notice to deprive the lessee of the 
 crop already sown; for the six months would not have expired until 
 after harvest. The plaintiff, therefore, appears to have had a clear 
 right and title to the emblements at the time they were gathered by 
 the defendants. 
 
 The next question is, whether the plaintiff is entitled to recover 
 the whole or only a moiety of the crop. This will depend upon the 
 question whose property the grain was before a moiety was delivered 
 to the lessor. By the eighth article of the agreement, the lessee 
 was to " render and yield and pay to the lessor one-half of all the 
 wheat, rye, corn, and other grain raised on the farm, in each year, 
 in the bushel, after deducting the seed and also the one-half of the 
 butter and cheese," etc., and by the ninth article he was to deliver 
 such a proportion of hay, etc.. But here was a lease for five years, 
 and the articles of agreement expressly declared that Van Antwerp 
 " rented and hired, and suffered the lessee to possess and enjoy the 
 farm and gave him the quiet uninterrupted possession," etc. An 
 interest in the soil passed, and the lessee would have been entitled 
 to an action of trespass for any unlawful entry upon it; the propor- 
 tion of the production of the farm which the tenant was yearly to 
 render, was a payment of rent in kind. They were not tenants in 
 common in the crops and productions raised. The interest and 
 property in the crops was exclusively in the tenant, until he had 
 separated and delivered to the lessor his proportion. It might as 
 well be said that the lessor would have been tenant in common in the 
 < rop, though he was to receive only every tenth bushel of grain as a 
 rent. The interest in the whole crop, therefore, passed to the plaintiff.
 
 I. I.] BY HOLDER OF PARTICULAR ESTATE. 409 
 
 The only remaining question is whether the plaintiff is entitled to 
 an action of trespass quare clausum f regit for the loss of the crop. 
 As he had an exclusive interest, I think the action will lie. The 
 case of Crosby v. Wadsworth, 6 East, 602, was an action of trespass 
 quare clausum f regit, and the court of K. B. held that the action was 
 proper if the plaintiff had made out his alleged interest, which 
 was to the exclusive enjoyment of a growing crop of grass, and to 
 the right to cut and carry it away. The general language of the 
 authorities is to this effect that the grantee vestura terra or herbagii 
 terra, may maintain trespass, though he has not the soil. Co. Litt. 
 4b; Com. Dig., tit. Trespass, B. 1. There are numerous authori- 
 ties which support the general position, and which are referred to in 
 Crosby v. Wadsworth, and in 1 Chit, on Plead. 176, 177. 
 
 The court are, accordingly, of opinion that the plaintiff is entitled 
 to judgment. 
 
 BRADLEY v. BAILEY. 
 
 56 Connecticut, 374. — 1888. 
 
 Beardsley, J. — This is a complaint in trespass, in which the 
 defendants appeal from an adverse judgment in the Court of Com- 
 mon Pleas. 
 
 The material allegations of the complaint are that one John R. 
 Bradley was tenant for life of a certain tract of land, of which the 
 defendant George R. Bailey was tenant for life in remainder; that 
 John B. Bailey, in the month of April, 1885, leased the tract to the 
 plaintiff for the term of three years; that the plaintiff sowed a por- 
 tion of the tract with winter rye on the 18th of September, 1885; 
 and that John B. Bailey died on the 20th of September, 1885, and 
 that George R. Bailey and the other defendant by his direction, in 
 the month of June following plowed in and destroyed the crop of 
 rye then maturing. The truth of these allegations of the complaint 
 was admitted upon the trial except that the defendant claimed that 
 the rye was sown on the 19th instead of the 18th day of September, 
 1885, which, however, is immaterial. 
 
 The only question which we are called upon to consider arose 
 under the issue formed by the plaintiff's traverse of the second 
 answer to the complaint, the material part of which is as follows: 
 The defendants say that if the plaintiff did anything upon said prem- 
 ises on September 18th or 19th, 1885, he did the same with full 
 knowledge that said John B. Bailey was then dying ; that if he did any 
 thing it was nothing more than to harrow the soil in a hasty and
 
 4IO USE OF LAND. [PT. III. CH II. 
 
 superficial manner immediately after he had dug his crop of pota- 
 toes from the same, and to scatter a few seeds upon the same, with- 
 out having first plowed and manured the same, as is customary and 
 proper with the farmers in this state, and at an untimely season of 
 the year, and without laying the same down to grass, as is custom- 
 ary and proper; all of said acts of the plaintiff being for the purpose 
 of defrauding said George R. Bailey in his use of and right to said 
 land after the death of said John B. Bailey. 
 
 Upon the trial of this case to the jury the plaintiff, in reply to 
 inquiries made by the defendants upon cross-examination, described 
 the manner in which he prepared the ground for the crop. The 
 defendant afterward asked his own witness this question, " What is 
 the customary way of sowing rye and preparing the ground for it? " 
 The court excluded this question upon the objection of the plaintiff 
 that there was no established custom and that it was immaterial. 
 The defendants claimed the testimony to show that the land was not 
 prepared in the customary way as a part of the alleged defense. 
 This ruling of the court is assigned for error. 
 
 In support of the allegation in the answer that the plaintiff knew 
 that Bradley, the tenant for life, was dying when he sowed the crop, 
 the defendants called Dr. Webb, the physician who attended him 
 during the month of September, 1885, and who, after describing his 
 symptoms, testified that for the last week or more of his life he was 
 gradually failing every day, growing weaker and nearer to his end 
 every day, and that this was apparent to every one who had common 
 sense. 
 
 It was admitted that at the time of his death, and for several 
 months before, he resided with the plaintiff. 
 
 The defendants then offered several witnesses to testify — one, 
 that Bradley appeared to be dying on the 16th and 17th of Septem- 
 ber, when the plaintiff was present; another, that the plaintiff's 
 attention was called by him to Bradley's condition on the 18th of 
 September, 1S85; another, that the plaintiff had said on the iSth 
 and 19th of September that Bradley could not live through the 
 night; and another, that the plaintiff had said a few days before 
 Bradley's death, that he was very low. All of this evidence, except 
 the testimony of Dr. Webb, was objected to by the plaintiff and 
 excluded. The plaintiff, against the objection of the defendants, was 
 permitted to testify in contradiction of Dr. Webb, that the doctor 
 had told him, as late as the last week of Bailey's life, that " he might 
 live for quite a long time; that he might get out of it and live for a 
 year or two, and perhaps longer, and might not live so long as that." 
 
 The court charged the jury on this point as follows:
 
 I. I.] BY HOLDER OF PARTICULAR ESTATE. 411 
 
 " The question then is, did the plaintiff know for a certainty that his 
 lessor, the tenant for life of the estate, would die before he could 
 mature that crop? If we find that there was any uncertainty in 
 regard to the duration of the life of Mr. Bailey, you must find for 
 the plaintiff. If you find that the time of his death was so certain 
 that he (Bradley) had no doubt in regard to it, then your verdict 
 should be for the defendants." 
 
 The several rulings of the court and the charge to the jury 
 referred to, are assigned for error. We do not think that either of 
 them afford the defendants any ground of exception. On the con- 
 trary, we think that the charge was too favorable to the claim of the 
 defendants. It was adapted to the issue between the parties, and 
 would, perhaps, have been unobjectionable if that issue had been a 
 material one; but the issue was an immaterial one and the plaintiff 
 would have been entitled to judgment upon the conceded facts if it 
 had been found in favor of the defendants. 
 
 If it were possible for the plaintiff to have had absolute knowl- 
 edge beforehand of the time of Mr. Bailey's death, and he had 
 known that it would occur before the maturity of the crop which he 
 was planting, his right to it would not be thereby defeated. 
 
 In Co. Litt., p. 55 b., note 1, the law is thus stated: " So, there- 
 fore, if tenant for life soweth the ground and dieth, his executors 
 shall have the corn, for that his estate was uncertain and determined 
 by the act of God; and the same law is of the lessee for years of the 
 tenant for life." Blackstone says, (2 Com. 122): " Therefore, if 
 a tenant for his own life sows the land and dies before harvest, his 
 executors shall have the emblements or profits of the crop; for the 
 estate was determined by the act of God, and it is a maxim of the 
 law that actus Dei nemini facit injuriam." We are referred to no case 
 in which the exception claimed by the defendants has been made to 
 this rule during the centuries of its existence. 
 
 To hold that this right may be defeated after the tenant's death, 
 by evidence of his condition of health, or by his declarations or 
 those of his lessee imputing a belief, however well founded, or 
 knowledge, if such knowledge be possible, that his life would not 
 continue until harvest time, would in many cases subvert an import- 
 ant object of the rule, the encouragement of husbandry, and open a 
 fruitful source of unseemly litigation. A tenant in failing health, 
 especially if he had expressed a belief that his end was near, would 
 naturally hesitate to put in crops which might be successfully 
 claimed by his successor in title, or in respect to which his estate 
 might become involved in litigation. 
 
 The question asked by the defendants of a witness as to the cus-
 
 412 USE OF LAND. [PT. III. CH. II. 
 
 tomary mode of sowing rye and preparing the ground for it, was 
 properly excluded. We have shown that the plaintiff had a right to 
 sow the rye for his own use, and it was a matter of no consequence 
 to the remainderman how he did it. Nor did his right to the crop 
 depend upon his cultivating the land according to the rules of good 
 husbandry. If it was done in an unhusbandlike manner and in such 
 a way that the crop would be an inconsiderable one, it would be 
 wholly his own loss. The fact of his hurried and imperfect mode of 
 sowing the land may have been of pertinence to the question whether 
 he was in reality sowing rye or only pretending to do so. But it was 
 not offered for this purpose, but to show that he was acting in the 
 belief that the tenant for life would die in a few days. But as we 
 have already shown, this belief was of no importance. His right 
 did not depend upon the condition of the tenant for life. And he 
 would have no interest in putting any labor on the land as a matter 
 of mere pretense, as he would only lose his labor by so doing. 
 There is no error in the judgment appealed from. 
 
 MARSHALL v. MOSELEY. 
 
 21 New York, 280. — i860. 
 
 Action for money had and received by defendant to the use of 
 plaintiffs. Judgment below for plaintiffs. Defendant appeals. 
 
 Comstock, Ch. J. — Mrs. Coe, by virtue of her husband's will, 
 had a life estate in the premises, out of which the rents in question 
 accrued, and the plaintiffs owned the remainder in fee. She died 
 April 5, 1855, the leases being then unexpired. On the 1st of May, 
 following, the rents became due for the preceding quarter of a year. 
 The defendant is the executor and residuary legatee of Mrs. Coe, 
 and having collected the rents for the whole quarter, the principal 
 question in the case is, whether he is entitled to apportion them by 
 dividing the quarter into two periods of time, one before and the 
 other after her death, and by retaining in his own hands the portion 
 which accrued before that event. 
 
 As rent follows the reversionary estate, the law allows it to be 
 apportioned where that estate becomes divided amongst different 
 owners. This is according to the maxim, " accessorium sequitur 
 naturam sui principalis." Thus, if a reversion descend on the death 
 of the ancestor who gave the lease, and the coparceners or heirs 
 make a partition, the rent will be apportioned in favor of each of 
 them. So if the reversion be severed by will or even by conveyance
 
 I. I.] BY HOLDER OF PARTICULAR ESTATE. 413 
 
 of the owner, the same result will take place. 2 Piatt on Leases, 
 131, 132, and cases cited. But the same reasons never existed for 
 apportioning rent on the principle of time where the tenant was 
 bound to pay it at stated periods. The sum accruing between each 
 of the times of payment was a single entire debt, and was due only 
 on the condition precedent of the tenant being entitled to enjoy the 
 premises for the time in respect to which it was payable. If, there- 
 fore, a person having a life estate, with no power to make a lease to 
 continue longer than during his life, should make a lease for years, 
 reserving rent half yearly, and should die in the middle of a half 
 year, the rent, according to the principles of the common law, would 
 be lost for the half of a year. The executor or representative of 
 the lessor could not recover it, because by the nature of the contract 
 the lessor was not entitled to it except in the sums and at the times 
 specified in the lease. His successor in the reversionary estate could 
 not claim it for the additional reason that the reversion was not his 
 until the lease itself was terminated by the death of the life tenant 
 who gave it. If the lessee continues to hold afterwards, such hold- 
 ing is necessarily under some new contract with the party on whom 
 the estate has devolved. Woodfall's Land, and Ten. 248; 1 Salk., 
 65; 1 P.Wm. 392; 2 Id., 501, 502; 1 Man. & Gr., 589, 13 N. H., 343; 
 11 Mass., 493.' 
 
 If, however, the lease continues, although intermediate, the days 
 of payment, the reversion passes wholly into new hands; the obliga- 
 tion of the lessee to pay rent continues also. Thus, in the middle of 
 a quarter the lessor may convey the whole estate which is under the 
 lease, or it may be sold under execution or mortgage, or he may die 
 leaving it to descend to his heirs, or he may dispose of it by will. 
 The lease itself is unaffected by these events, and the rent is, there- 
 fore, payable as though they did not occur; but it is payable only in 
 the sums and at times specified in the demise. The reversion may 
 be transmitted to a new owner during a period between the days of 
 payment, but such an event does not divide the obligation of the 
 tenant. The accruing rent follows the reversion wheresoever that 
 goes, and neither the former owner nor his representative can recover 
 any portion of it. Being recoverable only in a single sum and not 
 until the prescribed day of payment, the common law gives it to him 
 who is the reversioner at that time, and no case can be found where 
 a court of equity has adopted a different rule. Says Mr. Woodfall, 
 Law of Landlord and Tenant, 248, " at common law rent cannot 
 be apportioned, but the reversioner becomes entitled to the accruing 
 rent from the rent day antecedent to the decease of the tenant for 
 1 See for present New York rule, § 192 R. P. Law. — Ed.
 
 414 USE OF LAND. [PT. III. CH. II. 
 
 life, whose representative was entitled -to the arrearages due at some 
 rent day before the death of the testator, or the intestate; for the 
 law does not apportion rent in point of time nor does equity." See, 
 also, 2 Greenleaf's Cruise, p. 116, §§ 44, 45,46, Ex parte Smyth, 1 
 Swanst. 3.37, and note, and other cases cited, supra. It is true there 
 are in the English books some cases of a peculiar kind, where on the 
 death of a tenant for life before the day of paying rent for the cur- 
 rent quarter or other period, the rent has been divided between his 
 representative and the remainderman; but these are all cases in 
 which the lease terminated on the decease of the life tenant; either 
 because he had no power to lease so as to affect the remainderman, 
 or because if such a power was given to him it had been defectively 
 executed, and the lessee, holding the premises until the rent day 
 voluntarily paid the whole to the person who succeeded to the estate. 
 
 In all the cases of this kind the lessee was not at common law 
 bound to pay at all for so much of the time since the last rent day, 
 as had elapsed before the death of the tenant for life, but having 
 conscientiously paid for the whole time, the person who took the 
 estate in remainder was held by the courts of equity to have received 
 for the use of the executor, of his life tenant, so much of the rent 
 as accrued beyond his decease. Ex parte Smyth, supra; Paget v. Gee, 
 1 Ambler, 199. In these instances the rent actually paid was 
 apportioned or divided on the principle of time; but cases of this 
 kind have no tendency to show that such an apportionment can be 
 made when the lease remains as before, notwithstanding a change 
 of parties entitled to the rents takes place intermediate the rent 
 days. The lessee on that case is bound to pay for the whole time, 
 and the reversioner, or remainderman, takes the rent as an entire 
 sum due to him by the terms of the contract. 
 
 The well ascertained rules of the common law are, therefore, 
 opposed to the claim of the defendant to retain any portion of the 
 rents received by him for the quarter during which his testator, the 
 life tenant, died. The leases were not determined by that event, 
 and the plaintiffs, who as remaindermen succeeded to the reversion, 
 were entitled to the whole of those rents. It has also been observed 
 that the courts of equity have never departed from the rule of law 
 on this subject. 
 
 It seems hardly necessary to say now that there is no legislation 
 of this State which the defendant can invoke in support of his claim. 1 
 In England, one of the rules of law in regard to apportionment of 
 rent was abrogated by an act of Parliament, passed in the reign of 
 
 1 Bui the latesl New York statute has adopted the English rule. N. Y. Code 
 Civ. Pro, .' 2720. — Ed.
 
 I. i.] BY HOLDER OF PARTICULAR ESTATE. 415 
 
 George II. That statute, 2 Geo. II., c. 19, after noticing that by 
 the existing rule rents were frequently lost, where a lessor having 
 only a life estate died before or on the day when it would be paya- 
 ble, declared that when any tenant for life should happen so to die, 
 his executor or administrator might recover the whole rent in arrear, 
 in case such death took place on the day fixed for payment, or if it 
 happened before that day then a proportion, according to time, mak- 
 ing all just allowances, etc. That legislation, with some change in 
 phraseology, has been followed in this State. Our statute, i R. L. 
 438; 1 R. S. 747, § 22, provides that when a tenant for life, who 
 shall have demised lands, shall die before the day when any rent is 
 to become due, his executors may recover " the proportion of rent 
 which accrued before his death." In the case provided for, there- 
 fore, rent can be apportioned in opposition to the rule of the com- 
 mon law, and a recovery had, where, but for the statute, the rent 
 would be lost. But the statute does not include the present case. 
 The leases in question were not given by a tenant for life, but by 
 the owner of the fee, and the disputed rent was not liable to be lost, 
 because the plaintiffs, succeeding to the reversion, could recover the 
 whole of it by action founded on the very leases themselves. The 
 English statute, like ours, was enacted to remedy the apparent 
 injustice of the rule which absolved a lessee from paying any rent, 
 where his interest was determined between the rent days by the 
 expiration of a life estate on which the lease depended. More 
 recent legislation in England has gone still further. The statute of 
 4 W. IV., c. 22, after reciting that by law rents due at fixed periods 
 were not apportionable, and after reciting the inconvenience of that 
 rule, proceeds to declare that all rents made payable at such periods 
 under any instrument executed after the passing of the act, should 
 be apportioned so that on the termination, by death or any other 
 means, of the estate of the person entitled to the rents, such person, 
 or his representative, should have a portion of such rents, according 
 to the time elapsed since the last period of payment. By a further 
 provision, the entire rent is to be received and recovered from the 
 tenant, by the person who would be entitled to recover it if the act 
 had not been passed, and is to be held by him subject to apportion- 
 ment, which can be enforced against him by suit at law, or in equity. 
 It will be seen that this statute recognizes the old rule, while it 
 declares a new one for future leases, and that it also carefully pro- 
 tects the tenant against more than one action for the entire rent. 
 We have no such legislation in this State. If we should adopt the 
 principle of that statute, in regard to apportionment, without legisla- 
 tive interference, we should not only change the existing law, but
 
 416 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 the change must be made without the protection to tenants which 
 the English statutes secures. If we declare rent to be apportionable 
 in cases like the present, it will follow, according to our rules of 
 pleading and practice, that each party entitled to a share may sue 
 the tenant to recover it. To illustrate, if the defendant has no 
 interest in the rents now in question, then he cannot retain the 
 portion in his hands. If he has an interest, then to that extent he 
 could, under our practice, recover so much as belonged to him, by 
 suit against the tenants if they had not paid these rents. And I 
 think that even a notice to the tenants of his claim to a share, would 
 take away from them their right to pay the entire sum to the persons 
 who, as remaindermen, would be entitled to the other share. To 
 conclude on this point, we find that the rule of law denying appor- 
 tionment in a case like this, has never been shaken; and whatever 
 may be the arguments founded in justice or expediency, in favor of 
 a different rule, we think those arguments should be addressed to 
 the Legislature, rather than to the courts. 
 
 The life estate and the remainder in fee, between which the 
 apportionment is claimed, were created by the will of Mr. Coe, by 
 whom the leases were given, and it has been insisted that we ought to 
 construe the will favorably to his widow, and on that ground allow the 
 apportionment to take place. But we see no room for any construc- 
 tion which will take the case out of the general rule of law. Of 
 course, the life estate given was intended by the testator as a part, and 
 perhaps the principal part, of the provision made for his widow, but 
 it was given simply as a life estate, with remainder over to the plain- 
 tiffs; and it does not appear even to have been in lieu of dower in 
 any other real estate which he may have owned. The widow became 
 entitled to the rents as incident to her life estate in the reversion; 
 but as that estate terminated between the periods for payment, the 
 rent accruing, but not yet due, became at once annexed to the 
 estate of those who succeeded her in such reversion. No part of it 
 could be severed at that point of time. To make an exception in 
 such a case, to the general rule, would be virtually to deny the 
 existence of the rule altogether. It may be well to observe that 
 rents are unlike annuities, and unlike the interest of money. They 
 issue out of land, and are a part of the land. They are less capable 
 of division, or apportionment, according to a precise measure of 
 e, because the value of the tenant's enjoyment may be quite 
 dim rent at different periods of the year, and the value, moreover, 
 may very much depend on the enjoyment for the full time specified 
 in the lease. * * * , Judgment affirmed. 1 
 
 1 Three of the eight judgi di ented; Clarke, J., wrote the dissenting opinion,
 
 I. 2.] ESTOVERS. 417 
 
 2. Estovers. 
 
 SMITH v. JEWETT. 
 
 40 New Hampshire, 530. — i860. 
 
 Bellows, J. — The plaintiffs in this case seek for relief on 
 account of waste already committed; for an injunction to stay waste 
 in the future; for a decree of forfeiture for breach of condition in 
 neglecting to maintain the plaintiff, Sarah F. Jewett; for an account 
 of the personal property received by said Nancy under the will, with 
 the income thereof, and of the real estate, and that proper decrees 
 be made to secure and preserve it for the benefit of the persons 
 interested; and also that the said Nancy, having become incapable 
 of discharging the duties of the trust, be removed, and another trus- 
 tee be appointed; the bill also prays that the said Nancy be com- 
 pelled to maintain the said Sarah, and to reimburse the sums of 
 money expended by her, the said Sarah, for her own maintenance, 
 by reason of the neglect of the said Nancy. 
 
 The position of Nancy Jewett being that of tenant for life, she is 
 entitled to take from the land a reasonable quantity of wood for 
 fuel, for the supply of herself and family upon the premises, to be 
 cut in a prudent and proper manner. She may also, we think, 
 include a reasonable supply for necessary servants employed to 
 carry on the farm, and living in the same or another house upon the 
 premises, and it can make no difference in this respect whether such 
 servants are paid by fixed wages, or by a share of the crops, as ten- 
 ants at the halves. To carry on the farm, servants may doubtless 
 be employed and reasonable fuel may be used for their suitable 
 accommodation, and it can in no wise affect the remainderman or 
 reversioner whether the persons so employed are paid by wages in 
 money or a share of the crops, the real question being whether the 
 tenant has used more than a reasonable quantity of wood for such 
 
 discussing the origin and history of the rule. After some arguments of a tech- 
 nical character, he concludes: "But I am inclined to decide this case upon 
 broader grounds; the inapplicability of the rule contended for to the condition 
 of society here, the fact that it has never been deliberately and expressly recog- 
 nized, and its obvious hardships and injustice. There is not a particle of reason, 
 founded upon abstract principles of justice, or arising from considerations of 
 convenience or policy, why rents, in cases of this nature, should not be appor- 
 tioned; and nothing but the pressure of an indubitable current of authority 
 should constrain us to recognize so anomalous and so technical a rule. When 
 I add these considerations to the manifest intention of the testator, I have no 
 hesitation in saying that the judgment of the Superior Court of Buffalo should 
 be reversed." — Ed. 
 
 LAW OF PROP. IN LAND — 27
 
 418 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 purposes. The tenant for life may lawfully assign his interest to 
 another, who will have the same rights. Fuller v. Wager, 7 N. H. 
 342. There can, therefore, be no objection in this case, that wood 
 was used by a tenant of the said Nancy Jewett. In Gardner v. 
 Decriag, 1 Paige Ch. 573, it was held that a tenant in dower may 
 take reasonable firewood not only for the house which she herself 
 occupies, but for the house of her servant who cultivates the land, 
 though living upon another tract adjoining. Tayl. Landl. & Ten., 
 sec. 352; Miles v. Miles, 32 N. H. 147; Webster v. Webster, 33 
 N. H. 19; 4 Kent Com. 80; 1 Gr. Cru. 104; Paddleford v. Paddle- 
 ford, 7 Pick. 152. 
 
 In the case before us the bill charges that the said Nancy had 
 leased the farm and part of the house to one Bean, with a right to 
 cut firewood on the farm, and that he has done so for his use, and 
 that the said Nancy has also supplied her own fire with fuel from the 
 same source at the same time. The answer denies any waste, but 
 admits the lease to Bean, alleging that the expense of hiring hands 
 to cultivate the farm was so great it was thought best so to lease it, 
 and admits also that in cold weather said Bean used wood for a 
 separate fire. But it is not alleged in the bill, nor does it appear in 
 the answer, that an unreasonable quantity was used; therefore the 
 plaintiffs are not entitled to a decree upon that ground, and so also 
 in respect to the charge of bad husbandry, which is denied by the 
 answer. 
 
 As to the prayer for a decree of forfeiture for breach of condition, 
 by neglecting to maintain the plaintiff, Sarah F. Jewett, it may be 
 regarded as an established rule that a court of equity will not 
 enforce either a penalty or a forfeiture, and therefore it is contrary 
 to the uniform course of the court to lend its aid to divest an estate 
 for breach of condition subsequent. 2 Story Eq., sees. 1315, 1319, 
 and authorities cited; Livingston v. Tompkins, 4 Johns. Ch. 431; 4 
 Kent Com. (9th ed.), 147; Story, Eq. PI., sec. 521. * * * 
 
 In regard to the application for an account of the property and 
 the income thereof, we see no occasion to decree it. Under some 
 circumstances, where there is cause to fear that the property will be 
 squandered or diverted to other than the legitimate uses, a bill with 
 proper parties and in the .nature of a bill quia timet may be main- 
 tained. But that is not the character of the proceedings here, nor 
 arc these parties entitled to an account of the income of the prop- 
 erty in the hands of the said Nancy Jewett. By the will the whole 
 property is given to the widow during her life, upon the condition 
 that she maintain the two daughters while unmarried. This gives 
 her an (state lor life in the property, both real and personal, as in
 
 I. 2.] FIXTURES AND IMPROVEMENTS. 419 
 
 Miles v. Miles, and Webster v. Webster, before cited. And the 
 estate at once, on the death of the testator, vested in her, the con- 
 dition annexed to the gift having nothing of the character of a con- 
 dition precedent. As such tenant for life she was entitled abso- 
 lutely to the income of the property and reasonable estovers; sub- 
 ject only to the charge of the maintenance of the two daughters. 
 And, on the other hand, whether the income was sufficient or not, 
 she was bound to furnish such maintenance — the property being 
 held by her upon that condition or subject to that charge — and 
 having accepted the gift, she may be compelled to comply with the 
 condition, by a resort to equ'ty or by action at law. Pickering v. 
 Pickering, 6 N. H. 120; Veasey v. Whitehouse, 10 N. H. 409. Such 
 would have been the law had the property been wholly unproduc- 
 tive. The plaintiffs, therefore, cannot compel the defendant, 
 Nancy Jewett, to come to an account of the rents and profits of the 
 estate upon any grounds disclosed in these proceedings. * * * 
 
 The bill must be dismissed. 1 
 
 3. Fixtures and Improvements. 
 
 MERRITT v. SCOTT. 
 
 81 North Carolina, 385. — 1879. 
 
 Smith, C. J. — The tract of land described in the complaint was, 
 in 1S42, conveyed by James Merritt, the owner, to his son, John 
 Merritt, in trust for another son, Francis Merritt, for life, remainder 
 to his wife, Deborah, for life or widowhood, and with a further limi- 
 tation over at her death or marriage, to the children of Francis then 
 living. John Merritt, the trustee, died intestate, leaving children, 
 who with the said Deborah are the plaintiffs in this action. The 
 life tenant, Francis, who is also dead, in his lifetime conveyed his 
 estate to one John Cox, and after his death his administrator, under 
 proceedings in the probate court and with license therefor, sold and 
 conveyed the land to the defendant, Edward Scott. The object of 
 the suit is to recover the land for the use of said Deborah, and dam- 
 ages for its detention since the death of Francis Merritt. 
 
 No issue as to title is made and in the inquiry before the jury as 
 to the damages, the defendant offered to show in support of the 
 defense set up in his answer, that valuable improvements had been 
 made on the lands both by himself and the preceding occupant, in 
 
 1 See other cases on this topic under " Waste," infra pp. . — Ed. 
 
 2 See pp. 310-338, supra. For law as to manure, pp. 338-347, supra. — Ed.
 
 420 USE OF LAND JiV PARTICULAR TENANT. [PT. III. CII. II. 
 
 the erection of useful buildings, and by ditching, fencing, and manur- 
 ing, whereby the value of the land had been greatly enhanced. The 
 evidence on objection from plaintiff was excluded, and the exception 
 to this ruling of the court is the only point presented in the appeal. 
 
 Under instructions, the jury assessed the damages from August 
 1 8th, 1S73, which we suppose to be the date of the determination of 
 the first life estate, at the rate of one hundred dollars per annum. 
 Whether these improvements or any of them were made during 
 the years for which the defendant is charged for rent, does not 
 appear. 
 
 We think it clear that improvements of any kind put upon land by 
 a life tenant during his occupancy, constitute no charge upon the 
 land when it passes to the remainderman. He is entitled to the 
 property in its improved state without deduction for its increased 
 value by reason of good management or the erection of buildings by 
 the life tenant, for the obvious reason that the latter is improving 
 his own property and for his own present benefit. This proposition 
 is too plain to need the citation of authority. 
 
 For subsequent rents and uses he is entitled to have the amount 
 reduced by those improvements. Suppose, while holding over, the 
 defendant had by such improvements as in the answer are alleged 
 to have been made, rendered the land more valuable, as it comes to 
 the remainderman, would it not be reasonable he should pay a 
 smaller rent than if nothing of the kind had been done? So if no 
 repairs were made and the buildings had gone to decay, and by mis- 
 management and bad cultivation, the farm had been abused and its 
 value impaired, a full and larger rent might justly be required of the 
 tenant. 
 
 The evidence of such improvements as were made by the defend- 
 ant, after his estate expired, and he became chargeable with rent, 
 ought to have been admitted and considered by the jury in measur- 
 ing the value of the rent, and in mitigation of damages. The evi- 
 dence was competent for this purpose only, and not, in case the 
 improvements were worth more than the rents, to constitute a 
 counterclaim for the excess. 
 
 The rule is thus stated by Mr. Tyler: " The defendant should be 
 allowed the value of his improvements made in good faith, to the 
 extent of the rents and profits claimed, and this is the view of the 
 subject which is supported by the authorities." Tyler on Eject. 849. 
 
 Referring to the action for mesne profits which might be brought 
 after a recovery in ejectment, Ruffin, C. J., uses this language: 
 
 The jury can then make fair allowances out of the rents, and to 
 their extent, for permanent improvements honestly made by the
 
 I. 2.] FIXTURES, ETC. 42T 
 
 defendant, and actually enjoyed by the plaintiff, taking into con- 
 sideration all the circumstances." Dowdv. Faucett, 4 Dev. 92. 
 
 Thus far the jury should have been allowed to hear and consider 
 the evidence, in assessing the sum which the defendant should pay for 
 the use of the premises, for it is quite apparent the improvements 
 were made in good faith and will inure to the plaintiff's benefit. 
 
 As a counterclaim and to charge the land therewith when the 
 estate in remainder is vested in Deborah, the evidence is totally 
 inadmissible under the act of February 8th, 1872. Bat. Rev. ch. 17, 
 § 262^, and the sections following. The act is not applicable to a 
 case like this, but to independent and adversary claims of title, and 
 was intended to introduce a just and reasonable rule in regard to 
 them. 
 
 The owner of land who recovers it has no just claim to anything 
 but the land itself and a fair compensation for being kept out of 
 possession; and if it has been enhanced in value by improvements 
 made under the belief that he was the owner, the increased value he 
 ought not to take without some compensation to the other. This 
 obvious equity is established by the act. But to enjoy its benefits, 
 a party after judgment must file his petition and ask to be allowed 
 for his permanent improvements, " over and above the value of the 
 use and occupation of such land." 
 
 If the court is satisfied of the probable truth of the allegation, 
 and the case is one to which the statute applies, and this must be 
 preliminarily determined, it may suspend execution and cause a jury 
 to be impaneled " to assess the damages of the plaintiff and the 
 allowance to the defendant " for his permanent improvements, " over 
 and above the value of the use and occupation of the land." 
 
 This course has not been pursued, and the evidence is offered in 
 the trial without any previous application to the judge, or his assent 
 being obtained. But having the informality, we are not prepared to 
 say the judge was in error in disallowing the evidence for the pur- 
 pose of establishing a counterclaim for the excess. The defendant 
 is entitled to have his claim for improvements made since the 
 expiration of his own estate, considered by the jury in estimating 
 the value of the rents, under appropriate instructions from the 
 court in relation thereto. For this error in wholly rejecting the evi- 
 dence there must be a venire de novo, and it is so ordered. 
 
 Venire de novo.
 
 422 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 II. General restrictions upon tenant's use. 
 
 i. The Maxim "Sic utere tuo ut alienum non laedas." 
 
 BISHOP v. BANKS. 
 
 33 Connecticut, 118. — 1S65. 
 
 [Reported herein at p. 382.]' 
 
 III. Special restrictions protecting the inheritance for general owner. 
 Waste. 
 
 1. Nature and Kinds of Waste. 
 
 a. Voluntary ivaste. 
 
 CANNON v. BARRY. 
 
 59 Mississippi, 289. — 1881. 
 
 [Reported herein at p. 433.] 
 
 b. Permissive waste. 
 
 HERNE v. BEMBOW. 
 4 Taunton (Eng. C. P., etc.), 764. — 1813. 
 
 The plaintiff declared in case in the nature of waste, and alleged 
 certain buildings in the defendant's occupation to be ruinous, pros- 
 trate, and in decay for want of needful and necessary reparations. 
 There was also a count for obstructing a way. The defendant suf- 
 fered judgment by default. The premises were demised by the 
 plaintiff to the defendant by lease, which contained no covenant to 
 repair. Upon the execution of a writ of inquiry, the under-sheriff 
 directed the jury to inquire what sum it would take to put the 
 premises into tenantable repair. The jury, however, rejected that 
 rule, and gave very small damages. 
 
 Shepherd, Sergt., now moved to set aside the inquisition, and 
 that the case might be submitted to another jury, contending that 
 the damages ought to have been the sum sufficient to enable the 
 
 1 This ( ase is an illustration of the application of the maxim to an estate in 
 fee, but ilii maxim and ili<- rules relating to the preservation of public health 
 apply as well to any mode of occupation of land. — Ed.
 
 III. i.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 423 
 
 defendant to keep up the premises in as good repair as they were 
 in when the defendant took them. 
 
 Per Curiam. — Whatever duties the law casts on the tenant, the 
 law will raise an assumpsit from him to perform, if there be no cove- 
 nant in his lease for the performance, but that is a very different 
 case from a declaration framed in tort like this. If this action 
 could be maintained, a lessor might declare in case for not occupy- 
 ing in an husbandlike manner, which cannot be. * The facts alleged 
 are permissive waste; an action on the case does not lie against a 
 tenant for permissive waste. Countess of Shrewsbury s Case, 5 Co. 13. 
 If, therefore, we were to grant this motion, the defendant would 
 meet the plaintiff in a manner he would not like. 
 
 Rule refused. 
 
 FERGUSON v. 
 
 2 Espinasse (Eng. K. B.), 590. — 1797. 
 
 Action to recover damages for suffering an house of the plaintiff 
 to be out of repair. 
 
 The case on the part of the plaintiff was, that the defendant had 
 rented an house of him, as tenant at will, at a rent of ^31 per 
 annum, which he had quitted. After the defendant had given up 
 the possession, the house was found to be very much out of repair; 
 and the plaintiff had an estimate made of the sum necessary to put 
 it into complete and tenantable repair, which sum he sought to 
 recover in the present action. 
 
 Lord Kenyon said it was not to be permitted to plaintiff to go 
 for the damages so claimed. A tenant from year to year is bound 
 to commit no waste, and to make fair and tenantable repairs, such 
 as putting in windows or doors that have been broken by him, so 
 as to prevent waste and decay of the premises; but in the present 
 case the plaintiff has claimed a sum for putting on a new roof on an 
 old worn-out house; this, I think, the tenant is not bound to do, 
 and that the plaintiff has no title to recover it. 
 
 In re CARTWRIGHT. 
 
 41 Chancery Division (Eng.), 532. — 1889. 
 
 Adjourned Summons. — John Cartwright, who died in 1850, by 
 his will, dated in that year, devised land in the county of Suffolk 
 unto and to the use of his daughter Mary Anne Cartwright and her
 
 424 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 assigns for and during the term of her natural life, and from and 
 immediately after her decease to the use of her children, if any, in 
 manner therein mentioned, and if all such children should have 
 departed this life without issue at the time of the decease of his 
 daughter and on failure of her issue, he devised the land to the de- 
 fendant Newman, his heirs and assigns, forever. The will con- 
 tained no provisions touching the liability of the testator's daughter 
 for waste. 
 
 Mary Anne Cartwright died a spinster on the 15th of December, 
 1888, and the plaintiff Avis was her executor. At the time of her 
 death the buildings, gates and fences on the devised land were in a 
 dilapidated condition, owing to the necessary repairs not having 
 been done, and the probable cost of the works necessary to place 
 the property in repair was estimated by a survey or to be ^166 12s. 
 gd. The defendant claimed this sum from the plaintiff, who, on 
 the 28th of March, 1889, took out an originating summons to have 
 it determined whether any and what sum should be allowed and 
 paid to the defendant as compensation in respect of waste suffered 
 by Mary Anne Cartwright during her estate in the premises. 
 
 At the hearing, by the direction of the court, the summons was 
 amended by claiming administration of the estate of Mary Anne 
 Cartwright. 
 
 Ingpen, for the plaintiff, stated the case. 
 IV. C. Druce, for the defendant. 
 
 As legal remainderman in fee the defendant is entitled to com- 
 pensation by way of damages for permissive waste by the deceased 
 tenant for life. No doubt it is well established that equity will not 
 interfere by injunction in cases of permissive waste by tenants for 
 life, but the question whether or not an action for damages for per- 
 missive waste can be maintained against a tenant for life upon 
 whom no express duty to repair is imposed by the instrument which 
 creates the estate, rests upon a different footing, and was treated by 
 Lush, J., in Woodhouse v. Walker, 5 Q. B. D. 404, 407, as an open 
 question. 
 
 [Kay, J.: Can you show me a case in which a court of common 
 law has given damages in such an action?] 
 
 No such case can be shown, but principle and authority are in 
 favor of the existence of such aright of action. Before the statutes 
 of Marlbridge, 52 Hen. 3, and of Gloucester, 6 Edw. 1, c. 8, though 
 an action for waste lay against a tenant in dower or by the curtesy 
 (whose estates are created by the law), it did not lie against a tenant 
 for life or years. Those statutes were passed to remedy the mis-
 
 ITI. i.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 425 
 
 chief, and Lord Coke, 2 Inst. 145, treats them as extending to per- 
 missive waste, saying: " For he that suffereth a house to decay, 
 which he ought to repaire, doth the waste;" and there are state- 
 ments in the notes to Greene v. Cole, 2 Wins. Saund. 251, to the 
 same effect. 
 
 [Kay, J.: Lord Coke's words only include permissive waste 
 where there is an obligation to repair. He says in effect that where 
 the grantor imposes the obligation to repair, it is waste to allow the 
 property to go out of repair.] 
 
 Lord Coke's meaning is that the obligation is imposed by the 
 statutes. In Harnett v. Maitland, 16 M. & W. 257, Parke, B., Ibid. 
 262, referred to the notes to Greene v. Cole as an authority that by 
 the statute of Gloucester the action was given against a lessee for 
 years. It is true that in Gibson v. Wells, 1 B. & P. N. R. 290, Sir 
 James Mansfield, C. J., expressed in general language the opinion 
 that at common law an action for permissive waste was not main- 
 tainable, but that was a case of tenancy at will, and has no applica- 
 tion to tenancy for life or years. Heme v. Bembow, 4 Taunt. 764, 
 and Jones v. Hill, 7 Ibid. 392, are also usually cited as authorities 
 to the like purport, but those three cases were commented on and 
 explained by Parke, B., in delivering the judgment of the court in 
 Vellowly v. Gower, 11 Ex. 274, 294, where he observed that in the 
 first two the court seemed to have contemplated the case only of a 
 tenant at will, and that in the last no such proposition was stated 
 as that a tenant for years was not liable for permissive waste; and 
 he added: " We conceive that there is no doubt of the liability of 
 tenants for terms of years, for they are clearly put on the same 
 footing as tenants for life, both as to voluntary and permissive 
 waste, by Lord Coke, 1 Inst. 53, Harnett v. Maitland; though the 
 degree of repairs required for a tenant from year to year, by mod- 
 ern decisions, is much limited." Yellowly v. Gower, 11 Ex. 274. 
 was decided expressly on the ground that a tenant for life is liable 
 for permissive waste, and that there is no distinction in this respect 
 between tenant for life and tenant for years. 
 
 [Kay, J., referred to Powys v. Blagrave, 4 D. M. & G. 448, and 
 in particular to the statement of the Lord Chancellor, Ibid. 458, to 
 the effect that in the case of a tenant for life even legal liability 
 for permissive waste was very doubtful.] 
 
 That is a mere dictum, and his Lordship cites the very cases which 
 are disapproved in Yellotvly v. Gower. The recent case of Barnes 
 v. Dowling, 44 L. T., N. S. 809, was decided on purely equitable 
 grounds, having no reference to the right of a legal remainderman 
 in fee to maintain an action for waste. Still more recently in
 
 426 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 Davies v. Davies, 38 Ch. D. 499, Kekewich, J., has followed Yellowly 
 v. Goiver, and expressly held that a tenant for years is liable for 
 permissive waste. 
 
 [He referred also to Bacon v. Smith, 1 Q. B. 345, Tudor's Lead- 
 ing Cases (Real Property), 3d ed., pp. 109, no, and 3 & 4 Will. 4, 
 c. 42, § 2.] 
 
 Kay, J. (Without calling upon counsel for the plaintiff): — I am 
 much obliged to you, Mr. Druce, for your argument, to which I 
 have listened with very considerable interest. The result appears 
 to be this: Sir James Mansfield was clearly of opinion that an action 
 for permissive waste would not lie even against a tenant for years. 
 That is clearly shown in the case of Gibson v. Wells, 1 B. & P. N. 
 R. 290, which was followed at later dates in Heme v. Bembow, 4 
 Taunt. 764, and Jones v. Hill, 7 Ibid. 392, and in the recent case 
 of Barnes v. Dozvling, in the Law Times reports; and when the 
 point was brought before the Lord Chancellor (Lord Cranworth) in 
 the case of Powys v. Blagrave, his Lordship, 4 D. M. & G. 458, said 
 this: " Then it was argued, independently of the trust, that it is 
 the duty of a tenant for life to repair — ' Equitas sequitur legem.' 
 But even legal liability now is very doubtful." And he referred to 
 Gibson v. Wells, 1 B. & P. N. R. 290, and Heme v. Bembow, 4 
 Taunt. 764. His Lordship there decided most certainly that in 
 equity no interference whatever would be made on the ground of 
 permissive waste by a tenant for life. Now, in that state of the 
 authorities, this consideration is to be added. Since the statutes 
 of Marlbridge and of Gloucester there must have been hundreds of 
 thousands of tenants for life who have died leaving their estates in 
 a condition of great dilapidation. Not once, so far as legal records 
 go, have damages been recovered against the estate of a tenant for 
 life on that ground. To ask me in that state of the authorities to 
 hold that a tenant for life is liable for permissive waste to a remain- 
 derman is to my mind a proposition altogether startling. I should 
 not think of coming to such a decision without direct authority 
 upon the point. Such authority as there is seems to me to be 
 against the contention, and in opposition to the positive decisions 
 in Gibson v. Wells, Heme v. Bemborc, and Jones v. Hill, 7 Taunt. 
 392, there are only to be found certain dicta of Baron Parke and the 
 late Lord Justice Lush which seems to amount to this, that the 
 words of the statutes of Marlbridge and Gloucester are sufficient to 
 include the case of permissive waste, at any rate where there is an 
 obligation on the person who has the particular estate not to permit 
 waste, whether that obligation does or does not exist at the common 
 law in the < ase of a tenant tor life-. But at the present day it would
 
 III. i.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 427 
 
 certainly require either an act of Parliament or a very deliberate 
 decision of a court of great authority to establish the law that a 
 tenant for life is liable to a remainderman in case he should have 
 permitted the buildings on the land to fall into a state of dilapida- 
 tion; I therefore think that this claim must be disallowed. 
 
 MOORE v. TOWNSHEND. 
 
 33 New Jersey Law, 284. — 1869. 
 
 Action on the case in the nature of waste to recover damages for 
 permissive waste. Verdict for the plaintiff. A rule to show cause 
 why a new trial should not be granted was allowed. The following 
 reasons were assigned, for setting aside the verdict: 1. Because an 
 action on the case will not lie against a tenant for years for permis- 
 sive waste. 2. Because the law between the parties measures and 
 limits the liability of the tenant in the matter of repairs. 
 
 Depue, J. — The action on the case, in the nature of waste, has 
 almost entirely superseded the common-law action of waste, as well 
 for permissive as for voluntary waste, as furnishing a more easy and 
 expeditious remedy than a writ of waste. It is albo an action 
 encouraged by the courts, the recovery being confined to single 
 damages, and not being accompanied by a forfeiture of the place 
 wasted. 
 
 At common law, waste lay against a tenant in dower, tenant by 
 the curtesy and guardian in chivalry, but not against lessees for life 
 or years. 2 Inst. 299, 305; Co. Litt. 54. The reason of this diver- 
 sity was, that the estates and interests of the former were created 
 by the law, and therefore the law gave a remedy against them, but 
 the latter came in by the act of the owner who might have provided 
 in his demise against the doing of waste by his lessee, and if he did 
 not, it was his negligence and default. 2 Inst. 299; Doct. & Stu., 
 ch. 1, p. 102. This doctrine was found extremely inconvenient as 
 tenants took advantage of the ignorance of their landlords, and 
 committed acts of waste with impunity. To remedy this inconve- 
 nience the statute of Marlbridge (52 Hen. 3, ch. 23), was passed. 
 But as the recompense given by this statute was frequently inade- 
 quate to the loss sustained the statute of Gloucester (6 Edw. 
 I., ch. 5), increased the punishment by enacting that the place 
 wasted should be recovered, together with treble damages. 
 1 Cruise Dig. 119, sees. 25, 26; Sackett\. Sackett, 8 Pick. 313, per 
 Parker, C. J. The statute of Marlbridge is in the following words:
 
 428 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 " Also fermors, during their terms, shall not make, waste, sale, nor 
 exile of house, woods, and men, nor of anything belonging to the 
 tenements that they have to ferm, without special license had by 
 writing of covenant, making mention that they may do it; which 
 thing, if they do and thereof be convict, they shall yield full dam- 
 age, and shall be punished by amercement grievously." 2 Inst. 
 145. The word fermer (frmarii) in this statute comprehended all 
 such as held by lease for life or lives, or for years, by deed or with- 
 out deed. 2 Inst. 145, note 1, and also devisees for life or years. 
 2 Roll. Abr. 826, L. 35. By the statute of Gloucester, " it is pro- 
 vided, also, that a man, from henceforth, shall have a writ of waste, 
 in the Chancery, against him that holdeth by law of England or 
 otherwise, for term of life, or for term of years, or a woman in 
 dower. And he which shall be attainted of waste, shall leese the 
 thing that he hath wasted, and moreover, shall recompense thrice so 
 much as the waste shall be taxed at. And for waste made in the 
 time of the wardship, it shall be done as is contained in the great 
 charter. ' ' 2 Inst. 299. At the common law, a tenant at will was pun- 
 ishable for voluntary waste but not for permissive waste. Countess 
 of Salop v. Crompton, Cro. Eliz. 777, 784; The Countess of Shrews- 
 bury's Case, 5 Rep. 14; Hartnett aud Wife v. Maitland, 16 M. & W. 
 258. Tenants in dower, by the curtesy, for life or lives, and for 
 years, were included in the statute of Gloucester. Tenants at 
 will were always considered as omitted from the statute of Marl- 
 bridge as well as from the statute of Gloucester, and, therefore, 
 continued to be dispunishable for mere permissive waste, and pun- 
 ishable for voluntary waste by action of trespass as at common law. 
 The reason of this exemption of tenants at will from liability for 
 permissive waste, was the uncertain nature of their tenure which 
 would make it a hardship to compel them to go to any expense for 
 repairs. Their exemption from the highly remedial process of 
 waste provided by the statute of Gloucester, is attributable to the 
 fact that the owner of the inheritance might at any time, by entry 
 determine the estate of the tenant, and thus protect the inheritance, 
 from spoil or destruction. 
 
 The language of the statute of Marlbridge is, " shall not make 
 (non facie nt) waste," and in the statute of Gloucester, in speaking 
 of guardians, the words used are, " he which did waste " {que avera 
 fait waste). The settled construction of these statutes in the Eng- 
 lish law until a comparatively recent period was, that they included 
 permissive waste as well as voluntary waste. In a note in exposi- 
 tion of the statute of Marlbridge, Lord Coke, in commenting on the 
 words " no/i facient" says: ' To do or make waste, in legal under-
 
 III. I.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 429 
 
 standing in this place, includes as well permissive waste, which is 
 waste by reason of omission or not doing as for want of reparation, 
 as waste by reason of commission, as to cut down timber, trees, or 
 prostrate houses, or the like; and the same word hath the statute 
 of Gloucester, ch. 5, que aver fait waste, and yet is understood as 
 well of passive as active waste, for he that suffereth a house to 
 decay which he ought to repair, doth the waste." 2 Inst. 145; 
 7 Bac. Abr. 250; 3 Bl. Com. 225; 2 Saund. 252; 4 Kent, 76. So, 
 under the prohibition to do waste, the tenant is held to be bounden 
 for the waste of a stranger, though he assented not to the doing of 
 waste. Doct. & Stu., ch. 4, p. 113; 2 Inst. 303; Fay v. Brewer, 3 
 Pick. 203; 1 Washburn R. Prop. 116. It is common learning that 
 every lessee of land, whether for life or years, is liable in an action 
 of waste to his lessor, for all waste done on the land in lease by 
 whomsoever it may be committed, per Heath, J., in Attersoll v 
 Stevens, 1 Taunt. 198, with the exception of the acts of God, public 
 enemies, and the acts of the lessor himself. White v. Wagner, 4 
 Harr. & Johns. 373; 4 Kent, 77; Heydon and Smith's Case, 13 Coke, 
 69. The instances in the earlier reports in which lessees for life or 
 years, were held liable for permissive waste, which consisted in 
 injuries resulting from acts of negligence or omission, are quite fre- 
 quent; and their liability is grounded, not on the covenants or 
 agreements in the instruments of demise, but on the statute, which 
 subjected them to the action of waste. Griffith's Case, Moore, 69, 
 No. 1S7; lb. 62, No. 173; lb. 73, No. 200; Keilway, 206; Darcy v. 
 Askivith, Hobart, 234; Glover v. Pipe, Owen, 92; 3 Dyer, 281; 2 
 Roil. Abr. 816 1, 40: 22 Win. Abr. Waste, " c " and " d," pp. 436- 
 440, 443; Co. Litt. 52a, 53/;; 5 Com. Dig. Waste, d 2, d 4; Bissett 
 on Estates, 299, 300. So uniformly had the courts determined that 
 lessees for life or years had committed waste, by the application of 
 the common-law rules, with respect to waste, whether of omission 
 or commission, that the learned commentator on English law says, 
 " that for above five hundred years past, all tenants merely for life, 
 or for any less estate, have been punishable or liable to be 
 impeached for waste, both voluntary and permissive; unless their 
 leases be made, as sometimes they are, without impeachment of 
 waste." 2 Bl. Com. 283. 
 
 This construction of the statutes of Marlbridge and Gloucester 
 continued to be received without dissent until the decision of the 
 case of Gibson v. Wells, 4 B. & P. 290, in the year 1805, which was 
 followed by the case of Heme v. Bembow, 4 Taunt. 764 (18 13). 
 These cases it is insisted have settled the construction against the 
 liability of a tenant for years for permissive waste. Gibson v. Wells,
 
 430 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 is not an authority for this position. The tenant against whom the 
 action there was brought was a tenant at will, who is not included 
 within the statutes, and who, at common law, was punishable for 
 voluntary, but not for permissive waste. In Heme v. Bembow, it 
 does not clearly appear that the lease was for a term. It is certain 
 that the opinion of the court, proceeded upon the principles appli- 
 cable to tenants at will. As the case is reported in Taunton, it 
 appears to have been decided, without argument or consideration. 
 The opinion is a per curiam opinion, and the only case cited is the 
 Countess of Shrewsbury s Case, 5 Co. 14, which was a case of a ten- 
 ancy at will. 
 
 The only subsequent case which sustains these cases is Torriano 
 v. Young, 6 C. & P. 8, a case at nisi prius. In other cases where 
 Heme v. Bembow was cited, the English courts show no disposition 
 to follow it. In Jones v. Hill, 7 Taunt. 392, Gibbs, C. J. expressly 
 guards himself against being supposed to concur in the position 
 that an action will not lie against a lessee for years for permissive 
 waste. In Martin v. Gilliam, 7 A. & E. 540, and in Beale v. Sanders, 
 3 Bing. N. C. 850, a decision of that question is avoided; and in 
 Harnett v. Maitland, 16 M. & W. 256, 261, Parke, B., on Gibson v. 
 Wells, Heme v. Bembow, and Torraino v. Young being cited, 
 intimates an opinion against those cases as necessarily involving 
 the result that a tenant for life is also dispunishable for permis- 
 sive waste. Text writers of acknowledged authority have not 
 recognized these cases as settling the law against the older cases 
 and the opinions of Coke and Blackstone, but have regarded them 
 as merely throwing a doubt upon a principle that had previously 
 been set at rest. 2 Saund. 252 b, note ij Arch. L. & T. 196, 7; 
 Smith on L. & T. 196; Comyn on L. & T. 495, and note e; 2 Bou- 
 vier's Law Diet. 645, Waste, § 14; 1 Washburn on R. Prop. 124, and 
 note 1. By other legal writers they are doubted or condemned as 
 unsound in principles. Roscoe on Real Actions, 385; Ferrard on 
 Fixtures, 278, 281, note; 1 Evans' Statutes, 193, note; Brown on 
 Parties, 257; 4 Kent, 76, 79; Elmes on Dilapidations, 257. 
 
 Independent of authority, the true construction of the statute of 
 Gloucester, leads to the conclusion that tenant for life or years, was 
 made liable for permissive as well as voluntary waste. Before either 
 this act or the statute of Marlbridge was passed, waste was recog- 
 nized in the law, as an injury to the inheritance, resulting either 
 from acts of commission or of omission. Neither of these statutes 
 created new kinds of waste, but gave a new remedy for old wastes, 
 leaving what was waste, and what not, to be determined by the 
 common law. -• Inst. 300; and by the statute of Gloucester the writ
 
 III. I.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 43 1 
 
 of waste was suable out of Chancery as well against lessee for life or 
 years, as against tenant by the curtesy, or in dower, putting the 
 former, as to the newly created remedy, on the same footing as the 
 latter. " It hath been used as an ancient maxim in the law, that 
 tenant by the curtesy, and the tenant in dower, should take the land 
 with this charge, that is to say, that they should do no waste them- 
 selves, nor suffer none to be done, and when an action of waste was 
 given after, against a tenant for term of life, then he was taken to 
 be in the same case, as to the point of waste, as tenant by the cur- 
 tesy and tenant in dower was, that is to say, that he should do no 
 waste, nor suffer none to be done." Doct. & Stu., ch. 4, p. 113. 
 No distinction can be made between lessee for life and lessee for 
 years. Both are mentioned in the statute conjointly; and each 
 derives his interest in the premises from the act of the owner of 
 the inheritance. 
 
 The second section of the act for the prevention of waste, which 
 is in force in this state (Nix. Dig., 4th ed., 1022), provides that no 
 tenant for life or years, or for any other term, shall during the term 
 make or suffer any waste, sale or destruction of houses, gardens, 
 orchards, lands, or woods, or anything belonging to the tenements 
 demised, without special license in writing, making mention that he 
 may do it. The third section is in substance the same as the stat- 
 ute of Gloucester. The act was passed in 1795. The use of the 
 words " make or suffer," in the second section, which are equiva- 
 lent to Coke's interpretation of facie nt in the statute of Marlbridge, 
 manifests an intent to adopt as the law of this state, the doctrine of 
 the English courts, as to the liability of tenants for life or years for 
 permissive waste, which was universally received at the time of the 
 passage of the act. 
 
 The second reason assigned involves the effect of the lease in this 
 action. 
 
 Premising that the act or omission, to constitute waste, must be 
 either an invasion of the lord's property, or at least be some act or 
 neglect which tends materially, to deteriorate the tenement, or to 
 destroy the evidence of its identity; (Burton's Comp. R., Prop. 411; 
 Doe ex dem. Gntbb v. Earl of Burlington, 5 B. & Ad. 507; 2 Saund. 
 259^, note . ; Pynchon v. Stearns t 11 Met. 304; 1 Washburn, R. 
 Prop. 108); and that the action is founded partly upon the common 
 law and partly upon the statute, and does not depend for its support 
 on any covenants of the tenant, 22 Viner Abr. 457, Waste M. 4; 3 
 Bl. Com. 227; Kinlyside v. Thornton, 2 W. Black, mi; Market v. 
 Kenrick, 13 C. B. 188, it is obvious that we must resort to the statute 
 for the conditions on which the tenant is excusable for the waste done.
 
 432 USE OF LAND BY PARTICULAR TENANT. [PT. III. CII. II. 
 
 There is a class of cases in which tenants have been held not to 
 be liable for waste resulting from non-repair where the lessor has 
 entered into a covenant to make the repairs for the want of which 
 the injury has happened. These cases go upon the ground that the 
 injury was caused by the lessor's own default, on which he can base 
 no right to recover. There is no such covenant in the lease now 
 under consideration. 
 
 The statute forbids waste by the tenant " without special license, 
 in writing, making mention that he may do it." The consent of the 
 landlord by parol will not be sufficient authority. McGregor v- 
 Brown, 6 Seld. 114. The words usually employed for this purpose 
 are " without impeachment of waste," but any words of equivalent 
 import will be sufficient, provided they amount to a license to do 
 the acts. The defendant, to bring himself within the statute, relies 
 on that part of the lease which relates to the re-delivery of the per- 
 sonal property leased, in connection with the stipulation giving the 
 defendant the privilege of expending a portion of the rent in each 
 year for repairs. The covenant as to the personal property is 
 entirely distinct from the obligations of the tenant, with respect to 
 the real estate. The privilege of expending a portion of the rent 
 reserved in repairs is not a license to the tenant to omit a duty put 
 upon him by the statute, growing out of the relations between the 
 parties. To construe a privilege given by the landlord to expend 
 his money in the reparation of the demised premises, as a license 
 to the tenant to omit his duty, to the spoil or destruction of the 
 inheritance, would be an entire subversion of the obvious intent of 
 the landlord. If it falls short of a license for the act complained 
 of, it does qualify or abridge the obligation of the tenant which 
 exists independent of the provisions of the lease. 
 
 It was further insisted that if any action lies, it should be an 
 action ex contractu, and not in tort. As already observed, the grava- 
 men of the action is the breach of a statutory duty. An action on 
 the case founded in tort will lie for the breach of a duty though it be 
 such as that the law will imply a promise on which an action ex con- 
 tractu may be maintained. Brunell v. Lynch, 5 B. & C. 589. To 
 the same effect are the cases of Kinlyside v. Thornton and Marker 
 v. Kenrick, already cited, in which it was held that an action on the 
 m the nature of waste will lie, although the act complained of 
 might also be the subject of an action for the breach of an express 
 covenant. 
 
 Rule discharged.
 
 III. i.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 433 
 
 CANNON v. BARRY. 
 
 59 Mississippi, 289. — 18S1. 
 
 Chalmers, C. J. delivered the opinion of the court. — The com- 
 plainants (appellants) are the children of R. L. Cannon, and claim, 
 under the deed executed by their grandfather, Rusha Cannon, to be 
 the remaindermen of the property therein conveyed for life to their 
 said father. They bring this bill against the defendant, Barry, who 
 has become the purchaser at bankrupt sale of the life estate of the 
 father, alleging that he has committed, and is cummitting, waste 
 upon the inheritance, for which they seek an account for the past 
 and an injunction for the future. * * * 
 
 R. L. Cannon, being still alive, the interest of the complainants 
 remains contingent, dependent upon the double contingency of 
 their surviving him, and of their attaining majority or marrying. 
 Hence, the bill cannot be maintained so far as it seeks an account 
 of past waste, since their interest not being vested, and it being 
 doubtful whether it will ever become so, they would have no right 
 to any recovery that might be obtained. Whether they are entitled 
 to any other relief depends upon the character of the acts done or 
 permitted by the life tenant in possession. The locus in quo con- 
 sists of twelve hundred acres of land, of which about three hundred 
 acres only are arable, the balance being swampy in character and 
 heavily timbered. When the defendant took possession, the arable 
 portion was in such condition that it was wholly unproductive for 
 the first year thereafter. By rebuilding the fences, clearing thirty or 
 forty acres additional, removing some of the tenant's cabins to 
 other locations, and building several new ones, he has brought up 
 the rental value of the place to something less than three hundred 
 dollars per annum, exclusive of the amounts expended each year in 
 making these improvements. In accomplishing these results, he 
 has freely cut and used the growing timber on the place, of which 
 there is a superabundance for this and all other purposes. In so 
 doing, as well as in removing the cabins, and perhaps in other 
 respects, he has unquestionably been guilty of that which would be 
 deemed waste under the English authorities, but which we cannot 
 pronounce to be such under the state of things existing with us, and 
 under the circumstances of this case. The condition of this country 
 and that of England are wholly dissimilar, and that which would be 
 a safe test there is altogether inapplicable here. With us, speaking 
 generally, it may be said that nothing will ordinarily be held to con- 
 stitute waste which is dictated by good husbandry, and promotes 
 
 LAW OF PROP. IN LAND — 28
 
 434 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 rather than diminishes the permanent value of the property as an 
 estate of inheritance That such has been the nature and effect in 
 the main, of the acts of the defendant, is incontestably established 
 by the testimony in the case. 
 
 He has been guilty of permissive waste in suffering the mansion 
 to go to decay, and also perhaps with respect to the orchard, but 
 courts of equity take no jurisdiction of permissive waste by a life 
 tenant. Their constant interference in such matters would render 
 the enjoyment of the life estate impossible. But the defendant has 
 also been guilty of three acts of unmistakable voluntary waste. He 
 detached from the gin-house and sold the running gear machinery 
 thereto belonging; nor does it change the character of the act that 
 it was done at the instance of the father of the complainants, who 
 received a portion of the price obtained. The father had no longer 
 any interest in the property, and was not the legal guardian of his 
 children. He has suffered the gin-house to be partially dismantled, 
 and though it was done without his knowledge, he is nevertheless 
 responsible for it. 
 
 More serious than these was his act in voluntarily permitting a 
 large body of the woodland to become forfeited to the state for 
 unpaid taxes. That the land forfeited was unproductive, that there 
 remained belonging to the estate sufficient wood to supply its wants 
 indefinitely, that the land had been overvalued by the assessor, and 
 that the defendant had tried in vain to have valuation reduced, and 
 that the board of supervisors in making the levy of county taxes had 
 exceeded the limit of their authority, afford no excuse for his 
 action. He took the estate as a whole, and was bound to so pre- 
 serve it. He cannot segregate the profitable from the unprofitable, 
 nor the sterile from the fertile, by preserving the one at the sacrifice 
 of the other. The taxes were his individual debt, and the fact that 
 they constituted a lien on both his own interests and that of the 
 remaindermen made it his duty to keep them down. While a sale 
 for taxes levied in excess of authority would by law then in force 
 have conveyed no title to the purchaser, see Gamble v. Witty, 55 
 Miss. 26, it would have cast a cloud upon the title and by enabling 
 the purchaser to add onerous damages to the amount paid, as a lien 
 on the land, see Cogburn v. Hunt, 56 Miss. 718; s. c. ,57 Miss. 681, 
 it would have added to the burden cast upon the tenants in 
 remainder. 
 
 These acts of voluntary waste call for relief. The defendant 
 should be required, within such time as the chancellor may deem 
 reasonable, to redeem or repurchase the forfeited lands, and upon 
 his failure so to do a commissioner should be appointed to sequester
 
 III. i.J SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 435 
 
 the rents, or so much of them as may be necessary for this purpose. 
 For the purpose of redeeming the lands and of hereafter keeping 
 down the taxes, the defendant will be permitted to fell timber in 
 such quantities and at such places as do not seriously impair the 
 value of the inheritance. As tenant for life he has the right to do 
 this, even for purposes of profit. Sargeant v. Towne, 10 Mass. 303. 
 Conner v. Shepherd, 15 Mass. 164. If it be true that the State has 
 no title to the forfeited lands, by reason of an invalid sale or levy of 
 taxes, an easy remedy for the defendant is found in § 569 of the 
 Code of 1S80, which provides a method of striking from the audit- 
 or's books lands improperly claimed by the state. Lastly, the 
 defendant should be enjoined from any further acts of voluntary 
 waste to the detriment of the inheritance. When the case is 
 returned to the lower court, the bill should be amended by making 
 the trustees, or the survivor of them, parties. They are clothed 
 with the legal title to the estate, and while the contingent remainder- 
 men need not wait on them for an assertion of their rights, the 
 holders of the legal title should, where it is possible, be before the 
 court. Kerr on Injunctions, 256, 267. So, also, should J. N. Can- 
 non and his children, if he has any, be made parties. They stand 
 in the same attitude as the complainants, and equally with them are 
 contingent remaindermen. It is only where the first tenant in tail 
 in esse has a vested estate of inheritance that he is held to so far 
 represent all subsequent tenants in tail as to dispense with the 
 necessity of joining them. The doctrine does not apply to a con- 
 tingent remainderman with no vested interest. Story's Eq. PL, 
 
 §§ I45- X 47- 
 
 Reversed and remanded. 
 
 UNITED STATES v. BOSTWICK. 
 
 94 United States, 53. — 1876. 
 
 Suit by Bostwick, as trustee for Lovett, to recover the rent of, 
 and for damages to, certain real estate in the District of Columbia. 
 The United States appeals from a decision in favor of plaintiff. 
 
 Mr. Chief Justice Waite delivered the opinion of the court: 
 * * * The contract is one by which Mr. Lovett agreed to let and 
 the United States to hire, the premises described for the term of 
 one year, with the privilege of three, at a rent of $500 a month, and 
 without restriction as to the use to which the property might be 
 put. The United States agree to nothing in express terms except 
 to pay rent and hold for one year.
 
 436 USE OF LAND BY PARTICULAR TENANT. [PT. III. CII. II. 
 
 But in every lease there is, unless excluded by the operation of 
 some express covenant or agreement, an implied obligation on the 
 part of the lessee to so use the property as not unnecessarily to 
 injure it, or, as it is stated by Mr. Comyn, " to treat the premises 
 demised in such manner that no injury be done to the inheritance; 
 but that the estate may revert to the lessor undeteriorated by the 
 wilful or negligent conduct of the lessee." Com. Land & Ten. 
 188. This implied obligation is part of the contract itself, as much 
 so as if incorporated into it by express language. It results from 
 the relation of landlord and tenant between the parties which the 
 contract creates. Holford v. Dunnett, 7 M. & W, 352. It is not a 
 covenant to repair generally, but to so use the property as to avoid 
 the necessity for repairs, as far as possible. Horsefall v. Mather, 7 
 Holt, 9; Brown v. Crump, 1 Marsh. 569. 
 
 There are in this contract no stipulations to take the place of or 
 in any manner restrict this implied obligation on the part of the 
 United States growing out of their relation to the petitioner as his 
 lessees. They had the free and unrestricted right to use the prop- 
 erty for any and all purposes, but were bound to so conduct them 
 selves in such use as not to cause unnecessary injury. Whatever 
 damages would necessarily result from a use for the same purpose 
 by a good tenant must fall upon the lessor. All that the relation 
 of landlord and tenant implies in this particular is, that the tenant, 
 while using the property, will exercise reasonable care to prevent 
 damage to the inheritance. His obligation rests upon the maxim 
 sic utere tuo ut alienum non hedas. If he fails in this, he violates his 
 contract, and must respond accordingly. 
 
 The United States, when they contract with their citizens, are 
 controlled by the same laws that govern the citizen in that behalf. 
 All obligations which would be implied against citizens under the 
 same circumstances will be implied against them. No lease in form 
 was ever executed in this case; but the contract, followed by the 
 delivery of possession and occupation under it, is equivalent for 
 the purposes of this action to a lease duly executed, containing all the 
 stipulations agreed upon. 
 
 Such being the agreement of the parties, it remains only to con- 
 sider the questions arising under it, as they appear in the 
 re< ord. * * * 
 
 As to the destruction of a part of the buildings by fire. There 
 was, as has been seen, no express agreement to repair in the lease. 
 I implied obligation is not to repair generally, but to so use the 
 property as to make repairs unnecessary, as far as possible. It is 
 in effe< I a < ovenant against voluntary waste, and nothing more.
 
 III. i.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 437 
 
 It has never been so construed as to make a tenant answerable for 
 accidental damages, or to bind him to rebuild, if the buildings are 
 burned down or otherwise destroyed by accident. In this case it 
 has not been found, neither is it claimed in the petition, that these 
 premises were burned through the neglect of the United States. 
 No judgment can, therefore, be rendered against the United States 
 on this account. * * * 
 
 It appears in the finding that during the occupancy under the 
 lease ornamental trees were destroyed; fences and walls torn down, 
 and the materials used for sidewalks and the erection of other 
 buildings, or carried away, and that stone was quarried and gravel 
 dug from a stone-quarry and gravel-pit on the premises, and taken 
 away. This was voluntary waste, and within prohibition of the 
 implied agreement in the lease. For this the Court of Claims can 
 award compensation in this action. The amount of this damage 
 has not been found. * * * 
 
 Judgment reversed. 
 
 LOTHROP v. THAYER. 
 
 138 Massachusetts, 466. — 1885. 
 
 Contract, with a count in tort, to recover for the loss by fire of 
 a building and certain personal property therein. 
 
 Plaintiff let to defendants the building in question, excepting cer- 
 tain rooms in the second story which plaintiff continued to occupy. 
 During the term the building was destroyed by fire. The jury 
 found that the property of plaintiff was burned by the carelessness 
 and negligence of defendants, but not intentionally. Judgment for 
 plaintiff, defendant appeals. 
 
 Field, J. : The property destroyed or damaged by fire was, first, 
 the portion of the buildings let by the plaintiff to the defendants, or 
 to one of them; second, the remaining portion of the building 
 belonging to the plaintiff and in his possession; and, third, personal 
 chattels of the plaintiff in part in the portion of the building let, and 
 in part in the remaining portion. * * * 
 
 The defendants requested an instruction that they were not liable 
 for mere negligence, which was refused; and the court instructed 
 the jury that, " if the fire was caused by their negligence," they 
 would be liable, which means liable for the whole loss. * * * 
 [Here follows a discussion of the law as to the spreading of fires to 
 neighboring property, j 
 
 It must, however, we think, be regarded as too well established
 
 438 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 to be overturned by judicial decision that the occupant of a building 
 is responsible to the owners of adjoining property for the want of 
 ordinary care on the part of himself or his servants, acting within 
 the scope of their employment, in kindling or guarding the fires 
 used for heating the building. 
 
 The distinction between the liability of a tenant at will to his land- 
 lord, and of an occupant to his adjoining proprietors for damage 
 by fire, is sharply drawn in Panton v. I sham, 3 Lev. 359. On special 
 verdict, it was found that the plaintiff was seized of six stables, and 
 demised one to the defendant, for a week, for eight shillings, and 
 so from week to week at eight shillings per week, as long as both 
 parties should please, and demised the other five stables to other 
 persons for divers terms yet to come, whereby they were possessed, 
 and the fire by the defendant's negligence six weeks afterwards 
 began in the stable demised to the defendant, and burnt the same 
 and all the other stables; and it was held "that for the stable 
 demised to the defendant himself no action lay; for the demise to 
 him could be no more than a term for three weeks, and for the resi- 
 due he was tenant at will, against whom no action lay for negligent 
 waste, as 5 Co. 13, The Countess of Salop's Case. But thirdly, as 
 to the stables demised to the others, the action well lies, as if they 
 were the stables of strangers, and not of the lessor; for as to them 
 there is no privity between the plaintiff and defendant, but as to them 
 they are as nothing." 
 
 At common law a tenant for life, or for years, or at will, was not 
 liable for waste, but tenants for life or years were made liable by 
 the statute of Marlebridge, 52 Hen. III., c. 23, and by the statute of 
 Gloucester, 6 Edw. 1, c. 5, 2 Inst. 144, 299 Co. Lit. 53a, 53b. 
 Sackett v. Sachet/, 8 Pick. 309. A tenant at will was not within 
 these statutes, and it was held that, although a tenant at will might 
 be liable to his landlord in an action of trespass for voluntary waste, 
 no action would lie for permissive waste. Co. Lit. 57a, note. 
 Daniels v. Pond, 21 Pick. 367. Our statutes give an action of waste, 
 or of tort in the nature of waste, against a tenant in dower, by the 
 curtesy, or for life or years, but not against a tenant at will. Pub. 
 Sts., c. 179, §$ 1, 3. 
 
 It was early decided that if a tenant at will negligently kept or 
 guarded his fire, whereby the house was burned, this was permissive 
 waste, for which he was not liable to his landlord. The Countess of 
 Shrewsbury' s Case, 5 Rep. 13b, was this. The Countess of Shrews- 
 bury brought an action in the case against Richard Crampton, a 
 lawyer of the Temple, and declared that she leased to him a house 
 at will, and "quod tile tarn negligenter d improvide custodivit ignem
 
 III. i.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 439 
 
 suum, quod domus ilia co?nbusta full, " etc.; "and it was adjudged 
 that for this permissive waste no action lay." Countess of Salop v. 
 Crompton, Cro. Eliz. 777, 784, was an action on the case, and the 
 declaration was that the defendant, being in possession of a house, 
 stable, and three barns, as tenant at will, " tarn negligenter et im- 
 provide kept his fire in the said house; that through default of good 
 keeping thereof the said house, stable, and barns were burnt down," 
 etc.; and it was held " that for the negligent burning, this nor any 
 other action lies." See Y. B. 48 Edw. III. 25, pi. 8. 
 
 The reasoning of these old cases is undoubtedly technical, but 
 they were decided with full knowledge that an action lay for an 
 injury to a personal chattel, caused by the negligent keeping of the 
 bailee. Countess of Shrewsbury' s Case, ubi supra. It is admitted to 
 be the law that a tenant at will is not liable for permissive waste. 
 Hartnett v. Maitland, 16 M. & W. 257; Moore v. Towns/tend, 4 
 Vroom, 284; Coale v. Hannibal &* St. Joseph Railroad, 60 Mo. 227. 
 
 But it is suggested that these defendants, under our statutes, 
 were not tenants at will within the meaning of the rule; and it is 
 denied that the careless and negligent acts of the defendants, 
 whereby the building was burnt, constitute permissive waste. The 
 defendant's estate, not being created by an instrument in writing, 
 had, under the Gen. Sts., c. 89, § 2, the force and effect of an 
 estate at will only; and it is therefore unnecessary to determine a 
 question which has been somewhat disputed, whether tenants from 
 year to year are liable for permissive waste. The burning of a 
 building through the negligent keeping of a fire by a tenant is by 
 modern text-writers regarded as permissive waste. 4 Kent. Com. 
 8r, 1 Add. Cont. (8th ed.) 253; Add. Torts, 239; Smith's Ld. 
 & Ten. (3d ed.) 287; Taylor's Ld. & Ten. § 349; Gibbons on 
 Dilapidations (2d ed.) 108, 128; Comyn's Ld. & Ten. 171. 
 
 The diligence of the counsel for the plaintiff has not shown us 
 any case in which it has been held that a tenant at will is liable to 
 his landlord for injuries occasioned by his negligence in kindling or 
 keeping fires in stoves, fireplaces, or chimneys intended to be used 
 for heating the premises. Such a case is presented in Scott v. 
 Hale, 16 Maine, 326, but the defendant had a verdict. The degree 
 of care which the ruling at nisi prius required was that of " a dis- 
 creet, prudent, and careful man in the possession of his own prem- 
 ises." Of this the court say: " We think this was a most liberal 
 instruction in favor of the plaintiff. But we forbear now to go more 
 minutely into the discussion of questions argued, not because they 
 have not occupied our attention, for they have." The verdict was 
 set aside on other grounds.
 
 440 USE OF LAND BY PARTICULAR TENANT. [PT. III. CII. II. 
 
 In the case cited of Parrott v. Barney \ Deady, 405, S. C. on 
 appeal, 1 Sawyer, 423; the tenancy was from year to year, and the 
 damage was from explosive substances stored in the building. 
 There is nothing in United States v. Bostwick, 94 U. S. 53, or in 
 Robinson v. Wheeler, 25 N. Y. 252, that decides that a tenant at will 
 is liable to his landlord for the burning of the building let, or caused 
 by negligence in guarding a fire kindled for the purpose of heating 
 the building. 
 
 The law of negligence has been largely developed in recent times, 
 and it is argued that there is no sound reason why it should not be 
 applied in the same manner to real property as to personal, and to 
 tenancies at will as well as to tenancies for a term. It may well be 
 doubted whether the existing condition of the law of negligence is 
 altogether satisfactory, and whether it would be wise to establish 
 an unlimited liability to his landlord, on the part of every tenant at 
 will of real property, for every injury occasioned by any act of neg- 
 ligence of himself or his servants, in the use of the property. 
 However this may be, we do not feel at liberty to overturn long- 
 established rules of law governing real property. 
 
 We are not in this case required to consider the consequences of 
 the negligent setting or guarding of fires, set for other purposes 
 than such as are necessary to render the tenement fit for occupa- 
 tion, and in other places than those constructed or intended for the 
 use of fires in heating the premises let. It is competent for land- 
 lords and tenants to make in writing any stipulations they see fit. 
 When there is no writing, and the tenant takes the precarious estate 
 of a tenancy at will, we think it has been generally understood that 
 the tenant is not liable for the burning of the tenement let, occa- 
 sioned by his negligence or that of his servants in the keeping of 
 fires set for the purpose of heating the premises, and in the place 
 designed for that purpose, so that they may be fit for occupation. 
 The fact that no action can be found to have been maintained for 
 this cause is strong evidence of this. The ancient law has been 
 acquiesced in, and, consciously or unconsciously, the cost of insur- 
 ance to the landlord, or the value of the risk, enters into the 
 amount of the rent. We think on this part of the case the excep- 
 tions should be sustained. 
 
 If the law were to be established anew, it might, with much force, 
 be contended that the test of the liability of the defendants in this 
 case ought to be the same as to all of the property destroyed; but 
 it would deserve consideration whether, in such a case as this, it 
 would not be more reasonable t<> hold the defendants liable only for 
 ^ross negligence amounting to reckless conduct.
 
 III. i.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 44I 
 
 The existing law has, however, introduced many distinctions. A 
 bailee of chattels for hire is liable only for the want of ordinary 
 care; but if the bailee promises to return the chattel absolutely, 
 then he is liable, although the chattel is destroyed by inevitable 
 accident. Harvey v. Murray, 136 Mass. 377. 
 
 The obligation of tenants under a written lease to their landlords, 
 except so far as statutes have imposed arbitrary liabilities, are 
 determined by the construction of the lease. But landlords are at 
 common law exempt from many liabilities towards their tenants for 
 the condition of the premises, which they are under towards 
 strangers who are lawfully upon the premises while in their posses- 
 sion. Bowe v. Hunking, 135 Mass. 380; Woods v. JVaumkeag Steam 
 Cotton Co. 134 Mass. 357. 
 
 Disregarding the use of fire in clearing land and for other agri- 
 cultural purposes, and confining ourselves to the case at bar, which 
 is the use of fire in stoves for the purpose of heating the building, 
 it is manifest that, in many cases, prudence might require a recon- 
 struction of the chimneys and the purchase of new stoves. In 
 many cases it would be difficult to determine how far the bad con- 
 dition of the premises contributed to the injury occasioned by the 
 fire. We think the reasonable rule is that if landlords would pro- 
 tect themselves from the mere negligence of their tenants, they 
 should take a written lease, with proper covenants; and that a ten- 
 ant at will is not liable to his landlord for the mere negligence of 
 himself or his servants in kindling or guarding fires in stoves or 
 chimneys for the purpose of heating the premises; but that he is 
 liable for wilful burning, and also for such gross negligence as 
 amounts to reckless conduct. By the terms of the report the ver- 
 dict is to be set aside and a 
 
 New trial granted. 1 
 
 1 But see Robinson v. Wheeler, 25 N. Y. 252 (1862), p. 259, where Wright, J., 
 says: "The judge charged the jury that the plaintiff could recover for the 
 wood-shed without showing that the defendant set fire to it on purpose, if it was 
 burned through his negligence. The tenant was answerable for waste of the 
 premises through his negligence ; and although it was argued in the complaint 
 that the defendant wrongfully set fire to and destroyed the wood-shed, and it 
 turned out from the proof that he had negligently set fire to :t, and it was 
 burned up, the plaintiff could recover. That was this case. It was the same 
 kind of waste, the complaint arguing that it was committed wrongfully, and the 
 proof showing that it was done negligently." — Ed.
 
 442 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 c. Equitable waste. 
 
 VANE v. LORD BARNARD. 
 
 2 Vernon Chancery (Eng.;, 738. — 1716. 
 
 The defendant on the marriage of the plaintiff, his eldest son, 
 with the daughter of Morgan Randyll, and ^"10,000 portion, settled 
 inter alia Raby Castle on himself for life, without impeachment of 
 waste, remainder to his son for life, and to his first and other sons in 
 tail male. 
 
 The defendant, Lord Barnard, having taken some displeasure 
 against his son, got two hundred workmen together, and of a sud- 
 den, in a few days, stript the castle of the lead, iron, glass-doors, 
 and boards, etc., to the value of ^3,000. 
 
 The court upon filing the bill, granted an injunction to stay com- 
 mitting of waste, in pulling down the castle; and now, upon the 
 hearing of the cause, decreed, not only the injunction to continue, 
 but that the castle should be repaired, and put into the same con- 
 dition it was in, in August, 1714; and for that purpose a commis- 
 sion was to issue to ascertain what ought to be repaired, and a 
 master to see it done at the expense and charge of the defendant, 
 the Lord Barnard; and decreed the plaintiff his costs. 
 
 STEVENS v. ROSE. 
 69 Michigan, 259. — 1888. 
 
 Long, J. — * * * It is claimed by the defendant that whether 
 the defendant had a right or not to remove the building, as an ordi- 
 nary tenant, during his tenancy, he had such right under his life 
 lease; that the clause, " to have and to hold, to use and control as 
 he thinks proper, during his natural life," removes all restrictions, 
 so far as any of the acts indicated by the record are concerned; that 
 the words, " to have and to hold," gave him certain legal rights in 
 the land that were well known and well guarded, and by which he 
 had his fire-wood, necessary timber for repairs, the full use of all the 
 arable and pasture land, and his administrator was entitled to the 
 usual growing crops if the tenant should die leaving any unharvested 
 crops growing upon the place; that the mere tenant for life, under 
 the words, " to have and to hold," having all these privileges, the 
 addition of the words, " to use and control as he thinks proper," 
 imply the widest authority, removing all limitations to the defend- 
 ant's use of the leased premises, and have them, and everything
 
 III. i.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 443 
 
 upon them, so far as the lease governing the case, in his possession, 
 with all the rights and authority of the owner of the land; and if 
 there be any limitation or restriction that even a court of equity 
 would control, in a lease without impeachment for waste, such 
 restrictions are removed by the language employed here, and that 
 such language is at least of equal force and significance as the 
 words, " without impeachment of waste." 
 
 On the other hand, it is contended by counsel for plaintiff that the 
 practice of leasing without impeachment of waste has not obtained 
 in the United States, and, that being the case, the words used must 
 very clearly import that the tenancy is to be without impeachment 
 of waste, before a court will so construe them. 
 
 The action of waste under the old English practice was a remedy 
 given for injury to lands, houses, woods, etc., by a tenant thereof 
 for life or years, to the injury or prejudice of the heir, or of him in 
 the reversion or remainder. It was either voluntary or permissive — 
 the one by actual design; the other arising from mere negligence 
 and want of sufficient care. The action was partly founded upon 
 the common law, and partly founded upon the statute of Gloucester, 
 and was a mixed action; real so far as it recovered the realty injured; 
 and personal so far as it covered the damages for the injury. 
 Originally, and under the old practice, the action was brought for 
 both of these specific purposes, and, if waste was proved on the trial, 
 the plaintiff recovered, not only the premises injured but also the 
 damages he had sustained by reason of the injury. 
 
 The action for this double purpose, having fallen into disuse, was 
 finally abolished in England by the statute of 3 and 4 William IV., 
 c. 27. In this country, although adopted in some of the States, it 
 has been but little used; having been, in practice, virtually super- 
 seded by the action on the case in the nature of waste for the recovery 
 of damages merely, or by bill in equity. In our own State this 
 action on the case is authorized by chapter 271, How. Stat., above 
 cited. These provisions of our statute on this subject are in accord- 
 ance with the legal practice which has been adopted, and long since 
 fully established, in England and in this country. 
 
 Tenants for life, not made impeachable for waste by the person 
 granting the estate, are liable for both commissive and permissive 
 waste. The real intention, however, of the clause, " without 
 impeachment for waste," is to enable the tenant to do many things, 
 such as cutting wood, opening new mines, etc., which would other- 
 wise at the common law amount to waste; but these words do not 
 operate as a license to the tenant to destroy the estate, or to commit 
 malicious waste, such as cutting down fruit-bearing trees, or trees
 
 444 USE OF LAND BY PARTICULAR TENANT. [PT. III. CII. II. 
 
 which serve for shade or ornament. If he is tenant " without 
 impeachment for waste," he has the same right to cut timber, work 
 mines, etc., for his own use, as the owner of the inheritance; but 
 those words do not justify him in demolishing the buildings, or 
 doing that which operates as destructive or malicious waste. Wood, 
 Landl. and Ten. p. 711, § 426; Leeds v. Anherst, 14 Sim. 357; Aston 
 v. Aston, 1 Ves. Sr. 265; Vane v. Lord Barnard, 2 Vern. 738. The 
 words are not to be treated as importing a license to destroy or 
 injure the estate, but to do all reasonable acts, consistent with the 
 preservation of the estate, which otherwise might in law be waste. 
 
 If, then, these words in the lease, " to have and to hold, to use 
 and control as he thinks proper, for his benefit during his natural 
 life," be construed as leasing without impeachment of waste, as 
 defendant's counsel claim they must be, the defendant would have 
 no right to tear down and carry away the buildings erected on the 
 premises, under the circumstances of this case. The life tenant, 
 even under a lease without impeachment for waste, owes a duty to 
 the reversioner or remainderman to preserve in a reasonable manner 
 the buildings, and all fruit and ornamental trees, on the estate; and 
 he has no right to commit any malicious waste, or to destroy such 
 buildings or trees. While there is no doubt he has a right to cut 
 and take timber for his own use, the same as the owner of the 
 inheritance, yet in this case it was contended by plaintiff, and evi- 
 dence was offered tending to prove the fact, that these fourteen oak 
 trees were left for ornament and shade; and the jury found, under 
 questions put by defendant's counsel, that they were fit for other 
 purposes than fire wood, and were not necessary to the defendant 
 for such purpose, and thus, in effect, found that they were saved 
 and kept for the purposes of ornament and shade. There was an 
 abundance of timber only two miles distant from the dwelling of 
 defendant, which was conveyed to him under the same lease, and 
 from this he had a right to cut his fire-wood, and he had a right, 
 also, to cut such other timber as he pleased, if the lease is one 
 without impeachment of waste. These words were inserted in the 
 lease for the purpose, clearly, of giving the tenant some greater 
 rights than an ordinary life tenant. They are words seldom 
 employed in leases, and they must be construed most strongly 
 against the grantor. 
 
 In Goodright v. Barron, 11 East, 220, a will was executed with 
 this clause: 
 
 Also, I give and bequeath to my wife, Elizabeth, whom I likewise 
 make my soli- executrix, all ami singular my lands, messuages, and 
 tenements, by her freely to be possessed and enjoyed."
 
 III. 2.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 445 
 
 In an action of ejectment, Lord Ellenborough, giving the opinion 
 of the court, and speaking of this clause in the will, says: 
 
 " But these words may have been meant to make her dispunishable 
 of waste, for which, as tenant for life only, she would have been 
 liable. ... If the words ' during her life ' had been added, 
 that would have made the intent clear in one way." 
 
 In Webster v. Webster, 33 N. H. 21, the court say: 
 
 " It would seem that no particular form of words is necessary to 
 make an estate for life without impeachment for waste." 
 
 We think the words employed in this lease clearly import a leasing 
 without impeachment for waste, and that the defendant has a right 
 to do all those acts which such a tenant may exercise. We, however, 
 find no error in the record, under the circumstances of this case, in 
 view of the character of the building removed, and the trees cut 
 and carried away. 
 
 The judgment must be affirmed with costs. 1 
 
 2. In What Waste Consists. 
 a. In respect of houses and other structures. 
 
 CANNON v. BARRY. 
 59 Mississippi, 289. — 1881 
 [Reported herein at p. 433.]* 
 
 b. As to wood-lanas. 
 
 JOHNSON v. JOHNSON. 
 
 18 New Hampshire, 594. — 1847. 
 
 Case in the nature of an action of waste. Verdict for plaintiff, 
 subject to opinion of this court. 
 
 Gilchrist, J. — The words of the devise are: " I give and devise 
 to my wife, during her natural life, the use and income of all my real 
 
 1 This was an action on the case for waste brought under chap. 271 How, Stat., 
 but as will be seen equitable principles are discussed and enforced. For 
 "equitable waste" against owner in fee, see Turner v. Wright, supra, p. 391. 
 — Ed. 
 
 2 See also the other cases under permissive waste. — Ed.
 
 446 USE OF LAND BY PARTICULAR TENANT. [FT. III. CH. II. 
 
 estate," and " I give and devise to my brother, Moses Johnson, one- 
 eighth part of all my estate not herein disposed of, which may be 
 left after the decease of my wife," etc. 
 
 The defendant is, therefore, tenant for life, and the plaintiff has 
 the remainder, and is entitled to sue for waste committed upon the 
 estate. 
 
 The tenant for life, committing waste, is liable in this form of 
 action to the remainderman, unless she is, by the terms by which 
 her estate has been created, exempted from those restraints which, 
 since very early times, have qualified that interest. In other words, 
 unless she has an estate for life, without impeachment of waste, she 
 is liable. 2 Blackst. Com. 283; Sackett v. Sackelt, 8 Pick. 314; 
 Chase v. Haselton, 7 N. H. Rep. 171. 
 
 It is impossible to perceive, in the words by which this life estate 
 has been created, any evidence of the testator's intention to dispense 
 with the ordinary restraints and qualifications which attend estates 
 for life in general. Nor do the circumstances and the relation 
 between the parties, adverted to in the argument, or the terms in 
 which the remainder over is limited, raise the presumption that such 
 an intention was in the mind of the testator, much less do they 
 amount to an expression of such a purpose. The case is certainly 
 not stronger than that of Chase v. Haselton, 7 N. H. Rep. 171, in 
 which the grant was by way of a quit claim of all the grantor's 
 right and interest in the land for the life of the grantee, which was 
 held not to authorize waste, or to deprive the grantor of his right 
 to recover for waste committed. 
 
 What amounts to waste is a question not always free from doubt 
 and difficulty. The tenant for life may have reasonable estovers for 
 house-bote, and may, from trees commonly used for fuel, take suffi- 
 cient to supply the house upon the estate. Blackst. Com. ubi supra. 
 But this right has not been construed to be a right to sell wood from 
 the estate. 
 
 In Paddleford v. Paddleford, 7 Pick. 152, it was held that trees, 
 
 which were of a quality that would have justified their use by the 
 tenant for fuel, could not lawfully be sold or exchanged for fuel to 
 be consumed upon the estate. And in this State in the case of 
 Fulla v. IVason, 7 N. H. Rep. 341, it was decided that wood could 
 not be sold by the tenant for life, although having the right to con- 
 sunk- it even in a larger quantity than that which was sold. The act 
 of selling was. in both the cases cited, distinguished from the exer- 
 cise of the personal right of consuming, in a particular manner, that 
 which belonged i<< the remainderman, and was attached to the 
 estate, and was held to be waste.
 
 III. 2.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 447 
 
 The tenant, in the present case, sold a portion of the trees, to pay 
 the expense of cutting and conveying to her door those which she 
 had a right to take for fuel. This act plainly transcends the limit of 
 her rights, as fixed by cases cited; for if she can sell for one pur- 
 pose, she may do so for another. 
 
 The trees are parcel of the realty, and belong to the remainder- 
 man, subject only to the right of the tenant to use a portion of them 
 for special purposes. The growth and the decay of the forest are 
 of no concern to him. If a tempest uproots the trees, the remain- 
 derman is held to be entitled to carry them away, and in certain 
 cases the court of chancery has directed decaying timber to be cut 
 and sold for the benefit of the same party, saving always the rights 
 of the life tenant, who is to be indemnified for the loss of his usu- 
 fructuary interest in them. Bewick v. Whitfield, 3 P. W. 267; s. c, 
 2 do. 240. 
 
 There is no principle which would have justified the admission of 
 evidence of what the testator said, to vary the meaning of the words 
 of the will which he executed. 
 
 Judgment on the verdict. 
 
 WHITE v. CUTLER. 
 
 17 Pickering (Mass.), 248. — 1835. 
 
 Trespass quare clausum /regit and for taking away a quantity of 
 wood alleged to be the property of plaintiff. 
 
 Shaw, C. J., delivered the opinion of the Court. — The question 
 in the present case, is whether a tenant in dower or her lessee has a 
 right to cut wood upon the dower estate, for sale, to be removed and 
 not used or consumed upon or in connection with the estate. 
 
 We think that a reference to a few principles, which have been 
 adopted and acted upon in decided cases, in our own State, will 
 lead to a satisfactory decision of this question. 
 
 It was in effect decided in Sargeant v. Toivne, 10 Mass. R. 307, 
 that a tenant for life has no right to cut growing trees, that such 
 cutting would be waste, and that wild and uncultivated land cannot 
 be deemed estate yielding annual rents or profits. 
 
 In the case of Conner v. S/iep/ierd, 15 Mass. R. 164, it was decided, 
 that in this commonwealth a widow is not entitled to dower in wild 
 and uncultivated lands, held separately and distinct from houses, 
 cultivated lands and other improved estate, first, because they yield 
 no annual profit, and secondly, because the widow could not make
 
 448 USE OF LAND BY PARTICULAR TENANT. [PT. III. CII. II. 
 
 the only beneficial use of them, of which they are capable, without 
 committing waste and forfeiting the estate. These reasons apply as 
 well to the case of a wood-lot situated in the midst of a cultivated 
 country, as to the forest lands in their original state. But the Chief 
 Justice,, in delivering the opinion of the Court in this case, takes 
 care in terms to limit its operation to the case of woodlands not used 
 or connected with a cultivated farm, or other improved estate. 
 
 In the case of Webb v. To7vnsend, i Pick. 21, the general rule, that 
 a widow is not dowable of wild lands, is confirmed, and it was 
 placed more distinctly upon the ground, that as a widow is to be 
 endowed, not according to the value of the land, but according to 
 the value of the annual rents and profits, and as uncultivated lands 
 yield no rents and profits, dower therein would be nugatory and of 
 no value. 
 
 But in a subsequent case, While v. Willis, 7 Pick. 143, it was held 
 that a lot of wild land, which had been used by the husband in con- 
 nection with his house and cultivated land, to supply wood for build- 
 ings, fences and fuel, might be properly assigned to a widow as part 
 of her dower, to enable her to take fuel and timber for repairs. It 
 was also suggested, that a widow would have no right to take fire- 
 bote, etc., from lands of her deceased husband, unless the lands from 
 which it is taken, were included in those assigned as her dower. 
 
 A distinction was urged in the argument, between woodlands, kept 
 by the owners to raise wood for sale, for purposes of profit, and wild 
 lands, and that it would be hard to deprive a widow of her dower in 
 such lands, of which the raising of wood for sale may be considered 
 as the most profitable use. But we think the answer results from 
 the legal principles on which the foregoing cases are settled. Such 
 estate yields no annual profit. The owner may make a profit of the 
 land, but it is the exercise of the rights of a tenant in fee, which a 
 tenant for life by law does not enjoy, that of felling growing trees. 
 The result, we think, is, that a widow is not to be endowed of a lot 
 of growing wood and timber, although kept purposely to raise wood 
 and timber as objects of profit, provided that it is not assigned to 
 her as part of her dower, in connection with buildings or cultivated 
 lands. But when woodland is so connected and used, it may be 
 included in the assignment of dower, to be used and enjoyed by the 
 widow, or those holding under her. 
 
 But the right of the widow thus acquired is that of reasonable 
 
 estovers, under which may be included firebote or the necessary fuel 
 
 for the supply of the dower estate. But this right of reasonable 
 
 vers is confined strictly to wood and timber sufficient for the 
 
 Supply of the (state, and it must be actually applied, used and con-
 
 III. 2.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 449 
 
 sumed upon the estate, or for purposes connected with its proper 
 use, occupation and enjoyment. It has been recently decided, that 
 cutting growing trees, to be exchanged for other wood to be used as 
 fuel or timber on the estate, was not within the right of a tenant in 
 dower, but in law was deemed waste. Paddelford v. Paddelford, 7 
 Pick. 152. 
 
 A fortiori, the cutting of wood for sale, the proceeds of which are 
 not to be used or appropriated upon the estate or in connection with 
 it, is not admissible under the limited right of taking reasonable 
 estovers. 
 
 If the plaintiff, as lessee of the tenant in dower, had no right to 
 cut the growing wood, the defendant, as having the next estate of 
 inheritance, had a right to take the wood when severed. Blakes v. 
 Anscombe, 4 Bos. and Pul. 25. 
 
 Plaintiff nonsuit. 1 
 
 McGregor v. brown. 
 
 10 New York, 114. — 1854. 
 
 Denio, J. — I am of opinion that two errors were committed on 
 the trial of this cause. First. The farm which the defendant held 
 under a lease from the plaintiff contained about two hundred and 
 thirty or two hundred and forty acres, seventy or eighty acres of 
 which remained in forest and the remainder was cleared. The 
 defendant was proved to have cut down about an acre of the timbered 
 land; and he sold a part of the wood in market. He was permitted 
 to prove, against an objection by the plaintiff, that he applied to the 
 plaintiff for two or three acres of wood, saying that he had more 
 hay to winter cattle than he had pasture to pasture them, and that 
 he would seed down the land that he cleared; that the plaintiff said 
 that the defendant was welcome to the wood if he would clear up 
 and seed down the land on which it stood; and the jury were 
 charged that if this was an agreement for the mutual benefit of the 
 parties, and the wood was cut in pursuance of it, it was a defence to 
 the action. The action was for waste, and the following statutory 
 provision applies to the case: "If . . . any tenant . . . 
 for term of life or years, . . . shall commit waste 
 of the houses, . . . lands or woods, . . . without a 
 special and lawful license in writing so to do, they shall respectively 
 be subject to an action of waste." 2 R. S. 334, § i. s The object of 
 
 1 Tenant by curtesy may take reasonable estovers only. Going beyond that 
 is waste. Armstrong v. Wilson, 60 111., 226. — Ed. 
 
 2 See Code Civ. Proc. J; 1657. — Ed. 
 
 LAW OF PROP. IN LAND 2Q.
 
 450 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 the qualification respecting the evidence of a license is the same with 
 those provisions of the statute of frauds requiring certain trans- 
 actions to be put in writing, namely, to prevent agreements from 
 being set up by false or mistaken oral testimony. I do not think the 
 annexing a condition to the license (for this is what the evidence 
 at most amounted to) renders the parol proof of it any more com- 
 petent than it would otherwise have been. Nothing like an agree- 
 ment was shown. The defendant did not agree to clear or seed 
 down any of the woodland, but only that he would seed down what 
 he should clear. It was a clear case of a license proved by parol 
 against the express provision of the statute. * * * 
 
 The judgment of the court below should be reversed and a new 
 trial granted. 
 
 Ordered accordingly. 
 
 c. Changes in manner of using land. Good husbandry. 
 
 The Assistant Vice-Chancellor in SARLES v. SARLES. 
 
 3 Sandford's Chancery (N. Y.), 6oi. — 1S46. 
 
 My conclusion is that there is not enough proved against Samuel 
 Sarles, to authorize a decree against him in respect of the hay and 
 meadow grass. His most unjustifiable act, in my view, was the 
 annual removal of the bog grass. For this, so far as it was an injury 
 to the freehold, he is liable to account. 
 
 So in respect of the overtillage and bad management of the land. 
 With the exception of the field back of the barn * * * I do not 
 think the testimony clear to establish the alleged bad husbandry. 
 * * * The i n j ur y t the fee growing out of that field, is waste, 
 which will properly be included in the account to be taken. 
 
 Green, C. J., in CLEMENCE v. STEERE. 
 
 1 Rhode Island, 272. — 1850. 
 
 The defendant is charged with having converted meadow land 
 into pasture land. In England this would be waste. But we are 
 not to apply the English law too strictly. Our lands are in many 
 respects cultivated differently from land in England; and this differ- 
 ence is to be taken into account. Here it is necessary to show that 
 the change is detrimental to the inheritance and contrary to the 
 ordinary course of good husbandry. If in this case the change
 
 III. 2.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 451 
 
 injured the farm, or was such a change as no good farmer would 
 make, it is waste. * * * 
 
 It is said that the pastures have been permitted to become over- 
 grown with brush. In England that would be waste, but you would 
 not expect so high a state of cultivation in Burrillville as in Eng- 
 land, or as in the vicinity of a populous city. There must be such 
 neglect in cutting the brush as a man of ordinary prudence would 
 not permit; and if there was in this case such neglect, it is waste. 
 
 PYNCHON v. STEARNS. 
 11 Metcalf (Mass.), 304. — 1846. 
 
 Wilde, J. — This is an action of waste, and the case comes before 
 us on exceptions to the instruction to the jury at the trial. The 
 premises described in the writ were formerly the property of Edward 
 Pynchon, and were devised by him to Susan Pynchon, his wife, so 
 long as she should remain his widow, remainder to the plaintiff. 
 The defendant holds under an assignment from the said Susan. 
 
 It was proved at the trial, that the plaintiff had taken of the 
 defendant a lease of part of the premises during the life of the said 
 Susan; and it was ruled by the court that, as to that part of the 
 premises, the action could not be maintained. That this ruling was 
 correct, cannot, we think, admit of a doubt. By this lease to the 
 plaintiff, he became the owner of the whole estate. The estate for 
 years immediately merged in the remainder in fee; and the plaintiff 
 entered,, as it is understood, before the alleged waste. If, however, 
 the lease had been given after the waste, no action of waste could 
 be maintained after the merger of the estate, and after the entry of 
 the plaintiff under the lease from the defendant. 
 
 If it be said that the reservation in the lease to the plaintiff pre- 
 vented the merger, the answer is, that the reservation did not, and 
 could not, by the well established rules of construction, limit or divest 
 the estate expressly demised to the plaintiff. The defendant only 
 reserved the right to erect buildings on the premises; but no estate 
 for life or for a term of years is reserved ; and if it had been reserved, 
 it would have been repugnant to the terms of the lease limiting and 
 demising the estate for life to the plaintiff. 
 
 As to the stipulation for the payment of rent, we consider that as 
 a personal covenant of the plaintiff. No right of entry is reserved 
 for the nonpayment of rent; and that covenant can no more prevent 
 a merger than it can prevent the vesting of the estate demised.
 
 452 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 As to the alleged acts of waste on the other part of the premises, 
 the plaintiff relied upon sundry facts which are not disputed; 
 namely, that the defendant had opened a way through the premises 
 from one public highway to another; and that the defendant had 
 subverted the soil, by digging out part of the soil for cellars of 
 houses by him erected; and that he had ploughed the lands, dug 
 drains, and had drawn in large quantities of earth, thereby raising 
 the land and changing the surface thereof. The defendant intro- 
 duced evidence to show that these acts of the defendant were bene- 
 ficial and not prejudicial to the plaintiff, and did not constitute 
 waste. On this evidence the jury were instructed that the opening 
 of the way was not waste; and that if breaking up meadow land 
 occasionally was a judicious and suitable mode of husbandry, the 
 changing the surface by breaking up and cultivating it, was not 
 waste; and that the removing the soil for the building of houses, 
 and the erecting them, and digging drains, if the estate on the whole 
 would be equally or more valuable to the owner of the inheritance, 
 would not be waste. 
 
 The general rule of law in respect to waste is, that the act must 
 be prejudicial to the inheritance. It is defined by Blackstone, 3 Bl. 
 Com. 223, to be "a spoil and destruction of the estate, either in 
 houses, woods, or lands." It is true, however, that it has been held 
 in England, that to change the nature of the property by the tenant, 
 although the alteration may be for the greater profit of the lessor, 
 was waste. So in England, if the tenant converts arable land into 
 wood, or e converso, or meadow into plough or pasture land, it 
 is waste. Bac. Ab. Waste, c. 1. The reasons given are, that it 
 changes the course of husbandry, and the evidence of the estate. 
 But these reasons are not applicable in this commonwealth, and con- 
 sequently such changes here do not constitute waste, unless such 
 changes are prejudicial to the inheritance. So the doctrine is laid 
 down by Mr. Dane, and it is, we think, supported on satisfactory 
 reasons. 3 Dane Ab. 219. When our ancestors emigrated to this 
 country, they brought with them, and were afterwards governed by, 
 the common law of England ; excepting, however, such parts as were 
 inapplicable to their new condition. 2 Mass. 534; 8 Pick. 316. That 
 the principle of the common law under consideration was then inap- 
 plicable to the condition of the country is obvious; nor has it been 
 applicable at any time since; for it has been the constant usage of 
 our farmers to break up their grass lands for the purpose of raising 
 crops by tillage, and laying them down again to grass, and otherwise 
 to < hange the use and cultivation of their lands, as occasions have 
 required. A conformity, therefore, to this usage, cannot be deemed
 
 III. 2.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 453 
 
 waste. Even in England, "if a meadow be sometimes arable, and 
 sometimes meadow, and sometimes pasture, the ploughing of it is 
 not waste." Bac. Ab. Waste, C. 1; Com. Dig. Waste, D. 4. As 
 to the effect of such changes upon the evidence of title to lands, it 
 is evident that it can have none in this State. Our conveyances are 
 very simple. The land conveyed is described by metes and bounds, 
 or by some general and certain description of its limits, without any 
 designation of the kind of land conveyed, whether it be arable land 
 or grass land, wood land or cleared land, pasture or meadow. 
 
 As to the other acts complained of, we think they cannot be 
 deemed waste, unless they may be prejudicial to the plaintiff; and 
 that the instructions to the jury, in this respect, were, therefore, 
 correct. To erect a new house on the land where there was not any 
 before, is not waste. Bac. Ab. Waste, C. 5. So there seems no 
 authority for holding that the opening of a way by the defendant, 
 for his convenience, and draining the land are acts of waste. And 
 as to raising the land, by carrying thereon quantities of earth, what- 
 ever may be law of England, it is not in this commonwealth waste, 
 unless it may be prejudicial to the plaintiff. 
 
 The ancient doctrine of waste, if universally adopted in this 
 country, would greatly impede the progress of improvement, with- 
 out any compensating benefit. To be beneficial, therefore, the rules 
 of law must be accommodated to the situation of the country, and 
 the course of affairs here; as it has been frequently decided. 
 Winship v. Pitts, 3 Paige, 259, and other cases cited by the defend- 
 ant's counsel. 
 
 In this country, it is difficult to imagine any exception to the gen- 
 eral rule of law, that no act of a tenant will amount to waste, unless 
 it is or m,ay be prejudicial to the inheritance, or to those entitled to 
 the reversion or remainder. 
 
 For these reasons, we are of opinion that the instructions to the 
 jury were correct. 
 
 Judgment on the verdict. 
 
 d. Opening and working mines. 
 Woodworth, J., in COATES v. CHEEVER 
 
 1 Cowen (N. Y.), 460. — 1823. 
 
 The premises in question contain a valuable ore bed, which was 
 partially opened by the husband of the appellant, during his lifetime. 
 Since his death, the owner has extended this opening at great
 
 454 USE 0F LAND BY PARTICULAR TENANT. [PT. III. Cii. II. 
 
 expense and with very great success.. In setting off dower, the 
 admeasurers disregarded the increased value of the land arising 
 from the circumstance of its containing this ore bed. They esti- 
 mated the value, considered merely with a view to its agricultural 
 improvement, and assigned by metes and bounds sufficient to cover 
 one-sixth of that estimate, carefully avoiding any interference with 
 the ore. There is no doubt that as to mines in general, including 
 beds of iron ore, if they are unopened at the time of the owner's 
 death, his widow must take her dower in other land merely. The 
 newly opening a mine is waste, and the widow, having only an estate 
 for life, can legally do no act which injures the inheritance. All 
 the cases agree in this. But it is equally clear, that if, during the 
 husband's lifetime, mines are opened, dower in them is properly 
 assignable. In this case, the admeasurement must accordingly be 
 set aside. The admeasurers must assign to the appellant her dower in 
 all mines which were opened during her husband's life ; but she cannot 
 profit by any extension of that opening. The admeasurers should 
 take into consideration the value of the mine as far as it was opened 
 during the husband's life, and then assign the dower, either by 
 measuring off one-third in value or specifically assigning a reasonable 
 share of the profits at short periods. The case of Stoughton v. 
 Leigh, i Taunt. 402, contains the rules by which, 1 think, the admea- 
 surers ought to be guided. 
 
 In Re SEAGER ESTATE. 
 
 92 Michigan, 186. — 1892. 
 
 Petition to determine right of Gertrude McCabe in certain 
 royalties. 
 
 McGrath, J. — * * * Our statute. How. Stat., § 5733, gives 
 to the widow of every deceased person the use during her natural 
 life of one-third of all the lands whereof her husband was seised of 
 an estate of inheritance at any time during the marriage, unless she is 
 lawfully barred thereof. Other sections of the statute provide that, 
 in case of mortgaged lands, the widow shall be entitled to the inter- 
 est or income of one-third of the surplus; that the widow shall be 
 entitled to dower in aliened lands; that when the estate consists of 
 a mill or other tenement which cannot be divided without damage 
 to the whole, and in all cases where the estate cannot be divided by 
 metes and bounds, dower may be assigned of the rents, issues, and 
 profits thereof to be had and received by the widow as a tenant in
 
 III. 2.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 455 
 
 common with the other owners of the estate. These are the only- 
 prominent provisions made by the statute for the widow in case 
 decedent shall leave issue. 
 
 The naked question raised is whether, under these statutory pro- 
 visions, a widow is excluded from all interest in the minerals in lands 
 which, at the time of the death of her husband, were unimproved 
 and unproductive, although such lands may be rich in minerals, and 
 were owned, held, and known as mining lands, and were chiefly and 
 solely valuable for the minerals contained in them. 
 
 From my examination I have been unable to discover that this 
 precise question has ever been passed upon by any court in this 
 country. Text-writers generally, and, in some of the following 
 cases none of which involve the question of an unopened deposit, 
 the courts lay down the rule that a widow is dowable of mines which 
 had been opened at the death of the husband, but that she may not 
 open new mines, even upon the land set apart to her as dower; in 
 other words, that a widow is not dowable of mineral deposits where 
 there is no opened mine. Washb. Real Prop. 166; 4 Kent, Com. 
 41 ; 1 Bish. Mar. Worn. § 264; 1 Scrib. Dower (2d ed.) 200-206; Freer 
 v. Stotenbur, 36 Barb. 641; Hendrix v. McBeth, 61 Ind. 473; Lenfers 
 v. Henke, 73 111. 405; Gaines v. Mining Co., $$ N. J. Eq. 603; Coates 
 v. Cheever, 1 Cow. 460; Reed v. Reed, 16 N J. Eq. 248; Moore v. 
 Rollins, 45 Me. 493; Billings v. Taylor, 10 Pick. 460; Neel v. Neel, 
 19 Penn. St. 323; Irwin v. Covode, 24 Id. 162; Sayers v. Hoskinson, 
 no Id. 473 (1 Atl. Rep. 308); Findlay v. Smith, 6 Munf. 134; Crouch 
 v. Puryear, 1 Rand. (Va.) 258; Clift v. Clift, 87 Tenn. 17 (9 S. W. 
 Rep. 198). 
 
 Sayers v. Hoskinson holds that it is the right of a life tenant to 
 work an opened mine to exhaustion. Moore v. Rollins is to the 
 same effect. * * * 
 
 In Irwin v. Covode, it was held that a court might restrain unskill- 
 ful mining and wanton injury to the inheritance by a tenant for life, 
 but not such mining as is subject to no other objection than its lia- 
 bility to exhaust the mine. The court say : 
 
 " It is said that on the western slope of the Alleghanies the seams 
 of bituminous coal are so few and thin that tenants for life, if per- 
 mitted to introduce modern facilities for mining, would exhaust lands 
 so held, and leave them ruined on the hands of those in succession. 
 Should this happen, it would be no more than occurs in every life 
 estate in chattels which perish with the using. So long as the estate 
 is used according to its nature, it is no valid objection that the use 
 is consumption." * * * 
 
 In Neel v. Neel the wife had a life estate under a will, and the only
 
 456 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 question was whether a tenant for life of land having coal mines 
 opened upon it may mine the coal, not only for his own use, but for 
 sale. The court say: 
 
 " It seems in this case that the author of the gift had sometimes 
 sold coal out of these pits, but I do not conceive this to be material. 
 It is sufficient that he opened them; and derived any profit from 
 them, even if it were only fire bote. The fact of his opening the 
 pits made the coal a part of the profits of the land, and the right to 
 them will pass as such by a devise of a life estate. If he meant other- 
 wise, he should have said so; not having said so, this is the legal 
 inference of his intention. . . . The most obvious inference would 
 seem to be that, when a man devises land with an open mine upon 
 it to a person for life, he intended the devisee to derive profit from 
 the mine as well as from the surface of the land. He may not have 
 supposed that the devisee would exhaust the mine, and this might 
 seem unreasonable; but, when the donor did not see proper to 
 restrain the gift, how shall it be done? Surely courts have no such 
 control over the arrangements which people choose to make of their 
 affairs. Usually an enterprising tenant for life maybe of advantage 
 to the remainderman, but, in the case of mines, it may be the reverse. 
 And I cannot see how the enterprise of the citizen is to be restrained 
 by judicial process. If we could get ourselves freer from the notions 
 derived from feudal subordination, we would perhaps think that the 
 privileges of tenants for life should be enlarged, rather than 
 restrained, and that the cultivation of the country would be thereby 
 improved." 
 
 In Billings v. Taylor the husband died seized of a tract of land of 
 four acres in extent, consisting of a slate quarry mostly below the 
 surface of the ground. One-quarter of an acre of the quarry had 
 been dug over, and the practice was to take a section of ten or 
 twelve feet square on the surface, and go down to a certain depth, 
 and then begin on the surface again. The court say: 
 
 " It would be too narrow a construction to say that no part of 
 this quarry was opened except that portion which had actually been 
 dug, but it must be considered that the whole, lying together as one 
 tract, belonging to one estate, and wrought in the manner described, 
 was opened, and that the widow was entitled to dower in that as well 
 as the other estate of her husband." 
 
 In Crouch v. Puryear it was held that it was not waste in a tenant 
 in dower of coal lands to take coal to any extent from a mine 
 already opened, or t<> sink new shafts into the same veins of coal. 
 
 In Gaines v. Mining Co., held, that a life tenant has a right to use 
 a mine for his own profit, when the owner of the fee in his lifetime
 
 III. 2.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 457 
 
 had opened it, even though he may have discontinued work upon it 
 for a long period of years. 
 
 In Reed v. Reed, held, that the operating of an opened mine was 
 a mode of enjoyment of the land to which a tenant for life was 
 entitled. 
 
 In Findlay v. Smith, held, that a devisee for life was entitled to 
 the unlimited use of the salt mineral, and of the wood upon the 
 premises for fuel, used in the production of salt from the brine. 
 
 It has been held that, if the mode of using the land consisted in 
 cutting the growth upon it as the customary source of profit, the 
 widow may continue to do so. Thus, to cut and sell staves and 
 shingles or hoop-poles under the circumstances supposed would not 
 be waste. Ballentine v.Poyner, 2 Hayw. (N. C.) no; Clemence v. 
 Steere, 1 R. I. 272. 
 
 The doctrine that a widow is not dowable of mining lands, unless 
 at the time of the death of her husband mines had been opened, is 
 traceable to Stoughton v. Leigh, 1 Taunt. 402. There decedent left 
 a large estate, upon which there was a lead and a coal mine, neither 
 of which had been opened; two other lead and two coal mines, 
 which he had leased to tenants, reserving certain rents, which were 
 to be paid whether the tenants did or did not open the mines, one 
 of each class of which mines had been opened at the time of his 
 death; a lead and a coal mine, which he had leased, reserving roy- 
 alties payable in ore and coal, and which coal mine had been opened 
 at the time of his death, but the lead mine had not. Two other 
 lead mines and two other coal mines had been opened. Deceased 
 was also entitled to minerals lying under lands not his own, and had 
 operated certain mines thereon, and others were unopened. The 
 court held that the wife was dowable of all the opened mines, but 
 was not dowable of the mines or strata which had not been opened, 
 whether owned by lease or not. The decision may not be without 
 reason, but certainly no reasons are given in the opinion. Clearly, 
 as to those lands which had been leased, they had been by the 
 decedent devoted to mining purposes, and the mode of enjoyment 
 and source of profit, under all the authorities, had been fixed and 
 determined by the decedent; and, as to the rents which were to be 
 paid, whether the mines were opened or not, under all the authorities 
 on the subject of dower, the widow was entitled- to participate in 
 them. 
 
 The rule laid down in that case undoubtedly had its origin in cases 
 where the relation of landlord and tenant existed. A tenant who 
 rents a farm cannot cut and sell the timber therefrom, convert the 
 farm into a brick-yard, open a stone quarry or sand-pit, bore for oil,
 
 45§ USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 or mine for ore thereon, unless authority so to do is expressly given 
 or arises by implication from the situation; but one who rents a 
 piece of ground upon which there is an open quarry or sand-pit or 
 brick-yard, or open mine, may quarry, take out sand, make brick, 
 or operate the mine, unless there is either an express reservation, 
 or some condition or circumstances which would operate as an 
 implied restriction. One who leases a copper mine may mine for 
 copper, but, if he should strike a pocket of silver, the same rule 
 would prohibit him from appropriating the silver. The Salt-well 
 Case, where the vein of petroleum was tapped, is an illustration of 
 the principle underlying this class of cases. Kier v. Peterson, 41 
 Penn. St. 361. The question in that class of cases is one of inter- 
 pretation of the contract, — of what was the use granted, — and, as 
 bearing upon that question, the condition of the premises, the use 
 to which the premises had been devoted, and the source of profit 
 are important considerations; but there is room for but one con- 
 struction where there is but one mode of enjoyment, one source of 
 revenue or profit, one use. Suppose that a lease were given by A 
 of all his mining lands, or a devise were made for life of a gravel 
 bank, although no mine or pit had been opened, and the lands were 
 available for no other purpose, or were adapted to no other use, 
 from which any considerable revenue could be derived, and suppose 
 such grant were made to a wife or child, could it be contended for 
 a moment that the ordinary methods of use or enjoyment of such 
 lands were not to be adopted ; that the usual mode of deriving 
 revenue from such lands was not to be resorted to; that such land 
 was not to be used according to its nature? " * * * 
 
 In Gaines v. Mining Co., supra, the court say: 
 
 " In a country like this, where there are such vast bodies of unim- 
 proved lands, which would otherwise lie dormant in the hands of the 
 life tenant, public policy requires that the doctrine of waste should 
 be liberalized, and the decisions have uniformly been in that direc- 
 tion. The present case illustrates the hardship of a close rule in favor 
 of the fee. The life estate vested in i860, and there is an expectancy 
 of twenty years more of this life. A construction of the law which 
 locks up the land from all beneficial use for so long a period, and 
 gives the life owner only the privilege of paying the land tax, should 
 not be favored. When the property is unimproved land, not 
 adaptable to any other beneficial use than that of mining, the right 
 of the life tenant to use it reasonably for such purpose has some sup- 
 port in the adjudications in this country, and is certainly not with- 
 out reason to uphold it 
 
 In Hickman v. Irvine^ ,5 Dana, 121, the court say:
 
 III. 2] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 459 
 
 " We cannot concede that a widow is entitled to dower in the 
 improved land only of her deceased husband. She is, by the general 
 provision of the common and statute law, to be endowed of one 
 equal third part of all the lands of which he was seized during the 
 coverture; and, to whatever extent the doctrine of forfeiture for 
 waste may apply to the case of a doweress who reduces forest lands 
 to a state of cultivation, we cannot view this doctrine, and the pos- 
 sibility that its application may render a portion of the dower lands 
 useless to the widow, as a limitation either upon the quantity or 
 quality of the land to be assigned as a dower. When a case shall 
 occur in which the lands assigned for dower cannot be made availa- 
 ble for the reasonable support of the widow without converting a 
 portion of the woodland to the purposes of cultivation, and in which, 
 upon an attempt being made thus to render it available, the rever- 
 sioner shall insist upon a forfeiture, it must be decided upon con- 
 sideration of the object of the law in establishing the right of dower, 
 upon a comparison of its regard for the present comfortable suste- 
 nance of the widow with its care for the preservation of the inheri- 
 tance, and upon a view of the actual condition of the estate and of 
 the surrounding country with regard to improvement and popula- 
 tion, whether the change of timbered into arable land is in the 
 particular case such an act of waste as would be just cause of 
 forfeiture.' 
 
 The strict rules of the common law of England respecting waste 
 and the rights of tenants for life do not obtain here. With us the 
 change in the mode of use is not waste. It is not use, but abuse, 
 that is waste. Waste must be consumption, nor is consumption 
 always waste. The owner of a life-estate has some rights in com- 
 mon with the owner of the fee. There is no substantial reason why, 
 so far as the use of premises is concerned, there should not be a 
 community of right between the owner of the life estate and the 
 owner of the reversion. 
 
 Our statute respecting " dower " defines it as the use for life of 
 one-third of all the lands of which the husband was seized during 
 the marriage relation. " Dower " is defined by the English authori- 
 ties as the provision which the law makes for a widow out of the 
 lands or tenements of her husband for her support and the nurture 
 of her children. Co. Litt. 30b; 2 Bl. Coram. 130. The rules appli- 
 cable to a country where landed estates are large and diversified, 
 where the laws of inheritance are exclusive, where the theory of 
 dower is subsistence merely, and where there is a strong disposition 
 to free estates from even that charge, do not obtain in a common- 
 wealth like ours, where estates are small, and the policy of our laws
 
 460 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 is to distribute them with each generation, where dower is one of 
 the positive institutions of the State, founded in policy, and the 
 provision for the widow is a part of the law of distribution, and the 
 aim of the statute is not subsistence alone, but provision commen- 
 surate with the estate. 
 
 In the present case the grant is by operation of the statute giving 
 the use of all the lands of which the husband was seized. The grant 
 must be held to include the use of these lands, irrespective of 
 whether mines were opened upon them before or after the husband's 
 death. The question here is not the impairment of one mode of 
 enjoyment or source of profit to reach another. There is but one 
 mode of enjoyment of the land in question; but one source of 
 revenue or profit. The land is susceptible of but one use. 
 
 The widow is therefore entitled to one-third of the amount in the 
 hands of the petitioner, and the decree of the court below is affirmed. 
 
 3. Against Whom Waste Lies and in Whose Favor. 1 
 
 BATES v. SHRAEDER. 
 
 13 Johnson (N. Y.), 260. — 1816. 
 
 Action of waste. The declaration stated, that Elizabeth Graham 
 was seized in her demesne, as of fee, in certain premises, in the 
 town of Fishkill, which are described by metes and bounds, and con- 
 tained twenty-five acres; and being so seized, she married Duncan 
 Graham, and, during the coverture, they had a son born, John Gra- 
 ham, by which marriage, and birth of son, Duncan Graham became 
 entitled to the premises as tenant by the curtesy, the reversion 
 being in the said Elizabeth and her heirs; that Elizabeth Graham 
 died, whereby her son, John Graham, became entitled to the rever- 
 sion of the premises, as heir to his mother; that John Graham died 
 without issue, and without leaving any brother or sister, or any legal 
 representative of such brother or sister, and that the plaintiff became 
 entitled to the reversion as heir-at-law of John Graham, he, the 
 plaintiff, being the oldest son of John Bates, deceased, who was the 
 oldest brother of Elizabeth Graham, and the oldest uncle of John 
 Graham; that Duncan Graham, during the continuance of his estate 
 as tenant by the curtesy, in the year 1809, assigned his estate in the 
 premises to the defendant, who, being in the possession thereof, did 
 wrongfully and unjustly make waste, sale, and destruction, in the 
 whole of said premises, by destroying and changing the nature of 
 
 1 See also cases on pp. 391-400, supra. — Ed.
 
 III. 3.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 46 1 
 
 the land, etc., by felling timber, etc., and felling divers trees, etc., 
 to the disinhersion of the plaintiff, and against the form of the 
 statute in such case provided. 
 
 To this declaration there was a general demurrer, and joinder in 
 demurrer. 
 
 Yates, J., delivered the opinion of the Court. — This is an action 
 of waste, brought by the plaintiff against the assignee of the tenant 
 by the curtesy. The declaration states that the plaintiff's right of 
 inheritance to the locus in quo is derived from John Graham, as the 
 person last seized. It also states the previous seisin of Elizabeth 
 Graham, his mother, who died, leaving her husband tenant by the 
 curtesy, from whom the defendant holds the premises by assignment; 
 that John Graham derived his inheritance from the mother; and that 
 both died without lawful issue. The waste is specially stated, and 
 it then concludes that the plaintiff is injured, and has sustained 
 damages to the value of two thousand dollars, and, therefore, he 
 brings suit, etc. 
 
 To this declaration there is a general demurrer and joinder; and 
 in support of the demurrer it is insisted that John Graham was not 
 so seized as to form a new stock of descent, and that the plaintiff is 
 not heir-at-law; and if he be such heir, that waste does not lie by 
 him against the assignee of the tenant by the curtesy. 
 
 From the facts set forth in the declaration, it does not appear that 
 this is a case not provided for in our statute to regulate descents; 
 and the common law governs only in cases not provided for by that 
 act. It is stated that the inheritance is claimed through John Gra- 
 ham, the son, who died in the lifetime of his father, the tenant by 
 the curtesy. There can be no doubt that this tenancy suspended 
 the descent, so that the inheritance could not be transmitted during 
 the continuance of that estate, as no stock of descent, during its 
 existence, could be formed by John Graham. And as it does not 
 appear, by the declaration, when the mother died, nor whether she 
 left any other brother or sister besides the plaintiff in this cause, a 
 sufficient title to the inheritance is not shown to sustain the action. 
 
 But admitting that the plaintiff is entitled to the inheritance, it is 
 clear that he cannot seek redress from the present defendant. 1 Inst. 
 54; 2 Inst. 301a. 1 At common law, the assignee of the tenant by 
 the curtesy cannot be sued in waste. The action ought to have been 
 brought against the tenant himself by the heir; and the books state 
 that thereby he shall recover the lands against the assignee, for the 
 privity which is between the heir and tenant by the curtesy. Walker's 
 
 'But see Code Civ. Proc. § 1651 for present New York rule. — Ed.
 
 462 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 Case, 3 Co. 23. So, if tenant in dower, or tenant by the curtesy, 
 grant over their estate, yet the privity of action remains between 
 the heir and them, and he shall have an action of waste against 
 them for waste committed after the assignment; but if the heir grant 
 over the reversion, then the privity of action is destroyed, and the 
 grantee cannot have any action of waste but only against the assignee ; 
 for between them is privity in estate; and between them and the 
 tenant in dower, or the tenant by the curtesy, is no privity at all; so 
 that, at law, if the assignee is suable in waste, there must be a privity 
 of estate; unless, then, the action against the assignee is warranted 
 by the statute, it is improperly brought in this instance. 
 
 The section in the act § 36, ch. 56, 1 R. S. 750, does not 
 authorize this action, for, according to the decision in Livingston v. 
 Haywood, it gives the reversioner or remainderman an action of 
 waste or trespass for any injury done to the inheritance, notwith- 
 standing an intervening estate for life or for years; it gives the 
 action of waste where waste is the appropriate remedy, and trespass 
 where trespass in the appropriate remedy, but does not alter the 
 law as to the requisite privity of estate between the heir and the 
 tenant by the curtesy, so that the principle continues the same as to 
 the assignee, who, without such privity, is not liable in waste. 
 
 The sixth and seventh sections of the act for preventing waste, 
 contain no authority for this action; the sixth gives the right of 
 action to the heir at any time during or after his minority, and the 
 seventh section declares tenants for life, or for another's life, or for 
 term of years, or any other term, liable to waste after granting their 
 estates, if they take the profits. Neither of those sections can be 
 so construed as to alter the law on the subject, so as to give the 
 heir an action of waste against the assignee of the tenant by the 
 curtesy. It would seem that such an action can be brought in no 
 case, except where the heir has granted over the reversion, because, 
 as before stated, by the grant the privity of the action is destroyed, 
 and the grantee cannot have any action of waste but only against 
 the assignee, for as between them there is privity in estate, but no 
 such privity, after the grant, exists between the assignee and the ten- 
 ant by the curtesy. It is, therefore, evident, that the action of waste 
 in this instance cannot be maintained by the heir against the 
 assignee. The law is decidedly against it, and the principles in 
 relation to tenants by the curtesy ought to be strictly applied, in an 
 a< tion like the present, because the judgment operates as a penalty, 
 the recovery being not only for the place wasted, but treble dam- 
 The defendant is, consequently, entitled to judgment. 
 
 Judgment for the defendant.
 
 III. 3-] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 463 
 
 PHILLIPS v. COVERT. 
 
 7 Johnson (N. Y.), 1. — 1810. 
 
 Per Curiam. — There is no doubt but that an action of trespass 
 will lie against a tenant at will for voluntary waste, as in the cutting 
 of timber; for the injury amounts to a determination of the will and 
 of his possession. Co. Litt. 57a; 5 Co. 13a.; Cro. Eliz. 777, 784. 
 The defendants in this case were nothing more than tenants at will, 
 for the purpose of this action, even if they were entitled to be con- 
 sidered as holding from year to year, for the purpose of a notice to 
 quit; and they would have no right to such notice, after they had 
 determined the will. The nonsuit must be set aside, and a new trial 
 awarded, with costs to abide the event of the suit. 
 
 Rule granted. 
 
 LEIGHTON v. LEIGHTON. 
 
 32 Maine, 399. — 1851. 
 
 Wells, J. — The plaintiff in his bill alleges, that the defendant, 
 Leighton, has committed strip and waste upon his land, described 
 in the bill, by cutting and hauling away the wood and timber grow- 
 ing on it; that he has commenced an action of trespass against the 
 defendant, which is now pending, and that both of the defendants 
 have expressed their determination and intention, and have made 
 preparations to commit further strip and waste by putting on teams 
 and taking off the wood and timber. 
 
 The defendants have demurred to the bill, and the question arises 
 whether it can be maintained. The act done was a trespass, and 
 those threatened to be done were of the same character. 
 
 This court has equity jurisdiction in those cases only in which it 
 is conferred by statute, and it is expressly given in the case of waste, 
 when there is not a plain and adequate remedy at law. Ch. 96, § 10. 
 But the remedy given by an action of waste at the common law was 
 confined to cases where there was a privity of estate. 2 Black. Com. 
 281. Our statute, chap. 129, § 1, gives the same action, to the 
 person having the next immediate estate of inheritance, against ten- 
 ants in dower, by the curtesy, tenant for life or years, in which he 
 shall recover the place wasted, and the amount of damages done to 
 the premises. The statute thus recognizes the privity of estate as 
 the foundation of the action, and defines with accuracy its limits. 
 The Legislature then gives the party injured a further remedy in 
 equity.
 
 464 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 Formerly, courts having general equity jurisdiction, confined the 
 exercise of it in relation to waste, to such as was technically so 
 called, but it was afterwards extended to trespasses where the mis- 
 chief was irreparable, and operated as a permanent injury to the 
 estate. Story's Eq. Jur., § 928; Thomas v. Oakley, 18 Vesey, 184. In 
 Stevens x. Beekman, 1 Johns. Ch. 317, it was doubted whether this 
 extension of the ordinary jurisdiction of the court would be produc- 
 tive of public convenience, and in Jerome v. Ross , 7 Johns. Ch. 345, 
 while the jurisdiction was admitted to exist in that court, exercising 
 full chancery powers, it was stated that it ought to be restrained to 
 those cases where the property itself was of peculiar value, and 
 could not well admit of due recompense, and would be destroyed by 
 repeated acts of trespass. It is thus apparent, that courts of gen- 
 eral chancery jurisdiction exercise it in relation to a certain class 
 of trespasses, and the question arises whether it has been given to 
 this court. The same question has arisen upon a smilar statute in 
 Massachusetts, Attaquin v. Fish, 5 Mete. 140, and the rule laid 
 down there as having been acted upon, in the construction of 
 statutes conferring chancery jurisdiction upon the court, is, never to 
 take cognizance of any subjects which are not expressly brought 
 within it by statute, and not to extend jurisdiction to such subjects 
 by implication, and certainly not when the implication is doubtful. 
 And it was decided that the equitable powers given concerning 
 waste extended to cases of technical waste only, and not to those 
 trespasses which courts that have full chancery powers restrain by 
 injunction. 
 
 Acting upon this rule, to which no objection is apparent, we must 
 confine the jurisdiction to cases of technical waste. We cannot find 
 in the statute any clear and satisfactory intention to confer a more 
 enlarged power. Because courts of equity in the plenitude of their 
 power have gone beyond legal waste, a term well defined and under- 
 stood in the law, and have granted relief and injunctions in cases of 
 trespasses committed and threatened to be committed, this court 
 having but a limited jurisdiction, cannot feel justified in pursuing 
 the same course. 
 
 Nor does there appear to be any pressing necessity for such action. 
 A party in possession of his property has the legal right to protect 
 and defend it. If his timber is cut down, he may take or replevy it, 
 or recover damages in an action of trespass. And by statute, chap. 
 169, he may have a criminal process against any one who has 
 threatened to commit an offense against his person or property, and 
 if there is just cause to apprehend and fear the commission of such 
 offense, the person against whom the complaint is made may be put
 
 III. 3.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 465 
 
 under bonds, with sufficient sureties to keep the peace. And when 
 a party is out of possession of real estate, and has commenced an 
 action to recover it, and the person against whom the action is 
 brought shall commit any act of waste, or shall threaten to do so, 
 by the Act of July 10, 1846, chap. 188, the court in which such action 
 is pending may issue an injunction to stay such waste. 
 
 The remedies afforded by the law to the plaintiff are so ample, 
 that there is less regret of a want of jurisdiction by which his bill 
 could be sustained. This cannot be viewed as a bill for discover}', 
 for it is not averred that the facts rest within the knowledge of the 
 defendant alone, and are incapable of other proof. Woodman v. 
 Freeman, 25 Maine, 546. 
 
 Bill dismissed with costs. 1 
 
 Sawyer, J., in PARROTT v. BARNEY. 
 
 2 Abbott (U. S.), 197. — 1870. 
 
 As to the waste upon the premises demised to the defendants, I 
 think that, upon the facts found, the defendants are liable ; although, 
 as will hereafter appear, there was, in my judgment, no negligence 
 on their part. There was, doubtless, fault on the part of those who 
 delivered the explosive substance to defendants for carriage over 
 their express route, without informing them of the dangerous 
 character of the article, for which they may be liable to defendant. 
 The rule seems to be established, that with respect to liability for 
 waste, the tenant is in a position analogous to that of a common 
 carrier, and without some special agreement to the contrary, 
 responsible for all waste, however or by whomsoever committed, 
 except it be occasioned by act of God, the public enemy, or the act 
 of the reversioner himself. 4 Kent, Com. 77; Attersot v. Stevens, 1 
 Taunt. 182; Cook v. Champlain Transportation Co., 1 Denio, 91; 2 
 Eden, Inj., 198, and notes. In White v. Wagner, 4 Harr. & J., this 
 doctrine was carried out in an extreme case. The tenant is held 
 responsible to the landlord, and left to his remedy over against the 
 delinquent party. The liability does not depend on mere negligence, 
 but it is imposed on the same grounds of public policy as those upon 
 which the strict liabilities of common carriers are made to rest. 2 
 
 1 See Livingston v. Livingston, 6 Johns. Ch., 497. — Ed. 
 
 2 Defendants composed the firm of Wells, Fargo & Co. They received upon 
 the premises leased by them of plaintiff a case of nitro-glycerine which exploded 
 and caused the injury in question. Defendants did not know the contents of 
 the package. — Ed. 
 
 LAW OF PROP. IN LAND — 30
 
 466 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 4. The Various Remedies For Waste. 
 
 a. At common-law. 
 
 (1). Writ of Prohibition and Attachment. 
 
 (2). Writ of Waste. 1 
 
 (3). Trespass on the Case in the Nature of Waste.* 
 
 b. Under modern statutes. 3 
 
 c. Inequity — injunction.* 
 
 5. Ownership of Timber, Minerals, etc., Removed by Tenant. 
 
 MOOERS v. WAIT. 
 
 3 Wendell (N. Y.), 104. — 1S29. 
 
 Trover for timber. Plaintiff demised certain premises to one T- 
 S. Frazer, for four years, under an agreement for an ultimate sale 
 to Frazer. During the term, J. S. Frazer sold a number of pine 
 trees to J. F. Frazer, who paid for them, removed them and sold 
 them to Griffin, one of the defendants herein. This action is 
 brought to recover their value. The case comes up on a motion to 
 set aside a nonsuit. 
 
 By the Court, Savage, Ch. J. — It has been decided by this court, 
 in the case of Suffem v. Toivnsend, 9 Johns. R. 35, that an agree- 
 ment to sell land does not imply a license to enter and cut trees; 
 and also that a license to enter, would not authorize the cutting 
 timber; for that one license does not imply the other. In that 
 case there was a parol contract of sale and purchase, under which 
 the defendant entered and cut timber; but the contract was not con- 
 summated, and the plaintiff recovered in trespass for the timber cut 
 
 1 These writs, (1) and (2), were granted originally against tenants in dower 
 and by the curtesy and guardians in chancery only. Defendant could be made 
 to pay the actual damage only. The statutes of Marlbridge and Gloucester 
 extended these remedies to all tenants for life or for years. The statute of 
 Gloucester made the penalty for waste treble damages and forfeiture. These 
 penalties have been retained with certain modifications in New York. See Code 
 Civ. Pro. § 1655. The writ of prohibition and attachment has now been super- 
 seded by the equitable remedy — injunction. — Ed. 
 
 •See cases, supra. — Ed, 
 
 • These follow as to the penalties with more or less modification the statutes 
 of Marlbridge and Gloucester, but are usually in form actions on the casein the 
 nature of waste. See the New York statute, Code Civ. Pro. §§ 1651-1659, and 
 ases, mpra. Ed 
 
 'See cases, mpra. — Ed.
 
 III. 5-] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 467 
 
 while the defendant was in possession. The same point was again 
 decided in Cooper v. Stower, same vol. 331. In that case there was 
 a written contract, much like the contract in this case, except that 
 there was no lease of the lot; but the defendant produced a con- 
 tract, signed by Stower, by which he acknowledged he had received 
 a contract and bond for the consideration money, which were to be 
 executed and returned to the plaintiff; and agreed that until the 
 papers were executed, no timber should be cut on the lot; and it 
 was shown that they were executed and returned by the next mail. 
 The defendant contended that a license to enter was implied. The 
 court considered the acceptance of the contract of Stower a license 
 to enter and occupy as tenants at will, but not to commit waste; 
 and that cutting the timber beyond what was necessary for the use 
 and improvement of the farm, terminated the tenancy at will; and 
 of course the defendants were trespassers. It was there considered 
 that the withholding the deed was the plaintiff's security upon the 
 land; but it would cease to be a security, if the defendants might 
 lawfully strip the land of its timber, and render it of no value. 
 
 The contract in this case goes farther, and gives the right of 
 occupancy for a term of years, on performing certain condi- 
 tions. It is undoubtedly true that Frazer had a right to enter 
 and enjoy the lot which he had contracted to purchase; but, 
 as was said in Cooper v. Stower, " the contracts in the case must 
 be construed reasonably and consistently with the rights of both 
 parties; " and as cutting of the pine timber where the land 
 was not suitable for cultivation, was not the proper and reason- 
 able mode of enjoying the lot for agricultural purposes, Frazer had 
 no right to cut the timber. The timber constituted the principal 
 value of the land. The land thus valuable was the plaintiff's security 
 for the purchase money; and the destruction of the timber was, 
 therefore, totally unauthorized by the contract. Had it appeared 
 that the lessee could not enjoy the lot to the best advantage for the 
 purposes of cultivation and improvement as a farm without cutting 
 the timber in question, a different case would have been presented; 
 and I should think the rights of the parties would be very different; 
 then the cutting, and perhaps the selling would have been justifiable. 
 But when trees, or anything else attached to the freehold, are 
 unlawfully detached therefrom, the property thus wrongfully 
 separated from the freehold, becomes the personal property of the 
 owner of the inheritance. "Waste is a tort," says Lord Hard- 
 wicke, 3 Atk. 262, " and punishable as such; and the party has also 
 a remedy for the trees cut down, by an action of trover." 2 Cruise, 
 268. The case of Fanant v. Thompson, 5 Barn. & Aid. 826, is full
 
 468 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 to the same point. Certain machinery attached to a mill was leased 
 for a number of years. The tenant, without permission of his land- 
 lord, severed the machinery from the mill, and in that situation it 
 was sold on an execution against the tenant. It was held that no 
 title passed to the purchaser, and that trover lay for the machinery. 
 The judges, in giving their opinions, compare the machinery, when 
 attached to the freehold, to the case of trees standing which are 
 parcel of the inheritance, to the use of which the tenant has a quali- 
 fied right during his term, to wit, for shade and fruit. If, however, 
 they are separated by his own wrongful act, or the act of God, the 
 tenant has no right to the use during his term, but they become 
 absolutely vested in the person who has the next estate of inheri- 
 tance; they become his goods and chattels. 
 
 These cases abundantly show what is consonant to good sense 
 and sound policy, as well as justice; that a tenant who commits 
 waste by cutting timber, acquires no title to the timber which he 
 thus unlawfully cuts, and, of course, can convey none; and further, 
 that a bona fide purchaser from the tenant acquires no title, but is 
 liable in trover to the true owner. 
 
 The facts of the case clearly show that the timber was unneces- 
 sarily, and, therefore, unlawfully cut by Frazer. The logs in ques- 
 tion were therefore the property of the plaintiff. The nonsuit must 
 be set aside, and a new trial granted; costs to abide the event. 
 
 LUSHINGTON v. BOLDERO. 
 
 15 Beavan (Eng. Rolls Court), i. — 1S51. 
 
 Petition for the payment of money out of court. Charles Boldero 
 and Henry Lushington had successive estates for life in certain 
 premises, without impeachment for waste. They became bankrupts 
 and their assignees committed equitable waste by felling ornamental 
 timber. They were compelled to pay into court the proceeds of 
 said sales. This is the fund now in controversy. 
 
 The Master of the Rolls. — I shall first consider what would 
 have been the effect if Charles Boldero had himself done this act. 
 He was tenant for life without impeachment of waste, and having cut 
 ornamental timber, the court compelled him to pay into court the 
 amount for which the timber was sold; and, omitting all questions 
 respecting intermediate life estates, the question now is, whether he 
 or the reversioner was entitled to the income of that fund. The 
 equitable doctrine applicable to this and other similar cases is this,
 
 III. 5.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 469 
 
 that no person shall obtain any advantage by his own wrong. But 
 it is manifest that the tenant for life may obtain very considerable 
 advantage from his own wrong, if he were to cut down timber and 
 obtain the interest of the fund; his income for life would be thereby 
 increased beyond what it would have been if the timber had not 
 been cut. 
 
 It has been observed, that in all the reported cases the rule has 
 been applied to the corpus of the fund; but that, I think, ought not 
 to vary my judgment, because it depends upon this equitable and 
 just principle that no man shall obtain a benefit by his own wrongful 
 act; the authorities, therefore, which lay down the principle in cases 
 of corpus only, are equally applicable to any species of interest to be 
 derived by a wrongful act. 
 
 It is then said that this is a case in which the court does not 
 impose a forfeiture, but only requires restitution; and that to 
 deprive the tenant for life of the income, it would be to inflict a 
 penalty upon him, inasmuch as he would have had the enjoyment 
 and advantage of the shade and most of the timber if it had not 
 been cut. But this he deprives himself of by his own wrongful act, 
 and for this reason the court refuses to give him any substitution or 
 remuneration. It is also material to bear in mind, that if the timber 
 had not been cut, it would have increased in value for the benefit of 
 the reversioner, but that has been rendered impossible by the tenant 
 for life having improperly cut it. If, therefore, it is impossible for 
 the court to ascertain what portion of the interest ought to be 
 attributed to the estate of the reversioner, and what portion to the 
 enjoyment of the tenant for life, it is the tenant for life who has him- 
 self put the court into that situation, and made it incapable of arriv- 
 ing at a just conclusion. It is not a case in which the court can act 
 on the principle of restitution. The case put, by way of analog)', 
 of a tenant for life selling out the fund and being compelled to 
 restore it, is inapplicable, because the tenant for life cannot in this 
 case restore the subject-matter. 
 
 There may be a great number of cases in which the timber would 
 become of great value when the reversion fell in; and it is impossi- 
 ble for the court to ascertain what portion of it would have been 
 enjoyed by the reversioner if the wrongful act had not been com- 
 mitted. Undoubtedly the tenant for life does in some cases directly 
 gain an advantage, but it is not by reason of his own act. Thus, 
 where by the act of God a large quantity of timber is blown down 
 by a storm, the produce is laid out in the purchase of stock, and the 
 interest of the fund is paid to the successive tenants for life. So, 
 upon the same principle, when timber is decaying, and it cannot
 
 470 USE OF LAND BY PARTICULAR TENANT. [PT. III. CH. II. 
 
 benefit the reversioner to allow it to remain standing, the court, 
 having ascertained that it is for the benefit of all parties, orders the 
 timber to be cut down, and the produce to be invested, and the 
 interest of the fund to be paid to the tenants for life in succession. 
 
 When, however, the tenant for life has committed the wrongful 
 act which produces the fund, the court will not allow him to gain 
 any benefit from it; but the reversioner takes the benefit arising 
 from an accretion of the fund, in lieu of the accretion of the timber. 
 
 Can I look at this case in any different point of view, because the 
 assignees, and not the tenant for life, have done the wrongful act? 
 The assignees stand for these purposes exactly in the same situation 
 as the tenants for life; they are bound by the same equities, and are 
 exactly in the same position, and the same observations apply to 
 both. Nor am I able to separate, or to distinguish the case of Sir 
 Henry Lushington from that of Charles Boldero; because, if the 
 two tenants for life had concurred together, and had agreed between 
 themselves that the one in possession should cut the timber, and 
 that they should divide the produce in certain proportions, the court 
 would have prevented either of them from gaining any benefit from 
 the wrongful act which they concurred in performing. Here, they 
 are the assignees of both; and I am unable to find any principle 
 which says that the assignees must not stand exactly in the same 
 situation as the tenant for life would stand, and be bound by exactly 
 the same equities. If Charles Boldero had died immediately after- 
 wards, and Sir Henry Lushington had survived for a very long 
 period, and the income of the proceeds of the timber had been 
 applied during that period in payment of the joint creditors, they 
 would have obtained a great benefit from the wrongful act of the 
 assignees. I must hold them in exactly the same position as if the 
 wrongful act had been committed by Sir Henry Lushington alone. 
 I cannot separate the character of the assignees; they are assignees 
 for the joint creditors and of the joint estate; and I consider that I 
 must treat the case exactly in the same way as if the two tenants for 
 life, one only being in possession, had concurred in the wrongful act 
 of cutting the timber. 
 
 It was suggested that I should suppose the possible case of the 
 commission having been superseded; and I was asked, whether the 
 tenant for life, Sir Henry Lushington, who is perfectly innocent in 
 the matter, ought to be prejudiced by the wrongful act committed 
 by his assignees. It would be hard if it were to be so; but I do not 
 « onsider that question at present, because it does not arise before 
 me. But, if the question did arise, it is manifest that the remark 
 would apply just as much to the case of Mr. Charles Boldero's estate
 
 III. 5.] SPECIAL RESTRICTIONS PROTECTING INHERITANCE. 471 
 
 as to that of Sir Henry Lushington; nor can I find anything what- 
 ever in the fiduciary character of the assignees, who, in matters of 
 this description, stand in exactly the same position as the tenants 
 for life, to prevent their being held liable precisely in the same man- 
 ner as the tenants for life themselves. They have themselves done 
 this wrongful act and neither they nor the persons for whom they 
 are trustees can gain any advantage by reason of it. 
 
 I am of the opinion, therefore, that upon the petition, I must 
 make an order according to the prayer. 1 
 
 1 See Gent v. Harrison, Johnson (Eng. Ch.), 517 — Ed.
 
 CHAPTER III. 
 
 Use of Another's Land. 
 I. Under easements. 
 
 THE GREENWOOD LAKE AND PORT JERVIS RAILROAD 
 COMPANY v. THE NEW YORK AND GREENWOOD LAKE 
 RAILROAD COMPANY. 
 
 134 New York, 435. — 1892. 
 
 Vann, J. — The only evidence tending to show that either Myers 
 or Thorp was a " trustee " was the addition of that word to their 
 names, respectively, in designating them as the respective grantees 
 in the conveyances of March 17 and December 22, 1877. As there 
 was no declaration of trust and no deed to either, s< as trustees," the 
 addition to the name of the party of the second part, in the absence 
 of other evidence, might be regarded as merely descriptio personce. 
 Towar v. Hale, 46 Barb. 34; People v. Board of Stock Brokers, 49 
 Hun, 349; affirmed 112 N. Y. 670. But if either was a trustee, the 
 conveyance to him " and to his successors and assigns forever," was 
 absolute, with no limitation upon his power to convey and no dis- 
 closure of the nature or object of the trust. While he might be 
 required to account for the proceeds in a proper proceeding and 
 upon adequate proof, his grantees took a good title, which neither 
 party to this action can question, as both claim under it. Mr. Trap- 
 hagan, therefore, took the entire estate and during his ownership he 
 granted a certain right in the land under consideration to the Green- 
 wood Lake Ice Company. The nature of that right is the main 
 question to be determined upon this appeal. The instrument by 
 which the right was created was under the hand and seal of Mr. 
 Traphagen and, after reciting his ownership of the strip of land in 
 question, it proceeded as follows: " And whereas the Greenwood 
 Lake Ice Company desire to use said property as a way of ingress, 
 egress and regress for themselves, their agents, servants and laborers 
 over and upon which they may pass and repass railroad cars contain- 
 ing ice and materials for use in said ice business; now, therefore, in 
 consideration of one dollar to me in hand paid, I do hereby grant to 
 the said ii e company and to their assigns and successors in said ice 
 
 U72J
 
 I.] UNDER EASEMENTS. 473 
 
 business, the right to use said property for the purpose of a way of 
 ingress, egress and regress over and upon which they may pass and 
 repass railroad cars containing ice and materials, said supplies for 
 use in said ice business, together with themselves, their employes 
 and servants, but it is expressly understood that this license to use 
 said railroad is not an exclusive right to the said company. And it 
 is further agreed that the right hereby conveyed is not to be assigned 
 by the said company except to the successors in and assigns of said 
 ice business and only for the purpose of said business." 
 
 It is contended by the plaintiff 1 that this was a license, revocable 
 at the will of the grantor, or his assigns, and by the defendant, that 
 it was an easement, irrevocable without the consent of both parties 
 or their successors and that it ran with the adjoining land of the 
 grantee, upon which its ice business was conducted, and for the 
 benefit of which the grant was made. While the instrument creating 
 the right is termed in the body thereof, a " license to use said rail- 
 road," this is not conclusive, for the court must look at the nature 
 of the right, rather than to the name that the parties gave it, in 
 order to learn its true character. 
 
 An easement is a right without profit, created by grant or pre- 
 scription, which the owner of one estate may exercise in or over the 
 estate of another for the benefit of the former. Washburn, Ease. 2; 
 Goddard, Ease. 2; 3 Kent's Com. 452; Nellis v.Munson, 108 N. Y. 
 453; Pierce v. Keator, 70 Id. 419, 421; Hills v. Miller, 3 Paige, 254, 
 257; Ritger v. Parker, 8 Cush. 147; Morrison v. Marquardt t 24 Iowa, 
 35; Big Mountain Imp. Co.'s Appeal, 54 Penn. St. 361; Hezulins v. 
 S/iippam, 5 Barn. & C. 221; Rowbotham v. Wilson, 8 Ellis & B. 123. 
 
 A license is a personal, revocable and non-assignable privilege, 
 conferred either by writing or parol, to do one or more acts upon 
 land without possessing any interest therein. Wiseman v. Luck- 
 singer, 84 N. Y. 31; Mendcnhall v. Klinck, 51 Id. 246; Pierrepont v. 
 Barnard, 6 Id. 279, 286; Jackson v. Babcoek, 4 Johns. 418; Mum- 
 fords. Whitney, 15 Wend. 380; Cook v. Stearns, 11 Mass. 533; Prince 
 v. Case, 10 Conn. 375 ; Washburn, Ease. 6, 7; Goddard, Ease. 3; 13 
 Am. & Eng. Encyc. 539. 
 
 Although originally revocable at the will of the licensor, it may 
 become irrevocable through the expenditure of money by the 
 licensee. 2 Wiseman v. Lucksingcr, 84 N. Y. 31, 41 ; Dempsey v. Kipp, 
 61 Id. 462; Pierrepont v. Barnard, 6 Id. 279; Risien v. Brown, 10 
 
 1 Plaintiff owns the land in question subject to such rights as the Ice Co. 
 had. Defendant is practically an employee of the successor of the Ice Com- 
 pany — Ed. 
 
 2 But see cases under " Licenses " Part IV. — Ed.
 
 474 USE OF another's land. [PT. III. CH. III. 
 
 S. W. Rep. 661; Rogers v. Cox, 96 Ind. 157; Russell v. Hubbard, 
 59 111. 335; Morse v. Copeland, 2 Gray, 302; Drake v. Wells, 11 
 Allen, 141. 
 
 The right in question was created by deed, and is made assignable, 
 because it runs to the " Ice Company and to their assigns and suc- 
 cessors," with a limitation upon the power of assignment, restricting 
 it " to the successors in and assigns of said ice business." It was 
 without profit, as nothing was to be taken from the land of the 
 grantor. It was not personal, because succession in title was pro- 
 vided for. Its nature indicates that the parties intended it to be a 
 permanent interest in the land of the grantor, for it was a right of 
 way over a railroad for the purpose of enabling a corporation to 
 carry on a business requiring transportation upon an extensive scale. 
 The business was of such a character that a revocable right might 
 result in irreparable injury to the grantee. The express mention of 
 successors and assigns of the business shows that the parties had in 
 contemplation something more than a temporary expedient, or a 
 merely revocable user. Moreover, the right of way was the only 
 means of communication by land with the railroad upon which the 
 ice company depended for the transportation of its ice to market, 
 and of supplies to its ice house. The track was laid upon the strip of 
 land leading to the railroad, the right to use it granted and the ice 
 house built, all at about the same time, and apparently for the same 
 purpose, as there was no other use for the track. While it is true 
 that no dominant estate is expressly named in the grant, yet one in 
 fact existed and was named by implication. The grant was to an 
 ice company, for use in its ice business, of the right to use a railroad 
 track for the purpose of ingress and egress. Ingress to what and 
 egress from what? Obviously, the adjoining land on which the ice 
 company had constructed an ice house, and was conducting its ice 
 business at the date of the grant, and to which it acquired title only 
 three days after the original conveyance of the strip of land in ques- 
 tion. All of the deeds were on record, and the creator of the right 
 under consideration expressly mentions the ice business five times 
 in the instrument creating it, thus showing that he knew of its exist- 
 ence, and contracted with reference to it as it was then conducted. 
 The sole object of the grant was to benefit the ice business by giving 
 it a right of way from its ice house to the radroad, and by necessary 
 implication from the language used, under the circumstances sur- 
 rounding the grantor when he used it, the term " ice business " was 
 intended t<» designate the land where that business was carried on, 
 as the land to be benefited by the grant. That land, therefore, was 
 in d to be, and ib indirectiy referred to as, the dominant estate,
 
 II.] PROFITS A PRENDRE. 475 
 
 or that to which the right beiongs, while the servient estate, or that 
 upon which the burden rests, is directly mentioned. 
 
 We think that the grant from Mr. Traphagen to the ice company, 
 when construed with reference to what the parties had in contem- 
 plation, satisfies every element in the definition of an easement, and 
 conflicts with nearly every element in the definition of a license. 
 
 After examining all of the exceptions to which our attention has 
 been called, we find nothing that should reverse the judgment, which 
 should, therefore, be affirmed, with costs. 
 
 Judgment affirmed. 
 
 II. Profits & prendre. 
 
 VAN RENSSELAER v. RADCLIFF. 
 10 Wendell (N. Y.), 639. — 1833. 
 
 Trespass for entering upon certain land and carrying away 
 timber. 
 
 By the Court, Savage, Ch. J. — Common or a right of common, 
 is a right or privilege which several persons have to produce of the 
 lands or waters of another. Thus, common of pasture is a right of 
 feeding the beasts of one person on the lands of another; common 
 of estovers is the right a tenant has of taking necessary wood and 
 timber from the woods of the lord for fuel, fencing, etc. ; common of 
 turbary and piscary are in like manner rights which tenants have to 
 cut turf or take fish in the grounds or waters of the lord. All these 
 rights of common were originally intended for the benefit of agri- 
 culture, and for the support of the families and cattle of the cultiva- 
 tors of the soil. They are in general either appendant or appurtenant 
 to houses and lands. There is much learning in the books relative 
 to the creation, apportionment, suspension, and extinguishment of 
 these rights, which fortunately in this country we have but little 
 occasion to explain; but few manors exist among us as remnants of 
 aristocracy not yet entirely eradicated. These common rights which 
 were at one time thought to be essential to the prosperity of agri- 
 culture, subsequent experience, even in England, has shown to be 
 prejudicial. In this country such rights are uncongenial with the 
 genius of our government, and with the spirit of independence 
 which animates our cultivators of the soil. In our State, however, 
 we have the manors of Livingston and of Rensselaerwyck, in which 
 these rights have existed, and to some extent do still exist, and we 
 are obliged, therefore, to look into the d.octrine of commons to 
 ascertain the rights of parties and do justice between them.
 
 476 USE OF another's land. [PT. III. CH. III. 
 
 Common of pasture is the principal of these rights, and, therefore, 
 most of the cases found in the books relate to that species of com- 
 mon. This was appendant, appurtenant, in gross, or because of 
 vicinage; of the last I shall take no notice, because it is not appli- 
 cable to estovers. Common appendant is a right annexed to the 
 possession of arable land, by which the owner is entitled to feed his 
 beasts on the lands of another, usually of the owner of the manor of 
 which the lands entitled to common are a part. This kind of com- 
 mon must have existed from time immemorial, and can be claimed 
 by prescription only, and is confined to such, and so many cattle as 
 are necessary to plough and manure the land which is entitled to 
 common, and which are levant and couchant, that is, so many as the 
 land will sustain during the winter. Common appurtenant does not 
 necessarily arise from any connection of tenure, but must be claimed 
 by grant or prescription. It may be created by grant and may be 
 annexed to any kind of land, whether arable or not. Common in 
 gross has no relation to the tenure of land, but is annexed by deed 
 or prescription to a man's person. 
 
 Common of estovers must, I apprehend, be either appendant or 
 appurtenant; they are necessarily incident either to houses or lands. 
 This right of common may exist by prescription and is then append- 
 ant, or be especially granted, and then it becomes appurtenant. 
 3 Cruise Dig. 83 to 90; 3 Black. Com. 33, 34. Whether this kind of 
 common is apportionable is the principal question in this case. It 
 seems to have been doubted heretofore whether common of pasture 
 was apportionable, and we find the subject elucidated by Chief 
 justice Willes in Bennet v. Reave, Willes 227, as late as the year 1740. 
 He says common of pasture appendant may be apportioned; for as 
 the land is entitled to common only for such cattle as are necessary 
 to plough or manure the land, the common cannot be surcharged by 
 any number of divisions or subdivisions in consequence of alienation. 
 It had been contended in that case, that the owner of every parcel, 
 even a yard, was entitled to common for beasts of the plough as well 
 as other cattle, on the assumed ground that the tenant was bound to 
 plough the lord's land, and, therefore, must have a team, and, of 
 coarse, must have them pastured; but it was clearly shown that the 
 team entitled to pasture was such as was necessary for ploughing 
 land entitled to common, and it made no difference into how 
 many hands it went; no more team was necessary for ploughing, 
 and no more cattle necessary for manuring. Such common is 
 apportionable, and the common being incident to the land, passed 
 with it in such proportions as the land should be divided into; the 
 ncc of half, for instance, of the land, was entitled to half the
 
 II.] PROFITS A PRENDRE. 477 
 
 right of common. This case was of common appendant, and of this 
 kind of common, of pasture, it is said, it is apportionable either 
 when part is purchased by the lord or any other person. Common 
 appurtenant of pasture is also apportionable by alienation of part 
 of the land, but not if the person entitled to it purchases part of the 
 land out of which the common is to be had, 3 Cruise, 92, 3; Co. 
 Litt. 122a. ; and the reason assigned is because common appurtenant 
 is against common right, whereas common appendant is of common 
 right. 4 Co. 36; 8 Co. 78. 
 
 The authorities also inform us that common of estovers cannot be 
 apportioned. Lord Coke says, " If a man have reasonable estovers, 
 as housebote, etc., appendant to his freehold, they are so entire 
 that they shall not be divided between coparceners." Co. Litt. 
 164b; 3 Cruise, 93. Lord Mountjoy's case is there stated, which 
 was that of common turbary; and it was resolved that he could not 
 assign his interest to one or more, for that might work a prejudice 
 and surcharge to the tenant of the land, and, therefore, if such an 
 inheritance descended to parceners, it cannot be divided. In Lnt- 
 treV s case, 4 Co. 87, Lord Coke says, " So if a man has estovers by 
 grant or prescription to his house, although he alters the rooms and 
 chambers of this house, as to make a parlor where it was the hall, or 
 the hall where the parlor was, and the like alterations of the qualities 
 and not of the house itself, and without making new chimneys, by 
 which no prejudice accrues to the owner of the wood, it is not any 
 destruction of the prescription, for then many prescriptions would 
 be destroyed; and although he builds a new chimney or makes a 
 new addition to his old house, by that he shall not lose his prescrip- 
 tions, but he cannot employ or spend any of his estovers in the new 
 chimneys, or in the part newly added." 3 Cruise, 89. Estovers 
 appurtenant to an house cannot be separated from the house, but 
 must be spent on the house. 3 Cruise, 89; Plowd. 382. These 
 authorities seem to be express that common of estovers cannot be 
 apportioned, and for the reason that thereby the land out of which 
 the estovers are to be taken would be surcharged. If, for instance, 
 estovers are granted as belonging to a farm of 200 acres, so long as 
 this is one farm, there is but one house and probably not more than 
 two chimneys; but if this farm is divided into two, another house 
 becomes necessary and double the number of chimneys must be 
 supplied. This would be an injury to the lord. So also of fences 
 and buildings; by dividing the farm into two, more fences and 
 buildings become necessary, and if both are to be supplied from the 
 woods of the lord, an increased quantity would be taken, where, by 
 the grant itself, only estovers for one farm were allowed. As these
 
 478 USE OF another's land. [PT. III. CH. III. 
 
 estovers cannot be apportioned, neither of the tenants among whom 
 the farm is divided can have them, and, therefore, they become 
 extinguished. Common of estovers must be considered as an entire 
 thing, not to be divided; and in case of a common person, if an 
 entire thing be divided or extinguished in part by the act of the 
 party, it is an extinguishment of the whole; but otherwise where it 
 is by the act of God or the law. n Vin. 567, pi. 4, tit. Extinguish- 
 ment, P. 6 Co. 1; Bruerton's Case, 4 Co. 37; Turringham's Case. 
 
 Lord Coke also says, " If a man have reasonable estovers, as house- 
 bote, heybote, etc., appendant to his freehold, they are so entire as 
 they shall not be divided between coparceners." Co. Litt. 164b. 
 In answer to the question, what shall become of such inheritances? 
 he says it appears by the books that the eldest shall have them, 
 and the others a contribution; but if no other property descended 
 from which contribution could be had, then the parceners should 
 have alternate enjoyment, or, in case of piscary, one shall have the 
 first fish and another the second; and so of a toll-dish, where the 
 hereditament was the toll of a mill. If, however, that doctrine were 
 applicable here, it would only relate to descents, not alienation by 
 deed; and even as to descents, it has been held that one of several 
 heirs to whom a right of estovers descended, could not alien his share 
 so as to authorize the assignee to enter and cut wood. Leytnan v. 
 Abed, 16 Johns. R. 30. This case of Ley/nan v. Abeel recognizes the 
 doctrine which I have advanced, that estovers are not apportionable. 
 There one of the proprietors of the Catskill patent devised certain 
 lands to his two sons, and gave each an undivided moiety of his 
 right in the undivided lands; he also devised portions of lands to 
 each of his three daughters and to a granddaughter. He then gave 
 to each of his children liberty of cutting wood and taking stone from 
 any of his undivided lands in common forever. The land subject to 
 common became the property of the plaintiff. One of the five chil- 
 dren of the proprietor, Nelly Abeel, died in 1809, leaving four chil- 
 dren, one of whom conveyed his right to cut wood and carry away 
 stone to the defendant, who did cut and carry away five loads of 
 wood, for which the suit was brought. It was held that the right of 
 Nelly Abeel descended to all her children, but that the right to cut 
 wood, although descendible and alienable, could not be enlarged so 
 as to defeat the intention of the devisor, by imparting the entire 
 right to be enjoyed by each; that one could not alone convey any 
 right — of course one alone had no right to cut wood ; but from this 
 it would follow, that as the right was an entirety and had 
 devolved by operation of law upon four, although they could not 
 enjoy h severally, they might jointlv convey it to one who might
 
 II.] PROFITS A PRENDRE. 479 
 
 enjoy it in severalty as an entirety. It follows also from the doc- 
 trine of this case that the owner of such a right cannot divide it, 
 i. c, by the act of the party; if he conveys part of the lands entitled 
 to common, granting the right, it cannot be enjoyed. The common 
 belongs to the whole farm as an entirety, not to parts of it. This 
 would enlarge the right to the prejudice of the land out of which the 
 common was to be taken. As no one portion of the land entitled to 
 the common could enjoy it, it is necessarily extinguished; and being 
 extinguished, it can be revived only by a new grant. It is con- 
 tended by the counsel for the defendant in error, that the case of 
 Livingston v. Ten Broeck, 16 Johns. R. 14, contains a contrary doc- 
 trine. It was conceded that the question of extinguishment did not 
 arise in that case, but the learned judge who gave the opinion of the 
 court does say that common appurtenant can be apportioned, and he 
 refers to several cases as sustaining the position, all of which cases 
 are cases of common pasture. 
 
 It will be seen, by applying these principles to this case, that Jacob 
 Truax was entitled to common; but when he conveyed his farm, on 
 the 15th December, 1769, part to one son and part to another, 
 thereby creating two farms out of the one entitled to common, such 
 right being an entirety, not being apportionable, could not be 
 enjoyed by either, and, of course, was extinguished. This is the 
 main point in the case, and is decisive of it. 
 
 Several other questions were raised and discussed; such as whether 
 the lord had a right to enclose any part of the common; and if so, 
 whether the lease in the present case was such an improvement as 
 would exempt the locus in quo from being subject to the right of com- 
 mon ; and whether the plaintiff had such a possession as would entitle 
 him to maintain trespass, which questions I will notice, but not 
 discuss at large. 1. The possession of the plaintiff was sufficient 
 against a stranger; he showed title to lands which were not in the 
 actual possession of any other; he was therefore in possession, as 
 in such cases the possession follows the title. 2. There is no doubt 
 that the lord has a right to improve his waste lands, provided he 
 leaves enough for those who are entitled to common. There can be 
 as little doubt, I think, that the improvement, to bar a common, must 
 be an actual bona fide improvement ; not a mere possession fence, run 
 around a piece of woods. But as I hold the right of estovers in this 
 case was gone, the defendant and those whose estate he represents 
 have no right to raise that question; they are mere strangers, and 
 as against such the plaintiff's title and possession were sufficient. 
 
 The law is established in England and recognized in the case of 
 Livingston v. Ten Broeck, that if the commoner purchases part of
 
 480 USE OF ANOTHER'S LAND. [FT. III. CH. III. 
 
 the land subject to common, if the right of common be apportiona- 
 ble, it shall be apportioned, otherwise the whole is extinguished; but 
 that principle seems to be not applicable here. The John Truax 
 farm was purchased by John Tayler in 1791, long before he had any 
 interest in the Jacob Truax farm, which was entitled to common. 
 The ground of that extinguishment is this: that the commoner has 
 voluntarily consented to the diminution of the common out of which 
 his pasture or estovers were to be enjoyed; and where there can be 
 no apportionment, there must be an extinguishment. 
 
 Upon the whole case, therefore, I am of opinion: 1. That the 
 plaintiff, as against the defendant, has shown a sufficient possession 
 of the locus in quo; 2. That common of estovers is not apportiona- 
 ble, and, of course, that though Jacob Truax was entitled to estovers, 
 yet his sons, to whom his farm was conveyed in parcels, and their 
 assigns, never had any such right; and 3. That consequently the 
 defendant was a trespasser in cutting the rails in question, and the 
 plaintiff should have recovered in the court below. 
 
 Judgment of the common pleas reversed, with single costs, and a 
 venire de novo to issue. 
 
 III. Under licenses. 
 
 COOK v. STEARNS. 
 
 11 Massachusetts, 533. — 1814. 
 
 Parker, C. J. — The question presented by the demurrer and 
 joinder in this case is, whether the facts set forth in the plea in bar 
 amount to a justification of the trespass complained of in the 
 declaration. 
 
 The possession of the locus in quo is admitted to be in the plaintiff; 
 and no title to it is claimed by the defendant in his plea. But he 
 claims a right to enter upon it, for the purpose of repairing the dam 
 and bank, and clearing the canal from obstruction; because those, 
 whose estates the plaintiff now holds, permitted him to enter and 
 make the bank, and dig the canal; from which permission he would 
 infer a right to enter and use the soil as often as the state of the 
 mill owned by him should require it. He has not described the mill 
 a- ancient, nor set up any prescriptive right to an easement in the 
 "I the plaintiff; but alleges that he had the consent legally 
 obtained to erect his works, of the former owner of the close; and 
 1)'' ause of that consent, the works being out of repair, he entered 
 to make the necessary repairs. 
 
 It is evident, therefore, that the defendants claim a permanent
 
 III.] UNDER LICENSES. 48 1 
 
 interest in the plaintiff's close, a right to maintain the bank, dam and 
 canal, which he formerly placed there by consent, and to enter upon 
 the plaintiff's close at any time to make necessary repairs, Now, 
 this is an interest in land, which cannot by our statutes of 1783, c. 
 37, pass without deed or writing; for all interests in lands, according 
 to that statute, whether certain or uncertain, are declared to be 
 estates at will, unless the evidence of them exists in deed or writing; 
 and if a continuation of the interest is intended for seven years, it 
 must not only be passed by deed, but the deed must be acknowledged 
 and registered in the same manner as is required in the transfer of 
 a fee. 
 
 The defendant not having alleged that he acquired the right, 
 which he claims, by deed or writing, his plea is for that cause bad. 
 After a verdict perhaps this defect would be cured; because it would 
 be presumed that the evidence, which the law requires to establish 
 such an interest as is claimed, had been exhibited; but on demurrer, 
 where a right in land is set up as a satisfaction for a trespass, the 
 manner in which that right was acquired should be averred, that the 
 court may immediately determine whether it was a lawful convey- 
 ance of the right or not. 
 
 But the counsel for the defendant, aware that they could not set 
 up any estate of a permanent nature in the plaintiff's close, without 
 averring and proving a deed or some other lawful conveyance, have 
 considered the facts alleged in his plea as amounting to a license, 
 given him by the former owner of the land, to make the dam, bank 
 and canal; and they have contended, first, that such license may be 
 by parol; and, secondly, that it is not in its nature countermandable, 
 from which they would infer that a right continues in him to main 
 tain the dam, etc., and to enter upon the plaintiff's close to repair 
 them to ties quoties, etc. 
 
 This argument had some plausibility in it, when it was first stated. 
 But upon more mature consideration it seems to have no foundation 
 in principles of law. 
 
 A license is technically an authority given to do some one act, or 
 a series of acts on the land of another, without passing any estate 
 in the land, such as a license to hunt in another's land, or to cut 
 down a certain number of trees. These are held to be revocable 
 when executory, unless a definite term is fixed, but irrevocable when 
 executed. See Viner's Abridgment, title License, A, E, D, G, and 
 the authorities therein cited, which have been examined and found 
 to support the positions laid down by the compiler. It is also 
 holden that such licenses to do a particular act, but passing no 
 estate, may be pleaded without deed. But licenses, which in their 
 
 LAW OF PROP. IN LAND — 3 1
 
 482 USE OF ANOTHER'S LAND. [PT. III. CH. III. 
 
 nature amount to the granting of an estate for ever so short a time, 
 are not good without deed, and are considered as leases, and must 
 always be pleaded as such. 
 
 The distinction is obvious. 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 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, and to enter 
 upon it at all times without his consent, is an important interest, 
 which ought not to pass without writing, and is the very object pro- 
 vided for by our statute. If the defendant had a license from the 
 former owners of the plaintiff's close, to make the bank, dam and 
 canal in their land, this extended only to the act done, so as to save 
 him from their action of trespass for that particular act; but it did 
 not carry with it an authority, at any future time, to enter upon the 
 land. As to so much of the license as was not executed, it was coun- 
 termandable; and transfering the land to another, or even leasing 
 it without any reservation, would of itself, be a countermand of the 
 license. For although, when one is permitted to do certain things 
 upon the land of another, an implied authority is given to enter 
 upon the land to do the thing, and to repair it, if it is of a permanent 
 nature; yet the first permission or license must be by grant, in order 
 to draw after it this consequence. 
 
 We are also all satisfied, that the plea is in this respect bad; it not 
 showing such a license as may be pleaded, and, indeed, the interest 
 claimed being not in the nature of a license but of an estate, or at 
 least an easement in the land, which cannot be acquired without 
 writing or prescription, or such a possession or use as furnishes pre- 
 sumption of a grant; neither of which is averred in this plea. 
 
 If the defendant's piea were held to be a bar to the action, all the 
 mischiefs and uncertainties, which the legislature intended to avoid 
 by requiring such bargains to be put in writing, would be revived; 
 and purchasers of estates would be without the means of knowing 
 whether incumbrances existed or not on the land which they purchase. 
 
 It has been argued that by the act providing for the support and 
 regulation of mills, a right to acquire property in the land of 
 another, for the purpose of erecting or carrying on a mill, is con- 
 templated to exist by parol. But that statute did not provide a mode 
 of acquiring title to the mill or the land; but merely superadded the 
 ri.^ht of flowing land, upon compensation, according to the statute, 
 by those who had legally obtained the right to build a mill. 
 
 The defendant's plea is adjudged bad.
 
 PART IV. 
 Of Estates and Other Interests in Land. 
 
 CHAPTER I. 
 Estates as to Quantity and Quality: Freeholds. 
 I. Freeholds of inheritance or fees. 
 
 i. Limitation of a Fee in Its Creation or Transfer. 
 Words of Limitation. 
 
 a. By deed inter vivos — at common law. 
 
 (i.) The General Rule as to Necessity for Technical Words of Limitation 
 in a Transfer or Reservation. 
 
 ADAMS v. ROSS. 
 
 30 New Jersey Law, 505. — i860. 
 
 Application by Ross, mortgagee, for moneys paid into court as 
 the value of a portion of the mortgaged premises taken in fee by 
 the Erie Railroad Co., by exercise of the right of eminent domain 
 under its charter. Ross claimed the whole of the money; other par- 
 ties claim to be interested. The court below allowed Ross but a 
 part of his claim and from that decision he brings error to this 
 court. The facts appear at large in the opinion. 
 
 Whelpley, J. — - This writ of error brings up for review the judg- 
 ment of the Supreme Court, giving a construction to a deed, dated 
 the 9th of September, 1854, between Anna V. Traphagen, of the 
 first part, and Catharine Ann V. B. Adams, wife of Alonzo Whitney 
 Adams, of the second part, by which the grantor, in consideration 
 of natural love and affection and of one dollar, conveyed to the 
 grantee the premises in the deed described. The operative words 
 are grant, bargain, sell, alien, remise, release, convey, and confirm 
 unto the said party of the second part, for and during her natural 
 
 [483]
 
 484 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 life, and at her death to her children which may be gotten of her 
 present husband: to have and to hold the above described premises 
 unto the said party of the second part for and during her natural 
 life, and at her death to her children which may be gotten of her 
 present husband, Alonzo W. Adams. 
 
 The deed contains covenants of seizin, for quiet enjoyment, 
 against encumbrances, for further assurance and of warranty. 
 These covenants are made by the grantor for herself and her heirs 
 with the party of the second part, her heirs and assigns. 
 
 Mrs. Adams, at the date of the conveyance to her, was a minor. 
 On the 12th October, 1S55, she, with her husband, executed a mort- 
 gage to secure the payment of $6,000 in one year from date, upon 
 the premises conveyed to her. She was then nineteen. The mort- 
 gage was to Ross, the applicant in the Supreme Court. 
 
 The Erie Railway Company, under the provision of an act of the 
 legislature took a part of the land in question, and hold it in fee 
 simple. The value of the land taken has been ascertained at 
 $3,061; that is now in the Supreme Court, to be awarded to the 
 parties entitled to it, and who they are must depend upon the true 
 construction of the deed. 
 
 What, then, are the rights of Mrs. Adams, her husband and chil- 
 dren, one having been born of the marriage since the conveyance; 
 and what, if any, are the rights of Ross, the mortgagee to the 
 money in court. 
 
 The Supreme Court held, that the estate granted by the deed was 
 an estate in fee tail special in Catharine Adams and the heirs of her 
 body by her present husband; that her husband was entitled to cur- 
 tesy; that the mortgage to Ross on the interest of Mrs. Adams was 
 void as to her, but was a lien upon the estate of her husband, in 
 case he survived her. 
 
 This decision was reached by interpreting the word " children," 
 in the deed, as equivalent " to heirs, calling in the covenants in aid 
 of that interpretation, as throwing light upon what the court called 
 the intention of the grantor. 
 
 The Supreme Court was right in holding the first estate conveyed 
 to Mrs. Adams, not a fee simple; the express limitation of the estate 
 to her during life, and after her death to her children, forbade any 
 other conclusion. The covenant, warranting the land to her and 
 her heirs general, cannot enlarge the estate, nor pass by estoppel a 
 Xyc;i.\'T estate than that expressly conveyed. A party cannot be 
 iped by a deed, or the covenants contained in it, from setting 
 np thai a fee simple did not pass, when the deed expressly shows on 
 its far,; exai tly what estate did pass, and that it was less than a fee.
 
 I. i.] FREEHOLDS OF INHERITANCE OR FEES. 485 
 
 Rawle on Cov. for Title, 420; Blanchard v. Brook, 12 Pick. 67; 2 Co. 
 Litt. 385/,. 
 
 Lord Coke expressly says: But a warranty of itself cannot enlarge 
 an estate as if the lessor by deed release to his lessee for life, and 
 warrant the land to the lessee and his heirs; yet doth not this 
 enlarge his estate. 
 
 Justice Vredenburgh, in his opinion, admits this to be law. He 
 says, although the covenants cannot be used to enlarge the estate, 
 yet they may be used to show in what sense the words in the con- 
 veying part of the deed were used. What is that but enlarging 
 what would otherwise be their meaning? If without explanation 
 they are insufficient to pass the estate, does not the explanation 
 enlarge their operation? 
 
 The learned judge, in his elaborate opinion, says: From these 
 covenants, it is demonstrated that, by the terms children by her 
 present husband, the grantor intended the heirs of her body by her 
 present husband. It follows from this argument, that although the 
 conveying part of the deed may not contain sufficient to convey the 
 estate as a fee simple, for example, yet that if the covenants show 
 an intent to pass a fee simple, it will pass. 
 
 The argument is, that the words of conveyance and covenant 
 must be construed together. If the covenants look to the larger 
 estate, that will pass upon the intent indicated. Children are said 
 to be equivalent to heirs, because she warranted to her heirs; and 
 the heirs are said to be not heirs general, because she called them 
 children. 
 
 The inconsistency between the conveyance and covenant shows 
 mistake in the one or the other. The safest rule of construction is 
 that propounded by the Supreme Court; that the quantity of the 
 estate conveyed must depend upon the operative words of convey- 
 ance, and not upon the covenants defending the quantity of estate 
 conveyed. 
 
 Starting with that premise, it seems difficult, nay impossible, to 
 reach the conclusion, that the covenants are to be looked to in the 
 interpretation of the conveyance, as such. 
 
 The covenants only attach to the estate granted, or purporting to 
 be granted. If a life estate only be expressly conveyed, the cove- 
 nantor warrants nothing more. The conveyance is the principal, 
 the covenant the incident. If they do not expressly enlarge the 
 estate passed by the operative words of the deed, I cannot perceive 
 upon what sound principle of construction they can have that effect 
 indirectly by throwing light on the intention of the grantor. In the 
 construction of a deed of conveyance the question is, not what
 
 486 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 estate did the grantor intend to pass, but what did he pass by apt 
 and proper words. If he has failed to use the proper words, no 
 expression of intent, no amount of recital, showing the intention, 
 will supply the omission, although it may preserve the rights of the 
 party under the covenant for further assurance or in equity upon a 
 bill to reform the deed. 
 
 The object of the covenants of a deed is to defend the estate 
 passed, not to enlarge or narrow it. To adopt, as a settled rule of 
 interpretation, that deeds are to be construed like wills, according 
 to the presumed intent of the parties making them, to be deduced 
 from an examination of the whole instrument, would be dangerous, 
 and, in my judgment, in the last degree inexpedient. It is far better 
 to adhere to the rigid rules established and firmly settled for cen- 
 turies, than to open so wide a door, for litigation, and render uncer- 
 tain the titles to lands. The experience of courts in the construc- 
 tion of wills, the difficulty in getting at the real intent of the party, 
 where imperfectly expressed, or where he had none; the doubt 
 which always exists in such cases, whether the court has spelt out 
 what the party meant, all combine to show the importance of adher- 
 ing to the rule, that the grantor of a deed must express his intent 
 by the use ol the necessary words of conveyance, as they have 
 been settled long ago by judicial decision and the writings of the 
 sages of the law. Upon this point, it is not safe to yield an inch; 
 if that is done, the rule is effectually broken down. Where shall we 
 stop if we start here? 
 
 Littleton says: Tenant in fee simple is he which hath lands or 
 tenements to hold to him and his heirs forever. For if a man would 
 purchase lands or tenements in fee simple, it behooveth him to have 
 these words in his purchase: " To have and hold to him and his 
 heirs." For these words, " his heirs," make the estate of inherit- 
 ance. For if a man purchase lands by these words, " to have and to 
 hold to him forever," or by these words, " to have and to hold to 
 him and his assigns forever," in these two cases he hath but an 
 estate for life, for that there lack these words, " his heirs," which 
 words only make an estate of inheritance, in all feoffments and 
 grants. 
 
 ' These words, ' his heires,' doe not only extend to his immediate 
 heires, but to his heires remote and most remote, born and to be 
 born, sub t/uibus vocabulis ' hceredibus si/is' omnes hceredes, propinqui 
 comprehenduntur, et remoti, nati et fiascituri and hotredum appellatione 
 veniunt, hceredes hoeredum in infinitum. And the reason wherefore the 
 law is so precise to prescribe certaine words to create an estate of 
 inherit. ui< e, is for avoiding of uncertainty, the mother of contention
 
 I. I.] FREEHOLDS OF INHERITANCE OR FEES. 487 
 
 and confusion." Co. Lit., vol. 1,1 a, & bj 1 Shep. Touch. 101; 
 Com. Dig., tit. Estate, A, 2; Preston on Est., 1, 2, 3, 4, 5; 4 
 Cruise's Dig., tit. 32^, 21c, 1. 
 
 There are but two or three exceptions to this rule. The cases of 
 sole and aggregate corporations, and where words of reference are 
 used "as fully as he enfeoffed me." A gift in frank marriage, 
 etc., which are to be found stated in the authorities already cited. 
 
 These exceptions create no confusion; they are as clearly defined 
 and limited as the rule itself. 
 
 The word " heirs " is as necessary in the creation of an estate tail 
 as a fee simple. 1 Co. Lit. 20, a; 4 Cruise's Dig., tit. 32 e, 22, §1154 
 Kent's Com. 6; Bl. Com. 114. 
 
 This author sets this doctrine in clear light. He says: As the 
 word heirs is necessary to create a fee, so, in further limitation of 
 the strictness of feodal donation, the word body, or some other 
 word of procreation, is necessary to make it a fee tail. If, there- 
 fore, the words of inheritance or words of procreation be omitted, 
 albeit the other words are inserted in the grant, this will not make 
 an estate tail, as if the grant be to a man, and his issue of her body, 
 to a man and his seed, to a man and his children or offspring, all 
 these are only estates for life, there wanting the words of inherit- 
 ance. 
 
 The rule in Shelley's Case, that when the ancestor, by any gift or 
 conveyance, takes an estate of freehold, and in the same gift or 
 conveyance an estate is limited either immediately or mediately to 
 his heirs in fee or in tail, that always in such cases the word heirs 
 are words of limitation, and not of purchase, 1 Rep. 93; 4 Cruise's 
 Dig., c. 23, § 3, tit. 32, require the use of the word heirs to bring it 
 in operation. 
 
 No circumlocution has been ever held sufficient. It is believed 
 no case can be found where this rule has been held to apply unless 
 the word heirs has been used in the second limitation. 
 
 Neither the researches of the learned judge who delivered the 
 opinion of the Supreme Court, nor those of the very diligent coun- 
 sel who argued the case here, have produced a case decided in Eng- 
 land or in any state of this Union abiding by the common law, 
 where, in a conveyance by deed, the word children has been held to 
 be equivalent to heirs. That this has been determined in regard to 
 wills is freely conceded, but that does not answer the requisition. 
 The reasoning of the Supreme Court is, to my mind, entirely 
 unsatisfactory. In the administration of the law of real estate, I 
 prefer to stand super antiquas vias, stare decisis; to maintain the great 
 rules of property, to adopt no new dogma, however convenient it
 
 488 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CM. I. 
 
 may seem to be. The refined course of reasoning adopted in the 
 face of so great a weight of authority rather shows what the law 
 might have been, than what it is. 
 
 I am utterly unprepared to overturn the common law, as under- 
 stood by Littleton, Coke, Shepherd, Cruise, Blackstone, Kent, and 
 all the judges who have administered it for three centuries, and to 
 adopt the dogma, that intention, not expression, is hereafter to be 
 the guide in the construction of deeds. That would be as unwar- 
 rantable as dangerous. 
 
 Under this deed, Mrs. Adams took an estate for life, which was 
 not enlarged by the subsequent limitation to a fee tail. The 
 remainder vested in Anna Adams, the child of the marriage, for 
 life, subject to open and let in after-born children to the same 
 estate. 
 
 The deed operated as a covenant to stand seized. The proper 
 and technical words of such a conveyance are, stand seized to the 
 use of, etc.; but any other words will have the same effect, if it 
 appear to have been the intention of the parties to use them for 
 that purpose. The words bargain and sell, give, grant, and con- 
 firm, have been allowed so to operate. 4 Cruise, tit. 32, c. 10, §§ 
 1, 2. 
 
 By such a covenant, an estate may be limited to a person not in 
 esse, if within the considerations of blood or marriage. Fearne on 
 Rem. 2S8; 1 Rep. 154, a; 1 Preston on Est. 172, 176; 4 T. Rep. 39; 
 Doe v. Martin. 
 
 This deed, on the face of it, expresses the considerations of nat- 
 ural love and affection, as well as the money consideration of one 
 dollar. 
 
 It follows, from these considerations, that Adams is not entitled 
 to curtesy in the lands on surviving his wife. The mortgage to 
 Ross created no valid charge on the estate against Mrs. Adams, she 
 being a minor when it was executed. 
 
 Mrs. Adams, interest in the land was subject to the provisions of 
 the act for the better securing the property of married woman, 
 passed March 25th, 1852; the deed to her was after this act passed. 
 
 This was clearly a gift or grant, within the meaning of the act. 
 The legislature did not intend to limit the benefits of the act to prop- 
 erty conveyed by a deed operating as a gift or grant; all the ordi- 
 nal-}' mod* s of acquiring property by deed were intended by the use 
 of the terms gift, grant. The reasoning of Justice Vredenburgh 
 upon this point is conclusive. Upon the determination of the 
 respective life '-states, the land reverts to Miss Traphagen. 
 
 The judgment of the Supreme Court must be reversed. The
 
 I. i.] FREEHOLDS OF INHERITANCE OR FEES. 489 
 
 money in court must be invested for the benefit of Mrs. Adams for 
 life, and after her death for the benefit of the surviving children of 
 the marriage, in equal shares, during their respective lives, and at 
 their deaths respectively; their several shares must be paid to Miss. 
 Traphagen, or if she be then dead, to her heirs or devisees. 1 
 
 COLE v. THE LAKE COMPANY. 
 
 54 New Hampshire, 242. — 1S74. 
 
 Bill in equity by Cole to procure the reformation of a certain 
 lease and to enjoin the defendants from interfering with certain 
 structures erected by plaintiff, which (as he claims), he would have 
 had a right to erect had the written lease conformed to the inten- 
 tion of the parties. The court below decreed that the lease be 
 reformed and granted the injunction. A further question arises in 
 this court as to whether the instrument as reformed is a lease '' at 
 will " or " for life," or whether it is to be taken as a lease in fee, 
 reserving a fee-farm rent. This court holds that it is not at will. 
 The discussion as to whether it is for life or in fee will be found in 
 that part of the opinion which is reported below, together with the 
 essential facts. 2 
 
 Ladd, J. — * * * The word " heirs " does not appear in the 
 lease. The defendants thereupon contend that, at most, it conveys 
 only a life estate to the lessees. The plaintiff claims that the whole 
 instrument read together is sufficient to give a perpetual right to 
 take and use the water upon the terms and conditions therein speci- 
 fied, — that is, a fee, — but at the same time moves that in case the 
 court should be of a different opinion, the lease may be reformed by 
 inserting the proper words of inheritance, so as to express in legal 
 language the actual contract of the parties according to their inten- 
 tion when it was made. 
 
 Before proceeding to consider the question thus raised, we may 
 as well say, that, from an examination of the lease alone, without 
 resorting to extrinsic evidence at all, we entertain no doubt that 
 
 1 It would seem that technical words of limitation are still required to pass a 
 fee in Maine, Vermont, Massachusetts (see below, p. 496, and Sedg7uick v. 
 Lajlin, 10 Allen 430), Rhode Island, Connecticut, Pennsylvania, New Jersey, 
 Delaware, South Carolina, Florida, Ohio and Wyoming. For the New Hamp- 
 shire common-law rule, see below, Cole v. The Lake Co., p. 489. — Ed. 
 
 2 A large part of the opinion is omitted. The part printed is useful here 
 mainly as explaining and illustrating feudal doctrine. — Ed.
 
 490 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 the understanding and contract of the parties were as claimed by 
 the plaintiff. The defendants demised and leased to the plaintiff 
 and others the right to draw a certain quantity of water from their 
 canal through a flume to the plaintiff's mills and buildings on certain 
 land, for the use and operation of the plaintiff's mills and machin- 
 ery; gave the plaintiff the right to maintain the flume and keep it in 
 repair, and for that purpose to enter upon the defendants' land, 
 " to have and to hold said demised premises to the said lessees, 
 paying a certain yearly rent." Everything included in those stipu- 
 lations " shall extend to and bind their legal representatives; " the 
 fair meaning of which is that every right of the parties under the 
 instrument shall extend to their legal representatives. This is all 
 expressed in the common language of the country. No technical 
 words, presumed to be used in a settled, technical, legal sense, are 
 employed. The intention of the parties is therefore to be found in 
 the ordinary, natural, and popular signification of the written 
 language in which they choose to express themselves. In point 
 of fact, there is nothing for construction here at all, for it is a pri- 
 mary maxim that it is not permitted to interpret what has no need 
 of interpretation. It is not permitted to the court to defeat the 
 plainly expressed intention of the parties, by distorting, explaining 
 away, or wresting from its commonly received import the language 
 they have used, under the name and guise of construction. 
 
 The language of this lease, in its ordinary, natural, and popular 
 sense, makes the intention of the parties to pass a perpetual right 
 obvious and unmistakable. Such being, in fact, the manifest mean- 
 ing of the instrument, and the indubitable intention of the parties 
 as therein expressed, it might not be difficult to find authority on 
 which to hold that the deed should be treated as reformed in con- 
 formity with that intention under the prayer for general relief in 
 the bill. Busby v. Little field, 31 N. H. 200, and authorities cited. 
 
 There may also be room for doubt whether the defendants, hav- 
 ing entered into a covenant in terms undeniably sufficient to bind a 
 corporation of this sort forever, could be permitted to repudiate it 
 on the ground that the estate is limited to the legal representatives 
 rather than the heirs of the lessees, so long as the conditions upon 
 which the estate was granted continue to be performed by any one 
 who comes within the class designated by the term legal representa- 
 tives. Coke Litt. 9 /'. 94 </. ; 2 Bl. Com. 108, notes; 4 Kent Com. 
 7; 1 VVashb. R. P. 58. We have not chosen, however, to examine 
 cither of these propositions, but prefer, rather, to inquire whether 
 there exists in this state any law whereby a legal contract, fairiy and 
 openly concluded between the parties, and by them put in writing
 
 I. i.] FREEHOLDS OF INHERITANCE OR FEES. 49I 
 
 in terms so plain as to leave no room for doubt as to the obligations 
 they have thereby mutually assumed, is set aside and nullified for 
 want of a single word, purely technical in its legal effect, which 
 adds nothing to the sense of the instrument, and can only be made 
 consistent with the intention it is held to express by an interpreta- 
 tion which withdraws it entirely from all the ordinary uses of the 
 language in which it is found. There being no doubt as to what 
 the contract between these parties was, no doubt as to the meaning 
 of the lease, the question we propose to consider is, whether that 
 contract is to be destroyed by an application of the proposition that 
 to create a fee the word " heirs " must be employed. 
 
 Suppose A., being the owner in fee of a piece of land, by a deed 
 duly executed, conveys to B. all " his estate and interest therein," 
 and expressly declares in the same deed that B., having paid him 
 the full value of the land, it is his intention, and the effect of the 
 deed shall be, to pass an absolute title in fee simple to B A rule 
 of law defeating that intention and preventing the deed from hav- 
 ing the effect intended to be given by its express terms — constru- 
 ing the language, " This deed shall pass, and shall be construed to 
 pass, a fee," to mean " This shall not pass, and shall be construed not 
 to pass a fee " because the superfluous word " heirs " was not 
 used — would undoubtedly strike the unlearned with a degree of 
 astonishment. Such a rule must appear to an intelligent layman, 
 unfamiliar with the mysteries of the fossil remains of feudal institu- 
 tions, as arbitrary, destructive, tyrannical, and in most violent con- 
 flict with all ideas of legal reason which such a person can 
 comprehend. 
 
 The question whether that rule is part of the law of this Si ate is 
 presented for our consideration in the present case, in a form which 
 differs in no material respect from the case supposed for illustration. 
 
 It is said to be a rule of the common law that without the word 
 "heirs" a fee-simple in land cannot pass by deed; and that this 
 rule is so absolute and unyielding, that, no matter how clearly the 
 intention of the grantor to convey a fee may be stated in the deed, 
 such intention can be of no avail without that word. Washb. R. P. 
 3k. I., ch. Ill, sec. 53, and authorities in notes. A priori we should 
 expect to find a rule which in its practical application brings about 
 results so anomalous and absurd, but which is, nevertheless, 
 enforced with such remorseless rigor by the courts, upheld by 
 reasons very plain and very imperative. Naturally we should also 
 expect that the books, which are full of cases where its application 
 has produced palpable injustice, more or less aggravated according 
 to circumstances, would also be filled with strong and conclusive
 
 492 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 reasons in its support On the contrary, what does appear? I ven- 
 ture to affirm that since the revolution by which the house of Stuart 
 was finally excluded from the British throne, when most of the 
 shackles which feudalism had riveted upon the tenure of lands 
 throughout the kingdom were removed, not a reason, nor the sem- 
 blance of a reason, growing out of the condition and wants of soci- 
 ety, the progress of civilization, the exigencies of trade, or the 
 analogies of the law can be found in its support in any country or 
 state where the common law has been used. 
 
 The rule is a feudal one: that it had no place in the laws of the 
 Saxons is shown by Reeves. Speaking of the form of charters at 
 about the time of the Norman Conquest, he says: " The words of 
 limitation to convey a fee, whether absolute or conditional, were 
 divers; " and after giving a number of Latin forms which were used, 
 some of them containing the word " hceredibus" and some not, he 
 continues, " from which divers ways of limiting estates (and number- 
 less other ways might be produced), it must be concluded that no 
 specific form had been agreed on as necessarily requisite to express 
 a specific estate; but the intention of the grantor was collected, as 
 well as could be, from the terms in which he had chosen to convey 
 his meaning." i Reeves's Hist. Law (Finlason), 42. 
 
 Blackstone says: " This very great nicety about the insertion of 
 the word ' heirs ' in all feoffments and grants, in order to vest a 
 fee, is plainly a relic of the feudal strictness; by which we may 
 remember it was required that the form of the donation should be 
 punctually pursued; or that, as Cragg expresses it in words of 
 Baldus, ' donatio 'ties sint stricti juris ne quis plus donasse prazsumatur 
 quam in donatione expresserit. And, therefore, as the personal abili- 
 ties of the donee were originally supposed to be the only induce- 
 ments to the gift, the donee's estate in the land extended only to 
 his own person, and subsisted no longer than his life; unless the 
 donor, by an express provision in the grant, gave it a longer con- 
 tinuance, and extended it also to his heirs. 2 Bl. Com. 107, Chan- 
 cellor Kent says: " The rule was founded originally on principles of 
 feudal policy which no longer exist, and it has now become entirely 
 technical," and he gives the same reason for it as Blackstone. 
 4 Kent Com. 6. 
 
 I - 1 omprehend fully the reasons which gave birth to this rule, we 
 t to recall not only the nature of the feudal tenures of land in 
 land, but the history of the origin and development of the sys- 
 tem itself, which before the close of the eleventh century had suc- 
 led, mainly by conquesl and force, in vesting the ultimate 
 ownership of nearly all the lands in England, as well as on the con-
 
 I. i ] FREEHOLDS OF INHERITANCE OR FEES. 493 
 
 tinent of Europe, in the feudal lords, and parcelling them out 
 among a few military chieftains or leaders of bands of predatory 
 barbarians. * * * 
 
 Blackstone says: "At the first introduction of feuds, as they were 
 gratuitous, so also they were precarious, and held at the will of the 
 lord, who was then the sole judge whether his vassal performed his 
 services faithfully. Then they became certain for one or more 
 years. Among the ancient Germans they continued only from year 
 to year. . . . But, when the general migration was pretty well 
 over and a peaceable possession of the new-acquired settlements had 
 introduced new customs and manners; when the fertility of the soil 
 had encouraged the study of husbandry, and an affection for the spots 
 they had cultivated began naturally to arise in the tillers, — a more 
 permanent degree of property was introduced, and feuds began now 
 to be granted for the life of the feudatory. But still feuds were not 
 yet hereditary, though frequently granted by the favor of the lord 
 to the children of the former possessor; till in process of time it 
 became unusual, and was therefore thought hard, to reject the 
 heir, if he were capable to perform the services. . In pro- 
 
 cess of time feuds came by degrees to be universally extended, 
 beyond the life of the first vassal, to his sons, or perhaps to such 
 one of them as the lord should name, and in this case the form of 
 the donation was strictly observed; for, if a feud was given to a 
 man and his sons, all his sons succeeded him in equal portions, and 
 as they died off, their shares reverted to their lord, and did not 
 descend to their children, or even to their surviving brothers, as 
 not being specified in the donation. But when such a feud was 
 given to a man and his heirs, in general terms, then a more 
 extended rule of succession took place; and when the feudatory 
 died, his male descendants in infinitum were admitted to the succes- 
 sion. . . . Other qualities of feuds were, that the feudatory could 
 not alien or dispose of his feud; neither could he exchange, nor yet 
 mortgage, nor even devise it by will, without the consent of the lord. 
 For the reason of conferring the feud being the personal abilities of 
 the feudatory to serve in war, it was not fit he should be at liberty 
 to transfer this gift, either from himself, or from his posterity, who 
 were presumed to inherit his valor, to others who might prove less 
 able." 2 Bl. Com. 55. * * * 
 
 These extracts are enough to show that the word " heirs," when 
 first introduced into charters and feoffments, was a word of very 
 great importance. It enlarged the right of the vassal from one held 
 either at the will of the lord, or for his own life, to a permanent and 
 hereditary interest. It signified an undertaking by the lord that he
 
 494 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CI I. I. 
 
 would accept the heir as his vassal, and that all the rights and obli- 
 gations growing out of that relation should be extended to him. It 
 was, in effect, simply a stipulation for a renewal of the lease upon 
 the same terms with the heir of the first lessee. They also show to 
 some extent the nature of the institutions and condition of society 
 in which the rule we are speaking of originated and to which it was 
 applicable, and strongly present the contrast between those institu- 
 tions and our own._ 
 
 It is important to our inquiry that the utter repugnancy and 
 hostility of feudal institutions to ours should be fully borne in 
 mind. * * * 
 
 It was to answer one of the conditions upon which the existence 
 of such a system depended that the rule in question was introduced. 
 Unless the lord bound himself that the fief should go to the heir of 
 his vassal, the heir had no rights in it on the death of his ancestor, 
 but the lord, being the absolute owner of the soil, might bestow the 
 fief upon any stranger who would enter into homage and do fealty 
 to him for the land, upon such new services as he might impose. 
 
 The rule was nothing more nor less than the practice of the 
 feudal sovereign, securing and perpetuating his grasp upon all the 
 land, and the service of all the landholders in his realm. Its origin, 
 purpose, and history show it to be in no way adapted to our institu- 
 tions, system of government, or condition of society. As a feudal 
 rule of construction, it was a recognition of the fact that the vassal 
 held his lord's land upon the condition of rendering in his own per- 
 son certain services to his lord. The vassal, thus holding the land 
 by reason of the personal trust and confidence reposed in him by 
 his lord, could not assign, nor could his heirs inherit, his obligation 
 of personal service on the land held on such a condition. Flanders 
 v. Lamp/iear, 9 N. H. 201; Eastman v. Batchclder, 36 N. H. 141; 
 Bethlehem v. Anns, 40 N. H. 34, 41, 42. The feudal rule is inappli- 
 cable to a conveyance of New Hampshire land not held by any such 
 tenure. 
 
 When the fetters which feudalism had fastened upon the tenure 
 of lands in England fell off, every reason on which this rule had 
 rested fell with them. Why should the rule itself be retained? 
 Lord Coke says: " Cessante ratione legts, eessat ipsa lex." Coke, 
 Litt. 70 b. And that has come to be — indeed, it was then — one 
 of the most familiar maxims of the law. The fourth maxim of con- 
 Struction of statutes laid down by Dwarris is, An act of parliament 
 cannot alter by reason of time; but the common law may, since 
 cessante ratione eessat lex. Potter's Dwar. 122. 
 
 But suppose the rule was retained in England after the reason of
 
 I. i.] FREEHOLDS OF INHERITANCE OR FEES. 495 
 
 it ceased and that it was engrafted upon the common law at the 
 time of the settlement of this State and the adoption of the consti- 
 tution, the question is, Has it been adopted here? The framers of 
 the constitution, in providing for the continuance of such laws as 
 had theretofore been adopted and approved, etc., wisely excepted 
 such parts thereof as should be found repugnant to the rights and 
 liberties contained in that instrument. Const. N. H., art. 90. 
 This implies that there might be some parts of the common law to 
 which the exception should be applied. With all the devotion to 
 the general principles of the common law which eminently distin- 
 guished that generation of men, they could not fail to see that as a 
 body of municipal law it was not wholly free from defects. They 
 must have known, as Judge Cooley says, that many of its features 
 were exceedingly harsh and repulsive, and gave unmistakable proofs 
 that they had their origin in times of profound ignorance, supersti- 
 tion, and barbarism; that the feudal system, which was essentially 
 a system of violence, disorder, and rapine, gave birth to many of 
 its maxims; and that some of these, long after that system had 
 passed away, might still be traced in the law, especially in the rules 
 which govern the acquisition, control, and enjoyment of real estate. 
 Cooley's Const. Lim. 22. Hence the exception. Accordingly it 
 has many times been held, under our constitution, that if there is 
 any part of the common law incompatible with our institutions or not 
 adapted to our circumstances, it does not prevail here. Lisbon v. 
 Lyman, 49 N. H. 582, and cases cited. 
 
 They who brought the general body of the common law with 
 them to this region might well have omitted to bring the feudal 
 rule, not because it was fabricated in a barbaric age, but because it 
 was designed and fitted to perpetuate a barbaric condition; not 
 because it originated in a foreign land, but because it was not suited 
 to the commonwealth which our foreign ancestors came to this 
 country to organize; not because, as a part of the military system 
 of Europe, it was less necessary in feudal times than other compul- 
 sory methods of filling armies and navies in other times, but because 
 the general feudal relation of lord and vassal not being an incident 
 of New Hampshire civilization, and the particular debt of personal 
 service due from the vassal to the lord (which the heirs of the vas- 
 sal might be incompetent to perform) not being a universal consid- 
 eration of the conveyance of New Hampshire real estate, the feudal 
 rule (requiring the word " heirs " as evidence of the lord's intention 
 to assume the risk of his vassal's heirs being incapable of the stipu- 
 lated service), was inapplicable to the situation and circumstances 
 of the emigrants, and implied a servitude inconsistent with the prin- 

 
 496 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 ciples of personal freedom and equality which pervaded their social 
 and political plan, hostile to the general object of their emigration, 
 and particularly subversive of that absolute ownership of the soil 
 which they specially sought in the new world. 
 
 It appears that in Massachusetts, prior to 165 1, the word " heir " 
 was " oftentimes omitted when an estate of inheritance is intended 
 to be passed by the parties; " and in that year a statute was passed 
 by the general court introducing the feudal rule, which has been 
 maintained in that state by statute ever since. Sedgwick v. Laflin, 
 10 Allen, 430. When the union which at the time existed between 
 Massachusetts and New Hampshire was dissolved, the people of the 
 latter province, 1660, adopted a code made up mainly by copying 
 such of the Massachusetts statutes as they thought adapted to their 
 wants. In that code this act was omitted, and no statute on the 
 subject has ever existed here. The word must have been omitted 
 as often proportionally here as in Massachusetts; and when the 
 attention of our people had been directed to the subject by a statute 
 under which they lived for twenty-eight years, the omission could 
 hardly have been accidental. They were for several generations 
 engaged in vigorously resisting Mason's claims to a proprietorship, 
 which if maintained would have given him a substantial baronial 
 dominion over the whole province, with the title of lord-protector, 
 which he assumed. Belk. Hist. N. H. 94 (ed. 1831); and see 1 
 N. H. Prov. Pap. 433-582. There was nothing in their history in 
 this, any more than in the old country, calculated to impress them 
 with the expediency of introducing the mediaeval rule, either by 
 statute, or by consent and general understanding without a statute. 
 We know of no reason why they should have desired or intended to 
 do so. 
 
 The effect of the Massachusetts statute in Sedgwick v. Laflin, 
 illustrates the difficulties and injustice occasioned by importing a 
 rule so incompatible with American institutions as to be capable, 
 upon legal principles, of being introduced by nothing short of 
 express legislation. Like many other arbitrary rules that might be 
 made, it would prevent some litigation that would be necessary for 
 rtaining the intention of the parties upon rules of construction 
 elated to discover their intention. Put the evils of such litiga- 
 tion cannot be compared with the gross injustice that would be per- 
 petrated by such a rule, arbitrarily and summarily defeating the 
 intention of the parties, where the evidence happened not to be 
 Stiffii ient (as it would be likely to be now that the parties can tes- 
 tify) to induce them to resort to litigation to have their deeds 
 reformed and their intentions carried out in suits in chancery. * * *
 
 I. i.] FREEHOLDS OF INHERITANCE OR FEES. 497 
 
 The rule was not applied at common law in England to the con- 
 struction of wills — Coke, Litt. 322 b. ; Com. Dig., Devise, (N. 4); 
 Chitty's Note 2 Bl. Com. 108 — nor in this state, irrespective of 
 the statute of 1822 —Fogg v. Clark, 1 N. H. 163; M'Afee v. Gil- 
 man, 4 N. H. 391; Forsaith v. Clark, 21 N. H. 409 — where, 
 although the decision was after the statute, the will was proved very- 
 long before. 
 
 In Loveacrcs v. Blight, Cowp. 352, Lord Mansfield said: " I really 
 believe that almost every case determined by this rule, as applied to 
 a devise of lands in a will, has defeated the real intention of the tes- 
 tator; for common people, and even others who have some knowl- 
 edge of the law, do not distinguish between a bequest of personalty, 
 and a devise of real estate. But, as they know when they give a 
 man a horse, they give it to him forever; so they think if they give 
 a house or land, it will continue to be the sole property of the per- 
 son to whom they have left it. Notwithstanding this, where there 
 are no words of limitation, the court must determine in the case of 
 a devise affecting real estate, that the devisee has only an estate for 
 life; because the principle is fully settled and established, and no 
 conjecture of a private imagination can shake a rule of law. 
 
 " But as this rule of law has the effect I have just mentioned, of 
 defeating the intention of the testator in almost every case that 
 occurs, the court has laid hold of the generality of other expressions 
 in a will, where any such can be found, to take the devise out of 
 this rule. ... In general, wherever there are words and 
 expressions, either general or particular, or clauses in a will, which 
 the court can lay hold of to enlarge the estate of a devise, they will do 
 so to effectuate the intention." He did not explain by what author- 
 ity the court has laid hold of the generality of other expressions in 
 a will to take the devise out of this rule, or how it would be possible 
 in that way to give effect to the intention of the testator without 
 shaking a rule of law by the conjecture of a private imagination, 
 provided it is a rule of law that the word " heirs " is indispensable 
 to the passing of a fee. Nor did he do what would have been more 
 useful still, that is to say, point out the reason for a distinction in 
 this respect between the construction of a will and a deed. 
 The reason for not applying the rule to wills is sensible and 
 easily understood. It is, as Lord Coke expresses it, quod- 
 ultima voluntas testatoris est primplenda secundum veram intentionem 
 suam. Coke, Litt., 322 b. But this shows no reason for the dis- 
 tinction. It does not show why the intention of the maker of the 
 instrument is any more sacred in one case than in the other, nor by 
 what right the court can abrogate the rule in favor of one class of 
 
 LAW OF PROP. IN LAND — 32
 
 498 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 donees, if it must be rigidly enforced against the other. If for any 
 reason, however mysterious, a fee in land could not pass without the 
 use of this potent word, all efforts of the court to bring about such 
 a result where the word was wanting, whether in a will or deed, 
 must have failed. But in the case of wills those efforts did not fail. 
 What, then, became of the feudal rule? It yielded to reason. It 
 was swept away by the monstrous absurdity and injustice which its 
 application must involve. It could not stand, because no enlight- 
 ened court could uphold it, and in so doing defeat the manifest 
 intention of the donor, without feeling that they were ministers of 
 arbitrary oppression and wrong rather than of law. For obvious 
 reasons the same question as to defeating the intention of the 
 grantor in a deed seldom comes up. But when it does arise, how 
 can that intention be defeated without involving a violation of com- 
 mon right and common sense, equally glaring and flagrant? Where 
 is the reason for upholding the rule as to deeds, and rescinding it 
 as to wills? By what right can the courts say that the intention of 
 a testator plainly written in his will shall govern, but the intention 
 of a grantor as plainly written in a deed of bargain and sale shall be 
 set at naught, the consideration of the sale be disregarded, and the 
 property be thrust back upon the grantor or his heirs, on the death 
 of the grantee, for the want of this fuedal word inheritance? 
 
 In the nature of things the word is no more necessary to the valid 
 conveyance of land than to the valid conveyance of a horse. Its 
 use was necessary in the scheme of a semi-barbarous institution, a 
 vast engine of slavery and oppression, an instrument of violence and 
 disorder, which had no better security for its continued existence 
 than superiority of brute force, and which was swept away upon the 
 dawn of a better civilization more than five hundred years ago. 
 Why is its use still required in one class of instruments and not in 
 the other, when both have the same object in view, namely, the 
 conveyance of land? 
 
 I have not found any answer to this inquiry. The legal significa- 
 tion and effect of the word as used in our deeds of bargain and sale 
 are purely technical. Strictly speaking, there is no one in exist- 
 ence at the time of the grant to answer the description. Nemo est 
 hares viventis. Those who may become the heirs of the grantee take 
 not the slightest present interest by virtue of the word. The con- 
 ince v.sts the absolute and unlimited ownership in the grantee; 
 the word imposes no restraint on his power of alienation. Never- 
 theless it has a settled and well understood meaning as thus used, 
 and, as a legal term, is very convenient and useful to show that the 
 e granted is a fee. It could not now be safely omitted without
 
 I. I.] FREEHOLDS OF INHERITANCE OR FEES. 499 
 
 using some other form of expression showing with legal accuracy 
 the intention and contract of the parties. 
 
 Of course it will not be omitted by any conveyancer or other per- 
 son who knows the significance it has acquired. But when a case 
 arises where the intention of the grantor to convey a fee simple is 
 clearly shown by other words in the deed, we think the court have 
 no power to say a fee shall not pass because he has not, in addition, 
 inserted this technical word, using it in a sense entirely distinct and 
 different from its usual and common import. Our conclusion is, 
 that the rule, which would defeat the obvious intention and destroy 
 the plainly expressed contract of the parties in the present case, is 
 not adapted to our institutions or the condition of things in this 
 State; that it never became part of the law of the State, and, there- 
 fore, that this instrument conveys to the lessees a perpetual right 
 to take and use the water upon the terms and conditions specified, 
 which right may pass to their heirs and assigns as a fee. 
 
 A decree is to be entered in accordance with these views. 
 
 (2.) Incorporation of Words of Limitation by Reference to Another 
 
 Instrument. 
 
 LEMON v. GRAHAM. 
 
 131 Pennsylvania State, 447. — 1889. 
 
 Ejectment. Plaintiff was nonsuited below. The facts appear in 
 the opinion. 
 
 Williams, J. — The title to the land in controversy was, in 1866, 
 vested in James Ramsey, under whom both parties claim. In 
 August of that year he made an assignment to his son, Allen Ram- 
 sey, which was written on the back of the deed under which he 
 acquired title, and delivered the paper on which the deed and the 
 assignment were written to his son. The assignment was in these 
 words: 
 
 " I, James Ramsey, do hereby assign and set over all my right, 
 title, claim, interest, property, and demand whatsoever in and to 
 the within deed unto Allen Ramsey, for value received. Witness 
 my hand and seal this 3d day of August, 1866. 
 
 James Ramsey. [Seal.] 
 
 "Attest: George Bish." 
 
 Eighteen years later, in 1884, he conveyed the same land by deed 
 to his daughter, Elizabeth Jane Graham. The father was in posses-
 
 500 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 sion until his death. Allen Ramsey died before his father. This 
 action was brought by the heirs at law of Allen. The defense 
 alleges that Allen took only a life estate in the land, under the 
 assignment made by his father to him, and that on his death his 
 title was extinguished, the fee having passed to Mrs. Graham under 
 the deed made to her in 1884. 
 
 Two questions were raised on the trial, and are now for determi- 
 nation. The first relates to the construction and legal effect of the 
 assignment to Allen Ramsey. The other is over the right of the 
 plaintiffs to show by George Bish, the scrivener by whom the assign- 
 ment was drawn, and the subscribing witness to its execution, what 
 the parties intended and agreed upon, what they asked him to put 
 in writing, and what he undertook to do for them. The learned 
 judge of the court below held that the assignment conveyed only a 
 life estate, and that evidence offered to show that a fee-simple was 
 intended, and that the failure of the scrivener was by mistake of his 
 own, was incompetent. 
 
 We do not doubt the general rule laid down by the learned judge, 
 that the word " heirs, v or its equivalent, is necessary in a deed in 
 order to vest a fee-simple in the grantee. The rule is as old as the 
 common law, and, as applicable to a formal deed, is well under- 
 stood, and constantly applied. It is the invariable practice of pro- 
 fessional conveyancers to describe the estate which it is intended to 
 convey, by apt words. If it is a fee, the words of inheritance are 
 introduced. If it is for the life of the grantee or of another, the 
 character and duration of the estate are clearly set forth. Instru- 
 ments having no apt words of description in them are not often met 
 with, but when encountered are found, like the one before us, to be 
 the work of men who have no professional training, and no knowl- 
 edge of the principles of conveyancing. They are almost always 
 intended to convey a fee-simple, and fail to do so because of the 
 omission of the necessary technical words, the importance of which 
 was unknown to the scrivener and to the parties. It is for this 
 reason that the courts have relieved against the mistakes so made, 
 when the proofs were sufficient to justify them in so doing, and have 
 applied the general rule only to such cases as came clearly within 
 its operation. Thus, the courts both in England and in this coun- 
 try have held that the word " heirs " was not necessary to pass an 
 absolute estate in fee when there was a gift by will, but that the 
 intent to vest a fee may be gathered from the will as a whole. Lit- 
 tle's App., 81 Pa. 190. So it has been held that an executory con- 
 tra- t without words of inheritance will pass a fee-simple in equity. 
 f > n v. Brown, 33 l'a. 247. And it was held in the case last cited
 
 I. i.] FREEHOLDS OF INHERITANCE OR FEES. 501 
 
 that the effect of an informal instrument transferring an interest in 
 real estate depends, not on any particular words or phrases found in 
 it, but on the intention of the parties as collected from the whole 
 instrument. This case was followed in the recent case of Dreisbach 
 v. Serf ass, 126 Pa. 32. 
 
 But the effort to avoid the rigor of the rule where its application 
 is not obligatory began long ago. Where technical words are sup- 
 plied by reference to another instrument which contains them, the 
 case was recognized as an exception as early as the days of Lord 
 Coke; and this exception was recognized by our own case of Lytle 
 v. Lytle, 10 W. 259, and followed. The rule was plainly laid down 
 in the last case cited that a fee simple may be created in Pennsyl- 
 vania, by deed without words of inheritance, by a reference to 
 another instrument in which such words are found, and it was made 
 clear that such was the rule in England at a very early date. The 
 following examples are from Shepherd's Touchstone. A convey- 
 ance was made by deed in which the grantor recited that " B. hath 
 enfeoffed him (the grantor), of white acre, to have and to hold to 
 him and his heirs, . . . and that as fully as B. has given white 
 acre to him and his heirs he doth grant the same to C." Here the 
 word " heirs " is supplied in the grant to C. by the reference to the 
 grant from B., and C. takes a fee-simple without the appearance of 
 words of inheritance in the grant to him. Another case is that of a 
 grant of two acres of land " to have and to hold, the one acre to A. 
 and his heirs, and the other acre to B. in forma predicta." Shep. 
 Touch. 101. Here B. takes a fee-simple by virtue of the reference 
 to the grant to A.., in which words of inheritance appear. The 
 reference shows the intent of the grantor, and is held to import the 
 words of inheritance into the grant to B. 
 
 In the light of these cases, let us look once more at the assign- 
 ment before us. We find the assignor held a deed in fee-simple, in 
 the usual form, made in 1862 by another son, John. On the back 
 of this deed the assignment is written. It refers for a description 
 of the estate granted to the terms of the deed upon which it is 
 indorsed, and professes to transfer to the assignee all the right, 
 title, interest, property, claim, and demand of the assignor " in and 
 to the within deed." What was the title of the assignor? That 
 question can only be answered by an examination of the description 
 of it in the body of the deed ; but, whatever it was, the assignor 
 undertakes to transfer it to his assignee. Not a part of it; not a 
 life estate carved out of it, but " all the right, title, interest, prop- 
 erty, claim, and demand " of the assignor. Nothing was left. He 
 transferred his whole estate, as vested in him by virtue of the deed,
 
 502 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 by the reference to its terms in the assignment. He said, in sub- 
 stance and in legal effect, " as fully as the within deed clothes me 
 with the title to the land described in if, so fully and completely do 
 I transfer the same land to my son Allen. He is to take from me 
 the title which I took from my grantor." The technical words that 
 are wanting in the assignment standing by itself, are thus supplied 
 by the reference to " the within deed " for a description of the 
 estate; and the fee-simple which the father took by the deed from 
 John he transfers by his assignment to Allen. This is what was 
 intended; and the scrivener wrought better than he knew in making 
 his reference to " the within deed " for a description of the " right, 
 title, estate, interest, property, claim and demand " of the assignor. 
 If Allen bought a life estate only, it is reasonable to suppose that he 
 would have taken possession; but he left his father in possession, 
 and in the full enjoyment of its proceeds. If the father understood 
 that he parted with a life estate only, and retained the fee, he would 
 naturally keep the deed under which he acquired title; but he 
 indorsed his assignment upon that deed, and delivered it so 
 indorsed, to Allen. We are satisfied, therefore, that the parties 
 intended just what our construction of the assignment shows they 
 did, viz., to convey the fee-simple to Allen. In this view of the 
 case, it becomes unnecessary to consider the other question at any 
 length. 
 
 The judgment is reversed, and a venire facias de novo awarded. 
 
 (3.) In the Transfer of a Fee to a Trustee. 
 WILCOX z>. WHEELER. 
 
 47 New Hampshire, 48S. — 1867. 
 
 Bill in equity to restrain defendants from cutting certain water 
 pipes. 
 
 Bellows, J. — This cause is heard upon bill and answer. The 
 defendants claim under William Simpson, alleging that by his deed 
 to Mr. Britton only an estate for life was granted. The substance 
 of that deed is, that, in consideration of one hundred dollars paid 
 by said Britton, agent for the Proprietors of Orford Bridge, Simp- 
 son conveys to him for the use of that corporation, and to his 
 assigns, two parcels of land, one being described as a road four rods 
 wide from the bridge to the main road, and the other apparently for 
 a toll-house; to have and to hold the same to said Britton in trust, as 
 aforesaid, and to his assigns.
 
 I. i.] FREEHOLDS OF INHERITANCE OR FEES. 503 
 
 By this deed, by force of the statute of uses, the title vested at 
 once in the corporation, as it had full capacity to take; and nothing 
 indicates any purpose that the legal estate should be kept on foot 
 in Mr. Britton. The conveyance was made to him, probably, 
 because conveyances directly to corporations had not then become 
 quite familiar. Had it been conveyed to the corporation directly, 
 then, as a corporation aggregate never dies, it would be a fee-simple 
 without words of succession or inheritance. Had it been a sole 
 corporation, words of succession would have been necessary. 
 
 This general doctrine is well settled; 4 Greenl. Crim. Dig. 279; 
 4 Kent's Com. 7, where it is said that the reason why, in deeds to 
 corporations aggregate, the word heirs or successors is not neces- 
 sary, is, " because in judgment of law a corporation never dies, and 
 is immortal by perpetual succession." So is Co. Lit. 9, 6. 
 
 Such being the law where the grant is directly to a corporation 
 aggregate, it would seem not to be unreasonable to apply the same 
 doctrine to a grant to a trustee for the use of such a corporation, 
 when it is of such a character that the whole title at once vests in 
 the corporation, making it substantially a grant to the corporation. 
 
 Upon this point the law is well established, that if there be a con- 
 veyance to a trustee, and the nature of the trusts is such as to 
 require a fee, then by necessary implication the trustee will take an 
 estate of inheritance, although there be no words of limitation. 
 
 In the case of devises this has long been the law, and even where 
 the purposes of the trust might probably be accomplished without a 
 fee; or, in other words, if by possibility the purposes of the will 
 might not be answered without the trustee had a fee, the will would 
 be so construed. Shaw v. Weigh, 2 Str. 798; Willis v. Lucas, 1 P. 
 Wms. 472; Collins Case, 6 Co. 16; and Ackland v. Ackland, 2 Vern. 
 687 ; Gibson v. Montfort, 1 Ves. Sen. 485 ; Oates v. Cooke, 3 Burr. 
 1684. So the intent to give a fee would be inferred from the fact, 
 that, by possibility, a fee might be necessary to effectuate the trusts, 
 and the leaning of the courts was very strong so to construe a 
 devise. 
 
 The same rules are applied to grants, and it was so distinctly laid 
 down in Cleveland v. Hallet, 6 Cush. 403, by Shaw, C. J., as an 
 exception to the rule requiring the use of the word heirs as well 
 established as the rule itself, viz. : that when a conveyance is in 
 trust, and the trusts are of such nature that they do, or by possibil- 
 ity may, require a legal estate in the trustee beyond that of his own 
 life, then without words of limitation in the conveyance to the 
 trustee, he shall take a fee. 
 
 In Newhall v. Wheeler, 7 Mass. 189-198, it was held, Parsons,
 
 504 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. I. 
 
 C. J., that though no words of limitation are used, the estate of the 
 trustee shall be commensurate with that of the cestui que trust. 
 
 So is Stearns v. Palmer 6° a/., 10 Met. 32, where the grant was in 
 trust for the use of " the inhabitants of the first parish in Spring- 
 field, and their heirs, forever, for a burying yard." 
 
 So is Gould cV° al. v. Lamb e° al., 11 Met. 84, where the convey- 
 ance is to A. B., to have, etc., as he is trustee under an indenture 
 tripartite, which showed the intention to be to give more than a 
 life estate; and so it was held that a fee passed without words of 
 limitation. 
 
 So in Brooks &f al. v. Jones, 11 Met. 191, which was a mortgage 
 to W., treasurer of a corporation, to have and to hold, etc., to him, 
 the said treasurer, and his successors in office, to his and their use 
 and behoof forever, the condition was to pay a sum of money to the 
 treasurer and his successors in office, and it was held that W. took 
 a fee in trust for the corporation, although the word heirs was not 
 used, but the intention was plain, and no stress was put upon the 
 term forever. 
 
 The same doctrine is laid down by Chancellor Kent, in Fisher v. 
 Fields, 10 Johns. 494, 505. So is Villiers v. Villiers, 2 Atk. 72. 
 
 In Welch v. Allen 6° al., 21 Wend. 147, it is held that where lands 
 are granted to a trustee without words of perpetuity, he will, by 
 implication of law, take a fee, if such estate be necessary to fulfil 
 the objects of the trust. 
 
 So the doctrine of Cleveland v. Hallett, before cited, is confirmed 
 in Attorney-General v '. Prop. Federal St. Meeting House, 3 Gra)', 1. 
 
 The conveyance to Glen, Hall, Shaw & al., for themselves, as a 
 committee chosen and appointed by the congregation of the Pres- 
 byterian Meeting House in Long Lane, etc., to have and to hold the 
 land in their said capacity, and to their successors forever, but to 
 and for the only proper use, and benefit, and behoof of the said con- 
 gregation, forever, and for no other use; and it was held that the 
 trustees took a fee upon the principle before mentioned, and no 
 stress is put on the word forever, and the corporation was not 
 incorporated. 
 
 So in King v. Parker 6° al., 9 Cush. 78, where the grant was to 
 V>., " in trust to and for the use of the Free Masons' Lodge in Bos- 
 inn, known by the name, etc., to their only proper use, benefit and 
 behoof forever," it was held that this proved the fee. 
 
 The question then is, whether this conveyance to Mr. Britton, 
 agent of the bridge corporation, to be held for the corporation, 
 p ed tin: fee without words of limitation; that is, whether the 
 intention to give the corporation the fee can be gathered from the
 
 I. i.] FREEHOLDS OF INHERITANCE OR FEES. 505 
 
 grant Had it been directly to the corporation, being a corporation 
 aggregate, the fee would have passed; and in all such cases where 
 the conveyance is through a trustee to hold for the use of such 
 corporation, the intention to make it perpetual is to be inferred, 
 and so are the Massachusetts cases already cited, we think. 
 
 Here the grant was of two pieces of land, for a road and toll- 
 house, both essential to the use of the bridge, as much so as the 
 land upon which stands the Federal street church; and it is impos- 
 sible to suppose that it was intended to grant an estate for the life 
 of Mr. Britton only, which might have ended in one year. Such 
 being the case, it must be considered that the fee passed, and at 
 once vested in the corporation. 
 
 In respect to some of the Massachusetts authorities, which hold 
 that where the purposes of the trust cannot be answered without a 
 greater estate than for life, then by implication a fee will pass, it is 
 urged by defendant's counsel that the intention to give a greater 
 estate is manifested by the use of the term forever, which in this 
 case is wanting. 
 
 It is obvious, however, that this term is not one of limitation 
 and only bears upon the question of intention, and if that is ascer- 
 tained by the nature of the grant, or the language used, whatever it 
 may be, the law will give effect to that intention, and in this case 
 we think the intention to grant a fee is very clearly to be inferred 
 from the nature of the grant itself. * * * 
 
 Perpetual injunction decreed. 1 
 
 (4.) In the Transfer of an Equitable Interest. 
 
 FISHER v. FIELDS. 
 
 10 Johnson (N. Y.), 495. — 1812. 
 
 Bill in equity to restrain Fields from prosecuting an action at 
 law in ejectment and to compel him to convey to Fisher the lands 
 in dispute. The bill was dismissed by the court below. Plaintiff 
 appeals. The further facts appear in the opinion. 
 
 Kent, Ch. J. — The appellants claim title to lot No. fifty-seven, 
 in Aurelius, under a deed from Benjamin Griffen, the soldier who 
 drew the lot, and in whose name the patent issued. This deed was 
 made on the 27th of March, 1784, and was drawn on the back of the 
 
 1 See Cole v. Lake Company, 54 N. H. 242 (1874), reported supra, p. 489, which 
 does not cite or discuss this case. — Ed.
 
 506 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 original discharge, and though no consideration was expressed in 
 the deed, yet the appellants have averred and proved a valuable 
 consideration given. The respondent claims under a subsequent 
 conveyance from the same soldier; and the sole question is whether 
 the appellants are entitled, under the first deed to the relief prayed 
 for by their bill. 
 
 It is not pretended that the respondent is a bona fide purchaser 
 without notice. It is in proof that he purchased with a knowledge 
 of the assignment to Birch, under whom the appellants claim; but 
 the defense is that the soldier's deed to Birch was not sufficient, in 
 law or equity, to entitle him to the land, or, at least, to any greater 
 interest than a life estate. 
 
 The Onondaga commissioners appear to have thought otherwise; 
 for they awarded that the equitable title was in the appellants, and 
 that the respondent held in trust for them. After a careful consid- 
 eration of the case I am of the same opinion. 
 
 When the soldier assigned over his right Birch, in 1784, he had 
 no legal title. He had only an equitable claim upon the state, 
 founded upon the concurrent resolution of the Legislature of March, 
 1783. It was not requisite, therefore, that he should make use of 
 the same formal and technical conveyance that would have been 
 proper, if he was conveying an estate in fee. It was only an assign- 
 ment of an equitable interest, and it was sufficient if he used words 
 that denoted clearly and explicitly his intention. The deed here 
 was on the back of his discharge, and it is declared that Birch was 
 entitled to all the lands that he was entitled to, either from the 
 state or continent, for his services as a soldier. This was a full 
 declaration of trust. No person could possibly mistake its mean- 
 ing; and there is no just pretense that it was not fairly procured, 
 and for a price that was, at that day, deemed an adequate consid- 
 eration. It is probable that a large portion of the titles to the mili- 
 tary lands were originally assigned in the same brief manner. It 
 was an authority to the assignee to receive the patent to his own 
 use; and if the law had not afterwards directed the letters patent to 
 issue, in all cases, in the name of the soldier, this authority would 
 no doubt have been deemed sufficient to have procured the patent in 
 the name of Birch, or his assignee. The issuing of the patent in 
 the name of the soldier did not invalidate the equitable claim of 
 Birch; for the soldier took it as trustee to the party to whom the 
 equitable interest had been transferred. 
 
 The act of the 6th of April, 1790, expressly provided that "all 
 grants, bargains, sales, devises and other dispositions " of the land 
 made by the soldier, before the issuing of the patent, should
 
 I. I.] FREEHOLDS OF INHERITANCE OR FEES. 507 
 
 be deemed valid. It also declared that the patent should have a 
 retrospective effect, and that the land should be deemed to have 
 vested in the patentee and his heirs, from the 27th of March, 1783. 
 The act of the 5th of April, 1803, went still further, and declared 
 that the lands should be deemed to have been vested in the soldier 
 at the time of his death, though he died before the 27th of March, 
 1783. These statutes were made not to divest, but to confirm and 
 enlarge the interest which the soldier may have passed before the 
 date of the patent. The statutes were made for the benefit of pur- 
 chasers, and to render their titles valid in a court of law, equally as 
 if the soldier had been seized in fee at the time of the conveyance. 
 And courts of law, when any such conveyances are brought before 
 them, are to give them the same operation as if they had been exe- 
 cuted by the party seized; and such has been the decision of the 
 Supreme Court. 
 
 But these statutes never meant to weaken or defeat any equitable 
 trust which may have been created by any deed competent to raise 
 such a trust, though incompetent to convey the fee at law. The 
 Court of Chancery has exclusive cognizance of cases of trust, and is 
 charged with the duty of seeing them fulfilled, and in doing so it 
 acts in furtherance of the liberal provisions and intent of the stat- 
 utes. Suppose that Griffen, instead of the deed in question, had 
 executed a bond to Birch, and bound himself, by the consideration 
 which it is proved he received, to convey that interest to Birch, or 
 such other person as Birch should appoint, would not equity compel 
 him to execute that trust? Most undoubtedly; and so it was 
 decided in a case which I shall presently mention. 
 
 There never was a greater mistake, as I apprehend, than the sup- 
 position that this transfer of the soldier's right to Birch is to be 
 tested by the strict technical rules of a conveyance of land at com- 
 mon law, and that Birch did not take the whole interest of the 
 soldier, because the word heirs was not inserted in the assignment. 
 
 If Griffen, at the time, had been seized in fee of the land, as an 
 estate at law, the argument would have had weight. But surely 
 that formality was not necessary to pass a mere undefined claim 
 upon the government, for Griffen had nothing else to convey but an 
 interest in trust. That would be contrary to all the rules relative 
 to the creation or assignment of a trust. The act of 28th February, 
 1789, on this very subject, is sufficient to justify a contrary conclu- 
 sion; for that act directs the commissioners of the land office to 
 require from each soldier entitled to bounty lands, an assignment of 
 his claim to lands under any act of congress, to the surveyor-gen- 
 eral, for the use of the people of this State. There is no particular
 
 508 ESTATES AS TO QUANTITY AND QUALITY [PT. IV. CH. I. 
 
 form of an assignment given, nor anything intimated about a con- 
 veyance with the usual and apt words of inheritance. No doubt 
 such an assignment, as the one in this case, would have been deemed 
 sufficient to vest this State with the interest in the soldier's claim 
 upon congress, and I am persuaded, that if the facts were investi- 
 gated, no more formal assignments were taken. 
 
 It is a well-settled principal that no particular form of words is 
 requisite to create a trust. The intent is what the courts look to. 
 2 Fonb. 36, note; 3 Ves. Jr. 9. A trustee or cestui que trust will 
 take a fee without the word heirs, when a less estate will not be 
 sufficient to satisfy the purposes of the trust. This has been fre- 
 quently ruled in chancery, and the Court of K. B., during the time 
 of Lord Mansfield, made the same decision at law. 2 Atk. 72, 578; 
 1 Ves. 491; Amb. 93; 3 Burr. 1684. In Moorecroft v. Dowding, 2 
 P. AYms. 314, A. purchased an estate in the name of a third person, 
 who gave a bond to convey it to such person and uses as A. should 
 appoint; and the lord chancellor held that the third person was a 
 trustee to A., who had, in equity, a specific right to the land, and 
 he was decreed to convey. Here, a bond was held sufficient to 
 create a trust in fee. But what puts this point beyond all doubt, is 
 the doctrine of the common law on the subject of uses and trusts. 
 Before the statute of uses, if a man had bargained and sold his land 
 for a valuable consideration without inserting the word heirs, the 
 Court of Chancery would have decreed an execution of the use in 
 fee, because the use was merely in trust and confidence, and because 
 this was according to the conscience and intent of the parties. 
 But, after the statute of 27 Hen. VIII., as the uses were transferred 
 and made a legal estate, a different rule took place. 1 Co. 87 b., 
 100 b. A trust is merely what a use was before the statute of uses. 
 It is an interest resting in conscience and equity, and the same rules 
 apply to trusts in chancery now which were formally applied to uses. 
 And, in exercising its jurisdiction over executory trusts, the Court 
 of Chancery is not bound by the technical rules of law, but takes a 
 wider range in favor of the intent of the party. This principle 
 seems to be well established, and it has been ably vindicated by 
 Fonblanque. Vol. 1. 396 note, 400 note; vol. 2, 18. 
 
 To apply, then, this doctrine to the present case; the soldier, 
 after the assignment of his claim upon the State to Birch, and after 
 the issuing of the patent in his name, became seized in trust for 
 Birch, or those to whom Birch had assigned his interest; and 
 instead of dismissing tin- appellant's bill, the Court of Chancery 
 oughl t<> hav<- decreed an adequate legal conveyance to be made by 
 the defendant to the appellants. The defendant purchased of
 
 I. i.] FREEHOLDS OF INHERITANCE OR FEES. 509 
 
 Griffen knowing of the assignment, and, therefore, he was a pur- 
 chaser chargeable with the trust, and as much bound to execute the 
 trust as the soldier himself. The clearest justice, and clearest prin- 
 ciples of a court of equity are in favor of such a decree. 
 
 A good deal was said, upon the argument about the statute of 
 frauds, but it appears to me that the objection is wholly inappli- 
 cable. This is not a case of an agreement about the sale of lands; it 
 is a complete assignment by deed of an equitable claim; and the 
 1 2th section of the act (Sess. 10, c. 44), says, that all declarations 
 or creations of trust, or confidence, of any lands, shall be proved by 
 some writing, signed by the party enabled to declare the trust. 
 
 Judgment of reversal. 
 
 (5.) In the Transfer of a Fee to a Corporation. 
 
 Aldis, J. in CONGREGATIONAL SOCIETY OF HALIFAX v. 
 
 STARK. 
 
 34 Vermont, 243, 249. — 1861. 
 
 It is true as claimed by the counsel for the plaintiffs, that a deed 
 to a corporation aggregate will convey a fee simple though the word 
 " successor " is not used in the deed. As such a corporation never 
 dies, it is immaterial whether such a deed is construed as granting 
 to them an estate for life or a fee, for in their case the one is the 
 same as the other. Hence the deed of McCrillis to the Halifax 
 society vested in them in fee simple the lands conveyed. 
 
 It is further claimed as a necessary consequence that the clause 
 in the habendum of the deed is repugnant to the premises, and 
 therefore void. The habendum is in these words: " To have and 
 to hold the premises during the time the said society or their heirs 
 shall meet on said land for public worship, or have a meeting-house 
 standing on said land and appropriate the use of the same to the 
 congregational or Presbyterian public worship." 
 
 It is the proper office of the habendum to determine what estate 
 or interest is granted by the deed, and to limit, qualify or explain 
 the words used in the granting part of the deed. Where the estate 
 or interest is set forth in the premises the habendum cannot by the 
 use of words repugnant to such estate defeat it. Where, therefore, 
 the habendum is contradictory to the premises, the habendum is 
 void, and the words in the premises stand. Co. Litt. 21; 4 Cruise's 
 Dig-) § 76, P- 273; Goodtitle v. Gibbs, 5 B. and C. 709; 2 Bla. Com. 
 298; Timmis v. Steele, 4 Ad. and Ell. 664 (45 E. C. L. 664).
 
 510 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. I. 
 
 But where the habendum is not so contradictory to the premises, 
 but only limits, explains or qualifies the words there used, it per- 
 forms its proper office. It may lessen, enlarge, limit and qualify 
 the use of the land conveyed so long as it does not defeat the estate 
 granted. 
 
 Here the deed in the premises does not describe the estate or 
 interest conveyed, but only the land by its name and boundaries. 
 A deed to a corporation would describe them in the same way what- 
 ever was the estate conveyed, whether in fee or for life. Hence in 
 such a deed the description of the estate or interest conveyed would 
 naturally be, and ought to be, in the habendum. A deed to a 
 natural person and his heirs necessarily causes a fee and not an 
 estate for life — not so with a corporation. Hence this deed to 
 them in the premises describes the land and not the estate or dura- 
 tion of the interest conveyed. The word successors is not used, 
 still without it they may take a fee, and would if there were no limi- 
 tation or description of a less estate in the following parts of the 
 deed. But in a deed to a natural person the word " heirs " would 
 carry a fee, and its absence would show a less estate for life. The 
 habendum proceeds to explain the use which the grantee is to have 
 of the land, and limit its extent and duration. It may be a fee 
 simple, the use may last forever if the grantees see fit to occupy it 
 for the purpose for which it is conveyed. There is no repugnancy 
 between the premises and the habendum. 
 
 We do not deem it very material to decide whether the clause in 
 the habendum shall be held to be a condition or a limitation. 
 The clause in question well illustrates what is said in Sheppard's 
 Touchstone, p. 121, that, "conditions at all times have in their 
 drawing so much affinity with limitations that it is hard to discern 
 and distinguish them." But the legal effect of this language clearly 
 is, that when the grantees cease to meet on said land for public 
 worship, and fail to have a meeting-house on the land and to appro- 
 priate its use to Congregational or Presbyterian public worship, then 
 their title ceases, and the grantor or his heirs may re-enter and hold 
 the land. 
 
 We think, therefore, that the county court was right in holding 
 that the grantor and his heirs had a reversionary interest in the 
 land, and that when the grantees ceased to comply with the terms 
 and conditions upon which the land was granted to them and to use 
 it as specified in the deed, then their right to the land expired, and 
 the reversionary interest of the grantees came into operation as a 
 present and absolute estate in fee.
 
 I. I.] FREEHOLDS OF INHERITANCE OR FEES. 511 
 
 WILCOX v. WHEELER. 
 
 47 New Hampshire, 488. — 1867. 
 [Reported herein at p. 502.] 
 
 NICOLL v. THE NEW YORK AND ERIE RAILROAD CO. 
 12 New York, 121. — 1854. 
 [Reported herein at p. 527.] ' 
 
 (6.) In Partition Deeds Between Joint Tenants and Tenants in Common. 
 
 Scott, J., in RECTOR v. WAUGH. 
 
 17 Missouri, 13. — 1852. 
 
 A number of proprietors of a town, supposing that they have a 
 title to the land on which the town is laid off, make an equal parti- 
 tion of the lots amongst themselves, and mutually convey with war- 
 ranty. The entire title to the land which is the subject of partition 
 afterwards fails. * * * 
 
 After the failure of the first title, one or more of the proprietors 
 acquire a new and distinct title to the land on which the town was 
 laid off, and a former proprietor, who has neither contributed nor 
 offered to contribute anything towards the acquisition of the new 
 title, lays claim to all the lots conveyed to him by the deed of par- 
 tition. * * * 
 
 In the deed on which this action is founded, there are no words of 
 perpetuity used in conveying the estate to Stephen Rector. Accord- 
 ing to the law in force at that day, the .words employed only con- 
 veyed a life estate, and the duration of the warranty is only 
 co-extensive with the estate to which it was annexed. The war- 
 ranty, then, was extinct on the death of Stephen Rector. In 4 
 Kent, 5, it is said, the word " heirs " is necessary at common law to 
 create, by deed, an estate in fee simple. Further on, he says, that 
 this rule does not apply to a partition between joint tenants, copar- 
 ceners and tenants in common, nor to releases of right to land, by 
 way of discharging or passing the right, by one joint tenant or 
 coparcener to another. In taking a distinct interest in this separate 
 parcel of the land, the releasee takes the like estate in quantity, 
 
 1 Read in this connection pp. 527-529 only. — Ed.
 
 512 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 which he had before in common. This is a question in which the 
 matter of intent has nothing to do. The law has appropriated a 
 certain word, by which an estate in fee simple can only be created 
 by deed. If that word is omitted, however clear and manifest the 
 intent may be, an estate in fee will not pass. It is conceded that, 
 as between joint tenants and coparceners, a fee may pass by a 
 release without the word heirs, but it is apprehended that one ten- 
 ant in common cannot release to another. A deed intended as a 
 release between tenants in common, although it cannot have that 
 effect, may yet operate as some other kind of conveyance; but to 
 make it effectual as such to pass a fee, proper words of limitations 
 must be employed. Cruise says, one tenant in common cannot 
 release to his companion, because they have distinct freeholds, but 
 they must pass their estates by feoffment. Vol. 4, tit. 32, ch. 6, § 
 25. So he says, if one coparcener or joint tenant releases all his 
 right to another, it will pass a fee without the word heirs. lb., ch. 
 21, § 7. Lomax says that partition between tenants in common who 
 having several and distinct freeholds, might have conveyed to each 
 other by feoffment, might, at common law, have been effected by 
 livery of seisin. The adjustment between them in severalty of the 
 estate, derived to them in common by distinct titles, could only be 
 effectuated by a conveyance, accompanied by that notoriety indispens- 
 able to all conveyances at common law. 2 Vol. 96. So, again, one 
 tenant in common cannot release to his companion, because they 
 have distinct freeholds; but they must pass their estates by feoff- 
 ment, lb. 98. Preston on Abstracts says, when several persons 
 are tenants in common, the title to each share is to be carried on 
 precisely in the same manner as if the title to that share was a title 
 to a distinct farm. 3 Vol. 58. Hilliard says, joint tenants and 
 coparceners may release to each other. In a release of this kind, a 
 fee will pass without words of limitation. The releasee is deemed 
 in law to hold, not by the release, but by the original limitation to 
 all the parties. The release is not an alienation, but a mere dis- 
 charge of the claims of one to the other. Hence, a fee arises out of 
 the original conveyance. Tenants in common, having distinct free- 
 holds, cannot release to each other. 2 Vol. 300, 301. Bacon says, 
 if there be two joint tenants, and one release to the other, this 
 passeth a fee without the word " heirs," because it refers to the 
 whole fee, which they jointly took and are possessed of by force of 
 the first conveyance. But tenants in common cannot release to 
 1 a< li other, for a release supposeth the party to have the thing in 
 demand; but tenants in common have several distinct freeholds, 
 which they cannot transfer, otherwise than as persons who are sole
 
 I. I.] FREEHOLDS OF INHERITANCE OR FEES. 5 1 3 
 
 seised. 4 Vol. 455. The books may be traced to the earliest 
 periods, and it will be found, that no author has maintained that 
 one tenant in common can convey to another, in any other way or 
 by a conveyance whose operation is different from those used by 
 feoffers, between whom no such relationship exists. It follows from 
 this that, however conveyances between tenants in common may 
 operate, and they cannot operate by way of release, they must con- 
 tain words of perpetuity to pass a fee. 
 
 (7.) Effect if the Words of Inheritance be in the Covenants Only. 
 
 ADAMS v. ROSS. 
 30 New Jersey Law, 505. — i860. 
 [Reported herein at p. 483.] 
 
 b. Inter vivos — under modern statutes. 
 
 (1) Some of these statutes declare that the word " heirs " shall 
 not be necessary in order to create or to convey a fee, but leave the 
 estate created in the particular case to be determined by construc- 
 tion without any guiding rule of presumption. 
 
 (2) Other statutes provide that a grant of real property shall pass 
 all the estate or interest of the grantor unless the intent to pass a 
 less estate or interest shall appear by the express terms of the grant 
 or by necessary implication therefrom. 1 
 
 c. By devise under the ancient " statute of wills." 
 JACKSON ex dem. WELLS v. WELLS. 
 
 9 Johnson (N. Y.), 222. — 1812. 
 
 Ejectment. A verdict was taken for plaintiff, subject to the 
 opinion of this court: 
 
 Per Curiam. — Upon this will it is clear, upon the established 
 principles of construction, that the defendant's father took only an 
 estate for life. The words of the will are, " I give and bequeath 
 unto my eldest son, Daniel Wells, all that part of a lot of land that 
 I now live on Xnorthward of the north road and also three lots on the 
 broad meadou>~\ . ' ' 
 
 1 N. Y. R. P. L. §§ 205, 210. — Ed. 
 
 LAW OF PROP. IN LAND — 33
 
 514 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 Here are no words of limitation or perpetuity, though it appears, 
 from other parts of the will, that the testator understood their force 
 and effect, and knew how to use them; nor is there a single word or 
 expression, which denotes anything more than a description of the 
 land devised. There is nothing which alludes to the quantity of 
 interest which the testator had in the land It is a mere designa- 
 tion of its local situation, and to give this devise the effect of a fee 
 would overset a volume of adjudged cases, and throw the law of 
 devises into inextricable confusion and uncertainty. The cases of 
 Dennx. Gaskin, Cowp. 657; Right v. Sidebotham, Doug. 759; Doe v. 
 Wright, 8 Term Rep. 64, and Doe v. Child and Wife, 4 Bos. & Pull. 
 335, may be cited out of an almost endless series of authorities, as 
 very much in point, and perfectly decisive. 
 
 The next question is, whether the remainder of the testator's 
 interest in the premises, after the termination of the life estate, was 
 not devised to the lessor of the plaintiff. He gives to the lessor, in 
 fee, " all the rest of his estate, both movable and immovable, of 
 every kind not disposed of," and then charges it with some debts 
 and legacies, and in default of his paying the same, the testator 
 directs that so much of the estate so devised to him, should be sold, 
 as should be requisite to pay the debts and legacies. This point is 
 as clear as the other. All the rest of his estate, not disposed of, is 
 a general, sweeping clause, that must most obviously embrace the 
 interest in question. After this clause, there could be no dying 
 intestate as to any part of the estate. The authority to the execu- 
 tors to sell any part of his estate on nonpayment of the debts and 
 legacies, cannot be considered as a restraint or qualification of the 
 residuary clause, so as to detach the interest in question from it; 
 for an interest in remainder is capable of being sold no less than a 
 vested interest. 
 
 Judgment for plaintiff. 
 
 MORRISON v. SEMPLE. 
 6 Binney (Pa.), 94. — 1813. 
 
 Ejectment brought by the guardian of Edward and Sarah Semple 
 against Morrison and others. 
 
 One Samuel Semple left a last will and testament by which he gave 
 
 all his " real and personal property" to Steele Semple, under whom 
 
 I. nits below (Morrison and others) claim Plaintiffs below 
 
 < [aim the land in question as heirs of Samuel Semple, asserting that
 
 I. i.J FREEHOLDS OF INHERITANCE OR FEES. 515 
 
 Steele Semple (who is now dead) took only a life estate therein. 
 The judgment below was for the Semples. Morrison appeals. 
 
 Tilghman, C. J. — Judgment was entered in this case, in the 
 Court of Common Pleas, without argument and by consent, in order 
 that it might be brought up for the opinion of this court. The ques- 
 tion is, whether an estate for life or in fee passed to Steele Semple 
 by the will of Samuel Semple. The will is very short and in the 
 following terms: (Here the Chief Justice read the will.) The 
 counsel for the defendant in error placed this case in as strong a 
 light as it would bear, but I have never entertained a doubt on the 
 subject. In whatever point of view it is considered, I perceive a 
 plain intention with apt words to pass a fee simple. Here is a testa- 
 tor with an only child (a daughter), who had a husband and two 
 children. He makes no mention either of child or grandchild, but 
 speaking of his son-in-law in the most affectionate manner, he gives 
 him the whole of his real and personal property, and appoints him his 
 sole executor. What can be concluded from this, but that the testa- 
 tor placing unbounded confidence in the husband intended to put 
 every thing in his power. It is inconceivable that with any other 
 intent, he should have observed a profound silence with respect to 
 every other human being. It is a singular instance of confidence, 
 but does not prove that the testator had no affection for his daughter 
 or her issue. It proves that he was convinced of the honor and 
 integrity of his son-in-law, and to an honorable and upright mind no 
 obligation could be stronger than that which this will imposed. 
 What is its language? " I place every thing that is dear to me in 
 your hands. The person and the fortune of my child are confided 
 to you. I know that you will prove worthy of the trust." But it is 
 said that intention alone is not sufficient. The heir is not to be dis- 
 inherited without words sufficient to pass the estate to some other 
 person. It is true that we are not permitted to guess at the inten- 
 tion; it must be ascertained from the words of the will. But if it 
 can be so ascertained it shall be carried into effect. No technical 
 words are necessary .to pass a fee simple. Any expressions which 
 show an intent to give an absolute estate are sufficient. A devise 
 of land to one forever, or " to dispose of at his will and pleasure," 
 is a fee; because there is a manifest intent to give a fee. So a devise 
 of one's estate, or of all one's right or interest in land passes a fee 
 for the same reason. The rule is this: Words which only describe 
 the object devised give no more than an estate for life, but words 
 which comprehend the quantum of the estate, pass the fee. And this 
 rule is not founded on any artificial principle, but on the plain ground
 
 $l6 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 of common sense and fair construction. When a man gives all his 
 estate, it is as much as to say, all the interest that he has in the sub- 
 ject devised. In the present instance the testator designates no 
 particular object, but gives in general, all his real and personal 
 property. I can conceive no expressions more comprehensive. 
 The giving of the real and personal property by the same words, 
 shows an intent to give the same interest in both, that is to say, an 
 absolute interest, for no man ever doubted that those expressions 
 give an absolute interest in personal property. Property signifies 
 the right or interest which one has in land or chattels. In this sense 
 it is used by the learned and unlearned, by men of all ranks and con- 
 ditions. We find it so defined in dictionaries, and so understood by 
 the best authors. The possession of land may be in one man, the 
 property in another. There is a right of possession, and a right of 
 property. Every scrivener who draws a conveyance, mentions not 
 only the land itself, but also " the right, title, interest and property 
 of the grantor of, in, and to the same." In common conversation 
 we say that such a house or piece of land is the property of such a 
 person. When, therefore, a man devises all his real property, he 
 devises all the right and interest which he has in any lands or real 
 estate. If he has a right in fee simple a fee passes, otherwise the 
 will is not complied with; for if the devisee takes but an estate for 
 life, he does not take all but only part of the devisor's property. 
 Many cases were cited on the argument. I think it unnecessary to 
 take particular notice of any of them. It is a principle undeniable, 
 that when the words of a will indicate an intention to pass the whole 
 interest of the devisor, the devisee shall take a fee. Being clearly 
 of opinion that such an intention is indicated by the expressions of 
 this will, it follows that Steele Semple took an estate in fee in all 
 the real estate of Samuel Semple. The judgment of the Court of 
 Common Pleas must, therefore, be reversed, and judgment entered 
 for the plaintiffs in error. 
 
 WHEATON v. ANDRESS. 
 
 23 Wkndell (N. Y.), 452. — 1840. 
 
 Ejectment by the heirs-at-law of Prudence Taplin to recover of 
 defendant certain lands devised to her by the will of her husband. 
 I defendants allege that Prudence took only a life estate undersaid will. 
 Verdict below for plaintiffs, subject to the opinion of this court. 
 
 P,y THE Court, Cowen, J. — This ejectment seems to have been 
 brought on the authority of Loveacres ex Jem. Mudge v. Blight,
 
 I. I.] FREEHOLDS OF INHERITANCE OR FEES. 517 
 
 Cowp. 352, decided in 1775. The introductory and devising clauses 
 in that case cannot, as the counsel for both parties in the principal 
 case seem to agree, be distinguished in their import from the words 
 used in the will before us; and they were held to carry a fee. But 
 it is very plain, as the counsel for the defendant contends, that this 
 was not in virtue of their own proper force. They were helped by 
 various other parts of the. will; among others, there was a charge on 
 the land incompatible with the idea of a mere estate for life. That 
 is mentioned and much relied on by Lord Mansfield; and, as is well 
 known to the profession, has often been considered of itself decisive 
 in enlarging the estate to a fee. The will began, " as touching my 
 worldly estate," etc. Then, after some intermediate provisions, " I 
 give unto John and Robert Mudge all and singular my lands and 
 messuages, by them freely to be possessed and enjoyed alike." It 
 is true, Lord Mansfield relied on the introductory words, as mani- 
 festing an intent in the testator to dispose of all his worldly interest; 
 and with that he joined the words freely to be possessed, etc. And 
 he agreed that, independent of these and other circumstances which 
 he took up and connected together from the whole will, there were 
 no words of limitation, such as heirs, or what were tantamount. 
 Introductory words of much stronger import have always been 
 denied as sufficient of themselves, though they may help other 
 words. Fid. Ram. on Wills, 65, 66. And no case holds that simply 
 connected with the words freely to be enjoyed, etc., the whole will 
 carry a fee. To do this, where there are no words of express limita- 
 tion, all the cases agree that the will should contain some provision 
 in respect to the land necessarily inconsistent with the estate being 
 for life. Freely to be enjoyed, etc., may come much short of this. 
 
 I have thus, in some measure, followed the counsel for the defend- 
 ant, who has much elaborated the case in Cowper. I entirely agree 
 with him, that it will be found on due consideration, to have been 
 so mixed and compounded with various circumstances in the will, as 
 by no means to form a reliable guide in deciding the case at bar. 
 I do not find, however, that the force of the words in question were 
 at all reconsidered, as he supposes, in Denn ex dan. Gaskin v. Gas- 
 kin, Cowp. 657, or in Wright ex dan. Shaw v. Russell, id. 661, the 
 case stated by Ashurst, J. from MSS. ; though I really think either 
 of them stronger for a fee than the one at bar; and the general rea- 
 soning of the court is quite in point against seizing on equivocal 
 words, in order to give the will such an effect. It is remarkable, 
 that in each of the latter cases a disinheriting legacy was given to 
 the heir at law; a circumstance which I should suppose of much 
 more decisive weight than the doubtful provision, freely to be
 
 $l8 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 enjoyed, etc. The wills also contained the usual general clause, 
 manifesting the testator's intent to dispose of all his estate. Yet 
 they were held to carry but life estates, and the heir at law recovered. 
 
 Thus stopping with Lord Mansfield's decisions alone, one would 
 suppose it impossible to maintain the plaintiff's pretensions upon the 
 will before us. But I am surprised that the defendant's counsel 
 should have overlooked the case of Goodright ex dem. Drewry v. 
 Barron, u East, 220, decided A. D. 1809, in which his own views 
 were adopted by the King's Bench, and which I cannot distinguish 
 from the case before us. There the will was thus: " As touching 
 such worldly estate wherewith it has pleased God to bless me in this 
 life, I give, devise and dispose of the same in manner following: 
 " 1. A cottage to T. D. and his heirs." Then: "Also I give and 
 bequeath to my wife Elizabeth, whom I likewise make my sole 
 executrix, all and singular my lands, messuages and tenements by 
 her freely to be possessed and enjoyed." The question was whether 
 the wife took a fee; and held not. The case was ably argued; and 
 Lord Ellenborough, C. J., Le Blanc, J., and Bayley, J., who spoke 
 to the question seriatim, they being the only judges who heard the 
 argument, all concurred. The case in Cowper, 352, was fully con- 
 sidered ; and they agreed, that the introductory words, and the words 
 freely, etc., as used in East, would not of themselves carry a fee, 
 because they were not necessarily incompatible with an estate for 
 life. They agreed that the case in Cowper, 352, must have gone, 
 not on these alone, but only as considered in connection with various 
 other explanatory circumstances, such as incumbrances imposed, etc. 
 Only one of the learned judges, Le Blanc, J., adverted to the use of 
 the word heirs in the devise to T. D. as indicating that the testator 
 understood the value of that word. Lord Ellenborough and Bayley, 
 J., took up the matter on the neat point as presented in the principal 
 case. The former agreed that the introductory words might be 
 material; but alone they made nothing. " They were not sufficient 
 of themselves to carry a fee; but juncta jwyant." He said that, in 
 the absence of express words to limit the estate in fee, there must 
 be some words from which an intention to pass the fee would be 
 necessarily implied. Bayley, J., taking up this rule, said " the only 
 words on which any doubt could arise are ' freely to be possessed 
 and enjoyed; " but they may mean freely during her life; they may 
 mean free from all charges; free from impeachment of waste; they 
 may indeed also mean freely for all purposes against the heir; but 
 as it is not certain that the testator used them in this latter sense, 
 v, e 1 annot give them so extended a meaning against the heir." 
 
 The reasoning of the counsel for the plaintiffs in the case at bar is
 
 I. i.] FREEHOLDS OF INHERITANCE OR FEES. 519 
 
 this: First, the testator indicated his general intention thus: " As 
 to all my worldly interest, all my property, all my estate, I dispose 
 of the same," etc. Then, says the counsel, he in fact gives the 
 same; and the counsel relies on these two words in the introductory 
 clause, to bring it down, and connect it with the devise to the testa- 
 tor's wife. But precisely the same words holding the same relation, 
 presented themselves in Goodright v. Barron; yet held they were 
 entirely inefficient, for the purpose now claimed. " The word 
 estate," said Lord Ellenborough," used in the introductory clause, 
 is completely disjoined from the devise in question, and cannot be 
 brought down to join in with the latter clause, without doing violence 
 to the words." I will only add, it is impossible to distinguish the 
 case at bar from the principle of that to which he was speaking, 
 and scarcely from the very words. 
 
 The adjudication, we think, accords with the sound rule of con- 
 struction. 
 
 There must be judgment for the defendant. 
 
 d. By devise under modern statutes. 
 
 (1) All the States except Connecticut and Florida have shifted 
 the presumption by statutory enactment. 1 
 
 e. The rule in Shelly s Case. 
 
 Olds, J , in TANEY v. FAHNLEY. 
 
 126 Indiana, SS. — 1890. 
 
 That the rule in Shelley s Case is recognized as law, and a rule of 
 property in this State is too well settled to admit of controversy. 
 Andrews v. Spurlin, 35 Ind. 262; Sicelojf v. Redman, 26 Ind. 251; 
 Small v. Howland, 14 Ind. 592; Hull v. Beats, 23 Ind. 25. 
 
 In Doe v. Jackson, 5 Ind. 283, the rule is stated as follows: 
 " Where a freehold is limited to one for life, and by the same instru- 
 ment, the inheritance is limited, either mediately or immediately, 
 to heirs or heirs of his body, the first taker takes the whole estate, 
 either in fee simple or fee tail; and the words ' heirs ' or ' heirs of 
 the body,' are words of limitation, and not of purchase." 
 
 In the case of Hochstedler v. Hochstedler, 108 Ind. 506, in constru- 
 ing a will, this court says: " But the word ' heirs,' as Mr. Preston 
 says. ' is a powerful one,' and it must be given its legal force and 
 
 1 See N. Y. R. P. L. § 210. The common law rule is said still to prevail in 
 the District of Columbia. Dembitz on Land Titles, vol, 1, p. 99. — Ed.
 
 520 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 effect, unless the words of the will clearly assign it a different signifi- 
 cation." Again in the same case, it is said: " When an interest or 
 estate is given in one clause of a will in clear and decisive terms, 
 ' such interest or estate cannot be taken away or cut down by raising 
 a doubt upon the extent and meaning and application of a subsequent 
 clause, not by inference therefrom, nor by any subsequent words 
 that are not as clear and decisive as the words of the clause giving 
 that interest or estate.' 
 
 In the case of Shinier v. Mann, 99 Ind. 190, this court says: 
 " The word ' heirs ' written in a deed or will is one of great power, 
 and its force is not impaired by the mere use of negative or restrain- 
 ing words. Fearne expresses this doctrine in very strong words, 
 for he declares that ' the most positive direction, will not defeat the 
 operation of the rule in Shelley's Case." Continuing, the court 
 further say: " It may be that this statement of the law is some, 
 what too strong under the doctrine of later cases, but certainly the 
 law is that mere negative words cannot restrain or impair the force 
 of the word ' heirs.' " ' 
 
 2. The Different Kinds of Fees. 
 
 a. The fee- farm or socage-tenure fee. 
 
 INGERSOLL v. SARGEANT. 
 
 1 Wharton (Pa.), 336. — 1836. 
 \_Reported herein at p. 86.] 
 
 VAN RENSSELAER v. HAYS. 
 
 19 New York, 6S. — 1859. 
 \Reported herein at p. 81.] 
 
 1 See index under Shelley's Case. The rule in She/ley's Case, originally a " rule 
 of law " and property, has become by statute in some States a mere rule of con- 
 struction or presumption. In some of the States it has been abolished leaving 
 no rule of construction in the cases other than the general one that the inten- 
 tion of the grantor or testator is to be sought as expressed in the instrument. 
 Then- are several other statutory modification of the rule for which see Jones' 
 Law of Real Property on Conveyancing, §§ 601-610. See also the American note, 
 ; of Hutchins' Williams on Real Property. For the New York rule see 
 £44 N. Y. R. P. I-. — I'-o.
 
 I. 2.] QUALIFIED OR DEFEASIBLE FEES. 521 
 
 b. The modern fee simple absolute. ' 
 
 c. Qualified or defeasible fees. 
 
 (i.) Determinable Fees; Fees upon [Special or Collateral] Limitation. 
 
 LEONARD v. BURR. 
 
 iS New York, 96. — 1858. 
 
 Ejectment. Plaintiff Susan Leonard is the mother and only 
 heir-at-law of Sidney S. Mills. Mills by his last will and testament 
 devised to Benjamin Bailey, " the use of three and one-half acres, 
 lying east of the road opposite the homestead, and being a part of the 
 same, until Gloversville shall be incorporated as a village, and then 
 to the trustees of said village to be b) 7 them disposed of for the pur- 
 pose of establishing a village library, provided an amount of money 
 equal in value shall be raised and invested by said trustees in the 
 purchase of books for said library." 
 
 After the death of Mills, Bailey conveyed the premises in question 
 to defendant. The answer alleges that the village has never been 
 incorporated. The court excluded evidence offered by plaintiff to 
 prove the incorporation of the village, and held as matter of law that 
 the devise to Bailey was absolute and in fee simple. Plaintiffs 
 excepted to these rulings. Judgment for defendant. Plaintiff 
 appeals. 
 
 Strong, J. — The devise to Bailey is, by the terms of it, " until 
 Gloversville shall be incorporated as a village." These words are 
 part of the devise itself. The use of the land, which imports the 
 land, is given to him until the happening of that event. The event 
 was contingent when the will was made, and at the death of the 
 testator. Had the will stopped here, in respect to a disposition of 
 this land, no one would doubt that the estate of Bailey would have 
 been limited in duration to the contingency mentioned. He would 
 have taken a base or qualified fee; an estate which might have con- 
 tinued forever, but which would have been liable to determination 
 by the occurring of the contingency. The qualification to the devise 
 would have created what is termed in the books a collateral limita- 
 tion, making the estate determinable upon an event " collateral to 
 the time of its continuance." 4 Kent's Com. 129; Fearne, ed. of 
 1826, 12 to 15, and notes. Among the instances of collateral limita- 
 tions are, to a man and his heirs, tenants of the manor of Dale; or 
 
 1 Many illustrations of the nature and qualities of such estates appear herein. 
 For definition see N. Y. R. P. L. § 21. — Ed.
 
 522 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 to a woman during widowhood; or to C. till the return of B. from 
 Rome; or until B. shall have paid him twenty pounds. 4 Kent, 129; 
 1 Shep. Touch. 125; 2 Crabb's Law of Real Prop. § 2135; 2 Bl. 
 Com. 155; Fearne, 12, 13, and notes. In respect to such limita- 
 tions, the rule is, that " the estate will determine as soon as the 
 event arises, and it never can be revived." 4 Kent, 129, and cases 
 cited; Lewis on Perpet. 657; Crabb's Real Prop. § 2135. 
 
 I am unable to see how the devise to Bailey, by the words of the 
 will giving him the use of the land until the event above specified, 
 is affected, as to the duration of the estate, by any other part of the 
 will. The devise over, in the same clause of the will — when 
 Gloversville shall be incorporated — to the trustees of said village, 
 to be disposed of for the purpose and with the proviso therein 
 stated, is a further disposition of the land, to take effect upon the 
 termination of the estate of Bailey. It was not intended thereby to 
 abridge Bailey's interest, but to give the land to others when his 
 interest had ceased. The language of the devise over is "and 
 then," obviously upon the incorporation of the village, "to the 
 trustees." The incorporation is fixed as the limit of the prior estate 
 and the period of commencement of the subsequent one. 
 
 Whether, therefore, the latter can be upheld, or is invalid for any 
 cause, can make no difference with the former estate, which had 
 come to its appointed end by an event wholly independent of the 
 operation or failure of that attempted to be created by the will to 
 succeed it. 
 
 If the devise of the first estate had been in fee, with a proviso, 
 that, upon the contingency expressed in the will, the trustees should 
 have the land, the case would be very different. The first estate 
 would then be determined only by the second taking effect. That 
 would be according to the language and spirit of the limitation. 
 The limitation, in such a case, would be what is denominated a con- 
 ditional limitation. There would be an estate in fee, determinable, 
 during the regular period of its continuance, by another estate tak- 
 ing effect in an event provided for. And if the trustees could not 
 take the land, the estate in fee would continue, as if no provision for 
 another estate, in defeasance of it, had been made. 4 Kent, 127; 
 Lewis on Perpet. 531, 535, 657, 658. 
 
 It was doubtless the intention of the testator to dispose absolutely 
 of the entire interest in the land, but he intended to give the land 
 to llailey until a particular event, and then to the trustees. Assum- 
 ing the devise to the trustees to be void, his intent, as to that, must 
 fail; but there is no ground for claiming that, in that case, he 
 intended Bailey's estate should continue beyond the limit prescribed
 
 I. 2.] QUALIFIED OR DEFEASIBLE FEES. 523 
 
 in the devise to him. The event was not foreseen, and consequently 
 no provision was made for it. The court cannot supply what 
 probably the testator would have done, if he had known the law 
 when he framed the will. Pickering v. Langdon, 22 Maine, 428, 429; 
 Chapmanv. Brown, 3 Burr, 1634; Doo v. Brabant, 4 Durn. & East, 706. 
 
 Several cases arising upon the Eden will are referred to and relied 
 upon in favor of the defendant. Anderson v. Jackson, 16 John. 382; 
 Lion v. Burtiss, 20 John. 483; Wilkes v . Lion, 2 Cow. 55^; Waldron 
 v. Gianini, 6 Hill, 601. By that will certain lands were devised to 
 each of two sons of the testator in fee. It was then directed that if 
 either should die without issue, his share should go to the survivor; 
 and in case of both their deaths without issue, the testator's brother 
 and sister should have all the property. It was held that the limita- 
 tion over to the surviving son was valid as an executory devise, and, 
 having taken effect in his favor, the Supreme Court held that he 
 became seized of the land devised to the deceased son, in fee tail with 
 a remainder expectant in favor of the brother and sister, which estate 
 tail the statute converted into a fee simple absolute. In the Court 
 of Errors the devise to the brother and sister was held void, the 
 Chancellor concurring with the Supreme Court as to the ground of 
 invalidity; but one of the senators placed his opinion on the ground 
 that the latter devise was orginally limited upon too remote a con- 
 tingency — an indefinite failure of issue of the previous devisees. 
 No division of the court was taken as to the ground. There is 
 nothing here to conflict with the views above presented, or which can 
 aid the defense. 
 
 Some other cases are cited by the defendant's counsel. In Jack- 
 son v. Brown, 13 Wend. 437, the testator devised lands to his son, S. 
 B., for life, with remainder to the first son of S. B. for life, with 
 remainder to the first and every other son and sons of the eldest 
 son of his son, S. B., successively, to hold the same in tail male. The 
 court decided that the limitation over to the great-grandson was too 
 remote, and that the particular intent of the testate r, to give life 
 estates to the sons, must therefore fail; but, to effect the general 
 intent, to keep the estate in his family as long as possible, construed 
 the devise to give a life estate to the son and an estate tail to the 
 grandson. The point of the case is, that the general intent of a 
 testator, apparent upon a will, will be carried into effect, if practi- 
 cable, although his particular intent cannot prevail. In the present 
 case no intention of the testator as to the disposition of the land 
 after the termination of the first estate, appears upon the will, 
 except that which, assuming the devise over to be void, the law will 
 not execute.
 
 524 ESTATES AS TO QUANTITY AND QUALITY. [ PT - Iv - CH - *• 
 
 In Doe ex dem. Cannon v. Rucastlc, 8 Man. Grang. & Scott, 876, 
 the testator devised land to his son for life, and from and after his 
 death gave the same to the issue of his son, and if he should not 
 have any, to the testator's heirs-at-law. The court decided that the 
 son took an estate tail. In Ibbetson v. Ibbetson, 10 Simons, 495, the 
 only point adjudged was that a trust of personal estate was void for 
 remoteness. These cases, and Tollemache v. Coventry, 8 Bligh, N. S. 
 547, cited in the last case, have no application to the one before the 
 court, Mortimer v. Frost, 2 Simons, 274, and Mackuwrth v. Hink/nan, 
 2 Keen. 658, are similar to Jackson \.Bro7un, before stated. 
 
 The foregoing are the principal cases cited on the part of the 
 defendant; the remaining ones are to rules about which there is no 
 dispute. 
 
 I am satisfied, for the reasons stated, that if Gloversville has been 
 incorporated, and the devise to the trustees cannot have effect, the 
 defendant, as the grantee of Bailey, has no estate in the premises in 
 question, and, therefore, that the court below, at the trial, erred in 
 deciding the contrary, and in the rejection of the evidence offered 
 to prove that the incorporation had taken place. 
 
 If the village of Gloversville has been incorporated, and the trustees 
 have an estate in the land under the devise to them, the plaintiffs, 
 of course, cannot recover, as they must have title in themselves to 
 maintain the action. The defendant may avail himself of the title 
 of the trustees, although not connected with it, as a bar to the 
 action. But if the trustees cannot take the estate designed to be 
 given them, which appears to have been assumed by the counsel and 
 the court at the trial, and Bailey's title has ceased by its own limita- 
 tion, the testator, as to this land, after the determination of Bailey's 
 interest, died intestate, and it belongs to the plaintiff, in right of 
 the wife as heir-at-law. 
 
 The question of the validity of the devise to the trustees does not 
 arise in this appeal, as it does not appear that Gloversville has been 
 incorporated. Until that fact is proved, it will not appear that the 
 estate of Bailey has terminated, and the question upon the devise 
 will not be reached. It was considered, at the trial, that the point 
 was involved in the question of evidence, in reference to materiality; 
 that if the devise to the trustees was void, the estate of Bailey was 
 an absolute fee; if valid, the title would be out of th^ plaintiffs, and, 
 therefore, the evidence excluded was immaterial — it would not, in 
 either case, benefit the plaintiff. But this view is erroneous in two 
 respects; it could n<>t properly he assumed, if the devise over was 
 valid, that the plaintiffs had not the title, as the trustees may have 
 refused to accept the devise, or lost their rights under it and the
 
 I. 2.] QUALIFIED OR DEFEASIBLE FEES. 525 
 
 plaintiffs were entitled to give proof on the subject, and the evidence 
 was important to show that Bailey's estate had ceased. It is not 
 intended now to express or intimate any opinion as to the validity 
 of the devise over. 
 
 My conclusion is, that the judgment should be reversed and a new 
 trial granted, with costs to abide the event. 
 
 Allen, J., in FIRST UNIVERSALIST SOCIETY OF NORTH 
 ADAMS v. BOLAND. 
 
 155 Massachusetts, 171. — 1892. 
 
 The grant to the plaintiff was to have and to hold, etc., " so long 
 as said real estate shall by said society or its assigns be devoted to 
 the uses, interests, and support of those doctrines of the Christian 
 religion," as specified. " And when said real estate shall by said 
 society or its assigns be diverted from the uses, interests, and sup- 
 port aforesaid to any other interests, uses, or purposes than as afore- 
 said, then the title of said society or its assigns in the same shall 
 forever cease, and be forever vested in the following named per- 
 sons," etc. These words do not grant an absolute fee, nor an estate 
 on condition, but an estate which is to continue till the happening 
 of a certain event, and then to cease. That event may happen at 
 any time, or it may never happen. Because the estate may last for- 
 ever, it is a fee. Because it may end on the happening of the 
 event, it is what is usually called a determinable or qualified 
 fee. The grant was not upon a condition subsequent, and no re> 
 entry would be necessary; but by the terms of the grant the estate 
 was to continue so long as the real estate should be devoted 
 to the specified uses, and when it should no longer be so devoted, 
 then the estate would cease and determine by its own limitation. 
 Numerous illustrations of words proper to create such qualified or 
 determinable fees are to be found in the books, one of which, as old 
 as Walsingham's Case, 2 Plowd. 557, is "as long as the church of St. 
 Paul shall stand." Brattle Square Church v. Grant, 3 Gray, 142, 
 147; Easterbrooks v. Tillinghast, 5 Gray, 17; Ashley v. Warner, 11 
 Gray, 43; Attorney General v. Merrimack Manuf. Co., 14 Gray, 586, 
 612; Fifty Associates v. Howland, n Met. 99, 102; Owen v. Field, 102 
 Mass. 90, 105; 1 Washb. Real Prop. 3d ed. 79; 2 Washb. Real Prop. 
 3d ed. 20, 21; 4 Kent Com. 126, 127, 132, note; 2 Crabb, Real Prop. 
 §§ 2135, 2136; 2 Flint, Real Prop. 230, 232; Shep. Touchst. 121, 125. 
 
 A question or doubt, however, has arisen, though not urged by
 
 526 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 counsel in this case, whether after all there is now any such estate 
 as a qualified or determinable fee, or whether this form of estate was 
 done away with by the statute quia emptores. See Gray, Rule 
 against Perpetuities, §§ 31-40, where the question is discussed and 
 authorities are cited. We have considered this question, and what- 
 ever may be the true solution of it in England, where the doctrine 
 of tenure still has some significance, we think the existence of such 
 an estate as a qualified or determinable fee must be recognized in this 
 country, and such is the general consensus of opinion of courts and 
 text writers. Jamaica Pond Aqueduct v. Chandler, 9 Allen, 159, 168; 
 Leonards. Burr, 18 N. Y. 96; Gillespie v. Broas, 23 Barb. 370; State 
 v. Brozcn t 3 Dutch. 13; Henderson v. Hunter, 59 Penn. St. 335; 
 Wiggins Ferry Co. v. Ohio 6° Mississippi Railway, 94 111. 83, 93; 1 
 Washb. Real Prop. 3d ed. 76-78; 4 Kent Com. 9, 10, 129. See 
 also, of English works in addition to citations above, Shep. Touchst. 
 101; 2 Bl. Com. 109, 154, 155; 1 Cruise, Dig. tit. 1, §§ 72-76; 2 
 Flint. Real Prop. 136-138; 1 Prest. Est. 431, 441; Challis, Real 
 Prop. 197-208. 
 
 Since the estate of the plaintiff may determine, and since there is 
 no valid limitation over, it follows that there is a possibility of 
 reverter in the original grantor, Clark. This is similar to, though 
 not quite identical with, the possibility of reverter which remains in 
 the grantor of land upon a condition subsequent. The exact nature 
 and incidents of this right need not now be discussed, but it repre- 
 sents whatever is not conveyed by the deed, and it is the possibility 
 that the land may revert to the grantor or his heirs when the granted 
 estate determines. Challis, Real Prop. 31, 63-65, 153, 174, 198, 
 200, 212; 1 Prest. Est. 431, 471; Newis v. Lark, 2 Plowd. 403, 
 413; Shep. Touchst. 120; 2 Washb. Real Prop. 3d ed. 20, 579; 4 
 Kent Com. 10; Smith v. Harrington, 4 Allen, 566, 567; Attorney Gen- 
 eral v. Merrimack Manuf. Co., 14 Gray 586, 612; Brattle Square 
 Church v. Grant, 3 Gray, 142, 147-150; Owen v. Field, 102 Mass. 90, 
 105, 106; Gillespie v. Broas, 23 Barb. 370; Gray, Rule against Per- 
 petuities, §§ 33, 34, 39, and cases cited. / 
 
 Clark's possibility of reverter is not invalid for remoteness. V It 
 has been expressly held by this court that such possibility of reverter 
 upon breach of a condition subsequent is not within the rule against 
 p erpetuities . Tobey v. Moore, 130 Mass. 448; French v. Oil South 
 Society, 106 Mass. 479. If there is any distinction in this respect 
 between su< li possibility of reverter and that which arises upon the 
 determination of a qualified fee, it would seem to be in favor of the 
 latter. Bui they should be governed by the same rule. If one is 
 n<>t held void for remoteness, the other should not be. The very
 
 I. 2.] FEES UPON CONDITION. 527 
 
 many cases cited in Gray, Rule against Perpetuities, §§ 305-312. 
 show conclusively that the general understanding of courts and of 
 the profession in America has been that the rule as to remoteness 
 does not apply; though the learned author thinks this view errone- 
 ous in principle. 
 
 (2.) Fees U1>on Condition. 
 (a.) In general. 
 
 NICOLL v. NEW YORK AND ERIE RAILROAD CO. 
 12 New York, 121. — 1S54. 
 
 Ejectment to recover certain lands conveyed by one Dederer to 
 the Hudson and Delaware Railroad Co. and by that company to this 
 defendant under authority of statute. 
 
 Nicoll has succeeded to Dederer's interest in the premises, subject 
 to the rights of the railroad company, and now claims to be entitled 
 to the lands freed from such rights because of an alleged breach of 
 a condition under which the railroad company held. Further facts 
 appear in the opinion. The last judgment below was for defendant. 
 Plaintiff appeals to this court. 
 
 Parker, J. — The granc from Dederer to the Hudson and Dela- 
 ware Railroad Company, bearing date the first day of July, 1836, 
 was made to that company " and their successors." Under that 
 grant, there can be no doubt the Hudson and Delaware Railroad 
 Company took a fee. The words of perpetuity used would have 
 been sufficient to describe a fee, even under the most strict require- 
 ments of the common law. 
 
 The company had ample power to purchase lands. It was a power 
 incident at common law to all corporations, unless they were specially 
 restrained by their charters or by statute. 2 Kent, 281; Co. Litt. 
 44^., 300^.; 1 Kyd. on Corp. 76, 78, 108, 115; 3 Pick. 239. And in 
 this case the power was expressly conferred by the ninth section of 
 the charter, Sess. Laws of 1835, p. 113; and by the sixteenth section 
 there were given to it the general powers conferred upon corpora- 
 tions, 1 R. S. 731, one of which is that of holding, purchasing and 
 conveying such real estate as the purposes of the corporation may 
 require. But if no words of perpetuity had been used, the grantor 
 owning a fee, the company would have taken a fee; for the statute 
 is now imperative, that every grant shall pass all the estate or inter- 
 est of the grantor, unless the intent to pass a less estate or interest
 
 528 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 shall appear by express terms or be necessarily implied in the terms 
 of the grant, i R. S. 748, § 1. 
 
 But it is objected that because, by the act of incorporation, there 
 was given to it only a term of existence of fifty years, Laws of 1835, 
 p. 1 to, § 1, therefore the grant shall be deemed to have conveyed 
 an estate for years, and not in fee. The unsoundness of that 
 position is easily shown. It was never yet held that a grant of a 
 fee in express terms could be restricted by the fact that the grantee 
 had but a limited term of existence. If it were so, a grant could 
 never be made to an individual in fee, because, in his earthly exist- 
 ence, he is not immortal. Under such a rule, a man could never 
 buy a greater interest in a farm than a life estate. It would follow 
 that all estates would be life estates, except those held by perpetual 
 corporations. The intent of parties, fully expressed in a deed, would 
 avail nothing, but all grants would be measured by the mortality of 
 the grantee. It is needless to follow out the proposition further to 
 show its absurdity. 
 
 It is not. to the parties to a grant, but to its terms, that we look 
 to ascertain the character and extent of the estate conveyed. Such 
 was the rule at common law, and is still by statute. 1 R. S. 748, 
 § 1. The change made by the statute favors the grantee, where 
 there are no express terms in the grant, by presuming the grantor 
 intended to convey all his estate. 
 
 At common law, it was only where there were no express terms, 
 defining the estate in the conveyance, that the term of legal exist- 
 ence of the grantee was deemed to be the measure of the interest 
 intended to be conveyed. Thus, words of perpetuity, such as 
 " heirs or successors," were necessary to convey a fee. A grant to 
 an individual, without such words, conveyed only a life estate. For 
 the same reason a grant, without such words, to a corporation aggre- 
 gate, Viner's Ab. Estate, L. 3, or to a mayor or commonalty, lb. 3, 
 conveyed a fee, because the grantees were perpetual. The grantee 
 named in such case having a perpetual existence, the estate could 
 not have been enlarged by words of succession. 
 
 Hut this is now changed by our Revised Statutes. Words of 
 inheritance or succession are no longer necessary, and, in their 
 absence, we look, not to the term of existence of the grantee to 
 rtain the estate, but to the amount of interest owned by the 
 grantor at the time he conveyed. All his estate is deemed to have 
 passed by the grant. 1 R. S. 748, § 1. 
 
 All this is applicable only to cases where the grant is silent as to 
 the extent of interest conveyed. Where that interest is expressly 
 described, as in this case, the law never, either before or since our
 
 I. 2.] FEES UPON CONDITION. 529 
 
 revision, did violence to the intent of the parties, by cutting down 
 the estate agreed to be conveyed to the measure of the grantee's 
 term of existence. It has long been one of the maxims of the law, 
 that " no implication shall be allowed against an express estate 
 limited by express words." Viner's Ab. Implication, A. 5; 1 
 Salk. 236. 
 
 It is erroneous to say that an estate in fee cannot be fully enjoyed 
 by a natural person, or by a corporation of limited duration. It is 
 an enjoyment of the fee to possess it, and to have the full control of 
 it, including the power of alienation by which its full value may at 
 once be realized. 
 
 It is well settled that corporations, though limited in their dura- 
 tion, may purchase and hold a fee, and they may sell such real estate 
 whenever they shall find it no longer necessary or convenient. 
 5 Denio, 389; 2 Preston on Estates, 50. Kent says: " Corporations 
 have a fee simple for the purpose of alienation, but they have only a 
 determinable fee, for the purpose of enjoyment. On the dissolution 
 of the corporation, the reverter is to the original grantor or his 
 heirs; but the grantor will be excluded by the alienation in fee, and 
 in that way the corporation may defeat the possibility of a reverter. 
 2 Kent, 282; 5 Denio, 389; 1 Comst. R. 509.' Large sums of money 
 are accordingly expended by railroad companies in erecting extensive 
 station-houses and depots, and by banking corporations in erecting 
 banking-houses, because, holding the land in fee, they may be able 
 to reimburse themselves for the outlay by selling the fee before the 
 termination of their corporate existence. 
 
 The Hudson and Delaware Railroad Company, then, by their 
 grant from Dederer, took a title in fee, but it was a fee upon con- 
 dition, there being in the grant an express condition that the 
 road should be constructed by that company within the time pre- 
 scribed by the act of incorporation. This was not a condition 
 precedent, as was argued by the plaintiff's counsel, but a condition 
 subsequent. The fee vested at once, subject to being divested on 
 a failure to perform the condition. This is apparent from the lan- 
 guage employed in the grant and from the character of the trans- 
 action. There are no technical words by which to distinguish 
 between conditions precedent and subsequent. Whether a con- 
 dition be one or the other is matter of construction, and depends 
 upon the intention of .the party creating the estate. 4 Kent, 124; 
 1 Term R. 645; 2 Bos. & Pull. 295; 3 Peters' U. S. R. 346. In 
 the latter case, Marshall, Ch. J., said: "If the act (on which 
 
 1 It is now settled in New York that there is no reverter if the corporation be 
 one having stock and stockholders. Heath v. Barmore, 50 N. Y. 302. — Ed. 
 
 LAW OF PROP. IN LAND — 34
 
 530 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CM. I. 
 
 the estate depends) does not necessarily precede the vesting of 
 the estate, but may accompany or follow it if this is to be collected 
 from the whole instrument, the condition is subsequent." In 
 this case it was evidently the design of the parties that the estate 
 should vest at once, so that the grantee might proceed immediately 
 with the construction of the road; otherwise a condition that it 
 should be completed within a given time, or ever completed, would 
 be impossible. From the character of the condition, it could not be 
 a condition precedent. Possession and control of the land must 
 necessarily accompany the construction and precede the completion 
 of the road. The grant is not made to take effect on the happening 
 of a certain event, but in presently and liable to be divested by the 
 grantee's failure to perform the condition. See also, 5 Ham. Ohio 
 Rep. 389; 9 East R. 170; 5 Pick. R. 528; 18 Martin's Louis. R. 221; 
 Co. Litt. 246^. Kent says (4 Kent, 129): " Conditions subsequent 
 are not favored in the law and are construed strictly, because they 
 tend to destroy estates." They can only be reserved for the benefit 
 of the grantor and his heirs, and no others can take advantage of a 
 breach of them. 4 Kent Com. 122, 127; 2 Black. Com. 154. The 
 plaintiff took his deed of the farm on the first of April, 1844. This 
 was one year before the expiration of the time for constructing the 
 road, and two years before the Hudson and Delaware Railroad Com- 
 pany conveyed to the defendants. At that time, therefore, there 
 had been no breach of the condition; on the contrary, the right of 
 the company was expressly recognized and reserved in the deed. 
 Certainly, then, Dederer, when he conveyed, had no assignable 
 interest. 
 
 A mere failure to perform a condition subsequent does not divest 
 the estate. The grantor or his heirs may not choose to take 
 advantage of the breach, and until they do so, by entry, or by what 
 is now made by statute its equivalent, there is no forfeiture of the 
 estate. This was the common law, and it has not been altered by 
 statute so as to give a right of entry to an assignee in any instance 
 not coupled with a reversionary interest, as in the cases of estates 
 for years and for life, except in cases of leases, or rather of grants 
 in fee, reserving rent. To that extent the law was changed in Eng- 
 land by 32 Henry VIII., ch. 34; and similar enactments have been 
 made in several of the States. In this State, these provisions will 
 be found at 1 R. S. 748, §§ 23, 24 and 25, and are limited to 
 grants or leases in fee reserving rents, and to leases for lives and for 
 years. 1 As to other grants upon condition, the common law is 
 unchanged. 2 Kent, 123. 
 
 1 See § 193 N. Y. R. P. L. — Ed.
 
 I. 2.] FEES UPON CONDITION. 53 1 
 
 There was a reason for the statutory change in the particular cases 
 mentioned; for in them the grantor had an interest independent of 
 the possibility of reverter. In the cases of a grant or lease in fee, 
 though the grantor has no reversion, he has an interest by way of 
 annual rents reserved, and in the cases of leases for lives and years, 
 he has an actual reversion of what remains after the expiration of 
 the particular estates. In these cases, therefore, he has a vested 
 interest, and may well be permitted to assign with it, and his assignee 
 to take with such interest, his right of entry for non-performance of 
 a condition subsequent; for the right to enforce a forfeiture is neces- 
 sary to the collection of the rents and to the protection and enjoy- 
 ment of the reversion. But where a fee simple, without a reservation 
 of rents, is granted upon a condition subsequent, as in this case, 
 there is no estate remaining in the grantor. There is simply a possi- 
 bility of reverter, but that is no estate. There is not even a possi- 
 bility coupled with an interest, but a bare possibility alone. It has 
 been said such possibilities were assignable in equity; but those 
 were interests of a very different character, as I will presently show. 
 So far from including these, Kent says (4 Kent, Com. 130): "A 
 court of equity will never lend its aid to divest an estate for the 
 breach of a condition subsequent," and the chancellor acted upon 
 that rule in Livingston v. Stickles, 8 Paige, 398. 
 
 All contingent and executory interests were assignable in equity, 
 and would be enforced if made for a valuable consideration. 4 
 Kent, 269. But these words had an ascertained legal signification; 
 and it was never claimed that they were applicable to a case like that 
 under consideration. It will hardly be pretended that Dederer's 
 possibility of reverter was a contingent or an executory interest, in 
 the legal sense of these words. 
 
 By the Revised Statutes (1 R. S. 725, § 35), expectant estates 
 are descendible, devisable and alienable, in the same manner as 
 estates in possession; and it is claimed that Dederer had an expect- 
 ant estate. But we are relieved from all doubt on this point, by the 
 fact that the statute itself has furnished the definition of the term 
 " expectant estates." They are described (1 R. S. 723, § 9) as 
 including future estates and reversions; and these expressions are 
 also defined in §§ 10 and 12. A future estate is one limited to 
 commence in possession at a future day, either without the inter- 
 vention of a precedent estate, or on the determination, by lapse of 
 time or otherwise, of a precedent estate created at the same time. 
 And by § 13, a future estate is said to be vested, where there 
 are persons in being who would have an immediate right to the pos- 
 session of the lands, upon the ceasing of the intermediate or pre-
 
 532 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 cedent estate; and " contingent," whilst the person to whom, or the 
 event upon which they are limited to take effect, remains uncertain. 
 A reversion is defined as the residue of an estate left in the grantor 
 or his heirs, or in the heirs of a testator, commencing in possession on 
 the determination of the particular estate granted or devised. I have 
 been thus particular in transcribing these statutory definitions of 
 " expectant estates," to show, what is apparent, that they are not 
 in the least applicable to the case under consideration. 1 Though, as 
 Chancellor Walworth said in 7 Paige, 76: " They include every 
 present right and interest, either vested or contingent, which may 
 by possibility vest at a future day," yet they do not include the 
 mere possibility of a reverter, which the grantor has after he has 
 conveyed in fee on condition subsequent. He has no present right 
 or interest whatever, and no more control over it than a son has in 
 the estate of his father who is living. The provision of the Revised 
 Statutes, by which expectant estates are made alienable, no doubt 
 covers the same class of interests which, before, were only assign- 
 able in equity. They are now assignable at law as well as in equity. 
 
 Kent says (4 Com. 370), that the grantor of an estate upon con- 
 dition has only a possibility of reverter and no reversion; and in the 
 note to page 11 of the same volume he says, " there is only the pos- 
 sibility of reverter left in the grantor and not an actual estate," 
 citing Martin v. Strahan, 5 Term R. 107, note. For examples illus- 
 trating the distinction between a naked possibility and a possibility 
 coupled with an interest, see 4 Kent Com. 262, note b, and Jackson 
 v. Waldrorii 13 Wendell, 178, and Fortescue v. Satterthwaite, 1 Iredell 
 N. C. R*. 570. 
 
 Suppose A. sell to a banking corporation in fee, by express words, 
 a lot of land on which to build a banking house. If the bank does 
 not sell that land, but retains it till the expiration of its charter, it 
 will revert to him, or, if he be dead, to his heirs. Now what estate 
 had A. after he had conveyed in fee to the bank? None whatever. 
 He had only a possibility of a reverter — a naked and very remote 
 possibility, but nothing that he could convey to an assignee. He 
 had sold his entire interest and received the full value of it. The 
 presumption was it would never return. The law would not favor 
 its return; and the grantee, who enjoyed the entire estate and upon 
 whose volition alone it could return, would not be likely to so far 
 neglect his own interests as to permit its return. A voluntary 
 reconveyance would be hardly more improbable than a reverter. 
 Just such an estate and no other had Dederer in this land when he 
 conveyed to the plaintiff. In both cases, the estates granted were 
 
 1 See ^ 49. 27-30 N. Y. R. P. L. — Ed.
 
 I. 2.] FEES UPON CONDITION. 533 
 
 upon condition. In the case of the bank the condition was implied 
 in law. Angell & Ames on Corp. 128. In this case, the condition 
 was expressed. 
 
 What is meant by possibilities coupled with an interest is of a very 
 different character, as may be seen by reference to 4 Kent Com. 262 
 and cases there cited, and 13 Wend, supra. Jicklings in his treatise 
 on the analogy between legal and equitable estates, says, that under 
 the generic term of possibilities coupled with an interest may be 
 classed all contingent and executory interests in land, as springing 
 and shifting uses, contingent remainders and executory devises. 
 
 The cases cited by the plaintiff's counsel, for the purpose of show- 
 ing that the common-law rule has been changed by the Revised 
 Statutes, have no applicability. In Lawrence v. Bayard, 7 Paige, 70, 
 the litigation was concerning personal property only, and the gen- 
 eral remarks of the chancellor, as to the extent of the change made 
 by the Revised Statutes, I have already quoted. 
 
 Upon the whole, my conclusion in this case is, that the Hudson 
 and Delaware Railroad Company took from Dederer a fee upon con- 
 dition subsequent, that at the time of the conveyance by Dederer 
 to the plaintiff, there had been no forfeiture; and that Dederer had, 
 at the time of such conveyance, no assignable interest in the 
 premises. 
 
 The judgment of the Supreme Court should be affirmed. 
 
 UPINGTON v. CORRIGAN. 
 
 151 New York, 143. — 1896. 
 
 Gray, J. — The question which this appeal presents is both inter- 
 esting and important and its answer turns upon the construction to 
 be given to the provisions of our Statute of Wills. I think, too, that 
 there have been certain decisions made by the courts of this State 
 upon the general question, the effect of which it would be very 
 difficult to overlook, however much inclined we might feel to differ 
 in our reasoning. The question is, can the plaintiff, claiming as 
 heir-at-law of Mrs. Davey, maintain this action to recover the pos- 
 session of the premises in question for the breach of the express con- 
 dition in her grant; or has such a right passed under Mrs. Davey's 
 will to her residuary legatee? The learned counsel for the appellant 
 has argured, with ability and with force, against the plaintiff's right 
 and the contention which he makes is that an interest remained in 
 the grantor, which, being descendible to her heirs, was made devisa-
 
 534 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 ble by the Revised Statutes, and, therefore, passed under her will. 
 If it is true that the plaintiff must rest her right to enter for breach 
 of the condition upon the descent of some estate or interest left in 
 the grantor, then, I think, the appellant's contention is right and 
 this action should fail. But if, on the other hand, and as argued 
 for the respondents, the plaintiff has the right to enter, not through 
 the operation of the law of descent, but merely representatively, as 
 heir-at-law, and the rule at common law has not been changed by 
 our statutes, then, I think, we will find ourselves obliged to conclude 
 that the devisee of Mrs. Davey was incapable of possessing a right 
 of entry and that it belonged solely to her privies in blood. 
 
 At common law, the benefit of such a condition in a grant of real 
 estate could be reserved only to the grantor and his heirs. It was 
 not considered to be a devisable interest in the grantor and the right 
 of re-entry for a breach could not be assigned to a stranger. It was 
 a non-assignable right and no other person than the grantor, or his 
 heir, could take advantage of a condition which required a re-entry 
 in order to revest the former estate. See vol. IV., Kent's Com. pp. 
 122, 127; Jackson v. Topping, 1 Wend. 388, 395; Good right v. For- 
 rester, 8 East, at p. 566. The reason, quaintly given in Lord Coke's 
 Institutes, was that " under color thereof pretended titles might be 
 granted to great men, whereby right might be trodden down, and the 
 weak oppressed, which the common law forbiddeth, as men to grant 
 before they be in possession." Coke upon Littleton, § 347. In 
 Greenleaf's Cruise on Real Property, (vol. 1, title 13, chap. 1, § 
 15), the reason of the rule is thus given: " That it is a maxim of 
 law, that nothing which lies in action, entry or re-entry, can be 
 granted over; in order to discourage maintenance." Whatever 
 criticisms may be made upon the reasons for the rule at common law, 
 it must be recognized as a continuing rule of property; if not changed 
 or done away with by the Revised Statutes. The effect of section 
 17 of article 1 of the State Constitution was to retain so much of the 
 common law of England as formed the law of the colony of N. Y. 
 on the 19th day of April, 1775; where not repugnant to our form of 
 government, or inapplicable to our institutions, and subject to such 
 alterations as the Legislature should from time to time make. The 
 appellant, feeling bound to concede that the right of re-entry was 
 not devisable at common law, claims that the Revised Statutes have 
 altered the law, by the provision that " every estate and interest in 
 real property descendible to heirs may be devised." 2 R. S. 57, 
 § 2. Undoubtedly, this language of the Statute of Wills is as 
 comprehensive as it can be to cover real interests; but we are 
 remitted, nevertheless, t<> the inquiry whether, here, what the grantor
 
 I. 2.] FEES UPON CONDITION. 535 
 
 had with reference to the estate she had granted amounted in law to 
 an estate or interest in the real property and therein lies the diffi- 
 culty. At common law it was only a possibility of reverter and 
 not a reversion. 4 Kent, 370; Martin v. Strachan, 5 Term Rep. 
 107. Until the happening of the breach of the express condition in 
 the deed and a revesting of the estate through re-entry, the whole 
 title was in the grantee. Have the Revised Statutes changed the 
 grantor's status? In chapter 1, part 2 of the Revised Statutes, upon 
 the nature, qualities and alienation of estates in real property, article 
 1 of title 2 creates various estates in lands and divides them into 
 those in possession and in expectancy. 1 The latter class is again 
 divided, first, into future estates limited to commence in possession 
 at a future day, either without the intervention of a precedent 
 estate, or on the determination of a precedent estate; and, second, 
 into reversions; which latter are defined to exist where the residue 
 of an estate is left in the grantor, or his heirs, commencing in pos- 
 session on the termination of a particular estate granted. By section 
 35 of the same article, it is also provided that " expectant estates 
 are descendible, devisable and alienable in the same manner as estates 
 in possession." If, therefore, there was any estate left in Mrs. 
 Davey, upon her grant to Hughes, it was one not known to our statute 
 on real property and all expectant estates, within which class it would 
 have to fall, are abolished by the article, except such as are therein 
 defined and which must be either estates limited to commence in 
 possession at a future day, or reversions. The real interest con- 
 tended for here would not satisfy the requirement of either class. 
 The mere possibility of reverter, which was all there was in this case, 
 could not be included within the " reversions " spoken of by the 
 statute, within its letter or spirit. The Statute of Wills, through the 
 use of such precise words as " every estate and interest in real 
 property descendible to heirs," obviously, must have reference to 
 such as are recognized by the Revised Statutes to be estates of 
 inheritance. We would be without warrant in asserting the existence 
 of any estate in Mrs. Davey in the premises granted to Hughes, 
 whether at common law or under the Revised Statutes. She had an 
 election to enter for condition broken and she could release her 
 right to do so. To those rights her heirs, after her decease, suc- 
 ceeded by force of representation and not by descent. There was 
 no estate upon which the Statute of Descents could operate; but as 
 heirs, there devolved upon them the bundle or aggregate of the 
 rights which resided in and survived the death of the grantor, their 
 ancestor. Her legal personalty was continued in them. [Here fol- 
 
 1 See N. Y. R. P. L. §§ 25-29; 49. — Ed.
 
 536 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 lows a discussion of Nicoll v. N. Y. & E. R. R. Co., 12 N. Y. 121, and 
 cases in 20 Barb. 455; 46 Barb. 109. 70 N Y. 312 and 106 N. Y. 287. J 
 In a case arising in the courts of the State of New Jersey, the com- 
 mon-law rule in question was considered in language which I shall 
 quote. That was the case of Southard v. The Central Railroad Com- 
 pany, 26 N. J. Law, at p. 21, and it was said: " If, however, the 
 evidence had clearly established a breach of the condition, and a con- 
 sequent forfeiture of the estate, the plaintiff could not have availed 
 herself of the forfeiture. She claims, not as heir, but as devisee of 
 the grantor. She is a privy in estate, and not a privy in blood. It is 
 a rule of the common law, that none may take advantage of a con- 
 dition in deed, but parties and privies in right and representation, 
 as the heirs of natural persons and the successors of politic persons; 
 and that neither privies nor assignees in law, as lords by escheat ; nor 
 in deeds, as grantees of reversions; nor privies in estate, as he to 
 whom the remainder is limited, shall take benefit of entry or re-entry 
 by force of a condition. Shep. Touch. 149; Co. Litt. 214a; Lit. 
 § 347; Doct. and Student, 161, ch. 20; Perkins, § 830; 4 Kent, 
 127; 2 Cruise Dig. ch. 2, § 49." See, also, upon this subject, 
 Schulenberg v. Harriman, 21 Wall. 44, and Ruch \ . Rock Island, 97 
 U. S. 693. 
 
 In this case, as it is in every case of a deed of the fee upon con- 
 dition subsequent, the grantor parted with every interest and estate 
 in the real property conveyed. That was her intention, within the 
 legal presumption from the terms of the deed, and it was, also, 
 the legal presumption that the condition would be performed by the 
 grantee. That which the grantor retained was never regarded as an 
 interest in real property, or as an assignable chose in action, and 
 cannot be deemed such through any construction of our statute. 
 Until the law is changed by some legislation, it must be regarded as 
 still the settled rule that no one can take advantage of the breach of 
 a condition subsequent, annexed to the grant of a fee, but the grantor 
 or his heirs; or, in the case of an artificial person, its successors. 
 Every estate and interest formerly enjoyed by the grantor were 
 vested by the deed in the grantee. He undertook and agreed to 
 perform the condition which is annexed to the grant, and the pre- 
 sumption was that he would perform. If he, or those who suc- 
 ceeded in interest, failed to do so within a reasonable time, then it 
 be< ame optional with the grantor to enter for a breach of the con- 
 dition and to have a forfeiture of the estate declared. The grantor 
 having died, the right to insist upon a forfeiture for breach of the 
 condition remained in the heir, as the person who occupies the 
 place of the deceased.
 
 I. 2.] FEES UPON CONDITION. 537 
 
 The further point is made by the appellants that if the clause in 
 the deed to Hughes created a condition subsequent, it could not be 
 broken after his death, as there was no mention therein of his heirs, 
 executors or assigns. I do not think, upon reading the whole of the 
 habendum clause in the deed, that we can say that the condition 
 amounted only to a personal covenant with the grantor. The 
 language is, " to have and to hold the . . . premises . 
 unto the said party of the second part, his heirs and assigns, to his 
 and their own proper use, etc., forever, upon the conditions follow- 
 ing, to wit: That said party of the second part shall consecrate, or 
 cause to be consecrated, the said property for the purpose of erect- 
 ing a church building," etc. The intention seems plain that the con- 
 veyance of the estate was upon condition, and I do not think that 
 the construction is permitted that it was a mere covenant on the 
 part of the grantee, personal to him. The condition was one which, 
 in its nature, was so annexed to the conveyance by the deed as to 
 qualify it. 2 Wash. Real Prop. *p. 455. The language does not 
 provide that the party of the second part, alone, shall consecrate, 
 but that he shall cause to be consecrated the property, and, there- 
 fore, it was within his power, if he did not do so himself, to provide, 
 in any disposition which he made of it, that his successors in interest 
 should do so. They took the estate with knowledge of the condition 
 affecting its title and cannot complain if bound by it. It seems to 
 me that the natural and ordinary interpretation of the habendum 
 clause is to create a condition subsequent, as the effect of which, in 
 case of a failure to perform it, within a reasonable time, on the part 
 of Hughes, or his heirs or assigns, the estate granted might be 
 defeated, at the option of Mrs. Davey, or her heirs. The language 
 of the clause is not merely descriptive of the consideration upon 
 which the deed was given; but qualified the conveyance to the 
 extent, or in the manner named. Considering the purpose of the 
 grant by Mrs. Davey, we could not with reasonableness of construc- 
 tion say that the condition she imposed was merely personal to Arch- 
 bishop Hughes. 
 
 A careful consideration of these questions, and no other require 
 discussion here, must lead us to the conclusion that the appeal can- 
 not be sustained. 
 
 Judgment affirmed.
 
 538 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. I. 
 
 TRYON v. MUNSON. 
 
 77 Pennsylvania State, 250. — 1374. 
 
 Ejectment by Tryon and others claiming under the heirs of 
 James Wilson, deceased, against Munson and others, claiming the 
 property under and by virtue of a sale on foreclosure of a mortgage 
 given by said Wilson. Judgment below for defendants. Plaintiffs 
 bring error. 
 
 Agnew, Ch. J., [after disposing in defendants' favor of several 
 other questions.] — The last question and the most important is, 
 whether the title of the heirs of Judge Wilson was extinguished by 
 the sale? This depends on the view which the law takes of the 
 mortgage, as a mere debt or as an estate in the land. The position 
 of the plaintiff is, that the descriptive lists of the tracts or subject 
 of the mortgage being omitted in recording the mortgage, it is to 
 be viewed as an unrecorded mortgage in its effect upon the estate 
 of the heirs, and that as a debt its lien had expired under the opera- 
 tion of the Act of 1797. Nice's Appeal, 4 P. F. Smith, 200, is 
 referred to. If it be conceded that the mortgage is merely evidence 
 of a debt, and conveys no estate in the land to the mortgagee, it 
 must be admitted that the lien of the debt was gone when this pro- 
 ceeding took place, and that, according to the doctrine of Bailey v. 
 Bowman, 6 W. & S. 118, and other cases, the title of the heirs was 
 not extinguished. We are, therefore, cast upon the decisions in 
 this State to ascertain the nature and effect of a mortgage. That 
 the debt secured by it is personal in its nature and qualities of trans- 
 mission is undoubted. Ownership of the debt carries with it that of 
 the mortgage; and its assignment or succession in the event of 
 death, vests the right to the mortgage in the assignee or the per- 
 sonal representative of the deceased owner. But there is a manifest 
 difference between the debt, which is a mere chose in action, and 
 the land which secures its payment. Of the former there can be no 
 possession, except that of the writing, which evidences the obligation 
 to pay; but of the latter, the land or pledge, there may be. The 
 debt is intangible, the land tangible. The mortgage passes to the 
 mortgagee the title and right of possession to hold till payment shall 
 be made. He may, therefore, enter at pleasure, and take actual 
 possession — use the land and reap its profits. Now this title or 
 lawful right to possess, and actual pedis possession are not ideal or 
 
 < ontemplative merely, but are real and tangible. True, the right is 
 
 < onditimial, and will cease mi payment of the debt; but until the con- 
 dition is performed, the title and possession are as substantial and
 
 I. 2 ] FEES UPON CONDITION. 539 
 
 real as though they were absolute. The evidence of this is that the 
 mortgagee may dispossess and hold out the mortgagor until he per- 
 forms the condition, or until the perception of the profits reaches the 
 same result. Thus we perceive an interest or estate in the land 
 itself, capable of enjoyment, and enabling the mortgagee to grasp 
 and hold it actually, and not a mere lien or potentiality, to follow 
 it by legal process and condemn it for payment. The land passes 
 to the mortgagee by the act of the party himself, and needs no legal 
 remedy to enforce the right. But a lien vests no estate, and is a 
 mere incident of the debt, to be enforced by a remedy at law, which 
 may be limited. It is true, if the mortgagee be held out, he may 
 have to resort to ejectment, but this is to avoid a conflict, and the 
 statutory penalties for forcible entry, for otherwise he may take 
 peaceable possession, and is not liable as a trespasser. The differ- 
 ence between title by deed, and a lien by law, is clear, and hence the 
 former is not governed by the rules which apply to the latter. The 
 title by deed, which is good against the mortgagor, is necessarily 
 good against the heirs, who are mere volunteers, and take-the place 
 of the ancestor. But a lien by law is a mere incident to the debt, 
 which may be limited by the law in its recovery from a descended 
 estate. In the former case, death makes no change in the title 
 conveyed ; in the latter, it brings into operation a law specially appli- 
 cable to the descended estate. That these are the principles govern- 
 ing the law of mortgage is evidenced by numerous decisions. Thus 
 in Levine v. Will, i Dallas, 430, it was held that the Act of 28th of 
 May, 1715, enacting that no mortgage or defeasible deed shall be 
 good or sufficient to convey or pass a freehold of inheritance or less 
 estate, unless it be acknowledged, proved and recorded within six 
 months, does not avoid an unrecorded mortgage as against the mort- 
 gagor. C. J. McKean said: " We think it is sufficient against John 
 Levine (the mortgagor) that the deed so far is sufficient to pass the 
 lands, and that under it the possession of the premises might be 
 recovered in ejectment." As to the right to maintain ejectment, 
 and that the remedy by scire facias is not exclusive, see also Smith v. 
 SJuder, 12 S. & R. 240; Fluck v . Replogle, 1 Harris, 405; and Martin 
 v. Jackson, 3 Casey, 504. A mortgage acknowledged before and 
 recorded by officers whose commissions had become void by the 
 Declaration of Independence, was held to be good against a subse- 
 quent judgment-creditor and purchaser at sheriff's sale, who had 
 notice. Parker v. Wood, 1 Dallas, 436. So a scire facias on a mort- 
 gage not recorded according to law, was held to be good against a 
 purchaser with notice Stroud v. Lockart, 4 Dallas, 153. In Semple 
 v. Burd, 7 S. & R. 291, Judge Duncan gives the true reason why an
 
 540 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 unrecorded mortgage is good against the mortgagor, because, he 
 said, " it injured no one, affected not the rights of any third person, 
 and was binding on the man who executed it as a mortgage." That 
 an estate passes by a mortgage which descends to the heir, is dis- 
 tinctly asserted in Simpsons Lessee v. Amnions, i Binn. 175. " As to 
 the second point," says C. J. Tilghman, "the legal estate in the 
 two-thirds, conveyed to Marshall (the mortgagee), descended on his 
 death to his heirs; but the mortgage being in effect only a security 
 for a debt due to the estate of Marshall, his heirs were trustees for 
 the benefit of the administrators, who were entitled to the debt. It 
 was determined in Kennedy v. Fury, 1 Dallas, 72, that a certain cestui 
 que trust may support an ejectment in his own name." This case 
 also explains the theory of the action of the personal representative, 
 which, as the Chief Justice states, is founded on the want of a court 
 of chancery in this State. The Manufacturers' and Mechanics' Bank 
 v. Bank of Pennsylvania, 7 W. & S. 335, affords another illustration 
 of the character of a mortgage as an estate. There the mortgage 
 was imperfectly recorded, and was not good as a lien against subse- 
 quent judgment-creditors, but it was' held good as against a second 
 mortgagee, with notice of it, whose lien was prior to the judgments, 
 and the money was therefore awarded to the first mortgagee. 
 Another test is found in Scott v. Fields, 7 Watts, 360, in which it 
 was decided an action of debt will not lie on a mortgage containing 
 no express covenant to pay the debt. In Philips v. The Bank of 
 Letuistotvn, 6 Harris, 394, Justice Lewis treats both the mortgage and 
 assignment of it as formal conveyances of the land. Judge Strong 
 states the principles governing mortgages more at large and very 
 clearly. Brittons Appeal, 9 Wright, 172. He says "that mort- 
 gages are sales, and that they must be, therefore, within this doc- 
 trine, is shown by many cases. Mortgagees are purchasers as 
 between each other; i. e., a subsequent mortgage recorded is post- 
 poned to a prior mortgage unrecorded, of which the second mortgagee 
 had notice. They are purchasers as against subsequent purchasers 
 absolutely, with notice. They are purchasers under powers to sell. 
 They are within the recording acts as to assignments of the same 
 security to different parties. They are in form defeasible sales, and 
 in substance grants of specific security, or interests in land for the 
 purpose of security. Ejectment may be maintained by a mortgagee, 
 or he may hold possession on the footing of ownership, with all its 
 incidents. And though it is often decided to be a security or lien, 
 yet so far as it is necessary to render it effective as a security, there 
 is always a recognition of the fact that it is a transfer of the title." 
 Mortgagees, he observes, have rights both as grantees and lien-hold-
 
 I. 2.] FEES UPON CONDITION. 541 
 
 ers; and their rights as grantees are not forbidden by the Act of 
 1820, which touches the lien only, and not the estate. The same 
 key unlocks the question before us. The lien of the debt, under the 
 Act of 1797, was gone against the general estate of Judge Wilson; 
 but the special estate, granted by him in the mortgage, remained 
 and preserved the debt against it. This effect might be seen in the 
 case of a mortgagee in possession at the death of a mortgagor. 
 Clearly, the lapse of time would not oust him, if his debt were 
 unpaid. He could hold the land until the heirs tendered payment, 
 or his debt was made out of the profits. The proceeding by scire 
 facias against the administrators was valid, and the judgment 
 being before the Act of 1834, bound the heirs. Probably the case 
 would be different since the passage of that act, and the heirs would 
 be permitted to make the same defense to the ejectment which they 
 might have set up to the scire facias, if they had been served. 
 Wallace v. Blair, 1 Grant, 75 ; Murphy s Appeal, 8 W. & S. 165 ; 
 Benner v. Phillips, 9 W. & S. 13; Atherton v. Atherton, 2 Barr. 112. 
 Even an irregularity in the proceeding, as a judgment upon one 
 return of nihil, has been held not to affect the purchaser at the 
 sheriff's sale. The effect of the sale is to transfer the estate to the 
 purchaser as fully as it existed in the mortgagor at the time of 
 the mortgage. Hartman v. Ogbom, 4 P. F. Smith, 120. The sale 
 in this case, therefore, extinguished the title of the heirs, notwith- 
 standing the great lapse of time from the death of Judge Wilson until 
 the proceeding upon the mortgages. If the heirs had a defense 
 they ought to have gone into court and asked the judgment to be 
 opened to let them into a defense. The judgment was final, and 
 bars any defense which existed before it was rendered. Though 
 the jurisdiction of the court may not be denied, as we have seen, 
 because of an omission of part of the instrument in recording it, it 
 may be conceded that the omission of a material part, necessary to 
 identify the subject-matter, will reduce the whole instrument to the 
 condition of an unrecorded mortgage in its effect upon the estate of 
 the heirs. In this view, JVice's Appeal, 4 P. F. Smith, 200, is relied 
 on by the plaintiffs in support of their position. But that case con- 
 cedes the effect of an unrecorded mortgage upon the estate as against 
 the mortgagor and his heirs, and only denies to it a higher place as 
 against creditors than that of a specialty debt, in a distribution pro- 
 ceeding, after a conversion of the property through an Orphans' Court 
 sale. It is there shown that to allow it precedence over the general 
 debts of a decedent, which are fixed in position by law at death, 
 would disturb the harmony of the system relating to the estates of 
 decedents and the payment of the debts. In this case, the simple
 
 542 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 question is, whether the mortgage, considering it as unrecorded, 
 could be enforced against the heirs of James Wilson? After a full 
 consideration of the assignments of error, we find none which ought 
 to reverse the judgment. 
 
 Judgment affirmed. 1 
 
 (£.) Void conditions and conditions impossible of performance.' 1 
 
 BOSTICK v. BLADES. 
 
 59 Maryland, 231. — 1882. 
 
 Alvey, J , delivered the opinion of the court. — * * * 
 It would seem to be well settled by a great number of adjudica- 
 tions both in England and in this country, that conditions in general 
 restraint of marriage, whether of man or woman, as a general rule, 
 are regarded in law as being against public policy, and therefore 
 void. But this rule has never been considered as extending to 
 special restraints, such as against marriage with a particular person, 
 or before attaining a certain reasonable age, or without consent. 
 Nor has it ever been extended to the case of a second marriage of a 
 woman; but in all such cases the special restraint by condition has 
 been allowed to take effect, and the devise over held good, on breach 
 of the condition. A condition, therefore, that a widow shall not 
 marry, is, by all the authorities, held not to be unlawful. Scott v. 
 Tyler, 2 Dick. 712; Jordan v. Holkham, Amb. 209; Barton v. Barton, 
 2 Vern. 308; 2 Pow. on Dev. 283; O'JVea/e v. Ward, 3 H. & McH. 
 93; Binnerman v. Weaver, 8 Md. 517; Gough and Wife x. Manning, 
 26 Md. 347; Clark v. Tennison, 7>Z Md. 85. 
 
 In the cases a distinction is taken between those where the restraint 
 is made to operate as a condition precedent, and those where it is 
 expressed to take effect as a condition subsequent; and the decisions 
 have generally been made to turn upon the question, whether there 
 be a gift or devise over or not. But if the gift or devise be to a per- 
 son until he or she shall marry, and upon such marriage then over, 
 this is a good limitation, as distinguished from condition; as in such 
 case there is nothing to carry the interest beyond the marriage. 
 There can be no doubt, therefore, that marriage may be made the 
 ground of a limitation ceasing or commencing; and this whether the 
 
 ' See also Lain- v. King, p. 197, supra, for another illustration of the common- 
 law view '•! ,1 mortgage. — Ed. 
 
 *See pp. 561, infra, for cases on conditions held void as unreasonably 
 re traini ng al ienation, — Ed.
 
 I. 2.] FEES UPON CONDITION. 543 
 
 devisee be man or woman, or other than husband or wife. Morley 
 v. Rennoldson, 2 Hare, 570; Webb v. Grace, 2 Phill. 701; Arthur v. 
 Cole, 56 Md. 100. 
 
 In this case, if the devise to the husband had depended alone upon 
 the terms of the first part of the devise, that is to say, the terms 
 " to have and to hold to him for and during the term or period after 
 my death that he shall remain unmarried,' there could be no doubt 
 it would have been a good limitation, and the estate devised to him 
 would have terminated upon his second marriage. But we must 
 read the whole clause together, and take one part in connection with 
 the other, and so reading the terms of the devise, the terms that 
 follow those just recited clearly put the devise in the form of a con- 
 dition subsequent. The estate is given to the husband for life, but 
 in the event of his second marriage it is devised over to the brother 
 of the testatrix; or, in other words, the devise is to the husband for 
 life, subject to a defeasance in the event of a second marriage. By 
 the terms of this devise a vested estate passed to the husband for a 
 definite duration, but by the happening of the event that was con- 
 templated as possible, the estate, according to the contention of the 
 plaintiff, became divested and passed over to the plaintiff. 
 
 Now, there being no question of the power of a husband to effectu- 
 ally impose such a condition in restraint of a second marriage of his 
 widow, the question here is, whether a wife by a devise or gift to 
 her husband can effectually impose a like condition in restraint of his 
 second marriage. * * * 
 
 In the courts of England the direct question here presented does 
 not appear to have arisen until very recently. In 1875 the case of 
 Allen v. Jackson, L. R. 19 Eq. Cases, 631, was decided by Vice- 
 Chancellor Hall. In that case, the testatrix gave the income of cer- 
 tain property to her niece (who was her adopted daughter) and the 
 husband of the niece during their joint lives, and to the survivor 
 during his or her life, with a proviso that if the husband survived 
 his wife and married again, the property should go over. The hus- 
 band survived the wife and married again; and the vice-chancellor 
 held, that the attempted defeasance of the husband's life interest, 
 was void as a condition subsequent in restraint of marriage. He 
 said he could not hold the law to be the same as to the second mar- 
 riage of a man as it is to the second marriage of a woman. That the 
 law as regards the second marriage of a woman is exceptional, and 
 that he did not think he could extend the exception to the case of a 
 man. 
 
 That case was taken into the Court of Appeal (1 Ch. Div. 399), 
 where it was fully argued upon all the principal authorities, before
 
 544 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 the Lord Justices, James, Mellish and Baggallay; and upon full con- 
 sideration, they all concurred in holding that the proviso was valid 
 as a condition, and that the gift over took effect; and consequently 
 reversed the judgment of the vice-chancellor. 
 
 Lord Justice James reasoned the matter upon principle;, and he 
 said that as there was no statute or express decision of any court to 
 the effect, that there is any distinction whatever between the second 
 marriage of a woman and the second marriage of a man, he was 
 unable to see any principle whatever upon which the distinction 
 could be drawn between them. He then shows to what injustice 
 and hardship the distinction would lead. In the case of a widow, he 
 said, it has been considered to be very right and proper that a man 
 should prevent his widow from marrying again; and after stating 
 the probable reasons for the rule, he proceeds to show with what 
 reason and force they apply to the case of a gift or devise to a man 
 with condition that he should not marry again. Suppose, he said, 
 " we had the case of a married woman having property which she 
 had power to dispose of by her will, and she left it to her husband 
 by reason of his being the widower, and for the purpose of enabling 
 him to perform his duties properly as the head of the family which 
 she may have left; it would be monstrou£ to say that when she pro- 
 vided for the contingency of the husband marrying a second time, 
 and having a new wife and a new family, she should not be able to 
 say, ' In that case he is to lose the estate, and it is to go over for 
 the benefit of my children.' " " In this particular case," speaking 
 of the case before him, " it was not the wife who was doing it, but 
 it was a person who places herself in the position of the wife — the 
 wife's mother — and who says, making a provision for her adopted 
 daughter, that she gives her the income of her property for her life, 
 and then gives it, after her death, to her surviving husband, evi- 
 dently in his character of widower, with a declaration that if he 
 should marry again it should go over to the child of the daughter 
 who was the first object she intended to provide for — a most 
 reasonable and proper provision, with respect to which it seems 
 impossible to suggest that there is any ground of public policy 
 against it." 
 
 In the reasoning of Lord Justice Mellish he was equally explicit in 
 holding the condition against the second marriage of the husband 
 valid, and the gift over on breach of the condition effectual. And 
 in the concurring opinion of Justice Baggally, the present state of 
 the English law upon the subject is summed up and stated with 
 admirable clearness. He says: " Now the present state of the law 
 as regards conditions in restraint of the second marriage of a woman
 
 I. 2.] FEES UPON CONDITION. 545 
 
 is this, that they are exceptions from the general rule that con- 
 ditions in restraint of marriage are void, and the enunciation of that 
 law has been gradual. In the first instance, it was confined to the 
 case of the testator being the husband of the widow. In the next 
 place, it was extended to the case of a son making the will in favor 
 of his mother. That, I think, is laid down in GodolpJii?i s Orphans 
 Legacy, p. 45. Then came the case before Vice-Chancellor Wood of 
 Newton v. Marsden, 2 J. & H. 356, in which it was held to be a gen- 
 eral exception by whomsoever the bequest may have been made. 
 Now the only distinction between those cases and the present case 
 is this — that they all had reference to the second marriage of a 
 woman, and this case has reference to the second marriage of a 
 man; but no case has been cited in which a condition has been held 
 to be utterly void as regards the second marriage of a man; and 
 following the analogy of the other cases, there seems no reason at 
 all why a distinction should be drawn between the two sexes as 
 regards this matter. It appears to me that this condition is one 
 which may fairly be treated as valid, and I think so the more for this 
 reason. Here is a gift in favor of a man, which, if he is not deprived 
 of it on the occasion of his second marriage, he may very probably 
 or very possibly settle upon a second wife, and altogether deprive 
 the original family, which was the object of the testatrix's bounty." 
 We have thus stated somewhat at large the reasoning of that case, 
 because of the entire absence of any direct authority in our own 
 courts; and the conclusion of the Court of Appeal, founded as it is 
 upon such cogent reason, and deduced from the principles of the 
 common law, commends itself strongly to our assent. In the absence 
 of any binding authority to the contrary, we are of opinion that there 
 is no good and substantial ground for maintaining a distinction 
 between a condition imposed in restraint of a second marriage of a 
 woman and a like condition in restraint of a second marriage of a 
 man. As the one is valid and effectual, so is the other; and we, 
 therefore, hold that the devise over to the plaintiff in this case, on 
 breach of the condition by the defendant, is valid, and that the 
 plaintiff is entitled to recover. * * * 
 
 Judgment affirmed. 
 
 LAW OF PROP. IN LAND — 35
 
 546 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 HOGAN v. CURTIN. 
 
 88 New York, 162. —1882. 
 
 Andrews, Ch. J. — We do not deem it essential to determine the 
 question which has been argued at the bar, whether the condition 
 in abridgment of the legacy to the daughter, in case of her marriage 
 without consent, is precedent or subsequent, as we are of opinion 
 that, while in some cases this would be a controlling consideration, 
 in this case the same result will follow either construction. But we 
 think the condition was subsequent. The gift to the daughter in 
 the fourth clause is immediate, but the payment is postponed until 
 she shall attain the age of twenty-one years, with a provision for the 
 acceleration of the payment on her marriage with consent before that 
 age, and a gift over by way of substitution to the sons, in case of 
 the daughter's dying unmarried during her minority, and a revoca- 
 tion of the gift to the daughter, except as to the sum of $5,000 in 
 case of her marriage before twenty-one, without consent. The time 
 is annexed to the payment and not to the gift. In Garret v. Pritty, 
 2 Vern. 293, more fully reported in a note to Lloyd v. Branton, 3 
 Mer. 118, the will contained a provision similar to that in the will in 
 question. In that case the testator bequeathed to his daughter, 
 Elizabeth, ^3,000, to be paid in manner following- ,£2,000 when 
 she should attain the age of twenty-one, or upon the day of her mar- 
 riage, which should first happen, etc., and ,£1,000 at the end of two 
 years, etc., and the will provided that in case the daughter should 
 be married before she attained the age of twenty one without con- 
 sent, etc., then the legacy of ,£3,000 before given to her should cease 
 and be void, and in lieu thereof, the testator gave her ,£500 only. 
 In Harvey v. Aston, 1 Atk. 378, Lord Chief Justice Lee, referring to 
 Garret v. Pritty, said: "In the case of Garrett v. Pritty, the 
 portion was plainly a vested portion, and the proviso comes in 
 afterward and is to be considered as a condition subsequent." In 
 Graydon v. Hicks, 2 Atk. 16, the will was, " I give the sum of one 
 thousand pounds to my only daughter, Mary Graydon. to be paid to 
 her at her age of twenty-one years, or on the day of her marriage, 
 which shall first happen, provided she marry by and with the consent 
 of my executor, but in case she dies before the money becomes pay- 
 able on the condition aforesaid, then I give the said one thousand 
 pounds equally between my two youngest sons," etc., and Lord 
 Hardwiekc said that he was of opinion that this is only a condition 
 subsequent, to divest a legacy in case of a marriage before twenty- 
 >ne. It may be observed that in the present case the words " here-
 
 I. 2.] FEES ON CONDITION. 547 
 
 tofore bequeathed to her," in the clause providing for an abridgment 
 of the legacy in case of marriage without consent, naturally refer to 
 a legacy which had been given by the preceding clause, which, by 
 the second clause, was to be in part divested by a marriage contrary 
 to the condition. We think the authorities sustain the view that the 
 condition in this case was subsequent and not precedent. See Roper 
 on Legacies, vol. 1, p. 554, and cases cited. 
 
 The next question is, whether the marriage of the daughter, under 
 the circumstances stated, was a breach of the condition. The 
 language is, that if the daughter should marry " against the consent 
 of my said executors and her mother," etc. The finding is that she 
 married with the consent of the sole executor, but without the con- 
 sent of her mother. It is claimed that a marriage without the 
 mother's consent is not a marriage against her consent. It was 
 said by Lord Hardwicke in Reynish v. Martin, 3 Atk. 334, that there 
 was a material distinction between a condition that the legatee 
 should not marry without consent, and a condition that she shall 
 not marry against consent. The precise distinction which Lord 
 Hardwicke had in mind is not pointed out. It could hardly be 
 claimed that a condition not to marry against consent could be 
 broken only where there was an affirmative prohibition of the mar- 
 riage before it took place. Such a construction would permit a clan- 
 destine or secret marriage to be contracted, without involving a for- 
 feiture of the legacy. But without undertaking to trace the alleged 
 distinction, it is sufficient to say in this case, as was said by Sir John 
 Leach in Long v. Ricketts, 2 Sim. & Stu. 179, that, " to make the 
 will consistent, the word ' against * here must read in the sense of 
 ' without.' ' The testator evidently uses the word against, in the 
 last sentence of the fourth clause, as the correlative of with, in 
 the first sentence. In the first sentence he gives the legacy, on the 
 daughter's marriage before twenty-one, with consent, and in the 
 last, he abridges it in case of her marriage against consent, using that 
 word as the synonym of without. This is also rendered clear by the 
 language of the eighth clause, which provides for the daughter's 
 maintenance by the executors, out of the proceeds of the real estate 
 until twenty-one, " and until my said daughter shall get married, 
 with their consent and that of her mother, as hereinbefore stated." 
 
 We are of opinion, therefore, that the daughter's marriage without 
 the consent of her mother, was a breach of the condition. The con- 
 sent of the executor alone, was not sufficient The testator required 
 the consent of both the mother and the executors. In Clarke v. 
 Parker, 19 Ves. 17, Lord Eldon said: " There is no case, in which 
 it has been held, that, the consent of three trustees being required,
 
 548 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 that consent, which, if there were only two, would have been quite 
 sufficient, would do, the third not having been at all consulted. 
 There was a discretion in him as well as in the others; and there is 
 no authority that, if the consent of three is required, a marriage 
 with consent of two only is that which the will has prescribed." 
 The remarriage of the mother did not dispense with the necessity of 
 her consent to her daughter's marriage. The will does not provide 
 that in the event of the mother's marriage, her consent shall be no 
 longer necessary. The testator transferred the custody and guardian- 
 ship of his children to his executors in the event of the remarriage 
 of his wife. He probably deemed it prudent, to put it out of the 
 power of a second husband to intermeddle with the persons or estate 
 of the children. But he uses no language indicating any intention 
 to dispense with the mother's consent to the daughter's marriage 
 before twenty-one, in case the mother married. Her natural love 
 and duty may well have been regarded by the testator as affording a 
 sufficient guaranty that the power to give or withhold consent would 
 not be abused. 
 
 The condition, therefore, of the legacy to the daughter having 
 been broken by her marriage without consent, the question remains, 
 whether the condition is effective to limit the legacy to the sum of 
 $5,000. If the question depends upon the general rules of law 
 applicable to conditions, it is plain that the daughter, by breach of 
 the condition, forfeited the primary legacy. A condition prohibiting 
 marriage before twenty-one without consent, is by the common law 
 valid and lawful. It is otherwise of conditions in general restraint 
 of marriage, they being regarded as contrary to public policy, and 
 the " common weal and good order of society." But reasonable 
 conditions designed to prevent hasty or imprudent marriages, and 
 to subject a child, or other object of the testator's bounty, to the 
 just restraint of parents or friends during infancy, or other reason- 
 able period, are upheld by the common law, not only because they 
 are proper in themselves, but because by upholding them the law 
 protects the owner of property in disposing of it under such lawful 
 limitations and conditions as he may prescribe. Story's Eq. Jur. 
 § 2.S0 ct set]., and cases cited. Now it is the general rule of law that 
 a breach of a lawful conditon annexed to a legacy either divests it, 
 or prevents an estate therein arising in the legatee, depending upon 
 whether the condition is precedent or subsequent. In accordance 
 with tins general principle, it was held in /// re Dickson's Trust, 1 
 Sim. (N. S. ) 37, that a condition subsequent that the legatee should 
 not bei ome a nun was valid, and that the legacy was forfeited by 
 breai h <>t the condition, although there was no gift over. But it
 
 I. 2.] FEES UPON CONDITION. 549 
 
 has been the settled law of England for a long period, that a con- 
 dition subsequent annexed to a legacy, in qualified restraint of mar- 
 riage, although the restraint was lawful and reasonable, nevertheless 
 did not operate upon breach to divest the title of a legatee, unless 
 there was an express gift over on breach of the condition, or a 
 direction that the legacy should fall into the residue, and pass there- 
 with, which is deemed equivalent to a gift over. The condition 
 where there is no devise over, is said to be in terrorem merely, a 
 convenient phrase adopted by judges to stand in place of a reason 
 for refusing to give effect to a valid condition. Harvey v. Aston, 
 supra; Reynish v. Martin, 3 Atk. 330; Wheeler v. Bingham, Id. 3C4; 
 Lloyd v . Branton, supra; Stackpole v. Beaumont, 3 Ves. Jr. 89; In re 
 Dickson's Trust, supra; Marples v. Bainbridge, 1 Mad. 590. In 
 Lloyd v. Branton, Sir William Grant, referring to the subject, says, 
 " Whatever diversity of opinion there may have been with respect to 
 the necessity of a devise over in the case of conditions precedent, I 
 apprehend that, without such a devise, a subsequent condition of 
 forfeiture on marriage without consent has never been enforced. "It 
 is not necessary to state at length the reason of the apparent 
 anomaly in the law upon the subject. This is fully explained in the 
 judgment of Lord Thurlow, in Scott v. Tyler, 2 Bro. Ch. 432, and of 
 Lord Loughborough, in Stackpole v. Beaumont. Suffice it to say, that 
 it grew out of the adoption, by the English ecclesiastical courts and 
 the courts of equity, of the rules of the civil and canon law, by which 
 all conditions in restraint of marriage (with very limited exceptions), 
 or conditions requiring consent, were held to be void. The ecclesi- 
 astical courts, having jurisdiction to enforce the payment of legacies, 
 adopted the rule of the civil law in all cases, without considering 
 that by the common law reasonable conditions in restraint of mar- 
 riage were valid. The distinction made in cases where there was 
 an express devise over does not seem to be founded upon any princi- 
 ple, and may possibly have grown out of an effort to partially restore 
 the harmony of the law. 
 
 It is a clear proposition, therefore, that according to the settled 
 law of England, the legacy in this case, if it is regarded as a purely 
 personal legacy, was not forfeited by the marriage of the testator's 
 daughter without consent. There was no devise over on breach of 
 the condition. The only gift over was in the event of the daughter's 
 dying unmarried before twenty-one. It has been frequently decided 
 that a general gift of a residue is not a gift over within the rule. 
 Wheeler v. Bingham, supra; Lloyd v. Branton, supra. The condition, 
 therefore, in this case would be in terrorem only within the cases 
 cited.
 
 550 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 But the legacy is not a purely personal legacy. The testator 
 charges the lands devised as an auxiliary fund for the payment of 
 debts and legacies, and there is no personalty out of which the legacy 
 can be paid. If it is paid, therefore, it can be only by a sale of the 
 land on which the legacy is charged. This presents a case where 
 the condition must be construed and effect given to it according to 
 the general rules of the common law. Reynish v. Martin was the 
 case of a legacy upon a condition in restraint of marriage without 
 consent, charged upon land in aid of the personalty. The legatee 
 married without consent, and afterward suit was brought to compel 
 a sale of the land to pay the legacy, and Lord Hardwicke denied 
 this relief, saying that " where a legacy is a charge upon the lands, 
 to be raised out of the real estate, as the ecclesiastical courts have 
 no jurisdiction, it must be governed by the rules of another fcrum, 
 to which the jurisdiction properly belongs;" and in Scott v. Tyler, 
 Lord Thurlow said, " Lands devised, charges upon it, powers to be 
 exercised over it, money legacies referring to such charges, money to 
 be laid out in land (though I do not find this yet resolved), follow the 
 rule of the common law and are to be executed by analogy to it." 
 And Judge Story, speaking of the distinctions between conditions in 
 restraint of marriage, annexed to a bequest of personal estate, and 
 the like conditions annexed to a devise of real estate, or to a charge 
 upon it says: " In the latter cases (touching real estate) the doc- 
 trine of the common law, in respect to conditions, is strictly applied. 
 If the condition be precedent it must be strictly complied with in 
 order to entitle the party to the benefit of the devise or gift. If the 
 condition be subsequent its validity will depend upon its being such 
 as the law will allow to divest an estate." Story's Eq. Jur., § 288; 
 see, also, Cornells. Lovetfs Ex'r., 11 Casey, 100; Comm. v. Stauffer, 
 10 Barr. 350; Williams on Pers. Prop. 341. 
 
 On the ground, therefore, that the condition in this case was law- 
 ful, and that there is no personal estate to pay the legacy, and that 
 it cannot be enforced as a charge against the real estate by reason of 
 the breach of the condition, we think the judgment should be affirmed. 
 
 Judgment affirmed. 
 
 PARKER v. PARKER. 
 
 123 Massachusetts, 584. — 1878. 
 
 Grav. C. J. — All the lands of which partition is sought were 
 devised by David Parker to Loring Parker upon the condition subse- 
 quent that lie should support George Parker. On the death of
 
 I. 2.] FEES UPON CONDITIONAL LIMITATION. 55 I 
 
 George, in the lifetime of the testator, the performance of the con 
 dition became impossible by the act of God, and Loring cannot be 
 said to have neglected or refused to perform it, but holds the lands 
 by an absolute title. 4 Kent Com. 130; Merrill v. Emery, 10 Pick. 
 
 5°7, 5"« 
 
 Petition dismissed. 
 
 (3.) Fees upon Conditional Limitation. 1 
 
 HATFIELD v. SNEDEN. 
 
 54 New York, 280. — 1873. 
 
 [Reported herein at p. .] 
 
 d. The fee-conditional of the common law. 
 
 BURNETT v. BURNETT. 
 
 17 South Carolina, 545. — 1882. 
 
 McIver, J. — The principal questions in this case arise upon the 
 construction of a deed which is couched in very informal and arti- 
 ficial language. Its material terms are as follows: " Know all men 
 by these presents that I, Mark Cantrell, for the bare affectionate 
 love I have to my daughter, Mary Burnett, and having special con- 
 fidence in my brother Lanceford Cantrell and Joseph W. Martin as 
 trustees, I give to my daughter and the lawful heirs of her body the 
 following property, or to the trustees for her and her heirs' use and 
 benefit ninety-two acres of land lying . . . reserving the use of 
 the same during my life. And if my wife, Sarah Cantrell, is a longer 
 liver than me, she is to have the use of the home tract ot land, for 
 her support, and choice of the negroes and mares — two cows and 
 other household and kitchen furniture, as my trustees for my 
 daughter and her lawful heirs think proper, during life or widow- 
 
 1 For the various uses of the term " conditional limitation." see note to § 22 
 of Gray's " Restraints on Alienation." It seems, on the whole, best that the 
 phrase should be used as a generic term covering shifting uses and shifting 
 executory devises. This is the sense in which we find it used in the N. Y. Real 
 Prop. Law., § 43. " A remainder may be limited on a contingency, which, if it 
 happens, will operate to abridge or determine the precedent estate; and every 
 such remainder shall be a conditional limitation." Shifting uses and shifting 
 executory devises are termed remainders in New York. R. P. L., §§ 25-28, 
 and 43. See the chapter on future estates, infra. — Ed.
 
 552 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. I. 
 
 hood. And it is my earnest desire that my trustees attend to [here 
 some words are manifestly omitted] agreeable to the intention of 
 this writing or conveyance." 
 
 The grantor's wife predeceased him, and Mary Burnett, who sub- 
 sequently intermarried with one Hammett, died in 1877, leaving no 
 issue of her second marriage; Margaret, the wife of the plaintiff, J. 
 W. Burnett, and the defendants, Marcus Burnett, Matthew Burnett 
 and Mrs. McKinney, being her issue by her first marriage. By her 
 will she appointed the defendant Davis executor, directing him to 
 sell sufficient of her personal and real estate to pay her debts. The 
 executor sold all of her property, both real and personal, including 
 the lands conveyed by the above mentioned deed, and the object 
 of this action is to set aside the sale of these lands and to have the 
 same partitioned amongst the above named heirs of Mary Hammett, 
 formerly Mary Burnett. 
 
 The first question presented is as to the nature of the estate which 
 Mary Hammett took in the lands conveyed by said deeds. Both 
 the referee, to whom the issues in the action were referred, and the 
 circuit judge held that she took an estate in fee conditional, and we 
 concur with them in so holding. The deed, as will be seen, is very 
 informal, but the conveying words are to Mary Burnett " and the 
 lawful heirs of her body." The authorities universally hold that 
 these are the apt words, to create an estate in fee conditional, and 
 we are unable to discover anything in the terms of this deed to take 
 this case out of the well-settled general rule. The subsequent 
 words "or to the trustees for her and her heirs' use and benefit," 
 cannot have this effect, for the word " heirs " as there used must be 
 construed as meaning the same class of heirs — heirs of the body — 
 which had previously been designated. The same remark will apply 
 to the words " lawful heirs " as used in the latter part of the deed. 
 These words are not found in the habendum clause, as suggested in 
 one of the arguments, for there is no such clause in the deed, and 
 must be regarded as used to indicate the same class of persons 
 referred to in the conveying part of the deed. 
 
 Nor can the fact that trustees are interposed affect the question. 
 For, even if the deed should be regarded as a conveyance to the 
 trustees for the use of Mary and the lawful heirs of her body, about 
 which there might be a serious question, it would not take the case 
 out of the operation of the rule in Shelley's Case. It is true that 
 the case of Austin v. Payne, 8 Rich. Eq. 9, does hold that where the 
 estate of the ancestor and that limited to the heirs are not of 
 the same quality, that is, where one is equitable and the other legal, 
 the rule in that celebrated case will not apply. But that case recog-
 
 I. 2.] THE FEE-CONDITIONAL. 553 
 
 nizes the doctrine that where both estates are equitable it will apply. 
 If, therefore, the deed should be regarded as creating an equitable 
 estate, originally, in Mary, it created the same kind of an estate in 
 the heirs of her body, and both estates lost that character when there 
 was nothing for the trustees to do, as the statute would then execute 
 the uses. Bouknightv. Epting, n S. C. 71, and the cases there cited. 
 The only duty imposed upon the trustees was an exercise of their 
 discretion as to what property the wife of the grantor should be 
 allowed the use of, in the event she survived him; but as she died 
 before the grantor, there was absolutely nothing for the trustees to 
 do, and hence, even if it should be regarded that the deed conveyed 
 the estate to the trustees, the statute would execute the uses, and 
 the estates would become legal both in Mary and the heirs of her 
 body. 
 
 Regarding, then, the estate as a fee-conditional, our next inquiry 
 is, whether it was liable for the debts of Mary Hammett, the first 
 taker, in the hands of her heirs. In the case of Izard v. Middleton, 
 Bail. Eq. 228, cited with approval in Pearsc v. Killian, McM. Eq. 
 231, it was held that lands held in fee-conditional are bound, after 
 the birth of issue, by the lien of a judgment or decree, against the 
 tenant in fee, in bar of the right of the issue to take per for mam dam. 
 It seems to me that the same reasoning which led to this conclusion 
 would necessarily lead to the conclusion that land so held would be 
 assets for the payment of debts even though not reduced to judg- 
 ment; and such was the opinion of the distinguished Chancellor 
 Harper, who delivered the opinion of the court in Izard v. Middleton. 
 At page 235 he says: " But if there had been no decree against Mr. 
 Izard in his lifetime, yet if the heir takes only by succession from 
 the ancestor, and in his right, it would seem to follow that whatever 
 would be liable to debts in his hands must be assets in the hands of 
 the heir; and such is the purport of the Statute 5 Geo. 2, chap. 7." 
 It is true that this was only a dictum, inasmuch as in that case the debt 
 had been reduced to judgment and had become a lien on the land 
 during the lifetime of the first taker, yet it is a dictum supported 
 not only by the great name of that eminent jurist, but by the 
 unanswerable reasoning employed by him in that case. 
 
 The fundamental difference between an estate in fee-conditional, 
 after the condition has been performed, and an estate in fee simple 
 is, 1st, that in the former the course of descent is confined to a par- 
 ticular class of heirs, and upon failure of such heirs the estate reverts 
 to the donor; 2d, that the holder of such an estate can only dispose 
 of it by some act which takes effect during his life. In all other 
 respects their qualities and incidents are the same. In a grant of an
 
 554 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 estate in fee-conditional, heirs of the body are not named on account 
 of any benefit intended for them, or for the purpose of controlling or 
 limiting the ancestor's power of disposition during his life, but 
 simply for the purpose of prescribing the course of descent, in case 
 no such disposition is made. In the case of a fee simple estate the 
 law prescribes that the estate shall descend to the heirs generally, in 
 case the ancestor makes no disposition of the estate, while in the 
 case of an estate in fee-conditional the instrument creating the estate 
 confines the descent to a particular class of heirs. Both classes of 
 heirs take by succession from the ancestor, and as in fee simple 
 estates the heirs generally take the estate subject to a liability for 
 the debts of the ancestor, we see no reason why, in estates in fee- 
 conditional, the heirs of the body to whom the descent is confined 
 should not take the estate in the same way. 
 
 Our next inquiry is as to the effect of the disposition made by 
 Mary Hammett, by will, for the sale of the lands held by her in fee 
 conditional. In this State it has been settled that an estate in fee 
 conditional is not the subject of devise. Jones ads. Postell, Harp. 
 92. To allow such a power to a tenant in fee conditional would be 
 to give him the power to disturb the course of descent fixed by the 
 instrument creating the estate, and hence it cannot, consistently 
 with the nature of the estate, be allowed. The moment the first 
 taker dies, without having alienated the estate in his lifetime, it 
 descends to and rests in the heirs of his body, and his will, which 
 can only take effect after his death, cannot divest the heirs of the 
 estate. So, at common law, a joint tenant could, during his life, 
 alien his estate, but he could not devise it for the reason that " no 
 devise can take effect till after the death of the devisor, and all the 
 land presently cometh by the law to his companion who surviveth," 
 and the commentator remarks that Littleton " by the words post 
 mortem and per mortem used in the text, though they jump at one 
 instant, alloweth priority of time in the instant, which he dis- 
 tinguisheth by per and post. And the reason of this priority is that 
 the survivor claimeth by the feoffer, and therefore in judgment of 
 law his title is paramount to the title of the devisee, and conse- 
 quently the devise is void." Co. Litt. iSo^. It follows, therefore, 
 that Mary Hammett had no right to devise the lands conveyed by 
 the deed from Mark Cantrell, her power of disposition ceasing with 
 her life, and that the sale thereof made by the executor, under the 
 directions of her will, even though for the payment of debts, was 
 without authority. 
 
 The points raised by the plaintiff's third, fourth and fifth grounds 
 of appeal cannot, be considered by us, as there is no copy of the
 
 La.] FEES-TAIL. 555 
 
 pleadings set out in the " Case," and we are not at liberty to assume 
 that the circuit judge went beyond the scope of the pleadings in 
 rendering his decree. He was bound by the 55th rule of the Circuit 
 Court to make due provision for the payment of debts before order- 
 ing the partition asked for; and the counsel for the plaintiff is in 
 error in supposing that it did not appear that the personal estate 
 was insufficient for the payment of the debts, for the referee 
 distinctly reported that the debts of Mary Hammett " amounted to 
 very nearly the value of her whole estate." 
 
 The judgment of this court is that the judgment of the Circuit 
 Court be affirmed. 1 
 
 e. The fee-tail. 
 Shope, J., in LEHNDORF v. COPE. 
 
 122 Illinois, 317. — 1887. 
 
 It is contended by defendant in error, that by the deed of August 
 3, 1883, from Humphrey and wife to " Maria Anna Lehndorf and her 
 heirs by her present husband, Henry Lehndorf," Mrs. Lehndorf 
 took a fee simple estate in the lands conveyed, while plaintiffs in 
 error contend that she thereby took a life estate only, with remainder 
 in fee to her children by said Henry Lehndorf. 
 
 The deed being statutory in form, contains no habendum limiting 
 or defining the estate taken by Mrs. Lehndorf, and although the 
 deed must be held equivalent to one containing full covenants, Elder 
 v. Derby, 98 111. 228, it is manifest that the estate granted would not 
 be enlarged or restricted thereby. Such covenants are an assurance 
 of the title granted to the grantees, whomsoever they may be. If 
 Mrs. Lehndorf took the fee, the covenants assure that estate to her; 
 if she takes an estate in tail, the covenantor warrants to her a life 
 estate, and the remainder in fee to whomever would take upon 
 determination of her estate. Therefore, as said by counsel for 
 defendant in error, the determination of the question depends upon 
 a construction of the granting clause of the deed, which is, that the 
 grantors, in consideration, etc., " convey and warrant to Maria Anna 
 
 1 In England the statute de donis conditionalibus (West. II, 12S5) compelled the 
 courts to construe such estates as that above "according to the form of the 
 gift." and the resulting estate was known as an "estate-tail." See Lehndorf w. 
 Cope, infra. This statute was understood to be in force in the other orignal 
 States, but not in South Carolina. See Gray's " Rules Against Perpetuities," 
 §| 18 and 14, for the general principles and for citation of other South Carolina 
 cases. — Ed.
 
 556 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. I. 
 
 Lehndorf, and her heirs by her present husband, Henry Lehndorf, 
 of," etc., the lands in controversy. 
 
 The legitimate purpose of all construction of a contract or other 
 instrument in writing, is, to ascertain the intention of the party or 
 parties in making the same, and when this is determined, effect will 
 be given thereto, unless to do so would violate some established ruie 
 of property. The nature and quantity of the interest granted by a 
 deed are always to be ascertained from the instrument itself, and 
 are to be determined by the court as a matter of law. The intention 
 of the parties will control the court in construction of the deed, but 
 it is the intention apparent and manifest in the instrument, constru- 
 ing each clause, word and term involved in the construction accord- 
 ing to its legal import, and giving to each thus construed its legal 
 effect. Washburn on Real Prop. 404; Bond v. Fay, 12 Allen, 88; 
 Lippctt v. Kelley, 46 Vt. 516; Price v. Sisson, 13 N. J. Eq. 17S; 
 Caldwell v. Fulton, 31 Pa. St. 489; Wager v. Wager, 1 S. & R. 374. 
 
 It cannot be presumed that the parties used words or terms in the 
 conveyance without intending some meaning should be given them, 
 or without an intent that the effect legitimately resulting from their 
 use should follow; hence, if it can be done consistently 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. 
 
 We should, perhaps, first notice the contention of counsel for 
 defendant in error, that by virtue of section 13 of the Conveyance 
 act, (as there is here no express limitation upon the estate of Mrs. 
 Lehndorf, and as no one can have heirs while living,) the words 
 following the grant to her should be rejected, and the deed read as 
 if to her only. This arises from a misapprehension of the statute. 
 The evident purpose of the section referred to, was to change the 
 rule of the common law, whereby, if a conveyance, etc., was made 
 without words of inheritance, an estate for the life of the grantee 
 only was created. The section is as follows: 
 
 " Sec. 13. Every estate in lands which shall be granted, conveyed 
 or devised, although other words heretofore necessary to transfer an 
 estate of inheritance be not added, shall be deemed a fee simple 
 estate of inheritance, if a less estate be not limited by express words, 
 or do not appear to have been granted, conveyed or devised, by 
 construction or operation of law." 
 
 It is not necessary, as seems to be supposed, that to create a less 
 estate than the fee, there should be expressed words of limitation, 
 either under the statute or at common law. It is sufficient for that 
 purpose if it appear, by necessary implication, that a less estate was
 
 I. 2.] FEES-TAIL. 557 
 
 granted. In an early case, Frogmortonv. Wharrey, 2 W. Black. 728, 
 where there was a surrender of copyholds by R., who was seized in 
 fee to M., his then intended wife, and the heirs of their two bodies, 
 etc., Wilmot, C. J., delivering the opinion of the court for himself, 
 Bathurst, Gould and Blackstone, JJ., after holding, on authority of 
 Gossage v. Taylor, Styles 325, and Lane v. Panne/, 1 Roll. 438, that 
 the children thus begotten took as purchasers and not as heirs, says, 
 the only difference in the cases is, that in those cases " the wife had 
 an express estate for life, and here not. But upon legal principles 
 the cases are just alike. An estate ' to A., and the heirs of his body ' 
 is the same as an estate ' to A. for life, remainder to the heirs of his 
 body.' By operation of law, the added words created, in the case 
 cited, in M. a life estate only, with remainder to the heirs of herself 
 and R , as purchasers. So the grant " to A., and the heirs of his 
 body," by operation of law creates an estate tail in A., remainder in 
 tail. And this has been the uniform holding. 
 
 The sixth section of the Conveyance act provides, that in cases 
 where, by the common law, any person or persons might, after its 
 passage, become seized in fee tail of any lands, etc., by virtue of any 
 gift, devise, grant or conveyance " hereafter to be made," or by any 
 other means whatsoever, such person or persons, instead of being or 
 becoming seized thereof in fee tail, shall be deemed and adjudged 
 to be and become seized thereof for his natural life only, and the 
 remainder shall pass, in fee simple absolute, to the person or persons 
 to whom the estate tail would, on the death of the first grantee or 
 donee, pass, according to the course of the common law, by virtue 
 of such gift, devise or conveyance. It is apparent, if at common 
 law, by virtue of this conveyance, Mrs. Lehndorf would take an 
 estate tail, whether an estate tail general, or an estate tail special, the 
 thirteenth section would be inoperative, and by virtue of section six 
 she would become seized of an estate for her life, with remainder in 
 fee to those to whom the estate is immediately limited. 
 
 Estates tail came into general use upon construction by the courts 
 of the statute de donis conditionalibus, 13 Edw. 1, c. 1, § 1, and 
 while no extended discussion will be necessary, an examination suffi- 
 cient to determine if this case falls within the rules creating an 
 estate tail, will be proper. 
 
 To create an estate in fee simple, at common law, the grant must 
 be to the grantee and his heirs, without limitation, to take from 
 generation to generation, in the regular course of descent. A tenant 
 in fee simple is defined by Blackstone to be, " he that hath lands, 
 tenements or hereditaments, to hold to him and his heirs forever, 
 generally, absolutely, simply, without mentioning what heirs, but
 
 558 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. (II. I. 
 
 referring that to his own pleasure or the disposition of the law." 
 Com. ii, 104. Estates in fee tail were of two kinds. Estates tail 
 general, as where the grant was to one and the heirs of his body gen- 
 erally, so that his issue in general, by each and all marriages, are 
 capable of taking per for mam doni; and estates tail special, where the 
 gift or grant was restricted to certain heirs, or class of heirs, of the 
 donee's body. Blackstone's Com. n, 113, 114; 4 Kent's Com. n; 
 1 Washburn on Real Prop. 66. In a grant of lands, words of inherit- 
 ance were necessary, at common law, to the creation of a fee, but 
 in the creation of a fee tail estate more was required. There must 
 also be words of procreation, indicating the body out of which the 
 heirs were to issue, or by whom they were to be begotten. The 
 ordinary formula was to make the gift or grant to the donee, as the 
 grantee was called, " and the heirs of his body," or " her heirs upon 
 her body to be begotten," or " upon her body to be begotten by 
 A; " but there was no especial efficacy in these particular forms of 
 words, and it was requisite, only, that in addition to limitation to 
 " heirs," the description of the heirs should be such that it should 
 appear they were to be the issue of a particular person. Blackstone's 
 Com. 11, 114; 1 Washburn on Real Prop. 72; 2 Preston on Estates, 
 478, and cases cited; 2 Tarman on Wills, 325. 
 
 The necessary words of inheritance are not here wanting to create 
 a fee simple, or fee tail, at common law. The grant is to Mrs. 
 Lehndorf and her heirs, and if the description had stopped here, a 
 fee simple estate would, at common law, have passed by the deed. 
 The grant is not, however, to her and her heirs simpliciter, but to her 
 and her heirs by a particular husband, and by necessary implication 
 excludes the construction that heirs generally were intended. Heirs, 
 generally, would include not only those designated, but children she 
 may have or have had by any other husband, as well as collaterals. 
 Who, under the law, could be her heirs by her present husband except 
 her children by him begotten? If the word " begotten " had been 
 introduced before the preposition "by," so as that it would have 
 read, " her heirs begotten by her present husband," etc., it would 
 have been no more certain that the issue of her body was intended. 
 If it be conceded that equivalent words, which, by necessary 
 implication, describe and designate the particular body out of which 
 the heir should proceed, would suffice to create an estate tail at 
 common law, which seems to be done by the cases and text-writers, 
 then the conclusion seems irresistible that such an estate was here 
 created. " Her heirs by her present husband" could be no other 
 than the issue of her body by him begotten. No other person, or
 
 I. 2.] FEES-TAIL. 559 
 
 class of persons, would answer the description, and they would and 
 do fill it in every particular. 
 
 This precise point was ruled in Wright v. Vernon, 2 Drewry, 439, 
 where it is said: " The effect, therefore, of a limitation 'to the 
 right heirs of Sir Thomas Samwell, by a particular wife, forever,' 
 is precisely the same as that of a limitation to the heirs of his body 
 by that particular wife, forever. The words, ' of his body,' are not 
 in the least degree necessary to this construction of the term ' heirs,' 
 or ' right heirs,' because without their insertion the full and absolute 
 effect of them is involved in the description, ' his right heirs, by 
 Mary, his second wife,' which description limits the meaning of the 
 term ' heirs ' to heirs especial, procreated by himself, as effectually 
 and as necessarily as the words, ' of his body,' could do if they had 
 been added." This was a case, it is true, arising upon a devise, in 
 respect of which much greater latitude of construction is allowable 
 than in the construction of deeds; but that consideration can in no 
 way affect the weight of the authority upon the matter being 
 considered. 
 
 It follows, that Mrs. Lehndorf would, at common law, be seized, 
 by virtue of this conveyance, of an estate tail special in the lands 
 conveyed, and therefore, under the statute, would take an estate for 
 her life only, and that, by virtue of the statute cited, the remainder 
 vested in fee in her children by her said husband, in esse at the 
 time of making the deed, subject possibly, however, to be opened to 
 let in after-born children of the same class. If no issue of her body 
 " by her present husband " had been then living, the remainder 
 would have fallen under Fearne's fourth and Blackstone's first defi- 
 nition of a contingent remainder, i. e., when the remainder is limited 
 " to a dubious and uncertain person." But here, at least two of the 
 children who would, under the statute, take the fee simple estate 
 upon the determination of the life estate, were in being when the 
 deed was executed and delivered, and the remainder vested imme- 
 diately in them in fee, subject to the possible contingency of being 
 divested pro tanto, if opened to let in after-born children answering 
 the same description. The person to whom the remainder is limited 
 is ascertained, the event upon which it is to take effect is certain to 
 happen, and although it may be defeated by the death of such per- 
 son before the determination of the particular estate, it is a vested 
 remainder. " It is the uncertainty of the right of enjoyment which 
 renders a remainder contingent, — not the uncertainty of its actual 
 enjoyment." 2 Blacks. Com. 169; Fearne on Rem. 149; Kent's 
 Com. 203; 2 Sandf. C. R. 533; Hawley v. James, 5 Paige, 467; 
 Moore v. Lyons, 25 Wend. 144.
 
 560 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CM. I. 
 
 But it is said that the rule in Shelley's Case should be applied; but 
 it will be seen that its application will produce the same result. 
 That rule, as formulated in 2 Jarman on Wills, page 332, will best 
 illustrate the position here. It is: " The rule simply is, that where 
 an estate of freehold is limited to a person, and the same instrument 
 contains a limitation, either mediate or inmediate, to his heirs, or 
 the heirs of his body, the word " heirs " is a word of limitation, — 
 /'. e., the ancestor takes the whole estate comprised in this term. 
 Thus, if the limitation be to the heirs of his body, he takes a fee tail; 
 if to his heirs general, a fee simple." The rule operates upon the 
 words of inheritance without affecting the words of procreation, so 
 that if, in any case, the words, " heirs of his body," or other equiva- 
 lents sufficient to create an estate tail, are used, a fee tail is vested 
 in the first taker, and not the fee simple, as seems to be supposed. 
 Therefore, if the rule be applied, Mrs. Lehndorf would, at common 
 law, be seized of an estate in fee tail, and brought directly within 
 the terms of section six of the Conveyance act, before cited. When, 
 therefore, Mrs. Lehndorf, joined by her husband, mortgaged the 
 land to Humphrey, it was not in her power to incumber the fee, and 
 that estate passed to and vested in her two children then living, 
 unincumbered by the lien created by the mortgage. 1 
 
 3. The Necessary Incidents of a Fee. 
 
 a. Alienability. 
 
 (1.) In General: Voluntary and Involuntary. 2 Inter vivos and 
 
 by Devise. 
 
 MUNROE v. HALL. 
 
 97 North Carolina, 206. — 1SS7. 
 
 [Reported herein at p. 561.] 
 
 1 Estates-tail are practically non-existant as such in the United States, — the 
 statutes converting them, at the moment of their creation, into some other form 
 of estate or estates. In New York and several other States, they become 
 estates in fee-simple, some of these States preserving any remainder in, fee 
 under certain circumstances. N. Y, R. P. L., g 22. Other States follow the 
 rule of Lehndorf v. Cope. In Massachusetts and Pennsylvania the estate 
 seems to remain in-tail until a conveyance occurs by some tenant-in-tail. See 
 the American note, p. 121, of Hutchins' Williamson Real Property. — Ed. 
 
 '" Involuntary," i. e., by process of law for the payment of debts of its 
 owner and for taxes and assessments; also in the exercise by the State of its 
 right of eminent domain. — Ed.
 
 I. 3-J FEES; RESTRAINTS ON ALIENATION. 561 
 
 (2.) Validity and Effect of Clauses Intended to Restrain the 
 Alienation of a fee. 
 
 (a.) Conditions, limitations and conditional limitations.* Declarations that the fee 
 shall be inalienable} General restraints. 
 
 MUNROE v. HALL. 
 97 North Carolina, 206. — 1887. 
 
 Action by the children and heirs-at-law of Thomas Munroe to 
 recover certain lands from the heirs of W. S. Hall to whom they 
 were conveyed by Annabella and Mary Munroe. 
 
 The lands in question were deeded by N. Munroe to his children, 
 Thomas, Patrick, Annabella and Mary, their heirs, etc., upon certain 
 terms and conditions set out in the opinion. Defendants succeeded 
 below. 
 
 Merrimon, J. (after stating facts). — The sole question presented 
 by the record in this case for our decision is, did the deed in ques- 
 tion operate to convey the fee simple estate in the land therein 
 described as situate and being on the north side of the road men- 
 tioned to Annabella Munroe and Mary Munroe? 
 
 We cannot hesitate to answer this question in the affirmative. 
 The deed by appropriate terms for that purpose, conveys the 
 fee to them, and there is nothing in it that at all indicates a con- 
 trary intention on the part of the donor, except the words limiting 
 the estate to these sisters " as long as either of them is single," and 
 the proviso in a subsequent part of it, that they should never " sell 
 or dispose of any part of the above named land ... in any 
 manner whatever." 
 
 The effect of the words " as long as either of them is single," need 
 not be considered, because both the sisters died many years ago, 
 and were never married. In any possible view of these words, they 
 could only indicate a purpose to give the land to Patrick in a con- 
 tingency that never happened and never can happen. There is no 
 intimation of any purpose to abridge the estate given them, unless 
 in the contingency of marriage. 
 
 '" No attempt is made to attach any character of inalienability to the estate, 
 but the estate is given either on condition that it shall not be alienated, or until 
 it is alienated." Gray's " Restraints on Alienation " (2d ed.), § 10. That no 
 special favor is shown to limitations or conditional limitations in restraint of 
 alienation over conditions, see ^§ 2ga-2QC. Id. — Ed. 
 
 '•'See Gray's " Restraints," § 10. With a third class of attempted restraints 
 — covenants not to alien — we have here nothing to do. See, however, note 
 to § 19 of Gray's " Restraints." — Ed. 
 
 LAW OF PROP. IN LAND — 36
 
 562 ESTATES AS TO QUANTITY AND QUALITY. [PT. TV. CII. I. 
 
 As to the proviso recited above, it is repugnant to the fee simple 
 estate previously conveyed, and is in absolute restraint of all alien- 
 ation, and is, therefore, simply void. An important incident of the 
 fee simple estate is the right of alienation, and hence, any condition 
 in a deed conveying lands or a devise that seeks to prevent aliena- 
 tion altogether, is void, being repugnant to the estate conveyed 
 The rule, however, is not so comprehensive in its operation as to 
 prevent all conditions and restraints upon the power of alienation. 
 Such as are limited and reasonable in their application, and as to the 
 time they must operate, are valid and will be upheld. 1 Wash, on 
 R. P. 67-69; 4 Kent Com. 135; Pearson's Law, Lee. 135 
 
 There is no error and the judgment must be affirmed.' 
 
 Christiancy J., in MANDELBAUM v. McDONELL. 
 
 29 Michigan, 78. — 1874. 
 
 This devise, it is true, is not in form a devise of the lands 
 themselves, but of the proceeds when sold. If, however, there 
 is anything in the will made perfectly clear and placed beyond 
 all possible doubt, it is that the proceeds should be the absolute and 
 exclusive property of the devisees (except the interest of Ellen 
 Daily and Ann Baxter might be defeated by a condition subsequent), 
 and that no other person should, in any event, have any right or 
 interest in them under any circumstances. Not even the violation 
 by them of the provisions restricting their power of sale, was to 
 defeat or affect their interest, forfeit it to the heirs, or pass it over 
 to others; but all conveyances of that kind, it is declared, shall be 
 void; and the testator even goes so far as to declare it to be his 
 intention " that no proceedings whatever, either in a court of law 
 or chancery, shall in any way impair or deprive any of (his) devisees 
 of any of the bequests in this will made, before the same is actually 
 paid into the hands of such devisees." It is very clear, therefore, 
 that though the word " condition " is used in connection with this 
 
 'The rule is the same in the case of attempts to restrain the alienation of 
 equitable interests in the nature of a fee. rotter v. Couch, 141 U. S., 296. But 
 see Claflin v. Cinjlin, 149 Mass., 19, and the discussion in Gray's " Restraints," 
 :'.' 120-124P. 
 
 A provision (conditional limitation) that a fee shall be forfeited in case the 
 grantee aliens a life interest in another parcel conveyed by the same deed would 
 Beem to \><- a purely collateral condition, and not void. Camp v. Cleary, 76 
 Va., 140. See, however, Gray's discussion of this case in his " Restraints on 
 Alienation " (2d ed.)i §§ 29a-29c. — Ed.
 
 I. 3-] FEES; RESTRAINTS ON ALIENATION. 563 
 
 devise, the devise is not made upon the condition that it shall be 
 forfeited on a sale, or an attempted sale, and that the interest of the 
 devisees shall terminate, or go to the heirs, nor is it limited over to 
 any other person upon a breach of the restriction upon the power of 
 sale, but that the devise and the interest intended to pass by it were 
 to be absolute and unconditional in this respect, whether the restric- 
 tion should be observed or violated. And as to the agreement to 
 these restrictions, which the devisees were required to sign, suppos- 
 ng it to have been signed, who were the parties whose interests 
 were to be affected by it? Who had a right to insist upon its per- 
 formance, or to any remedy for its breach? Clearly none but the 
 devisees themselves, who might, therefore, mutually release, abandon 
 and put an end to it, at least with the unanimous consent of all, 
 which they did by their conveyances, if these were in other respects 
 valid. It was, in fact, very frankly admitted by the counsel for the 
 defendants that the interest given by the will to these devisees was 
 a present vested interest, though it was insisted that it was not 
 properly an interest in the land, but the proceeds; that these pro- 
 ceeds could only be obtained through the execution by the executors 
 of the power of sale. 
 
 But when such a bare power of sale is given to the executors 
 merely to sell the lands for the purpose of paying over the proceeds 
 to devisees, whose right under the will to such proceeds is an abso- 
 lute and vested right, we understand the law to be settled, not only 
 that all such devisees may collectively, before the power of sale is 
 executed, elect to take the land, instead of the proceeds, according 
 to their respective interests in the latter, and thus prevent a sale, 
 but that each of them may ordinarily so elect as to his own share. 
 See Reed v. Underbill, 12 Barb. 113; Kirkman v. Miles, 13 Ves. 338; 
 Craig v. Leslie, 3 Wheat. 563; Tazewell v '. Smith's Admrs., 1 Rand. 
 (Vir.)3i3; Burr v. Sim, 1 Whart. 252; Broome v. Curry's Admrs., 19 
 Ala. 805; Quin v. Skinner, 49 Barb. 132; Story's Eq. Jur. § 793. 
 This is the effect which the law itself gives to such devise, — which 
 gives a vested interest in the whole proceeds to the devisees, — 
 whether the will provides for such an election or not, and even 
 though it should expressly forbid the election. 
 
 Whether it would be competent to make a devise upon the express 
 condition that the proceeds alone should be received or the devise 
 to be forfeited, or the property or proceeds go over to another in 
 case of a refusal to accept the proceeds, or of claiming the land, we 
 need not consider, as this devise is not made dependent upon any 
 such condition. And though the language makes it in form a devise 
 of the proceeds instead of the land, yet so far from providing in
 
 564 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 reference to this devise or that of other property in Detroit, against 
 the election (as it may be said the testator has undertaken to do in 
 reference to the devise of other portions of property which the 
 executors might sell at any time), the last provision of the will in 
 reference to the property in Detroit seems to me to recognize the 
 right of the devisees to elect to hold the land instead of the pro- 
 ceeds, and dispense with a sale as soon as the time should arrive, 
 when, by the will, the executors were to be authorized to sell, viz.: 
 as appears in a former provision in reference to this particular 
 devise, upon Breckenridge reaching the age of twenty-five and the 
 death of the testator's widow, etc. ; thus recognizing the right to 
 elect at that time, but undertaking to restrict the right until that 
 time. 
 
 We must, therefore, hold that the devise to the widow was of a 
 life estate (should she remain unmarried), and that to the other 
 devisees it was a devise of the fee subject to the life estate; in other 
 words, the remainder in fee. And though they might at their election 
 permit or prevent a sale by the executors for their benefit and on 
 their account, it was a present vested remainder in fee, or the entire 
 estate in fee, subject to the life estate of the widow. 
 
 Now. as to the restriction against alienation, while there is, as to 
 the particular lands here in question, a direct and express restriction 
 upon the executors not to sell it until Breckenridge should reach the 
 age of twenty-five, or during the life of the widow if she remained 
 unmarried, the restriction upon the devisees not to sell this property 
 is not so direct and express. It is clear, however, and admitted, 
 that the result of all the provisions taken together is a sufficiently 
 clear expression of intention to forbid and restrict the devisees from 
 selling the property or its proceeds, in other words, the estate 
 devised so far as these lands are in question, until the period last 
 above mentioned. The estate devised being an absolute vested 
 estate in fee, the only remaining question is whether such a restric- 
 tion of the right of the devisees to sell such an estate is valid. This 
 is the main question in the case and was very properly so treated 
 and discussed by the counsel on both sides. And before proceeding 
 to determine this question, it may, for the sake of clearness and to 
 avoid the confusion which might arise from confounding questions 
 which might otherwise seem analogous, be as important to point out 
 what the question does not involve, as what it does. It does not, 
 then, involve the question whether a restraint upon the sale of this 
 property for an equal length of time might not have been rendered 
 legally effective by the conveyance of the legal title to trustees, in 
 trust for the benefit of these devisees, according to instructions as
 
 I. 3-] FEES; RESTRAINTS ON ALIENATION. 565 
 
 to time of sale, which might have been inserted in the will; in which 
 case the validity of the restrictions as to time would depend mainly 
 upon the question whether the period exceeded that allowed by the 
 rule against perpetuities. Nor does the question involve an inquiry 
 how far a somewhat similar object might have been accomplished by 
 making this estate in fee in these devisees defeasible, upon the con- 
 dition of their executing, before a certain period, a conveyance to 
 certain persons, or to any other than certain persons, or to any party 
 whatever, or of their becoming bankrupt, or allowing a sale upon 
 execution, or permitting a judgment to become a lien, or upon con- 
 dition of using the property in some particular way, the property 
 being limited over to another, or to be forfeited and revert on 
 breach of the condition. In these cases there would be some party 
 besides these devisees interested in the observance of the condition, 
 with a right to take advantage of the breach, viz., the heirs of the 
 devisor, or the person to whom the property was limited over. It 
 is quite possible that many restrictions or qualifications upon the 
 right of devisees or grantee may be made effectual by making the 
 estate itself dependent upon such condition, to which it could not 
 be subjected if the estate given is absolute, as it is admitted to be 
 here. 
 
 Nor does the fact that, in the case of an executory devise, or in 
 that of a contingent remainder, or any other interest not vested, a 
 restriction upon the power of the devisees to sell before it shall 
 become vested in interest, would be good, 1 in any manner tend to 
 sustain such a restriction upon a vested estate in fee. 
 
 This devise is not made to trustees for the benefit of the devisees, 
 but directly to the devisees themselves. The estate devised is not 
 a conditional one to be forfeited or to revert to the heirs of the 
 testator, or to go over to others on a breach of the restrictions, nor 
 one which is to vest at some future day, or upon the happening of 
 some future event, but an absolute vested remainder or estate in fee, 
 and though not to come into actual enjoyment until the death of the 
 widow, to whom a life estate is given, it is just as much vested and 
 the devisees have just as much right to sell the interest or estate 
 devised as if there had been no intervening estate for life. 
 
 And the question of the validity of the restriction is, in my view, 
 precisely the same in all its legal aspects as if no life estate had 
 been given to the widow, but the whole had been given in fee 
 directly to these devisees, as an absolute estate in fee and in posses- 
 sion, with the same provisions restricting the power of sale. My 
 first difficulty in holding the devisees or their estate bound by the 
 
 1 See J5 46 Gray's " Restraints on Alienation " — Ed.
 
 566 ESTATES AS TO QUANTITY AND QUALITY. [l J T. IV. CII I. 
 
 restriction is this: A legal obligation always involves the idea, not 
 only of a party upon whom it rests, but of another party in whose 
 favor, or for whose interest or benefit it is imposed, and who, there- 
 fore, has the right to call for its enforcement. 
 
 To give vitality and force to the current of a legal obligation, it 
 requires, like the galvanic current, a battery with two opposite 
 poles, between which the current is to pass and the force to operate. 
 A circuit formed upon only one remains quiescent. The force of 
 gravitation itself would cease to act, if not to exist, without at least 
 two bodies (or particles) between which it could be exerted. And 
 it is not easy to see how this restriction can impose any legal obliga- 
 tion upon the devisees or limit their power over the estate, when the 
 observance or violation of the restriction can neither promote nor 
 prejudice any interest but their own; and it has not been claimed 
 that any other interest could be affected here. Let us test this a 
 little further by a few analytical questions. In whose behalf, for 
 whose interest, is the restriction imposed? Is it not solely for that 
 of the devisees themselves? And who has a right to enforce it or 
 complain of its breach. What species of legal tie or obligation is 
 that which attaches only at one end, and, ending where it begins 
 operates only in behalf of the very party upon whom, or on whose 
 property it is imposed, making him at the same time the obligor and 
 obligee? May not a party in whose behalf an obligation exists 
 forego or release its performance? If not, then at whose instance 
 will the court compel him to insist upon its performance? It must 
 be admitted that such a restriction, in such a case, is not naturally 
 calculated to lead to litigation, since, if the party in whose favor the 
 obligation exists insists upon its performance, it would in all prob- 
 ability be performed; and if the party upon whom it rests, should 
 refuse to obey the restriction, the party in whose favor it was imposed 
 would not be likely to insist upon it, both these parties being one and 
 the same. But does it not seem to result that he may do very much 
 as he pleases about performing such an obligation? I confess my 
 inability to see how the restriction is any more binding upon the 
 devisees or their estate than it would have been upon the heirs or 
 their estate, had the testator disposed by the will, only of the life 
 estate to the wife, and left the remainder to descend to the heirs, and 
 undertaken to impose the same restrictions upon them or upon the 
 estate in their hands. In either case the whole estate (subject to the 
 life mi cnst) is equally centered in the devisees, in one case, and in 
 the heirs in the other, and no interest but their own to be affected by 
 its observance or violation. In neither case, as it seems to me, can 
 the rei tri< tion be regarded as anything more than the expression of
 
 I. 3.] FEES; RESTRAINTS ON ALIENATION. 567 
 
 a desire, or the mere advice of the testator, which though the 
 devisees might choose more or less to respect, they had a clear legal 
 right to disregard. To make it obligatory would be to sanction a 
 testamentary guardianship over parties not subject to that species 
 of control. 
 
 These considerations seem to me sufficient to dispose of this case, 
 and to show that, as in Hall v. Tufts, 18 Pick. 459, and Blackstone 
 Bank v. Davis, 21 Pick. 42, the intent expressed is contrary to law, 
 or, at least, one which courts cannot enforce. See, also, Brandon v. 
 Robinson, 18 Ves. 429; Graves v. Dolphin, 1 Sims. 66; Rochford v '. 
 Hackman, 9 Hare, 479; Doebler s Appeal, 64 Penn. St. 9; Kepple 's 
 Appeal, 53 Penn. St. 211; Craig v. Wells, 1 1 N. R. 315. l 
 
 (/>.) Qualified restraints. 
 
 SCHERMERHORN v. NEGUS 
 1 Denio (N. Y.), 448. — 1845. 
 
 Ejectment. The will of Ryer Schermerhorn devised to each of 
 his six children for life a one-sixth part of certain premises and after 
 their decease, respectively, the share of each was to go to his chil- 
 dren. The will contained this provision: " No part or parcel of the 
 real estate herein above by me devised shall be sold or alienated by 
 any of my above named children, or by any of their descendants or 
 posterity, except it be to each other, or to their and each of their 
 descendants, upon pain that he, she or they shall forfeit the same 
 and be debarred of holding any part thereof." One child died in 
 1838, leaving children of whom plaintiff is one. 
 
 The defendant offered to prove a conveyance in fee of the premises 
 from Jeremias Schermerhorn, the plaintiff's father, and a possession 
 by the defendant and those under whom he claimed title under that 
 conveyance for twenty-six years which, being objected to by the 
 
 1 Here follows this paragraph : 
 
 " But lest this may be thought too narrow a ground, and since the question 
 in all its aspects, with the authorities upon it, has been argued and fully con- 
 sidered, at the risk of being charged with entering upon a discussion which 
 does not properly belong to the case, I proceed to inquire whether the result 
 will be different if this restriction is to be placed upon the same grounds as if it 
 had been made a condition, the non-observance of which had been declared by 
 the will to forfeit or defeat the estate." 
 
 The remainder of the opinion (which is very long) contains the best discus- 
 sion of this branch of the subject to be found anywhere in the books, reviewing 
 the authorities at length. — Ed.
 
 568 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 plaintiff's counsel, was overruled by the court. The defendant's 
 counsel insisted that the provision restraining alienation, except 
 among the devisees and their descendants, rendered the devise void, 
 for creating a perpetuity; and also that the plaintiff's title did not 
 take effect in possession until after the decease of all the devisees 
 for life; which objections were overruled by the circuit judge, and 
 a verdict for the plaintiff was taken subject to the opinion of the 
 court 
 
 By the Court, Beardsley, J. — I think the objections which were 
 taken on the trial, to a recovery in this case, cannot be sustained. 
 The will of Ryer Schermerhorn was not annulled by the clause which 
 it contained against alienation, although that clause, being repug- 
 nant to the nature of the estate devised, was void, at least as to 
 those who were to take a fee under the will. 4 Kent's Com. 131; 
 Newkerk v. Newkei-k, 2 Caines, 345; 2 Cruise's Dig. 6; McWilliams 
 v. Nisby, 2 Serg. & Rawle, 513; Co. Litt. 222, 223. 
 
 Under the will, the children of the devisor were tenants in com- 
 mon for life. When Jeremias, one of those children, died, his share 
 passed by the will to his children, who thereby became tenants in 
 common with the surviving devisees for life. 
 
 As the plaintiff's right did not accrue until the decease of his father, 
 the tenant for life in 1836, the adverse possession, had it been 
 proved, would have been no bar to the action. The testimony 
 offered was therefore properly excluded, and the plaintiff is entitled 
 to judgment on the verdict. 
 
 Judgment for plaintiff. 1 
 
 WALKER v. VINCENT. 
 19 Pennsylvania State, 369. — 1852. 
 
 Lowrie, J. — Under the will of P. S. V. Hamot, Mrs. Walker 
 takes a fee simple, and not a life estate, and therefore the judgment 
 should have been entered for the plaintiff, instead of the defendant. 
 
 The will is, "I devise to my daughter, Josephine M. Walker, and 
 to her legal heirs," and then it proceeds to describe the property, 
 and adds, " all of which I devise to my said daughter, and to her 
 heirs forever, with this express condition and provision, that she 
 
 1 Hut such a condition has been held valid in England, hi re Macleay, L. R. 
 20 Eq. t86. Sec, however, criticism on this case in /;/ re Rasher \ 26 Ch. Div. 
 801. See also In re Dugdale, 38 Ch. Div. 176. Seethe summing up of the cases 
 as in restraints on alienation qualified as to persons in Gray's " Restraints," 
 £? 41-43 - Ed.
 
 I. 3.] FEES; RESTRAINTS ON ALIENATION. 569 
 
 shall not alien or dispose of the same, or join in any deed or con- 
 veyance with her husband for the transfer thereof during her natural 
 life, but the same shall be and remain during the period aforesaid 
 inalienable." 
 
 This devise is very like that in the will of James Hunter, who gave 
 a farm to his " son John and to his heirs, with this proviso, that he 
 shall not have any right to sell nor convey the said farm to any 
 person or persons whomsoever, but at his death all the right, title, 
 and interest shall be and remain full and perfect in his lawful heirs; " 
 and this was held at our late term at Harrisburg, in the case of 
 Reifs7iyder v. Hunter, to convey a fee. [19 Pa. St. 41.] 
 
 The law does not pretend to carry out the intention of the testator 
 in all cases; for many testators show a very clear intention to shackle 
 the estates granted by them to a degree that is totally incompatible 
 with any real enjoyment of them, and which the law does not allow. 
 Hence, many of the rules of law are designed to control and frustrate 
 the most manifest intent. The great merit of the rule in Shelley's 
 Case is, that it frustrates and is intended to frustrate unreasonable 
 restrictions upon titles; for when an estate is declared to be a fee 
 simple or fee tail, it is at once made subject to a limitation in its 
 proper form, no matter how clear may be the testator's intention to 
 the contrary. 
 
 There can be no doubt that in the present case the testator meant 
 to give an estate that should descend exactly as if it were a fee 
 simple, for it is to Mrs. Walker and her proper heirs. This, then, 
 is his primary intent, and the attempt to restrain the power of the 
 first taker is his secondary intent; and it is entirely ineffectual, 
 under the rule that where the primary and secondary intent of the 
 testator are inconsistent with each other, the primary intent shall 
 prevail. 
 
 It makes no difference that the testator has expressly withheld 
 one of the rights essential to a fee simple, for the law does not allow 
 an estate to be granted to a man and his heirs with a restraint on 
 alienation, and frustrates the most clear intention to impose such 
 restraint, just as it allows alienation of an estate tail, though a con- 
 trary intent is manifest. And it would be exceedingly improper in 
 any court, in construing a devise to a man and his heirs, to endeavor 
 to give effect to the restraint upon alienation by changing the 
 character of the estate to a life estate, with a remainder annexed to 
 it, or with an executory devise over. 
 
 The law is wise in not consenting to give effect to all the intentions 
 of testators, for if it did, it would not be many generations before 
 all the land of this country would be effectually shackled, so that
 
 570 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 the generations in possession of it would have but little power over 
 it. To prevent even stray instances of this kind, the rule that 
 avoids all restraints upon grants to a man and his heirs is most 
 valuable in its influence. 
 
 Let this judgment be reversed, and the record remitted to the 
 Court of Common Pleas of Erie county, with directions to enter 
 judgment in favor of the plaintiff, in accordance with the terms of 
 the case stated. Judgment reversed, etc. 
 
 TWITTY v. CAMP. 
 Phillip's Equity (N. C), 6i. — 1866. 
 
 Battle, J. — In the events which have happened since the death 
 of the testator, it has become unnecessary for us to decide the ques- 
 tion raised in respect to the slaves given to his daughter, Mary Jane. 
 
 The only inquiry pressed upon us relates to the clause of non- 
 alienation annexed to the devises of land to each of the testator's 
 children. These devises are in fee simple, and the condition, 
 by which the testator has attempted to restrain the alienation 
 of the land before the devisees respectively attain the age 
 of thirty-five years, is contrary to the nature of the estate, 
 and is therefore void. See Purdue v. Givens, 1 Jones Eq. 306, 
 where a condition restrictive of the power of free alienation 
 was pronounced a nullity. The present case differs from that 
 only in the circumstance, that here the restriction is confined 
 to a disposition of the land under the age of thirty-five years. But 
 this, we think, makes no difference. If the testator had the power 
 to impose such a condition for thirty-five years, he might have 
 imposed it for fifty, seventy or a hundred years, for we are not aware 
 of any particular age up to which the restriction would be good, and 
 beyond which it would be bad. Coke, Blackstone, and other ele- 
 mentary writers, lay down the rule generally, that a condition of 
 non-alienation annexed to the conveyance inter vivos, or to a devise 
 of a fee, is void, because it is inconsistent with the full and free 
 enjoyment which the ownership of such an estate implies. Our con- 
 clusion is, that the devisees in fee under the will before us have the 
 full power of selling, or otherwise disposing of their lands respec- 
 tively, without the danger of incurring a forfeiture for so doing. 
 A 'I'cree to that effect may be drawn accordingly. 
 
 Decree accordingly. 1 
 
 1 Mut " a condition or conditional limitation upon alienation of a contingent 
 Interei 1 before it vests is good." Gray's " Restraints," £ 46. For " restraints
 
 I. 3.] FEES; RESTRAINTS ON ALIENATION. 571 
 
 (c.) Exception in case of separate estate of married woman} 
 FEARS v. BROOKS. 
 12 Georgia, 195. — 1852. 
 
 By the Court., Nisbet, J., delivered the opinion. — Whether the 
 demurrer to the bill ought to be sustained or not depends upon two 
 questions. 
 
 First. Does the will create a separate estate in the testator's 
 daughter? If it does not, upon her marriage, the property left to 
 her, vested in her husband by the marital right, and his assignment 
 of it to Brooks, the complainant, was good. 
 
 Second. If the will creates a separate estate in the daughter, does 
 it at the same time restrain her power of alienation? If it does not, 
 as she joined with her husband in the assignment to Brooks, his title 
 is good, and he ought to recover. 
 
 (1) As to the first, I remark, that a separate estate may be made 
 in a feme sole, as well as in a married woman, which, upon marriage, 
 will be good against the marital right; and this although no particu- 
 lar marriage be in contemplation. Upon marriage, the trust will 
 immediately attach upon the property, so as to exclude the husband's 
 title, although no further settlement be executed. Anderson v. 
 Anderson, 2 M. & R. 427; Davis v. Thorneycrof, 6 Sim. 420; Tullett 
 v. Armstrong, 1 Beav. 1; 4 M. & Cr. 390; Scarborough v. Bowman, 1 
 Beav. 34; 4 M. Cr. 377. 
 
 The contrary was held by Lord Cottingham, in Massey v. Parker, 
 2 M. & R. 174. In that case, it was ruled, that when property is 
 given or settled to the separate use of an unmarried woman it vested 
 in her husband upon her marriage. In the subsequent cases of 
 Tullett v. Armstrong and Scarborough v. Bowman, his decision was 
 overruled; and in affirming these decisions on appeal, Lord Cotting- 
 ham overruled himself. 4 M. & Cr. 377. So the doctrine is to be 
 considered settled as first stated. 
 
 (2) The interposition of a trustee to protect the separate estate 
 was at first deemed essential, because the interest of a married woman 
 is the subject only of equitable cognizance. Harvey v. Harvey, 1 P. 
 Williams, 125; s. c. 2 Vern. 659; Barton \ . Pierpont, 2 P. Williams, 
 
 on alienation qualified as to manner," see §§ 55~56g of Gray. Fines for alien- 
 ation and provisions as to the payment of quarter sales are now forbidden in 
 New York by the Constitution. Art. 1 § 14. — Ed. 
 
 1 See Gray's " Restraints," §§ 125 to 131k. As will be seen, the restraint 
 may be good though there be no gift over and no forfeiture of any kind 
 imposed. This class of estates, however, is likely soon to be obsolete in the 
 United States. — Ed.
 
 5/2 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 79. It is, however, now settled that a separate estate may exist, 
 without the intervention of trustees. In that case, the husband will 
 take the legal interest, but equity will treat him as a trustee for his 
 wife. Bennetv. Davis, 2 P. Wil. 316; Darky v. Darley, 3 Ath. 399; 
 Lee v. Prideaux, 3 Bro. C. C. 383; Parker v Brooke, 9 Vesey, 583; 
 Major v. Lansley, 2 R. & M. 355. 
 
 The better course is to provide a trustee. 2 Roper, H. & W. 
 152. In this case, the testator appointed a trustee. 
 
 (3) My next proposition is that no particular form of words is 
 necessary to create a trust for a feme's separate use. It may be 
 declared in express terms, or it may be inferred, from the pro- 
 visions or directions as to the mode of enjoyment, or management 
 of the property. Hill on Trustees, 420; Stanton v. Hall, 2 R. & 
 M. 180; Tyler v. Lake, b. 188. 
 
 The intention, however, to create a separate estate must be clearly 
 expressed. Lord Brougham held, in Tyler v. Lake, 2 R. & M. 189, 
 that the expressions must be such as " leave no doubt of the inten- 
 tion, and which forbid the court to speculate on what the probable 
 object of the donor might have been." Taking this stringent rule 
 as our guide, we think that a separate estate was created by the will 
 now under consideration, and that there really is no room to specu- 
 late about what the object of the father was, in the provision which 
 he made for his daughter. There are two clauses of the will which 
 bear upon the question. The testator, Andrew Hall, divides the 
 residuum of his estate equally among his nine children and directs 
 that " the shares of his daughters be paid over, by his executors, 
 to the trustee afterwards appointed, for their use." The seventh 
 item of the will appoints Mr. Fears trustee for his daughters, one of 
 whom, Amanda, after his death, intermarried with Cate, who 
 assigned her interests in the estate to Brooks, the complainant. 
 The duties of the trustee he proceeds to define thus: — " to receive 
 from and receipt to my executors for the distributive shares due to 
 each of my daughters, and to be vested by him in such property as, 
 in his judgment, may be most conducive to their comfort and 
 interest, and to have the title to such investment made to him, as 
 trustee, for their use and benefit." 
 
 It is conceded that the limitation implied in the words, to their 
 use and benefit, will not alone make this a separate estate. A limi- 
 tation to the separate or sole use of a. feme has been held sufficient. 
 1 Beav. 34, 4 M. & C. 377. The testator clothes the trustee with 
 the legal estate of each daughter's share, and puts him in possession 
 and also authorizes and directs him to invest it in such property as, 
 in his judgment, may he most conducive to their comfort and interest,
 
 I. 3.] FEES; RESTRAINTS ON ALIENATION. 573 
 
 and requires the title of the property when bought, to be made to 
 him, as trustee, for their use and benefit. From the mode of man- 
 aging the share of his daughter, prescribed by the testator, to her 
 trustee we infer, necessarily, that the estate was intended for her 
 separate use. The testator intended that it should be held by the 
 trustee, for her use, against the right or title which a future husband 
 might acquire by marriage. This is consonant with the reason of 
 the thing. Not only is the fund left with him. to be invested accord- 
 ing to his discretion, with reference to the comfort and interest of 
 his daughter, but he is required to have the title to the investment 
 made to him, as trustee, for her use. This direction unequivocally 
 indicates the purpose of the father to create a trust, and to hold it 
 up, that his daughter might be the sole beneficiary of his bounty. 
 The very thing which seems to be guarded against is a title and man- 
 agement of the property in anybody else. No doubt the title of a 
 future huband was just what he had in view The right of invest- 
 ment (and of re-investment, which we think is implied), and the 
 directed tenure of the title, is incompatible with a purpose to let the 
 property take its usual course, upon the event of marriage. The 
 title, in the event of marriage, could not be in the trustee and the 
 husband at one and the same time. Which, then, should yield, the 
 marital right or the intention of the testator? Clearly the former; 
 because in the construction of wills, the intention of the testator must 
 be carried out, unless in violation of law. There is no law violated 
 in the creation of an estate which defeats the marital right. The 
 testator left it with the trustee to determine what kind of investment 
 would most conduce to the comfort and interest of his daughter; 
 that discretion is defeated, if the husband may sell the interest. 
 Indeed, if he can do this, then the creation of the trust, and all the 
 powers of the trustee, are nugatory. But it is said that the trust 
 was fully executed when the daughter married — his powers being 
 only such as appertain to a testamentary guardian. Such a limita- 
 tion of his powers cannot be inferred from the will, and seems to be 
 gratuitous. Why appoint a trustee at all? Why not leave the share 
 of his daughters with the executors? Why not say that Mr. Fears is 
 to be her guardian, eo nomine, if such was the intention of the 
 testator? The case is one where extreme legal subtlety must be 
 invoked, to arrive at a result manifestly repugnant to the intention 
 of a testator. We will not labor, with far-fetched learning, to 
 defeat a father's purpose in making provision, at death, for his child, 
 when such purpose, if carried out, contravenes no law of the land. 
 We are, moreover, clear that the daughter herself is restrained 
 from alienating this property.
 
 574 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 (4) A married woman, unless restrained in the settlement, is a 
 feme sole as to her separate estate. IVyly et al. v. Collins & Co., 9 
 Ga. 223. If altogether restrained, she has no power of alienation; 
 and if partially restricted, she is a feme sole, sub modo, and must 
 alien alone according to the restriction. If, for example, she is for- 
 bid to dispose of her separate estate, without the consent of her 
 trustee, a disposition without his consent is invalid. Weeks and 
 Wife v. Sego and another, 9 Ga. 199. 
 
 If there is a prohibition against alienation, it is a part of the sepa- 
 rate estate, and must stand or fall with it. And it is no objection 
 to the validity of the restriction, that the woman is unmarried at the 
 time of the creation of the trust. 1 Beav. 1 ; 4 M. & Cr. 290; 1 
 Beav. 34; 4 M. & Cr. 390; 4 M. & Cr. 377. 
 
 (5) It has been held that nothing short of an express negative 
 declaration, will suffice to deprive a feme covert of her right of dis- 
 posing of her separate estate. This rule seems to be stringent. 
 Wills in reference to this very point are more liberally construed 
 than deeds. If the intention to restrain the power of alienation be 
 clearly collected from the several clauses of a will, they will all be 
 construed together, and effect will be given to the intention Bag- 
 gettv. Moore, 1 Coll. 138. There is no reason why the intention of 
 a testator to restrain alienation should not be collected, just as 
 intention is ascertained in regard to anything else; nor is there any 
 reason why intention to restrain should not be enforced as well as 
 any other intention. In this will there is no express prohibition 
 against alienation, but it is plainly the intention of the testator, 
 derived from the several clauses in relation to this estate, to 
 restrain his daughter from disposing of it. 
 
 The reasons already stated to prove this to be a separate estate, 
 demonstrate a purpose to prohibit its alienation by the daughter. 
 The great reason is this, to wit, the power of alienation is expressly 
 given to the trustee; he is authorized to invest the fund derived 
 from the estate, to buy and sell, and such a power is wholly incom- 
 patible with the same power in the woman. He is directed to take 
 the titles of the investment in himself — -if he must take, he must 
 hold them; and this authority is inconsistent with 'a power to sell 
 in the woman. Direction to manage the fund, by investing it 
 according to his judgment, and to take the titles of the property 
 bought as trustee, negatives the idea that the testator left the power 
 to dispose of it in his daughter. 
 
 The demurrer, we think, therefore, ought to have been sustained, 
 and we reverse the judgment of the court below.
 
 II. I.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 575 
 
 b. Descent, dwer, curtesy. 
 
 OVERTURF v. DUGAN. 
 
 29 Ohio State, 230. — 1876. 
 
 [Reported herein at p. 20]. ' 
 
 HOUGHTON v. HAPGOOD. 
 
 13 Pickering (Mass.), 154. — 1832. 
 
 [Reported herein at p. 24. ] 5 
 
 DURANDO v. DURANDO. 
 
 23 New York, 331. — 1861. 
 [Reported herein at p. 65S.] 
 
 II. Freeholds not of inheritance, — life estates. 
 
 1. In General — Nature and Classification 
 
 a. Absolute and defeasible. 
 
 Beardsley, J., in ROSEBOOM v. VAN VECHTEN. 
 
 5 Denio (N. Y.), 414, 424. — 1848. 
 
 Under the will of Jacob Roseboom, his widow acquired an estate 
 durante viduitate in this lot of land. That was an estate for her life, 
 determinable on her ceasing to be such widow, and during its con- 
 tinuance was a freehold. 4 Kent, 26; 1 Inst. 42, a; 1 Cruise's Dig. 
 115, § 8; Watk. on Convey. 30 to 35. In the year 1800, the widow, 
 Hester Roseboom, executed a deed in fee of this land to Guert Van 
 Schoonhoven, which, although it did not give him a fee simple, as 
 the grantor had not such an estate, was effective to transfer the life 
 estate of the grantor to the grantee. In 1806, Van Schoonhoven 
 made a deed in fee, for the same land, to Leonard Gansevoort, who 
 thus acquired a freehold estate therein for the life of the widow 
 Roseboom. Ganesvoort died in 1810, having made his will in 1800, 
 
 1 See also March v. Berrier, supra, p. 70. — - En. 
 
 2 See also Hatfield v . Sneden, p. 641, infra. — Ed.
 
 576 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 by which all his estate, real and personal, was, in terms, devised to 
 his wife for life, and she was made sole executrix of the will. This 
 will being made before the devisor had any interest in the land now 
 in question, it did not pass by the will, but vested in the widow as 
 executrix. 1 R. L. 365, § 4; 1 K. & R. 178, § 4; Doe v. Robinson, 
 8 B. & C. 296. In 1814, the widow of said Ganesvoort united with 
 two other persons in a deed of this land, in fee, to the present 
 defendant, who thereby acquired a valid title to said land, for the 
 life of the widow Roseboom. She did not die until 1826, having 
 remained a widow since the decease of her husband, Jacob Rose- 
 boom, and, as the defendant had not conveyed his interest in said 
 land, he had a freehold estate therein when the fine was levied in 
 1824. The defendant was therefore competent to levy this fine, and 
 the proclamation being completed in 1825, it became effective against 
 the plaintiff, whose right to bring suit accrued in 1826. This action 
 was not brought until 1843, more than five years after the right 
 accrued. The fine was therefore, an insuperable bar to a recovery. 
 
 WARNER v. TANNER. 
 38 Ohio State, iiS. — 1882. 
 
 Action by Warner as administrator of L. Bartlett, deceased, for 
 the value of a lease alleged to have been converted by Tanner to 
 his own use. 
 
 In 1864 Tanner leased to Bartlett certain premises, Bartlett to 
 build a cheese house thereon and to pay for the use of said premises 
 thirty dollars per annum " while said premises shall be used as and 
 for manufacturing cheese; and when said premises shall no longer 
 be used for such purpose, the premises . . . shall again revert 
 to said Tanner, said Bartlett having the privilege of removing all 
 buildings and fixtures put upon said premises by him." Bartlett 
 came into possession under the lease and so continued until his death 
 in 1874. at which time rent was paid to February 1, 1875. 
 
 In February, 1875, Tanner (having previously requested the 
 administrator to remove the buildings and fixtures) went into pos- 
 session of the premises against the protest of Warner, who there- 
 upon brought this suit. Judgment on verdict for plaintiff was 
 reversed by the District Court. The administrator brings error to 
 this court. 
 
 Okkv, C. J. — In the Court of Common Pleas, the jury was charged, 
 that the instrument executed by the parties was not a lease at will,
 
 II. i.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 577 
 
 nor for years, nor of perpetual duration; " that said lease is not 
 real property;" that it " was a lease which continued and run for an 
 indefinite period, and so long as the lessee, or his assigns or personal 
 representatives, should use the property covered by said lease for 
 the purpose of manufacturing cheese thereon;" that upon the 
 death of Bartlett, the interest passed to the administrator and not 
 his heir; and that the administrator could maintain a suit against the 
 Tanners in the nature of an action of trover for the conversion of 
 the fixtures and the lease. To state such a position is to refute it. 
 The only instance of a similar action which I remember was met in 
 Railroad Co. v. Robbins, 35 Ohio St. 531. 
 
 Leases may be at will, for years, for life, or of perpetual duration. 
 Foltz v. Huntley, 7 Wend. 210; Taylor's Land. & T.. § 72. Indeed, 
 they may be made for any period which will not exceed the interest 
 of the lessor in the premises. And whatever the term, it may be 
 subject to a condition which is a qualification annexed to the estate 
 by the grantor, Sperry v. Pond, 5 Ohio 387, s. c, 24 Am. Dec. 
 296, or lessor, Foltz v. Huntley, supra, whereby the estate or term 
 granted may, among other things, be defeated or terminated. 
 
 In this case the question as to the rights and interest which Bart- 
 lett acquired under the instrument, is one of construction. The 
 fact that he was required to and did place upon the premises valu- 
 able structures, which he could only remove when the premises were 
 no longer used for the manufacture of cheese thereon, satisfies us 
 that this was not a lease at will nor a lease from year to year. On 
 the other hand, the instrument contains no words indicating an 
 intention to grant a fee in the premises; and yet the construction 
 which the Court of Common Pleas placed upon it would render it, in 
 effect, precisely the same as though the grant had been to Bartlett, 
 his heirs and assigns. It would endure, according to that construc- 
 tion, until the premises were no longer used for the manufacture of 
 cheese, or the lessee ceased to pay rent precisely as in the case of 
 a grant in fee with such condition. Having regard to the whole 
 instrument, and not overlooking the fact that the right to remove 
 the fixtures is, in terms, limited to Bartlett, we are satisfied that a 
 lease for life was granted to him, subject to be defeated when the 
 premises were no longer used for the manufacture of cheese thereon, 
 or by the non-payment of rent. Hurd v. Cushing, 7 Pick. 169, 
 Sperry v. Fond, supra; Foltz v. Huntley, supra; Rowle s Case, Tudor's 
 Lead. Cas. Real Prop. 2d ed. 27-100; 4 Wait's Act. & Def. 502. 
 Indeed, it is well settled that if one grant an estate to a man and 
 woman during coverture, or as long as the grantee or lessee shall 
 dwell in such a house or use the premises for a specified purpose, 
 
 LAW OF PROP. IN LAND — 37
 
 578 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 as for instance, the manufacture of cheese thereon, or for any like 
 uncertain time, the grantee or lessee has in judgment of law a free- 
 hold, i Williams on Ex. (6 Am. ed.) 749; Taylor's L. & T., § 52; 
 Beeson, App., Burton res. 12 C. B. (74 E. C. L.) 647; and see cases 
 cited, supra. The cases relied on by the plaintiff in error White v. 
 Fuller, 38 Vt. 194; Lewis v. Effinger, 30 Pa. St. 281; Cook v. Bisdee, 
 18 Pick. 527, are in no respect inconsistent with the view here stated ; 
 and the statutes and decisions relating to permanent leasehold 
 estates in this state, which are also cited and relied upon by the 
 plaintiff in error, shed little light on the case. 
 
 The administrator of Bartlett had no right of action, except with 
 respect to property merely personal, which may have remained on 
 the premises when this suit was brought; nor had he a right of action 
 with respect to such personal property, unless the Tanners converted 
 it to their own use. Leases of land of a chattel quality are chattels 
 real, and go to the administrator; in other words, all interests for a 
 definite space, measured by years, months or days, are deemed 
 chattels, interests, and, independently of statutory provisions, 
 Northern Bank v. Boosa, 13 Ohio, 334, 30 Ohio St. 285, go to the 
 administrator; but he has no interest in a lease, like this, for a free- 
 hold term. See authorities cited in the last paragraph. 
 
 Judgment affirmed. 
 
 b. For one's own life and pur autre vie. 
 
 (1) Pur autre vie: Direct and Indirect Creation. 
 
 REYNOLDS v. COLLIN. 1 
 
 3 Hill (N. Y.), \\\. — 1842. 
 
 [Reported herein at p. 13.] 
 
 Beardsley, J., in ROSEBOOM v. VAN VECHTEN. 
 
 5 Denio (N. Y.), 414. — 1848. 
 
 [Reported herein at p. 575.] 
 
 1 For a special limitation as to number of lives in N. Y., see N. Y. R. P. L., 
 835- — Ed.
 
 II. i.J FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 579 
 
 (2 .) Pur autre vie: Effect of Death of First-taker in Possession. 
 (a.) General and special occupants. 
 
 ATKINSON v. BAKER. 
 4 Durnford and East (Eng.), 229. — 1791. 
 
 Detinue to recover certain deeds. 
 
 One Foster being seized of a life estate in certain lands conveyed 
 them to one Williams and his heirs, who took in trust for W. Atkin- 
 son, his heirs, executors and assigns. Atkinson received the deeds 
 of the premises. On his death they came into the possession of his 
 heir-at-law Baker. Plaintiff, as administrator of Atkinson, brings 
 this action to recover them. Defendant demurred insisting that 
 plaintiff was not entitled to the deeds, the defendant being a special 
 occupant of the estate. It was further stated that prior to the 
 statute, 29 Car. 2, c. 3, every estate pur autre vie of which there was 
 no special occupant marked out by the grant, belonged to the person 
 who first took possession of it. " But this being found inconvenient, 
 that statute was passed to remedy it; and it enables the proprietor 
 to devise it, and enacts, That if no devise be made it shall be 
 chargeable in the hands of the heir, if it comes to him by reason 
 of a special occupancy, as assets by descent, as in case of land 
 in fee simple; and in case there is no special occupant, it shall go to 
 the executor or administrator and be assets in their hands." In 
 case of a surplus, if not devised and there be no special occupant, 
 by 14 Geo. 2, c. 20, § 9, such surplus is distributed as personalty. 
 " Now these statutes only apply in cases of abstract possession; but 
 here there is a special occupant." 
 
 On the other side it was urged among other points that though the 
 heir is favored over the devisee, " Yet he is not favored under the 
 statute of frauds," and that if this estate vested in the heir it would 
 only be liable to specialty debts, whereas if the administrator were 
 entitled, he would hold it for all the creditors of the intestate." 
 
 Lord Kenyon, Ch. J. — The law on this subject has been truly 
 stated by the defendant's counsel. If an estate pur autre vie be 
 limited to a man, his heirs and assigns, and if it be not devised, it 
 goes to the heirs, under the statute of frauds, and is liable to the 
 same debts as a fee simple is. Where it is granted to a person, his 
 executors, administrators, and assigns, the executors take it subject 
 to the same debts as personalty of any other description is; and by 
 the 14 Geo. 2, it is distributable. Now in this case, before the 
 plaintiff can recover the deeds in question, she must show a title to
 
 580 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 the estate in respect of which she claims the deeds; but she objects 
 to the defendant's retaining them, because his title, if any, is only 
 equitable and cannot be inquired into in a court of law. Now, this 
 court either has or has not a right to inquire in whom the equitable 
 title is vested; and in either way of considering the question there 
 must be judgment against the plaintiff. If it be so doubtful a point 
 that we cannot decide it in a court of law, the plaintiff must seek 
 redress in equity; because the rights to these documents must 
 follow the title to the estate, and if we can examine into the 
 title the defendant, who is the heir at law of the tenant////- autre vie, 
 must have judgment. The estate in question was conveyed to Wil- 
 liams, his heirs and assigns; and it appears by the deed of trust, 
 which, as being a declaration in writing, is valid by the statute of 
 frauds, that Williams held the estate in trust for Atkinson, his heirs, 
 executors, administrators, and assigns. The first limitation is to 
 the heirs; and in the ordinary course of this species of property it 
 goes to the heir at law, because it is a real estate. Then it is urged, 
 that we ought to exclude the heir, in order to let in a more numerous 
 class of creditors; but however convenient it might be if such were 
 the law, when we are deciding according to law, we must take care 
 not to infringe one of its first ruies; and here the heir at law is 
 entitled to the estate as a special occupant; and has consequently 
 a right to detain the possession of those documents which belong to 
 the estate. 
 
 Judgment for the defendant. 
 
 (3.) The modern statutes. 
 
 REYNOLDS v. COLLINS. 1 
 
 3 Hill(N. Y.), 441. — 1842. 
 [Reported herein at p. 13.] 
 
 1 For the present New York Statute see the New York Real Property Law, 
 § 24. In Michigan the executor takes the residue. In Massachusetts and 
 several other states the estate pur autre vie is realty after the death of the first 
 taker and descends lo his heir in the same manner as a fee-simple. Pub. Stat. 
 Mass. (1882), chap. 125, § 1. 
 
 For the mode of ascertaining the death of the cestui que vie or of a life tenant 
 in N. Y., see Code Civ. Proc, §§ 2302-2319. For the statutory presumptions as 
 to the death of a person on whose life an estate in real property depends, see 
 ;• 841 Id. — Ed.
 
 II. I.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 581 
 c. Conventional and legal life estates. 
 
 Mccormick harvesting machine co. v. gates. 
 
 75 Iowa, 343. — 1888. 
 [Reported herein at p. 581. J 1 
 
 WATSON v. WATSON. 
 
 13 Connecticut, 83. — 1839. 
 
 [Reported herein at p. 626.] 
 
 d. Incidents of life estates. 
 
 (1.) Alienability — Voluntary and Involuntary. 5 
 
 (a.) Restraints upon alienation} 
 
 Mccormick harvesting machine co. v. gates. 
 
 75 Iowa, 343. — 1888. 
 
 Suit in equity to subject certain real estate to the payment of a 
 judgment against defendant. A demurrer to the petition was over- 
 ruled. Defendant appeals. 
 
 Seevers, C. J. — The plaintiff obtained a judgment against the 
 defendant A. C. Gates, and in this action seeks to subject certain 
 real estate, which said Gates has a title to, or interest in, to the 
 payment of said judgment. Whatever right or interest A. C. Gates 
 may have in the real estate was derived under the will of E. M, 
 Gates, and it is as follows: " I have placed my son, Alvin C. Gates. 
 on a farm near Colfax, in said county, described as the southwest 
 quarter, and the north half of the southeast quarter of sec- 
 tiDn eleven, township seventy-nine, range twenty-one, situated 
 in said Jasper county, State of Iowa, which it is my will that he 
 occupy and enjoy during his natural life, but without the power 
 or ability to convey or incumber the same, and that its productions 
 and rents are intended by me to insure a support for himself and his 
 family; and it is not my will that he have the power to mortgage 
 
 1 See also cases under " 2 " below. — Ed. 
 
 2 For cases of voluntary alienation, see supra. Compare with cases on alien- 
 ability of a fee, pp. 560-574, supra. — Ed. 
 
 3 Not involving forfeiture. See p. 561, supra. — Ed.
 
 582 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 or incumber the rents, profits or productions of said farm, either 
 above or underground, or that the same be subject to attachment or 
 levy for the debts of said Alvin. It is my will that he have such an 
 estate as will allow of his farming the same himself or renting to 
 others, or as will allow him to mine the coal that is supposed to be 
 under it, or contract with others to mine it, so that nothing is done 
 which will allow the income from the same to escape from the said 
 Alvin or his said family. And it is my will that, upon the decease 
 of said Alvin, the title to said land descend to Gien Gates, daughter 
 of said Alvin, if she is the only child of his then living, or jointly to 
 said Glen and any other child or children that may be born to said 
 Alvin, to share and share alike; and it is my will that if no children 
 of said Alvin are living at the time of his decease, that then and in 
 that case, the title in fee-simple to vest in my sons, Sumner E. and 
 Lorin A. Gates, and, if they are not living, in their legal representa- 
 tives." The question to be determined is whether A. C. Gates has 
 such an interest in the land as can be alienated or sold on execu- 
 tion for debts created by him. It is stated in the will that the tes- 
 tator had placed A. C. Gates on the land, and he was to "occupy and 
 enjoy it during his natural life." Conceding that there is no qualify- 
 ing provision in the will, this is a devise of a life estate. 2 Jarm. 
 Wills (5th ed.), 404; 2 Washb. Real Prop. (3d ed.), 450; Reed v. 
 Reed, 9 Mass. 372; Blanchard v. Brooks, 12 Pick. 63; Lewis v. Palmer, 
 46 Conn. 460; Bowman v. Pinkham, 71 Me. 295; but such devise is 
 coupled with conditions; it being provided that A. C. Gates shall 
 not convey nor incumber the land or the rents and profits, nor 
 shall the same be subject to attachment or levy for the debts of 
 said A. C. Gates. Counsel for the appellee insist that, as a life 
 estate is vested in A. C. Gates, the provision against the alienation 
 by him or through judicial process is void, because it is inconsistent 
 with the estate vested in him; that is to say, the argument is, if a 
 person is vested with an estate for life or in fee simple of real estate, 
 he must necessarily be vested with the right to alienate such estate, 
 and that such right cannot be in any respect controlled. If the 
 power to alienate is restricted, the estate ceases to be an absolute one, 
 whether it be for life or in fee simple. In this respect there is no 
 difference in the two estates; both are absolute, or neither exists. 
 The authorities, without serious conflict, except as hereafter indi- 
 < ated, are in accord upon this subject, and sustain the views above 
 expressed. 2 Jarm. Wills (5th ed.), 538; 1 Perry, Trusts, § 386; 
 Blackstone lunik v. Davis, 2 Pick. 42; Deering v. Tucker, 55 Me. 
 284; Keysets Appeal, 57 Pa. St. 236; McCleary v. Ellis, 54 Iowa, 
 311. We have doubts whether any adjudged case can be found
 
 II. I.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 583 
 
 which holds otherwise, unless the legal title to the property has been 
 vested in a trustee, for the use, under specified conditions, of the 
 beneficiary. Many such cases have been cited by counsel for the 
 appellants, but they are clearly distinguishable, unless it can be said 
 that under the will in question a trust estate was created. But it is 
 too clear for controversy, we think, that a life estate was vested in 
 A. C. Gates. He could not hold such estate in trust for himself. 
 The two estates are inconsistent, and cannot exist in the same per- 
 son at the same time. In fact, the will does not create a trust estate, 
 but vests an estate for life in A. C. Gates. 
 
 The petittion states that an execution was issued on the judgment 
 and returned " No property found." This, being admitted by the 
 demurrer, constitutes a sufficient basis for and warrants this pro- 
 ceeding in equity to determine the nature and extent of the estate 
 of A. C. Gates in the property in controversy. The demurrer was 
 properly overruled, and the judgment of the court subjecting the 
 life estate to the payment of the judgment must be 
 
 Affirmed. 1 
 
 TILLINGHAST v. BRADFORD. 
 5 Rhode Island, 205. — 1858. 
 
 Ames, C. J. — The demurrer to this bill is attempted to be sup- 
 ported, substantially, upon two grounds: First, that Hezekiah 
 Sabin, Jr., had not such an equitable interest, under his father's 
 will, in the trust property in question, that he could aliene the same, 
 to the plaintiff in trust for his creditors; and, second, that in legal 
 intendment he did not, by the assignment executed by him under 
 the poor debtor's act, aliene the same to the plaintiff upon such 
 trust. 
 
 The nature of the debtor's interest in the trust property, under 
 his father's will, was an equitable estate for life with a power of dis- 
 posing of the remainder in fee by will; in default of such disposition, 
 such remainder to be conveyed to his heirs at law; there being also 
 a clause in the will against anticipation and alienation of the rents 
 
 1 This case lays down the settled rule as to restraints (not involving forfeiture) 
 upon the alienation of legal life estates. Of course there exists here, as in the 
 case of fees, an exception in favor of married women having a separate estate, 
 legal or equitable, subject to a restraint on alienation. See Fears v. Brooks, 
 supra, p. 571. See Gray's " Restraints on Alienation," §§ 134, 140. The 
 cases which follow are intended to indicate the conflict of authority as to the 
 validity of such restraints in the case of trusts where the interest of the bene- 
 ciarv is in the nature of a life estate. — Ed.
 
 584 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 and profits during the debtor's life. It is quite clear, that it was the 
 intention of the testator to make an alimentary provision for his son 
 during life, which should give him all the advantages of an estate 
 in fee, without the legal incidents of such an estate, alienability, 
 unless by will, and subjectiveness to the payment of the son's debts. 
 Such restraints, however, are so opposed to the nature of prop- 
 erty — and so far as subjectiveness to debts is concerned, to the 
 honest policy of the law — as to be totally void, unless, indeed, 
 which is not the case here, in the event of its being attempted to 
 be aliened, or seized for debts, it is given over by the testator to 
 some one else. This has been the settled doctrine of a court of 
 chancery, at least since Brandon v . Robinson, 18 Ves. 429; and in 
 application to such a case as this, is so honest and just that we would 
 not change it if we could. Certainly, no man should have an estate 
 to live on, but not an estate to pay his debts with. Certainly, prop- 
 erty available for the purposes of pleasure or profit, should be also 
 amenable to the demands of justice.' 
 
 STEIB v. WHITEHEAD, 
 in Illinois, 247. — 1884. 
 
 Mulkey, J. — Asahel Gridley, by his last will and testament, 
 devised to trustees certain valuable real estate, upon the following 
 trusts, namely: " To keep said lands and tenements well rented; 
 to make reasonable repairs upon the same; to pay promptly all 
 taxes and assessments thereon; to keep the buildings thereon rea- 
 sonably insured against damages by fire; to pay over all remaining 
 rents and income in cash, into the hands of my said daughter, Juliet, 
 in person, and not upon any written or verbal order, nor upon any 
 assignment or transfer by the said Juliet. At the death of the said 
 Juliet said trust estate shall cease and be determined, and the said 
 lands shall vest in the heirs of the body of the said Juliet, and in 
 default of such heirs, shall descend to the heirs of my body then living 
 according to the laws of Illinois then in force regulating descents." 
 After the death of Gridley, his will was duly probated, and no ques- 
 tion is made as to its form, or the capacity of the testator to make 
 
 1 See also the early New York case of Bryan v. Knickerbacker y 1 Barb. Ch. 409, 
 decided on principles in force before the R. S. of 182S-30. North Carolina, 
 1 Carolina, Georgia, Alabama, Ohio and Kentucky also have decisions in 
 accord with the case above. See Gray's Restraints, £§ 178-190I. This was also 
 the English rule. For a summary statement of the English law, see Gray's 
 Restrain!'-, \ 167J. — ED.
 
 II. I.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 585 
 
 a will. The trustees named in the will having refused to act, by a 
 proper proceeding in chancery, William H. Whitehead the defend- 
 ant in error, was duly appointed trustee in their stead, and there- 
 upon took possession of the devised premises and otherwise assumed 
 the duties of the trust. Certain moneys, being a part of the rents 
 and profits of the estate, having come into his hands, as trustee, and 
 which, under the provisions of the will, it was his duty to pay over 
 to Juliet, the daughter, were attached in his hands by one of her 
 creditors. The trustee appeared and filed an answer, as garnishee, 
 setting up the trust and the special provisions of the will above cited, 
 and the question presented for determination, is, whether the money 
 thus held by him was subject to garnishment. 
 
 The authorities are not in accord on this subject. Under the rule 
 as laid down by the courts of England, and by the courts of final resort 
 in a number of the States of the Union, the fund attached would 
 clearly be subject, in equity, to the payment of the daughter's debts. 
 Tillinghast v. Bradford, 5 R. I. 205; Smith v. Moore, 37 Ala. 330; 
 Heath v. Bishop, 4 Rich. Eq. 46; Mcllvain v. Smith, 42 Mo. 45. 
 A contrary rule prevails in Pennsylvania, Massachusetts, and per- 
 haps other States, which seems to be supported b)' the reasoning 
 of the Supreme Court of the United States in Nichols v. Eaton, 91 
 U.S. 716. The question, so far as we are advised, is a new one 
 in this court, and in view of the respectable authority to be found 
 on either side of it, we feel at liberty to adopt that view which is 
 nearest in accord with our convictions of right and a sound public 
 policy. 
 
 That it was the intention of the testator to place the net income 
 of the property beyond the control of his daughter and her creditors 
 while in the hands of the trustee, is manifest, and we perceive no 
 good reason, nor has any been suggested, why this intention should 
 not be given effect. We fully recognize the general proposition 
 that one cannot make an absolute gift or other disposition of prop- 
 erty, particularly an estate in fee, and yet at the same time impose 
 such restrictions and limitations upon its use and enjoyment as to 
 defeat the object of the gift itself, for that would be, in effect, to 
 give and not to give, in the same breath. Nor do we at all question 
 the general principle that upon the absolute transfer of an estate, 
 the grantor cannot, by any restrictions or limitations contained 
 in the instrument of transfer, defeat or annul the legal consequences 
 which the law annexes to the estate thus transferred. If, for 
 instance, upon the transfer of an estate in fee, the conveyance should 
 provide that the estate thereby conveyed should not be subject to 
 dower or to curtesy, or that it should not descend to the heirs gen-
 
 586 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 eral of the grantee upon his dying intestate, or that the grantee 
 should have no power of disposition over it, the provision, in either 
 of these cases, would clearly be inoperative and void, because the act 
 or thing forbidden is a right or incident which the law annexes to 
 every estate in fee simple, and to give effect to such provisions 
 would be simply permitting individuals to abrogate and annul the 
 law of the State by mere private contract. This cannot be done. 
 But while this unquestionably is true, it does not necessarily follow 
 that a father may not, by will or otherwise, make such reasonable 
 disposition of his property, when not required to meet any duty or 
 obligation of his own, as will effectually secure to his child a com- 
 petent support for life, and the most appropriate, if not the only, 
 way of accomplishing such an object is through the medium of a 
 trust. Yet a trust, however carefully guarded otherwise, would in 
 many cases fall far short of the object of its creation, if the father, 
 in such case has no power to provide against the schemes of design- 
 ing persons, as well as the improvidence of the child itself. If the 
 beneficiary may anticipate the income, or absolutely sell or other- 
 wise dispose of the equitable interest, it is evident the whole object 
 of the settlor is liable to be defeated. If, on the other hand, the 
 author of the trust may say, as was done in this case, the net accu- 
 mulations of the fund shall be paid only into the hands of the bene- 
 ficiary, then it is clear the object of the trust can never be wholly 
 defeated. Whatever the reverses of fortune may be, the child is 
 provided for, and is effectually placed beyond the reach of unprinci- 
 pled schemers and sharpers. 
 
 The tendency of present legislation is to soften and ameliorate, 
 as far as practicable, the hardships and privations that follow in the 
 wake of poverty and financial disaster. The courts of the country, 
 in the same liberal spirit, have almost uniformly given full effect to 
 such legislation. The practical results of this tendency, we think, 
 upon the whole, have been beneficial, and we are not inclined to 
 render a decision in this case which may be regarded as a retrograde 
 movement. The creditors of the daughter have no ground to com- 
 plain that they have been misled or wronged in consequence of the 
 provision made for her by her father. It was his own bounty, and 
 so far as they are concerned he had the right to dispose of it as he 
 pleased. The property was not placed in her possession so that 
 she might appear as owner when she was not, and thereby obtain 
 credit. An examination of the public records would have shown 
 that she had no power to sell or assign her equitable interest, that 
 the extent of her right was to receive the net accumulation of the 
 trust estate from the hands of the trustee, and that these accumu- 
 lations did not bet ome absolutely hers, so as to render them subject 
 I gal process for her debts, until actually paid to her.
 
 II. i.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES, 587 
 
 The McLean Circuit Court, and the Appellate Court for the Third 
 District, having reached a conclusion in accord with the views here 
 presented, the judgment will be affirmed. 
 
 Judgment affirmed. 1 
 
 
 
 LEGGETT v. PERKINS. 
 
 2 New York, 297. — 1849. 
 
 Ejectment. — Both parties claim title under the will of Gerardus 
 Post, deceased. Defendant is lessee of the trustee appointed by 
 the will. Plaintiff Susan Leggett is one of the beneficiaries under the 
 trust in the will, but now claims that the trustee did not take the 
 legal estate and that the trusts were void, and that she is entitled to 
 the possession of the land. Judgment for defendant below. Plain- 
 tiff appeals. 
 
 Gardiner, J. — I think that the trustees took a fee in the premises 
 in question by implication. 
 
 The devise to the daughters of the testator is not absolute, but 
 (in the language of the will) " so that each may have and enjoy the 
 income of an equal fifth thereof during their several natural lives." 
 The testator then constitutes his executors trustees of their estate, 
 authorizing them as such trustees " to take charge of, manage, and 
 improve the same and to pay over to them, from time to time, the 
 rents, interest and net income thereof." It is very obvious that a 
 legal estate in the premises was necessary to enable the trustee to 
 discharge these duties. Oates v. Cook, 3 Burr. R. 1684; Doe v. 
 Woodhouse, 4 T. R. 89, 92; Fletcher on Trustees, 27; Greenleaf's 
 Cruise, tit. 12, Trust, ch. 1, § 14, and note; Jickling's Analogy, p. 
 15, note. To put the matter beyond a doubt, the testator has pro- 
 vided that the net income should be paid to the daughters after mar- 
 
 1 But one cannot make such a settlement in his own favor so as to be good 
 against creditors. Ghormley v. Smith, 139 Pa. St. 584; Bank v. Windram, 
 133 Mass. 175. For further discussion of this subject, see Nichols v. Eaton, 91 
 U. S. 716. Besides the courts of the United States, the decisions in Pennsylvania, 
 Massachusetts, Maine, Maryland, Mississippi. Vermont and Missouri are in 
 accord with the principal case. See Gray's " Restraints on Alienation," § 178. 
 The doctrine is supposed to have originated in Pennsylvania. See Gray, §§ 214- 
 2 35 n . 170-174. In several States there is a statutory system of " spend- 
 thrift trusts." These usually follow the system originated in New York by 
 the revisers of 1830. N. Y. R. S., Part II.. ch. 1, Title II., Art. II , § 55, subd. 
 3, etc. Some New York cases construing these statutes follow here. See for 
 the New York Statute in its present form, N. Y. R. P. L., §§ 76, 78, 80, 83, 85.
 
 588 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 riage without the consent of their husbands, with like effect as if 
 they were unmarried. If the husband took an estate by the curtesy, 
 
 as he would if the fee vested in the daughter, he would be entitled .. 
 to the rents and profits, and the separate provision for the daughter 
 would be wholly ineffectual. Greenleaf's Cruise, tit. 12, ch. 1, § 16; 
 Doe v. Hoffman, 6 Adolph. & Ellis, 206; 2 Jarman on Wills, 202, 203, 
 and cases cited. Again, if the trust to receive rents and profits and 
 pay them over to the daughters is authorized by the third subdi- 
 vision of the 55th section of the statute of " Uses and Trusts," the 
 whole estate in law and equity, by the 60th section, vests in the 
 trustees. 1 R. & S. 729, § 55, sub. 3, § 60. ' If not authorized, the 
 trust is void, whatever may have been the intention of the testator. 
 
 Id. 727, § 1. 
 
 Whether such a trust is within the statute is therefore the great 
 ■Jfcuestion in the cause. The decision of the chancellor in Gott v. 
 Cook, affirmed the validity of a trust of this character. 7 Paige, 
 523. The decree in that case was pronounced after an elaborate 
 argument, with all the light afforded by the opinion of Judge Sav- 
 age, in Coster v. Lorillard, and of Judge Bronson in Hatvley v. James, 
 and has never been reversed or shaken by any adjudication in this 
 State, to my knowledge. As trusts are the peculiar subject of equi- 
 table cognizance, the principle thus established has become practi- 
 cally the law of the State. The same construction has been given to 
 the statute by the Superior Court of the city of New York, by the 
 Supreme Court, sitting in the Sixth district, by the same court in the 
 First district in Mason v. Jones, the decision in the last case being 
 affirmed in this court upon an equal division of the judges. Nor is 
 this all. In Parke v. Parke, in the court for the correction of errors, 
 the point was distinctly presented, and the validity of a trust of this 
 description affirmed by their judgment. The question should be at 
 rest upon authority. The conflicting opinions of eminent judges 
 are evidence that it was originally a doubtful question; and no one 
 is authorized to assume now that he is infallibly rights to whichever 
 side of the controversy he may incline. I shall adhere to the deci- 
 sions that have been made, because upon such a question the judg- 
 ment of the court of last resort sustained as it is by the authority of 
 every other adjudication made upon the same subject, is entitled to 
 respect here. If, however, the question is deemed open, I shall fol- 
 low those decisions because I think them right, and the exposition 
 they have given to the statute the correct one. 
 
 I shall confine myself to a review of the more prominent objec- 
 
 1 Sec §§ 76 and 80, N. Y. R. P. L. — Ed.
 
 II. I.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 589 
 
 tions urged against the validity of a trust of this description. 1st. 
 It is said that the trust authorized by the statute " to receive the 
 rents and profits of land, and to apply them to the use of any per- 
 son," by necessary implication clothes the trustee with a discretion 
 in the expenditure of the fund;' that a trust to pay over the rents 
 and profits to the beneficiary, deprives the trustee of all di scretion 
 and is consequently void. It should be remembered in considering 
 this proposition, that the statute in reference to express trusts is 
 merely permissive. It creates nothing. We might infer from the 
 argument addressed to us, that the Legislature had in the first 
 instance annulled all trusts, and then proceeded to a new creation. 
 It is more correct to say that they abolished all that they have not 
 recognized as existing. The trusts preserved have their foundation 
 in the common law, and their effect is to be determined 
 by the application of common-law principles. By that law the 
 trustee must apply the trust fund according to the instructions of 
 its author. His duty is the same now, if the directions given do 
 not contravene the general object for which the trust is authorized 
 by the statute. With this limitation the authority of the donor is " 
 as absolute now as before the statute. Now an express trust may 
 be crea ted according to the thirdsubdivision of the 55th section, 
 " to receive and apply the rents and profits of land to the use of any 
 person." The subject is the rents and profits of land; the object, 
 "an application to the use of any person. When a trust is created of 
 this nature, it is recognized as existing with all its common-law 
 incidents. The relation of the donor and trustee, the power of the 
 former and the duty of the latter, are precisely what they were by 
 the common law. 
 
 The statute no more prescribed the mode in which the profits 
 must be applied, than the manner in which they are to be received. 
 The details may be arranged by the donor in both cases for himself, 
 or left to the discretion of the trustee. If the trustee may apply 
 the fund to the education of the beneficiary, where no instructions 
 are given, (and this is conceded,) the creator of the trust may direct 
 it to be done. Because, in either case, the application would be to 
 the use of the person designated and within the letter and spirit of 
 the statute. It is believed that in all cases, before and since the \ 
 statute, the rule is uniform, that the creator of the tr ust may direct 1 
 specifically, the- performance of those things which the trustee, 
 whose 'authority is derived from him, might himself perform, in 
 the lawful execution of the trust, if no specific directions were given. 
 The proposition under review annuls this power of the donor. It 
 transfers to the trustee alone, a discretion in the application of the
 
 
 \ ' 
 
 59O ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 fund, which the donor could exercise himself by the rules of the 
 common law, and declares that the relation between the trustee and 
 beneficiary is fixed by statute, and must be the same in all cases, any 
 differences in the character or circumstances of the latter to the 
 contrary notwithstanding. This theory is to be established, if at 
 all, by implication. The statute says nothing of the discretion of 
 the trustee; it speaks only of the power of the creator of the trust. 
 It does not in terms compel a donor, who may be supposed to feel 
 the strongest interest in the beneficiary, and to possess an equal 
 knowledge of his character and necessities, to lean exclusively upon 
 the discretion of a trustee, in the administration of his bounty. 
 The implication should be strong, that leads to such results. I will 
 glance briefly at the argument by which it is maintained. 
 
 And first, it is alleged that the Legislature had in view a particular 
 class or description of persons as beneficiaries. " Persons who 
 could not safely be trusted with the management of their own affairs, 
 and for that reason a trustee was allowed to make the application 
 for them." Hawley v. James, 16 Wend. 157; 14 Id. 321. The 
 answer to this view is to be found in the law itself. The rents and 
 profits arising from such a trust may be applied to the use of " any 
 person," without regard to his condition, habits, character, or 
 mental capacity. No judge or lawyer has ventured to deny this 
 directly, or to assert that a trust for the benefit of a millionaire, in 
 the full vigor of health and intellect, is not as effectual, as though 
 its subject was a lunatic pauper. And yet to support this construc- 
 tion it has been constantly assumed that the Legislature, in this 
 respect, intended not only what they have not said, but the reverse 
 of what they have declared. This assumption, indeed, is indis- 
 pensable to the support of the hypothesis under review. According 
 to that, the trustee, as remarked, must always sustain the same rela- 
 tion to the cestui que trust. He is to exercise a kind of guardianship 
 in the expenditure of the fund, (16 Wend. 158,) and a guardianship 
 of precisely the same character in all cases. Such a doctrine would 
 be anything but a necessary implication from a statute, which 
 admitted all persons without exception to the class of beneficiaries. 
 
 To give plausibility to a doctrine which places all cestuis que trustent 
 upon the same statute level of incapacity, as to the management of 
 their own affairs, a common disability must in some way be estab- 
 lished. Hence the attempt in all the arguments addressed to us, 
 and all the opinions delivered upon this subject, sometimes from 
 the history of this section, and sometimes from its language, to 
 group the beneficiaries into classes, between which there was some 
 supposed resemblance, and as to all of whom, a guardianship of the
 
 II. I.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 591 
 
 kind alluded to might exist without manifest inconvenience or 
 absurdity. 14 Wend. 321. It is this preconceived notion, which 
 has induced those by whom it was entertained, to restrict the 
 obvious meaning of the words occurring in the third subdivision of 
 this section. " Apply," for example, which means the act of apply- 
 ing, and includes obviously any act of the trustee by which the trust 
 fund is applied for the benefit of the cestui que trust, whether 
 expressly directed by the donor, or performed according to the 
 discretion of the trustee, is limited to the latter exclusively; and 
 the trustee by force of it constituted, in all cases, the discretionary 
 almoner of the donor's bounty. " In no other way," it is said, 
 " can we give force to the word apply." It seems to me very clear, 
 that the term is robbed of half its power by the restriction. " Use," 
 also one of the most comprehensive words in our language, and 
 adopted by the revisers for that reason, is in this way held to mean 
 a sort of benefit, conferred according to the discretion of a trustee; 
 and " any person," as we have seen, to stand for some persons in 
 particular. 
 
 There is nothing in the history of the law to give countenance to 
 this construction. The section, as originally framed and passed, 
 authorized a trust " to receive the rents and profits of lands, and 
 apply them to the education and support, or either of them, of any 
 person," etc. By this provision, the trust was restricted to certain 
 definite uses, education and support, but without limitation as to 
 persons. A few months' reflection satisfied the revisers that a trust 
 thus limited would not answer the exigencies of families or society, 
 and on the 20th of April following, they recommended the substi- 
 tution of " use," for " education and support, or either of them." 
 They remark in their report, that the word " use " includes " educa- 
 tion and support," and that "it will also include other purposes 
 which ought to be provided for." The revisers sought to generalize 
 what was before specific. The construction in question reverses 
 this order, and gives to general terms a special and restricted 
 application. 
 
 A third reason assigned is, that a trust created in the language of 
 this section, or by equivalent words, would vest a discretion in the 
 trustee as to the application of the trust fund ; and hence it is inferred, 
 that such discretion is in all cases essential. One obvious answer 
 to this position is, that it was not the object of the Legislature to 
 prescribe a formula to be followed in the creation of a trust, but to 
 designate in general terms the purposes for which they might be 
 created. 3 R. S. 582. These general terms were intended to 
 include within them an indefinite number of particular and special
 
 592 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 trusts, adapted to exigencies of families, or the wants of individuals. 
 If these terms are transferred from the statute to a trust deed, or a 
 devise, they must necessarily give, as to all these particulars, a 
 discretion to the trustee. For, in such cases the trust would confer 
 upon the trustee all the power which the law conferred upon the 
 author of the trust. But it by no means follows that the lawmakers 
 intended that in all cases he should possess such discretion, under 
 penalty of avoiding the trust. If the statute should authorize a 
 married woman to execute a power of attorney, to convey her inter- 
 est in real estate, it might be as plausibly contended, that she could 
 not designate the vendee, the terms of the sale, or the amount of 
 the consideration, because a power in the words of the statute, or 
 in equivalent terms, would give a discretion to the attorney in all 
 these particulars. By adopting the language of this subdivision, 
 the trustee, for example, must apply all the rents and profits to the 
 use of. the cestui que use. But Judge Bronson, in Haivley v. James, 
 remarks, it can make no difference whether the trust extends to all 
 the rents and profits, or is confined to a specified sum of money. 
 The donor may settle for himself the amount to be applied. 
 
 But there is an obvious difference in the legal effect of an instru- 
 ment requiring the trustee to apply the rents and profits of the lands 
 conveyed, and one directing " a specific sum of money " to be 
 applied out of those rents and profits, and yet both are within the 
 statute, by the concession of the advocates of the construction in 
 question. So the trust authorized by the same section of the statute, 
 to sell lands for the benefit of creditors, if created in the language 
 of the statute, would oblige the trustee to sell for cash, and to dis- 
 tribute the fund, when received, //t> rata among all the creditors of 
 the assignor. But the latter may, notwithstanding, direct that the 
 proceeds be applied in discharge of a single debt, or a class of debts, 
 in preference to others of the same character. The trusts, although 
 different in terms and in their legal consequence, are both valid, 
 and, for the same reason, they are each of them within the general 
 purpose sanctioned by the Legislature. 
 
 Another, and to my mind conclusive, answer to this proposition 
 is, that under a trust created in the language of the statute, the 
 discretion of the trustee (if it exist at all) is wholly unlimited as to 
 the mode in which the trust fund is to be applied to the use of the 
 cestui que trust. He may expend it for the education, or support, or 
 to gratify the taste, or caprice, of the beneficiary. The doctrine is, 
 that the discretion implied from the terms of the statute, is essential 
 to the validity of the trust. If so, the donor can no more restrict 
 that discretion than he can annihilate it. But it is conceded that
 
 II. i.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 593 
 
 he may direct a specific sum of money, less than the whole rents and 
 profits, to be applied. This is a limitation of power. Again the 
 revisers say that " Use includes education and support; " of course, 
 if the statute is what they intended it should be, a trust to apply a 
 specific sum for the education of any person designated, would be 
 valid. But this is confining the trustee to a single use, instead of 
 leaving to him, in the language of this section, the whole class of 
 possible benefits, from which he might select one, or all, at his 
 discretion. 
 
 Again, if a discretion is an essential element of a legal trust, I see 
 no way to escape the conclusion that the trustee must administer 
 to the necessities of the cestui que trust, from day to day, and hour 
 to hour. To avoid this absurdity, which was pointed out by the 
 chancellor, it was distinctly admitted upon the argument, that the 
 trustee was at liberty to pay over to the beneficiary, from time to 
 time, sums of money " to be applied by him to his own use." This 
 concession is a virtual surrender of the whole controversy. For if 
 the discretion of the trustee is indispensable, in the application of 
 the fund, he cannot delegate it to another, and certainly not to the 
 beneficiary. In a word, the payment of a sum of money to the 
 cestui que trust, is an application to his use, or it is not; if the 
 former, it is authorized by the statute, and may be directed in 
 the trust; if not, the trustee cannot make such payment in his own 
 discretion or otherwise, without a violation of duty. 
 
 What, then, is an application " to the use of a person," within the 
 statute? The advocates for a discretionary power in trustees over 
 the fund, have told us that a payment over is not such an applica- 
 tion, but have not informed us in what it consists. " To apply to 
 the use of," is to execute the trust pro tanto. It is such an appli- 
 cation as will discharge the trustee from all responsibility on account 
 of the fund, or the part of it thus applied. This requires, 1st. The 
 authority, express or implied, of the creator of the trust. 2d. An 
 act of the trustee in pursuance thereof. 3d. The assent, in some 
 form, of the beneficiary, where he has legal capacity; or of his com- 
 mittee or guardian, where he has not. An application " to the use " 
 of a person, like a delivery, or payment, implies an acceptance. 
 The delivery of clothing to a madman, would no more be an appli- 
 cation to his use than the payment of money; for he has not the 
 capacity to assent to either. The nature of the property applied is 
 of no consequence, whether money or chattels. Judge Savage 
 observed in Lorillard's Case, " that to apply rents and profits to the 
 use, does not mean to pay them over to the cestui que trust. In 
 that case he would apply them himself to his own use." In what 
 
 LAW OF PROP. IN LAND — 38
 
 594 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 other way can they be applied? If the learned judge had pursued 
 the subject, he would have discovered that his remark applied with 
 equal force, not only to a payment of money, but to every species of 
 property, whether procured by the trustee or otherwise. In the 
 final analysis it would be found that the beneficiary must in all cases 
 apply the thing bestowed to his own use. The reason is, that the 
 donee cannot be compelled to accept the gift, or any part of it. The 
 trustee has to deal with free agents, when the beneficiaries have 
 legal capacity, and with their legal guardians when they have not. 
 He is trustee of the fund designed for their use, not a committee of 
 their persons. If they refuse to accept what he has provided, and 
 is ready to deliver, whether money, or necessaries, there is no appli- 
 cation; the trust is unexecuted; the property remains in the trustee, 
 subject to his control, and for it he alone is responsible. On the 
 other hand, if the trustee, in pursuance of an authority written out 
 in the trust deed, or implied from it, delivers to the cestui que trust 
 money or other property for his use, and it is accepted by the latter, 
 the trust is so far executed, the application made, and if within the 
 next hour, the gift is squandered or destroyed, the trustee is 
 exonerated. 
 
 Again, it is said that if a person is competent to take care of the 
 money when paid over, there is no reason why the estate should 
 not be transferred to him out of which it is raised. The same rea- 
 son might be urged against trusts of personal property of this kind, 
 which are confessedly authorized by the statute. But to be influ- 
 enced by this suggestion, we must shut our eyes to the light of 
 history and experience. Every one knows that there are individuals 
 in every society, who are neither imbecile nor profligate, nor united 
 with those who are so, who could properly dispose of a fixed income, 
 and yet who ought not, from prudential reasons, to control the 
 capital out of which it is raised. The difficulty does not lie in a 
 want of capacity; but it is to be found in their inexperience, the 
 relation which they sustain to others, and sometimes in the nature 
 of their pursuits. Of the men of the past age, whose labors in 
 science and literature are now appreciated, how many might be 
 named who, if living, would be deemed incompetent to manage an 
 estate successfully. Yet men like these have their uses, although 
 they know little of the value of property, or the modes of extracting 
 rent from a refractory tenant. The statute does not exclude them 
 from the class of beneficiaries; nor, as I read it, does it require a 
 guardian or a trustee to supervise their expenses; or make their 
 degradation an essential condition of the trust. We are told that 
 persons of this class can appoint agents to superintend their estates. 

 
 II. I.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 59$ 
 
 So can the creator of the trust, and the law casts upon him this 
 duty, whoever may be the cestui que trust. The chances of a 
 judicious selection would be rather in favor of the man who pro- 
 vided the fund, than the one who was to expend the income. 
 
 And lastly, it is said that estates created under the third subdi- 
 vision are alienable; that a trust to pay over is passive, and opposed 
 to the policy of our law, and the intention of the Legislature. 
 A trust to receive rents and profits, and pay them over, is essentially 
 active in all its particulars. It was so at the common law and is so 
 now. Jick. Anal. p. 15, note and cases; 3 R. S. 582; Reviser's 
 Notes. To pay over is an active duty, and the successful manage- 
 ment of real estate, with a numerous tenantry, demands not only 
 integrity, but the exercise of vigilance, together with a knowledge 
 of business, and of property. The revisers say, " that active trusts 
 are indispensable to the proper enjoyment and management of prop- 
 ety. They therefore propose to retain them, only limiting their con- 
 tinuance, and defining the purpose for which they may be created." 
 3 R. S., supra. I think effect should be given to their design, and 
 that of the Legislature. The objection, indeed, is rather to the 
 policy of the statute, than the validity of a trust to pay over. If the 
 law was more questionable than I believe it to be, it is no reason 
 why it should be made more odious by construction. 
 
 The judgment of the Superior Court should be affirmed. 
 
 V* 
 
 WILLIAMS v. THORN. <Aj^' 
 
 c^ v cK 
 
 70 New York, 270. — 1877. 
 
 Rapallo, J. — This action is brought by a judgment creditor of 
 the defendant Butterfield, after the return of an execution unsatis- 
 fied, to reach the surplus income of a trust estate, of which the judg- A\ £^ / 
 ment debtor is the beneficiary. \ \rt 
 
 The trust estate consists of real and personal property, which was 
 given by the will of the father of the defendant, Butterfield, to the 
 defendants, Thorn and others, in trust, to receive the rents and 
 profits of the real estate and the income of the personal estate, and 
 to pay over the rents of the real estate and the income of the per- 
 sonal property to the defendant, Butterfield, during his life. 
 
 The complaint alleges that the income of the trust estate is much 
 greater than is necessary for the support of the defendant, Butter- 
 field, and those dependent upon him, and prays that the surplus may 
 be applied to the payment of the plaintiff's judgment.
 
 596 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 Proof was given on the trial to the effect that the gross rental 
 value of the real estate was about $4,000 per annum, and that the 
 income of the personal property was $600 per annum, out of which 
 taxes and insurance' were to be deducted. Some of the real estate 
 was occupied by the defendant, Butterfield, and some was not let. 
 The judge, however, did not pass upon the question whether there 
 was any surplus, but decided, 1st. That the plaintiff was entitled to 
 have the amount fixed, which should be a reasonable allowance for 
 the support and maintenance of the debtor and those dependent 
 upon him with the right to the debtor to apply for a modification, if 
 his circumstances should thereafter change. 2d. That the surplus 
 Over and above such allowance, whether accrued or hereafter to 
 accrue, should be paid to the plaintiff, or a receiver to be appointed, 
 until the debt of the plaintiff and his costs should be paid. 3d. That 
 -ihe plaintiff had the right to have ascertained what amount, if any, of 
 accrued income belonging to the debtor was in a certain undivided 
 fund referred to in the complaint, and that such surplus, if any, 
 should vest in said receiver, and be applicable on said debt when 
 -collected by him; and 4th. That a referee should be appointed to 
 ascertain and report what amount would be the reasonable allowance 
 above referred to, and also as to the above surplus, and that on the 
 coming in of his report a final decree be made. 
 
 The defendants excepted to this decision, and made a motion, 
 under § 268 of the Code, for a new trial on a case and exceptions. 
 This motion was denied at General Term, and from that order the 
 defendants appeal to this court. 
 
 By 1 R. S. 729, § 57, it is provided that " where a trust is created 
 to receive the rents and profits of lands, and no valid direction Tor 
 accumulation is given, the surplus of such rents and profits beyond 
 the sum that may be necessary for the education and support of the 
 person for whose benefit the trust is created, shall be liable in equity 
 to the claims of the creditors of such person in the same manner as 
 other personal property which cannot be reached by an execution at 
 law." ; 
 
 This provision is very plain, and there can be no question that the 
 surplus income of the real estate, if there be any such surplus, 
 is liable to be reached in some form by the creditors of the 
 beneficiary. Most of the cases on the subject expressly hold this 
 section equally applicable to a trust to receive and pay over the 
 income of personal property, and no point is made on this appeal 
 based upon any distinction between the two sources of the income 
 in question. 
 
 1 See § 78, N. Y R. P. L. — Ed.
 
 II. i.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 597 
 
 The right of a creditor to maintain an action of this description in 
 cases of trusts of personal, as well as real estate, has been recog- 
 nized since an early period after the adoption of the Revised Statutes. 
 In Hallett v. Thompson, 5 Paige, 586, it is observed by the Chancel- 
 lor that as a general rule it is contrary to sound policy to permit a 
 person to have the ownership of property for his own purposes and 
 to be able at the same time to keep it from his creditors. That the 
 Revised Statutes have made one exception to this rule to the extent 
 of a provision for education and necessary maintenance merely, but 
 that in that case the beneficial owner is himself deprived of the power 
 of aliening or encumbering the property or his interest in the rents 
 and profits as cestui que trust, and the surplus income, beyond what 
 is necessary for his support, is in equity subject to the claims of 
 his creditors. And that by the analogy which courts of justice have 
 always endeavored to preserve between estates or interests in land, 
 or the income thereof, and similar interests in personal property, 
 the right of a judgment creditor to reach the surplus rents and 
 profits of land, beyond what is necessary for the support and main- 
 tenance of the debtor and his family, entitles him to maintain a 
 creditor's bill which will reach a similar interest of the debtor in 
 the surplus income of personal property held by another for his use 
 and benefit; but not that part of the income which may be necessary 
 for the support of the judgment debtor. 
 
 The right to maintain such an action as the present was also sus- 
 tained by V.-C. Sandford in Rider v. Mason, 4 Sandf. Chy. Rep. 351, 
 where § 57 of 1 R. S. 729, is applied indiscriminately to the income 
 of real and personal property, and in Sillick v. Mason, 2 Barb. Ch. 
 Rep. 79, wherein the chancellor made a decree allowing the defend- 
 ant to receive out of the income of a trust fund, accrued and to 
 accrue, a specific sum fixed by the chancellor as sufficient for his 
 support, and directing the surplus to be retained for the benefit of 
 the creditor. 
 
 In Bramhall v. Ferris, 14 N. Y. 41, the remedy of the creditor to 
 reach such a surplus by bi-11 in equity, was also conceded, though that 
 case was disposed of on the grounds that there was no allegation or 
 proof that the income was larger than necessary for the support of 
 the debtor and his family, and also that there was a provision in the 
 will that the interest of the cestui que trust should cease on the 
 recovery by creditors of a judgment to reach it, which provision 
 was held to be valid. The same right is also conceded in Scott v. 
 Nevius, 6 Duer, 672, and in Graff v. Bomiett, 31 N. Y. 9. 
 
 It is contended, however, that the case of Campbells. Foster, 35 
 N. Y. 361, is an authority for the position that no part of the interest
 
 598 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 of the cestui que trust in such income can be reached, and it is true 
 that Wright, J., in that case, stated it to be his individual opinion 
 that it could not. His argument is, that §§ 38 and 39 of 2 R. S. 
 173, except from operation of creditors' bills funds held in trust for 
 the debtor, when the trust proceeds from a third person. 1 That § 63 
 of 1 R. S. 730, which provides that no person beneficially interested 
 in a trust for the receipt of the rents and profits of lands, can assign or 
 in any manner dispose of such interest, renders the interest of the 
 beneficiary in a trust to receive and apply the income of personal 
 estate inalienable, and therefore it cannot pass to creditors. 3 But he 
 says it is not necessary to pursue the inquiry, whether the surplus can 
 be reached; that his own opinion is that it cannot, but he says, " let 
 that pass and let it be conceded that if there be any surplus, it may 
 be taken. It has been held, and correctly, that such surplus is not 
 ascertainable in supplementary proceedings to discover and appro- 
 priate the debtor's property, but only in a suit where the issue is 
 directly made on the amount necessary for the debtor's support. 
 If there were an accumulation in the hands of the trustee, it might 
 possibly have been reached under § 294. But a receiver in supple- 
 mentary proceedings cannot maintain a suit to reach so much of the 
 income of a trust fund as is not required for the suitable support of 
 the debtor." 
 
 That is the only point decided in Campbell v. Foster. The action 
 was brought by a receiver of the property of the judgment debtor 
 appointed in supplementary proceedings. The complaint set out a 
 trust of personal property, created by the father of the judgment 
 debtor, to pay the income to her, that it was more than sufficient 
 for her support, and prayed that out of the surplus income derived, 
 and to be derived from the trust estate, there be paid to the plain- 
 tiff, as receiver, a sum sufficient to satisfy the judgment. A demurrer 
 to this complaint was sustained. Judge Wright rests his opinion 
 on two grounds: First. That under §§ 38 and 39, 2 R. S. 174, 
 the income is absolutely exempt; but, second, if he is wrong in 
 that, the interest of the cestui que trust is inalienable under § 63, and 
 cannot pass as property of the judgment debtor to a receiver. In 
 this latter holding he only followed the decision of this court in 
 Graff 'v. Bonnett, 31 N. Y. 9, where it was held in a similar action 
 that it would not pass to a receiver until it had actually become due 
 and payable, and perhaps not until it has been in some way deter- 
 mined that there will be a surplus. The same point was decided in 
 Scott v. Nevius, 6 Duer, 672, but in both of those cases the right of 
 
 1 See Code Civ. Proc, § 1879. — En. 
 'Sec §83, N. Y. R. P. L. — Ed.
 
 II. I.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 599 
 
 the creditor in a proper action to have the amount necessary for the 
 support of the debtor ascertained, and to compel the application of 
 the surplus, is fully recognized. 
 
 Woodruff, J., in his opinion in Scott v. Nevius, holding that an 
 interest of the beneficiary in such a trust cannot pass to a receiver 
 in supplementary proceeding, says: " If there was already an accu- 
 mulation in the hands of the executors, it might doubtless be reached 
 by an order in this proceeding or by a proceeding under § 294. But 
 it has been held, that it cannot be anticipated. But this does not 
 import that on a proper bill, filed, such surplus may not, by proper 
 directions, be secured to the creditor. On the contrary, the court 
 may order a reference, to ascertain and fix the amount necessary for 
 his support, and direct the executor to pay over the surplus for the 
 satisfaction of the judgment." 
 
 Locke v. Mabbett, 2 Keyes, 457, and s. c. 3 Abb. Ct. of App. Dec. 
 68, also decides that the surplus income cannot be reached by sup- 
 plementary proceedings, but expressly leaves open the question 
 whether it can be reached by action in equity. The learned judge 
 in 'Campbell v. Foster, while holding that § 63, which renders the 
 income inalienable, applies to trusts of personal estate, fails to 
 advert to the fact that, if § 63 applies, § 57 must also, by the same 
 reasoning, be applicable, and that that section expressly enacts that 
 the surplus income shall be liable to the claims of creditors ' 
 
 The argument of Judge Wright, that §§ 38 and 39 absolutely 
 exempt the whole income from the claims of creditors, has been 
 answered in many cases. It is obvious that the construction which he 
 gives them would make them practically repeal § 57. Such a con- 
 struction is by no means necessary. By § 38 jurisdiction is conferred 
 upon the Court of Chancery in creditors' suits, to compel the dis- 
 covery of any property belonging to the judgment debtor or held 
 in trust for him, and to prevent the delivery or payment thereof to 
 him. If the section had ended there, it is obvious that a literal 
 interpretation of it would enable a creditor to stop all the income 
 of a beneficiary under one of these trusts. 
 
 The exception is therefore added: " Except when such trust has 
 been created by, or the fund so held in trust has proceeded from, 
 some person other than the defendant himself." This does not 
 necessarily conflict with the provision subjecting surplus incomes 
 to the claims of creditors. Section 39 authorizes the Court of 
 Chancery to decree satisfaction of the judgment out of any personal 
 property held in trust for the debtor, " with the exception afore- 
 said." This exception was necessary. In its absence it might be 
 1 See § 78, N. Y. R. P. L. — Ed.
 
 600 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 held, that in case of a trust of personal property, satisfaction might 
 be decreed out of the principal. But it is not inconsistent with the 
 special provision, in case there is a surplus of income. 
 
 That these sections (38 and 39) do not present any obstacle to 
 reaching surplus income under § 57, has been held in all the cases, 
 except Campbell v. Foster, ever since the adoption of the Revised 
 Statutes. In Craig v. Hone, 2 Edw. Ch. 569, 70, V.-C. McCoun 
 says, the object of § 38 was to prevent express trusts proceeding 
 solely from the bounty of some third person, from being overthrown 
 by these creditors' bills. It was enough to say that all beyond 
 necessary support should be liable to the creditors of the cestui que 
 trust. In Hallett v. Thompson, 5 Paige, 583, the Chancellor says, 
 that § 38 was intended to protect the beneficial interest of the cestui 
 que trust only to the extent of a fair support out of the trust prop- 
 erty. In Rider v. Mason, V. C. Sandford says, that §§ 38 and 39 are 
 to be taken in connection with the statute of uses and trusts, and 
 thus construed, limited to the portion of the trust fund necessary for 
 the support of the debtor and his family. In Sillick v. Mason, 2 B. 
 Ch. 79, these sections were not considered an obstacle to a decree in 
 favor of the creditor for satisfaction out of the surplus income aris- 
 ing from real and personal property. In Scott v. Nevius, 6 Duer, 672, 
 Judge Woodruff says, that § 38 forms no impediment to such a 
 decree. In Graff v. Bonnett, 31 N. Y. 9, the right of creditors to 
 reach the surplus is expressly recognized, and Hogeboom, J., in the 
 prevailing opinion, construing §§ 38 and 39, holds that they do not 
 conflict with that right. In Campbell v. Foster, the report of the 
 case states that six judges affirm on the ground that the fund cannot 
 be reached. But in view of the opinion in the case which discards 
 as immaterial the question whether the surplus could be reached by 
 a proper suit, and the weight of authority in support of the propo- 
 sition that it can, I think the report must be understood as meaning 
 that the six judges held that the fund could not be reached in the 
 proceeding then before the court. Davies, J., who was one of the 
 judges, concurring in the decision in Campbell v. Foster, says, in 
 the case of Locke v.. Mabbctt, 2 Keyes, decided at the same time with 
 Campbell v. Foster, that it is doubtful whether under §§ 38 and 39 
 such a fund can be reached, but he does not intimate that it had 
 been so decided. 
 
 The case of IVelmorev. Truslow, 51 N. Y. 338, does not touch the 
 present case. It was not a suit to reach surplus income, but the 
 whole, on the ground that the beneficiary was also a trustee. 
 
 My conclusion is, that as to the income of the real estate, the sur- 
 plus income, beyond what is necessary for the suitable support of
 
 II. i.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 6oi 
 
 the debtor and those dependent upon him, in the manner in which 
 they have been accustomed to live, is clearly applicable, under § 57, 
 to the claims of his creditors. That as to the surplus income of the 
 personal property, it is likewise so applicable. If it is alienable by ' 
 the debtor, the cases concede that it can be reached. If inalien- 
 able, it is so only by virtue of § 63; and if § 63 applies to trusts of 
 personalty, then § 57 also applies and subjects the surplus income 
 to the claims of creditors. 
 
 The further point is made, that conceding the surplus income to 
 be so applicable, no action can be maintained for its application 
 until after it has accumulated in the hands of the trustees. 
 
 I find no authority for this proposition, except a single Special 
 Term decision, Hann v. Van Voorhis, 15 Abb. Pr. (N. S.) 79, nor 
 any reasonable ground upon which it can be sustained. It is only 
 where the surplus is sought to be reached, as property of the debtor, 
 or as a debt due from a third person, by supplementary proceedings, 
 that such doctrine has been held, and as has already been shown by 
 the cases cited, those very cases concede that a different rule would 
 prevail in a suit like the present one. In Sillick v. Mason t 2 Barb. 
 Ch. 79, the income of the beneficiary from the trust fund was $2,500 
 per annum. The order was that $2,000 per annum was sufficient for 
 his support. That $1,000 be allowed to him out of a half year's 
 income due when the bill was filed, and $1,000 out of each half 
 year's income thereafter to accrue. The surplus was to be retained 
 to abide the final decree, and was, of course, applicable to the claim 
 of the creditor. In Chite v. Bool, 8 Paige, 83, the Chancellor held 
 that such an income was inalienable, and said, for that reason that 
 it could not be reached by a creditor before it was due, and he inti- 
 mates that the intent of the 57th section was, that such surplus as 
 might accrue from time to time, should be liable to the claims of 
 creditors, after it was ascertained that it was not wanted and had not 
 been applied to his support as it became due, whether it remained 
 in the hands of the trustees or had been received by the cestui que 
 trust. But no such point was decided in the case. The income was 
 only $400, and the creditor claimed the whole of it, and there was 
 no allegation that it was more than sufficient for the debtor's sup- 
 port. It is manifest from the statement of the proposition, that if 
 the views of the Chancellor were correct, the provision of the 57th 
 section would afford no substantial protection to creditors and would 
 simply announce a principle without affording any means of giving 
 it practical operation. But such a construction is not admissible. 
 The section does not say that the surplus not spent by the cestui que 
 trust shall be liable for his debts, but the surplus beyond the sum
 
 602 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 that may be necessary for his support and education. It is clear 
 that when a case arose, the Chancellor himself did not adhere to his 
 dictum in Clute v. Bool, for in Sillick v. Mason, he fixed the sum 
 necessary for support and directed the retention of the surplus of 
 future instalments of income. This was recognized by V.-C. Sandford 
 and by Judge Woodruff as the proper course in the cases cited, and 
 by Bosworth, J., in Genet v. Foster, 18 How. Pr. 50, also in Moulton 
 v. De Macarty, 6 Rob. 533, and there is no case, except Hann v. 
 Van Voorhis, holding that the provisions of § 57 can be carried into 
 effect in any other manner. The cases which require that the 
 income should have been realized are all cases of supplementary pro- 
 ceedings. Hann v. Van Voorhis was a motion for an injunction at 
 Special Term, and was decided on the strength of Campbell v. Foster, 
 the judge apparently considering that that case decided that no part 
 of the income could be reached by a judgment creditor unless it had 
 accumulated beyond the wants of the cestui que trust, and was in 
 surplus by accumulation arising from the failure of the latter to 
 spend or appropriate, or from some other cause. For the reasons 
 already stated, I think Campbell v. Foster does not so decide, and 
 that such would not be a reasonable interpretation of the statute. 
 
 Order affirmed. 
 
 Ruger, Ch. J., in TOLLES v. WOOD. 
 
 99 New York, 616. — 1885. 
 
 No serious dispute arose on the argument over the main questions 
 of law involved in the controversy, and the following propositions 
 may, therefore, be assumed as established for all of the purposes of 
 this discussion: 
 
 1. When a trust has been created by one person for the benefit 
 of another, which provides for the payment of the income of the 
 trust fund to the beneficiary, a judgment creditor of such beneficiary 
 is entitled to maintain an action in equity to reach and recover the 
 surplus income beyond what is necessary for the suitable support 
 and maintenance of the cestui que trust, and those dependent upon 
 him. Code of Civil Pro., §§ 187 1, 1879; Williams v. Thorn, 70 N. Y. 
 270; Graff v. Bonnctt, 31 Id. 9; Craig v. Hone, 2 Edw. Ch. 570. 
 
 2. This rule applies as well when the income is derivable from a 
 tniht of personal property as that from real estate. Hallett v. 
 Thompson, 5 Paige, 583; Williams v. Thorn, supra ; § 57, art. 2, tit. 
 2, chap. 1, Part 2, R. S., p. 21S2. 
 
 3. The disposition of such an income cannot be anticipated by the
 
 II. i.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 603 
 
 cestui que trust or encumbered by any contract entered into by him 
 providing for its pledge, transfer or alienation previous to its accu- 
 mulation. § 63 R. S., p. 2182; Graff v. Bonne tt, supra; Williams v. 
 Thorn, supra; Scott v. JVevius, 6 Duer, 672. 
 
 4. The creditor of such a beneficiary acquires a lien upon the 
 accrued and unexpended surplus income, or that subsequently aris- 
 ing from such fund, superior to the claims of general creditors or 
 assignees of the cestui que trust, by the commencement of an action 
 in equity to reach and appropriate it to the satisfaction of his judg- 
 ment. Williams v. Thorn, supra. 
 
 The headnote of the case states that " what are necessaries is a 
 mixed question of law and fact, and therefore the opinion of a wit- 
 ness as to what was a proper expenditure is not admissible." The 
 trust fund in this case consisted of both real and personal property, 
 and the will creating it expressly provided that the cestui que trust 
 should have no power to anticipate the rents, income or profits 
 thereof. 
 
 The cestui que trust, although served with process in the action, 
 suffered default, so far as he was individually concerned, but is 
 defending as one of the trustees of the fund from which the income 
 in dispute is derived. 
 
 The following facts, among others, were found by the referee upon 
 the trial, and so far as they are supported by evidence, must be 
 regarded as conclusively established in the consideration of this 
 appeal: That Silas Wood died prior to the year 1852, leaving a last 
 will and testament, whereby he devised certain real and personal 
 property to his executors in trust to pay the rents, income and 
 profits thereof to his son Wilmer S., for his use, but without any 
 power of anticipation on his part; that the defendants are now the 
 trustees of the said fund, the said Wilmer S. Wood having been duly 
 appointed as such, on the death of one of the original trustees on 
 the 21st day of March, 1863; that said Wilmer S. for a long time 
 previous to the trial had been entitled to and in the receipt of said 
 income, and that the complaint in this action was served on said 
 Wilmer S. on the 27th day of January, 1883; that the net income of 
 said fund accruing to the said Wilmer S. between the said 27th January, 
 and the date of said report, December 4th thereafter, was $4,159.86, 
 and the amount paid personally to said beneficiary between said 
 dates was $1,375; that during the same time the trustees paid, by 
 the direction of the cestui que trust, $1,099.80 as interest upon a debt 
 owing by him to one Robert Center, and the further sum of $708.82 
 for premiums upon life insurance policies held by said trustees upon 
 the life of said Wilmer S. as security for an indebtedness of $27,000,
 
 604 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 owing by him to the trust fund, and they retained the further sum 
 of $810 as interest upon such debt. 
 
 We are of the opinion that the judgment of the court below should 
 be sustained upon the ground that there was an accumulated surplus 
 in the hands of the defendants at the time of the rendition of the 
 judgment which had accrued during the pendency of the action, and 
 was applicable to the payment of the plaintiff's judgment, and was 
 sufficient to discharge the same. The expenditure of that sum by 
 them for the purposes, and under the circumstances found by the 
 referee, was a violation of the rights secured by the plaintiff by the 
 commencement of this action, and was unauthorized by any power 
 vested in them. This sum was inalienable by the cestui que trust, 
 and actual experiment had demonstrated that it was not needed for 
 his support during the period of its accumulation. The amount of 
 the accumulation would seem to be more than sufficient to discharge 
 the obligations of the plaintiff, and if this should prove to be so, 
 would render the provision in the decree for a further application of 
 surplus income unnecessary. 1 
 
 1 In another action against this same defendant and his trustees, Kilroy v. 
 Wood, 42 Hun (N. Y.) 636 (1886), Brady, J., says: " The evidence establishes 
 that the beneficiary is in receipt of a handsome income, which the learned jus- 
 tice in the court below thought was not more than sufficient to support him in 
 the manner in which he had been accustomed to live, and was not beyond 
 what his father intended to provide for him. * * * In determining what is 
 a proper amount to be allowed for his expenditures, it seems to be regarded 
 as proper to consider the manner in which he has been brought up, the habits 
 acquired by him, and his ability to take care of his property. It was said in 
 the case of Sillick v. Mason [2 Barb. Ch. 79]: ' It certainly was the misfortune 
 of the defendant that he was brought up in idleness, under the idea that he 
 was to inherit a large estate, and that it was unnecessary that he should 
 acquire any business habits, so as to fit him to acquire property or to enable 
 him to take care of it if given to him by others.' And in the same case the 
 chancellor, after determining the amount which should be allowed the bene- 
 ficiary, said: 'And they should not, upon a fair construction of the statute on 
 this subject, be permitted to indulge in extravagant expenditures whilst the 
 defendant's creditors remained unpaid.' The same observation applies in this 
 case. But the difficulty in disturbing the judgment arises from the fact that 
 there is not sufficient evidence to show, indeed it may be said that there is no 
 evidence on the part of the plaintiff tending to show, what would be a proper 
 amount to allow the beneficiary for his support. He is, as claimed in the 
 defendant's points, a gentleman of high social standing, whose associations are 
 chiefly with men of leisure, and is connected with a number of clubs, with the 
 usages and customs of which he seems to be in harmony both in practice and 
 expenditure, and it is insisted on his behalf that his income is not more than 
 sulli' ient to maintain his position according to his education, habits and asso- 
 ciations. And this may be so, yet it would seem that evidence might have 
 been adduced which would establish his ability to live upon a smaller sum
 
 II. i ] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 605 
 (0.) Forfeiture for alienation} 
 
 BR AM HALL v. FERRIS. 
 
 14 New York, 41. — 1856. 
 
 Comstock. J. — If we assume, as the appellants contend, that the 
 trust which the executors hold under the will in respect to the inter- 
 est of Myron H. Ferris, is technical and passive merely, the con- 
 clusion does not follow that the plaintiffs are entitled to the 
 relief they claim. 2 By the express provisions of the will, reading the 
 codicil as a part of it, his interest is to terminate on the event of a 
 decree or judgment pronounced against him in a creditors' suit 
 instituted for the purpose of obtaining the fund; and in that event 
 the executors are directed to apply the income to the support of his 
 family by paying the same to his wife, or in any other mode which 
 they in their discretion may adopt. I know of nothing in the rules 
 of law to prevent these provisions from taking effect according to 
 the intention of the testator. It may and should be conceded, that 
 if the bequest to Myron H. Ferris had been given to him absolutely 
 
 than the whole income, and thus relieve himself from the burden of a debt 
 which seems to have been justly contracted. But the evidence is wholly 
 insufficient on this subject on behalf of the plaintiff." See also Stow v. Chapin, 
 4 N. Y. Supp. 496 (18S9). Van Brunt, P. J., says: " There is another ground 
 upon which the court was also justified in denying the motion, and that is that 
 there is no proof whatever contained in these papers as to what would be a 
 sufficient income for the defendant Osborne. It is to be borne in mind that the 
 creditor is not seeking to reach any property of Howell Osborne's, but is 
 endeavoring to reach the income of a fund which his father placed in the hands 
 of trustees to be applied to his benefit. Under these circumstances he is 
 entitled to have so much of said fund asjnay be necessary to support him in 
 the style in which he had been accustomed to live, and in which he had been 
 brought up by his father, and for the maintenance of which this provision was 
 made in the will of the father. It is not for the creditor to say that his debtor 
 should live on two dollars a day or one dollar; that such a sum will keep the 
 debtor from starvation, or that it will prevent his being clothed in rags. There 
 is no such rule in cases of this description. The testator has the right to do as 
 he pleases with his money, and if he desires to make provision for the support 
 of a profligate son in such a manner that he cannot reach or anticipate this 
 fund, or the income thereof, he has the right to do so, and he has the right to 
 afford him the means of living in the manner in which he has brought him up, 
 and to which he has been accustomed, and the creditor can claim only that 
 which is in excess of this amount; and that such excess exists must be estab- 
 lished by allegation of fact." — Ed. 
 
 1 The estate is upon condition, limitation or conditional limitation. — Ed. 
 
 2 While discussing the case fully from this point of view the court finds that 
 there was in fact an active trust. — Ed.
 
 606 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 for life, with no provision for its earlier termination, and no limita- 
 tion over in the event specified, any attempt of the testator to make 
 the interest of the beneficiary inalienable, or to withdraw it from 
 the claims of creditors, would have been nugatory. Such an 
 attempt would be clearly repugnant to the estate in fact devised or 
 bequeathed, and would be ineffectual for that reason, as well as 
 upon the policy of the law. The Blackstone Bank v. Davis, 21 Pick. 
 42; Hallett v. Thompson, 5 Paige, 583; Graves v. Dolphin, 1 Sim. 66; 
 Brandon v. Robinson, 18 Ves. 429. This doctrine, however, and the 
 cases on which it rests do not deprive a testator of the power to 
 declare effectually that the bequest shall cease on the happening of 
 an event which would subject it to the claims of creditors, and then 
 to give it a different direction. " There is," said Lord Eldon, in 
 Brandon v. Robinson, " an obvious distinction between a disposition 
 to a man until he becomes a bankrupt and then over, and an attempt 
 to give him property and to prevent his creditors from obtaining any 
 interest in it although it is his." See, also, Shee v. Hale, 13 Ves. 
 404; Lewes v. Lewes, 6 Sim. 304; and Graves v. Dolphin, 1 Id. 66. 
 This distinction is one of substance, and we think the principle on 
 which it depends will sustain the will of the testator in the present 
 case. If a testator may provide that his bounty bestowed upon one 
 person shall cease and go to another on the occurrence of bankruptcy, 
 I can see no reason why he may not do so in the event of an execu- 
 tion returned unsatisfied, followed by a creditors' suit and judgment 
 therein. * * * 
 
 Mitchell, J. — * * * By the will the beneficial interest in a 
 certain share was in Myron during his life, and might pehaps have 
 been reached in part by his creditors. The testator then alters that 
 interest, so that on a certain event it should cease and the income 
 should thenceforth pass to others. As the will and codicil form but 
 one instrument, the estate which the will might have given but for 
 the codicil, never existed. The only estate or interest which Myron 
 ever had was that which was created by the joint effect of the two 
 instruments; that was a right to have the income of a certain share 
 paid over to him until a judgment creditor's bill should be filed 
 against him and a decree had thereon, and then that right was to 
 cease and to pass in favor of his family. The father when he made 
 the will and codicil owned the whole estate; he had the absolute 
 power over it; he could carve out of it such interests as he pleased, 
 if he violated no rule of law in doing so; he could give one-third to 
 Myron so long as he lived in this State, or so long as he lived out of 
 it, or until a third person should return from Rome or go to it, or
 
 II. i.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 607 
 
 on any other similar arbitrary contingency, according to his will or 
 caprice. He was under no obligation, legal or moral, to give his 
 property so that the creditors of Myron could take it from him or 
 his family. His moral duty and his duty to the State were greater 
 to save Myron and his family from want or from being a burden on 
 the public, than to devote his property to pay his son's creditors. 
 There is, therefore, no public policy which should frustrate the testa- 
 tor's intention. 
 
 The testator has not, as supposed by the counsel for the plaintiff, 
 given to his son a certain estate and then attempted while the estate 
 continued to take from it one of the incidents which the law binds 
 inflexibly to it; but he gives him a certain right in the property, 
 which is to continue for a limited time until an uncertain event shall 
 occur, and then, when that event occurs, is to cease entirely. While 
 the son holds it he holds it with all the incidents which the law attaches 
 to it; when the event, on which it is to cease, occurs, the son has no 
 longer any right or interest in it, and with the loss of his right all right 
 of his creditors also falls to the ground. If the creditors could find 
 any previously arising income, which the son had not called for and 
 could call for, undisposed of and in the hands of the executors, their 
 rights to that would remain unimpaired; but when his right ceased, 
 so also did theirs. * * * 
 
 Thus the rule is made not to depend on the question whether the 
 act causing the termination of the estate comes from the tenant for 
 life or from his creditors, but on its being made (whatever it may 
 be) a cause for the transfer of the estate to another. In Hallett v. 
 Thompson^ 5 Paige, 583, there was no bequest over on any con- 
 tingency. In Degraw v. C/ason, 11 Paige, 136, there was what the 
 chancellor considered an absolute estate in the legatee, alienable by 
 her although held in trust for her, and there were no words showing 
 that the bequest was for the personal support of the legatee, and 
 
 there was no bequest over. 
 
 Judgment affirmed. 
 
 (2.) Responsibility of Life-tenant for Incumbrances and Taxes. 
 
 The Vice-Chancelor in COGSWELL v. COGSWELL. 
 
 2 Edwards' Chancery (N. Y.), 231. — 1834. 
 
 Then, as to the two mortgages existing on parts of the real estate. 
 The question is, who are to bear the burden of them, and in what 
 proportions and how and by whom are the principal and interest of 
 such mortgages to be satisfied?
 
 608 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 By the R. S. vol. i, 749, § 4, 1 the devisee of real estate, subject to 
 a mortgage executed by the testator, is bound to satisfy and dis- 
 charge it out of his own property, without resorting to the executor, 
 unless there be an express direction in the will to the contrary. 
 Here there is no such direction. A life estate in the house and lot 
 in Cedar street (encumbered by a mortgage of ten thousand dollars, 
 being one of the houses there situated of which the testator died 
 seized), is given under the trusts of the will, to the widow of the 
 testator and to his brother Jonathan and sister Lois in equal thirds; 
 and by the residuary clause, an estate in fee in remainder in the 
 same property is given to the two nieces, Mary and Elizabeth L. 
 Cogswell, subject to the contingency of their dying without issue. 
 The same is the case with respect to the ten vacant lots on Front 
 street, which are under a mortgage of two thousand six hundred 
 and ninety dollars. Now, as between the tenants for life and those 
 entitled in remainder, the former are bound to keep down the inter- 
 est on the mortgage debts, and they must contribute alike out of 
 their respective shares of the rents and profits during life to pay the 
 interest on those sums. As the life estates fall in, the principal 
 sums remain a charge upon the inheritance and must be borne by 
 those who succeed to it. The tenants for life are not bound to 
 extinguish the incumbrances. They are only to keep down the 
 annual interest: 4 Kent's Com. (1 ed.) 72, 73; and as a consequence 
 of this rule, in case the mortgagees should call in their money or if 
 it should be found expedient to pay them off out of the residuary 
 personal estate belonging to the nieces Mary and Elizabeth, they 
 will be permitted to stand in the place of the mortgagees so far as 
 to collect the interest payable by the tenants for life. 
 
 It appears that the executors have already paid off the mortgage 
 of ten thousand dollars. The life estates must bear the interest 
 which accrued upon it from the death of the testator to the time of 
 such payment; and they must continue to be charged with the 
 interest on the principal sum in the same manner as if the mortgage 
 remained. And the same rule must be observed with respect to the 
 two thousand six hundred and ninety dollars whenever that mort- 
 gage shall be paid. 
 
 1 Now N. Y. R. P. L., § 215. — Ed.
 
 II. I.] FREEHOLDS NOT OF INHERITANCE— LIFE ESTATES. 60Q 
 
 CANNON v. BARRY. 
 
 59 Mississippi, 289. — 1881. 
 [Reported herein at p. 433. ] l 
 
 REYBURN v. WALLACE. 
 
 93 Missouri, 326. — 1887. 
 
 Black, J. — This case is here on an appeal from the judgment of 
 the Circuit Court sustaining a demurrer to the petition. The 
 petition, which is a bill in equity, in substance, states that Mrs. Rey- 
 burn, the wife of the plaintiff, died in 1879, seized of a large real 
 estate situate in St. Louis; that she left surviving her one child, five 
 years old, and her husband, the plaintiff, who was twenty-eight 
 years of age; that, by her will, she devised her real estate to her 
 husband for life, in case he should remain unmarried, but in case of 
 his marriage, then to her heirs, and if she had no heirs at his 
 death, then to her sisters and their children in case of the death 
 of any of them; that the property is to a large extent unproduc- 
 tive, and the improvements not adapted to the neighborhood in 
 which they are situated; that the annual rents received are some 
 fifty-eight hundred dollars, and the repairs, insurance and general 
 taxes reduce this amount to about three thousand dollars. The 
 petition then shows that four of the streets upon which the property 
 abuts have been, and are being, reconstructed by taking up the old 
 pavement, renewing and readjusting the curbing, and paving the 
 roadway with granite blocks laid on a concrete foundation; and that 
 two other streets have been, and are being, reconstructed in like 
 manner, save that the roadway is paved with asphalt on concrete 
 foundation. For the work thus done tax bills are issued, which are 
 a lien upon the property abutting upon the street. Plaintiff has paid 
 the tax bills issued, amounting to thirty-seven hundred dollars, and 
 others will be issued to the amount of thirty-five hundred dollars. 
 It is alleged that the property is, and will be, greatly enhanced by 
 the improvements. The plaintiff and his deceased wife, and all 
 other persons having a contingent interest in the property are made 
 
 1 In Cochran v. Cochran, 2 Desaussure's Eq. (S. C.) 521, a widow who was 
 executrix charged to the estate the taxes on a house devised to her for life. 
 On her accounting the chancellor decreed " that one-third of the taxes and 
 repairs of the house the defendant [the widow] occupied, be paid by her, and 
 the other two-thirds out of the estate." — Ed, 
 
 LAW OF PROF. I.N LAND — 39
 
 6lO ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 defendants. The prayer of the petition is that a portion of the 
 unproductive property be sold to pay the unpaid tax bills, and to 
 refund to plaintiff the amount he has paid in excess of twenty-seven 
 per centum. 
 
 The only question is, whether plaintiff, as owner of the life estate, 
 should pay the whole of these taxes, or whether they should be 
 apportioned between him and those entitled to the same in remainder. 
 
 The tenant for life is bound to pay the interest on incumbrances 
 on the property out of the rents and profits; but if he pay off" the 
 incumbrances it is said that he is, prima facie, a creditor of the estate 
 for the amount paid, deducting the interest he would have had to pay 
 as life tenant during his life. 4 Kent, 74; 1 Wash. Real Prop. 
 (3d ed.) no. He must pay all ordinary taxes, certainly so, if the 
 income is sufficient to enable him to pay them. Johnson v. Smith, 5 
 Bush. (Ky.) 102; Cairnes v. Chabert, 3 Edw. Ch. R. (N. Y.) 312; 
 Pike v. Wasscl, 94 U. S. 714; Varney v. Stevens, 22 Me. 334; Pretty- 
 man v. Walston, 34 111. 192. And generally he must also pay the 
 expenses of managing the estate. Pierce v. Boroughs, 58 N. H. 302; 
 Perry on Trusts, sec. 554. This author also says: " If, however, 
 an assessment is made against the estate for something in the nature 
 of a permanent improvement or betterment of the whole estate, the 
 assessment may be ratably and equitably divided between the tenant 
 for life and the remainderman," citing Plympton v. Boston Dispensary, 
 106 Mass. 546, which was a case of an assessment of benefits for 
 opening a highway in the vicinity of the property. In the case of 
 Cairnes v. Chabert, supra, it was intimated that this rule, requiring 
 the life tenant to pay the taxes, ought not to apply to those extra- 
 ordinary taxes levied for municipal improvements and permanently 
 beneficial to the land, known as assessments; and accordingly it has 
 been held in the various courts of the State of New York, that the 
 remainderman must contribute to the payment of assessments for 
 municipal improvement. Gunning v. Carman, 3 Redf. 69; Fleet v. 
 Dorland, 11 How. Pr. 489; In re Estate of Miller, 1 Tuck. 346; Stilt- 
 well v. Doughty, 2 Brad. 311; Peck v. Sherwood, 56 N. Y. 615. 
 
 In some of these cases it does not appear what the improvements 
 were. In one the assessment was for a sewer, in another for open- 
 ing a street, but in the case last cited the assessment was for flagging 
 a sidewalk. The rulings in those cases were probably not controlled 
 by the statute cited in Fleet v. Dorland, supra, but it is quite likely 
 the statute had an influence upon the result reached. The Supreme 
 Court of Pennsylvania, in Ifitner v.Fge, 23 Pa. St. 305, held that the 
 costs of a brick sidewalk should be charged to the tenant for life, 
 and not to the remainderman, and on the ground that it was not a
 
 II. i.] FREEHOLDS NOT OF INHERITANCE— LIFE ESTATES. 6ll 
 
 permanent improvement; and so a doweress must pay the cost of a 
 foot pavement in front of a lot occupied by her as a residence. 
 Whyte v. Mayor, 2 Swan (Tenn.) 364. 
 
 In this case the question arises between the life tenant and remain- 
 derman, and we are considering it in no other aspect. It cannot be 
 affirmed that contribution must be made in all local assessments. 
 Many of them are of a temporary character, such as board and brick 
 sidewalks. The rule, it is believed, to be extracted from the 
 authorities, is, that contribution must be confined to cases of assess- 
 ments for improvements, which, in their nature, are permanent, and 
 do not require renewals from time to time. This rule will include 
 benefits for opening and widening streets, and assessments for 
 grading streets, and the construction of permanent sewers. But in 
 the present case, the tax bills were, and will be, issued for improv- 
 ing the surface of the streets, that part of them which is subject to 
 constant wear and tear, and in the nature of things the pavements 
 must require repairs and renewals. Doubtless the granite pave- 
 ment is more- lasting than the asphalt, but we do not think either 
 comes within the rule before stated. In this particular case it is 
 conceded the plaintiff is only twenty-eight years of age, and, accord- 
 ing to the tables adopted in the life insurance law of this State, 
 his expectation of life is thirty-six years and over. It can hardly 
 be hoped that these pavements will last that long without renewal. 
 It is true the taxes are large, but we cannot make the amount of 
 them the criterion. 
 
 The demurrer was properly sustained, and the judgment is affirmed. 
 
 (3.) Estovers. Emblements. Improvements and Fixtures. Waste. 1 
 
 c. Termination of Life-estates. 
 
 (1.) The Natural Termination.* 
 
 ROSEBOOM v. VAN VECHTEN. 
 
 5 Denio (N. Y.), 414, 424. — 1848. 
 
 \_Reported herein at p. 575.] 
 
 1 See cases under these headings in Part III. — Ed. 
 
 2 See note at p. 580, supra, on producing cestui que vie. — Ed.
 
 6l2 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 (2.) Forfeiture. 
 JACKSON ex dem. McCREA v. MANCIUS. 
 
 2 Wendell (N. Y.), 357. — 1829. 
 
 Ejectment by the heir-at-law of Eve McCrea to recover certain 
 lands of hers sold by her husband while tenant by the curtesy initiate. 
 Verdict for plaintiff, subject to the opinion of this court. 
 
 By the Court, Savage, C. J. — * * * The marriage of John 
 McCrea with Eve, and the birth of a child, gave him an interest in 
 the premises as tenant by the curtesy initiate. * * * The father 
 being dead, and the mother also, the heir of the mother is entitled 
 to recover, unless he is barred by the deed of his father, or by lapse 
 of time. 
 
 What title passed by the deed of John McCrea? It is a general 
 rule that no one can convey a better title than he has; and as it 
 appears that he had an estate for his own life, the fair presumption 
 would be that he intended to convey the estate which he had in the 
 premises. * * * 
 
 Could not, then, a tenant by the curtesy convey in fee without 
 having an estate in fee? The Parliament of Great Britain supposed 
 that such an act might be done, and guarded against it by statute 
 32 Henry 8, ch. 28, which provision was re-enacted in this State at 
 an early day (1 R. L. 181, 2, 3), by which it is enacted, that no fine, 
 feoffment or other act of the husband in relation to the freehold or 
 inheritance of his wife, shall prejudice such wife or her heirs. * * * 
 
 I conclude, therefore, that there is nothing in the fact of McCrea's 
 conveying a fee, to show that he had the capacity to convey such 
 an estate when it is shown that he had only an estate for life, and 
 when, also, the form of conveyance used by him carried only such 
 estate as the grantor had. If a greater estate is claimed under him, 
 it should not be left to presumption so ill sustained, to prove that 
 he had capacity to grant such estate. 
 
 Is the lessor barred by lapse of time? It is contended that the 
 lessor's right of entry (if any) accrued in 1780, at the death of his 
 mother, and as more than twenty years elapsed before suit brought, 
 that therefore this action cannot be maintained. It is said that John 
 McCrea, having only an estate for life, by attempting to convey a 
 greater estate than he had, forfeited his estate, and that the heir of 
 the wife might have entered upon her death. In this point there 
 are two subjects of inquiry presented: 1. Did the tenant by the 
 curtesy forfeit his estate by attempting to convey a fee? and, 2. If
 
 II. I.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 613 
 
 he did, when did the heir's right of entry accrue? Was it on the 
 death of his mother or his father? 
 
 1. Estates for life are considered at common law as strict feuds, and 
 are forfeitable for certain causes If tenant for life, including ten- 
 ant by the curtesy, takes upon him to convey a greater estate than 
 he has, in such a manner as to divest the estate in reversion or 
 remainder, such conveyance will operate as a forfeiture of his estate 
 for life, and the reason given (a very singular one in this country), 
 is because it is a renunciation of the feudal connection between him 
 and his lord. 1 Cruise, 122, § 36, and 173, § 31. Co. Litt. 252,3. 
 Com. Dig. Forf. a. r. The form of conveyance for this purpose 
 must be such as to divest the estate of the reversioner or remainder- 
 man, and these were three: Feoffment with livery of seisin, fine, 
 and common recovery; but a conveyance by lease and release, or 
 bargain and sale, is no forfeiture. 
 
 If the conveyance in this case was by feoffment, the injury is one 
 which is termed a discontinuance, the entry of the feoffee being 
 lawful during the continuance of the particular estate, but by his 
 continuance in possession after the death of the feoffor, the legal 
 estate of the heir was gone, or at least suspended, and for a while 
 discontinued. When the right of entry is thus lost, and the party 
 can only recover by action, the possession is said to be discontinued. 
 By the common law, the alienation of a husband who was seized in 
 right of his wife, worked a discontinuance of the wife's estate, till 
 the statute 32 Hen. 8, ch. 28, provided that no act by the husband 
 alone should work a discontinuance of, or prejudice the inheritance 
 or freehold of the wife. Jacob's Law D. tit. Discontinuance. 
 
 In order to prove a forfeiture, therefore, in the conveyance by 
 McCrea, it should have been shown to have been a feoffment with 
 livery of seisin. As this mode of conveyance is nearly obsolete in 
 England and very little used, and the more common species of assur- 
 ance being lease and release and bargain and sale, we will not pre- 
 sume that a feoffment with livery was executed in this instance. 
 It is equally probable that one of the other modes of conveyance was 
 adopted, which, though in terms purporting to convey a fee, yet in 
 reality transfer no more or greater estate than the grantor had. 
 The fact, then, of a forfeiture is not satisfactorily shown. But sup- 
 pose the conveyance to have been a feoffment, 2. Did a right of entry 
 accrue? and was the heir bound to enter? Littleton says (§ 594), 
 " If a man be seized of land as in right of his wife, and thereof 
 enfeoff another and dieth, the wife may not enter, but is put to her 
 action, the which is called cut in vita." But this is altered, says 
 Coke, since our author wrote, by the statute 32 Henry 8, by the pro-
 
 614 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 visions of which statute, the wife and her heirs, after the decease of 
 her husband, may enter into the lands or tenements of the wife, not- 
 withstanding the alienation of her husband. 
 
 From what has already been said, and from the cases referred to, 
 it would seem that the criterion of the forfeiture is the actually 
 divesting of the estate of the remainderman or reversioner — the 
 passing an estate which the grantor has no right to pass; and as the 
 statute has interposed in this case to prevent such an effect from 
 the feoffment of the husband, I think it follows that a feoffment in 
 such case by the husband of his wife's estate does not work a for- 
 feiture. It is, perhaps, not material to consider that question; but 
 the more important inquiry will be, whether the heir is bound to 
 enter during the life of the tenant for life, supposing he has a right 
 so to do. The statute has been understood as refusing the right of 
 entry till the husband's death: "And the heirs of the wife shall 
 not be barred of their action after the death of their father and 
 mother by the deed of their father, if they demand by action the 
 inheritance of their mother which their father did alien in the life- 
 time of their mother." i R. L. 183, § 7. Lord Coke seems to 
 understand the statute, that no right of entry exists till the death 
 of the husband. He is so understood by Jacob in his dictionary, 
 who says, " Though if the husband hath issue, and maketh a feoff- 
 ment in fee of his wife's land, and his wife dieth, the heir of the wife 
 shall not enter during the husband's life, neither by the common 
 law, nor by the statute," citing 1 Inst. 326. 
 
 In the case of The Earl of Pom/ret v. Lord Windsor, 2 Ves. Sen., 
 482, Lord Hardwicke expresses an opinion that in case of a fine by 
 a tenant for life, which, as soon as levied, operates a forfeiture, the 
 remainderman or reversioner may enter presently, but is not bound 
 so to do; and therefore the law gives him five years after the death 
 of the tenant for life, because he has no reason to look until the 
 natural determination of the estate. So Lord Ellenborough, in Doe, 
 ex dem. Cook v. Danvers, 7 East, 321, says, that " If a forfeiture were 
 committed, the party entitled to enter for it, was not bound to 
 do so." 
 
 In the State of Massachusetts, this question has been twice 
 decided, 9 Mass. Rep. 508, and r5 Mass. Rep. 472; the last of which 
 cases was Wallingford v. Heart, in which it appeared that the 
 defendant's grandfather died seized in 1770, and the premises in 
 question were assigned to the widow for her dower. She died in 
 1810, and the demandant entered in 181 1. The tenant proved that 
 he and those under whom lie held had been in peaceable pos- 
 session, claiming the premises, which were under improvement, for
 
 II. I.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 615 
 
 thirty years and upwards. It was contended for the tenant, that as 
 the right of entry was barred by twenty years' possession, and as the 
 reversioner may enter on the disseisor during the continuance of the 
 particular estate, and more than that time having elapsed, the 
 action could not be maintained. But Parker, Ch. J., in delivering 
 the opinion of the court, says, " The demandant's right of entry 
 accrued on the death of the tenant for life; that if he might have 
 entered in consequence of the disseisin of the tenant for life, he was 
 not bound to do so. He might well suppose that the tenant had 
 entered under a contract with her who was seised of the freehold." 
 "So in this case, the lessor might well suppose that Vanderheyden 
 had purchased only the life estate of John McCrea, and he was not 
 bound to look after it till the natural termination of the life estate. 
 I am of opinion, therefore, 1, that the lessor has shown a sufficient 
 title to enable him to recover; 2, that there is no ground to presume 
 a title in fee in John McCrea, but only a life estate as tenant by the 
 curtesy; 3, that no forfeiture is shown of his life estate, because, 1, 
 it does not appear that he conveyed by feoffment with livery of 
 seisin, and 2d, if it did so appear, the statute prohibits the discon- 
 tinuance which such a conveyance would produce at common law; 
 and therefore, as the estate of the reversioner is not affected, there 
 is no forfeiture. I am aware that the cause of forfeiture is said to 
 be the disloyalty of the tenant for life to his lord; but I consider the 
 true criterion of forfeiture, the passing an estate which he ought not 
 to pass; 4, that if a forfeiture was shown, yet the reversioner is 
 not bound to enter until the natural termination of the life estate, 
 as the law does not require him to look after the estate, the pre- 
 sumption being that the tenant in possession holds by such a convey- 
 ance as the tenant for life had a right to give. I am therefore of 
 opinion that the plaintiff is entitled to judgment in the two first 
 causes." * * * Judgment for the plaintiff. 1 
 
 (3.) Merger. 
 BOYKIN v. ANCRUM. 
 
 28 South Carolina, 486. — 1887. 
 
 Ejectment. — The will of William Ancrum gave the life use of 
 certain real property to his widow with remainders as indicated in 
 the opinion below. William A. Ancrum, having a life estate in 
 
 1 Waste by the life tenant is, under special circumstances, another cause Jor 
 forfeiture in many of the states. See N. Y. Code Civ. Pro., § 1655. — Ed.
 
 6l6 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. I. 
 
 remainder, purchased the interest of the widow (then Mrs. Julia 
 Glass) and afterwards died while the widow was still alive. Further 
 facts appear in the opinion. 
 
 McGowan, J. * * * As to the construction of the devise. 
 " To my second son, William Alexander Ancrum, for and during the 
 term of his natural life, and from and after his decease to his lawful 
 issue, absolutely and in fee simple. But if my said second son, William 
 Alexander Ancrum, should die, leaving no lawful issue at the time 
 of his decease, then, and in such case," over, etc. Without going 
 again into the authorities upon the subject, we think this case is 
 concluded by that of Melntyre v. Mclntyre, 16 S. C. 294, where the 
 authorities are cited and the conclusion satisfactorily stated by Mr. 
 Justice Mclver as follows: " We think the authorities in this State 
 conclusively show that where the word ' issue ' is so qualified by 
 additional words as to evince an intention that it is not to be taken 
 as descriptive of an indefinite line of descent, but is used to indicate 
 a new stock of inheritance, the rule (in Shelley's Case) does not apply." 
 In that case, as in this, the antecedent estate was expressly " for 
 life," and after the decease of the tenant for life, to the " issue." 
 The superadded words there were, " and their heirs forever," while 
 here they are "absolutely and in fee simple" — an equivalent 
 phrase certainly quite as strong as the other. Besides, here there 
 is still another limitation over to the third son, Thomas James 
 Ancrum, " but if my said second son, William A. Ancrum, should 
 die, leaving no lawful issue at the time of his decease," etc. We 
 agree with the Master and Circuit Judge that William Alexander 
 Ancrum took only a life estate in the premises described, and that 
 there was a limitation over to his issue as purchasers. 
 
 Then, as to the plaintiff's exceptions. The first charges that it 
 was error in the judge to hold " that when W. A. Ancrum purchased 
 the life estate of Mrs. Julia Glass in the premises described, her life 
 estate merged in the life estate of W. A. Ancrum." It was certainly 
 just, when Chancellor Kent adopted the language of a great Master 
 in the doctrine of merger, " that the learning under this head is 
 involved in much intricacy and confusion." " Merger is described 
 as the annihilation of one estate in another. It takes place usually 
 when a greater estate and a less coincide and meet in one and the 
 same person, without any intermediate estate, whereby the less is 
 immediately merged — that is, sunk or drowned in the greater." 
 Garland v. Paplin, 32 Grat. 305; 2 Bl. Com. 177; 4 Kent, 100. 
 Taking this definition, do the conditions exist here for a merger? 
 Mr-,, (ilass had an estate for life, and (passing over the eldest son,
 
 II. i.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 617 
 
 who had died early) the next vested estate was that of William 
 Alexander Ancrum, which was also for life, without any estate 
 intervening. These respective estates were to be enjoyed succes- 
 sively, and not concurrently — that of the mother, Julia, coming first 
 in the order of succession. But in 1837 W. A. Ancrum purchased 
 the life estate of Julia and held both, claiming the premises as his 
 own absolutely until he sold and conveyed them to Doby in 1857. 
 Did not this make the case referred to in the books " of the incom- 
 patibility of a person filling at the same time the characters of tenant 
 and reversioner in one and the same estate? " 
 
 It is said, however, that both estates were for life, and therefore 
 equal in degree and merger only takes place when a larger and 
 smaller estate meet in the same person. The general rule is, that 
 equal estates will not drown in each other, but there are well estab- 
 lished exceptions. Were these estates equal in the sense of the rule? 
 Looking at them from the point of view of W. A. Ancrum, one was 
 an estate for the life of Mrs. Julia Glass, preceding his estate, and 
 the other succeeding was for his own life. There seems to be some- 
 thing in the order in which the estates stand to each other in the 
 matter of time. Chancellor Kent states the rule thus: " The 
 merger is produced, either from the meeting of an estate of higher 
 degree with an estate of inferior degree, or from the meeting of the 
 particular estate and the immediate reversion in the same person. 
 An estate for years may merge in an estate in fee or for life; and an 
 estate pur autre vie, may merge in an estate for one's own life; and 
 an estate for years may verge in another estate or term for years, in 
 remainder or reversion. * * * To effect the operation of merger, 
 the more remote estate must be the next vested estate in remainder 
 or reversion, without any intervening estate, either vested or con- 
 tingent; and the estate in reversion or remainder must be at least 
 as large as the preceding estate." 
 
 It seems that even when the estates are theoretically equal, the 
 first in the order of succession may merge in the next vested remain- 
 der, being in this respect somewhat like a surrender, which is the 
 relinquishment of a particular estate in favor of the tenant of the 
 next vested estate in remainder or reversion In the notes to 
 the case of James v. Morey, 2 Cowen, 246, 14 A. D. 475; " Leading 
 Cases in the American Law of Real Property," lately published 
 (1887) by Sharswood & Budd, vol. 3, 231, the rule is thus stated: 
 " The estate in reversion or remainder must be as large as, or larger 
 than, the estate to be merged. 3 Prest. Conv. 51. The expression, 
 ' as large, or larger, ' must be, of course, taken in the technical sense ; 
 thus an estate for life is larger than an estate for years, although
 
 6l8 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 death may destroy the former estate long before the efflux of time 
 has brought the latter to a conclusion. Thus, if a lease be made for 
 years, with a remainder to the lessee for life, the estate for years 
 will merge; but if there be an estate for life, with remainder to the 
 life tenant for years, there will be no merger. Co. Litt. 54, b. In 
 Shehan v. Hamilton, 4 Abb. App. 211, it is said that estates of equal 
 degree do not merge; but whether this be strictly so or not, the 
 effect of a merger will be produced by the unity of possession. 
 An estate at will will merge in an estate for years. 3 Pres. Conv. 
 176. Estates for years may merge in each other or in estates for 
 life. Estates for life will merge. Co. Litt. 338 b; Caryw. Warner, 
 63 Me. 571; Allen v. Anderson, 44 Ind. 395." We cannot say that 
 the Circuit Judge committed error in holding that when W. A. 
 Ancrum purchased the life estate of Mrs. Glass in the premises that 
 estate merged in his estate. 
 
 Exceptions 2, 3, and 4 make the point, substantially, that the 
 judge erred in holding that at the death of William A. Ancrum (1862) 
 the rights of the issue in remainder attached, and from that time 
 the possession of the parties was adverse, so as to put in motion the 
 presumption of a grant from Mrs. Elizabeth B. Boykin, who reached 
 her majority in 1864, two years after the death of her father, W. A. 
 Ancrum, and more than twenty years before the commencement of 
 the action. The life estate of Mrs. Glass was the first in the order 
 of succession, and doubtless was expected to be the first to fall in; 
 the fact, however, was otherwise, for she survived W. A. Ancrum for 
 more than twenty years. It is true that, but for his purchase of 
 her estate, W. A. Ancrum would never have reached the possession 
 of his estate; and it is asked whether, under these circumstances, 
 his right must be limited to his own life estate, which, though vested, 
 he never enjoyed in possession, so as to make his death, and not 
 hers, the time at which an action accrued to the remaindermen. 
 At first view it is not obvious how an estate, which turned out to be 
 the longest, could be drowned in one of shorter duration; but, 
 according to the authorities, it seems that such was the necessary 
 consequence of the merger. See Mangum v. Piester, 16 S. C. 330; 
 4 Kent, 99; 2 Pom. Eq. Jur., section 787, and notes, where it is said 
 that: " An estate for years will merge in a reversionary term of 
 years, even though the latter is of less duration," citing, among 
 other authorities, Welsh v. Phillips, 54 Ala. 309. And Chancellor 
 Kent says: ' The estate in which the merger takes place is not 
 enlarged by the accession of the preceding estate, and the greater 
 or ily subsisting estate continues after the merger precisely of. 
 the same quantity and extent of ownership as it was before the
 
 II. 2.] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 619 
 
 accession of the estate which is merged, and the lesser estate is 
 extinguished," etc. 
 
 We cannot doubt that the premises were held adversely to all the 
 world. During his life William A. Ancrum held them as his own 
 absolutely. Shortly before his death (in 1857) he conveyed them to 
 Joseph W. Doby, with the usual warranty of title. We do not see 
 how the relinquishment of some of the remaindermen could affect 
 the character of the possession as to those who did not relinquish. 
 We do not, however, think that the defendants should have interest 
 on the value of their improvements while they have the possession 
 and use of the same. 
 
 The judgment of this court is, that the judgment of the Circuit 
 Court, with the slight modification as to interest on the value of the 
 improvements, be affirmed. 1 
 
 2. Conventional Life-estates. 
 
 a. Created by act of parties. 
 
 (1.) By Deed. 
 
 ADAMS v. ROSS. 
 
 30 New Jersey Law, 505. — i860. 
 
 [Reported herein at p. 4S3.] 
 
 (2.) By Devise. 
 
 Mccormick harvesting machine co. v. gates. 
 
 75 Iowa, 343- — 1888. 
 [Reported herein at p. 5S1.] 
 
 (3.) Not by Parol, or by Writing less than Deed. 
 
 STEWART v. CLARK. 
 
 13 Metcalf (Mass.), 79. — 1847. 
 
 Action of waste. The declaration alleged that defendant Clark, 
 was tenant for life and that plaintiff held the next immediate estate 
 of inheritance in the premises, and that defendant had made waste. 
 
 1 But a clear intention of the parties to that effect would prevent the merger 
 of the estate pur autre vie. Snow v. Boycott, (1S92) 3 Ch. Div. (Eng.) 110. 
 Equity will often prevent a merger where otherwise serious wrong would be 
 done. — Eu.
 
 620 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CI I. I. 
 
 As evidence of the existence of a life interest in defendant, plain- 
 tiff offered a paper purporting to create a life estate, but neither 
 sealed nor acknowledged. Defendant objected to said paper as evi- 
 dence of a freehold interest in him on the ground that it was not 
 under seal, and to its reception because it was not acknowledged. 
 The paper was rejected and plaintiff submitted to a nonsuit subject 
 to the opinion of this court. Plaintiff claims that under § 28, ch. 
 59 of the Rev. Sts., "the paper in question may be operative, as a 
 writing, against the grantor and his heirs to create a life estate." 
 
 Dewey, J. — The objection taken to the instrument offered as a 
 conveyance of a freehold interest to Lewis Clark is sound, and 
 must prevail. The instrument is not under seal; is not a deed. As 
 a valid conveyance of a life estate, it should be under seal. Rev. 
 Sts. c. 59, § 1. The further provision of § 28 that, " no bargain 
 and sale or other like conveyance of any estate in fee simple, fee tail, 
 or for life, and no lease, for more than seven years from the making 
 thereof, shall be valid and effectual against any other person than 
 the grantor and his heirs, and devisees, and persons having actual 
 notice thereof, unless it be made by a deed recorded," does not 
 dispense with the necessity of passing such title by deed. 
 
 Nonsuit confirmed. 
 
 b. The words of limitation. 
 
 ADAMS v. ROSS. 
 
 30 New Jersey Law, 505. — i860. 
 
 [Reported herein at p. 483.] 1 
 
 c. Created out of what. 9 
 d. Successive life-estates. .' 
 
 1 See also cases pp. 489-520, supra. — Ed. 
 
 2 Life estates are usually created by the owner of a fee or of a life estate ; but note 
 that the transfer of a life estate gives the transferee an estate pur autre vie. 
 See cases cited herein. In New York an estate for life may be created out of a 
 term for years. £ 40, N. Y. R. P. L. — En. 
 
 3 Remainders for life. See N. Y. R. P. L., § 33, for a special limitation on 
 their creation. — Ed.
 
 II. 3- J FREEHOLDS NOT OF INHERITANCE —LIFE ESTATES. 621 
 
 3. Legal Life Estates. 
 a. Estate in tail after possibility of issue extinct. 1 
 
 b. Estates by the marital right. 
 BABB v. PERLEY. 2 
 
 1 Maine, 6. — 1S20. 
 {Reported herein at p. 27. J 
 
 1 Lit. j5 32. " Tenant in fee tail after possibility of issue extinct is, where 
 tenements are given to a man and to his wife in special tail, if one of them die 
 without issue, the survivor is tenant in tail after possibility of issue extinct. 
 And if they have issue, and the one die, albeit that during the life of the issue, 
 the survivor shall not be said tenant in tail after possibility of issue extinct; 
 yet if the issue die without issue, so as there be not any issue alive which may 
 inherit by force of the tail, then the surviving party of the donees is tenant in 
 tail after possibility of issue extinct." 
 
 Lit. § 33. " Also if tenements be given to a man and to his heirs which he 
 shall beget on the body of his wife, in this case the wife hath nothing in the 
 tenements, and the husband is seised as donee in special tail. And in this 
 case, if the wife die without issue of her body begotten by her husband, then 
 the husband is tenant in tail after possibility of issue extinct." 
 
 Lit. § 34. "And note, that none can be tenant in tail after possibility of issue 
 extinct, but one of the donees, or the donee in special tail. For the donee in 
 general tail cannot be said to be tenant in tail after possibility of issue extinct; 
 because always during his life, he may by possibility have issue which may 
 inherit by force of the same entail. And so in the same manner the issue 
 which is heir to the donees in special tail, cannot be tenant in tail after possi- 
 bility of issue extinct, for the reasons above said." 
 
 "And note, that tenant in tail after possibility of issue extinct shall not be pun- 
 ished of waste, for the inheritance that once was in him. 10 H. 6, 1. But he 
 in the reversion may enter if he alien in fee. 45 E. 3, 22." — Ed. 
 
 2 See also Houghton v. Hapgood, supra, p. 24, and Foster v. Marshall, p. 622, 
 infra. 
 
 For the interest of the husband in his wife's leaseholds, see Riley's Adminis- 
 trator v. Riley, supra, p. 26. For the wife's separate estate in equity, see Taques 
 v. Trustees, supra, p. 93, and Pullen v. Rianhard, supra, p. 95. 
 
 In most of the states the doctrine of the estate by the marital right has been 
 abrogated; at first usually by the introduction of a statutory separate estate, 
 later by more radical statutes which place the married woman as to her prop- 
 erty rights on the same footing as a. feme sole. For the course of legislation in 
 New York on this subject, see Laws of 184S, ch. 200; 1849, cn - 375; 1S60, ch. 
 90, and the Domestic Relations Law of 1896, §§ 20 and 21. See also statutes 
 with regard to divorce, Code Civ. Proc, §§ 1759, 1760. — Ed.
 
 622 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 c. Estate by the curtesy. 
 
 (i.) Nature of Curtesy Initiate and Consummate. 
 
 FOSTER v. MARSHALL. 
 
 22 New Hampshire, 491. — 1851. 
 
 Writ of entry. The facts appear in the opinion. 
 
 Bell, J. — The principal question arising in this case, is as to the 
 effect of the statute of limitations upon the demandant's right of 
 action. It appeared that the demanded premises were set off by a 
 committee of partition, appointed by the Court of Probate, to Mary 
 Foster, formerly Mary Eastman, the mother of the demandant, as 
 her share of the estate of her father, Samuel Eastman, deceased, on 
 the 14th of May, 1814. Mary Foster was then the wife of Frederick 
 Foster, by whom she then had one or more children. Frederick 
 Foster died in 1834, and his wife in 1836. They had six children, 
 whose rights are said to be now vested in the plaintiff. 
 
 The defendant proved, that in 181 7, one Morrill was in possession, 
 claiming to be the owner of the demanded premises. He conveyed 
 the same by deed, dated July 3, 1817, to one Marshall, who entered 
 and occupied, claiming title, till April 30, 1847, when he conveyed 
 to the tenant, who has since remained in possession. The tenant 
 claims that he has a perfect title by thirty years' undisturbed, and 
 peaceable possession. The demandant alleges that his right is not 
 barred, because at the time when the disseisin occurred, in 1817, 
 Mrs. Foster was a feme covert, and up to 1834 her husband had an 
 estate for life in the premises and she had no right of entry until his 
 decease, and consequently no right of action till then, and that since 
 that time twenty years have not elapsed. 
 
 Under the statute of limitations, which was in force in this State 
 before the Revised Statutes, it must be considered settled, that the 
 statute did not affect the right of a remainderman or reversioner, 
 during the continuance of the particular estate; and that neither the 
 acts nor the laches of the tenant of the particular estate could affect 
 the party entitled in remainder. Wells v. Prince, 9 Mass. Rep. 
 508; Wallingford v. Hcarl, 15 Mass. Rep. 471; Tilsonv. Thompson, 
 10 Pick. Rep. 359. 
 
 No right of entry or action accrued to, or vested in the heirs of 
 the wife during the continuance of an estate by the curtesy. Jack- 
 son v. Schoonmakcr, 4 Johns. Rep. 390. 
 
 Hut the party entitled is not barred, until the usual period of limi- 
 tation after the termination of the life estate. Heath v. White, 5 
 Conn. Rep. 22S; Witham v. Perkins, 2 Greenl. Rep. 400.
 
 II. 3-] LIFE ESTATES: CURTESY. 623 
 
 If, then, the husband had, in this case, an estate by the curtesy, 
 or any interest in the land which would entitle his wife, who survived, 
 to be regarded as seised only in remainder or reversion, she and her 
 heirs would have the full period of twenty years after the death of 
 the husband, to commence their action. 
 
 To constitute a tenancy by the curtesy, the death of the wife is 
 one of the four things required. The estate of the husband is 
 initiate upon the birth of issue. It is consummate on the death of 
 the wife. 4 Kent's Comra. 29; Co. Litt. 30 a. 
 
 By the intermarriage, the husband acquires a freehold interest, 
 during the joint lives of himself and his wife, in all such freehold 
 property of inheritance as she was seised of at the time of marriage, 
 and a like interest vests in him in such as she may become seised of 
 during the coverture. The husband acquires jointly with the wife, 
 a seisin in fee of the wife's freehold estates of inheritance, the hus- 
 band and wife being seised in fee in right of the wife. Gilb. Ten. 
 108; Co. Litt. 67 a.; Palyblank v. Hawkins, 1 Saund. Rep. 253 n. ; S. 
 C. Doug. 350. 
 
 This interest may be defeated by the act of the wife alone; as if, 
 at common law, the wife is attained of felony, the lord by escheat 
 could enter and eject the husband. 4 Hawk. P. C. 78; Co. Litt. 
 40a.; Vin. Ab. Curtesy, A.; Co. Litt. 351 a. 
 
 After the birth of issue the husband is entitled to an estate for 
 his own life, and in his own right, as tenant by the curtesy initiate. 
 Co. Litt. 351 a., 124 b.; Schermerhorn v. Miller, 2 Cowen's Rep. 439. 
 He then becomes sole tenant to the lord, and is alone entitled to do 
 homage for the land, and to receive homage from the tenants of it, 
 which until issue born must be done by husband and wife. 2 Black. 
 Comm. 126; Litt. § 90; Co. Litt. 67 a., 30 a. 
 
 Then he may forfeit his estate for life by a felony, which, until 
 issue born, he could not do, because his wife was the tenant. 
 2 Black. Comm. 126; Roper, Hus. and Wife, 47. 
 
 If the husband, after the birth of issue, make a feoffment in fee, 
 and then the wife dies, the feoffee shall hold the land during the 
 husband's life; because by the birth of issue, he was entitled to 
 curtesy, which beneficial interest passed by the feoffment. Co. 
 Litt. 30 a. 
 
 If such feoffment is made before issue born, the husband's right 
 to curtesy is gone, even though the feoffment be conditional and be 
 afterwards avoided. And if in such case the husband and wife be 
 divorced a vinculo matrimonii, the wife may enter immediately. 
 Guneley's Case, 8 Co. Rep. 73. 
 
 The husband's estate, after issue born, will not be defeated by
 
 624 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. I. 
 
 the attainder of the wife, for his tenancy continues, he being sole 
 tenant, i Hale, P. C. 359; Co. Litt. 351 a., 40a. ; Bro. Ab. Forf. 78. 
 
 The obvious conclusion from these views of the nature of the 
 interest of a tenant by the curtesy initiate is, that such tenant is seised 
 of a freehold estate in his own right, and the interest of his wife is a 
 mere reversionary interest, depending upon the life estate of the 
 husband. The necessary result of this is that the wife cannot be 
 prejudiced by any neglect of the husband, and, of course, she may 
 bring her action, or one may be brought by her heirs, at any time 
 within twenty years after the decease of the husband, when his estate 
 by the curtesy, whether initiate or consummate, ceases, and her 
 right of action, or that of her heirs, accrues. In this respect there 
 is no distinction between curtesy initiate and curtesy consummate. 
 Melvin v. Locks &* Canals, 16 Pick. R. 140. 
 
 So far as we are aware, this principle has never been questioned, 
 where the inheritance of the wife has been conveyed to a third per- 
 son, either by the deed of the husband alone, or by a deed executed 
 by husband and wife, which from some defect did not bind the 
 interest of the wife. Miller v. Shackleford, 3 Dana Rep. 289; Caller 
 v. Metzer, 13 Serg. & Rawle Rep. 356; Fagan v Walker, 5 Iredell 
 Rep. 634; McCorry v. King, 3 Humph. Rep. 267; Melius v. Snow- 
 man, Shepley Rep. 201; Meramon v. Caldwell, 8 B. Mon. Rep. 32; 
 Gill v. Fauntleroy, lb. 177; Melvin v. Locks and Canals, 16 Pick. Rep. 
 140. But it has been held, Melvin v. Locks and Canals, 16 Pick. Rep. 
 161; Kittridge v. Locks and Canals, 17 Pick. Rep. 246, that where a 
 disseisin has been committed upon the wife's estate, the disseisin is 
 done alike to the husband and wife; that a joint right of entry and 
 of action accrues to both for the recovery of it, and that if such 
 remedy is not prosecuted within twenty years, it is barred. 
 
 This is true where the husband has acquired no estate by the 
 curtesy, and is seised merely in the right of the wife of her estate. 
 Such are the cases of Guion v. Anderson, 8 Humph. Rep. 298; Melius 
 v. Snowman, 8 Shep. Rep. 201. 
 
 And if the husband is tenant by curtesy, as he and his wife are 
 seised of the fee in right of the wife, the action must be brought by 
 husband and wife, and a joint seisin in fee alleged in them in her 
 right. Anon. Bills. 21. Their joint right of action is barred by the 
 lapse of twenty years after it accrues. But it by no means follows 
 that the reversionary right of the wife, accruing in possession after 
 the estate of her husband has ceased, is also barred. It is well 
 settled, that the same party may have several and successive estates 
 in the same property, and several rights of entry by virtue of those 
 estates, and one of those rights may be barred without the others
 
 II. 3- J LIFE ESTATES: CURTESY. 625 
 
 being affected. Hunt v. Burn, 2 Salk. 422; Wells v. Prince, 9 Mass. 
 Rep. 50S; Stevens v. Winship, 1 Pick. Rep. 318; Tilson v. Thompson, 
 10 Pick. Rep. 359. 
 
 And every reason, which can exist in favor of the right of any 
 reversioner, applies equally in this case, namely, that a reversioner 
 has, as such, no right of entry and no right of action during the 
 particular estate, and consequently is not barred until twenty years 
 after his own right of entry accrued. 2 Sugd. V. & P. 353; 3 Steph. 
 N. P. 2920, n. 10; 9 Mass. Rep. 508; 1 Pick. Rep. 318; 15 Mass. 
 Rep. 471; 10 Pick. Rep. 359; 4 Johns. Rep. 390, before cited. 
 Besides, the wife by reason of her disability can make no entry to 
 revest her estate during the coverture. Litt. p. 403; Co. Litt. 246 a. 
 Coke says, in express terms, " after coverture, she (the wife), can- 
 not enter without her husband." 
 
 In Jackson v. Johnson, 5 Cow. Rep. 74, and Heath v. White, 5 Conn. 
 Rep. 228, this question arose, and was decided in accordance with 
 our views, and we think upon sounder principles than the cases in 
 Massachusetts, to which we have referred. 
 
 We have compared the provisions of the Revised Statutes with the 
 older statutes, and do not perceive, that there is, as to the point in 
 question, any difference in their effect. Under neither would the 
 plaintiff propose to claim any advantage from the proviso. His 
 ground is not that the ancestor was a married woman, when her right 
 accrued; but that her marriage and the birth of one or more children 
 had vested a life estate in her husband, and that the disseisin was 
 done to him, and that no right of action accrued to her in virtue of 
 the reversionary interest, under which her heirs now claim, until she 
 became a widow, and the husband's estate had terminated; and that 
 the action is brought within twenty years after that event. This 
 appears to us a correct view of the case, and of the law; and the 
 verdict must, therefore, be set aside and a 
 
 New trial granted. 1 
 
 HATFIELD v. SNEDEN. 2 
 54 New York, 280. — 1873. 
 [Reported herein at p. 641.] 
 
 1 See Wheeler v. Hotchkiss, 10 Conn. 225, reported infra, p. 648. — Ed. 
 
 2 The last paragraph on p. 644 is all that need be read at this point. — Ed. 
 
 LAW OF PROP. IN LAND — 40
 
 626 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 WATSON v. WATSON. 
 
 13 Connecticut, 83. — 1839. 
 
 Ejectment. Plaintiffs are the children and heirs-at-law of Ann 
 Watson, deceased. Their father, John Watson, is still alive, but 
 plaintiffs offered in evidence a writing under his hand and seal con- 
 taining the following declaration and disclaimer: " I have not, at 
 any time hitherto, and now do not claim, demand, possess or in any 
 manner or to any extent whatever, have, or pretend to have, any 
 right, title, or interest in [the premises in question], but do now 
 fully, absolutely and without any reservation, disclaim and reject 
 any and all right, title and interest in the same, which I might or 
 could have had, by operation of law or otherwise, by reason of my 
 surviving my said wife, or any title to said premises which she had 
 during her life." The writing was rejected by the court. Verdict 
 for defendant. Plaintiffs move for a new trial. 
 
 Waite, J. — The object of a disclaimer is, to prevent an estate 
 passing from the grantor to the grantee. It is a formal mode of 
 expressing the grantee's dissent to the conveyance before the title 
 has become vested in him. In some cases, it may be highly proper; 
 as where a deed is made conveying an estate to one for life, with a 
 remainder to another in fee. Here, in the absence of all evidence 
 to the contrary, the law would presume the assent of the grantee in 
 remainder, upon delivery of the deed to the grantee for life, for the 
 benefit of both. But if the remainderman chooses not to take the 
 estate, he may disclaim, and thereby remove all presumption of 
 assent. So, where a deed is executed to several persons, and delivered 
 to one for the benefit of all, if one dissents, he may disclaim, and 
 furnish evidence that his share still remains in the grantor. Tread- 
 well et at. v. Buckley et a/., 4 Day, 395. 
 
 But if the grantee once assents, and the title thereby becomes 
 vested in him, he cannot, by any disclaimer, revest the estate in the 
 grantor. For if he could, the disclaimer would have the effect of a 
 deed, which it cannot have; the object of the latter being to transfer 
 property, — of the former, to prevent a transfer. 
 
 But in a case of descent, the heir cannot, by any disclaimer, pre- 
 vent the estate from passing to him. It vests in him immediately 
 upon the death of the ancestor; and no act of his is required to 
 perfect his title. He cannot, by any act, cause the estate to remain 
 in the ancestor; for the latter is incapable of holding it after his 
 death. Nor can he, by a disclaimer, transfer the estate to any other 
 person, as the heir of the ancestor: for, as has already been
 
 II. 3-] LIFE ESTATES: CURTESY. 627 
 
 observed, the object of a disclaimer is not to convey, but to prevent 
 a conveyance. He is, therefore, in the same situation, upon the 
 death of the ancestor, as a purchaser who has assented to the con- 
 veyance. In both cases, a transfer can only be made by some 
 instrument adapted to the conveyance of real estate. 
 
 A devisee, however, stands in the same situation as a purchaser. 
 If he dissents, the estate passes to the heir in the same manner as 
 if no will had been made. It is entirely optional with him to take 
 or refuse the estate devised. Townson v. Tickell et al., 3 Barn. & 
 Aid. 31. 
 
 In the present case, the disclaimer was made by one who was 
 entitled to the property as tenant by the curtesy. Is he, in this 
 respect, like a grantee, or an heir? This species of estates has some- 
 times been classed with those acquired by purchase. But it is rather 
 an estate thrown upon the tenant by operation of law. Co. Litt. 
 18 b. It partakes more of the character of an estate acquired by 
 descent than by purchase. Immediately upon the death of the wife, 
 the estate vests in him. Like the heir, he cannot, by refusing to 
 take it, cause it to remain in the wife; nor can he, by a disclaimer, 
 transfer it to others. The estate thus vested in him, becomes imme- 
 diately liable for his debts; and he cannot, by any refusal to take 
 the property, defeat the claims of his creditors. 
 
 The disclaimer offered in evidence could have no effect in showing 
 a title in the plaintiffs; and was properly rejected by the court. 
 
 We are, therefore, satisfied that no new trial should be granted. 1 
 
 (2.) The Essentials for Curtesy. 
 
 (a.) Lawful Marriage} 
 
 (b.) Birth of issue* 
 
 The Chancellor in MARSELLIS v. THALHEIMER. 
 
 In the analogous case of a tenancy by the curtesy it is well settled 
 that the child must be born alive in the lifetime of the mother to 
 entitle the father to the estate. And even the delivery of the child 
 alive, by the Caesarian operation, after the death of the mother, is 
 not sufficient. 
 
 1 As to the nature of disclaimers in general, see Jackson ex dem. Ten Eyck v. 
 Richards, 6 Cow. (N. Y.) 617. — Ed. 
 4 2 See cases under dower below. — Ed. 
 
 5 A legislative act will not be unconstitutional because it defeats the expecta- 
 tion which the father of a living child had, previous to the act, of succeeding, 
 as tenant by the curtesy, to any lands the wife might acquire subsequent to the 
 act. Thurber v. Toivnsend, 11 N. Y. 517 (i860). — Ed.
 
 6jS estates as to quantity and quality. [PT. IV. CH. I. 
 
 (<-.) Seisin of wife. 
 
 FERGUSON v. TWEEDY. 
 43 New York, 543. — 1871. 
 
 Action by Ferguson, claiming as tenant by the curtesy, to recover 
 the possession and rents and profits of certain land. Plaintiff failed 
 in the court below and takes this appeal. 
 
 Plaintiff's wife, prior to her marriage, was tenant in common with 
 another of certain lands. Before her marriage deeds were inter- 
 changed between the co-tenants by which the lands were partitioned 
 untd either should die without issue and no longer. The wife died, 
 leaving issue the defendant. The other co-tenant died leaving no 
 issue and this defendant acquired an interest in his share. Fergu. 
 son died after this action was begun and it is continued by his 
 executrix. 
 
 Folger, J. — This action cannot be sustained unless Harvey D. 
 Ferguson, the testator, had in his lifetime an estate as tenant by the 
 curtesy in the premises, or some part of them, which were recovered 
 in the action of the respondents against Samuel G. Green, judgment 
 wherein was rendered on the 1st of February, 1861. To establish 
 such tenancy there were needed four things: Marriage, issue of the 
 marriage, death of the wife, and her seisin, during marriage, of the 
 premises in question. There is no dispute but that all of these 
 existed, save the last. 
 
 It is a general rule that to support a tenancy by the curtesy there 
 must be an actual seisin of the wife. Mercer s Lessee v. Selden, 1 
 How. U. S. 37-54. The rule is not inflexible. There are exceptions 
 to it. The possession of a lessee under a lease reserving rent, is an 
 actual seisin, so as to entitle the husband to a life estate in the 
 land as a tenant by the curtesy, though he has never received or 
 demanded rent during the life of his wife. Ellsworth v. Cook, 8 
 Paige, 646. Wild, unoccupied or waste lands may be constructively 
 in the actual possession of the wife. 8 J. R. 271. A recovery in an 
 ejectment has been held equivalent to an actual entry. 8 Paige, 
 supra. And it has been held that, where the wife takes under a 
 deed, and there is no adverse holding at the time, that actual entry 
 is not necessary. Jackson v. Johnson, 5 Cow. 74. But the facts of 
 this case open not the door for any of these exceptions to come in. 
 Before the marriage of the testator to his wife, she did convey by 
 quit-claim deed the premises in question for a term which was in its 
 duration as long as her life. The grantee in that deed, thus acquir- 
 ing an estate for her life in the lands, did enter, and he and his 
 
 1 V^ V^u^ — 
 
 
 V
 
 II. 3-] LIFE ESTATES: CURTESY. 629 
 
 assign held the possession up to her death and afterward. It is true 
 that this deed was one of two, interchanged between the parties to 
 effect an amicable partition of premises held by them at that time in 
 common. But the execution of these deeds, if followed, as it was, 
 by possession in severalty, was valid and sufficient to sever the pos- 
 session for the lifetime of the testator's wife. Baker v. Lorillard, 
 4 N. Y. 257; Carpenter v '. Schermcrhorn, 2 Barb. Ch. 314, 21. And 
 from the time of the execution by her of that deed, until the day of 
 her death, she had not, nor had her husband, actual possession of the 
 premises; she nor he made claim to the possession of them; she nor 
 he received rent or other profit from them; she nor he had right to 
 ask possession or rent or profit. In short, there did not any fact 
 exist which, for her lifetime, after the execution of the deed, gave 
 her a constructive possession or right of possession. On the con- 
 trary, there did exist in another, so far as she and her husband were 
 concerned, exclusive possession, and right of such possession, for a 
 term which ran for her life. There was, then, an outstanding estate 
 for life in the premises, which, beginning before her coverture 
 began, did not end until her coverture ended. And it is settled, 
 that if there be an outstanding estate for life, the husband cannot 
 be the tenant by the curtesy of the wife's estate in reversion or 
 remainder, unless the particular estate be ended during coverture. 
 Stoddard v. Gibbs, 1 Sumner, 263-70; In re Cregier, 1 Barb. Ch. R. 598. 
 
 It is among the facts found by the learned justice before whom 
 the action was tried, that the possession of the grantee in that deed, 
 and of his assign, was actual and exclusive. It is found, also, that 
 neither the wife of the testator, nor the testator himself, did at any 
 time after the execution of that deed have actual possession of the 
 premises, or receive the rents and profits thereof. And these find- 
 ings are upheld by the proof. 
 
 There is no escape from the conclusion that there was lacking one 
 of the essentials in a tenancy by the curtesy in favor of the testator. 
 This defect in the plaintiff's case being fatal, it is not necessary that 
 we examine the other questions involved. 
 
 The judgment of the court below should be affirmed, with costs to 
 the respondent. 
 
 LESSEE OF BORLAND v. MARSHALL. 
 
 2 Ohio State, 308. — 1853. 
 
 Thurman, J. — The decision of this cause depends upon the 
 answer that shall be given to the following question: Is a man 
 entitled to curtesy in lands, the title to which descended to his wife
 
 630 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 during coverture, but which were in the actual possession of an 
 adverse claimant from the time her title accrued until her death. It 
 is very clear that, by the strict rule of the common law, he is not; 
 aud for the reason that neither the wife, nor the husband in her 
 right, was, at any time during coverture, actually seised of the 
 premises. Four things, according to the common law, are necessary 
 to create an estate by the curtesy, viz.: Marriage, seisin of the 
 wife, issue, and death of the wife. Co. Lit. 30 a. And where the 
 wife's title is derived by inheritance, or any other mode requiring 
 an entry to perfect it, the seisin must be in deed, and not merely in 
 law. Co. Lit. 29 a. ; Jackson v. Johnson, 5 Cow. 98. 
 
 But it is contended, that in Ohio seisin is unnecessary; and this 
 leads us to inquire: 1. What is the reason of the common-law rule 
 requiring seisin? 2. Does the reason exist in this State? 3. If it 
 does not, is the maxim applicable, " Ccssante ratione, cessat ipsa lex" 
 the reason ceasing, the law itself ceases ? 
 
 The books generall)', and with but few exceptions, give but one 
 reason for the rule making seisin indispensable to curtesy, namely, 
 that as, by the common law, livery of seisin was necessary to the 
 transfer of a freehold estate by deed, and an entry necessary to per- 
 fect the title to such an estate, of an heir or devisee, it followed 
 that unless the wife, or the husband in her right, was actually 
 seised, her issue could never, as her heirs, inherit the lands; for 
 owing to the want of actual seisin, she never acquired an inheritable 
 estate. But unless she had an estate of inheritance there could be 
 no curtesy, as it was indispensable to the existence of curtesy that 
 the mother be seised of an estate which might descend to her heirs, 
 and " the tenancy by curtesy is an excrescence out of the inheri- 
 tance." 3 Bac. Abr. 11 (Bouvier's edition). 
 
 Thus, Littleton says (§ 52): " And memorandum that, in every 
 case where a man taketh a wife seised of such an estate of tene- 
 ments, etc., as the issue which he hath by his wife, may by possibility 
 inherit the same tenements of such an estate as the wife hath, as 
 heire to the wife; in this case, after the decease of the wife, he shall 
 have the same tenements by the curtesie of England, but other- 
 wise not." 
 
 Commenting on the above expression, " as heire to the wife," Coke 
 ' This doth irriplie a secret of law, for except the wife be 
 actually seised, the heire shall not (as hath been said) make himself 
 heire to the wife; and this is the reason that a man shall not be ten- 
 ant by the curtesie of a seisin in law." Co. Lit. 40a. 
 
 And, in illustration of the law that a wife must have an estate 
 inheritable by her issue, the following case is put: " If lands be
 
 II. 3-] • LIFE ESTATES: CURTESY. 63 1 
 
 given to a woman and to the heires males of her body, she taketh 
 a husband and hath issue a daughter and dieth, he shall not be 
 tenant by the curtesie; because the daughter by no possibility could 
 inherit the mother's estate in the land; and therefore where Little- 
 ton saith, issue by his wife male or female, it is to be understood, 
 which by possibility may inherit as heir to her mother of such 
 estate." Co. Lit. 29 b. 
 
 Blackstone puts the same case, and adds: " And this seems to 
 be the principal reason why the husband cannot be tenant by the 
 curtesy of any lands of which the wife was not actually seised, 
 because, in order to entitle himself to such an estate, he must have 
 begotten issue that may be heir to the wife; but no one, by 
 the standing rule of law, can be heir to the ancestor of any land, 
 whereof the ancestor was not actually seised." 2 Bla. Com. 128. 
 
 In a subsequent passage, he suggests an additional reason. It is 
 as follows: " A seisin in law of the husband will be as effectual as 
 a seisin in deed, in order to render the wife dowable; for it is not 
 in the wife's power to bring the husband's title to an actual seisin, 
 as it is in the husband's power to do with regard to the wife's lands; 
 which is one reason why he shall not be tenant by the curtesy, but 
 of such lands whereof the wife, or he himself in her right, was 
 actually seised in deed." 2 Bla. Com. 132. The only authority 
 referred to by Blackstone, in support of the above, is Co. Lit. 31, 
 where the diversity between dower and curtesy is noticed, but no 
 such reason as Blackstone gives for denying curtesy is stated, 
 although it may be inferred. 
 
 What Coke says is as follows: " For a woman shall be endowed 
 of a seisin in law. As where lands or tenements descend to the hus- 
 band, before entry he hath but a seisin in law, and yet the wife shall 
 be endowed, albeit it be not reduced to an actual possession, for it 
 lieth not in the power of the wife to bring it to an actual seisin, as 
 the husband may do of his wife's land when he is to be tenant by 
 the curtesy, which is worthy the observation." 
 
 As before observed, it is only by inference that this passage sup- 
 ports Blackstone's remark. It is to some extent fortified, however, 
 by the following language in 7 Viner's Abr. 149, namely : ' ' Feme shall 
 be endowed of a seisin and possession in law, without seisin in deed, 
 quod no/a; for otherwise it is of tenant by the curtesy, and the 
 reason seems to be, inasmuch as the baron may enter in jure 
 i/xoris, but the feme cannot compel her baron to enter into his own 
 land." 
 
 On the other hand, the following extract from 3 Bac. Abr. 12, is 
 certainly opposed to the existence of this reason, as the idea is
 
 632 ESTATES AS TO QUANTITY AND QUALITY [PT. IV. CII. I. 
 
 rejected that the allowing or disallowing curtesy is dependent on the 
 ability or inability, industry or negligence, of the husband. 
 
 " But now of such inheritances, whereof there cannot possibly be 
 a seisin in fact, a seisin in law is sufficient; and therefore if a man 
 seised of an advowson or rent in fee, hath issue a daughter, who is 
 married and hath issue, and he dieth seised, and the wife dieth like- 
 wise before the rent becomes due, or the church becomes void, this 
 seisin in law in the wife shall be sufficient to entitle her husband to 
 be tenant by the curtesy, because say the books, he could not pos- 
 sibly attain any other seisin, as indeed he could not; and then it 
 would be unreasonable he should suffer for what no industry of his 
 could prevent. But the true reason is, that the wife hath these 
 inheritances which lie in grant, and not in livery, when the right first 
 descends upon her; for she hath a thing in grant when she hath a 
 right to it, and nobody else interposes to prevent it." 
 
 In Davis v. Mason, 1 Pet. 507, the foundation of the rule is thus 
 stated in the opinion of the court: " As it relates to the tenure by 
 curtesy, the necessity of entry grew out of the rule, which invariably 
 existed, that an entry must be made in order to vest a freehold (Co. 
 Lit. 51,) and out of that member of the definition of the tenure by 
 curtesy which requires that it should be inheritable by the issue. 
 When a descent was cast, the entry of the mother was necessary, or 
 the heir made title direct from the grandfather, or other person last 
 seised." 
 
 A careful examination of the authorities makes it quite apparent 
 that this is a correct statement of the principal, if not the only, reason 
 of the rule. No other reason is found in the books, except the sug- 
 gestion before referred to, that curtesy is refused where there was 
 no actual seisin, because the husband might, by diligence, have 
 obtained such seisin. But this idea, as we have seen, is not uni- 
 versally admitted. 
 
 Our next inquiry is, do these reasons, or either of them, exist in 
 Ohio? 
 
 That livery of seisin has never been essential, in Ohio, to the 
 creation of a freehold estate, nor an entry necessary to perfect 
 the title of an heir or devisee, is well known to every lawyer. 
 The most common instrument of conveyance is a deed of bargain 
 and sale, which, without the aid of a statute of uses, transfers both 
 the legal and equitable estate. Nay, further, a mere deed of quit- 
 claim, or release, is sufficient, even where the releasee has no prior 
 interest in the land. But our departure from the English law does 
 not stop here; for an adverse possession does not prevent the trans- 
 fer of title, either by deed, descent, or devise. Whatever title is
 
 II. 3-] LIFE ESTATES: CURTESY. 633 
 
 held by the grantor, ancestor, or testator, may be thus transferred, 
 notwithstanding the lands are adversely held by another. Holt v. 
 Hemphill, 3 Ohio, 232; Helfenstine v. Garrard, 7 Ohio (pt. 1), 272; 
 Hall v. Ashby, 9 Ohio, 96. It might seem, from what was said in 
 Holt v. Hemphill, that an adverse possession would be fatal to a 
 deed; but that such possession in no wise affects it was expressly 
 decided in Hall v. Ashby. 
 
 As, then, a freehold estate is created in Ohio without entry, it is 
 manifest that the principal, if not the only reason, of the rule requir- 
 ing actual seisin to give curtesy does not exist in this State. 
 
 But allowing that the minor reason before stated did exist in 
 England, does it exist here? Ought a husband to be denied curtesy 
 in Ohio upon the ground that he might have entered upon the land 
 during coverture, and that if he did not, he was guilty of a fault 
 that deservedly bars his right? There may have been much reason 
 for saying so in England, when the rule requiring seisin was estab- 
 lished; for, by the failure of the husband to enter, the wife and her 
 issue might lose the estate, which it was plainly his duty to prevent, 
 if possible. But in Ohio her title is as perfect before as after entry; 
 and, in general, it would be nothing less than absurd to make a 
 man's right depend upon whether he had gone for a moment upon 
 the land and "broken a twig," or "turned a sod," or "read a 
 deed." There is, however, one case, and perhaps but one, in which, 
 if curtesy exists, the heirs of the wife might be prejudiced by a 
 failure of the husband to obtain possession, namely, when by such 
 failure the bar of the statute of limitations becomes perfect against 
 them. But this would probably occur so rarely as to furnish but a 
 slight foundation for the rule we are considering. Nor is it the only 
 case in which a remainderman, or reversioner, may be powerless to 
 preserve his estate. If A, the owner in fee of lands in the adverse 
 possession of B, devise or convey them to C for life, with remainder 
 to D, it is manifest that, as the statute of limitations began to run 
 against A, and therefore continues to run against C and D, the 
 latter may lose his estate through the neglect or failure of C to 
 obtain possession. So, when the statute begins to run against a 
 feme sole, and she afterward marry, she may lose her land by the 
 neglect or inability of her husband to recover it. 
 
 These possible cases of hardship it is the province of legislation 
 to guard against, and not of the courts. Were we to say that there 
 shall be no curtesy where the possession was held adversely during 
 the coverture, because to give it might by possibility result in the loss 
 of the estate to the heir, it is very probable that, in guarding against 
 hardships on the one side, we would open the door to quite as much,
 
 634 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 or more, hardship on the other. For it is very far from being true 
 that the failure to obtain possession during the coverture, is always 
 attributable to the husband's neglect. He may have freely spent 
 his time, labor, and money to recover the land, and yet, without any 
 fault of his, be unable to succeed in the lifetime of the wife. Decide 
 as we may, doubtless there will be room for cases of hardship to 
 arise; but, as was truly said by Duncan, J., in Stoolfoos v. Jenkins, 
 8 S. & R. 173: " Courts cannot usurp legislative functions, or new- 
 model the law according to their own ideas of natural justice, or 
 redress hardships in each particular instance." And it is never to 
 be forgotten that all wise laws are framed with a regard to what is 
 likely to occur, rather than to that which is only possible. 
 
 On the whole, the conclusion to which we have arrived is, that 
 neither of the reasons given for making actual seisin indispensable 
 to curtesy, affords any sufficient foundation for the rule in Ohio. 
 
 It remains to be considered whether the reason of the rule having 
 ceased, or rather never having existed in this State, the rule itself 
 exists here. Tenancy by the curtesy has always been known to our 
 law and is recognized by our statutes. We cannot deny its exist- 
 ence; but may we not deny the necessity of a requisite, that prop- 
 erly enough formed a place in the common law, but has no reason 
 to support it in our jurisprudence? We are materially aided in this 
 inquiry by the American decisions upon the subject of curtesy. 
 These decisions may be reduced into three classes: 
 
 1. Those in which there being no adverse possession, the husband 
 and wife were held to be constructively seised in deed, and such 
 constructive seisin deemed sufficient. 
 
 2. Those in which there was an adverse possession; but a recovery 
 in ejectment, on the demise of the husband and wife or the husband 
 alone, took place during the coverture; and in which there was held 
 to be curtesy, although no actual possession followed the recovery. 
 
 3. Those in which an adverse possession was decided to be no bar 
 to curtesy. 
 
 Of the first class, Jackson v. Sellick, 8 Johns, 208, and Davis v. 
 Mason, 1 Peters, 506, may properly, perhaps, be called the leading 
 cases. Many others might be cited, for the general current of 
 American authority certainly admits curtesy in this class of cases. 
 
 ( )f the second class, Ellsworth v. Cook, 8 Paige, 643, is the leading 
 1 ase. 
 
 To the third class belongs Bush v. Bradley, 4 Day, 298, approved 
 in Chew v. Cotnm'rs of Southwark, 2 Rawle, 160, etc. 
 
 Now, a careful scrutiny of these cases will show that, in nearly all 
 of them, the decisions were arrived at by an application of the maxim
 
 II. 3 J LIFE ESTATES: CURTESY. 635 
 
 "cessanie ratione, cessat ipsa lex." It was so expressly declared in 
 Davis v. Mason. That case respected lands in Kentucky. After 
 giving, in the passage hereinbefore quoted, the reason of the rule 
 requiring seisin, the judge, who delivered the opinion of the court, 
 went on to say: " But in Kentucky, we understand, the livery of 
 seisin is unheard of. Freeholds are acquired by patent, or by deed, 
 or by descent, without any further ceremonies; and in tracing pedi- 
 gree, the proof of entry, as successive descents are cast, is never 
 considered as necessary to a recovery, or in any mode affecting the 
 course of descent. If a right of entry therefore exists, it ought by 
 analogy to be sufficient to sustain the tenure acquired by the hus- 
 band, where no adverse possession exists; as it is laid down in the 
 books relative to a seisin in law, ' he has the thing, if he has a right 
 to have it.' Such was not the ancient law; but the reason of it has 
 ceased. It has been shown, that in the most remote periods excep- 
 tions had been introduced on the same ground; and in the most 
 modern, the rule has been relaxed upon the same consideration. We 
 ought not to be behind the British courts in the liberality of our 
 views on the subject of this tenure." 
 
 So in Jackson v. Sellick, the court said: '* We must take the rule 
 (requiring seisin) with such a construction as the peculiar state of 
 new lands in this country require." 
 
 Both these cases seem to proceed on the ground that the wife, 
 though not actually, was yet constructively seised in deed. Hence 
 the allusion, in each case, to the fact that there was no adverse posses- 
 sion to rebut the presumption. The question whether an adverse 
 possession would be fatal to the claim to curtesy was not presented. 
 The cases in effect decide, not that seizin in deed is indispensa- 
 ble, but that, if there must be seisin, a constructive seisin is suffi- 
 cient. But in Bush v. Bradley, the question was directly raised. The 
 premises, during the whole period of the coverture, were adversely 
 held by a third person. Yet the husband was adjudged to be tenant 
 by the curtesy. The real estate law of Connecticut was, in all 
 respects, material to the present inquiry, the same as that of Ohio; 
 and the court held that, as the reason of the rule requiring seisin 
 did not exist, seisin was unnecessary, and that the symmetry of the 
 law required this decision. To the same effect is the following 
 language of the court in Stoolfoss v. Jenkins, 8 S. & R. 175: " The 
 actual seisin of the husband during coverture is necessary to 
 entitle him, as tenant by the curtesy, by the common law; though 
 such actual seizin by the husband is not necessary by our law, if 
 there be a potential seisin, or right of seisin. This has been 
 decided to be sufficient in this State." This ruling, as well as
 
 6$6 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 the case of Bush v. Bradley, was approved in the case in 5 Rawle, 
 160, before cited, the court holding that it was sufficient to entitle 
 the husband to curtesy that the wife owned the land and had a 
 right " to demand and recover the immediate possession thereof." 
 
 In the light of these decisions, and the considerations upon which 
 they rest, we can hardly err in holding that the reason, or reasons 
 of the rule requiring seisin in deed, having no existence in Ohio, the 
 rule itself does not exist. And, certainly, the symmetry of our law 
 demands this. It would be strange indeed, and only lead to con- 
 fusion and perplexity, if, while every other tenancy may be created 
 in this State without entry, or regard to the fact of adverse posses- 
 sion, a tenancy by the curtesy could not. Nor does a rule strongly 
 commend itself to the good sense of men that makes the existence 
 of the estate depend upon an almost, or quite, imaginary distinction 
 between seisin in law and constructive seisin in deed. The con- 
 structive seisin relied on in Jackson v. Scllick, Davis v. Mason, and 
 Ellsworth v. Cook, was in substance nothing but a seisin in law. It 
 is a mere fiction to say that a man is actually possessed of that which 
 is in no one's possession, and it is plainly untrue to say so when the 
 thing is in the possession of another. The reasoning of the courts 
 in all these cases, if carried to its legitimate result, makes seisin in 
 deed, either actual or constructive, wholly unnecessary; and this 
 result is not in conflict with the principles of the common law. For 
 even at common law, a seisin in law is sufficient to give curtesy in 
 all inheritances created without entry. 3 Bac. Abr. 12; Jackson v. 
 Johnson, 5 Cow. 98; Ellsworth v. Cook, 8 Paige, 643. It is therefore 
 a mere application of a common-law principle to say that a seisin in 
 law is sufficient in Ohio, where in no case is an entry necessary to 
 create an inheritance. In the case before us, Mrs. Borland was 
 seised in law, for " seisin in law is a right to lands and tenements, 
 though the owner is by wrong disseised of them." 6 Jacob's Law 
 Die. 41. Her husband, there being issue born, became tenant by 
 the curtesy, and as he was yet in life when the ejectment was brought 
 by her heirs, the common pleas did right to nonsuit them. 
 
 The decision of this case also decides the case of Doe ex dan. 
 Hunter et al. v. Durrel ; the only difference in the cases being that 
 there was an adverse possession in the one and not in the other.
 
 II. 3] LIFE ESTATES: CURTESY. 637 
 
 {d.) Death of wife. 
 WHEELER v. HOTCHKISS. 
 
 10 Connecticut, 225. — 1834. 
 {Reported herein at p. 646. J 
 
 WATSON v. WATSON. 
 
 13 Connecticut, 83. — 1839. 
 
 [Reported herein at p. 626.] 
 
 (e.) Need not all coincide in time. 
 
 HUNTER v. WHITWORTH. 
 
 9 Alabama, 965. — 1846. 
 
 Collier, C. J. — It is laid down in general terms, by elementary- 
 authors, that where a man marries a woman seised of an estate of 
 inheritance in lands, and has by her issue born alive, which was 
 capable of inheriting her estate, he shall on the death of his wife, 
 hold the lands for his life, as tenant by the curtesy. 2 Black. Com. 
 126; Steph. Com. 24; 1 Lomax, 65-6. Whether this estate is a conse- 
 quence of feudal tenure, is a point perhaps upon which all are not 
 agreed; it is, however, stated by all the text-writers, that the hus- 
 band is the natural guardian of the child, and as such, is in reason 
 entitled to the profits of the land, in order to maintain it. " As 
 soon, therefore, as any child was born, the father began to have a 
 permanent interest in the lands, he became one of the pares curtis, 
 did homage to the lord, and was called tenant to the curtesy initiate; 
 and this estate being once vested by the birth of a child, was not 
 suffered to determine by the subsequent death or coming of age of 
 the infant." There are four requisites to constitute a tenancy by 
 the curtesy, viz. : Marriage, seisin of the wife, issue born alive, and 
 the death of the wife. See the citations above. 
 
 It has been held not necessary that there should be seisin and 
 issue at the same time; and therefore if the wife become seised of 
 lands during the coverture, be afterwards disseised and then have 
 issue, the husband shall be tenant by the curtesy of those lands So 
 if the wife becomes seised after issue born, though the issue die 
 before the seisure. Jackson v. Johnson, 5 Cow. Rep. 74; see also, 
 2 Conn. Rep. 565; 5 Id. 236. In Heath v. White, 5 Conn. Rep. 235, 
 it was said, though the tenure by curtesy may have originated from
 
 638 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. I. 
 
 the husband's obligation to support his children, yet the extent of 
 his interest is not measured by this reason for its introduction. He 
 is entitled to hold for life, whether his children need his support or 
 not, and whether they live an hour only or to old age. And it has 
 been decided in this State that a decree of divorce, a mensa et thoro, 
 pronounced against the husband, does not bar him of the right of 
 curtesy. Smootv. Lecatt, 1 Stew. Rep. 590. 
 
 Where B. devised the whole of his estate to his daughter, " to her, 
 her heirs and assigns forever," but if she should die without issue, 
 his whole estate was to be sold by his executors, and the money aris- 
 ing therefrom, after his widow's decease, to be equally divided among 
 his brother's and sister's sons. The daughter married, and had 
 issue which died during her life. Yet it was held that the husband 
 was entitled to her estate, as tenant by the curtesy. Buchanan v. 
 Sheffer, 2 Yeates' Rep. 374. We cite these cases to show the favor 
 with which the law regards this description of estate, with what 
 liberality it extends it, even beyond the object for which its intro- 
 duction was mainly intended to provide; that it is protected, 
 although the wife is absolved from the obligation of living with her 
 husband, in consequence of some fault of his; and that even the 
 express terms of a devise shall be so construed as not to divest a 
 tenancy by the curtesy, if the husband's right once attached. Hav- 
 ing said thus much in respect to the estate in general, we now pro- 
 ceed to consider it in reference to the statutes, which it is insisted 
 for the plaintiff in error, are decisive of the case at bar. By the act 
 of 1806, for the regulation of descents, and the distribution of estates, 
 among other things, it is enacted, " Where a man having by a woman 
 a child, or children, shall afterwards intermarry with such woman, 
 such child or children, if recognized by him, shall be thereby legiti- 
 mated." Clay's Dig. 168, § 3. The act of 1811, " concerning 
 bastardy," provides, that if the mother of a bastard child and the 
 imputed father shall, at any time after its birth, intermarry, the child 
 shall in all respects be deemed and held legitimate, conformably to 
 the maxim of the civil law. Clay's Dig. 134, § 6; see also Croke 
 on Illegitimacy, 95. 
 
 By legitimating a bastard, we are to understand that he is placed 
 in the same state as if he were born in wedlock, that is in a lawful 
 manner. Marriage is considered by all civilized nations as the source 
 of legitimacy; the qualities of husband and wife must be possessed 
 by the parents in order to make the offspring legitimate, where the 
 municipal law does not otherwise provide. See the Civil Code of 
 Lou. Arts. 203 to 216. In the same work it is declared that chil- 
 dren born out of marriage, except the fruit of an incestuous or
 
 II. 3-] LIFE ESTATES: CURTESY. 639 
 
 adulterous connection, may be legitimated by the subsequent mar- 
 riage of their father and mother, whenever they have legally acknowl- 
 edged them as their children. And children legitimated by a 
 subsequent marriage ha^e the same rights as if they were born during 
 marriage. Id. Arts. 217, 219. 
 
 Marriage then is regarded as the primary essential to legitimacy, 
 and the produce of an illicit connection are, in a legal sense, expur- 
 gated when the parents form such a union. The law regards such a 
 child for all purposes as if born in wedlock — the duties and obliga- 
 tions which such a child and its parents respectively owe to each 
 other, are precisely the same as if marriage had preceded its birth. 
 It can inherit and transmit the inheritance in consequence of its 
 paternity, to and from the relatives of the father. No matter from 
 what source the tenancy by the curtesy takes its origin or upon what 
 reasoning it originally rested, the rights and duties of the father in 
 respect to such a child are the same in all respects as if he had 
 been legitimate from his birth. 
 
 If what we have said be well founded, the father is under a legal as 
 well as moral obligation to provide for his legitimated offspring, 
 above what the law requires him to do for a bastard child. To 
 enable him to perform the duty of maintenance, we think he clearly 
 must, at common law, be entitled to the lands of which the wife was 
 seised during coverture. That this much favored estate by the 
 curtesy may be upheld and secured, the husband may, by a kind of 
 legal fiction, //t? re nata, be presumed to have married previous to 
 the birth of the child. This presumption could do harm to no one, 
 as it would not, of course, be carried so far as to divest interests 
 which the wife had passed from herself between the birth of the 
 child and the marriage. 
 
 Having attained a conclusion favorable to the plaintiff in error 
 upon the first point, we need not consider the second. Let the 
 judgment be reversed and the cause remanded. 1 
 
 (3.) To What Estates Curtesy is an Incident. 
 (a.) In general. 
 
 HOUGHTON v. HAPGOOD. 
 
 13 Pickering (Mass.), 154. — 1832. 
 
 [Reported herein at p. 24.] 
 
 1 In this case all of the children were born before the marriage of their 
 parents. In New York "An Act to legitimize children whose parents have 
 intermarried after the birth of such children " was passed in 1895, ch. 531, and 
 Is now § 18 of the Domestic Relations Law. — Ed.
 
 64O ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CM. I. 
 
 FERGUSON v. TWEEDY. 
 
 43 New York, 543. — 1871. 
 
 {Reported herein at p. 628.] 
 
 Howard, J., in WASS v. BUCKNAM. 
 
 38 Maine, 356. — 1854. 
 
 "Petition for partition." The entry of one tenant in common 
 into the common estate, and his subsequent possession is presumed 
 to be the entry and possession of all the co-tenants, unless otherwise 
 explained and controlled. Each has a right to the possession of the 
 whole estate; and such is the character of their estate that such pos- 
 session is necessary for the full enjoyment of their legal rights 
 respectively. So if one occupy the whole estate, it is not necessarily 
 nor by presumption of law, adverse to his co-tenants; but is in 
 accordance with his title, and consistent with his rights, and in sup- 
 port of their common title. He is presumed to be in of right, and 
 not for the purpose of excluding his co-tenants, or with the intention 
 of effecting an ouster or disseisin. 
 
 There is no satisfactory evidence that the respondents, and those 
 under whom they claim, ever asserted an exclusive right, or mani- 
 fested an intention to hold the estate adversely to their co-tenants. 
 The evidence of the character ot their occupation and improvement, 
 is consistent with the legal rights and interests of all concerned. 
 Whether there were any surplus rents and profits, or in what manner 
 the rents received were disposed of, does not appear. 
 
 Anna, the mother of the petitioners, was seised in her own right, 
 of her interest in the premises, in common with the co-tenant, under 
 whom the respondents claim, his seisin as co-tenant being as well 
 for her as himself; and upon her death, her husband became tenant 
 by the curtesy, and her children were entitled to the remainder, and 
 to her interest upon the termination of the particular estate of the 
 husband by his death. Jackson v. Sellick, 8 Johns, 202, 207; Davis 
 v. Nason, 1 Peters, 507, 50S; 4 Kent's Com. 29, 30. Where it is 
 shown that the rigid doctrine of the English law, requiring the wife 
 to be seized in fact and in deed, in order to entitle the husband to 
 his curtesy, has been modified and relaxed in favor of his right. 
 
 If, during the life of the husband, there was an adverse possession 
 of the estate for more than forty years, as claimed by the respond- 
 ents, it would not defeat the petitioners. So long as they were out 
 of possession, and without the right or power to acquire it, as was
 
 II. 3-] LIFE ESTATES: CURTESY. 641 
 
 the case during the tenancy of the husband, no possession of another 
 could be adverse to them, and no law of limitation could affect them. 
 The law will not suffer a party to be so far circumvented as to be 
 deprived of his interests under its sanctions, and for the imputed 
 laches of others, while it renders him incompetent to assert his 
 rights. 2 Salk. 423; Dow v. Danvers, 7 East, 321; Jackson v. 
 Sc/ioonmaker, 4 Johns, 401; Whitam v. Perkins, 2 Maine, 400." 
 
 {p.) Fees subject to executory /imitation. 
 
 HATFIELD v. SNEDEN. 
 
 54 New York, 280. — 1873. 
 
 Ejectment by an executory devisee against the husband of the 
 (deceased) owner of the estate which was subject to the executory 
 devise. Plaintiff succeeded below and defendant appeals to this 
 court. 
 
 Johnson, C. — Upon the true construction of the will of Mary 
 Wood, the estate of her daughter was a fee determinable upon the 
 happening of the events on which the devise to the plaintiff was to 
 take effect. The language of the primary devise is to the daughter 
 and her heirs forever. Then followed a clause which, in the event 
 of the return to the county of the son of the testatrix (the son was 
 supposed lost at sea), gave them the estate in equal shares. The 
 testatrix further directed that if the daughter should never have any 
 children, or a child living at her decease, if her son should not return 
 then the devised estate was to go to the plaintiff in fee. 
 
 In the first place it is to be observed that the earlier part of the 
 phrase in respect to the daughter's issue is inoperative and meaning- 
 less, taken in connection with the latter part of the same clause. If 
 the daughter had no child living at her decease, it was of no conse- 
 quence how many she might have had at an earlier period. If she 
 had a child living at her decease, then, of course, it could not be 
 true that she never had any children. The substance of the whole 
 clause is the same as if the testatrix had said, if my daughter, at her 
 decease, leaves no child living, and if my son does not return, then 
 the estate is to go to the plaintiff in fee. The concurrence of both 
 these events was necessary to carry the estate to the plaintiff. If 
 the son returned, Hatfield took nothing irrespective of the question 
 of the daughter leaving a child living. If the daughter left a child 
 living, and the son did not return, Hatfield took nothing, and her 
 issue living at her death would not have taken under the testatrix's 
 
 LAW OF PROP. IN LAND — 41
 
 642 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 will, but by descent from their mother, out of the fee devised to 
 her, which had not been defeated by the prescribed events. 
 
 The return of the son, and the death of the daughter, without 
 leaving a child surviving her, were events, which, from their nature, 
 would be determined within their two lives, and there is no objec- 
 tion on the ground of remoteness to the executory devise in favor 
 of the plaintiff. Nor is there any question that both events on which 
 the executory devise over to him was to take effect have been deter- 
 mined in his favor. The son, who had been absent three years in 
 October,, 185 1, when Mary Wood made her will, had not returned or 
 been heard of in March, 1861, when the daughter died without a sur- 
 viving child. There is, therefore, such a presumption of his death 
 that his return may be taken to have become impossible before the 
 death of the daughter. 
 
 Nothing then stands in the way of the plaintiff's recovery, unless 
 the defendant has an estate as tenant by the curtesy by reason of his 
 marriage to the daughter and the birth of their living child during 
 the marriage, who might, if she had outlived the mother, have 
 inherited the whole estate in question. The defendant was, there- 
 fore, entitled to curtesy if the estate of his wife was such that curtesy 
 could be had of it. The point thus presented has been the subject 
 of elaborate discussion in the text-books, and of criticism upon the 
 case of Buckworth v. T/u'rke//, decided by Lord Mansfield, and 
 reported in 4 Doug., 323, Collect. Jur. 332; 3 B. & P. 652 n., and 
 upon that of Moody v. King, 2 Bing. 447, which fully upholds it after 
 it had been spoken of with disapprobation by Lord Alvanley in Doe 
 v. Hutton, 3 B. & P. 643, 651. The discussion has been so full and 
 complete that it seems impossible to throw any additional light upon 
 the views and various arguments which have been adduced upon it. 
 The most accurate and comprehensive discussion which I have found 
 upon the subject is in Washburn's Law of Real Property, vol. 1, 
 §§ 11 to 21, of ch. 6, of book 1, pp. 131-135, and §§ 31 to ^^, of ch. 
 7, of the same book, pp. 212-217, in which the cases in England and 
 in the United States are stated and examined with ability. There 
 results a division of opinion in the courts which is irreconcilable, 
 and in respect to which, additional discussion is not likely to afford 
 advantage. To restate and reconsider this full discussion could 
 only serve to incumber, by a useless parade of cases, the already too 
 voluminous reports. The conclusion which is stated in the work 
 cited (p. 135, § 21) is: 
 
 " If the estate of the wife be an estate of inheritance, determin- 
 able by a limitation which operates to defeat her estate at common 
 law the right of curtesy is gone. But, if the limitation over be by
 
 II. 3-] LIFE ESTATES: CURTESY. 643 
 
 way of springing use, or executory devise, which takes effect at her 
 decease, thereby defeating or determining her original estate, before 
 its natural expiration, and substituting a new one in its place, which 
 could not be done at common law, the seisin and estate which she 
 had of the fee simple or tail will give the husband curtesy." It may 
 properly be added that the strong objection proposed to this doc- 
 trine by its critics, is to the consequence which they deem unreason- 
 able, that an estate determined according to the terms of its creation 
 should by the incident of curtesy or dower be prolonged. To this, 
 it seems to me a fair and complete answer to say, as Lord Coke says 
 in Paine s Case, 4 Coke R., part VIII. , Frazer's ed., p. 212, marg. 
 36 a, in answer to a similar difficulty as to curtesy after an estate 
 tail determined by the death of the wife, tenant in tail, and of her 
 issue, "the husband's estate shall continue, for it is not derived 
 merely out of the estate of the wife, but is created by law," " by 
 the privilege and benefit of the law tacite annexed to the gift." This 
 possible continuance of dower or curtesy as an incident of the estate 
 created may well be deemed to have been in the contemplation of 
 the testatrix, and is not an unreasonable or unnatural provision for 
 the possible husband or wife of one clothed with a fee simple not 
 defeasible, except upon death without children living. The only 
 authority in this State in conflict with this conclusion is a decision 
 at Special Term in Wcller v. Welter, 28 Barb. 588, in a case of dower, 
 which was put upon the ground of the criticism in Park on Dower, 
 upon Lord Mansfield's decision. The decision at General Term in 
 the present case seems to have gone upon the ground that the inter- 
 est given by the will of Mary Wood to her daughter was a life estate 
 only, with remainder to her issue, if any, as purchasers. This con- 
 struction we have seen could not have been maintained, Hatfield v. 
 Sneden, 42 Barb. 615. There is another aspect of this case which, 
 from the record, appears to have existed, or been in the highest 
 degree probable, viz., that the daughter was, at her mother's death, 
 her only heir-at-law. In that case she would have been in by 
 descent in fee, and the only effect of the devise would be to create 
 an executory limitation to Hatfield in case of the concurrence of 
 the two events on which the estate is given over. That she would 
 have been in by descent the preferable title, and not by the devise, 
 is obvious. Doe v. Timins, 1 B. & Aid. 530. In that case it would 
 be difficult to take from the estate in fee any of the incidents which 
 the law has attached to such an estate, and impossible to deny that 
 her husband was entitled to curtesy according to every definition 
 given in the books of such an estate. In this aspect we may take 
 it that the will is silent about the absent son and his possible return, 

 
 644 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 and silent about the daughter, except as both are mentioned in 
 limiting the executory devise. That no estate is devised either to 
 son or daughter, but that the only provision of the will is, if my son 
 shall not return, and my daughter shall die, leaving no child living, 
 then I devise to Hatfield. Under such a will the daughter would 
 take just what the will in question gave her, and for exactly the 
 same estate. Being thus in by descent, there is in the books not 
 only no warrant of authority, but not even a suggestion that the 
 estate in fee by descent can be deprived of any of the lawful inci- 
 dents belonging to estates in fee. It is not until those are exhausted 
 that the executory devise to Hatfield can take effect in possession. 
 
 It may be regarded in another aspect, equally pointing to the same 
 result. If the devise had created an estate tail (supposing such an 
 estate could at that date have been created in this State), and it had 
 been limited in tail general to the daughter, with remainder in fee 
 simple to the plaintiff, that estate in the event which has happened 
 would have had the same duration as the fee given to her in this 
 case. It would have terminated with her life, the issue in whom 
 alone it could have continued having died before her. Yet, in that 
 case, the husband's right to curtesy would have been clear beyond 
 all question. It would seem not a little singular that the greater 
 estate, the fee simple which this daughter took, either by descent or 
 devise, should not avail to give her husband that which he unques- 
 tionably would have taken had her estate been of an inferior quality 
 and less than a fee simple. 
 
 Again, leaving out of view all technical aspects of the case, and 
 looking only to the general intention of the testatrix, it is obvious 
 that she did not mean the plaintiff to take anything unless her two 
 children should be dead, and should have left no children living. 
 She knew that the son had no children, and was probably dead, btat 
 if he came back he and the daughter were each to have a half. If 
 he did not return, the daughter was to have the whole, but if she died 
 leaving no child, then, her descendants being extinct, the estate was 
 to go to plaintiff. Her purpose was not to lower the quality of her 
 daughter's estate or to deprive it of the ordinary incidents of estates 
 in fee, but only to give it over when there should remain no longer 
 any one to hold it representing her daughter. 
 
 The only remaining question is as to the effect of the married 
 woman's acts of 1848 and 1849 upon the law in respect to curtesy. 
 After sundry conflicting decisions, the law has become substantially 
 settled, that while those acts excluded the husband during life from 
 control of, or interference with, his wife's separate real and personal 
 estate, and gave to her alone the power of disposition by deed or
 
 II. 3-] LIFE ESTATES: CURTESY. 645 
 
 will, yet they left the husband the right of curtesy in her real prop- 
 erty and of administration for his own benefit of her personalty, in 
 so much as remained at her death undisposed of and unbequeathed 
 Matter of JFinne, 2 Lansing, 21; Ransom v. Nichols, 22 N. Y. no- 
 and Barnes v. Underwood, 47 Id. 351. 
 
 The judgment should be reversed, and judgment rendered for 
 defendant on the verdict, with costs. 
 
 (4.) How Curtesy May Be Defeated. 
 
 (a.) Alienage of husband. 
 
 Putman, J., IN FOSS V. CRISP. 
 
 20 Pickering (Mass.), 121, 124. — 1838. 
 
 It is found in the case, that Sarah, after the death of her husband 
 Varney, married Antonio Crisp, the tenant, by whom she had one 
 child, Antonio Crisp, Junior, now living: and that Antonio Crisp 
 was an alien, a native of Spain, and that he made his primary 
 declaration of an intent to become a citizen of the United States, in 
 the lifetime of Sarah, his wife, and was in fact naturalized after her 
 death. 
 
 And the question made for him is, whether or not he is entitled 
 to hold the premises as a tenant thereof by the curtesy. 
 
 In the case of Wilbur v. Tobey, 16 Pick. 179, the Chief Justice, 
 for the whole court, stated the law to be without doubt, " that an 
 alien can take real estate, by deed or devise, or other act of pur- 
 chase, but cannot hold against the commonwealth; he, therefore, 
 takes a defeasible estate, good against all except the commonwealth, 
 and good against them, until they institute proceedings, and obtain 
 a judgment by inquest of office. But an alien cannot take by act of 
 law, as descent, because the law will be deemed to do nothing in 
 vain, and, therefore, it will not cast the descent upon one who can- 
 not by law hold the estate." ' 
 
 The doctrine laid down by the Chief Justice is maintained by all 
 the books which treat of the subject. Indeed the counsel for the 
 tenant does not deny the general doctrine of the common law touch- 
 ing alienage, but courageously contends that it has been repealed by 
 our own statutes, and that the tenant is entitled to take and hold 
 the premises demanded, as a tenant by the curtesy. 
 
 He contends that by the Revised Stat., c. 60, § 17, the tenant is 
 clearly entitled. * * *
 
 646 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 The answer is very apparent. The statutes of the commonwealth 
 touching the descent of real estate, were intended to apply to citi- 
 zens, and not to aliens, unless they were particularly named. 
 
 (b.) Forfeiture for alienation of fee. 
 
 JACKSON ex dem. McCREA v. MANCIUS. 
 
 2 Wendell (N. Y.), 357. — 1829. 
 [Reported herein at p. 612.] 
 
 (c.) Annulment of marriage. Absolute divorce. 
 
 WHEELER v. HOTCHKISS. 
 10 Connecticut, 225. — 1S34. 
 
 Daggett, Ch. J. * * * Has the plaintiff a title to the land on 
 which the supposed trespass was committed? It was conveyed to 
 her, in 1808, while she was the lawful wife of William Wheeler, by 
 whom she had issue, born alive, before and since the conveyance. 
 His interest in this land by virtue of the coverture, was taken by 
 execution, in favor of one Judah Ransom, who entered into posses- 
 sion and occupied until the 15th of June, 1832; when he sold it to 
 the defendant, who has possessed it ever since. Subsequent to all 
 these events, in August, 1832, she obtained, by a decree of the 
 Superior Court, a divorce a vinculo matrimonii from her husband, 
 William Wheeler. What is the operation of this decree of divorce 
 upon the rights of the wife, and of the defendant, who holds by pur- 
 chase from the execution creditors? 
 
 It was decided, by the unanimous opinion of this court, in Starr 
 v. Pease et at., 8 Conn. Rep. 541, that the right of the husband in 
 the land of his wife, being an estate during coverture, is terminated 
 by a divorce a vinculo matrimonii j and that the rights of creditors to 
 the land dependent on coverture, were thereby affected and destroyed. 
 On further reflection, I am satisfied with that decision. It must, 
 then, control this case, unless a distinction can be sustained. The 
 < ounsel for the plaintiff insist on this fact, that in the case of Starr 
 v. Pease et at., it appeared, that Lewis, the husband, had no issue by 
 the wife; and in this case, Wheeler, the husband, had issue, born 
 aliv, before and after she became seised of the land; and hence, 
 they say, that he was tenant by the curtesy initiate. It has its 
 origin, they insist, not simply in the marriage, but in the birth of
 
 II. 3-] FREEHOLDS NOT OF INHERITANCE — LIFE ESTATES. 647 
 
 issue. He may then charge the estate; make a feoffment; hold 
 against the heir of the wife, after her death; against the remainder- 
 men or reversioner; and even against the king, in the case of attain- 
 der. And again, his estate is not terminated, by abandoning the 
 wife and living with another woman. For these several positions 
 they cite Co. Litt. 30; 2 Black. Com. 127; 1 Rop. on H. and W. 15, 
 45, 48; 1 Swift's Dig. 84; Sidney v. Sidney, 3 P. Wins. 276, 7. 
 
 Be it so, that by these authorities, these positions are sustained; 
 still all the authorities concur, that until the death of the wife, he 
 is only tenant by the curtesy initiate, and not consummate. The 
 death of the wife is one of the four essential requisites to constitute 
 a tenancy by the curtesy. 
 
 Now, the wife, Mary Wheeler, is still living, and the foundation 
 of the husband's estate is removed, by the dissolution of the mar- 
 riage. The coverture is dissolved by the wrong act of the husband. 
 By the authority of adjudged cases, as well as for the soundest 
 reasons, his estate could continue only during the coverture. 
 8 Conn. Rep. 545. I am, therefore, satisfied, that the right of the 
 wife, which was suspended during the marriage, is restored by the 
 divorce; and of course, the title to the land is now vested in 
 her. * * * 
 
 Judgment for defendant. 1 
 
 (d.) Wife's conveyance. 
 
 Vann, J., in ALBANY CO. SAVINGS BANK v. McCARTY. 
 
 149 New York, 71 (85). — 1896. 
 
 It is difficult to see how McCarty's signature to the mortgage 
 added anything to its effect, as, since the acts allowing married 
 women to sell and devise their lands, a husband's right as tenant 
 by the curtesy initiate, as to lands acquired since the passage of 
 those acts, consists simply of a status, which is never a vested right 
 and is not separately alienable during coverture, but may be modi- 
 fied or annulled at any time before it becomes consummate by the 
 death of the wife. Thurber v. Townsend, 22 N. Y. 517; Staples v. 
 Brown, 95 Mass. 64; Williams M.Baker, 71 Pa. St. 476; 1 Kerr on 
 Real Property, §§ 780, 831; Gerard's Titles to Real Estate, 4th ed. 
 79, 159. While merely initiate it is not an estate, but a simple pos- 
 sibility or expectancy like that of an heir apparent. Either may be 
 destroyed at will by the owner of the fee. As it is not coupled with 
 
 1 Contra, Gillespie v. IVorford, 2 Coldwell (Term.), 632, (1S65.)
 
 648 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 an interest in the property, it cannot be made the subject of a mort- 
 gage or transfer. "It is common learning in the law that a man 
 cannot grant or charge that which he hath not." Perkins, tit. Grant, 
 §65. Like " the next cast of a fisherman's net, " it involves a possi- 
 bility but no actual or potential interest. 1 Thomas on Mortgages, 
 § 136. While equity may enforce a contract expressly intended by 
 the parties to apply to after-acquired property, that principle does 
 not apply to a husband, who simply unites with his wife, the owner 
 of the fee, in a deed or mortgage. We think, therefore, that Mr. 
 McCarty was not disqualified as a witness because he was tenant by 
 the curtesy. 1 
 
 (t\) Disclait/ier. 
 
 WATSON v. WATSON. 
 
 13 Connecticut, 83. — 1839. 
 [Reported herein at p. 626.] 
 
 d. Dower. 
 
 (1.) Nature of Dower. 
 
 (a.) Dower inchoate. 
 
 HINCHCLIFFE v. SHEA. 
 
 103 New York, 153. — 1886. 
 
 Action against Margaret Shea to foreclose a mortgage executed 
 in 1878 by Martin Shea, and Margaret, his wife, upon lands of the 
 husband. Mrs. Shea had no interest in the lands, at that time, other 
 than her inchoate right of dower. In 1880 the premises were sold 
 under an execution upon a judgment recovered in 1874 against 
 Martin Shea. The judgment had been duly docketed. Martin 
 died in 1882, and shortly thereafter the purchaser conveyed the 
 premises to his widow. The trial court and the General Term held 
 the dower interest of the widow, subject to the mortgage. Defend- 
 ant appeals. 
 
 1 Where the wife can convey lands subject to the curtesy, but not free from it 
 the husband by joining in her deed would bar his curtesy. In some States 
 curtesy is abolished, in some it is made analogous to dower, in some the hus- 
 band lakes an absolute interest in a portion of his wife's lands on her death. 1 
 Stim. Am. Stat. Law, Art. 330. — Ki>.
 
 II. 3-] LIFE ESTATES : DOWER. 649 
 
 Andrews, J. — The joinder by a married woman with her husband 
 in a deed or mortgage of his lands, does not operate as to her by 
 way of passing an estate, but inures simply as a release to the 
 grantee of the husband, of her future contingent right of dower in 
 the granted or mortgaged premises, in aid of the title or interest ; 
 conveyed by his deed or mortgage. Her release attends the title 
 derived from the husband, and concludes her from afterward claim- 
 ing dower in the premises as against the grantee or mortgagee, so 
 long as there remains a subsisting title or interest, created by his 
 conveyance. But it is the generally recognized doctrine that when 
 the husband's deed is avoided, or ceases to operate, as when it is 
 set aside at the instance of creditors, or is defeated by a sale on 
 execution under a prior judgment, the wife is restored to her original 
 situation, and may, after the death of her husband, recover dower 
 as though she had never joined in the conveyance. Robinson v. 
 Bates, 3 Mete. 40; Malloney v. Horan, 49 N. Y. in ; Kitzmiller v. Van 
 Rensselaer, 10 Ohio St. 63; Little field v . Crocker, 30 Me. 192. 
 
 In short the law regards the act of the wife in joining in the deed 
 or mortgage, not as an alienation of an estate, but as a renunciation 
 of her inchoate right of dower in favor of the grantee or mortgagee 
 of her husband, so far as respects the title or interest created by his 
 conveyance. It follows, therefore, that her act in joining in the 
 conveyance, becomes a nullity whenever the title or interest to 
 which the renunciation is incident, is itself defeated. Scribner on 
 Dower, chap. 12, § 49. The wife's deed or mortgage of her hus- 
 band's lands cannot stand independently of the deed of her husband 
 when not executed in aid thereof, nor can she by joining with her 
 husband in a deed of lands to a stranger, in which she has a con- 
 tingent right of dower, but in which the husband has no present 
 interest, bar her contingent right. Marvin v. Smith, 46 N. Y. 571. 
 These principles are, we think, decisive of this case. The plaintiff's 
 mortgage has been defeated by the paramount title, derived under 
 the execution sale. It was the husband's mortgage and not the 
 mortgage of the wife, except for the limited and special purpose 
 indicated. The lien of the mortgage, as a charge on the lands of 
 the husband, has by the execution sale, been subverted and destroyed. 
 Nor can the security be converted into a mortgage of the widow's 
 dower, now consummate by the death of her husband. This would 
 be a perversion of its original purpose. Her act in signing the mort- 
 gage became a nullity on the extinguishment of the lien on the hus- 
 band's lands. If on the execution sale there had been a surplus 
 applicable to the mortgage, it might very well be held that the
 
 650 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. I. 
 
 widow could not be endowed therein, except after the mortgage had 
 been satisfied. 
 
 The surplus would represent in part the mortgaged premises. See 
 Elmendorf v . Lockwood, 57 N. Y. 322. 
 
 We think the authorities require a reversal of the judgment. 1 
 
 (b.) Dower consummate, — before " assignment." 
 
 PAYNE v. BECKER. 
 
 87 New York, 153. — 1SS1. 
 
 Action by a receiver in proceedings supplementary to execution 
 to procure (among other things) the admeasurement of the dower 
 of a widow (the judgment debtor) in lands of which her husband 
 died seised. 
 
 Danforth, J. — The appellant now argues that the action is in 
 the nature of a creditor's suit. If we yielded to this view it would 
 lead to a dismissal of the appeal, for in such an action the judgment 
 measures the matter in controversy. It is less than $500, and the 
 appeal has been taken as of right and not by allowance of the 
 Supreme Court. Code, § 191, sub. 3. It is, however, clearly a case 
 seeking admeasurement of the widow's dower and partition of the 
 lands described; thus affecting the title to real property or an 
 interest therein, and, therefore, not within the provisions of the code 
 referred to. The court below held that plaintiff's position did not 
 enable him to maintain an action for partition, and this is now con- 
 ceded by the appellant's counsel. One other ground of action 
 remains, and we are of opinion that the complaint does contain facts 
 sufficient for the admeasurement of the dower of the defendant. The 
 common law secured to the widow dower for her sustenance and the 
 sustenance and education of her children. Co. Litt. 30 b. But, 
 
 1 See also Marvin v. Clark, 46 N. Y. 571, and Wheeler v. h'irtland, 27 
 N. J. Eq. 534, reported, infra, p. 69S. In Moore v. City of New York, 8 
 N. Y. no, it is held that a fee taken by right of eminent domain is vested in 
 the city free and clear of the inchoate right of dower. Gardiner, J., says: 
 " Such a possibility [an inchoate right of dower] may be released, but it is not, 
 it is believed, the subject of grant or assignment, nor is it in any sense an inter- 
 est in real estate." So, in Barbour v. Barbour, 46 Me. 9, it is held that an 
 inchoate right of dower is subject to be modified, charged, or even abolished by 
 legislative enactment. The case of Moore v. Mew York, supra, has been distin- 
 guished and limited in subsequent New York cases. See, in particular, Simar 
 v < '■ma lav, 53 \\ Y. 298, and .1/. /.. /. Co, v. Shipman, tig N. Y. 324, but an 
 ini hoate right of dower is nowhere held to be an estate in the land. — Ed.
 
 II. s] LIFE ESTATES: DOWER. 65 1 
 
 although in modern times the right has been enlarged, and is con- 
 firmed by statute, the humane object of its allowance may be defeated 
 by her improvidence, and the right itself subjected to the claims of 
 creditors. This was held in Tompkins v. Fonda, 4 Paige, 448, where 
 the only question presented was whether a widow's right of dower 
 which had never been demanded or assigned could be reached by the 
 aid of a court of equity after the return of an execution unsatisfied. 
 
 In that case the court required the defendant to assign to the 
 receiver, for the purpose of the suit, her right of dower in certain 
 premises, and he was authorized to proceed in her name for the 
 recovery and assignment of it. After that, the receiver was, by the 
 terms of the decree, to be let into possession of the lands assigned, 
 and to receive the rents and profits until the further order of the 
 court. This case was carefully considered and although frequently 
 cited, Elmendorf v '. Lockwood, 57 N. Y. 322; Marvin v. Smith, 46 Id. 
 574; Stewart x. McMartin, 5 Barb. 438; Moak v. Coates, 33 Id, 498; 
 The Chautauqua County Bank v. White, 6 Id. 596, has met with no 
 disapproval. In Stewart v. McMartin, supra, a similar decree was 
 made, and while it was denied in Moak v. Coates, supra, it was upon 
 the ground that no assignment of the widow's interest had been made 
 to the receiver. Whether that was well put, needs no considera- 
 tion, because in the case before us the widow, by direction of the 
 judge, conveyed her right to the plaintiff. The other cases sustained 
 the general doctrine, and it must now be deemed settled, that, upon 
 the death of her husband, a widow has an absolute right to dower in 
 the lands of which he had been seised, and that this right or interest, 
 although resting in action, is liable in equity for her debts. In 
 the cases above cited, Tompkins v. Fonda, and Stewart v. McMartin, 
 the action for its admeasurement was required to be brought in the 
 widow's name, but since the code, that cannot be necessary. The 
 plaintiff takes as the assignee of a chose in action, Tompkins v. 
 Fonda, ante, and must sue therefore in his own name, § in, Old 
 Code; § 449, New Code. This was so held in Indiana under a code 
 of practice simdar to our own, Strong v. Clem, 12 Ind. 37; Jackson 
 v. A spell, 20 Johns. 410, and other like cases cited by the respondent 
 show, not that the assignment by the widow of her right of dower 
 is inalienable, but only that it could not be so aliened as to enable 
 the grantee to bring an action in his own name. 
 
 This was no doubt the rule at common law, but the code changed 
 it. In Strong v. Clem, supra, the court held, first that the dower 
 interest accruing to the widow in the real estate of her deceased hus- 
 band was, although unmeasured, assignable as a right in action ; and, 
 second, that under the code of practice in that State, it might be
 
 652 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 enforced in the name of the assignee. Such is the rule in equity, as 
 applied to all rights in action, 2 Story's Eq. Jur. §§ 1040-1055; and 
 that a claim for dower is within that rule is shown by the case of 
 Potter v. Everitt, 7 Ir. Eq. Cas. 152. The action was by the pur- 
 chaser of a widow's right of dower before assignment, against the 
 widow and the deceased husband's heirs-at-law, to compel them to 
 allot the dower and afterwards convey the land so allotted. The 
 plaintiff obtained the relief sought. Both upon principle and 
 authority, therefore, we must hold that the widow's right or claim of 
 dower is property; that, like every other species of property it may 
 be reached and applied to the payment of her debts; and this 
 principle once established, the power of the Supreme Court to carry 
 it into effect cannot be doubted. Whatever interest or right the 
 defendant had, accrued prior to the recovery of judgment, and she 
 was at that time, and at the time of the appointment of the plaintiff 
 as receiver, entitled to have dower assigned to her. The plaintiff 
 not only complied with the conditions made necessary by statute, 
 New Code, § 2468, before the property of the judgment debtor 
 should vest in him; but he took, by order of the judge, an assign- 
 ment of it from the plaintiff. Thus, by compliance with statutory 
 provisions and by the act of the defendant in pursuance of a judicial 
 mandate, he became entitled to all her property, whether real estate 
 or rights in action. But this avails nothing unless he can make his 
 title effectual and reduce the property to possession for the purpose 
 of his appointment. Upon the facts stated in the complaint, and 
 conceded to be true, we think he is entitled to reach that now in 
 question, and for that purpose may have the dower admeasured and 
 applied according to the prayer of the complaint.. 
 
 The order ami judgment appealed from should, therefore, be 
 reversed with costs, the demurrer overruled, and leave given to the 
 defendant to answer, upon payment of costs, within twenty days 
 after notice of the order to be entered upon the remittitur herein. 
 
 Judgment reversed. 1 
 
 'See Mut. Life Ins. Co. v. Shipman, 119 N. Y. 324, in which Ruger, Ch. J., 
 says: "Although this right [that of a widow to her dower], while unassigned, 
 did not giv-e her a legal estate in the lands, it is now well settled that it was a 
 legal interest and constituted property which was capable in equity of being 
 sold, transferred and mortgaged by the dowress, and liable to be reached by 
 creditors in payment of her debts." — Ed.
 
 II. 3-] LIFE ESTATES: DOWER. 653 
 
 (c.) Dowei- consummate, — after " assignment." 
 
 LAWRENCE v. MILLER. 
 
 2 New York, 245. — 1S49. 
 
 Action for rent. Defendant had been a tenant of plaintiff's hus- 
 band, and the premises having been set off to plaintiff as her dower 
 he had attorned to her. Later the husband's administrator, under 
 an order from the surrogate, had sold these premises for decedent's 
 debts, including plaintiff's interest therein. The purchaser leased 
 them to defendant, who now refuses to pay rent to plaintiff. Judg- 
 ment for defendant. Plaintiff appeals. 
 
 Gardiner, J. — At the time of the proceedings before the surro- 
 gate, the plaintiff had a vested legal estate in the premises assigned 
 to her, under the decree in chancery, absolute for her life unless her 
 right and title was subject to and qualified by the 31st section of the 
 act 2 R. S. 99. Com. Dig. tit. Dower, ch. 4, § 1 ; 1 R. S. 740, § 16; 
 4 Kent's Com. 69. This section provides that the conveyances exe- 
 cuted to purchasers upon a sale by order of the surrogate, " shall be 
 deemed to convey all the estate, right and interest in the premises 
 of the testator or intestate at the time of his death, free and dis- 
 charged from all claim for dower of the widow of said testator or 
 intestate." 
 
 Before assignment the widow has no estate in the lands of her 
 husband; her right is a mere chose in action which cannot be sold 
 upon execution at law. Until that time it is strictly a claim. 
 Greenleaf's Cruise, vol. I., tit. Dower, ch. 3, and note. The 
 ordinary signification of claim, is that of a right or title, actual or 
 supposed, to a debt, privilege or other thing in the possession of 
 another. Most persons distinguish readily enough between a claim 
 for dower and the estate itself in the actual possession of the person 
 entitled thereto. No one thinks of confounding a claim for posses- 
 sion, with possession in fact. Writers speak of possession, of the 
 right of possession, and the mere right. Each has its distinct and 
 appropriate meaning; they may exist in different individuals, 
 although their union in the same person is necessary to a perfect 
 title. A claim is the means by or through which the claimant 
 obtains the possession or enjoyment of the thing sought. It is the 
 means to an end, and not the end itself. It is true, that the word 
 may sometimes stand for the subject claimed. And so may cause for 
 effect. The distinction between the two is somewhat important, 
 notwithstanding.
 
 C54 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. (II. I. 
 
 It may be granted that if Mrs. Lawrence, after assignment, had 
 conveyed all her claim for dower to the premises in her possession, 
 she would have transferred all her interest to the purchaser. And 
 the same might be said of a person who owned his farm in fee simple. 
 But in those cases, courts would seek for the intent of the parties 
 in their situation and the state of the property, and modify the 
 primary and popular signification of the term used by them, so as to 
 give effect to the conveyance. Neither the parties nor their legal 
 advisers would, I apprehend, speak of selling a claim, when they 
 intended to dispose of a freehold estate in possession. The Legisla- 
 ture must be presumed to have used the word in question, in its 
 ordinary and popular sense, unless there is something in the subject 
 to which it is applied, or in other provisions of the act to indicate a 
 different design. And first as to the subject. Dower is perhaps, of 
 all others, the estate most favored in law and equity. 3 Brown's Ch. 
 264. It is distinctly recognized and protected in our statute, and a 
 presumption of a change in the law to the prejudice of the widow 
 is not to be indulged. Again, by the common law, although the 
 title of the widow is consummate upon the death of the husband, she 
 is not seised, but the heir; and she consequently claims through his 
 seisin. Cruise's Dig. tit. Dower, ch. 3, § 1. But by assignment of 
 dower, the seisin of the heir is defeated ab initio (Id. ch. 3, § 24) 
 and the dowress is in of the seisin of her husband, as of the time 
 when that seisin was first acquired. It is upon this principle that the 
 widow can elect under which seisin she will hold, where lands have 
 been sold after marriage and repurchased by the husband. Co. 
 Litt. 588, ^^, a., and note. For the same reason, she holds the 
 lands discharged of all incumbrances created subsequent to the mar- 
 riage, if the husband was then seised, because in the language of 
 Cruise, " her title has relation to the time of the marriage, and to 
 the seisin which her husband then had." Cruise's Dig. tit. Dower, 
 tit. 6, ch. 2, § 34. Her estate is a continuation of the husband's, 
 commencing at the time of the purchase, if the lands were acquired 
 after marriage. Id. tit. 6, ch. 2, § 17; Co. Litt. supra. 
 
 By the 31st section above quoted, the surrogate's deed conveyed 
 all the estate, right and interest of the husband at the time of his 
 death. That interest was in fee a possession, subject to all incum- 
 brances, the widow's claim for dower included. This estate 
 descended to the heir, and he also could transfer a fee in possession 
 before assignment to a purchaser. The object of the statute was to 
 extinguish the claim for dower, while the heir was seised of the same 
 estate, both in quantity and quality, that was in the ancestor at the 
 time <>f his death. It gives to the purchaser, under the surrogate's
 
 II. 3-] LIFE ESTATES: DOWER. 655 
 
 order, just what the intestate had at his death and no more, with 
 the exception of the discharge of dower. 
 
 But by the assignment of dower, the widow took a freehold estate, 
 the right to which accrued in 1825, when the land in question was 
 purchased by her husband, and her title by relation commenced at 
 that time. Viner's Abr. tit. Relation; 3 Cowen's R. 75; Cruise's 
 Dower, tit. 6, ch. 2, § 34. It displaced the seisin of the heir, and 
 that of the husband which was in him at the time of his death, and 
 from that period, turned the estate of the former into a reversion, 
 expectant upon the determination of her estate. When proceedings 
 for the sale were commenced before the surrogate, there were two 
 estates, one for life, and a reversion expectant upon its determina- 
 tion. They originated at different times, and under a different seisin ; 
 that of the heir at the death of the intestate, that of the widow 
 when the land was acquired. Together they would not make the 
 same estate of which the husband died seised. That was subject to 
 the claims of his creditors, and to a general claim for dower extend- 
 ing to all the lands of which he was seised during the marriage. 
 After assignment, the estate of the widow overreached the former 
 and extinguished the latter. The difference in interest is still more 
 striking in those cases where the estate is largely encumbered. The 
 widow's estate might be valuable, while the whole fee of which the 
 ancestor and the heir were seised, might not be worth the expense 
 of a sale. 
 
 According to the views of the defendant, the 31st section annuls 
 the estate of the widow which she held as purchaser under a title 
 reaching back to 1825, in favor of debts subsequently contracted, 
 and revives her general claim against all the lands of the testator, 
 which the statute of dower declares shall be forever barred by the 
 assignment. 1 R. S. 742, § 23. This claim, extending to all the 
 lands of the intestate, was the evil which the Legislature intended to 
 suppress, because it would probably always depreciate the value of 
 the whole real estate beyond the value of the widow's interest. 
 This would occasion loss to the estate and to creditors without a 
 corresponding benefit to any one. The 31st section, therefore, very 
 properly afforded a remedy by substituting a pecuniary recompense 
 for a claim thus indefinite. But when dower is assigned, the reason 
 for the provisions cease. The purchaser knows what he is buying, 
 and the law in directing compensation, assumes that the value of 
 the widow's claim can be accurately calculated. 
 
 Again, by section 5, the order to show cause must be directed to 
 all persons interested in the estate. Prior to the assignment, the 
 widow's claim is upon all the real estate of the intestate; she is then
 
 656 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 interested in the estate, and entitled to the notice provided by the 
 
 6th and 7th sections. After assignment her interest ceases, and she 
 
 is then remitted to her dower which she holds by title paramount to 
 
 the heirs and the creditors of her husband. By the 10th section, the 
 
 heir or devisee of the decedent, or any person claiming under them, 
 
 may contest the facts alleged by the executor or administrator, etc. 
 
 The widow, before assignment, claims under and through the seisin 
 
 of the heir, and may litigate; after assignment, she is in of the estate 
 
 and seisin of the husband, and cannot. If she is not entitled to 
 
 notice, nor the right to litigate, she cannot be bound by the decree 
 
 cf the surrogate. Without adverting to other parts of the act, it ts 
 
 sufficient to say, that they do not conflict with the construction given 
 
 to the 31st section. 
 
 I think the authority of the surrogate to direct a sale, " free from 
 
 all claim of dower," must be limited to cases where the heir upon 
 
 whom the law casts the estate of the intestate could convey a fee in 
 
 possession. In other words, it must be exercised, if at all, before 
 
 the assignment of dower. Upon this construction, full effect can be 
 
 given to the whole section; no estate is displaced; the tenants of 
 
 the dowress are protected; she may bequeath the crops on the land 
 
 holden by her. 1 R. S. 744, § 25. The provisions of this act 
 
 harmonize with those of the statute concerning dower, and the only 
 
 change is, that a claim, a chose in action, is made the subject of 
 
 pecuniary compensation out of the proceeds of the land to which it 
 
 relates. 
 
 The judgment should be reversed. 
 
 (2.) Essentials for Dower. 
 (ti.) Lawful ?narriage. 
 
 Bennett, J., in JONES v. JONES. 
 
 28 Arkansas, 19. — 1872. 
 
 Was Delilah Jones the widow of Elbert Jones? This inquiry is an 
 important one, as she is asking the court to award her dower, and 
 marriage is an essential prerequisite to the right of dower. In order 
 to entitle a woman to this provision, she must answer the descrip- 
 tion of a lawful wife. 1 Scribner on Dower, ch. 3, sec. 1. Marriage, 
 under our statute, is considered in law a civil contract, to which the 
 ( "iisent of the parties, capable in law of contracting, is necessary. 
 Marriage has been regulated by legislative enactments, by defining 
 the character and relations of parties who may marry, so as to pre-
 
 II. 3-] LIFE ESTATES: DOWER. 657 
 
 vent a conflict of duties and to preserve the purity of families; by 
 prescribing the solemnities by which the contract shall be executed, 
 so as to guard against fraud, surprise and seduction; by annexing 
 civil rights to the parties and their issue, to encourage marriage and 
 to discountenance wanton and lascivious cohabitation; by declaring 
 the causes and the judicature for rescinding the contract, when the 
 conduct of either party and the interest of the State authorize disso- 
 lution. A lawful marriage may be defined to be a contract made by 
 parties authorized by law to contract, and solemnized in the manner 
 prescribed by law. To constitute a lawful wife, there must have 
 been a lawful marriage. It is generally considered in the absence 
 of any positive statute declaring that all marriages, not celebrated 
 in the prescribed manner, shall be absolutely void, or that none but 
 certain magistrates or ministers shall solemnize a marriage, any 
 marriage regularly made according to the common law, without 
 observing the statute regulation, would still be a valid marriage. 
 2 Greenleaf, Ev. 417; 2 Kent. Com. 90, 91; Reeve's Dom. Rel. 196, 
 200, 290; Partem v. Harvey, 1 Gray, 119; Londonderry v. Chester, 2 
 N. H. 268; Chiseldine v. Brewer, 1 Har. & McH. 152; Hantz v. 
 Sealey, 6 Binn. 405. 
 
 A marriage celebrated in any country, according to its own laws, 
 is recognized and valid in any country whose laws or policy it may 
 not contravene. 
 
 The proof of marriage, as of other issues, is either by direct evi- 
 dence establishing the fact, or by evidence of collateral facts and cir- 
 cumstances from which its existence may be inferred. 
 
 SMITH v. SMITH. 
 
 5 Ohio State, 32. — 1855. 
 
 Petition for dower. Ruth Atherton married one Dennis in 1817 
 or 1818. They soon thereafter separated and each remarried, — 
 Ruth marrying one David Smith. Smith, during the coverture, was 
 seised of certain lands which he conveyed to the defendant, Chester 
 Smith, Ruth not joining in the conveyance. David is now dead and 
 Ruth asks to have dower set off to her. Case reserved. 
 
 Swan, J. — It seems to be conceded by the counsel for the com- 
 plainant, Ruth Smith, that if her marriage to Smith was absolutely 
 void, she is not entitled to dower in his estate. Such is undoubtedly 
 the law; and it is equally well settled, that a second marriage, as in 
 this case, while the first husband was living, is absolutely void, 
 
 LAW OF PROP. IN LAND — 42
 
 658 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. I 
 
 unless the legislation of this State has rendered such second mar- 
 riage voidable only. 
 
 It is said that the statute which authorizes proceedings to obtain 
 a divorce, " where either of the parties had a former husband or 
 wife living at the time of solemnizing the second marriage, Swan's 
 Stat. 325, § 1, does, constructively, render such second marriage 
 voidable only. The fact of a prior marriage may be one of doubt; 
 and hence this provision permits parties to have the subject judicially 
 investigated and determined. Another object of this provision was, 
 probably, to give alimony to the second wife of a man who had a 
 former wife living. Besides, to render such second marriage valid, 
 or voidable only, until decree of divorce, would require distinct and 
 positive legislation. 
 
 No presumptive proof of divorce between Dennis and his wife 
 
 exists. Indeed, a divorce being a judicial proceeding of record, we 
 
 do not see how such a presumption could arise without some proof, 
 
 There is none. 
 
 The petition must be dismissed. 
 
 (3.) Seisin of husbatid during coverture. 
 
 DURANDO v. DURANDO. 
 
 23 New York, 331. — 1861. 
 
 Testator devised his lands to his widow for life, remainder to 
 his children of whom petitioner's husband was one. During the 
 continuance of the life estate part of the lands were taken under 
 the exercise of the right of eminent domain and the moneys received 
 therefor were paid into court. Petitioner's husband died in 1853, 
 the life tenant in i860. Petitioner asks a share of the money in 
 court. Petition denied and the appeal. 
 
 Selden, J. — To entitle a widow to dower, the husband must 
 have been seised, either in fact or in law, of an estate of inheritance 
 in the land at some time during the coverture. This rule is inflexi- 
 ble. When, therefore, the husband had, previous to his death, 
 simply a reversion in fee, or a vested remainder expectant upon an 
 estate for life, his widow cannot be endowed. As in such a case the 
 husband has never had either possession or any present right of posses- 
 sion, he cannot be said to have had a seisin of any sort, either actual 
 or legal. It is conceded by the counsel for the appellant, that this rule 
 applies where lands descend to the husband, subject to the right of 
 dower of the widow of the ancestor; as if a father die intestate, leav-
 
 II. 3-] LIFE ESTATES: DOWER. 659 
 
 ing a widow and a son, and the widow is endowed, it is not claimed 
 that the widow of the son, in case of his death, in the lifetime of his 
 father's widow, could ever be endowed of the lands which had been 
 assigned for the dower of the latter. But it is insisted, that where 
 the estate comes to the husband, not by inheritance but by purchase, 
 the widow may be endowed, notwithstanding her husband has had 
 only a remainder in the land. 
 
 The distinction, or rather the idea, that it applies to this case, is 
 evidently founded upon a misapprehension. It is true, that where 
 a father conveys lands to a son, subject to the contingent right of 
 the wife of the father to dower, if the father dies, and his widow is 
 endowed, and before her death the son dies leaving a widow, the 
 latter, if she survive the widow of the father, is entitled to dower in 
 the lands of which such widow had previously been endowed. But 
 the reason is, not because there is any distinction between a vested 
 remainder, which comes by descent, and one created by deed, but 
 because in the case supposed, the son becomes actually seised of the 
 estate in the lifetime of the father; and this seisin is sufficient to 
 entitle his widow to dower, although his estate is contingent, and 
 is defeated by the death of the father leaving a widow. 
 
 I can discover no other foundation for the position assumed by 
 the appellant's counsel, than the inapt use by Coke of a single word 
 in a passage which I will quote. In speaking on this subject he 
 says: " For example, if there be grandfather, father and son, and 
 the grandfather is seised of three acres of land in fee, and taketh 
 wife and dieth, this land descendeth to the father who dieth either 
 before or after entry, now is the wife of the father dowable. The 
 father dieth, and the wife of the grandfather is endowed of one acre 
 and dieth, the wife of the father shall be endowed only of the two 
 acres residue, for the dower of the grandmother is paramount the 
 title of the wife of the father, and the seisin of the father which 
 descended to him (be it in law or actual) is defeated; and now upon 
 the matter the father had but a reversion, expectant upon a freehold, 
 and, in that case, dos de dote peti non debet; although the wife of the 
 grandfather dieth, leaving the father's wife. And here note a 
 diversity between a descent and a purchase. For in the case afore- 
 said, if the grandfather had enfeoffed the father, or made a gift in 
 tail unto him, then in the case above said, the wife of the father, 
 after the decease of the grandfather's wife, should have endowed of 
 that part assigned to the grandmother; and the reason of this 
 diversity is, for that the seisin that descended after the decease of 
 the grandfather to the father is avoided by the endowment of the 
 grandmother, whose title was consummate by the death of the
 
 660 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. I. 
 
 grandfather; but in the case of the purchase or gift, that took effect 
 in the life of the grandfather (before the title of dower of the grand- 
 mother was consummate), is not defeated, but only quoad the grand- 
 mother, and in that case there shall be dos de dote." Coke, Litt. 
 31 a, b. 
 
 The word purchase, which occurs in this paragraph, when used in 
 contradistinction to descent, includes the obtaining of title by devise 
 as well as by deed. But the whole reasoning of the passage quoted 
 shows that the effect attributed to a purchase follows only when the 
 land is conveyed by deed. The sole reason given for the distinction 
 is, that a purchase takes effect in the lifetime of the vendor, and the 
 purchaser becomes at once seised of a defeasible estate; while in 
 case of a descent, the heir is never seised of the lands assigned for 
 dower during the life of the widow, as her title relates back in all 
 cases to the death of the husband. Now, in this respect, there is 
 not the slightest difference between a descent subject to dower, and 
 a devise subject either to dower or any other life-estate. In either 
 case the freehold passes directly to the tenant of the life estate, upon 
 the death of the ancestor or devisor, and neither the heir nor the 
 devisee of the remainder can have any seisin until the death of such 
 tenant. 
 
 The distinction is stated in terms perfectly accurate and precise 
 by the Chancellor in the case of Dunham v. Osbom, 7 Paige, 634; but 
 in the subsequent case of Cregier, 1 Barb. Ch. 598, he uses the word 
 purchase as it is used by Lord Cok*e, and states the distinction as 
 being between estates which came to the husband by descent, and 
 those which came by purchase, subject to dower. This inaccuracy 
 in the use of the word purchase, by both Lord Coke and Chancellor 
 Walworth, is perfectly palpable; but as it has led to the bringing of 
 so clear a case as the present to this court, it may be well to advert 
 to and explain it. That it is this which has misled the counsel for 
 the appellant is obvious, as he commences his citations in support 
 of his doctrine with the Year Book (5 Edw. III., title Voucher, 249), 
 which appears to be the very authority upon which Lord Coke based 
 his distinction. None of the other authorities cited by the counsel 
 have any tendency to support his position, and it is very clear that 
 it is untenable. The precise question was decided by the Supreme 
 Court of Massachusetts in the case of Eldridge v. Forrestal, 7 Mass. 
 253, and in Beekman v. Hudson, 20 Wend. 53, it was assumed as per- 
 fectly clear, that in such a case the widow was not entitled to dower. 
 
 There can be no pretense that the widow is entitled to the fund in 
 question as personal estate, under the statute of distributions. The 
 money is the product of the land taken, and must belong to the per-
 
 II 3-J LIFE ESTATES : DOWER. 66l 
 
 sons entitled to the land which it represents, and out of which it 
 arose. Besides, the title had already vested in the heirs when the 
 proceedings for extending the street were commenced, and if the 
 widow had then no right to dower in the premises, she of course 
 can have no right to the money even if it is to be considered as 
 personal estate. 
 
 The judgment of the Supreme Court must be affirmed. 
 
 PHELPS v. PHELPS. 
 143 New York, 197. — 1894. 
 
 Gray, J. — This is an action, in equity, brought by a wife to 
 establish and protect an inchoate right of dower in certain lands 
 now held by, and in the name of, a third person; but which were 
 paid for by the plaintiff's husband, and, also, to establish her dower 
 right in the proceeds of the sale of certain other lands similarly pur- 
 chased and held. Her complaint having been demurred to for insuffi- 
 ciency to state a cause of action, we must assume all its averments 
 of material facts to be true. After alleging a marriage and the birth 
 of children, she sets forth a separation between herself and her hus- 
 band, caused by his neglect, wrong conduct and desertion. She 
 alleges that since his desertion of her, with the intent and purpose 
 of defrauding her of her dower rights in his real estate, her husband 
 had purchased various pieces of land, and caused the title to be 
 taken in the name of one Lewis, as a dummy in the transaction, 
 under an agreement and arrangement with the said Lewis that the 
 said defendant (meaning her husband), " should receive all the 
 benefit of and have full control over said property, which agreement 
 was in writing." 
 
 She alleges that her husband " retained and exercises full pos- 
 session and control over the same," and that when he desired to 
 dispose of any of the property, he would " under the agreement and 
 arrangement with said Lewis present the deeds and papers to him, 
 which said Lewis, under his agreement, was bound to execute; " 
 that all of the property, with the exception of one piece, was thus 
 disposed of by her husband " to bona fide purchasers, without notice 
 of the dower interest of this plaintiff," and that her husband 
 " received the full amount of the purchase money paid for the same, 
 for his own use and benefit." She then proceeds to describe the 
 piece remaining unsold, which she alleges to have been conveyed by 
 Lewis, at the request of her husband, without consideration, to the 
 defendant Goodwin, a partner of her husband, " who was to hold
 
 662 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 the same under the same agreement that said Lewis had with her 
 husband," and as to this property the plaintiff charges her husband 
 to be the real owner. She prays for a decree, which will adjudge, 
 because of these transactions and their fraudulent purpose, that the 
 proceeds received by her husband upon the sale of any of this prop- 
 erty " are still real property and that this plaintiff has an inchoate 
 right of dower in the same; " that her husband be ordered to pay 
 one-third of these proceeds into court, there to be held and invested, 
 etc., etc., and that as to the land held by Goodwin, it be adjudged 
 to be subject to her inchoate right of dower, etc., etc. 
 
 With this as a sufficient summary of the material facts of her com- 
 plaint, we are confronted with the pretended cause of action, for 
 which I am unable to find any sufficient basis in our Revised Statutes; 
 to which we must look for the authority for the claim of a wife to 
 be entitled to dower in lands. To entitle the wife to dower the 
 husband must be seised, either in fact or in law, of a present free- 
 hold in the premises, as well as of an estate of inheritance. That 
 proposition follows from the language of the section in the Revised 
 Statutes, that " a widow shall be endowed of the third part of all 
 the lands, whereof her husband was seised of an estate of inheritance 
 at any time during marriage." 
 
 How can seisin be predicated of the plaintiff's husband with 
 respect to the lands purchased through the use of his moneys, but 
 never conveyed, nor agreed to be conveyed, to him? The plaintiff, 
 certainly, had no control over the use which her husband chose to 
 make of his personal estate. That was his absolutely and she had 
 no interest in it which she could assert; beyond a claim upon him 
 for the support of herself and their children. He might have chosen 
 to use it in the acquisition of any of the many kinds of personal 
 property, without any right on the part of his wife to complain of, 
 or to interfere in, his acts. Instead of confining his use of his 
 moneys to purchases of personal property, or instead of putting 
 them into land and of taking title to himself, he has adopted 
 methods set forth in this complaint for its use, and they were effectual 
 to prevent the vesting in him of any legal estate in the realty, 
 although paid for with his moneys. He, undoubtedly, intended to 
 prevent his wife from acquiring any dower right in the real property, 
 in the purchase and sale of which he was dealing through his friend; 
 but, unless he was actually seised, or unless he had such a seisin at 
 law as would entitle him to its possession, it is difficult to see how 
 his wife could claim that she ever gained any dower interest. Her 
 complaint seems to concede that her husband acquired no legal title, 
 unless through the agreement alleged to have existed between him
 
 II. 3-] LIFE ESTATES: DOWER. 663 
 
 and Lewis. But that agreement is not one which could operate to 
 vest in her husband any right to the actual possession of the prop- 
 erty conveyed to Lewis. The agreement is purely executory in its 
 nature and, if not complied with by Lewis, would only have given 
 to Phelps a cause of action in damages for its breach. Taken at its 
 strongest meaning, it cannot be said to import any grant by Lewis 
 of any interest in the property to be acquired by him, through which 
 a legal estate would arise in favor of Phelps. It does not rise 
 beyond the promise of Lewis that Phelps should have the full con- 
 trol and enjoyment of whatever real property he might become vested 
 with the title to, under their arrangement. Phelps' rights rested in 
 the mere promise of Lewis. It is manifest, from the statute, that 
 notwithstanding the consideration for the grant of the real property 
 to Lewis was paid by Phelps, the title vested in the grantee, free of 
 all claims, except the claim which creditors might have to assert 
 that the transaction was fraudulent as to them. See §§ 51 and 52 
 of the article on Uses and Trusts. 1 It is needless to argue that 
 wives cannot come under that classification. 
 
 The position of a wife, with respect to her husband's property, is 
 limited by the Revised Statutes, and unless she can bring herself 
 within their limitations, she" is without the right to assert any claim 
 to it. Concededly, in this case, the husband was never seised of 
 the property in question and the agreement set forth, and which is 
 claimed to confer upon him its real ownership, could create no inter- 
 est, or right to possession. If it were possible to assume a right in 
 Phelps, based upon the agreement, to maintain an action for the 
 reconveyance by Lewis to himself of the lands, such an assumption 
 clearly negatives any idea of the existence of a legal estate in Phelps. 
 We may assume, as it is alleged, that he was to receive the benefits 
 arising from the lands; but if there was a beneficial use, it must be 
 united with a right to the possession (a right which is not alleged 
 here), before we can perceive the existence of any estate, upon which 
 a claim of dower may be impressed. 
 
 It is not pretended that any precedent exists in the decisions of 
 the courts of this State for the maintenance of this action. 
 
 So far as my examination has gone, I am unable to find in the 
 adjudged cases any support for the proposition that a right to dower 
 can be asserted, except with respect to real property of which the 
 husband was actually seised during his lifetime, or to the actual 
 seisin of which he had a legal right. The cases referred to by the 
 respondent's counsel in the reports of the courts of other States are 
 
 1 See § 74 of the New York " Real Property Law." — Ed.
 
 664 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 inapplicable in the construction of the statutes of our own State. 
 They may, or may not, turn upon the wording of particular statutes; 
 however it may be they cannot control when our own statutes are 
 in question. 
 
 It results from my consideration of the case, that the order and 
 judgment below should be reversed and that an order should be 
 entered dismissing the complaint, with costs in all the courts to 
 these appellants. 
 
 FONTAINE v. BOATMEN'S SAVINGS INSTITUTION. 
 
 57 Missouri, 552. — 1874. 
 
 Suit for the assignment of dower. 
 
 Plaintiff was the wife of Felix Fontaine, who died in 1849. During 
 the coverture one Louis Provenchere, and his wife, conveyed the 
 premises in question, in fee, to Fontaine, who at once conveyed the 
 same to one Derouin, in trust for Provenchere's wife. Plaintiff did 
 not join in the last conveyance. The title has passed to defendant 
 by several intermediate conveyances. Judgment below for defend- 
 ant. Plaintiff brings error. 
 
 Wagner, J. * * * The case was tried before the court sitting 
 as a jury; and at the close of the testimony plaintiff requested the 
 court to declare the law to be, that on the evidence and admission 
 in the cause plaintiff was entitled to dower in the land described in 
 the petition. This was refused, and on the application of defendant 
 the court gave the converse of the proposition, and instructed that 
 under the evidence in the case the plaintiff was not entitled to 
 recover. * * * The question in the case, therefore, is whether 
 the seisin of Fontaine, the plaintiff's husband, in the estate was of 
 such a beneficial interest as would entitle her to dower, or whether 
 it was merely transitory? Perhaps no principle of the law is more 
 firmly or thoroughly established than that where the seisin of the 
 husband is for a transitory instant only, as where the same act which 
 gives him the estate also conveys it out of him, or where he is the 
 mere conduit employed to pass the title to a third person, no right 
 of dower passes. 1 Scrib. Dow. 259. To this principle may also be 
 referred the well settled doctrine that where a deed for lands is 
 executed, and simultaneously therewith the purchaser gives back a 
 mortgage upon the same lands to secure any portion of the purchase 
 money, he acquires, as against the holder of the mortgage, no such 
 Beisin as will entitle his wife to dower. The deed and mortgage, 
 although in themselves separate and distinct instruments, neverthe-
 
 II. 3-] LIFE ESTATES : DOWER. 665 
 
 less, under the circumstances are regarded as parts of the same con- 
 tract. They take effect at the same time, and the giving of the deed 
 upon the one part, and of the mortgage upon the other, is held to 
 constitute but a single act, and to result in clothing the purchaser 
 with seisin for a transitory instant only. Id. 261 and note 2. 
 
 It is not even essential to the application of this rule that the two 
 instruments should correspond in date, provided they are delivered 
 at the same time, as they take effect from the time of delivery only. 
 And it is competent to show by parol at what time the delivery was 
 actually made. Mayberry v. Brien, 15 Pet. 2 'i; Reed v. Morrison, 12 
 S. & R. 18; 1 Washb. Real Prop. 178. But wherever there is a 
 beneficial seisin in the husband, no matter how short the time, it will 
 be sufficient to clothe the wife with the right of dower. In Grant 
 v. Dodge, 43 Me. ^89, the above rules were recognized, but it was 
 said that if the tenant would defeat the demandant's claim of dower, 
 the burden would be upon him to prove that the deed and mortgage 
 relied on constituted one transaction. But in a subsequent case, in 
 the same court, Moore v. Rollins, 45 Me. 493, it was held that where 
 one has received a deed of an estate and given back a mortgage of 
 the same to secure the purchase money, if the deeds are of the same 
 date, have the same attesting witnesses, and are acknowledged 
 before the same magistrate, and the notes secured are of the same 
 date with the mortgage, in the absence of all proof to the con- 
 trary, the deeds will be regarded as one and the same transaction. 
 [T/tc ease of McGowan v. Smith, 44 Barb. 233, is also cited and con- 
 strued, ] * * * 
 
 KITTLE v. VAN DYCK. 
 1 Sandford's Chancery (N. Y.), 76. — 1843. 
 
 The Assistant Vice-Chancellor. — * * * Before disposing of 
 the case on this point, I will examine another question which was 
 fully discussed, and the determination of which may be a guide to 
 both parties in the further progress of the suit: viz., the extent of 
 the right of dower of Magdalen Van Dyck in the premises, and 
 depending upon that, her interest in the event of the suit and her 
 standing as a witness. 
 
 The bond and mortgage were executed on the same day, and no 
 doubt at the same time, that the deed was given and the money paid 
 to Crandell. In Gilliam v. Moore, 4 Leigh's R. 30, where the verdict 
 found that the deed and mortgage were executed on the same day, 
 the court say they are bound to infer that they were given at the
 
 666 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 same time, and were parts of one and the same transaction. The 
 complainant insists that the bond and mortgage were given for 
 the purchase money of the farm, and that, therefore, Magdalen 
 Van Dyck's dower therein is subject to the mortgage; that she is 
 dowable of the equity of redemption only, while she claims dower in 
 the whole, and denies that the mortgage was given for the purchase 
 money within the meaning of the equitable principle on that subject 
 which is now embodied in our statute. 
 
 i Rev. Stat. 740, 1, § 5, enacts, that " where a husband shall pur- 
 chase lands during coverture, and shall at the same time mortgage 
 his estate in such lands to secure the payment of the purchase money, 
 his widow shall not be entitled to dower out of such lands as against 
 the mortgagee or those claiming under him, although she shall not 
 have united in such mortgage, but she shall be entitled to her dower 
 as against all other persons." ' 
 
 As this provision was prospective, it does not affect the purchase 
 and mortgage in question, which were made and given before the 
 adoption of the Revised Statutes. The Legislature in this section, 
 it is supposed, intended to enact the existing rule of law. This 
 appears from the report of the revisers accompanying the section. 
 
 Chancellor Kent, in his commentaries, says that the transitory 
 seisin for an instant, " when the husband takes a conveyance in fee, 
 and at the same time mortgages the land back to the grantor or to 
 a third person, to secure the purchase money in whole or in part," 
 is not sufficient to give the wife dower. 4 Kent's Com. 38, 39, 2d ed. 
 
 No reported adjudication that I have met with in the courts of 
 this State, goes as far as the learned commentator has declared the 
 principle to extend. The leading case is Stow v. Tift, 15 Johns. R. 
 462. In that case, as well as the subsequent one of Jackson d. Bruyn 
 v. De Witt, 6 Cowen, 316, the mortgage for the purchase money was 
 given to the grantor. This was the fact also in the following cases 
 in other States where the same decision was made: Boyce v. Rut- 
 ledge, 1 Bay's R. 312; Trustees of Brazier v. Center, 1 McCord's Ch. 
 R. 270, 279; Gilliam v. Moore, 4 Leigh, ubi supra. And Holbrook 
 v. Binney, 4 Mass. 566. 
 
 The principle on which the doctrine rests, clearly extends to the 
 case of mortgages to third persons. In the judgment of the court, 
 as pronounced by Judge Spencer in Stow v. Tift, it is placed on the 
 ground that the seisin of the husband is an instantaneous seisin only; 
 that the estate passes in to him and is drawn out of him, quasi 11110 
 ftatu, and by one and the same act. Or as expressed by Mr. Park 
 in his Treatise on the Law of Dower, page 43, " The seisin of the 
 
 1 See § 173. N. Y. R. P. L. — Ed.
 
 II. 3-] LIFE ESTATES: DOWER. 667 
 
 husband is for a transitory instant; that is to say, where the same 
 act which gives him the estate, conveys it out of him again." Chief 
 Justice Parsons in Holbrook v. Finney, takes the same ground. It 
 can make no possible difference in the duration or the transit of this 
 seisin, whether the mortgage be given to the grantor or to a third 
 person. In either event, he gains the estate in the same instant, 
 and by the same act, which conveys it out of him. 
 
 Now, in this case, the substance of the transaction was this: We 
 will suppose the three parties, Crandell and Maria and Henry P. Van 
 Dyck together; and if they were not all present, some one must have 
 acted for the absentee. Crandell delivered his deed to Henry. 
 Maria Van Dyck paid the $2,000 to Crandell, and Henry delivered 
 his bond and mortgage to her for the $2,000. Each of these events 
 was in consideration of the other. They were inseparably connected 
 by the previous contract between the parties, and in contemplation 
 of law, were all accomplished at the same moment of time. The 
 seisin of Henry was but for an instant. He received it by means of 
 the money of his mother, paid to Crandell, and it passed out of him 
 in the same instant, by the mortgage to secure that money. 
 
 If Henry had executed the mortgage to Crandell, and he at the 
 same time assigned it to Maria V. D., and received the $2,000 from 
 her, or from Henry, he having borrowed it of her, no question 
 would have been made. Wherein does the transaction before me 
 differ from that mode, in any matter of substance ? 
 
 If in fact the money were paid by Maria to Henry, and by Henry 
 to Crandell, it would make no difference in the result. It was all 
 done in pursuance of the previous agreement. The loan and pur- 
 chase were parts of the same transaction. Without the one, the 
 other would not have been made, and they were consummated 
 together. 
 
 The cases already cited show the uniform application of the 
 principle of American law, which excludes dower, as against a mort- 
 gage given for the purchase money, to the vendor. The two follow- 
 ing go the whole length of the case under consideration. 
 
 In Clark v. Munroe, 14 Mass. 351, one Andrews conveyed the 
 premises to W. Clark, who at the same time mortgaged them to one 
 Winthrop. The consideration of the deed from Andrews to W. 
 Clark was the property of Winthrop, and the mortgage was given to 
 him in pursuance of a previous agreement between the parties. 
 The court held that the wife of W. Clark was not entitled to dower, 
 and that the case was no different from what it would have been had 
 the mortgage been made to Andrews instead of Winthrop. 
 
 In M'Cauley v. Grimes, 2 Gill & Johns. 318, Charles M'Cauley
 
 668 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 held a large tract of land derived from his father, considerably 
 beyond his just share of his father's estate. In arranging and divid- 
 ing the estate, it was agreed by all the parties, that Charles should 
 convey the land to his brother Hugh, and Hugh, in consideration 
 thereof, should pay to his brothers and sisters certain stipulated 
 sums, and to secure the payment should execute a mortgage of the 
 land to them, when he received it from Charles. Those sums, it 
 was agreed, should be received as their respective portions of their 
 father's estate. Charles accordingly executed the deed to Hugh, 
 and at the same time Hugh executed the mortgage and his bonds to 
 the other brothers and sisters. The Court of Appeals, in an opinion 
 reviewing the American cases, decided that Hugh's widow was not 
 entitled to dower against the mortgage. 
 
 I am entirely satisfied that by the law as established in this State, 
 a widow is not entitled to dower in land conveyed to her husband 
 during coverture, which he mortgaged to secure the purchase money, 
 whether the mortgage were given to the grantor of the land or to a 
 third person; and that in such case she is only dowable of the equity 
 of redemption. Here the mortgage in question was given for the 
 purchase money, at the same time that the land was conveyed to 
 the husband, in pursuance of a previous arrangement. The widow, 
 Magdalen Van Dyck, therefore takes her dower in the farm subject 
 to the mortgage. See Card v. Bird, 10 Paige, 426, decided Novem- 
 ber 21, 1843. It follows that she was an interested witness, and 
 her testimony, as it is now presented in the cause, would be 
 excluded, if the cause were to be determined upon the merits. 1 
 
 (c.) Death of husband," 1 
 
 1 See also Smith v. AlcCarty, 119 Mass. 519. See also N. Y. R. P. L. § 173. — Ed. 
 
 2 For " a resume of legislation and judicial decisions in this state and in Eng- 
 land upon the subject of property rights, as affected by civil death, see Avery v. 
 Everett, no N. Y. 317. In some States divorce make dower consummate. For 
 this and some other peculiarities, see Stimson's Am. Stat. Law, §§ 6251 A., 
 3204. — Ed.
 
 II. 3-] LIFE ESTATES : DOWER. 669 
 
 (3.) In What Estates and Lands a Widow May Have Dower. 
 {a.) In general — in estates of inheritance. 1 
 
 GOODWIN v. GOODWIN. 
 
 33 Connecticut, 314. — 1866. 
 [Reported herein at p. 8.] 2 
 
 JOHNS v. JOHNS. 
 
 1 Ohio State, 350. — 1853. 
 
 [Reported herein at p. 14.] 
 
 (b.) As to estates of inheritance in expectancy. 
 
 DURANDO v. DURANDO. 
 23 New York, 331. — 1861. 
 [Reported herein at p. 658.] 
 
 (c.) In the case of determinable estates. 
 
 EVANS v. EVANS. 
 
 9 Pennsylvania State, 190. — 1848. 
 
 Devise by Sarah Evans to her two sons, George and Oliver, "and 
 to their heirs and assigns, share and share alike; but should either 
 of my sons die without leaving lawful issue, living at the time of his 
 death, then the estate of such son, so dying without issue, shall vest 
 in the surviving brother and his heirs forever. ' ' Oliver died without 
 issue and the widow brings suit for dower in the lands owned by him 
 in his lifetime. She succeeded in the court below. 
 
 Gibson, C. J. — Notwithstanding what the conveyancers and text- 
 writers have said about the difficulty presented to us, not one of 
 them has hinted at the true solution of it, except Mr. Preston. All 
 agree that where the husband's fee is determined by recovery, con- 
 dition, or collateral limitation, the wife's dower determines with it. 
 
 1 See N. Y. R. P. L. §§ 170-175. For " widows quarantine,'' see § 184 N. Y. R. 
 P. L. Dower has been modified or abolished in many States. In some dower 
 can be had only in lands of which the husband died seised. — Ed. 
 
 2 See however ch. 121, §§ r and 2 Mass. Pub. Stat. 1882-1887, transcribed 
 infra, p. , under" Leaseholds." — Ed.
 
 67O ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 But why a collateral limitation, rather than by any other limitation 
 of the estate, which extinguishes the husband's fee, of which the 
 dower is but an appendage ? I have a deferential respect for the 
 opinions of Mr. Butler, who was, perhaps, the best conveyancer of 
 his day; but I cannot apprehend the reason of his distinction in the 
 note to Co. Litt. 241 a, between a fee limited to continue to a par- 
 ticular period at its creation, which curtesy or dower may survive, 
 and devise of a fee simple, or a fee tail absolute or conditional, 
 which, by subsequent words, is made determinable upon some par- 
 ticular event, at the happening of which, curtesy or dower will also 
 cease. In Doe v. Hutton, Lord Alvanly spoke doubtingly of it, and, 
 without absolutely dissenting from it, refused to give it his approba- 
 tion. The system of estates at the common law is a complicated and 
 an artificial one; but still it is a system complete in all its parts, and 
 consistent with technical reason. But how to reconcile to any 
 system of reason, technical or natural, the existence of a derivative 
 estate, after the extinction of that from which it was derived, was 
 for him to show; and he has not done it. He drew his instances 
 from statutory estates, whose limitations have been moulded more 
 benignly; and though he affirms that a wife might have been endowed 
 of an extinct conditional fee before the statute de donis, he gives no 
 precedent for it. The case of a tenant in tail, says Mr. Preston in 
 his abstracts of Title, vol. 3, 372, " is an exception arising from an 
 equitable construction of the statute de donis; and the cases of dower 
 of estates determinable by executory devise and springing use, owe 
 their existence to the circumstance that these limitations are not 
 governed by common-law principles." The mounting of a fee on a 
 fee by executory devise, is proof of that. This very satisfactory 
 solution of the doubt was glanced at, but not developed, in Buck- 
 worth v. Thirkell. Before the statute of wills, there was no execu- 
 tory devise; and before the statute of uses, there was no springing 
 use. Like estates tail, which were created by the statute de donis, 
 and of which there is constantly dower, though tenant in tail claims 
 per ferman doni, it was the benign temper of the judges who moulded 
 the limitations of the estates introduced by them, whether original 
 or derivative, so as to relax the severer principles of the common 
 law; and among other things, to preserve curtesy and dower from 
 being barred by determinations of the original estate, which could 
 not be prevented. Sammes and fame's Case, 1 Leo, 167, is an 
 example of this temper, in the case of a springing use. A mother 
 covenanted to stand seised to the use of her elder daughter, on con- 
 dition that she would pay ^/j 00 to her other daughter, within a year 
 after she should attain the age of eighteen; and if the elder should
 
 II. 3-] LIFE ESTATES: DOWER. 671 
 
 fail in payment, or die without issue before the day of payment, 
 then to the use of the other daughter in tail. The mother died; the 
 elder took husband, had issue, and died without issue before the day 
 of payment; and it was adjudged that the husband should be tenant 
 by the curtesy. Flavell v. Ventrice, 1 Roll. Abr. 676, was also the 
 case of a springing use; in which, however, the court was divided. 
 That two of the judges had not embraced the new faith at that day, 
 is not surprising; but that Lord Eldon should have inclined to think 
 as he did, in Maundrell v. Maundrell, 10 Ves. 263, that a husband 
 might bar his wife's dower by executing a power of appointment, is 
 more remarkable. He was still groping after a fancied distinction 
 between a collateral limitation and a limitation of the estate which, 
 if it exists, has nothing to do with an estate conveyed to uses. It 
 may be safely said, that Buckworth v. Thirkell, Goodenough v. Goode- 
 nough, and Moody v. King, had a solid foundation in the interpreta- 
 tion of the statutes which sustained the estate from which the curtesy 
 or dower was derived. Lord Alvanly is reported to have said, in 
 Doe v. Hutton, 3 B. & P. 653, that Buckworth v. Thirkell made a good 
 deal of noise in the profession at the time it was decided — a remark 
 which was properly disposed of by Chief Justice Best, in Moody v. 
 King. "Whatever conveyancers might have thought of the case," 
 said he, " when it was first decided, they have since considered it as 
 having settled the law; and it would be productive of much confusion 
 if we were to unsettle it again." Including the decision then made, 
 we have three cases in point, without an antagonistic case in all the 
 books; and if to overturn them for the sake of a technical principle 
 would have bred much confusion then, it would breed more confusion 
 now. The English courts have gone upon a liberal principle, and 
 we are bound to follow them. 
 
 Judgment affirmed. 
 
 EDWARDS v. BIBB. 
 54 Alabama, 475. — 1875. 
 
 Stone, J. — * * * Under this will thus construed, Thomas 
 Bibb, Jr., either took a fee simple, having another fee engrafted 
 upon it by way of executory devise, to come into being on the hap- 
 pening of an event therein provided for as a conditional limitation, 
 or he took only a life estate, and at his death, his lawful male issue, 
 if he had left such, would have taken as purchasers. If the latter 
 be the true construction of the devise, no one will contend that 
 Thomas Bibb's widow would be dowable of the lands. Supposing,
 
 6j2 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. I. 
 
 then, that the estate of Thomas Bibb was a defeasible fee, the ques- 
 tion comes up, is his widow entitled to dower, the estate of her hus- 
 band having expired with his life? 
 
 Few questions of the law have been discussed, or have given rise 
 to more perplexing distinctions than that of the widow's right to 
 dower in lands, the title to which passed out of her husband con- 
 temporaneously with his death, by force of some limitation, rever- 
 sion or remainder. The case in hand is one of remainder, which has 
 taken effect. The question is thus stated by a very accurate writer: 
 " Is the widow entitled to dower after the estate of her husband has 
 determined, before its natural expiration, by the happening of an 
 event particularly mentioned in the instrument creating it, but with- 
 out disturbing or overreaching his prior seisin? " 
 
 The case of Buckworth v. Thirkell, is one of the first cases on this 
 question. 3 Bos. & Pul. 652, note. That case came before Lord 
 Mansfield, one of England's greatest jurists, and it was determined 
 that the husband was entitled to curtesy. The rule in regard to 
 dower is the same on this question as that in regard to curtesy. 
 
 The case of Buckworth v. Thirkell has not had the good fortune 
 of commanding universal assent. Mr. Butler, in his note to Coke 
 upon Littleton, page 141, while conceding that upon the termination 
 of an estate tail by the failure of issue, the right of curtesy or dower 
 will attach as a prolongation of the estate, yet contended that when 
 a fee simple is determined by a valid executory devise, neither 
 curtesy nor dower ensues. Other writers contend for the same dis- 
 tinction. See very full discussions of this question in Park on 
 Dower, page 157 et seq.; 1 Scrib. on Dower, 284 et seq. To fol- 
 low them through the shadowy mazes of their disquisitions would 
 tend rather to bewilder than instruct. The human mind is not 
 wont to rest satisfied with distinctions when it can find no substantial 
 differences to rest them on. 
 
 Speaking of dower, as affected by conditional limitations, Chan- 
 cellor Kent says: " The estate of the husband is, in a more 
 emphatical degree, overreached and defeated by the taking effect of 
 the limitation over, than in the case of collateral limitation; " and, 
 he adds, " the ablest writers on property law are evidently against 
 the authority of Buckworth v. Thirkell, and against the right of the 
 doweress when the fee of the husband is determined by executory 
 devise, or shifting use." 4 Kent's Com. 50. 
 
 Mr. Jacob, in his learned note published in the appendix to 2 
 Bright on H. & W., p. 468, says: " Upon the introduction of con- 
 ditional limitations by way of use and executory devises, it became 
 a question whether dower or curtesy should cease when the estate
 
 II. 3-] LIFE ESTATES: DOWER. 673 
 
 was determined by either of these modes. Upon principle, it would 
 seem that the decision of this question ought to be guided by analogy 
 to the general rule of the common law, and not by analogy to the 
 excepted case of an estate tail. . . . The conditional limitation 
 destroying the estate, defeats the whole of that which is expressly 
 granted. It would be singular, if that which is included in the grant 
 by implication only, could be preserved." He adds, " The supposed 
 rule (speaking of Mr. Preston's attempt to justify the rule laid 
 down in Buck-worth v. T/u'rkell) rests on very doubtful grounds." 
 
 In New York, it was decided by Chancellor Walworth that where 
 an estate in fee was terminated by the happening of a conditional 
 limitation, and the executory devisees took as purchasers, the widow 
 of the first devisee could not have dower. See Adams v. Beekman, 
 1 Paige, 631. 
 
 In the case of Welter v. Welter, 28 Barbour, 588, the same ques- 
 tion arose as in Adams v. Beekman, supra. The court said, " The 
 widow takes her estate through the husband and not from him like 
 one who inherits; for he can do no act which will divest her right. 
 And when the estate of the husband is determined by the happening 
 of an event which defeats its further continuance, the estate in 
 dower must be determined with it. It is a part of the same estate 
 of freehold and inheritance of which the husband was seized, and, 
 to the extent of it, so much abstracted from what would otherwise 
 descend to the heirs at law. . . . The wife's right to dower 
 ceased with the estate out of which it could only proceed. This 
 conclusion conflicts with Lord Mansfield's judgment in Buckworth 
 v. Thirkell. It is the rule, however, given by Mr. Cruise in his 
 treatise on the law of real property, and is the rule now sustained 
 by Mr. Park with singular ability in his work on the law of dower." 
 
 Washburn, in his work on real property, vol. 1, p. 212, says: 
 " There is a class of cases where, what at first sight might seem to 
 be an inconsistent doctrine is applied. Thus, in the familiar case of 
 tenant in tail dying without issue, although the estate, as one of 
 inheritance, is determined, and the remainder over upon such a con- 
 tingency takes effect, yet, it having been an estate of inheritance in 
 the tenant, his widow, if he dies, will be entitled to dower, it being 
 by implication of law annexed to such an estate as an incidental 
 part of it; a portion of the quantity of enjoyment designated by the 
 terms of limitation itself. And the doctrine is broadly laid down by 
 writers upon the subject, that wherever the husband is seized during 
 coverture of such an estate as is in its nature subject to the attach- 
 ment of dower, the right of dower will not be defeated by the deter- 
 mination of that estate by its regular and natural limitation." He 
 
 LAW OF PROP. IN LAND — 43
 
 674 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 adds: " This class of cases has given rise to much ingenious specu- 
 lation and grave diversity of opinion, where the estate of the hus- 
 band is one of inheritance, but ceases at his death by what is called 
 a conditional limitation." 
 
 The case of Buckworth v. T/iirke// was followed in Moody and Wife 
 v. -King, 2 Bing. 447 ; and in this country, in the cases of Milledge v. 
 Lamar, 4 De Saussure (So. Car.), 617; Evans v. Evans, 9 Barr. (Pa.) 
 190, and Northcut v. Whipp, 12 B. Monroe (Ky.), 65. In a later 
 case in South Carolina, Wright v. Herron, 6 Rich. Eq., the court of 
 errors was equally divided, and no decision was pronounced. This 
 case presented the same question as the one presented in Buckworth 
 v. Thirkett. 
 
 In the case of Evans v. Evans, supra, the opinion of the Supreme 
 Court of Pennsylvania was pronounced by Chief Justice Gibson — 
 one of the ablest jurists that ever sat on that bench. It will be seen 
 that he was laboring to break down the imaginary distinction 
 attempted to be drawn by Mr. Butler and others between the cases 
 of remainder over, made and provided to take effect after the 
 termination of an estate tail by failure of issue, and the termination 
 of an estate in fee simple by failure of heirs, with a valid limitation 
 over by way of executory demise. He says: " I cannot apprehend 
 the reason of his (Mr. Butler's) distinction between a fee limited 
 to continue to a particular period at its creation, which curtesy or 
 dower may survive, and the devise of a fee simple, or a fee tail, abso- 
 lute or conditional, which, by subsequent words, is made determin- 
 able upon some particular event, at the happening of which curtesy 
 or dower will also cease." He propounds, and in effect answers, 
 the following pertinent inquiry, " How to reconcile to any system 
 of reason, technical or natural, the existence of a derivative estate, 
 after the extinction of that from which it was derived, was for him 
 (Mr. Butler) to show; and he has not done it." 
 
 Any attempt to maintain a distinction between the claim of dower 
 or curtesy, when the inheritance in an estate tail has failed, and a 
 limitation over has taken effect, per for mam doni, and the same result 
 when an estate in fee has been determined by the happening of the 
 event upon which a conditional limitation over was made to take 
 effect, by the terms of the instrument creating the title, is too arti- 
 ficial and technical to command our assent. Dower is a derivative 
 estate; it is derived from the estate of the husband. It is the crea- 
 ture of the law, not of contract. While the husband lives, there is 
 no estate in dower. It is an interest, carved out of, or abstracted 
 from the inheritance; or out of the estate of the husband's alienee, 
 if the widow survives, and has not relinquished her dower. The hus-
 
 II. 3-] LIFE ESTATES: DOWER. 675 
 
 band, by any conveyance made, or recovery suffered by him, cannot 
 bar, or impair her right. 
 
 When, however, by the very terms of the conveyance or devise, 
 legal in form and purpose, the estate of the husband expires with 
 him, cutting off per formam doni, the heritable quality of his estate, 
 and the title passes to another as purchaser by a valid limitation 
 over, the primitive estate is gone, and there is nothing left from 
 which dower can be derived. We do not declare what would be the 
 result, if the case were one of mere reversion to the demisor or 
 grantor. It will be time enough to consider that question when it 
 arises. Decree affirmed. 
 
 (d.) Dower in equitable estates 0/ inheritance. 
 
 HOPKINSON v. DUMAS. 
 42 New Hampshire, 296. — 1861, 
 
 Suit for dower in certain premises. It is admitted that plaintiff 
 is entitled to dower in one-fifth of the premises, but she claims 
 dower in all. 
 
 Hopkinson, plaintiff's husband, and four others agreed to unite in 
 the purchase of the premises in question, each to take a fifth. The 
 deed was made to Hopkinson and he gave his notes (the other four 
 joining as sureties) for part of the purchase price. One thousand 
 dollars was paid down, each contributing his share, and Hopkinson 
 gave a receipt for the same, acknowledging the trust. 
 
 Later on Hopkinson made an arrangement for the purchase of the 
 interests of the other four, giving a mortgage for the purchase price. 
 This mortgage has been foreclosed and defendant makes title under 
 the foreclosure. Mrs. Hopkinson has never released her interest in 
 the land. The questions of law were reserved for this court. 
 
 Sargent, J. — * * * We see no objection on this proof, to 
 holding that there was, in this case, prior to the giving of the receipt 
 by Hopkinson, and that there would have been, without any such 
 receipt, a resulting trust to each of those who signed the notes as 
 sureties. Our statute provides that " no trust concerning lands, 
 excepting such as may arise or result by implication of law, shall be 
 created or declared, unless by an instrument signed by the party 
 creating the same, or by his attorney." Rev. Stat. ch. 130, § 
 13; Comp. Laws, 290. 
 
 But although a trust cannot be created or declared by parol 
 evidence yet a resulting trust may be shown by that kind of 
 proof; it may be proved, rebutted, or discharged by parol evi-
 
 6j6 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 dence. Scoby v. Blanchard, 3 N. H. 170; Pritchard \ . Brown, 4 N. 
 H. 397; Page v. Page, 8 N. H. 187; Brooks v. Fowle, 14 N. H. 248; 
 Pembroke v. Allenstotvn, 21 N. H. 107; Gove v. Lawrence, 26 N. H. 
 484; Tebbetts v. Felton, 31 N. H. 273. Parol evidence is admissible 
 to show a resulting trust, but not to show any other. Farrington 
 v. Barr, 36 N H. 86; Moore v. Moore, 38 N. H. 382. 
 
 So that if there were no trust declared in the case in writing, 
 there would seem to be no difficulty in holding that a trust upon the 
 facts stated, resulted by operation of law. But we think that this 
 is not perhaps the more correct view to take of the case. Here is 
 a trust declared in writing, which, although dated after the date 
 of the deed, evidently contains the agreement and understanding of 
 the parties, not only at the time of its date, but also at the date of 
 the deed, and we think this written declaration of the trust should 
 be and must be considered as part of the original transaction, and 
 that the giving of the deed, the agreements and the giving of this 
 writing should be considered together, as one transaction, as the 
 different parts of the same contract and agreement. 
 
 The trust declared in the writing is evidently the same that had 
 existed prior to its date, and includes evidently the full agreement 
 that was made originally, that all the time continued to exist between 
 the parties until the new arrangement by which Hopkinson bought 
 the others out and gave back a mortgage of the premises to them as 
 their securities. Taking the deed to Hopkinson and the money 
 paid, the notes given and the writing given back to them declaring 
 the trust, as parts of the same transaction and as containing the 
 whole of the arrangement between them, from the beginning, we 
 are left in no doubt about the rights of the parties so far. And the 
 only remaining question is, the one arising out of the sale to Hopkin- 
 son, and the mortgage back of the same premises, on the 13th day 
 of May, 1857. 
 
 We do not understand that there is any question made but what 
 the arrangement then made was such that whatever interest was 
 conveyed to Hopkinson by the others, was at the same time recon- 
 veyed by him to them in mortgage. His seizin. of such interest as 
 they conveyed was but instantaneous. To be sure they gave him 
 no <\rc<\ of any right, nor did they need to do so. He had the legal 
 title before. Theirs was the equitable, the trust estate, which did 
 not appear of record, and which would have been unavailable to 
 them as against a creditor of or a purchaser from said Hopkinson, 
 witho it notice of the existence of such estate. 
 
 It ied that this written agreement does not create a trust 
 
 estate in the lands; that it gives only certain equitable rights, but
 
 II. 3-] LIFE ESTATES : DOWER. 677 
 
 no present estate, so that a court of equity, upon an application of 
 the cestuis que trust, could not have decreed a conveyance of the 
 legal title, except upon the performance of certain conditions pre- 
 cedent, to be performed by themselves. But without considering or 
 discussing that point, and without stopping here to inquire what 
 difference there would be, if any, between the trust here created 
 and a trust estate created by deed and appearing of record, let us, 
 for the purposes of this case, assume that Coffin and the others had 
 a present equitable estate in the premises, just the same as though 
 the deed which conveyed the premises to Hopkinson had declared 
 the trust and given to Coffin and others an equitable estate which 
 appeared of record, and that the equitable estate had been conveyed 
 to Hopkinson by deed at the time when the mortgage was given 
 back by him. 
 
 Upon this supposition, the question that arises is, where the legal 
 and equitable estates meet in the same person, but by different con- 
 veyances, at different times, and he thereby becomes seized in fee 
 of the whole estate, which estate merges in the other, and which 
 draws the other after it ? Does the equitable estate merge in the 
 legal and the title in fee to the whole relate back to and date from 
 the commencement of the legal estate? If this be so, then the 
 plaintiff takes dower in the whole premises. But, if the opposite 
 doctrine be true, that the legal title merges in the equitable, on 
 becoming united in the same person, and his title in fee relates back 
 only to and dates from the commencement of his equitable interest, 
 then this plaintiff does not take dower in any but her husband's 
 one-fifth part of the premises, because his seizin upon the hypothe- 
 sis was only instantaneous. It becomes necessary to ascertain which 
 of these estates is to control the other, when they become united, 
 in order to see which of them dower shall follow; because, at com- 
 mon law, which is the law of this State in this particular, dower could 
 not be taken in either estate alone. 
 
 A widow of a trustee shall not have dower. Robinson v. Cod/nan, 
 1 Sum. 121 ; Germond v. Jones, 2 Hill, 569; Cooper v. Whitney f 3 Hill, 
 101; Coster v. Lorillard, 14 Wend. 314. In England there is at law 
 no dower in a trust estate, whether the husband have himself parted 
 with the legal title before marriage, reserving only a trust, or whether 
 a trust estate has been directly limited to him by a third person. 
 And the same rule applies where the husband purchases an estate 
 in the name of a trustee who acknowledges the trust after his death. 
 Ray v. Rung, 5 B. & Aid. 561; 2 Bl. Com. 337; 1 Hill on Real Prop. 
 323. So that, so long as the legal and equitable estates remained
 
 678 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 separate, no dower could be claimed, and no inchoate right of dower 
 could be acquired on either side. 
 
 But where both estates are united in one person, one must merge 
 in the other, because a man cannot be trustee for himself. In Good 
 right v. Wells, Douglass, 741, the question arose as to whether, in a 
 case of this kind, " the equity should follow the law or draw the law 
 after it." It was a case in which an only child inherited the legal 
 estate in lands from his mother, and the equitable estate from his 
 father; and, dying without issue, the estate was claimed on the one 
 side by his legal heirs ex parte materna, and on the other side by 
 those ex parte pater na; and it was held that the equitable estate 
 should merge in the legal and that both should follow the line 
 through which the legal estate descended; the whole property in 
 that case going to the heirs on the part of the mother. 
 
 It was there learnedly argued that, before the statute of uses the 
 use was considered, in most respects, as the complete ownership of 
 the land, that the estate of the feoffee was subservient to the cestu 
 que use, and that the former could do nothing to defeat the interes 
 of the latter, unless by alienation for a valuable consideration without 
 notice; that the statute of uses completed this subserviency by con- 
 solidating the legal estate with the use, or by merging the legal 
 estate in the equitable; and that by analogy to uses thus considered, 
 trust estates had been and should be held to be the solid and sub- 
 stantial ownership of the land, and the trustee the mere instrument 
 of conveyance; that where a party holds by two titles, the law con- 
 siders him as taking by the best; that the trust estate, being the 
 best, must control the legal estate. 
 
 But the court held otherwise, deciding that the legal estate was the 
 better title, and that the equitable title was merged the moment the 
 two became united in the same person; that the legal drew after it 
 the equitable estate, and that the latter was lost in the former; so 
 that, upon the death of the son, the person in whom both estates 
 had been united, the estate did not again open, and that the trust 
 could not again be revived. 
 
 Lord Mansfield, in delivering his opinion in the case, says: " For 
 the moment both [estates] meet in one person, there is an end of 
 the trust. He has the legal estate, and all the profits, by his best 
 title. A man cannot be a trustee for himself. Why should the 
 estates open upon his death? What equity has one set of heirs 
 more than another ? He may dispose of the whole as he pleases, 
 and if he does not, there is no room for chancery to interpose, 
 and the rule of law must prevail." And he seems to conclude
 
 II. 3-] LIFE ESTATES: DOWER. 679 
 
 that the weight of opinion and argument is, that the legal estate 
 must draw the trust after it. 
 
 In the same case, Ashurst, J., says that " where the trust and 
 legal estates join, they shall both go according to the legal estate." 
 Buller, J., also says, that, "in a court of equity it has never been 
 determined that an heir of one sort can hold as trustee for an heir 
 of another sort. And if the question be tried in a court of law, the 
 principle that, where two titles unite, the party shall be in of the 
 best, prevails, and the clear fee simple estate, the legal- interest, 
 which descends from the mother is the better title. The trust, in 
 this case, was merged and gone." The same principle was sustained 
 in Doe v. Patt, Douglass, 684, and afterwards by Lord Thurlow, in 
 Wade v. Paget, 1 Brown, C. C. 364; Phillips v. Bridges, 3 Ves. 
 126; Selby v. Alston, 3 Ves. 339; Nicholson v. Halsey, 1 Johns. 
 Ch. 417; Gardner v. Astor, 3 Johns. Ch. 53; Hill on Real Prop. ch. 
 24, § 27. 
 
 Upon the principle deduced from these authorities, it would seem 
 evident that, when the two estates were united in the plaintiff's hus 
 band, the trust estate became at once merged and lost. It was con- 
 solidated into, overshadowed by, and swallowed up in the legal 
 estate. The law of the legal estate regulates and governs its descent 
 and distribution, and dower must be taken by the same law. 
 
 We have considered the question as though here had been origi- 
 nally a trust estate, created by deed and appearing of record; and 
 coming to the conclusion we have upon that supposition, it becomes 
 unnecessary to inquire farther into the defendant's case, because the 
 facts assumed by us above are at least as favorable to the defendant 
 as any that can be made out of the agreed case, and might be found 
 to be much more so upon investigation, though on that subject we 
 express no opinion. And the above authorities would seem to be 
 decisive, also, of the defendant's rights — in fact, of the rights of 
 both parties — not only at law, but also in equity. We are there- 
 fore of opinion that the plaintiff must prevail in her claim for dower 
 in the whole of the premises described in her declaration; and 
 judgment must be rendered for the plaintiff accordingly, and for 
 damages for detention, to be fixed according to the provisions of 
 the case.
 
 580 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 (e.) Dower in -wild lands. 
 
 SCHNEBLY v. SCHNEBLY. 
 
 26 Illinois, 116. — 1S61. 
 
 Petition by the heirs-at-law of Henry Schnebly to have his widow's 
 dower assigned to her. There were ten separate parcels of land of 
 all which the widow was entitled to be endowed. This is a writ of 
 error by the petitioners to review a judgment approving the report 
 of the commissioners. 
 
 Walker, J. — The commissioners appointed by, and acting under 
 the decree of the court, assigned to the widow as her dower in the 
 various tracts embraced in the decree, the E. 1-2 N. W. 27, 9 N. 8 
 E., and 88 acres on the west side, part of the northeast quarter of 
 the same section. These premises included the residence and home- 
 stead of the husband in his lifetime. They also report that premises 
 thus allotted are one-third in value of all the lands with perfect title, 
 having reference to the quantity and quality. It is urged by plain- 
 tiffs in error, as one of the grounds of reversal, that wild, unimproved 
 and unproductive lands are not, under our statute, subject to dower. 
 The first section of the dower act provides that " a widow shall be 
 endowed of one-third part of all the lands whereof her husband was 
 seized of an estate of inheritance at any time during the marriage, 
 unless the same shall have been relinquished in legal form." 
 
 By this provision it is the character of the title, or rather the 
 nature of the estate held in the land, which determines the right. 
 It is not the accidental condition of the property which controls, 
 but the interest or extent of the title. The Legislature has not 
 declared that the widow shall be endowed of all improved or pro- 
 ductive real estate of which the husband was seized during the mar- 
 riage, but it is of all the lands of which he was seized of an estate of 
 inheritance. And in making this provision, the general assembly 
 have no more than declared the common law. It is true that in 
 giving dower in equitable estates and in land purchased by the hus- 
 band in his lifetime, and not paid for until after his death, the right 
 has been enlarged; but as such estates are not involved in this case, 
 there is no occasion for their discussion. 
 
 There 9eem to be obvious reasons for the enactment. After the 
 
 ignment of dower, the widow may undeniably use and enjoy the 
 
 portion allotted to her in any mode she may choose, provided she 
 
 -.hall not commit waste. She may reclaim lands that have been 
 
 cultivated and abandoned; she may reduce prairie land to culti- 
 
 ati mi, and in are timber land. And no one will deny that by
 
 II. 3-] LIFE ESTATES: DOWER. 68l 
 
 that means she may derive profit without committing waste. These 
 are doubtless sufficient considerations for the enactment. But be 
 that as it may, we have no hesitation in saying that the Legislature 
 designed to give, and has given the widow dower in unimproved as 
 well as in improved lands, of which the husband was seized of an 
 estate of inheritance during the marriage. 
 
 It is likewise urged, that the statute has not authorized the court 
 through commissioners to assign dower in a portion of lands in lieu 
 of dower in the whole. As in declaring the right, our statute has 
 only enacted the common law, we must look to it for the rules 
 regulating its assignment, unless it is otherwise provided for by the 
 act. Park, in his treatise on Dower, p. 255, says that, " In the 
 simple state of property in former times, it is probable that the only 
 provision that was made for the security of the dowress was, by 
 requiring that the sheriff should assign to her a third part of each 
 existing denomination of property. Thus he was bound to assign 
 her a third part of each manor, if there were several; or a third part 
 of the arable, a third part of the meadow, and a third part of the 
 pasture." And it is said in Bac. Abr. 374, letter D, " If a woman 
 be dowable in three manors, and accept of the heir one of these 
 manors in lieu of dower in all of the rest, this is good, though 
 against common right, which gives her but the third part of each 
 manor." And Roll's Abridgment, 683, is referred to in support of 
 the doctrine. We thus see that the common law, or common right, as 
 it is sometimes called by the ancient writers, gave to the widow one- 
 third part of each particular tract. While this is true, it also per- 
 mitted the heir and the widow, by mutual consent, to allot a specific 
 tract in lieu of dower in several parcels, and when so assigned, the 
 law upholds and enforces it between the parties. But its validity 
 depended alone upon the agreement, as neither could be compelled 
 by the law to make such an assignment. 
 
 And in this country, the courts, so far as we have found, have 
 adopted the same rule. Scott v. Scott, 1 Bay, 504; Coulter v. Hol- 
 land, 2 Harring, 330; Sip v. Lamback, 2 Har. N. J. 442. But it may 
 be that cases are to be found which announce a different rule, 
 although we have not been referred to them, if they exist. It how- 
 ever seems to us, that when considered upon principle, that it is more 
 reasonable, just and convenient, that each tract should bear the 
 burden of the widow's dower, annexed to and growing out of it. 
 If the dower in all of several tracts may be imposed upon one or 
 more, to the relief of others, it might be made to operate with great 
 injustice to purchasers or heirs. In case of purchasers of several 
 tracts without any relinquishment by the widow, it would be highly
 
 682 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 unjust to endow her out of the portion purchased by one, and to 
 exempt the other. It would be equally wrong to impose the whole 
 of the widow's dower in the estate upon the portion of one heir, 
 and exempt the others. If this might be done, purchasers would be 
 disinclined to pay the value of real estate at sales by executors and 
 administrators, of real estate subject to the widow's dower. And 
 yet they have no power to compel its assignment. 
 
 Again, under our statute this widow's dower is an incident to the 
 land held by a particular description of title. It attaches to all of 
 the lands alike held by that description of title, and not to a portion 
 of them. By the marriage the right attaches to the lands then held, 
 and as others are subsequently acquired, it attaches to them. And 
 by the husband's death the right becomes consummate, as it origi- 
 nally attached to each separate parcel, and we are aware of no 
 statute or rule of the common law that will permit the court or the 
 commissioners without the consent of the parties, to release one 
 portion from the burden and impose it upon another. If the parties 
 choose to do so, they have the unquestioned right, or if the commis- 
 sioners were to so assign it, and it were approved by the court with- 
 out objection, where the parties were not under disability, or if by 
 their report it appeared that the parties in interest consented, and 
 it were not disproved, such an assignment would be good. But 
 without such agreement by parties capable of assenting, when 
 objected to, the court should set aside the report and refer it back 
 to the same or other commissioners. 
 
 Ic assigning the widow's dower, the commissioners should so allot 
 it, having reference to quantity and quality, that her portion shall 
 be equal in its yearly value or income to one-third of the yearly 
 value of the tract from which it is taken. They should not consider 
 the intrinsic or cash value, but the yearly income, but its capacity at 
 the time for production, and assign to her such a portion as will pro- 
 duce one-third of that value. If after such an assignment the profits 
 are increased by her expenditure of money or labor, it is her com- 
 pensation for the expenditure. 
 
 That this is the true rule seems to be manifest from the provisions 
 of the 28th section of the dower act. It provides that in case the 
 property is not susceptible of a division, and the commissioners 
 shall so report, the court, shall impanel a jury and ascertain its 
 yearly value, and render judgment that the widow shall be paid on a 
 day named, one-third of the amount annually, during her natural 
 life. This provision proceeds upon the principle that it is one-third 
 of the yearly value and not one-third of the number of acres or the 
 cash value of the land of which she is to be endowed.
 
 II. 3-] LIFE ESTATES: DOWER. 683 
 
 For the reason that the assignment of dower in this case was not 
 of the one-third part of such tract, and was a part of two tracts only, 
 the decree of the court below affirming the report of the commis- 
 sioners must be reversed, and the cause remanded, with instructions 
 to refer it back to the same or other commissioners. 
 
 Decree reversed. 
 
 CONNER v. SHEPHERD. 
 
 15 Massachusetts, 164. — 1818. 
 
 Writ of dower. Demandant's husband was seized during coverture 
 of the lands in question and conveyed them to defendants. The 
 lands when conveyed were, and still are, uncultivated and covered 
 with wood and timber. 
 
 Parker, C. J. — Upon this question we have had considerable 
 difficulty. By the common law, the widow is dowable of all the real 
 estate of which her husband was seized during the coverture, with 
 the exception only of a castle erected for public defense, of a com- 
 mon in gross, and some other kinds of estate not known in this 
 country. The question whether forest, parks, and other property 
 of a similar nature, are also exceptions, seems never to have occurred ; 
 probably because there is no instance, in Great Britain, of any such 
 property held separately and distinct from improved and cultivated 
 estates. 
 
 In this country, on the contrary, there are many large tracts of 
 uncultivated territory owned by individuals who have no intention 
 of reducing them to a state of improvement, but consider them 
 rather as subjects of speculation and sale, or as a future fund for 
 their posterity, increasing in value with the population and improve- 
 ment of the country. If dower could be assigned in estates of this 
 nature the views of those who purchase such property would be 
 obstructed; and an impediment to their transfer would be created, 
 and in many instances the inheritance would be prejudiced, without 
 any actual advantage to the widow to whom the dower might be 
 assigned. For, according to the principles of the common law, her 
 estate would be forfeited if she were to cut down any of the trees 
 valuable as timber. It would seem, too, that the mere change of 
 the property from wilderness to arable or pasture land, by cutting 
 down the wood and clearing up the land, might be considered as 
 waste; for the alteration of the property, even if it became thereby 
 more valuable, would subject the estate in dower to forfeiture — the 
 heir having a right to the inheritance in the same character as it was 
 left by the ancestor.
 
 684 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 It is not an extravagant supposition that lands actually in a state 
 of nature may, in a country fast increasing in its population, be 
 more valuable than the same land would be with that sort of cultiva- 
 tion which a tenant for life would be likely to bestow upon it; and 
 that the very clearing of the land, for. the purpose of getting the 
 greatest crops with the least labor, which is all that could be 
 expected from a tenant in dower, would be actually, as well as 
 technically, waste of the inheritance. 
 
 There would seem, then, to be no reason for allowing dower to 
 the widow in property of this kind. If she did not improve the land, 
 the dower would be wholly useless; if she did improve it, she would 
 be exposed to dispute with the heir, and to the forfeiture of her 
 estate, after having expended her substance upon it. 
 
 But this is not all. It is well understood, by the common law, 
 and the principle has been repeatedly settled in this court, that the 
 dower of the widow is not to be assigned, so as to give her one-third 
 of the land in quantity, but so that she may enjoy one-third of the 
 rents and profits, or income, of the estate. Now, of a lot of wild 
 land, not connected with a cultivated farm, there are no rents and 
 profits. On the contrary, it is an expense to the owner, by reason 
 of the taxes. The rule, therefore, by which dower is to be assigned 
 cannot be applied to such property. 
 
 It is observable also that, at common law, the right of damages 
 for detention is incident to the right of dower; from which it may 
 be inferred that there can be no dower in land, the detention of 
 which can be no injury. Now, the detention of wild land from the 
 widow can form no subject of damages. Our statute has adopted 
 the same principle, and has also expressly prohibited strip or waste 
 by the tenant in dower; and has expressly required that she keep the 
 fences, buildings, etc., in good repair, and shall so leave the same. 
 This is all predicated upon the supposition that the estate of which 
 a widow is dowable, may be retained by the heir to her pre- 
 judice, has fences and buildings upon it, and is in fact, in a state of 
 actual cultivation and improvement. 
 
 Upon the whole, seeing no possible benefit to the widow from an 
 assignment of dower in such property; and, on the contrary, believ- 
 ing that it would operate as a clog upon estates designed to be the 
 subject of transfer; and finding that the principles upon which the 
 estate in dower rests at common law are not applicable to a case of 
 the kind before us, — we feel constrained to say that the demandant 
 cannot maintain her present action. 
 
 This case seems never to have been expressly decided before; and 
 yet there is a prevalent opinion among lawyers against the claim of
 
 II. 3-J LIFE ESTATES: DOWER. 685 
 
 dower in such property. Possibly the point may have been decided 
 before the publication of the decisions of this court commenced. 
 
 The case of Sargent et al. v. Towne, and several decisions of the 
 court, respecting the manner in which widows shall be endowed, 
 when land has been alienated by the husband, have a bearing towards 
 the decision we have adopted. 1 
 
 (/.) Estates in joint tenancy and in partnership. 
 
 BABBITT v. BABBITT. 
 
 41 New Jersey Equity, 392. — 1886. 
 
 The Chancellor. — This is a suit for specific performance of a 
 contract for sale of real estate by the complainants to the defendant. 
 The objection made to the title is that the wives of the complain- 
 ants' grantors, who held the title as joint tenants in fee, did not 
 join in the conveyance to the complainants, and it is urged that the 
 wives, who are living, may have a right of dower in the property. By 
 the common law, no title of dower attaches where the husband is 
 seized of the land jointly with another or others. This is owing to 
 the nature of the estate of joint tenants. The possibility, so long as 
 the joint ownership subsists, that the estate of each tenant may be 
 wholly defeated by his dying in the lifetime of the other or others, 
 prevents the attaching of the right of dower in the wives of any of 
 the tenants, except the survivor. The estate which the husband 
 must have to entitle his wife to dower is one in severalty or in com- 
 mon. The unity of interest in joint tenancies, each tenant is seized 
 per my et per tout, prevents the admission of a right of dower of 
 curtesy, except as to the estate of the survivor. On the decease of 
 one joint tenant the survivor holds the whole property under and by 
 virtue of the original grant, and holds no part of it in anywise under 
 the descent. 2 Cruise's Dig. 444. 
 
 We have not, in this State, changed the law in respect to dower in 
 such estates either by statute or legal adjudication. The statute, it 
 is true, provides that the wife shall have dower in all the real estate 
 of which her husband or any other to his use, was seized of an estate 
 of inheritance at any time during the coverture, to which she shall 
 
 1 See Webb v. Townsend, 1 Pick. (Mass.) 20, infra, p. . Also White v. 
 
 Cutler, p. 447, supra. This is often called the " New England Rule." It is 
 now the statutory rule in Mass. and N. H. But there may be dower in wild 
 lands used in connection with improved lands for purposes of estovers, pasture' 
 etc. Stevens v. Owen, 25 Me. 94. — Ed.
 
 686 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 not have relinquished her right of dower by deed duly executed and 
 acknowledged (Rev. p. 320), and an estate in joint tenancy is, in 
 terms, an estate of inheritance, but the right of survivorship in such 
 estates has not been abolished. Such estates are recognized by 
 statute (Rev. p. 167, § 78), and they retain their common law char- 
 acteristics. By the term " estate of inheritance " in the statute is 
 meant an estate of inheritance in severalty or in common. Estates 
 in joint tenancy are not included. The demurrer will be overruled. 
 
 BOPP v. FOX. 
 63 Illinois, 540. — 1872. 
 
 Sheldon, J. — This was a petition in equity, on the part of Cathe- 
 rine Bopp, for the assignment of dower in the real estate of her 
 deceased husband, Louis Bopp. 
 
 The claim of dower is in the one undivided one-fourth part of 
 certain premises, by virtue of a conveyance thereof to Frederick 
 Weaver, John Schuchman, Henry Burmeister and Louis Bopp, on 
 the 8th day of March, 1865. 
 
 The defendants set up in resistance to the claim that they were 
 purchasers of the whole of the premises at a receiver's sale thereof, 
 made on the 13th of August, 1870, under an order of court in a cer- 
 tain suit for the dissolution of a copartnership between the said 
 Weaver, Schuchman, Burmeister and Bopp, in which suit the said 
 Weaver and Burmeister were complainants, and said Schuchman and 
 Bopp were defendants; and that the said premises were bought with 
 partnership funds for partnership purposes. 
 
 The only questions made on the record are, whether the premises 
 were so purchased with partnership funds for partnership purposes, 
 and if so, whether they were subject to the claim of dower. * * * 
 
 We consider this was essentially a purchase with partnership funds 
 for partnership purposes. The property was required for the pay- 
 ment of partnership debts, and was duly appropriated to that 
 purpose. 
 
 Under such circumstances, does a right of dower attach in favor 
 of the widow of one of the copartners, in whose individual name 
 stood the legal title, to the undivided one-fourth part of the land? 
 
 It is a well known rule, governing the relation of partnership, that 
 partnership property must first be applied to the payment of partner- 
 ship debts, and that the true and actual interest of each partner in 
 the partnership stock is the balance found due to him after the pay- 
 ment of all the partnership debts and the adjustment of the partner-
 
 II. 3-] LIFE ESTATES: DOWER. 687 
 
 ship account between himself and his copartners. And in equity 
 real estate forms no exception, but stands on the same footing, in 
 this respect, with personal property, no matter in whom the legal 
 title may be vested. 
 
 Although Louis Bopp took the legal title to one-fourth of this land, 
 in the view of a court of equity he never had any beneficial interest 
 in it distinct from the partnership purposes, but he took it clothed 
 with an implied trust that it should be applied to the payment of the 
 partnership debts if necessary, and his widow was not entitled to her 
 dower until this trust was fully executed and fulfilled. 
 
 These views and principles we regard as just, and as amply sus- 
 tained by the great weight of authority. 
 
 For a full consideration of the subject and authorities bearing 
 upon it, we refer to Buchan v. Sumner, 2 Barb. Ch. R. 165; Dyer v. 
 Clark, 5 Mete. 562; Howard v. Priest, Id. 582; Collyer on Part., 
 Perkins' Ed. 123 et seq., and notes. 
 
 It was supposed in the argument to make a difference that there 
 were no partnership debts existing at the time the land was pur- 
 chased, but we find no such limitation of the rule. The title was 
 taken by Bopp chargeable not only for the payment of the partner- 
 ship debts existing at the time of the purchase, but for the payment 
 of any partnership liability that might be found to exist at the time 
 of winding up the partnership concerns. 
 
 The interest of Louis Bopp in the land having been applied to the 
 purpose of the implied trust upon which it was taken — the payment 
 of the partnership debts if necessary for that purpose — his widow 
 is not entitled to dower. 
 
 The court below should have dismissed the petition, instead of 
 allowing dower, as it did, in the land, exclusive of the mill 
 improvements. Decree reversed. 
 
 (4.) Barring Dower. 1 
 (a.) Conveyance of, or charge on, land by intended husband before the marriage. 
 
 TRUSTEES OF THE POOR v. PRATT. 
 
 10 Maryland, 5. — 1856. 
 
 Mason, J., * * * delivered the opinion of the court. 
 This is an action at law, for dower, instituted by the appellee. 
 The prominent and controlling question of the case is, whether a 
 sale of real estate, under an execution upon a judgment rendered 
 
 1 Under this head are considered the classes of cases in which dower never 
 attaches; under (5} below those cases in which dower is defeated after it has 
 once attached. — Ed.
 
 688 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 against a party prior to his marriage, would defeat the claim of his 
 widow to dower? 
 
 This question is conclusively settled, upon authority, in the 
 affirmative. Kent, in his Commentaries, 4th vol., page 50, thus 
 states the law: "As a general principle, it may be observed that 
 the wife's dower is liable to be defeated by every subsisting claim or 
 incumbrance, in law or equity, existing before the inception of the 
 title, and which would have defeated the husband's seisin." 
 
 The same doctrine is more broadly affirmed in the case of Greene 
 v. Greene, 1 Ohio Rep. 542. In speaking of the widow's right to 
 dower, Judge Sherman says: " Her estate is but part of his, is 
 derived from him, and must be subject to all incumbrances existing 
 against it at the time of the marriage, or the acquisition by the 
 husband." 
 
 The same doctrine is announced in the case of Scott v. Howard, 3 
 Barb. Rep. 319, and also in our own chancery court, in the case of 
 Mantz v. Buchanan, 1 Md. Ch. Dec. 202, as well as a number of 
 other well adjudged cases. 
 
 But the soundness of this doctrine seems not to be denied by the 
 appellee's counsel, but it is contended, that such a defense cannot 
 be resorted to in action at law, but is only availing in equity, if it 
 can be relied on at all. 
 
 We think the contrary is settled by the General Court of this 
 State, in the case of Lane v. Gover, 3 Har. & McH. 394. That was 
 a case, like the present, at law, and the court permitted a sale under 
 a lien subsisting prior to marriage, to defeat the claim of the widow 
 to dower, and the mere circumstance that the lien bound the land in 
 the lifetime of the husband's ancestor, does not affect the principle, 
 as the appellee's counsel supposes, that such a defense would be 
 availing at law. 1 
 
 Campbell, J., in BROWN v. BRONSON. 
 
 35 Michigan, 415. — 1SS7. 
 
 The bill in this case was filed by the widow of Henry B. Brown, 
 deceased, to recover her dower of certain property in Big Rapids, 
 Mi costa county, which Brown was claimed to have conveyed to the 
 defendants, who were his children, and would have been his heirs-at- 
 law of any property which he owned at his death. This deed pur- 
 ported to have been made September 26th, 187 1, two days before 
 Brown's marriage with complainant. The bill claimed that if the 
 
 ■See N. Y. R. P. L. § 172. — Ed.
 
 II. 3-] LIFE ESTATES : DOWER. 689 
 
 deed was genuine it was in fraud of complainant, but disputed its 
 genuineness and delivery. 
 
 Both parties to the marriage were beyond middle life, and had 
 grown-up children at the time. The defendants were children of 
 Brown by a former wife. They claimed that the deed was delivered 
 and intended to operate at once, and that it was made in fulfilment 
 of a trust in their favor, the land being asserted to have been pur- 
 chased with the proceeds of property held in trust for them from 
 their mother's estate. * * * 
 
 We are satisfied that if the deed had been executed and delivered 
 at the time of its date, it would have been a legal fraud on com- 
 plainant, under the rule in Cranson v. Cranson, 4 Mich. R. 230. And 
 assuming all that is claimed for defendants on the facts, the land was 
 then owned by Henry B. Brown in his own right, and free from any 
 trust whatever. * * * 
 
 In bringing about the marriage, Brown had, and was evidently 
 intended to have, credit for owning the premises in controversy. 
 The deed was not made public, and was unquestionably intended to 
 prevent the dower interest of complainant from attaching, — if the 
 deed itself was really made operative. This was a legal fraud, and 
 could not lose that character by reason of any desire to carry out a 
 previous purpose, concealed from complainant and the public, and 
 continuing concealed during the remainder of Brown's life. 
 
 (b.) Ante-nuptial settlements or agreements intended to bar dower} 
 
 VINCENT v. SPOONER. 
 
 2 Cushing (Mass.), 467. — 1848. 
 
 Fletcher, J. — This was a suit by the demandant, as the widow 
 of Isaac Vincent, to recover dower in a certain messuage, of which 
 the tenant, as the executor of Vincent, is in possession. It is 
 admitted that the demandant was the lawful wife of Vincent; that 
 during the coverture he was lawfully seized of the premises described 
 in the writ, and died seized thereof, and that the demandant's 
 demand to have dower assigned to her therein was duly made before 
 the commencement of this suit. The tenants contend that this suit 
 cannot be maintained, for the reason that, prior to the demandant's 
 intermarriage with Isaac Vincent, she duly executed an ante-nuptial 
 contract with him and one Valentine Bradford, as trustee, by the 
 terms of which she accepted a certain pecuniary provision therein 
 
 1 Sec N. Y. R. P. L. §§ 177-179, 182. —Ed. 
 
 LAW OF PROP. IN LAND — 44
 
 69O ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 made for her out of the estate of her intended husband in lieu of 
 dower. 
 
 It appeared that previous to the marriage, an indenture between 
 Isaac Vincent, of the first part; Valentine Bradford, of the second 
 part, and the demandant, by her then name of Sarah T. Cushman, 
 of the third part, was executed, by which Vincent covenanted with 
 Bradford, that if the marriage took place, and the plaintiff survived 
 him, he would cause to be paid and secured to Bradford, by his last 
 will or otherwise, the sum of one thousand dollars, to be paid within 
 ten months after his decease, and would also cause to be paid or 
 secured to Bradford the further sum of five hundred and fifty dollars, 
 to be paid to him yearly, during the widowhood of the demandant, 
 to be paid over to her instead and in satisfaction of dower, and of all 
 distributive share in his personal estate. Bradford covenanted faith- 
 fully to execute the trusts, and the demandant covenanted and 
 agreed, that the sum of one thousand dollars being provided to be 
 paid and actually paid, and an annual sum of five hundred and fifty 
 dollars being secured and provided to be paid, should be in full 
 satisfaction and bar of her dower in his estate, and should also be a 
 bar to her claiming or having any part of his personal estate. 
 
 Isaac Vincent deceased, having made his last will and testament, 
 of which the tenant was duly appointed executor. Upon the tenant's 
 assuming the trust of executor, he duly notified the demandant and 
 Bradford, the trustee, of his readiness to perform all the stipulations 
 of the ante-nuptial contract. Within ten months after the decease 
 of Vincent, the tenant paid Bradford, the trustee, the sum of one 
 thousand dollars, which was accepted by him and tendered to the 
 demandant. 
 
 Within the ten months also, the tenant executed and delivered to 
 Bradford a bond, with sufficient sureties, for the faithful and prompt 
 payment of the annuity of five hundred and fifty dollars during the 
 widowhood of the demandant, which bond was also fully secured by 
 mortgage; and the bond and mortgage were accepted by Bradford, 
 as such trustee, as sufficient security for the payment of the annuity. 
 
 Within one year from the decease of Vincent, the tenant paid the 
 trustee the sum of five hundred and fifty dollars, pursuant to the 
 ante-nuptial contract, which was also accepted by the trustee and 
 tendered to the demandant. Both sums, so tendered to the 
 demandant, ami not accepted by her, have been specially deposited 
 in bank. 
 
 No reference was particularly made in the will of Isaac Vincent to 
 the ante-nuptial settlement, but a general deduction was therein 
 given for the payment of debts and the performance of obligations.
 
 II. 3-] LIFE ESTATES: DOWER. 69I 
 
 At common law, a jointure made to a wife before or after marriage 
 was not bar to her dower. By the statute of 27 Henry 8, c. 10, § 6, 
 which had always been in force here, before our revised statutes, no 
 jointure is a bar of dower, unless it be a freehold estate in lands, 
 tenements, or hereditaments, for the life of the wife at least, and 
 which is to commence and take effect, in possession or profit, 
 immediately on the husband's death. The demandant's action, 
 therefore, would not be barred by the marriage settlement, either at 
 common law, or by the statute of 27 Henry 8, c. 10. The defense 
 to the action, therefore, rests wholly on the Revised Statutes, c. 60, 
 §§ 8, 9. The eighth section of that chapter is taken mostly from 
 the statute of 27 Henry 8, c. 10. The provision as to the assent of 
 the wife, and the mode of signifying her assent when she is under 
 age, is adopted from the revised code of New York. The ninth sec- 
 tion is also adopted from the New York Code. By this latter section 
 it is provided, that any pecuniary provision that may be made for the 
 benefit of the intended wife, and in bar of her dower, shall, if 
 assented to by her, as provided in the preceding section, bar her 
 right of dower in all the lands of her husband. In regard to this 
 section, the commissioners for revising the statutes say: " The 
 ancient distinction between real and personal estates is not much 
 regarded by our present laws and usages as it will often be found 
 more convenient, and probably quite as secure for the widow, to have 
 her income payable out of public stocks, or other personal estate, as 
 to have it depend on the rents of real estate." The only question 
 in the present case, therefore, is whether by the ante-nuptial con- 
 tract any pecuniary provision was made for the benefit of the 
 demandant, the intended wife, in lieu of dower, and assented to by 
 her in the manner provided by the statute. If such provision was 
 made and assented to then, by force of the statute, it bars her right 
 of dower, and she cannot maintain this action. If no such provision 
 was made and accepted, then, of course, she is entitled to her dower, 
 and this action is well brought. 
 
 On the part of the demandant, it is maintained, that no such pro- 
 vision was in fact made ; that by the marriage contract it was optional, 
 on the part of the husband whether he would pay or secure to the 
 demandant the sums of money mentioned; that he was under no 
 absolute obligation to do so, and in fact did not cause the sum of 
 money mentioned to be paid or secured by his last will or otherwise, 
 according to the provisions of the marriage settlement; and, there- 
 fore, that the demandant is not barred of her dower, which could 
 only be effected by actually paying and securing the money, as pro- 
 vided in the marriage contract.
 
 692 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CM. E. 
 
 These positions, on the part of the demandant, if well sustained 
 in fact, would no doubt establish her claim. But the facts by no 
 means warrant or sustain these positions. By the marriage settle- 
 ment, the husband had no option or election, whether he would or 
 would not pay and secure the sums stipulated. He absolutely and 
 unconditionally covenanted with the trustee, that he would by his 
 last will or otherwise cause to be paid and secured, for the intended 
 wife, the sums stipulated. The demandant expressly assented, that 
 such sums being paid and secured, should be in bar of her dower. 
 The husband covenanted, that he would by his last will or otherwise 
 cause the money to be paid and secured. He made no express or 
 particular provision by his will. But it was not necessary that 
 provision should be made by will. Any other mode was just as 
 effectual. All that this marriage contract required, and all that the 
 statute requires, is, that the pecuniary provision, which the intended 
 wife assents to instead of dower, should be actually and effectually 
 secured to her. In the present instance, the indenture, constituting 
 the marriage contract, was of itself a complete provision within the 
 statute, and clearly fulfilled and accomplished the covenants on the 
 part of the husband. This indenture absolutely bound the husband 
 and his estate, and could be fully enforced against the latter in the 
 hands of his executor. As there was ample estate, the husband did, 
 therefore, in fulfillment of his covenant to cause the money to be 
 paid and secured by his will or otherwise, cause it actually to be 
 done by this indenture itself. In fact, the executor, admitting his 
 liability, has fulfilled the covenant of the husband, to the letter, by 
 paying and securing to the trustee, for the benefit of the wife, the 
 sums which she assented to take in lieu of dower. The case, there- 
 fore, is clearly within the statute and the demandant's claim of 
 dower is barred by the pecuniary provision made for her benefit, and 
 assented to by her; and, consequently, according to the agreement 
 of the parties, a nonsuit must be entered. 1 
 
 (r.) Alienage of wife. 
 
 The Chancellor in PRIEST v. CUMMINGS. 
 
 20 Wendell (N. Y.), 338. — 1838. 
 
 I have no doubt upon the question, as to the regularity and 
 validity of the naturalization of the defendant in error in 1829. 
 The fact that she was then a feme covert was no objection, as 
 
 1 See §§ 179-182 N. Y. R. P. L. — Ed.
 
 II. 3-] LIFE ESTATES: DOWER. 
 
 neither married women or infants are excluded from /the benefit 
 of the acts of Congress on this subject. The fact that the statute 
 makes the naturalization of the father, in certain castas, enure to 
 the benefit of his infant children, does not preclude infants them- 
 selves from applying whenever it may be necessary; and as the 
 general language of the naturalization acts include all free white 
 persons, femes covert and infants, if they have sufficient capacity to 
 understand their rights and the nature and obligation of an oath, 
 may be naturalized. 
 
 I cannot admit, however, that the effect of naturalization 
 under the general acts of Congress, which have not declared what 
 shall be the effect of such naturalization, can retroact so as to divest 
 rights which have been acquired by others previous to such naturali- 
 zation. It is said by Coke, and other elementary writers, that if a 
 man take an alien to wife, and afterwards aliens his land, and then 
 the wife is made a denizen, and the husband afterwards dies, she 
 shall not be endowed, because her capacity and possibility to be 
 endowed came subsequent to the marriage by the act of denization; 
 but that it is otherwise where she is naturalized by act of Parlia- 
 ment, Co. Litt. 33, b. ; Clancy, 202; and it is supposed that the 
 effect of a naturalization under an act of Congress must necessarily 
 have the same effect as naturalization by act of Parliament. That 
 a naturalization here has the effect to give to the naturalized citizen 
 inheritable blood, so as to enable him to take by descent from 
 another citizen, as well as to acquire lands by purchase, I have no 
 doubt. It probably would also have the effect to give to the 
 naturalized wife a capacity to take an inchoate right of dower in 
 lands, of which the husband was seised in fee at the time of her 
 naturalization, so as to give her the right of dower therein at his 
 death. To that extent the husband takes his land, subject to the 
 right of his wife to acquire a title to dower therein, by a subsequent 
 naturalization under a law which was in existence at the time of his 
 purchase, or marriage; and as the wife after her naturalization has 
 an inchoate right of dower in such lands, of which she cannot be 
 deprived except by her own consent, a subsequent purchaser from 
 the husband who neglects to procure her release, take the land sub- 
 ject to such right. But where the husband had parted with all his 
 interest in the land before his wife had the capacity to take even an 
 inchoate interest therein, which could by any possibility be released 
 while the wife was an alien, it would be contrary to every principle 
 of justice and common sense to give her the right to divest or impair 
 the title of the purchaser, by her subsequent act of naturalization. 
 The same objections would also exist to the retroactive operation of
 
 694 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. C 1 1 . I. 
 
 a naturalization, where the person thus naturalized had previously 
 been passed over in the descent of real estate, in favor of a more 
 remote lineal or collateral heir who was not an alien. In such cases, 
 if the principle of retroaction contended for here, should be adopted 
 and established, the estate would to a certain extent be rendered 
 inalienable in the hands of the owner thereof. In the first case, 
 the possible right of the alien wife could not be extinguished by any 
 release or common law conveyance; and in the last case, no one 
 could safely purchase from the more remote heir, upon whom the 
 inheritance had descended, until all the intermediate alien heirs and 
 their descendants, who were in existence at the time of the descent 
 cast, were dead, as it could not until then be known to the purchaser 
 whether any, and if any, which of them would become naturalized. 
 
 The effect of a statutory naturalization in England, in overreaching 
 previous vested rights, depends upon the omnipotence which has 
 been ascribed to an act of Parliament ; in which at some of the earlier 
 periods of English history, a due regard was not always paid to the 
 rights of third persons who had not petitioned for the passing of 
 the act. * * * 
 
 I conclude, therefore, that the naturalization of the defendant in 
 error had the same effect as to the rights of property, as letters, of 
 denization had by the common law, and the same effect as to all 
 other rights as an act of Parliament giving her all the rights of a 
 natural born subject, and without any special provisions to give it a 
 retrospective operation. She, therefore, had from that time the 
 capacity to take an estate in dower, of and in any lands of which the 
 husband was then seised of an inheritable estate; to take lands by 
 devise or descent from any person capable of conveying or trans- 
 mitting lands in that manner to her; and to take any other interest 
 in real estate by gift or otherwise to herself, and to sell, alienate, or 
 bequeath the same, or transmit the same to such of her heirs as were 
 capable of taking by descent, as fully as a natural born citizen might 
 do, but not otherwise. Her naturalization, however, did not retro- 
 spect so as to deprive the mortgagees of her husband, or those 
 claiming under them, of any right or interest in his lands which they 
 had acquired previous to her naturalization! 1 
 
 1 See Burton v. Burton, 1 Abb. Ct. App. Dec. 271 for construction of certain 
 statutes, and see subject of "aliens " in Part V, infra. — Ed.
 
 II. 3-] LIFE ESTATES: DOWER. 695 
 
 (5.) Defeating Dower. 
 (a.) Elopement and adultery. Divorce. 
 
 REYNOLDS v. REYNOLDS. 
 
 24 Wendell (N. Y.), 193. — 1840. 
 
 By the Court, Bronson, J. — Adultery in the wife was, at the com- 
 mon law, no bar to her claim for dower, not even where a divorce 
 followed, unless it was a divorce a vinculo. 2 Inst. 436; Co. Litt. 
 32, a., and note 194; 2 Black. Conn. 130; 4 Kent's Comm. 52, note c, 
 54. But by the statute Westm. second, 13 Ed. 1, ch. 34, it was 
 enacted, that " if a wife willingly leave her husband and go away, 
 and continue with her advouterer, she shall be barred forever of 
 action to demand her dower that she ought to have of her husband's 
 lands, if she be convicted thereupon, except that her husband will- 
 ingly, and without coercion of the church, reconcile her, and suffer 
 her to dwell with him; in which case, she shall be restored to her 
 action." 2 Inst. 433. This statute was, in substance, re-enacted in 
 this State in 1787, 1 Greenl. 294, § 7; and it remained in force 
 down to the revision of the laws in 1830. 1 R. L. of 1801, p. 53, 
 and 1 R. L. 58. Under this statute, there can be little doubt that 
 the plaintiff forfeited her claim to dower by living in adultery with 
 Haskins, without being afterwards reconciled to her husband. 
 
 The provocation which she had to depart will not aid her. The 
 words of the statute Westm. 2, are, " if a wife willingly leave her 
 husband, and go away, and continue," etc. Lord Coke, in his com- 
 mentary, says: "Albeit the words of this branch be in the con- 
 junctive, yet if the woman be taken away not sponte, but against her 
 will, but after consent, and remain with the adulterer without being 
 reconciled, etc., she shall lose her dower; for the cause of the bar 
 of her dower is, not the manner of her going away, but the remain- 
 ing with the adulterer in avowtry, without reconciliation; " and so 
 if she go away with her husband's consent and agreement with 
 another man, and afterwards commit adulter)', she shall be barred. 
 And Coke cites what he calls " a rare and strange case," from the 
 Parliament roll, 30 Ed. 1, which was only seventeen years after the 
 statute was passed. In that case, John de Camoys, by deed, 
 delivered and committed his wife Margaret to the Lord William 
 Paynel, and did grant and confirm that the said Margaret should be 
 and remain with said Lord William according to his will. After the 
 death of her husband, the wife demanded her dower, but it was 
 adjudged against her, on the ground of the adultery with Paynel. 
 2 Inst. 435; Dyer, 107 a., note; Bacon's Abr. Dower F. In Coot
 
 696 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 v. Berty, 12 Mod. 232, in dower, the defendant pleaded the elope- 
 ment of the wife; she replied that the husband had bargained and 
 sold her to the adulterer; but the replication was held bad. In the 
 recent case of Hethrigton v. Graham, 6 Bing. 135, it was held that 
 adultery was a bar, although committed after the husband and wife 
 had separated by mutual consent. Tindal, Ch. J., concludes a 
 review of the authorities, by saying that they " place the forfeiture 
 of the dower upon the fact of a living from the husband in adultery, 
 and not upon the circumstances of the elopement." I do not find 
 that this doctrine has been departed from. 
 
 Although the plaintiff had good cause for leaving her husband, yet 
 the subsequent adultery, had the husband died while the act of 1787 
 remained in force, would clearly have barred this action for dower. 
 The effect of the present statute upon her claim remains to be 
 considered. 
 
 In 1830, the act of 1787 was repealed and after declaring that a 
 widow shall be entitled to dower, a new provision was made in the 
 following words: " In case of divorce dissolving the marriage con- 
 tract, for the misconduct of the wife, she shall not be endowed." 
 1 R. S. 741, § 8. 1 Under this statute the adultery is not enough. 
 It must be followed by a divorce dissolving the marriage contract. 
 This has brought us back to the common law, as it stood before the 
 statute of 13 Ed. I., for we have already seen, adultery did not work 
 a forfeiture at the common law. And as to a divorce a vinculo, that 
 always put an end to the claim of dower; for although it was not 
 necessary that the seisin of the husband should continue during the 
 coverture, it was necessary that the marriage should continue until 
 the death of the husband. Co. Litt. 32, a.; 2 Bl. Comm. 130; 2 
 Kent's Comm. 52, c, p. 54. The statute bar for the mere act of 
 adultery, which had existed for more than five centuries and a half, 
 was blotted out by the repeal of the act of 1787 — the British 
 statutes not being in force in this State; and the 8th section of the 
 act of 1830 has added nothing to the law as it would have stood had 
 tne Legislature stopped with a simple repeal of the act of 1787. 
 
 How, then, stands this case? Prior to 1830, the plaintiff was under 
 a statute disability, and had her husband died at that time she could 
 not have taken her dower. But seven years before the death of her 
 husband, the disability was removed by the repeal of the statute — 
 there was no longer any bar, and I am unable to discover any valid 
 objection to her claim. She is able to establish all the elements of 
 a perfect title to dower, to wit, a lawful marriage, and the seisin and 
 
 1 1. N. V. R. P. L., §§ 176 and 186; and see § 1760 Code Civ. Pro. — Ed.
 
 II. 3] LIFE ESTATES: DOWER. 697 
 
 death of the husband. The objection urged against her is, there 
 was a time when if your husband had died, you would not have been 
 entitled to dower. To this she may well answer, true it is, there 
 was such a time, but it has gone by and when my husband died, 
 there was no legal bar in my way. The law says, a widow shall be 
 endowed, unless there has been a divorce for her misconduct; there 
 has been no such divorce in my case, and I am a widow and claim 
 my right. Her arguments rest, I think, on a solid foundation. 
 
 It is not very important whether we regard the late revision of the 
 statutes as working a simple repeal of the act of 1787, and thus 
 reviving the ancient common law; or whether we regard it as a 
 repeal, accompanied by a new provision; for in either case, the mere 
 fact of living in adultery ceased to be a bar to dower in 1830, and 
 the husband did not die until 1837. There had been no divorce, and 
 there was at that time no obstacle in the way of the plaintiff's claim. 
 
 The defendant's answer to this view of the case is, that the plain- 
 tiff had a right, interest or estate in the land in the lifetime of the 
 husband, which was forfeited by the adultery prior to 1830; and we 
 are referred to the saving clauses in the repealing statute. 2 R. S. 
 779, §§ 5, 6. The argument assumes what cannot be maintained. 
 While the husband lives, the wife has no right, interest or estate in 
 the land. She has nothing but a mere capacity to take, in the event 
 of her surviving her husband — she is dowable. It is not until she 
 becomes a widow, that she is entitled to dower. It was the widow, 
 not the wife, who was provided for by magna charta. 9 Hen. III., 
 ch. 7; 2 Inst. 16. And so it has always been in our statutes con- 
 cerning dower. 1 R. L. 56, ch. 4; 1 R. S. 740. The legal assurance 
 that the wife shall have dower if she becomes a widow, is sometimes 
 spoken of, through the imperfection of language, as though it were 
 a present estate or interest in the land; but, in truth, it is not so; 
 she has no right, until after the death of her husband. In Lampef s 
 Case, 10 Co. 49, Lord Coke, although he was endeavoring to prove 
 that the wife might be barred by a fine, was forced to admit that, 
 " notwithstanding her husband is seised in fee, and the marriage is 
 lawful yet she has but a possibility of dower till the death of her 
 husband." * * * 
 
 It is undoubtedly true, as a general rule, that a statute shall not 
 have a retrospect beyond the time of its commencement, or be so 
 construed as to take away a vested right of property, or defeat a 
 right of action already accrued. Saver v. Wisner, 8 Wendell, 661; 
 Varick v. Briggs, 6 Paige, ^2. But that doctrine can have no bearing 
 upon this case. While her husband lived the plaintiff had no 
 interest in the land; no right of action which could be forfeited.
 
 698 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. I. 
 
 Her misconduct vested no new interest or title in any third person, 
 and consequently none was taken away by the act of 1830. 
 
 I cannot think it a sufficient objection to the plaintiff's claim, that 
 there was a time, when, if her husband had died, she would have 
 been barred. Though she was disabled by the adultery, and her 
 dowable capacity was gone for a time, it was restored before the 
 right accrued — the obstacle in the way of her taking was removed 
 by the repeal of the act of 1787. * * * 
 
 New trial granted. 
 
 (l>.) Loss of husband' s estate. 
 
 WHEELER v. KIRTLAND. 
 27 New Jersey Equity, 534. — 1875. 
 
 Reed, J. — * * * The wife, by her bill, now claims to have an 
 interest in the award, by reason of her inchoate dower in the land 
 so condemned. 
 
 Two questions are presented: First. Has the wife an interest in 
 this award? Second. If so, what interest? 
 
 The character of inchoate dower has been the subject of much 
 contrariety of opinion It is said not to be an estate. It is not the 
 subject of grant. It cannot be taken upon execution. Equity will 
 not apply it to the satisfaction of the debts of the wife. As dower 
 was a humane provision for the sustenance of the widow and younger 
 children, some limit was imposed on the power to defeat its consum- 
 mation. Yet, while not technically an estate, it cannot, at this day, 
 be denied that inchoate dower is a valuable interest in land. It is 
 an interest which the courts have repeatedly recognized. Its pres- 
 ence works a breach of the covenants against incumbrances. Carter 
 v. Dentnan, 3 Zab. 260. Its relinquishment is a valuable considera- 
 tion to support a conveyance by her husband to her against his 
 creditors Wright x. Stanard, 2 Brock. 311; or a promissory note 
 given by a purchaser. Nims v. Bigelow, 45 N. H. 343. 
 
 A conveyance by the husband on the eve of marriage, to defeat 
 dower of the wife, will be set aside during the life of the husband. 
 Smith v. Smith, 2 Halst. 515. And when, by judicial proceedings, 
 land is converted into money, the wife's interest is still recognized 
 and protected. The character of land is impressed upon the fund, 
 ami courts of equity will secure that portion of the money which 
 represents her inchoate interest. Matthews v. Ditryea, 45 Barb. 
 69; Malloney \. Floran, 49 N. Y. 116; Vartie v. Underwood, 18 Barb. 
 561. This principle has been recognized in this State, in the case
 
 II. 3.] LIFE ESTATES: DOWER. 699 
 
 of Hays v.Whitall, 2 Beas. 241. It seems, therefore, clear that the 
 wife had a valuable interest in the strip of land condemned. It is 
 equally clear that if the amount awarded represents the interest of 
 both husband and wife, she has an interest in the award, which, 
 upon general principles, equity is bound to protect. It is insisted, 
 however, that no portion of this award represents the inchoate 
 dower of the wife in the lands. It is said that when lands are taken 
 for public use, the mere exercise of the right of eminent domain in 
 a proceeding against the interest of the husband, extinguishes this 
 right of the wife, without notice or compensation to her. This is 
 the doctrine undoubtedly enunciated by the text-writers. Dillon on 
 Mun. Cor., §§ 459-496; Scribner on Dower, vol. II., p. 551. The 
 two cases upon which these writers rely are Gwynne v. Cincinnati, 3 
 Ohio, 24, and Moore v. City of New York, 8 N. Y. no. The first 
 was an application of the rule to dedicated lands, and the latter to 
 lands taken by condemnation. 
 
 While the conclusion is in conformity with the settled law in Eng- 
 land and this country, the conclusion is reached in the case of Moore 
 v. The City of New York, by a general assertion that the inchoate 
 interest of the wife was without value. Gardner, Judge, says: 
 " The wife had no interest in the land, and the possibility she did 
 possess was incapable of being estimated with any degree of 
 accuracy." This was said in the face of the fact that, years before 
 Chancellor Walworth had propounded and acted upon a rule for the 
 computation of the value of this very interest. Jackson v. Edivards, 
 7 Paige, 408; Bartlette v. Vanzandt, 4 Sandf. Ch. 396. The broad 
 statement in Moore v. The City of New York, is not only opposed to 
 the weight of authority elsewhere, but has been repudiated or modi- 
 fied in later cases in that State. /// the Matter of Central Park 
 Extension, 16 Abb. Prac. R. 68; Simar v. Canaday, 53 N. Y. 298, etc. 
 
 The extinguishment of dower by condemnation means no more 
 than this, that, as against the State, no widow can claim dower in 
 lands devoted to public use. It has its origin at a time when the 
 sovereign power in the State could assume its right to the use of the 
 property of the subject without compensation. The right was exer- 
 cised by the removal from possession, of all parties whose occupancy 
 was inconsistent with the object of the public use. No one there- 
 after could claim a possession inconsistent with such user. The 
 widow was merely in the same position as any other person claiming 
 an interest in the land. The rights of all parties were subject to 
 this dominion of the State, and were in abeyance while the State 
 chose to exercise its privilege. Thus it was said by Coke, " Of a 
 castle that is maintained for the necessary defence of the realm, a
 
 JOO ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 woman shall not be endowed, because it ought not to be divided, 
 and the public shall be preferred before the private." " Here," says 
 Scribner, " we see shadowed forth the principle upon which the 
 courts at a later day have proceeded, in holding the inchoate dower of 
 the wife extinguished in lands appropriated, according to the forms 
 of law, to the uses of the public." Scribner on Dower, vol. I., p. 
 550. It is apparent that the doctrine arose, not because the inchoate 
 dower was valueless, but because it, like all other interests, was 
 servient to the power which inheres in every government, and is 
 here styled eminent domain. As the interest is valuable, she is, 
 under our law, entitled to compensation where those lands are taken 
 for public use. 
 
 This conclusion does not conflict with the doctrine that where 
 lands are condemned by proceedings to which the husband only is 
 a party, that the wife cannot thereafter assert a right in the land 
 against the public. I think, for the purposes of condemnation and 
 compensation, this interest of the wife's, not rising to the dignity 
 of an estate, is represented in the fee of the husband. We know 
 that in making compensation, the right taken is considered a per- 
 petual easement, equivalent to the fee, and that damages are assessed 
 for the value of the entire interest in the land. 
 
 It has never been hinted that a deduction for the wife's inchoate 
 dower should be made. The value of her interest, therefore, passes 
 into the award. In this view, the condemnation of the land, by 
 notice to the husband, condemns and extinguishes the inchoate 
 interest of the wife. The land is transmitted into money. It 
 assumes a shape where she can claim her right without interfering 
 with the public. Equity will secure to her that portion of the award 
 which represents her inchoate dower. 
 
 While this doctrine is expressly held in no preceding case, the 
 court, in the Matter of the Central Park Extension, 16 Abb. Prac. R. 69, 
 speaking of the case of Moore v. The City of New York, says: " It 
 might have been added to that case, that the right was transferred 
 from the land to the money received from the land by the husband, 
 if the wife survived him." Mr. Scribner, vol. II., p. 21, says: " It 
 may be that after the value of the entire estate is ascertained, and 
 the amount paid over to the proper legal authorities, particularly if 
 she be a party to the proceedings, her right is transferred from the 
 land to the money representing the land." 
 
 I think that by the practice in this State, of compensating for the 
 entire value of the land, upon notice to the husband, the wife is 
 represented by her husband, and is always a party to the proceed- 
 ings for the purpose <>f enabling her to assert her right to her inter-
 
 II. 3-] LIFE ESTATES: DOWER. 701 
 
 est in the award. Upon the first question, I think the conclusion of 
 the vice-chancellor was correct. This being so, the parties desire 
 a sum in gross, in preference to the securing of one-third of the 
 principal, to await the event of her surviving her husband. In what 
 portion of the award is the wife entitled to inchoate dower? The 
 entire amount of damages awarded was the sum of $15,000. The 
 benefits were $1,500. The benefits were properly deducted, leaving 
 the balance $13,500. Of this sum, it is claimed that only $4,800 
 were for the value of land taken, the remaining portion being for 
 damages to the adjacent land of the husband. It is claimed that 
 the wife has no interest in the damages. 
 
 It is true, generally, that the wife has no interest in damages 
 resulting from injury to land. I think, however, in this instance, 
 that the computation of the vice-chancellor upon the entire amount 
 of $13,500, was correct. It represented the depreciation of the 
 entire tract. Although she has still her right of dower in the remain- 
 ing portion, yet by the sale under the Wheeler and Green judgment, 
 before, any improvements were made, her right is limited to 
 recover a third of the land at the time of the sale. Vandorn v. 
 Vandorn, Penn. 513. She gets, therefore, what she would have 
 recovered had the land not been taken. 
 
 I think the decree of the chancellor should be affirmed, with costs. 
 
 TRUSTEES OF THE POOR v. PRATT. 
 
 10 Maryland, 5. — 1856. 
 [Reported hereiji at p. 687.] 
 
 (r.) Husband* s conveyance during coverture .' 
 
 DICK v. DOUGHTEN. 
 1 Delaware Chancery, 320. — 1827. 
 
 Bill in equity for the assignment of dower. The case made by 
 this bill was as follows: 
 
 James Dick, deceased, the husband of the complainant, was in his 
 lifetime seised in fee simple of a certain tract of land, situate in New 
 Castle county. About the 21st of April, 1803, he sold and conveyed 
 the same to David L. Reece, the complainant being before and 
 at the time of the sale and conveyance the lawful wife of the 
 
 1 See N. Y. R. P. L. § 183. — Ed.
 
 •J02 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 grantor, the said James Dick. The bill alleged that the complainant 
 had not at any time released her dower in said land or barred her- 
 self thereof by any act or deed whatever. The title to the land was 
 traced down by the bill, from David L. Reece to William Doughten, 
 the present tenant and the defendant in this suit. James Dick, the 
 husband, died on the 26th of December, 1803, leaving to survive 
 him his widow, the complainant, and one daughter. William Dough- 
 ten, the defendant, was in possession of the lands at the filing of this 
 bill, and had been since the 21st of March, 1814. The prayer was 
 that dower be assigned to the complainant out of the said tract of 
 land, and that the defendants account with her for the rents ?nd 
 profits which may have accrued therefrom since the date of the 
 death of the said James Dick. * * * 
 
 Ridgely, Chancellor. — It is now for the first time objected in 
 argument for the defendants, that William Doughten was a pur- 
 chaser without notice, for a valuable consideration. * * * 
 
 I might here close this part of the case; but two other points were 
 made in the argument. First, on the part of the complainant, it was 
 objected that the defendant could not make the defense, by answer, 
 of his being a purchaser for a valuable consideration, without notice. 
 The second point was, whether the defendant can avail himself, by 
 plea or answer, of his being a purchaser for a valuable consideration 
 without notice, as against a claim of dower in the complainant. 
 
 First, I think a defendant may avail himself of this defense by 
 answer as well as plea. The following authorities support this 
 opinion: 1 Harrinson's Ch. Pr. 244; Harris v. Ingleton, 3 P. Wms. 
 91, 95; 2 Ves. Sr. 492. Lord Hardwicke says, in Chapman v. Turner, 
 1 Atk. 54, " The defense proper for a plea must be such as reduces 
 the cause to a particular point, and from thence creates a bar to the 
 suit, and is to save the parties the expense of an examination; and 
 it is not every good defense in equity that is good in a plea, for 
 where the defense consists of a variety of circumstances, there is no 
 use of a plea; the examination must still be at large, and the effect 
 of allowing such a plea will be that the court will give their judg- 
 ment on the circumstances of the case before they are made out by 
 the proof. " In addition, Lord Redesdale's Treatise on Pleadings, 
 246, may be consulted on this subject. The defense in this case 
 might, possibly, have been better made by a plea and by answer in 
 support of the plea; but I will not enlarge on this subject. 
 
 The second might have been much the most important point; but 
 from the failure of proof in the defendant, it is not of the first con- 
 sideration in the cause. However, I shall not pass it by without
 
 II. 3-] LIFE ESTATES: DOWER. 703 
 
 notice. In Williams v.Lambe, 3 Bro. Ch. Rep. 264, which was a bill 
 for dower, and in which the defendant pleaded to the discovery and 
 relief that he was a purchaser for a valuable consideration, without 
 notice of the vendor being married, Lord Thurlow said, " the only- 
 question was, whether a plea of purchase without notice would lie 
 against a bill to set out dower; that he thought where the party is 
 pursuing a legal title, as dower is, that plea does not apply, it being 
 only a bar to an equitable, not to a legal claim." He therefore 
 overruled the plea. Mr. Park, in his Treatise on Dower, 328, says 
 the case of Williams v. Lambe may be supported on its particular 
 circumstances, on the ground that the plea covered too much, being 
 to the relief as well as to the discovery. The dowress had a right to 
 recover against the purchaser at law, and if it be established that a 
 court of equity has a concurrent jurisdiction to assign dower, such 
 a plea to the relief would appear to be inexplicable; although it 
 might be good to the discovery, since the relief prayed is not the 
 assistance of the court to enable the dowress to make good her title 
 at law, but merely to give her the effect of a recovery at law. It is, 
 indeed, noticeable that the observations of Lord Thurlow seem dis- 
 tinctly addressed to the plea, as a plea to the relief, and his omitting 
 to intimate that such a plea might be good as to the discovery, may 
 possibly be accounted for by the consideration that in a case so cir- 
 cumstanced, a plea to the discovery would almost unavoidably be 
 overruled by the answer. Now, in the case of Williams v. Lambe, I 
 do not perceive the ground for Mr. Park's distinction; for as the 
 case is reported by Brown, although Lord Thurlow's remarks were 
 addressed to the plea, yet they distinctly state that the plea did not 
 apply as a bar to a legal claim; that dower was a legal claim, and 
 therefore the plea was overruled. But suppose Mr. Park's distinc- 
 tion to be correct, this answer does not object to making the dis- 
 covery; and it does state the several deeds of conveyance, and 
 makes a full discovery as to the title; and then as I clearly under- 
 stand it, the fact that the purchase for a full, fair and just price, 
 without any notice, knowledge or belief that there existed any defect 
 in the title, or that the said tract of land was liable to any claim or 
 demand of dower by the said Martha Dick is opposed as a defense 
 to the relief. This is a legal, not an equitable title, and I should 
 decree in favor of the complainant, had the defendants supported 
 their answer by proof, unless the admission of the sufficiency of the 
 answer by not excepting it might have interposed a difficulty. * * *
 
 704 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 d. Wife's release of dower. 
 
 HARRIMAN v. GRAY. 
 
 49 Maine, 537. — i860. 
 
 Appleton, J. — On the 23d of October, 1823, the plaintiff's hus- 
 band conveyed the premises in which dower is demanded, to Joab 
 Harriman, by a deed to which she was not a party. 
 
 On the 19th January, 1827, Joab Harriman quitclaimed the same 
 to James Harriman by deed having no covenants and closing in these 
 words: " So that neither I, the said Joab Harriman, nor my heirs, 
 nor any other person or persons claiming from, or under me or them 
 or in the name, right or stead of me or them, shall or will, by any 
 way or means, have, claim or demand any right or title to the afore- 
 said premises, or their appurtenances, or any part or parcel thereof 
 forever." 
 
 From James Harriman the title passed through various mesne con- 
 veyances to the tenant. 
 
 Upon the case as thus presented, the plaintiff's right to dower 
 would seem to be unquestioned. The tenant claims to bar the plain- 
 tiff's right to dower by reason of her release of the same to Joab 
 Harriman, by deed dated April 2, 1838. But, long before this, the 
 title to the premises in question had been conveyed to those under 
 whom the tenants claim. The releasee had ceased to have any inter- 
 est therein. A release of dower to a stranger constitutes no defense. 
 Pixley v. Bennett, 11 Mass. 298. " In dower, the tenant pleads a 
 release from the demandant to such an one, tenant in possessione tene- 
 mentor prcedict existent, and because not said he was tenens liberi tetie- 
 menti, it was holden no plea; and adjudged for the demandant; for 
 a release of dower, to a tenant for years, or at will can be no bar of 
 dower, because she cannot demand it against them." Cro. Jac. 151. 
 
 Neither is the demandant to be estopped by this conveyance. 
 Estoppels, to be binding, must be reciprocal. As between the 
 demandant and Joab Harriman, she would be estopped. But the 
 release to Joab does not inure to his grantees, and, not inuring by 
 estoppel to their benefit, they cannot set it up as a bar. It has been 
 repeatedly settled, that a grantee is not estopped from setting up a 
 subsequent title, by language such as is found in the deed of Joab 
 to James Harriman. Nor do the subsequently acquired rights of 
 Joab inure to the use of his grantee. Pike v. Galvin, 29 Maine, 183. 
 
 Case to stand for trial.
 
 II. 3.] LIFE ESTATES: DOWER. 705 
 
 WRONKOW v. OAKLEY. 
 133 New York, 505. — 1892. 
 
 Peckham, J. — In relation to the question arising upon this appli- 
 cation of the purchaser, Wolf, to be relieved from his bid at the 
 judicial sale on the ground that the interest of the wife of Bauer 
 had not been duly conveyed by virtue of her power of attorney to 
 her husband, we are of the opinion that the order of the General 
 Term is erroneous and for the reasons stated in the dissenting opinion 
 of Mr. Justice Andrews at the General Term * * * we think 
 there is no objection to the title arising out of the power of attorney 
 given by the wife to the husband. She had the right to execute a 
 power of attorney under the act, chap. 300 of the Laws of 1878, ■ and 
 in executing such power she could appoint her husband her agent or 
 attorney in fact. * * * 
 
 (e.) Testamentary gift in lieu of dower. 
 KONVALINKA v. SCHLEGEL. 
 
 104 New York, 125. — 1887. 
 
 Andrews, J. — The question is whether the widow of the testator 
 is put to her election between dower and the provision in the will. 
 
 The estate of the testator consisted of both real and personal prop- 
 erty. The will, after directing the payment of the testator's debts 
 and funeral expenses, and after giving to his wife the bed-room 
 furniture in his dwelling house, and to his children the rest of the 
 furniture therein, proceeds as follows: " All the rest, residue and 
 remainder of my estate, property and effects of every nature, kind 
 and description, I give, devise and bequeath to my executors and 
 executrix hereinafter named and I authorize and direct them to sell 
 and dispose of the same at such time and on such terms as to them 
 shall seem best, and to divide the proceeds thereof equally among 
 my wife and children, share and share alike." 
 
 There can be no controversy as to the general principles govern- 
 ing the question of election between dower and a provision for the 
 widow in the will. Dower is favored. It is never excluded by a 
 provision for a wife, except by express words or by necessary impli- 
 cation. Where there are no express words there must be upon the 
 face of the will a demonstration of the intention of the testator that 
 the widow shall not take both dower and the provision. The will 
 
 1 § 187 N. Y. R. P. L. — Ed. 
 
 LAW OF PROP. IN LAND — 45
 
 706 estates as to quantity and quality. [PT. IV. CH. I. 
 
 furnishes this demonstration only when it clearly appears without 
 ambiguity or doubt, that to permit the widow to claim both dower 
 and the provision would interfere with the other dispositions and 
 disturb the scheme of the testator, as manifested by his will. The 
 intention of the testator to put the widow to an election cannot be 
 inferred from the extent of the provision, or because she is a devisee 
 under the will for life or in fee, or because it may seem to the court 
 that to permit the widow to claim both the provision and dower 
 would be unjust as a family arrangement or even because it may 
 be inferred or believed, in view of all the circumstances, that if the 
 attention of the testator had been drawn to the subject he would 
 have expressly excluded dower. We repeat, the only sufficient and 
 adequate demonstration which, in the absence of express words, will 
 put the widow to her election, is a clear incompatibility, arising on 
 the face of the will, between a claim of dower and a claim to the 
 benefit given by the will. We cite a few of the cases in this State 
 showing the general principle and the wide range of application. 
 Adsit v. Adsit, 2 J. Ch. 449; Sandford v. Jackson, 10 Paige, 266; 
 Church v. Bull, 2 Den. 430; Lewis v. Smith, 9 N. Y. 502; Fuller v. 
 Yates, 8 Paige, 325; Havens v. Havens, 1 Sand. Ch. 324, 331; Wood 
 v. Wood, 5 Paige, 596. 
 
 In view of these settled rules, we think the widow in this case was 
 not put to her election. The devise to the executors was void as a 
 trust, but valid as a power in trust, for the sale of the lands and a 
 division of the proceeds, and the lands descended to the heirs of the 
 testator, subject to the execution of the power. 1 Rev. Stat. p. 729, 
 § 56; Cooke v. Piatt, 98 N. Y. 35. It is strenuously urged that the 
 power of sale being peremptory, worked an equitable conversion of 
 the lands into personalty, as of the time of the testator's death, and 
 created a trust in the executors in the proceeds for the purpose of 
 distribution, which trust, it is alleged, is inconsistent with a claim of 
 dower. The doctrine of equitable conversion, as the phrase implies, 
 is a fiction of equity which is frequently applied to solve questions 
 as to the validity of trusts; to determine the legal character of the 
 interests of beneficiaries; the devolution of property as between real 
 and personal representatives, and for other purposes. It seems to 
 be supposed that there is a necessary repugnancy between the exist- 
 ence of a trust in real property created by a will, and an outstanding 
 dower interest of a widow in the trust property. We perceive no 
 foundation for this contention. If the purposes of a trust, as declared, 
 require that the entire title, free from the dower interest of the 
 widow, should be vested in the trustees in order to effectuate the 
 purposes <>( the testator in creating it, a clear case for an election
 
 II. 3-] LIFE ESTATES : DOWER. 707 
 
 is presented. Vernon v. Vernon, 53 N. Y. 351. But the mere crea- 
 tion of a trust for the sale of real property and its distribution, is 
 not inconsistent with the existence of a dower interest in the same 
 property. There is no legal difficulty in the trustee executing the 
 power of sale, but the sale will necessarily be subject to the widow's 
 right of dower, as it would be subject to any outstanding interest in 
 a third person, paramount to that of the trustee. In the cases of 
 Savage v. Burnham, 17 N. Y. 561, and Tobias v. Keteham, 32 Id. 319, 
 the widow was put to her election, not because the vesting of the 
 title in trustees was per se inconsistent with a claim for dower but 
 for the reason that the will made a disposition of the income, and 
 contained other provisions which would be in part defeated if dower 
 was insisted upon. There is language in the latter cases, which dis- 
 connected with the context, may give color to the contention of the 
 appellant. But it is the principle upon which adjudged cases pro- 
 ceed, which is mainly to be looked to, because a correct principle is 
 sometimes misapplied. There is, however, no ground for misappre- 
 hension of the meaning of the learned judge in that case, interpreting 
 his language with reference to facts then under consideration. It 
 has frequently been declared that powers of, or in trust for sale, are 
 not inconsistent with the widow's right of dower. Gibson v. Gibson, 
 17 Eng. L. and Eq. 349; Bending v. Bending, 3 Kay & J. 257; Adsit 
 v. Adsit, supra; In re Bracer, 92 N. Y. 239. And it was held in 
 Wood v. Wood, 5 Paige, 596, that the widow was not put to her 
 election where the testator devised all his property to trustees with 
 a peremptory power of sale, and directed the payment to the widow 
 of an annuity out of the converted fund. The same conclusion was 
 reached under very similar circumstances in Fuller v. Yates, 8 Paige, 
 325, and In re Frazer, supra, the widow's dower was held not to be 
 excluded by a provision in the will, although as to a portion of the 
 realty the power of sale given to the executors was peremptory. The 
 general doctrine is very clearly stated by the vice-chancellor in Ellis 
 v. Icivis, 3 Hare, 310: "I take the law to be clearly settled at this 
 day that a devise of lands eo nomine upon trusts for sale, or a devise 
 of lands eo nomine to a devisee beneficially does not per se express an 
 intention to devise the land otherwise than subject to its legal inci- 
 dents, dower included." This remark of the vice-chancellor also 
 answers the claim that the testator, when he described as the subject 
 of the dower, " all the rest, residue and remainder of my estate," 
 meant the entire title, or the estate as enjoyed by him. A similar 
 argument was answered by Lord Thurlow in Foster v. Cook, 3 Bro. 
 Ch. C. 347. " Because," he said, " the testator gives all his prop- 
 erty to the trustees, I am to gather from his having given all he has,
 
 708 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. I. 
 
 that he has given that which he has not." The argument that the 
 testator intended equality of division between his wife and children is 
 also answered by the same consideration. The proceeds of the 
 testator's estate were, by the will, to be equally distributed. It left 
 untouched the dower of the widow, which he could not sell or 
 authorize to be sold, and which was a legal right not derived from 
 him and paramount to all others. It may be conjectured, perhaps 
 reasonably inferred, that the testator really intended the provision 
 for his wife to be exclusive of any other interest, but so it is not 
 written in the will, and we are not permitted to yield any force to 
 the suggestion. It is a question of legal interpretation which has 
 been settled. 
 
 Judgment affirmed. 1 
 
 (/.) Estoppel. 
 HARRIMAN v. GRAY. 
 
 49 Maine, 537. — 1S60. 
 [Reported herein at p. 704. ] 2 
 
 (g.) Statute of Limitations. 1 
 
 (6.) Assignment to Widow of Her Dower. 
 
 Grimke, J., in LARROWE v. BEAM. 
 
 10 Ohio, 498. — 1841. 
 
 The remaining question relates to the mode in which dower should 
 be assigned. There is a difference where the land is conveyed by 
 the husband in his lifetime, and where it is conveyed by the heir. In 
 the former case, the widow is entitled to her dower according to the 
 value at the time of alienation, for the heir is not bound to warrant, 
 except according to the value as it was at the time of the sale. 
 But here the alienation was by the heir; and it appears that fifty 
 acres have been cleared on the lot at a cost of $12 an acre, and 
 buildings have been erected worth $300 or $400, and these improve- 
 ments, with a very small exception, not worth noticing, have been 
 
 1 See ;'?: 180-182 N. Y. R. P. L. — Ed. 
 • s<-c also under " Title " infra. — Ed. 
 • infra under " Title, — ■ Ed."
 
 II. 3-] LIFE ESTATES : DOWER. 709 
 
 made by the heir. They were then made at his own risk; he is 
 presumed to have placed them there with a full knowledge of his 
 obligations, and of the rights of the complainant; and she is entitled 
 to be endowed according to the value of the land (exclusive of the 
 emblements) at the time of the assignment. 
 
 WEBB v. TOWNSEND. 
 1 Pickering (Mass.), 20. — 1822. 
 
 This was a writ of dower. The question in the case was, whether 
 the demandant was entitled to dower in land aliened by her husband 
 during the coverture, while it was wild and uncultivated, but 
 which at the time of the demand of dower had been brought into a 
 state of cultivation by the husband's grantee and those claiming 
 under him. 
 
 It was agreed that certain persons should be a committee to assign 
 the dower, in case it should be allowed. 
 
 Mills, for the demandant. If this question were to be decided by 
 the common law of England, the demandant would be entitled to 
 dower. The decision in Conner v. Shepherd, 15 Mass. Rep. 164, 
 made an inroad upon the common law. There the land continued 
 in a wild state at the time of the demand; which is the only point of 
 difference between that case and the present one. We do not ask 
 the court to revise their decision in that case, but they will not go 
 beyond it to the prejudice of the right of dower. Where the land 
 continues wild, the widow can receive no benefit from her dower 
 without committing waste, which would be a forfeiture. Here she 
 may immediately enjoy the profits without committing waste. The 
 case of Nash v. Boltwood, decided by this court in 1783, and reported 
 in Story's Pleadings, 366, is precisely like the present, and is not 
 overruled by the case of Conner v. Shepherd, because in this last case 
 the land continued wild at the time of the demand. 
 
 In New York it is settled that a tenant for life may cut down trees 
 in order to put wild land in a state of cultivation; Jaekson v. Brown- 
 son, 7 Johns. Rep. 237; and that there may be tenant by the curtesy 
 of wild land; Jackson v. Selluk, 8 Johns. Rep. 262. Tenant by the 
 curtesy and tenant in dower are correlative terms, and they are in 
 general entitled to their respective estates in the same kind of land. 
 
 The reasoning of Dewey, who argued for the tenant, appears suffi- 
 ciently in the opinion of the court. 
 
 Per Curiam. In Conner v. Shepherd, it was decided, that a widow 
 is not dowable of land in a wild and uncultivated state. In several
 
 710 ESTATES AS TO QUANTITY AND QUALITY. [FT. IV. CH. I. 
 
 other cases it has been determined, that when land of which a widow 
 is dowable shall have been increased in value by a grantee of her 
 husband, her dower shall be assigned according to the value of the 
 land when alienated. 
 
 Steams v. Swift, 8 Pick. 532; Ayer v. Spring, 9 Mass. R. 8; Cat/in 
 v. Ware, 9 Mass. R. 218; Ayer v. Spring, 10 Mass. R. 80; Winder v. 
 Little, 1 Yeates, 152; Humphrey v. Phinney, 2 Johns. R. 484; Dor- 
 chester v. Coventry, 11 Johns. R. 510; Hale v. James, 6 Johns. Ch. R. 
 258; Coatesx. Cheever, 1 Cowen, 460; Shaw v. White, 13 Johns. R. 
 179. See also Gtfr<? v. Brazer, 3 Mass. R. 544. But in Thompson v. 
 Morrow, 5 Serg. & R. 289, and Poivellx. Monson 6° Brimfield Man. 
 Co., 3 Mason, 347, it was held, that the widow shall be endowed of 
 the actual value of the lands at the time of the assignment of the 
 dower, excluding from the estimate the increased value arising from 
 the improvements made by the alienee. See also Powell v. Monson 
 6r* Brimfield Man. Co., 3 Mason, 459. In the case before us, when 
 the alienation took place, the land was in a state of nature, and the 
 demandant could not have had dower. At the time when dower 
 was demanded, the land had become a cultivated farm, but altogether 
 by the labor of the grantee, or those who claim under him. It is 
 contended that some of the reasons on which the decision in Conner 
 v. Shepherd was founded do not apply in this case, because now the 
 land is in a state to admit of the enjoyment of dower without com- 
 mitting waste, and thus forfeiting dower the moment it is begun to 
 be enjoyed; which would not be the case in respect to land wholly 
 uncultivated. But if the principle settled in the case of Libby v. 
 Swett et al., Story's Pleadings, 365, is to be applied, it would follow 
 that there would be nothing on which the commissioners could act, 
 who should be appointed to assign the dower. They would be 
 required by the commission to set off such a part of the land as 
 would yield one-third part of the rents and profits as they were at 
 the time of the alienation; at which time there were no rents and 
 profits; so that the widow could get nothing. It follows necessarily 
 from the cases before settled in relation to dower, that the demand- 
 ant cannot prevail in this action. The husband was not seized during 
 the coverture of any estate of which the wid6w could be endowed. 
 The land in which she now demands her dower has been put into the 
 state which subjects it to dower, only by the labor and expense of 
 the tenant, and those under whom he claims. This cannot be to the 
 benefit of the widow of him who left it without having done anything 
 to change its natural state. 
 
 The case of Nash v. Boltwoodwas determined before we had reports 
 of the decisions <>f this court, and we do not know the grounds on
 
 II. 3-] HOMESTEAD. 711 
 
 which it was decided. A widow is dowable of a lot of wild land, 
 which was used by her husband, in connection with his dwelling 
 house and cultivated land, for the purpose of procuring fuel and 
 timber for repairs. White v. IVillis, 7 Pick. 143. But not of mines 
 unopened at the death of her husband. Coates v. O/ieevers, 1 
 
 Cowen, 460. 
 
 Demandant nonsuit. 1 
 
 e. Homestead. 
 
 HELM v. HELM. 
 
 11 Kansas, ig.— 1873. 
 
 Kingman, C. J. — This case came up from a decision of the Dis- 
 trict Court sustaining a demurrer to the petition of plaintiff in error. 
 It appears from the petition that plaintiff in error and the defendant, 
 James M. Helm were married on' the 15th of April, 187 1; that 
 James M. Helm was then the owner of eighty acres of land, upon 
 which the husband and wife resided, and which was their homestead. 
 On the 17th of June thereafter, and while they were residing on said 
 land as their homestead, the land was conveyed to William Helm for 
 the consideration of nine hundred dollars, by deed signed by husband 
 and wife; and two days thereafter the husband abandoned his wife. 
 She seeks to have the deed set aside on two grounds. One is, that 
 her signature was procured by the false representations of the 
 defendant that her husband had purchased other lands in Shawnee 
 county for a home; the other is, that her signature was procured by 
 the threats and menaces of the defendants, they threatening her life 
 unless she would sign the deed, and in apprehension of great danger 
 if she did not sign the deed, she did sign it. The relief sought cer- 
 tainly could not be granted because the husband made representa- 
 tions that were false to induce his wife to sign the deed. If she relied 
 on them, it was at her peril alone. 
 
 The second ground we think is sufficient to authorize the relief 
 asked. Our homestead provision is peculiar. The homestead 
 cannot be alienated without the joint consent of the husband and 
 wife. The wife's interest is an existing one. The occupation and 
 enjoyment of the estate is secure to her against any act of her hus- 
 band or of creditors without her consent If her husband abandons 
 her, that use remains to her and the family. With or without her hus- 
 band, the law has set this property apart as her home. It may be 
 difficult to define the estate, but it is one nevertheless. It is not 
 
 1 For the New York statute as to assignment of dower, see Code Civil Proc. 
 §§1596-1625. -Ed.
 
 712 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. L 
 
 like dower. Dower is only a possible estate, an inchoate interest that, 
 depending on uncertain events, the wife may never enjoy. That the 
 wife's right under our homestead laws is an existing interest, 
 probably none will deny. She then having been compelled to sign 
 away the interest by duress has a right to come into court and have 
 that act declared null and void, so that her rights shall not be lost 
 by the illegal conduct of those who attempted to profit by their vio- 
 lence. When her signature is declared void, the law comes in and 
 disposes of the deed made by her husband without her consent. 
 § i, page 473, Gen. Stat. If the wife could not maintain this action, 
 then an estate, to the immediate enjoyment of which she is entitled, 
 and which might finally become hers absolutely, might be wholly 
 lost. For the record shows that she has parted with her estate. It 
 may well be questioned whether an innocent purchaser would not 
 hold the land against her who had stood silent while he purchased 
 for a full consideration. The land which the record showed belonged 
 to William Helm. Having then an estate in the land, with a right 
 to immediate enjoyment, and her signature procured by threats 
 being not that consent that the law requires for the transmission of 
 the homestead, it seems to us that the demurrer ought not to have 
 been sustained. 1 
 
 1 For the New York statute as to homesteads, see Code Civ. Proc. §§ 1397- 
 1404. — Ed.
 
 CHAPTER II. 
 
 Estates as to Quantity and Quality: Estates Less 
 Than Freehold. 
 
 I. Nature of leaseholds in general. 
 
 i. Real or Personal Interests in Land. 
 
 BREWSTER v. HILL. 
 
 i New Hampshire, 350. — 181S. 
 {Reported herein at p. 53. ]' 
 
 2. Leaseholds Are to be Distinguished From — 
 a. Cases in which occupant of land is in as servant of owner. 
 
 KERRAINS v. PEOPLE. 
 60 New York, 221. — 1875. 
 
 Error to review a judgment sustaining a verdict convicting plain- 
 tiff in error of assault with intent to kill. 
 
 Church, Ch. J. ■ — The principal question of law contested on the 
 trial, and elaborately argued in this court is, whether the relation 
 
 1 See also Goodivin v. Goodwin, supra, p. 8, and Northern Bank of Kentucky, 
 supra, p. 10. In some of the States terms for years of long duration are under 
 some circumstances or for some purposes regarded as realty. The Massachu- 
 setts statute is as follows: " Section 1. When land is demised for the term of 
 one hundred years or more, the term shall, so long as fifty years thereof 
 remain unexpired, be regarded as an estate in fee simple as to everything con- 
 cerning the descent and demise thereof upon the decease of the owner, the 
 right of dower therein, the estate in lieu of dower, the sale thereof by execu- 
 tors, administrators, guardians, or trustees, the levying of executions thereon, 
 and the redemption thereof where mortgaged or when taken on execution, and 
 whoever holds as lessee or assignee under such a lease shall, so long as fifty 
 years of the term are unexpired, be regarded as a freeholder for all purposes." 
 Mass. Pub. Stat. (1882-7), ch. 121. By § 2, Id., in case dower is assigned out 
 of such a term the widow must pay to the owner of the unexpired residue of 
 the term one-third of the rent reserved in the lease under which the husband 
 held the term. — Ed. 
 
 [713]
 
 714 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 of master and servant, or landlord and tenant, existed between the 
 prisoner and the prosecutor, Mr. Son, in respect to the house occu- 
 pied by the former. Although not decisive of the guilt or innocence 
 of the prisoner, the determination of the question had properly a 
 material influence. 
 
 If the relation of master and servant existed it would follow that 
 the legal possession of the house was in the prosecutor, and he had 
 the legal right to remove the furniture and goods therein, and to 
 employ the necessary force for that purpose; and that the defendant 
 would not be justified in using force to prevent it. And yet, if the 
 acts of the prosecutor were of such a threatening character, by the 
 use of a pistol or other deadly weapon, that the prisoner believed, 
 and had reason to believe, that his life was in imminent danger, he 
 might be justified in using the necessary means to avert it. On the 
 other hand, if the prisoner was holding the house as a tenant, and 
 had a lawful right to defend his possession, and his property, by the 
 use of proper and necessary means, yet, if the force used was 
 unnecessary or excessive, either in amount or the kind of weapons 
 employed under the circumstances presented, and after making due 
 allowance for provocation and irritation, he might still be amenable 
 to a criminal prosecution. 
 
 The court charged the jury that the prisoner occupied the house 
 as a servant, and not as a tenant; and hence that the prosecutor had 
 the legal possession. 
 
 The defendant stated the contract to be, that he was to work for 
 Mr. Son a year at thirteen shillings a day, and have the use of the 
 house he lived in and garden for that period. The prosecutor stated 
 it substantially the same. He said: " I made a bargain with him 
 for a year, if he and I could agree, I was to pay him thirteen shillings 
 a day, and he was to have a house furnished him." There was no 
 dispute but that the defendant was to have the house in which he 
 then resided. It does not appear whether the wages were less by 
 reason of furnishing the house, or whether any or what allowance 
 was intended on that account. Nor does it distinctly appear whether 
 a residence in that particular house was necessary to the proper dis- 
 charge of the duties of the defendant. If the occupation is connected 
 with the service, or if it is required, expressly or impliedly, by the 
 employer for the necessary or better performance of the service, 
 then it is for his benefit, and he continues in possession. Such was 
 clearly the case of Haywood v. Miller, 3 Hill, 90, where a farmer 
 hired a man and his wife to work a farm for wages. The occupation 
 of the house was necessary to the performance of the service; and 
 The People v. Annis, 45 Barb. 304, was substantially the same,
 
 I. 2.] NATURE OF LEASEHOLDS IN GENERAL. 71 5 
 
 although I am unable to agree with the learned judge who delivered 
 the opinion in that case, that immediately upon the termination of 
 the service a tenancy at will, or by sufferance, springs up. In order 
 to have that effect the occupancy must be sufficiently long to war- 
 rant an inference of consent to a different holding. Any consider- 
 able delay would be sufficient, but I can see no principle which would 
 change the occupant eo instanti, from a mere licensee to a tenant. 
 The employer should resume control of his property within a reason- 
 able time or consent would be inferred. Whether this time is a day 
 or a week may depend upon circumstances. In Doyle v. Gibbs, 6 
 Lans. 1S0, the consent of the employer that the employed might 
 remain until his wife recovered from an illness, was held not to 
 amount to a consent. 
 
 The circumstance that the right of occupation terminates with the 
 abrogation of the contract of service, by consent or by the discharge 
 of the servant, is not decisive. The question is, what was the 
 character of the holding under the contract? If that was a tenancy, 
 then the party holding over would be a tenant at will, and the land- 
 lord would not be justified in entering with strong hand. So, while 
 a deduction from wages of a specified sum for the use, or the absence 
 of such an arrangement, would be a material circumstance, it would 
 not be in all cases conclusive either way. The question depends 
 upon the nature of the holding, whether it is exclusive and inde- 
 pendent of, and in no way connected with the service, or whether it 
 is so connected, or is necessary for its performance. And this, I 
 think, is the result of all the cases. The question has often arisen 
 in England, under the poor laws, to determine what occupation 
 would confer a settlement, the courts recognizing, as controlling the 
 distinction between an occupation as a tenant or as a servant. R. 
 v. Minister, 3 M. & S. 276; R. v. Kelstern, 5 Id. 136; R. v. Chesnut, 
 iB, & A. 473; R. v. Miikridge, 1 T. R. 598; R. v. Langriville, 10 
 
 B. & C. 899; R. v. Benneworth, 2 Id. 755. The case of Hughes v. 
 Chatham, 5 M. & G. 54, arose under the reform act, requiring a 
 registry of voters, the statute requiring that the person should 
 occupy as owner or tenant. The facts were, that a master rope- 
 maker in a royal dockyard had, as such, a house in the dockyard for 
 his residence, of which he had the exclusive use, without paying 
 rent, as part remuneration for his services, no part of it being used 
 for public purposes. If he had not had it, he would have had an 
 allowance for a house, in addition to his salary. The case was 
 elaborately argued, and thoroughly considered, and it was held, that 
 the rope-maker occupied as a tenant, and not as a servant. Findal, 
 
 C. J., in delivering the opinion of the court, said: " There is no
 
 yi6 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 inconsistency in the relation of master and servant with that of 
 landlord and tenant. A master may pay his servant by conferring 
 on him an interest in real property, either in fee, for years, or at 
 will, or for any other estate or interest, and if he do so the servant 
 then becomes entitled to the legal incidents of the estate, as much 
 as if it were purchased for any other consideration. . . . And, 
 as there is nothing in the facts stated to show that the claimant was 
 required to occupy the house for the performance of his services, 
 or did occupy it in order to their performance, or that it was condu- 
 cive to that purpose more than any house which he might have paid 
 for in any other way than by his services; and as the case expressly 
 finds that he had the house as part remuneration for his services, we 
 cannot say that the conclusion at which the revising barrister has 
 arrived is wrong." 
 
 I have cited the language of the court, because it lays down con- 
 cisely the correct rule for determining the question involved in this 
 class of cases The question in the case before us is presented 
 somewhat differently. Each party relied upon the terms of the con- 
 tract, with only the additional facts that the house was a part of the 
 mill property, and had been occupied for several years previously by 
 the prisoner while engaged as a laborer in the mill. There was no 
 request to submit the facts to the jury to determine whether the 
 house was occupied to enable the prisoner the better to perform the 
 service in which he was engaged; or, in other words, whether it was 
 not occupied as an appendage to the mill, and really for the benefit 
 of the owner; nor was there any evidence of an allowance for rent, 
 but it was left to the court, upon the contract and facts before stated, 
 to be determined as a question of law, and, in my judgment, the 
 court decided correctly, that the defendant occupied as a servant, 
 and not as a tenant. The inference from these facts is reasonable, 
 if not irresistible, in the absence of any provision for an allowance 
 for rent, that the house was intended to be occupied by an employe 
 for the benefit of the owner in carrying on the mill. The case thus 
 presented is analogous to that of a person employing a coachman or 
 gardener, and allowing or requiring him to reside in a house pro- 
 vided for that purpose on the premises; or a farmer who hires a 
 laborer for wages, to work his farm, and live in a house upon the 
 same. In these cases the character of the holding is clearly indicated 
 by the mere statement of facts. It is not impossible that other 
 facts may exist to strengthen or weaken the inference that the 
 prisoner occupied as a servant, and not as a tenant, but from the 
 facts proved there was no error in holding that he occupied as a 
 servant. Both parties regarded it as a question of law upon sub-
 
 I. 2.] NATURE OF LEASEHOLDS IN GENERAL. 717 
 
 stantially undisputed facts, although there are cases where the 
 character of the holding is so uncertain, from conflicting evidence 
 or inferences which may be drawn, as to render it proper to submit 
 the question to a jury. 3 M. & S. 790. ' * * * 
 
 b. Cases of contracts for "lodgings." 
 
 WHITE v. MAYNARU. 
 
 in Massachusetts, 250. — 1S72. 
 
 Gray, J. — This is an action by the keeper of a boarding house 
 against a lodger for breach of an oral contract, by which the plain- 
 tiff agreed to provide the defendant and his family of four persons 
 with board, and with three specified rooms as lodging, in her house, 
 and to light and heat such rooms, from November 26, 1866, to May 
 1, 1S67, at the weekly rate of $75, and the defendant agreed to 
 board and lodge with the plaintiff accordingly. 
 
 The defendant at the trial contended that this agreement was for 
 an interest in or concerning lands, within the statute of frauds, and 
 created no more than an estate at will. Gen. Sts., c. 105, § 1, cl. 
 4; c. S9, § 2. His omission to plead the statute of frauds, not hav- 
 ing been objected to at the trial, when the answer might have been 
 amended, cannot now be availed of by the plaintiff. Jones v. Sisson, 
 6 Gray, 288. But we are of opinion that the ruling of the Superior 
 Court was right, and that the agreement declared on was not for 
 any interest in lands. 
 
 The opinions of eminent judges, in cases under English statutes 
 giving the elective franchise to the sole occupiers of houses of a 
 certain value, assume it as unquestionable that a mere lodger in the 
 house of another is not a tenant. In Fludier v. Lombe, Cas. Temp. 
 Hardw. 307, Lord Hardwicke held that a man who let rooms to 
 lodgers was still the sole occupier of the house; and said: "A 
 lodger was never considered by any one as an occupier of a house. 
 It is not the common understanding of the word; neither the house, 
 nor even any part of it, can be properly said to be in the tenure or 
 occupation of the lodger." And this definition was cited with 
 approval by Chief Justice Erie in Cook v. Humber, 11 C. B. (N. S.) 
 ^^, 46. So in Brewer v. M' ' Gowen, L. R. 5 C. P. 239, it was held that 
 the owner or tenant of a dwelling house was not a joint occupier 
 
 1 The judgment below was reversed, however, on account of an error in 
 rejecting certain testimony. — Ed.
 
 718 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 with a lodger to whom he let the exclusive use of a bed room and 
 the joint use of a sitting room; and Mr. Justice Willes, after observ- 
 ing that the lodger " clearly was not a joint occupier of the room in 
 which he took his meals," added: " And with respect to the bed 
 room, he clearly had not an occupation as owner or tenant, but only 
 an occupation as lodger. 
 
 In like manner, under the English valuation and tax acts, it has 
 been held that, in order to constitute a tenancy, there must be a 
 putting of a lessee into the exclusive occupation of the apartment, 
 and not a mere admission of a common lodger or inmate, the land- 
 lord retaining the legal possession of the whole house. Smith v. St. 
 Michael, 3 E. & E. 383; Stamper v. Overseers of Sunderland, L. R. 
 3 C. P. 388; The Queen v. St. George's Union, L. R. 7 Q. B. 90. 
 
 It was decided by Lord Ellenborough, and admitted by Barons 
 Parke and Alderson, that a covenant, in a lease of a coffee-house in 
 London, not to lease or underlet the premises or any part thereof, 
 was not broken by permitting a man to lodge for a year in a par- 
 ticular room, " of which he had exclusive possession," unless under 
 a distinct demise of the room so as to enable him to maintain tres- 
 pass. Doe v. Laming, 4 Camp. 73; Greenslade v. Tapscott, 1 C, M. 
 & R. 55; s. c. 4 Tyrwh. 566. An entire floor, or a series of rooms, 
 or even a single room, may doubtless be let for lodgings, so sepa- 
 rated from the rest of the house, as to become in fact and in law the 
 separate tenement of the lessee. Newman v. Anderton, 2 B. & P. 
 N. R. 224; Fenn v. Grafton, 2 Bing. N. C. 617; s. c. 3 Scott, 56; 
 Monks v. Dykes, 4 M. & W. 567; Swain v. Mizner, 8 Gray, 182. But 
 in such a case, as observed by this court in Swaine v. Mizner, he is 
 " a housekeeper, and not a lodger only." In Monks v. Dykes, it was 
 held that a lodger, occupying one room in a house, the woman who 
 owned the house residing therein and keeping the key of the outer 
 door, had no such occupation of the room that he could maintain 
 trespass against a stranger intruding into the room; and Baron Parke 
 said : " I think that neither in law nor in common sense can a man 
 be described as being in possession of a dwelling house, when he is 
 a mere lodger." 
 
 It has indeed been held in two English cases, cited for the 
 defendant, that agreements to take certain apartments in a house 
 as lodgings at a yearly rent were within the statute of frauds. 
 Intnan v. Stamp, 1 Stark. 12; Edge v. Strafford, 1 Tyrwh. 293; s. c. 
 1 C. & |. 391. But there is nothing in either of the reports to show 
 that the rooms were in a boarding house; and, as suggested by the 
 judges in Wright v. Stavert, 2 E. & E. 721, each appears to have 
 a < ase of an agreement, which, if perfected by entry, would
 
 I. 2.] NATURE OF LEASEHOLDS IN GENERAL. 719 
 
 have amounted to an actual demise, and would have given the occu- 
 pant all the possessory rights of a tenant. 
 
 In Wright v. Stavert, on the other hand, it was held that an oral 
 agreement to pay a certain sum yearly for the board and lodging of 
 a gentleman and his servant in a boarding house, terminable by a 
 quarter's notice on either side, was not an agreement for any interest 
 in real estate; and Chief Justice Cockburn said that to hold such a 
 case to be within the statute of frauds would lead to most absurd 
 and inconvenient consequences. The only distinction between that 
 case and the present is that it states one of the terms of the agree- 
 ment to have been that " the defendant was to have no exclusive 
 right to or interest in any particular rooms, but to be considered 
 simply as a boarder and an inmate." 
 
 But in the similar case of Wilson v. Martin, 1 Denio, 602, it is 
 implied in the statement of the case, and expressed in the opinion, 
 that the agreement, which was held to create no lease, and no inter- 
 est in lands, was for the use of particular rooms, as well as for board, 
 in the plaintiff's boarding house; and Mr. Justice Bronson, in 
 delivering judgment, said: " This was nothing more than an agree- 
 ment for board and lodging, with a designation of the particular 
 rooms which the defendant was to occupy. It was not a contract for 
 the hiring and letting of real estate. When one contracts with the 
 keeper of a hotel or boarding house for rooms and board, whether 
 for a week or a year, the technical relation of landlord and tenant 
 is not created between the parties. The lodger acquires no interest 
 in the real estate. If he is turned out of the rooms before the time 
 expires, he cannot maintain ejectment; and while he remains the 
 hotel keeper cannot get his pay by distraining for rent in 
 arrear.' 
 
 In the case at bar, tne declaration alleged, and the evidence intro- 
 duced at the trial tended to prove, an ordinary agreement for board 
 and lodging in the plaintiff's boarding house, by which the plaintiff, 
 as keeper of the boarding house, retained the legal possession, 
 custody and care of the whole house and of every room therein. 
 The defendant took, by reason of the fact that the rooms in which 
 he and his family were to lodge were specified in the agreement, no 
 greater legal right in those rooms, than he would, if they had not 
 been so specified, have taken in the house. There was no evidence 
 to warrant the inference of an agreement that the defendant should 
 have any such exclusive possession of the rooms specified as would 
 enable him to maintain any action founded on that possession, 
 either against the plaintiff or against a stranger. The onjy rights 
 of action between the parties are upon the agreement itstfff. Wright 
 
 f 'Sft 

 
 720 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 v. Stavert, 2 E. <Sc E. 721, 727; Underwood v. Burrows, 7 C. & P. 26; 
 McCrea v. Marsh, 12 Gray, 211. 
 
 The instructions requested were, therefore, rightly refused, and 
 no exception appears to have been taken to the instructions given. 
 
 Exceptions overruled. 
 
 c . Cases of cultivating a crop on shares} 
 CASWELL v. DISTRICH. 
 15 Wendell (N. Y.), 379. — 1836. 
 
 Assumpsit for rent. Plaintiff's testator agreed in writing to let 
 Districh have his farm for one year, the latter to sow oats and give 
 testator one-third in the half bushel, to sow corn and give one-third 
 in the basket, etc., etc. Plaintiff proved quantities of grain sowed 
 and rested. Defendant asked for a non-suit on the ground that 
 the instrument was not a lease but made the parties to it tenants in 
 common of the crop. Non-suit granted. Plaintiff appeals. 
 
 By the Court, Nelson, J. — The agreement between the parties was 
 a letting of the premises upon shares, and, technically speaking, was 
 not a lease. 8 Johns. R. 151 ; 3 Id. 221; 2 Id. 421, n. ; 8 Cowen, 220. 
 There is nothing which indicates that the stipulation for a portion 
 of the crops was by way of rent; but the contrary. The shares 
 were of the specific crops raised upon the farm. It is very material 
 to the landlord, and no injury to the tenant, that this view of the 
 contract should be maintained, unless otherwise clearly expressed, 
 for then the landlord has an interest to the extent of his share in 
 the crops. If it is deemed rent, the whole interest belongs to the 
 tenant until a division. Where a farm is let for a year upon shares, 
 the landlord looks to his interest in the crop as his security, and 
 thereby is enabled to accommodate tenants, who otherwise would 
 not be trusted for the rent. 
 
 This case is clearly distinguished from that of Stewart v. Dougherty, 
 9 Johns. R. 108. There the court, from the correspondence between 
 the phraseology of the instrument and the terms usual in leases in 
 the reservation of rent, came to the conclusion that the proportion 
 of the crops specified in the agreement was intended as payment of 
 rent in kind, and that, therefore, the whole interest belonged to the 
 tenant. If my conclusion be correct, then the parties were tenants 
 
 1 In some cases of this kind there is a true lease — rent paid in kind. In 
 some the cropper is a servant — paid in produce; in other cases the parties are 
 tenants in common of the crop. — Ed.
 
 I. 2.J NATURE OF LEASEHOLDS IN GENERAL. 721 
 
 in common in the crops, and as the plaintiff stood in the place of her 
 testator, she was not entitled to sustain her action, and the Common 
 Pleas did right to grant a nonsuit. 
 
 Judgment affirmed. 
 
 d. Cases of leases in fee reserving a fee-farm rent. 
 
 VAN RENSSELAER v. HAYS. 1 
 19 New York, 68. — 1859. 
 [Reported herein at p. 81.] 
 
 INGERSOLL v. SERGEANT. 
 
 1 Wharton (Pa.), 336. — 1836. 
 [Reported herein at p. 86.] 
 
 e. Agreement for a lease. 
 Ames, J., in KABLEY v. WORCESTER GAS LIGHT COMPANY. 
 
 102 Massachusetts, 392. — 1869. 
 
 The question whether a written instrument is a lease, or only an 
 agreement for a lease, depends on the intention of the parties to be 
 collected from the whole instrument. Bacon v. Bowdoin, 22 Pick. 
 401. The form of expression " we agree to rent or lease " is far 
 from being decisive upon this question, and does not necessarily 
 import that a lease is intended to be given at a future day. On the 
 contrary those words may take effect as a present demise, and the 
 words "agree to let," have been held to mean exactly the same 
 thing as the word " let," unless there be something in the instrument 
 to show that a present demise could not have been in contemplation 
 of the parties. Doe v. Benjamin, 9 Ad. & El. 644. The test seems 
 to be that if the agreement leaves nothing incomplete it may operate 
 as a present demise. Doe v. Ries, 8 Bing. 178. The agreement 
 
 1 " No lease or grant of agricultural lands, for a longer period than twelve 
 years, hereafter made, in which shall be reserved any rent or service of any 
 kind, shall be valid." Const. N. Y., art. I., § 13. This appears for the first 
 time in the constitution of 1846. As to a lease of such lands for other than 
 agricultural purposes, see Ode// v. Duranl, 62 N. Y. 524. As to what is meant 
 here by " rent," see Parse!/ v. Stryker, 41 N. Y. 480. — Ed. 
 law of prop, in land — 46
 
 722 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 relied upon by the plaintiffs contains no stipulation for a lease at any- 
 future time, and there is nothing to show that any more formal 
 document was contemplated. It is not prospective or executory, 
 and it does not indicate that anything remained to be done on the 
 part of the plaintiffs. It gave to the defendants an immediate right 
 of possession. Staniforth v. Fox, 7 Bing. 590; Doe v. As/ibumer, 5 T. 
 R 163; Jenkins v. Eldredge, 3 Story, 325. It creates a term, begin- 
 ning with the delivery of the instrument, and ending upon the com- 
 pletion of the gas-holder in a reasonable time; and it stipulates for 
 a rent, the amount of which was to be determined by arbitration. 
 So far as the plaintiffs are concerned, it has all the essential qualities 
 of a present demise. The report finds that the agreement which we 
 have considered as effectively a lease, was delivered to the defend- 
 ants, and was accepted by them. Under such circumstances, their 
 liability to pay rent is not qualified, or taken away, by proof that 
 they never actually occupied the premises. It is enough that they 
 accepted the conveyance, which gave them the right of immediate 
 and exclusive occupation. The law would imply, from such accept- 
 ance, a promise to comply with the terms of the lease Guild v. Leon- 
 ard, 18 Pick. 511, 516; Goodwin v. Gilbert, 9 Mass. 510; and such a 
 promise is not within the statute of frauds. Felch v. Taylor, 13 
 Pick. 133. Under that implied promise the defendant would be 
 responsible, even though they refuse to take possession of the prop- 
 erty. Taylor, Landl. & Ten., § 176. They hold the premises whether 
 they occupy them or not Pinero v. Judson, 6 Bing. 206; and such 
 holding constitutes legal or constructive possession. 
 
 f. An inter esse termini. 
 
 BECAR v. FLUES. 
 64 New York, 518. — 1876. 
 
 Church, Ch. J. — From the facts disclosed in this case, tne loss 
 occasioned by not renting the premises, by either of the parties, was 
 unnecessary. The evidence tends to establish that the defendant's 
 testator, in February or March, 1874, leased the premises by parol 
 of the plaintiff, by her son, for one year from the first of May there- 
 after, the testator then being in possession under a prior lease. The 
 testator died in April, and the family not desiring to retain the house, 
 the defendant gave notice that they would not retain it, and on the 
 first of May they abandoned the possession and tendered the key, 
 which was declined. This action is brought for three-quarters' rent.
 
 I. 2.] NATURE OF LEASEHOLDS IN GENERAL. 723 
 
 The defendant proved that the plaintiff might have rented the house 
 for nearly as much as the defendant's testator was to pay for the 
 same. A verdict was directed for the plaintiff. It is claimed by the 
 defendant that between the making of the contract and the time for 
 taking possession, the contract was executory, and that the defendant 
 having refused to perform it, the plaintiff could only recover the 
 actual damages, which, within the general rule, the plaintiff was 
 bound to make as small as possible. 28 N. Y. 72; 43 Id. 237. 
 While the rule of law invoked is well settled, I feel constrained to 
 hold that it is not applicable to this contract. The error is in the 
 position that this was an executory contract. This court decided, 
 in Young v. Dafce, 5 N. Y. 463, ' that a parol lease for a year, to com- 
 mence infuiuro, is valid and obligatory. Such a lease vests a present 
 interest in the term. It is assignable before entry, and the lessee 
 can bring ejectment if possession is withheld. Whitney v. Allaire, 1 
 N. Y. 307, and authorities cited. The same principle was recog- 
 nized in Trull v. Granger, 8 N. Y. 115. It was there held that 
 although ejectment would lie, the tenant might also bring an action 
 for damages upon the implied agreement to give possession, or in 
 tort for a violation of duty. If the landlord could not rescind, the 
 tenant could not. The rights and liabilities in this respect are 
 mutual. Each party acted upon their strict legal rights, and while 
 the result we can see will operate harshly upon the defendant and the 
 estate, we are compelled to adjudge the law as we find it. When 
 the plaintiff refused to accept this recission, the defendant still held 
 the term, and was responsible for the rent of the house. The lease, 
 although verbal, is as binding as if in writing. It granted in prcesenti 
 a term of one year in the premises, which the testator agreed to pay 
 for. It is like the sale of specific personal property to be delivered. 
 In such a case the title passes to the vendee, and, of course, he is 
 liable for the purchase-money. * * * 
 
 The judgment must be affirmed. 
 
 1 Reported below at p. 728. — Ed.
 
 724 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 II. Estates for years or " terms." 
 
 i. The Essential Feature of a Term — Certainty as to 
 Commencement, Duration ' and Termination. 
 
 MURRAY v. CHERRINGTON. 
 
 99 Massachusetts, 229. — 1868. 
 
 Action to recover possession of a dwelling house. Defendant con- 
 tends that he holds the premises of right by virtue of a letter 
 addressed to him by plaintiff, of which the material part is as follows: 
 " I hereby let you the whole of my house on Mercer street in South 
 Boston, when said house is suitable to be occupied by you, for a 
 rent of four hundred and eighty dollars per annum, * * * but 
 it is to be understood that, in case after two years subsequent to 
 your moving into said house, I should wish to live in the house 
 myself, I can do so, and that then you may still retain, if you wish 
 to do so [certain rooms] for such a time as may be agreeable to us 
 both." Defendant entered under the letter in Sept., 1866, and con- 
 tinued in possession to the date of the writ, April, 1867. There 
 were also in evidence certain receipts for rent. The court refused 
 to rule that the facts constituted a valid lease for the term of two 
 years and defendant (Cherrington) excepted. 
 
 Foster, J. — * * * We are also of opinion that the ruling of 
 the presiding judge was correct, that the terms of this letter did not 
 create an estate for years, namely, a lease for two years, between 
 the parties. The duration of a lease for years must be certain; this 
 includes both its commencement and termination. It may be con- 
 ceded that a lease for years may begin " when a house is suitable to 
 be occupied," according to the maxim, Id certain est quod certain 
 reddi potest. But the fatal objection remains that no period of termin- 
 ation is fixed by this letter. A leasehold interest for an uncertain 
 and indefinite term is an estate at will only. Shaw, C. J., in Cheever 
 v. Pearson, 16 Pick. 271; Bishop of Bath's Case, 6 Co. 35; Bac. Ab. 
 Lease, L. 3. It is indisputable that an entry by the lessee under 
 this instrument would not bind him to remain for any definite period. 
 He could terminate his tenancy in the modes provided by statute; as 
 to him there is no term of certain duration. Consequently, there 
 can be none as to the landlord. 
 
 The proviso that after two years from the commencement of the 
 occupancy the landlord may live in the house if he wishes to do so, 
 
 1 For a limitation on the length of a term in certain cases, see n., p. 721, 
 supra. — Ed.
 
 II. i.] ESTATES FOR YEARS OR "TERMS." J2$ 
 
 and that then the tenant may still retain, if he wishes, certain rooms 
 cannot change the construction. This clause has no tendency to 
 show that the tenant was bound to remain during the two years. 
 
 Exceptions overruled. 1 
 
 a. It is a sale of the land for such fixed period. 
 FOWLER v. BOTT. 
 
 6 Massachusetts, 63. — 1809. 
 
 Sewall, J. — (After stating the plaintiff's demand, the several 
 issues, and the verdict.) By a motion in arrest of judgment, this 
 question, arising upon the defendant's third plea, is to be decided 
 by the court, viz., whether, after a destruction by fire of the build- 
 ings demised, the lessors, without rebuilding, can recover their rent. 
 
 The supposed hardship of the case has been urged upon the atten- 
 tion of the court, as an argument for the defendants. The answer 
 to this argument is, that a lease for years is a sale of the demised 
 premises for the term; and, unless in the case of an express stipula- 
 tion for the purpose, the lessor does not insure the premises against 
 inevitable accidents, or any other deterioration. The rent is in effect 
 the price, or purchase money, to be paid for the ownership of the 
 premises during the term; and their destruction, or any deprecia- 
 tion of their value, happening without the fault of the lessor, is no 
 abatement of his price, but entirely the loss of the purchaser. 
 
 Independently, however, of the general reasoning, which has been 
 gone into upon this question, the law applicable to the case at bar 
 has been long settled. In the case of Belfour v. Weston, cited for 
 the plaintiffs, the same question was made which arises in this case; 
 but the Court of King's Bench refused to hear an argument upon 
 it, being of opinion that the point had clearly been determined by 
 the authorities, and on that occasion Justice Buller refers to the 
 opinion of Lord Mansfield in the case of Pindar v. Ainsley and Rutter, 
 where the question occurred in an action of ejectment brought by 
 the tenant, in a lease for years, against the landlord, for the posses- 
 sion of some houses, which, having been burnt down, had been 
 rebuilt by the landlord during the term ; but after acts by the tenant, 
 from which abandonment of the lease was to be presumed. Lord 
 
 1 The end as-well as the commencement of the term may depend on some 
 event other than the mere lapse of time, in accordance with the maxim cited 
 above. See Kabley v. Worcester Gaslight Co., p. 721, supra. But an estate 
 depending on the duration of human life is of course a life estate. — Ed.
 
 726 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 Mansfield stated, as an established principle of law, that the conse- 
 quence of the house being burnt down is, that the landlord is not 
 obliged to rebuild, but the tenant is obliged to pay the rent during 
 the whole of the term. 
 
 Nor is it correct to say that, in cases of this nature, the courts of 
 equity in England afford relief. The cases cited in the argument 
 for the defendant, as in point to that purpose, are noticed by Justice 
 Buller in the case of Doe v. Sandham; and he speaks of them as 
 decisions on particular circumstances, and not upon any general 
 principle or rule of equity. 
 
 Upon the whole, this established rule of law determines the con- 
 struction and operation of the contract relied on by the plaintiffs in 
 the case at bar. When words of the same import are used, as were 
 employed in the contracts upon which the decisions cited and 
 referred to were made, the intentions of the parties must be under- 
 stood in conformity to those decisions, even admitting the supposed 
 hardship of the case, or severity of the demand. But even this 
 objection seems inapplicable, when we consider the lease as a bargain 
 and sale for the term at an agreed price. When there is no covenant 
 on the part of the lessor to insure against fire, or any engagement 
 to repair the premises in that event, or any other casualty by which 
 they may be impaired or destroyed, the accident becomes the mis- 
 fortune of the lessee, and he is not excused from his rent. 
 
 Judgment is not arrested, but must be entered according to the 
 verdict. 1 
 
 BROWN'S ADMINISTRATORS v. BRAGG. 
 22 Indiana, 122. — 1864. 
 
 Worden, J. — On the 1st of April, 1859, Brown let to Bragg cer- 
 tain real estate, to be held by the latter for the term of one year 
 from that date; for which Bragg was to pay, as rent, the sum of 
 $450, to be paid quarterly, at times specified in the instrument of 
 writing creating the tenancy executed between the parties. On the 
 1st of December, 1859, a quarter's rent being due and unpaid, Brown 
 served on Bragg a notice to quit the premises at the expiration of 
 ten days, unless the rent in arrear should be paid within that time. 
 
 Bragg failing to pay the rent or quit the premises, this action was 
 brought by the representatives of the lessor to recover possession. 
 The suit was brought before the expiration of the term. 
 
 1 See Graves v. Berdan, infra. — Ed.
 
 II. I.] ESTATES FOR YEARS OR " TERMS." "J2J 
 
 The court below held on the facts above stated, that the plaintiffs 
 were not entitled to recover, and we think the decision was in 
 accordance with the law of the case. 
 
 We suppose that, independently of any statutory provisions, the 
 proposition that the failure to pay the rent due, did not work a for- 
 feiture of the estate of the tenant, is too clear to require the citation 
 of any authorties in its support. In order that a failure to pay rent 
 should work a forfeiture, it should be so expressed in the lease or 
 agreement of the parties, which was not done in the case before us. 
 As well might a man who sells a horse to be paid for in the future, 
 claim to recover him back on failure of the purchaser to pay accord- 
 ing to his stipulation, as the lessor of real estate to recover it from 
 his tenant because of his failure to pay rent, there being no stipula- 
 tion that such failure should work a forfeiture. 
 
 But we have the following statutory provision, which is claimed by 
 the appellants to be applicable to the case before us. " If a tenant 
 at will, or from year to year, or for a shorter period, neglect or 
 refuse to pay rent when due, ten days' notice to quit shall determine 
 the lease, unless such rent shall be paid at the expiration of said ten 
 days." 2 G. & H. P. 359, § 4. 
 
 The case before us does not come within any of the clauses of the 
 •statute above set out. * * * 
 
 The lease in the case before us, created an estate which the law 
 defines to be an estate for years. Such would also have been its 
 character had it been less than a year in duration. " Every estate 
 which must expire at a period certain and prefixed, by whatever 
 words created, is an estate for years." 2 Shars. Blackstone, p. 142. 
 " Estates for years embrace such as are for a single year, or for a 
 period still less, if definite and ascertained, as a term for a fixed 
 number of weeks or months, as well as for any definite number of 
 years, however great." 7 Washburn on Real Estate, p. 291. 
 
 The defendant being a tenant for years, and not at will, or from 
 year to year, or for a shorter period, it was not competent for the 
 lessor to terminate the tenancy before the expiration of the term, 
 on the ground of failure to pay the stipulated rent. 
 
 Judgment below affirmed.
 
 728 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 b. The term may be created to commence in futuro. 1 
 
 YOUNG v. DAKE. 
 
 5 New York, 463. — 1851. 
 
 Summary proceedings brought by landlord to remove a tenant 
 who is alleged to be holding over his term. In Sept., 1848, while 
 the defendant was in possession of the premises under a lease which 
 would expire April 1, 1849, a^parol agreement was entered into 
 between the parties that Dake should occupy the store for another 
 year, commencing April 1st, 1849, on the same terms as for the then 
 current year. This proceeding was commenced April 3, 1849. 
 Judgment for defendant below. The judgment was sustained on 
 certiorari to the Supreme Court. Plaintiff appeals. 
 
 McCoun, J. — The importance of this case is owing chiefly to the 
 fact that the judgment of the Supreme Court in the fourth district, on 
 the opinion of Mr. J. Paige, which is appealed from, and a judgment 
 in the fifth district in Croszvell v. Crane, 7 Barb. 192, on the opinion 
 of Allen, J., upon precisely the same question, are directly in conflict 
 with each other. That question is simply this, whether a parol 
 agreement to let, or demise, a house or other real estate, for the 
 term of one year, to commence in futuro, is valid in law? 
 
 There are two sections of our present statute concerning " fraudu- 
 lent conveyances and contracts relative to lands," which bear upon 
 the question, and by which it must be determined. These are sec- 
 tions 6 and 8, 2 R. S. 134. 3 The first of these sections relates to the 
 manner of creating an estate or interest in land, and of assigning it, 
 etc. The other prescribes the requisites of a valid contract for the 
 sale of lands; and both, by way of exception, leave " leases for a 
 period not exceeding one year," and "contracts for the leasing for 
 a period not longer than ' one year,' " unaffected by the formalities 
 and requisites therein prescribed. 
 
 It follows, therefore, that a lease " for a term not exceeding 'one 
 year,' " and a contract for " a lease or letting for a period ' not longer 
 than one year ' " are valid, though made by parol; but the question 
 is whether the lease or contract, in order to be thus valid, must be 
 confined to one year from the time of granting, or entering into it. 
 The statute does not say so. There is no word or expression which 
 would seem to attach any such qualification or condition to a parol 
 
 1 For the nature of the lessee's interest in such case before the term actually 
 begins, see Becar t. flues, supra, p. 722. — En. 
 207 and 224 N. Y. R. P. L. — Ed.
 
 II. i.] ESTATES FOR YEARS OR " TERMS." 729 
 
 lease, or contract of letting for a year, as that it shall commence 
 immediately, and cannot be made to commence at some future day. 
 The appellant nevertheless insists, and the reasoning of the court in 
 Croswellv. Crane is to the same effect, that the words " from the 
 making thereof " are to be supplied, so that these sections of the 
 Revised Statutes must be understood as having the same qualification 
 in that respect which existed in the old statute, allowing parol leases 
 and parol contracts for leases not exceeding three years. 
 
 It appears that the revisors did not purpose to make any alteration 
 of the old law in respect to leases, and contracts for leases by parol, 
 but prepared the sections limiting their term or duration to three 
 years " from the making thereof," as in the then existing statute; 
 and in that form and with a view to a re-enactment, submitted the 
 sections 6 and 8 to the Legislature. The appellant's counsel supposes 
 that Mr. Justice Paige was mistaken in saying that the Legislature 
 struck out the words " from the making thereof," whereas those 
 words were dropped or stricken out by the revisors. The counsel 
 has been misled on this subject. The revisors' original reports, as 
 printed for the use of the Legislature, show that they prepared the 
 6th section for adoption, allowing of parol leases for three years, 
 with the explanatory words, " from the making thereof." What- 
 ever alteration it underwent, therefore, was an alteration by way of 
 amendment in the Legislature. The term of three years, as pro- 
 posed, was reduced in the enactment to one year, and the words 
 " from the making thereof " were entirely omitted. 
 
 Now, who can say, or can have a right to say, that when those 
 alterations and amendments were made in the law, the Legislature 
 did not intend to dispense entirely with the qualification which the 
 latter words would seem to import? 
 
 It appears to me a much more rational supposition, that the Legis- 
 lature did so intend, than that they did not, for if the object had 
 been merely to substitute one year for three years, and to make no 
 other alteration in the principle of the law, they would have per- 
 mitted the other words to remain. Those words were there already, 
 and they were just as appropriate to the term of one year as to three 
 years. They were not the less required to explain and limit the 
 commencement of the term and duration of the lease in the one case, 
 than in the other, provided it was the intention that contracting 
 parties should still regard it as the law, that their verbal contracts 
 and leases for a year must not be made to commence on a future or 
 subsequent day. Omitting to re-enact those words when the term of 
 a verbal lease was reduced to one year, shows, I think, very conclu- 
 sively, a design to take off the restrictions they were calculated to
 
 • 73° ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. Cll. II. 
 
 impose, as not being necessary when the letting should be but for a 
 single year. 
 
 The section of the statute now under consideration appears to me 
 not to come within the rule of construction adverted to in Croswell 
 v. Crane, that a mere change of phraseology in the revision of 
 statutes does not work a change in the law, because I think the 
 intention of the Legislature in this instance to change the law, is too 
 apparent to admit of any doubt, from the circumstances I have men- 
 tioned. 2 Hill, 380; 6 Hill, 574. 
 
 The statute then threw no obstacle in the way of a parol lease, or 
 of an agreement for a letting for a year, to commence in futuro; and 
 there is nothing in the common law to prevent it. From the mak- 
 ing of a contract or lease to take effect afterwards, a present interest 
 vests — an interesse termini — though not an interest in possession, 
 until the lessee enters upon the possession. 2 Preston's Shep. 
 Touch. 267, 241; 1 Comstock's R. 311. 
 
 The time between the making of the lease and its commencement 
 in possession, is no part of the term granted by it. The term is 
 that period which is granted for the lessee or tenant to occupy and 
 have possession of the premises. It is the estate or interest which 
 he has in the land itself by virtue of the lease from the time it vests 
 in possession. When, therefore, our statute speaks of a lease for a 
 term not exceeding one year, and of a contract for a lease for a 
 period not longer than one year, it has reference to the time for the 
 tenant to possess and occupy the premises, and does not include any 
 previous or intermediate time. A lease, therefore, for the term of 
 one year, may as well be made to commence at a future day, as at. 
 the day of making it. If it should not expire until two years from 
 the time it was made, it might still be a lease only for one year. 
 
 Another point has been presented by the appellant, viz., that there 
 was an agreement, not in writing, which, by its terms, was not to 
 be performed within a year from the making thereof, and therefore 
 it was void. 2 R. S. 135, § 2, sub. i. 1 
 
 The agreement in question took place on the nth Sept., 1848, by 
 which the defendant was to hold and occupy the premises for a year, 
 to commence on the 1st April, 1849. 
 
 In Croswell v. Crane, the court appears to have considered that 
 the above provision of the statute also applied to such cases, and 
 was fatal to this agreement. 
 
 That provision of the statute is a part of the title II of the statute 
 
 1 These provisions are now in § 21 of the New York Personal Property Law, 
 Laws of 1897, ch. 417. — Ed.
 
 II. I.] ESTATES FOR YEARS OR "TERMS." 73 1 
 
 to prevent frauds in conveyances and contracts; and the whole of 
 that title and all its provisions has reference only to " fraudulent 
 conveyances, and contracts relative to ' goods, chattels, and things in 
 action.' " It is very obvious that none of its provisions have any 
 application to, or effect upon, contracts or agreements concerning 
 lands, or interest in lands. The first title of the statute performs 
 that office. The second title applies to contracts and transactions 
 affecting personal property only. The learned court of the fifth 
 district must have overlooked this fact, when that part of the opinion 
 was adopted, which supposes that the agreement or lease in question 
 came within its provisions. 
 
 Judgment affirmed. 
 
 c. The term may be subject to a condition subsequent or to a limitation 
 
 express or implied. 1 
 
 JACKSON ex dem. WELDON v. HARRISON. 
 
 17 Johnson (N. Y.), 66. — 1819. 
 
 Ejectment to recover leased premises on the ground that the 
 lessee has broken certain conditions contained in the lease. Verdict 
 for plaintiff, subject to the opinion of this court. 
 
 Van Ness, J., delivered the opinion of the court. — The stipula- 
 tion in the concluding part of the lease, prohibiting the lessee from 
 making alterations in the buildings, rests in covenant merely, and 
 is not made a condition for the breach of which the estate is for- 
 feited. Nor can the lessor of the plaintiff avoid the lease, because 
 one of the buildings was underlet. 
 
 The condition in the lease is, that the lessor shall not " assign 
 over, or otherwise part with, this indenture, or the premises thereby 
 leased, or any part thereof, to any person," etc. These words must 
 be construed to mean an assignment of the premises, or part of them, 
 for the whole term; and no forfeiture is incurred by letting for a 
 shorter period; under-leases not being considered as coming within 
 the terms of the condition, or proviso. This principle was fully 
 settled, in the case of Crusoe ex. dem. Blencowe v. Bugby, 3 Wils. 234, 
 and has been repeatedly sanctioned since and applied to conditions 
 expressed in stronger terms than in the present case. A lease may 
 
 1 A lease made by a life tenant is subject to such implied limitation. In 
 some states the devisee of a life interest may (by the will) be given power to 
 make leases which shall extend beyond his own life. See N. Y. R. P. L., 
 §§ 123, 135. — Ed.
 
 732 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 be so expressed as to produce a forfeiture for underletting, as well 
 as for assinging the whole term; but this is not the language of the 
 lease in question. 
 
 The plaintiff equally fails in showing a right of re-entry, by reason 
 that the defendant did not pay the United States, tax, because, the 
 indispensably necessary step of making a demand of the defendant, 
 within the period required by law, in order to create a forfeiture, 
 was not taken. 
 
 It remains to be considered, whether the plaintiff is entitled to 
 recover, on the ground that a forfeiture has been incurred by the 
 nonpayment of the rent. This is a proceeding at common law, and 
 the claim of the plaintiff being strict! juris, all the niceties required 
 by the common law must be previously complied with, to entitle 
 the revisioner to re-enter. There must be a demand of the rent due 
 on the last day, a convenient time before sunset; and, if there be a 
 house on the land, the demand must be made at the house of the 
 tenant, if he is at home. Several other things are required to be 
 done, which it is not necessary to detail for the purpose of deciding 
 this case. 1 Co. Litt. 201 b, 202 a; 1 Saund. 287 n 16 and the 
 cases there cited. On the 1st and 20th of November, 1817, Reid, 
 the agent of the lessor of the plaintiff, went to the house of the 
 defendant, the lessee, in the afternoon, and demanded payment of 
 the quarter's rent then due; but the defendant answered, " he could 
 not pay." A similar demand was made by the agent, on the 1st and 
 20th of February, in the same year, of the quarter's rent then due, 
 and the defendant promised to pay it, but did not. The question 
 is, whether or not, under these circumstances, the right to re-enter 
 accrued. 3 I think it did not. The agent says he made the demand 
 " in the afternoon; " now, this may have been immediately after 12 
 o'clock, and a demand at so early an hour would not be good. ' The 
 last time of demand of the rent," says Lord Coke, " is such a con- 
 venient time before the sun-setting of the last day of payment, as the 
 money may be numbered and received." And it is laid down by 
 Hale, Ch. B., that the time of sunset is the time appointed by law 
 to demand rents; Duppa v. Mayo, 1 Saund. 287, and though this is 
 probably not literally correct, yet it serves to show that the demand 
 necessary to be made, to create a forfeiture, must be immediately 
 preceding sunset, so that the money may be counted, and the neces- 
 sary receipt or acquittance given, while there is light enough reason- 
 ably to do so. This may appear to be unnecessarily rigorous, and 
 a sacrifice of substance to form; but when it is considered that the 
 
 1 See Smith v. Whitbeck, 13 Oh. St. 471. — Ed. 
 
 • A riK'lu of re-entry for non-payment of rent was reserved in the lease. — En.
 
 II. i.] ESTATES FOR YEARS OR "TERMS." J ^ 
 
 consequence of a proceeding of this kind, is the forfeiture of the 
 tenant's whole interest under the lease, every necessary form which 
 the law has prescribed must be most scrupulously observed. ' The 
 court have always looked nearly into these conditions, covenants, or 
 provisos." Crusoe v. Bugby, 3 Wils. 234. It was incumbent on 
 the plaintiff to have shown during what part of the afternoon the 
 demand was made, and that it was towards sunset, or late in the 
 afternoon. The defendant, in a case of this description, had a right 
 to remain passive, and to avail himself of any defect of proof on the 
 other side, necessary to establish his right to recover. This point 
 being decisive, the other objections to the plaintiff's right to recover 
 need not be noticed. The defendant is entitled to judgment. 
 
 Judgment for the defendant. 
 
 d. The term may end {before the time fixed} by forfeiture, surrender, 
 merger, or the exercise of the power of eminent domain. 
 
 JACKSON ex dem. WELDON v. HARRISON. 
 
 17 Johnson (N. Y.), 66. — 1819. 
 [Reported herein at p. 731.] 
 
 LOUGHRAN v. ROSS. 
 15 New York, 792. — 1871. 
 [Reported herein at p. 325. ]' 
 
 e. Effect of destruction of the premises in whole or part. 
 
 GRAVES v. BERDAN. 
 
 26 New York, 498. — 1863. 
 
 Rosekrans, J. — The opinion delivered by Justice Emott in this 
 case, in the Supreme Court, is a correct exposition of the law appli- 
 cable to it, and for the reasons stated therein, the judgment should 
 be affirmed. The case of Stockwell v. Hunter, 11 Mete. 448, may be 
 added to the authorities cited by Justice Emott to show that a lease 
 of basement rooms or chambers, in a building of several stories in 
 
 1 For a case of merger of a term in the fee, see Carroll v. Ballance, 26 111. 9, 
 and compare . — Ed.
 
 734 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 height, without any stipulation, by the lessor or lessee, for rebuild- 
 ing, in case of fire or other casualties, gives the lessee no interest in 
 the land upon which the building stands, and that if the whole build- 
 ing is destroyed by fire, the lessee's interest in the demised rooms is 
 terminated, and the lessor may, after the destruction of the building, 
 enter upon the soil and rebuild upon the ruins of the former edifice. 
 
 It may be added that at common law, where the interest of the 
 lessee in a part of the demised premises was destroyed by the act of 
 God, so that it was incapable of any beneficial enjoyment, the rent 
 might be apportioned. In Rolle's Abridgement, 236, it is said that 
 if the sea break in and overflow a part of the demised premises, the 
 rent shall be apportioned for, though the soil remains to the tenant, 
 yet as the sea is open to every one, he has no exclusive right to fish 
 there. A distinction is taken between an overflow of the land by the 
 sea, and fresh water, because, though the land be covered with fresh 
 water, the right of taking the fish is vested exclusively in the lessee, 
 and in that case the rent will not be apportioned. In the latter case 
 the tenant has a beneficial enjoyment, to some extent, of the demised 
 premises, but in the former he has none, and if the use be entirely 
 destroyed and lost, it is reasonable that the rent should be abated, 
 because the title to the rent is founded on the presumption that the 
 tenant can enjoy the demised premises during the term. Com. 
 Land, and Ten. 218; Gilb. on Rents, 182. 
 
 Where the lessee takes an interest in the soil upon which a build- 
 ing stands, if the building is destroyed by fire, he may use the land 
 upon which it stood, beneficially, to some extent, without the build- 
 ing, or he may rebuild the edifice; but where he takes no interest in 
 the soil, as in the case of a demise of a basement, or of upper rooms 
 in the building, he cannot enjoy the premises in any manner after 
 the destruction of the building, nor can he rebuild the edifice. He 
 cannot have the exclusive enjoyment of the vacant space formerly 
 occupied by the demised rooms. The effect of the destruction of 
 the building, in such a case, is analogous to the effect of the destruc- 
 tion of demised premises by the encroachments of the sea, mentioned 
 in Rolle's Abridgment; and the established rule for the abatement 
 or apportionment of the rent, should be applied in the former as 
 well as in the latter case. The same reason exists for its application 
 in both cases. 
 
 But even if the lessee's interest in the demised apartment, in a 
 case like this, was not terminated by the total destruction of the 
 building, it may be doubted whether the lessee could recover rent so 
 long as he failed to give to the demised upper rooms the support 
 necessary to them for special enjoyment. The rule seems to be
 
 II. i.] ESTATES FOR YEARS OR " TERMS." 735 
 
 settled in England, that where a house is divided into different 
 floors or stories, each occupied by different owners, the proprietor 
 of the ground floor is bound, by the nature and condition of his 
 property, without any servitude, not only to bear the weight of the 
 upper story, but to repair his own property so that it may be able to 
 bear such weight. The proprietor of the ground story is obliged to 
 uphold it for the support of the upper story. Humphrey v. Brogden, 
 12 Q. B. 739; s. c. 1 Eng. Law and Eq. 241; Rowbothem v. Wilson, 
 $6 Id. 236; Harris v. Roberts, 6 El. & Br. 643; s. c. 7 Id. 625. In 
 the case last cited the duty of such support is recognized as a gen- 
 eral common law right. In a lease of upper rooms by the owner of 
 the entire building, a covenant should be implied on the part of the 
 lessor to give such support to the upper rooms as is necessary for 
 their beneficial enjoyment. It has been decided in this court that 
 the statute forbidding the implication of covenants in conveyances 
 of real estate, does not apply to leases for years. Mayor of New 
 York v. Maybee, 3 Kern. 151; Vernam v. Smith, 15 N. Y. 332, 333. 
 
 The judgment should be affirmed. 1 
 
 FOWLER v. BOTT. 
 
 6 Massachusetts, 63. — 1809. 
 {Reported herein at p. 725.] 
 
 f. Holding over the term. 
 
 (1.) When Tenant Will be Held for Another Year. 
 
 HAYNES v. ALDRICH. 
 
 133 New York, 287. — 1892. 
 
 Finch, J. — Judgment was ordered against the defendant upon 
 the trial of this action for rent accrued after the expiration of her 
 original lease, upon the ground that by holding over after such 
 expiration, she became a tenant for another year upon the terms of 
 the prior written lease. The facts disclosed were that such lease 
 ended by its terms on May 1, 1889; that it contained a provision 
 that the premises should be occupied as a private dwelling, and a 
 covenant not to sublet without the written consent of the lessor. Both 
 
 1 But see the dissenting opinion by Wright, J., and the case of Helbum &•» 
 Co. v. Mofford, 7 Bush. (Ky.) 169. See also § 197, N. Y. R. P. L. — Ed.
 
 736 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 stipulations were violated. The tenant, without permission, rented 
 the premises to Mrs. Coventry, who occupied them as a boarding 
 house, and received, as one of her boarders, a lady who was a chronic 
 invalid and continuously ill. On the 4th of February, 1889, the 
 lessor inquired of the lessee whether she desired to renew her lease 
 for another year, and was informed that she did not. The first day 
 of May was a holiday, and possibly the tenant had until noon of the 
 next day for a surrender of possession. But the possession was 
 retained by the tenant until the afternoon of May 4th, when the keys 
 were tendered, but refused. The excuse given is that on the second 
 day of May, there was difficulty in engaging trucks; that the removal 
 began on the third, but the sick boarder could not then be moved 
 with safety, and was not moved until the fourth. 
 
 This court held in Commissioners of Pilots v. Clark, 33 N. Y. 251, 
 that the rule is too well settled to be disputed that where a tenant 
 holds over after the expiration of his term the law will imply an 
 agreement to hold for a year upon the terms of the prior lease; that 
 the option to so regard it is with the landlord and not with the ten- 
 ant, and that the latter holds over his term at his peril. In- Conway 
 v. Starkweather, 1 Den. 114, the tenant had notified the landlord of 
 his intention not to remain for another year, as was the fact in the 
 present case, but, nevertheless, did hold over for a fortnight, and 
 the fact of the notice was held to be immaterial, the court saying, 
 " the act of the plaintiff in holding over has given the defendants a 
 legal right to treat him as tenant, and it is not in his power to throw 
 off that character, however onerous it may be." 
 
 The appellant does not deny the rule, but seeks to qualify it so as 
 to mean that it is only where the tenant holds over voluntarily and 
 for his own convenience that the landlord's right arises, and that it 
 does not so arise when the tenant holds over involuntarily, not for 
 his own convenience, but because he cannot help it. I am averse 
 to any such qualification. It would introduce an uncertainty into a 
 rule whose chief value lies in its certainty. The consequent con- 
 fusion would be very great. Excuses would always be forthcoming, 
 and their sufficiency be subject to the doubtful conclusions of a jury, 
 and no lessor would ever know when he could safely promise posses- 
 sion to a new tenant. The cases cited by the appellant do not bear 
 out his contention. In Smith v. AM, 7 Daly, 492, the holding over 
 was in part the act and assent of the landlord and occasioned by 
 pending negotiations, and could not have been said to be the sole 
 act of the tenant. In Shanahan v. Shanahan, 53 J. & S. 344, it 
 appeared that the first of May was Sunday, that the tenant began to 
 move on the afternoon of the second, that the removal continued
 
 II. i.] ESTATES FOR YEARS OR " TERMS." 737 
 
 during the third, and for that reason the tenant was held liable. The 
 courts did interject the remark that there was no unavoidable delay 
 in moving, but without seeking to change or modify the rule. In 
 McCabe v. Evers, decided in 1890 in the New York City Court, it 
 appeared that the tenant moved out on the first of May, but left 
 behind him an old stove and some rubbish, and tendered the key on 
 the second of May. The court held that the evidence of a holding 
 over was inconclusive and ambiguous, and the question should have 
 been submitted to the jury. In Maney v. Clemens, decided by the 
 same court, the term expired on February second, at noon; the 
 tenant began his removal in the morning and worked till midnight. 
 There was a verdict against the landlord which the court refused to 
 set aside. 
 
 These cases, even if regarded in all respects as correctly decided, 
 fall very far short of establishing the appellant's doctrine or justify- 
 ing a reversal in the present case. There is no question here about 
 the fact of a holding over, and no question, therefore, in that regard 
 for the solution of a jury. The tenant remained in possession 
 voluntarily, for her own convenience and that of her sick boarder. 
 If it was unsafe to remove the latter, the situation was wholly the 
 fault of the tenant, who sets up as an excuse for one violation of the 
 lessor's rights the consequences of her own earlier violation of 
 the terms of the lease. No impossibility of removal was shown 
 merely difficulty and inconvenience, which should have been and 
 might have been foreseen and provided against. If the rule in this 
 case seems to involve a hardship, that is sometimes true of every 
 general rule, however just and wise, but does not justify its abroga- 
 tion. To sustain this defense would open the door to a destruction 
 of the settled doctrine and tend to involve the rights of both lessor 
 and lessee in uncertainty and confusion. 
 
 I do not mean to say that whether there has been a holding over 
 at all may not sometimes be so doubtful upon the facts as to require 
 a submission to the jury. I mean to say that there is no such doubt 
 in the present case. I reserve the question also, whether there 
 might not be an unavoidable delay, in no manner the fault of the 
 tenant, directly or indirectly, which would serve as a valid excuse. 
 It is enough that here was a holding over not unavoidable, which 
 might have been provided against, and where the chief difficulty 
 grew directly out of the tenant's own wrongful act. 
 
 It is claimed, however, that the further question whether the lessor 
 exercised the permitted option or took possession in her own right, 
 should have, been submitted to the jury. I think the facts admit of 
 but one inference. The lessor did exercise her option, and that 
 
 LAW OF PROP. IN LAND — 47
 
 738 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 promptly and clearly. When the keys were tendered to her mother 
 they were refused. In the afternoon of May fourth the lessor went 
 to the house to see what was occurring. She found it deserted and 
 the windows open. Her property needed protection. Under the 
 lease she had a right to enter and relet it as the agent of the tenant. 
 A policeman entered through the open window. Some keys were 
 found on the mantel and thereafter used, but evidently not all, for 
 others were restored much later. The premises were somewhat 
 damaged and the lessor had a little painting and some plumbing 
 done, amounting only to ordinary and needed repairs. She tried 
 to rent the house but failed, and went to Europe during the summer, 
 and occupied the house in the fall under a stipulation which expressly 
 reserved her existing rights. Upon these facts no inference was 
 justified, except that drawn by the court. There was a clear refusal 
 to accept the surrender offered and the repairs were consistent with 
 that position and with the right reserved in the lease. 
 
 We think the judgment was correct and should be affirmed, with 
 costs. 1 
 
 (2.) When He May Claim to be a Tenant at Sufferance. 
 
 SMITH v. LITTLEFIELD. 
 
 51 New York, 539. — 1873. 
 
 Ejectment. Defense, that defendant was in possession under a 
 lease. Judgment below for plaintiff. Defendant appeals. 
 
 Earl, C. — The defendant hired the premises in question for one 
 year, ending on the eighteenth day of April, 1865. He held over 
 until the nineteenth day of June, without the consent of the plain- 
 tiff, when this action was commenced. The plaintiff had served no 
 notice to quit, and the sole question for our consideration is, whether 
 such a notice was necessary. At common law, a tenant who held 
 over after the expiration of his term became a tenant by sufferance. 
 He had only a naked possession, and no estate which he could trans- 
 fer or transmit. He stood in no privity to his landlord, was not 
 liable to pay any rent and was not entitled to any notice to quit. 
 He held by the laches of the landlord, who could enter and put an 
 end to the tenancy when he pleased. 4 Kent's Com. 118. This is 
 still the law, except as modified by the statute. At common law, 
 when by the terms of the lease the tenancy terminated at a day 
 certain, the landlord could always commence his action of ejectment 
 
 1 Sec also Schuyler v. Smith, 51 N. Y. 309. — Ed.
 
 II. i.] ESTATES FOR YEARS OR " TERMS." 739 
 
 to recover possession of his land, after the expiration of the lease, 
 without any notice to quit; and this he could do, although the 
 tenant became a tenant by sufferance by holding over the term with- 
 out his permission. It was only in a tenancy from year to year, the 
 termination of which was uncertain, that the tenant was entitled to 
 notice to quit. The object of the notice was to give him informa- 
 tion when the lease would terminate. In the former case such notice 
 was contained in the lease itself, and in such case I cannot discover 
 that it was ever made the subject of complaint that the tenant could 
 be removed without notice. If within the meaning of our statutes 
 (1 R. S. 745, 746) ' every tenant holding over his term for the brief- 
 est period is to be deemed a tenant by sufferance, and thus entitled 
 to one month's notice to quit, then every lease for one year will be, 
 at the will of the tenant, practically extended to a lease for thirteen 
 months, as no proceedings can be instituted for his removal until the 
 expiration of the month's notice. It cannot be conceived that the 
 Legislature, in a case where the parties have in the lease fixed a day 
 certain for the termination of the tenancy, intended that the tenant 
 may, by his own wrong, extend his holding for another month; and 
 a construction leading to such a result should not be tolerated if it 
 can be avoided. The first statute in this State, for the summary 
 removal of a tenant holding over his term, was passed April 13, 
 1820, and in that statute it was provided that " if any tenant or lessee 
 at will or at sufferance or for part of a year, or for one or more 
 years, or from year to year, hold over and continue in possession of 
 the leased premises after the expiration of his term without the 
 permission of his landlord," he may be removed in the mode pre- 
 scribed in the act, provided that, " in case of a tenancy at will or 
 sufferance, the landlord or lessor shall give three months' notice in 
 writing to the tenant," etc. Under this statute the construction 
 contended for by the plaintiff in this case would have prevented any 
 procedure by the landlord, in the case of a lease for one year, until 
 the expiration of fifteen months. It is quite clear that the tenancy 
 at sufferance mentioned in this act which required the notice was not 
 one created by simply holding over a definite term for a brief period 
 without the permission of the landlord. This statute was substan- 
 tially re-enacted in the Revised Statutes (2 R. S. 513),* and they 
 authorize the same summary proceeding where the tenant " shall 
 hold over and continue in possession of the demised premises, or 
 any part thereof, after the expiration of his term, without the per- 
 
 >§ 198, N. Y. R. P. L. — Ed. 
 
 8 §§ 2231-2265, N. Y. Code Civ. Pro. — Ed.
 
 740 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 mission of the landlord." This authorizes, and has always been 
 understood to authorize, the proceeding without previous notice in 
 all cases where the tenant holds over a definite term without the 
 permission of his landlord, notwithstanding § 31, which requires that 
 before the magistrate shall issue the summons in the case of a 
 tenancy at will, or at sufferance, he shall be satisfied " that such 
 tenancy has been terminated by giving notice in the manner pre- 
 scribed by law," and the notice required is one month. 1 R. S. 
 745. Why terminate the tenancy by notice when its termination is 
 definitely fixed by the terms of the lease? Was it the intention of 
 the Legislature that, in the case of a tenancy for one year, the ten- 
 ant could wrongfully hold over for fifteen, twenty or thirty days 
 without the permission of his landlord, and then, by his own wrong, 
 entitle himself to one month's notice before he could be removed, 
 or even proceedings instituted to remove him? 
 
 The notice is clearly necessary only in case there is such a tenancy 
 at will or by sufferance as needs to be terminated. Such a tenancy 
 is not created within the meaning of the statute by the tenant simply 
 holding over his term without the assent of his landlord. To entitle 
 the tenant who holds over a definite term to notice, the holding over 
 must be continued for such a length of time after the expiration of 
 the term, and under such circumstances as to authorize the implica- 
 tion of assent on the part of the landlord to such continuance. In 
 such case the tenancy existing by the implied assent of the landlord 
 ought to be terminated before the tenant can be removed, and in 
 such case the tenant is a tenant by sufferance within the meaning of 
 the statute and cannot be removed by summary proceedings or 
 action of ejectment without the previous notice to quit. The con- 
 struction I have thus given to these statutes is the one generally, if 
 not universally, prevailing in practice, and while I have found no 
 controlling decision directly in point, it is sanctioned by the opinions 
 of learned judges. It is sustained by the opinion of Ch. J. Savage 
 in Rowan v. Lyttle, 11 Wend. 617, and by the judges who wrote 
 opinions in the following cases: Allen v. /aguish, 21 Wend. 631; 
 Gamer v. Hannah, 6 Duer, 270; Livingston v. Tanner, 12 Barb. 484. 
 
 I, therefore, reach the conclusion that the judgment should be 
 affirmed with costs.
 
 II. 2.] ESTATES FOR YEARS OR " TERMS." 741 
 
 2. Creation of the Term. 1 
 
 a. By deed or other writing or by parol." 1 
 
 Bradley, J., in T ALAMO v. SPITZMILLER. 
 
 120 New York, 37. — 1890. 
 
 The plaintiff not being a party to the lease, assumed no legal obli- 
 gation to pay rent for the term, as a lease for more than one year 
 not in writing was void. 2 R. S. 135, §§ 6, 8. 3 The agreement 
 between the parties and under which the plaintiff entered into joint 
 occupancy with the defendant being void, gave to the plaintiff no 
 right and imposed upon the defendant no obligation to permit him 
 to go into or remain in possession of any portion of the house, and 
 unless he became a yearly tenant, his liability was for use and occu- 
 pation for the time only which he occupied. Thomas v. Nelson, 69 
 N. Y. 118. 
 
 The mere fact that a person goes into possession under a lease 
 void because for a longer term than one year, does not create a 
 yearly tenancy. If he remains in possession with the consent of 
 the landlord for more than one year under circumstances permitting 
 the inference of his tenancy from year to year, the latter could 
 treat him as such, and the tenant could not relieve himself from lia- 
 bility for rent up to the end of the current year. And the terms of 
 the lease, void as to the duration of term, would control in respect to 
 the rent. Coudert v. Cohn t 118 N. Y. 309. The parol agreement for 
 five years was not effectual to create a tenancy for one year. Nor 
 did the mere fact that the plaintiff went into possession, have that 
 effect. He remained in occupation a part of one year only, and the 
 creation of a tenancy for a year was dependent upon something 
 further. While it is not required that a new contract be made in 
 express terms, there must be something from which it may be in- 
 ferred, something which tends to show that it is within the inten- 
 
 1 This may be by devise or by an agreement inter partes. Probably the only 
 case of a term arising by operation of law is the widow's quarantine. § 184, N. 
 Y. R. P. L., and similar statutes. — Ed. 
 
 2 Technical words to create a lease are, demise, lease, to farm let, but " what- 
 ever words are sufficient to explain the intent of the parties that the one should 
 divest himself of the property and the other come into it for a determinate 
 time, whether they run in the form of a license, covenant or agreement, will, 
 in construction of law, amount to a lease as effectually as if the most proper 
 and pertinent words were made use of for that purpose." Watson v. 0- Heme, 6 
 Watts (Pa.), 362, 368. — En. 
 
 3 i; 207, N. Y. R. P. L. In many of the States a parol lease is valid if not 
 made for a longer term than three years. — Ed.
 
 742 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 tion of the parties. The payment and receipt of an instalment 
 or aliquot part of the annual rent, is evidence of such understanding, 
 and goes in support of a yearly tenancy, and without explanation to 
 the contrary, it is controlling evidence for that purpose. Cox v. 
 Bent, 5 Bing. 185; Bishop v. Howard, 2 Barn. & C. 100; Braythwayte 
 v. Hitchcock, 10 M. & W. 494; Mann v. Lovejoy, Ryan & M. 355; 
 Thomas v. Packer, 1 Hurl. & N. 672; Doe v. Crago, 6 C. B. 90. 
 
 While there may appear to have been some confusion in the cases 
 in this State upon the subject, this doctrine has been more recently 
 recognized Reeder v. Sayer, 70 N. Y. 184; Laughran v. Smith, 75 
 Id. 209. 
 
 In the cases last cited the tenants had been in possession more 
 than a year when the question arose, but having gone into occupancy 
 under an invalid lease, their yearly tenancy was held dependent upon 
 a new contract, which might be implied from the payment and 
 acceptance of rent, and when once created could be terminated by 
 neither party, without the consent of the other, only at the end of 
 the year. The contention, therefore, that by force of the original 
 agreement between the parties, aided by the fact that the plaintiff 
 went into the possession with the consent of the defendant, a tenancy 
 from year to year was created is not so, and this is not alone suffi- 
 cient to support an inference of the new contract requisite to create 
 a yearly tenancy. The plaintiff paid no rent, nor while he was in 
 possession was any request of or promise by him made to pay any. 
 He simply went in under the original void agreement and left within 
 the year. There was no evidence to require the conclusion of the 
 trial court that the plaintiff had assumed any relation to the premises, 
 which charged him with liability other than for use and occupation, 
 during the time he remained in possession. The defendant's counsel, 
 to support his proposition that the entry by the plaintiff with the 
 consent of the defendant made him a yearly tenant, cites Craske v. 
 C. U. P. Co., 17 Hun, 319, where it was remarked that a parol lease 
 for a longer term than one year " operated so as to create a tenancy 
 from year to year." 
 
 If that was intended by the learned justice as a suggestion that 
 such a void lease operated as a demise for one year, it is not in har- 
 mony with the view of the court in Laughran v. Smith, supra. That 
 rem irk in the Craske Case was not essential to the determination 
 there made, as rent was in fact paid for a portion of the term, nor 
 < in n be asssumed that it was intended to have the import sought 
 to be given to it. It must be assumed, upon authority and reason, 
 that a parol lease for more than one year is ineffectual to vest any 
 term whatever in the lessee named, and that when he goes into pos-
 
 II. 3-] ESTATES FOR YEARS OR " TERMS." 743 
 
 session under it with the consent of the lessor, without any further 
 agreement, he is tenant at will merely, subject to liability to pay at 
 the rate of the stipulated rent as for use and occupation. Barloiv v. 
 Wainwright, 22 Vt. 88. This may be converted into a yearly tenancy 
 by a new contract, which may be implied from circumstances, when 
 they permit it. While the mere entry with consent will not alone 
 justify it, a promise to pay and a purpose manifested to accept a 
 portion of the annual rent provided for by the agreement may, as 
 evidence, go in support of such a new contract. There was no such 
 evidence in this case. The promise to the plaintiff to pay one-half 
 the rent was made preliminarily to his entry, and was part of and not 
 distinguishable from the parol agreement with the defendant to 
 occupy for five years and pay one-half the rent for that term. There 
 does not seem to have been any evidence to require the conclusion 
 that any other than such void agreement was made between the 
 parties, or that the plaintiff became other than a mere tenant at will 
 of the defendant. 1 Woodfall's Landl. & Ten. (1st Am. ed. from 
 13th Eng. ed.) 221. 
 
 3. Alienation of the Term. 
 a. Assignment or subletting. 
 
 COLLINS v. HASBROUCK. 
 
 56 New York, 157. — 1874. 
 
 Folger, J. — This is an action of ejectment, brought by a land- 
 lord against an under-tenant. When the action was commenced, 
 the term created by the original lease, had not expired by the lapse 
 of time. It is claimed, however, that there had been a forfeiture of 
 the lease, by a breach by the lessees, of their covenant not to sub- 
 let. That covenant is, that they will not sublet, without the written 
 consent of the lessor. It is followed by the condition, that in case 
 of a violation or breach thereof, the lease shall terminate, at the 
 option of the lessor. 
 
 The first question is, did the lessees sublet the premises, without 
 the written consent of the lessor. They executed an instrument to 
 Brower, by which they gave him a right in the premises, for two 
 3"ears and seven months, and a privilege for four years longer by his 
 giving two months' notice. The defendant contends that this is 
 not a sublease, but that it is an assignment of the lease to them, or 
 of their term. It is said, that when a lessee conveys his whole estate 
 to an alienee, the conveyance amounts to, and is called, an assign- 
 ment; and that the distinction between an assignment and a lease
 
 744 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 depends solely upon the quantity of interest which passes, and not 
 upon the extent of the premises transferred. An assignment creates 
 no new estate, but transfers an existing estate into new hands; an 
 under-lease creates a perfectly new estate. Comyn on Land, and 
 Ten. 51, 52. In this case, these general principles will not entirely 
 satisfy; and we must learn how they have been applied in particular 
 instances. We find that though a lessee make an instrument, which 
 by its terms conveys the whole of his interest in the premises, if he 
 reserve to himself a reversion of some portion of the term, it is an 
 under-lease, and not an assignment. Archbold on Land. & Ten. 10. 
 It has accordingly been held, that though the instrument dispose of 
 the whole unexpired term, if it contain a covenant to surrender the 
 premises on the last day of the term it is an under-lease and not an 
 assignment. Post v. Kearney, 2 N. Y. 394. And again, if there be 
 a right reserved to the lessor to re-enter on breach of conditions, 
 this makes a sublease. Doe ex. dem. v. Bateman, 2 Barn. & Aid. 
 168. So it has been held that a reservation of a new rent makes 
 the instrument a sublease. Piggot v. Mason, 1 Paige, 412. 
 Undoubtedly, the chief of these is the reversion of some portion or 
 the term. See Piatt on Lease, 1 vol. p. 10 et sea. Therefore, 
 though the instrument executed to Brower does, in the term of two 
 years and seven months demised, and in the privilege for the further 
 term of four years, cover the whole unexpired term demised by the 
 plaintiff to the Bronners; yet it is a sublease and not an assignment. 
 It is in the form of a lease; it reserves to the Bronners rent at a rew 
 rate and at a new time of payment; it stipulates for a right of re-entry 
 on nonpayment of rent, and on the breach of certain conditions con- 
 tained in it; it provides for a surrender of the premises to them on 
 the expiration of the term. Thus the Bronners did not part with 
 their whole interest in the premises and in the lease thereof to them. 
 
 The case of Bedford v. Terhune, 30 N. Y. 453, cited by defendant, 
 does not conflict with these views. There no agreement to under- 
 let was proven, nor any fact from which an under-letting could be 
 fairly inferred. The court recognized the general rule, that a trans- 
 fer of the whole unexpired term is an assignment thereof and not 
 an under-letting, and it declined to presume from" the facts proved, 
 that there was what would have worked a forfeiture; but held, in the 
 absence of evidence of the bargain between the lessees and their 
 gns, that the presumption was, that the latter took the whole 
 unexpired term. 
 
 Having shown that the Bronners did sublet the premises, it is 
 plain thai it was without the written consent of the lessor. * * * 
 
 Judgment reversed.
 
 II. 3-] ESTATES FOR YEARS OR "TERMS." 745 
 
 PECK v. INGERSOLL. 
 
 7 New York, 52S. — 1S52. 
 
 Action for rent. Plaintiffs were lessees of Mrs. Dunscombe, 
 under certain conditions stated in the opinion, and had sublet a 
 portion of the premises to defendants. Defendants were allowed, 
 under objection and exception, to prove that they had paid the rent 
 claimed by plaintiff to Mrs. Dunscombe on account of the rent 
 reserved under the original lease. Judgment for defendants. 
 Plaintiffs appeal. 
 
 Gardiner, J. — The original lease between Mrs. Dunscombe and 
 the plaintiffs contained a covenant of re-entry on the nonpayment of 
 rent by the lessees for ten days after it fell due. The jury have 
 found that the ground rent due to Mrs. Dunscombe has been paid 
 by the defendants, the lessees' tenants ; and the only question of any 
 importance, is whether they were justified in making such payment 
 and entitled to have the amount applied in discharge of their rent 
 due the plaintiffs. 
 
 It has been frequently decided upon the most obvious principles 
 of justice that if an under-tenant is compelled to pay rent to the 
 head landlord he may deduct it from the rent due to his immediate 
 lessor; or if the sum paid exceeds that due the lessee the tenant 
 may in an action of assumpsit for money paid to the use of the lessor, 
 recover the excess. 1 Smith's Leading Cases, 4 Am. ed. 202, 3 and 
 4 marg., pages 73, 4, 5, and cases there cited; 4 Term, 511. This 
 privilege upon the part of the under-tenant exists, if there be in the 
 head landlord a legal right by the exercise of which the person who 
 pays may be damnified unless he satisfies it. 1 Leading Cases, 203. 
 It is not necessary that the head landlord should distrain or even 
 demand the money or commence or threaten a suit. The right to 
 enforce his claim in this way will make the payment by the under- 
 tenant compulsory within the principle of the decisions. 
 
 In this case the original lessor had, as we have seen, the right of 
 re-entry. The under-tenant was authorized to protect his posses- 
 sion against the exercise of this right by paying the rent to the head 
 landlord. Such a payment is not voluntary, and there is no ques- 
 tion but that it was made by the defendants in good faith with an 
 honest purpose to shield themselves from damage. I think the judg- 
 ment of the common pleas should be affirmed. 
 
 Judgment affirmed.
 
 746 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 SANDERS v. PARTRIDGE. 
 
 108 Massachusetts, 556. — 1871. 
 
 Action on contract to recover rent. The original lessees, Jack- 
 son and Muzzey, sublet the premises and afterwards transferred the 
 lease itself to Partridge by a writing endorsed thereon, but not 
 under seal. Partridge received the rent paid by the under-tenants. 
 Other facts appear in the opinion. The case was reserved for the 
 opinion of this court. 
 
 Wells, J. — To maintain an action for rent requires privity of con- 
 tract or privity of estate. Either will suffice, if rent is due. 
 
 When a lease is assigned, and the assignee enters under it, he 
 becomes tenant of the lessor; he is bound by all the covenants of 
 the lease which are not personal to the lessee, and he is liable to the 
 lessor for all the rents which accrue while he holds the estate. If 
 there is no express covenant for the payment of rent contained in 
 the lease, then the covenant implied from the reservation of the rent 
 binds the lessee, and " runs with the land " so as to bind the assignee 
 also. Patten v. Deshon, 1 Gray, 325; Blake v. Sanderson, 1 Gray, 
 332; Croade v. Ingraham, 13 Pick. 33; Waldo v. Hall, 14 Mass. 486; 
 Smith, Landl. & Ten. 287 ; 1 Washb. Real Prop. 326 ; 4 Blytherwood's 
 Conveyancing, 388. 
 
 In the present case, the defendant entered into the enjoyment and 
 control of the leased premises, under what purported to be an assign- 
 ment of the lease. If that transaction operated in any manner to 
 transfer to the defendant the entire leasehold estate, then he was 
 in as assignee, and may be held by the lessor for the rent which fell 
 due while he so held the estate. 
 
 The defendant insists that the lease, being under seal, could be 
 assigned only by an instrument under seal. This rule, applied to an 
 assignment of the instrument itself, as a contract, is well settled at 
 law. Wood v. Partridge, 11 Mass. 488; Brewer v. Dyer, 7 Cush. 337; 
 Bridgham v. Tileston, 5 Allen, 371. If, therefore, a leasehold estate 
 can be transferred only as an assignment of the instrument by 
 which it was created, this objection must be held to be decisive. 
 
 But we do not so understand the law. A lease, by whatever form 
 or instrument it is made, conveys to the lessee an estate or interest in 
 tl land. He may in turn convey to another any subordinate 
 interest, or his entire estate, in any appropriate form, without regard 
 to tin form in which he acquired his own title. The leasehold estate 
 may be transferred by devise; by sale on execution as a chattel 
 (Gen. Sts. c. 133, § 49); or sale by an administrator as personal
 
 II. 3 J ESTATES FOR YEARS OR "TERMS." 747 
 
 assets. In all these cases the purchaser becomes bound to the lessor 
 to pay the rent and perform the covenants that run with the land, 
 because the law imposes that obligation upon him by reason of his 
 succession to the estate of the lessee. The same result follows from 
 any transfer by the lessee of his entire estate. A seal is not 
 essential to such transfer, even of a lease for more than seven years. 
 No written instrument is necessary, except to satisfy the statute of 
 frauds. Gen. Sts. c. 89, § 2. Even if the provisions of § 3 are 
 applicable to the assignment of a lease, as well as to the creation of 
 an estate by lease, a seal is only required to give it effect against 
 parties other than the assignor, his heirs and devisees, and persons 
 having actual notice thereof. The defendant cannot set it aside for 
 the want of a seal. 
 
 The real question, then, is whether this instrument is sufficient to 
 satisfy the statute of frauds, as an assignment of an estate or 
 interest in land. 
 
 It is endorsed upon and refers to the original lease; and the lease 
 was delivered with it to the assignee. The description of the 
 premises, the terms upon which they are to be held, and the intent 
 to convey the estate are thus all made to appear by the writing. 
 " All our right, title and interest in and to the within lease ' ' includes 
 whatever leasehold estate the assignor might hold by virtue of that 
 lease. If a seal had been attached, there would be no question of 
 its operation to convey the estate of the assignor in the land 
 described in the instrument referred to. Patten v. Deshon, 1 Gray, 
 325; Blake v. Sanderson, lb. 332. 
 
 So far as it affects the sufficiency of the writing, under the statute 
 of frauds, we do not see that it makes any difference that the instru- 
 ment referred to is under seal, while the transfer is not. The refer- 
 ence is not merely to the instrument itself as the subject-matter of 
 the assignment, but also to its contents as defining the subject- 
 matter upon which the assignment is intended to operate. 
 
 We are of the opinion that the writing relied on as an assignment 
 in this case was sufficient to satisfy the statute of frauds; and that 
 between the parties a seal was not rendered necessary to its opera- 
 tion as a assignment either by reason of the length of the term, or 
 from the fact that the assignor acquired his title by a lease under 
 seal. Tayl. Landl. & Ten. § 427, and cases cited in notes. 
 
 It is not necessary that the defendant should execute any writing, 
 or make any express agreement. His obligation is implied by law 
 from his acceptance of the assignment, and his entering upon the 
 enjoyment of the estate. 
 
 The report states such an acceptance and entry by the defendant.
 
 748 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 His employment of the former agent of his assignor to collect the 
 rents for him was a sufficient entry. He is liable, then, for the rent 
 which fell due July i, 1870, for the preceding quarter, unless he had 
 before that time ceased to hold the relation of tenant, or assignee of 
 the lease. The liability of an assignee, upon covenants running 
 with the land, extends only to such as are required to be performed 
 while he holds that relation. Patten v. Deskon, 1 Gray, 325. It is 
 stated in the report that " on or about May iS, 1S70, the defendant 
 executed an assignment of said lease," by a writing not under seal, 
 to one Newhall. If Newhall entered under that assignment, and the 
 defendant ceased to collect the rents, control the premises or have 
 any interest therein, before the end of the quarter, he would not be 
 liable for any rent which should afterwards fall due. But the case 
 does not find that Newhall ever entered or collected the rents under 
 his assignment; nor that the defendant at any time ceased to collect 
 and receive the rents through his agent; and any inference to that 
 effect would be inconsistent with the distinct statement of the 
 report that upon the entry of the defendant under his assignment 
 for the lessees " the rents were thereafter collected by said agent 
 and paid over to the defendant." 
 
 Upon the report, we must assume that the defendant's evidence 
 went no farther than to show a formal instrument of assignment 
 without change of possession. That would not be sufficient to 
 relieve the defendant from his liability as assignee of the lessees. 
 
 It is stated generally in the text-books, that an actual entry upon 
 the demised premises, by an assignee of the lease, is not requisite 
 in order to charge him with the performance of covenants running 
 with the land. But we think this proposition will hold good only in 
 respect of assignments by deed recorded and delivered; which are 
 usually regarded as effecting a transfer, not only of title, but also of 
 the legal possession. An assignment without deed as of a chattel 
 interest only, requires some act of entry, or change of actual posses- 
 sion, to complete its operation and divest the assignor, of responsi- 
 bility which arises from the holding of the estate. Taylor, Landl. 
 fen. §§ 449-451. 
 
 It was not necessary for the plaintiff to assent to the assignment, 
 or recognize the assignee as his tenant, otherwise than by his suit 
 for the rent. 
 
 It docs not appear that the plaintiff had already received his rent 
 
 from Jackson and Muzzy; or that the defendant had any equitable 
 
 defence as against them. The fact that Jackson and Muzzy 
 
 remained liable for the rent upon their express covenants in the 
 
 e, notwithstanding their assignment, is sufficient explanation of
 
 II. 4-] ESTATES FOR YEARS OR " TERMS." 749 
 
 the statement that the suit was brought with the plaintiff's consent, 
 and at the request of Jackson and Muzzy. 
 
 The report shows that the defendant became responsible to the 
 plaintiff as assignee of the lessees, and does not disclose any facts 
 sufficient to defeat his action for the rent which thereafter became 
 due upon the lease. According to the terms of the report, therefore, 
 the plaintiff is to recover judgment for the full quarter's rent, $1,450, 
 and interest. 
 
 Judgment for the plaintiff accordingly. 
 
 Morton, J., in McNEIL v. AMES. 
 
 129 Massachusetts, 481. — 1876. 
 
 The only ground upon which the plaintiff can maintain an action, 
 either at law or in equity, is that at the time of the levy of the 
 execution in favor of the Lancaster National Bank, Samuel T. Ames 
 held terms for years or leasehold estates in the premises in contro- 
 versy, which were duly seized and sold under said execution. 
 Assuming this to be so, the plaintiff stands in the position of an 
 assignee in law of the terms for years, with substantially the same 
 rights as if they had been voluntarily assigned to him by Ames. His 
 remedy at law to enforce his rights as such assignee is plain, ade- 
 quate and complete. He can compel the under-lessees to pay the 
 rent agreed to him, and can enforce the performance of the cove- 
 nants of the lessor in her leases. Howland v. Coffin, 9 Pick. 52; 
 Shelton v. Codman, 3 Cush. 318; Patten v. Deshon, 1 Gray, 325; 
 Hunt v. Thompson, 2 Allen, 341. 
 
 b. Restraints o?i alieriation of a term. 
 
 JACKSON ex dem. WELDON v. HARRISON. 
 
 17 Johnson (N. Y.), 66. — 1819. 
 \_Reported herein at p. 731.] 
 
 4. Alienation of the Rent or of the "Reversion." 
 
 MOFFATT v. SMITH. 
 
 4 New York, 126. — 1850. 
 
 Assumpsit for use and occupation of a dwelling-house. One Law- 
 rence had leased the premises to defendant Smith by a writing not 
 under seal for the term of two years. During the term Lawrence
 
 750 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 assigned the lease to plaintiff Moffatt, but did not transfer to him 
 the reversion. One Shepherd was in actual possession of the 
 premises. Judgment for plaintiff. Defendant appeals. 
 
 Ruggles, J. — Payment of rent by the defendant Smith to the 
 plaintiff was sufficient prima facie to show that Shepherd's occupancy 
 of the demised premises was under Smith, the defendant; and the 
 case stands, therefore, as if Smith had himself been the actual occu- 
 pant under the lease from Lawrence. 
 
 But the defendant insists that this action cannot be maintained in 
 Moffatt's name, because he was not the assignee of the reversion as 
 well as of the rent. It has been settled in England and here, that 
 the assignee of the rent alone, without the reversion, may recover 
 in his own name in an action of debt. Alien v. Bryan, 5 Barn. & 
 Cres. 512; Ards v. IVatkin, Cro. Eliz. 637, 651; Demarest v. Wil- 
 lard, 8 Cowen, 206; Wiliard v. Tillman, 2 Hill, 277. This was on 
 the ground, formerly, that after attornment by the tenant, the privity 
 of contract was transferred to the assignee of the rent. Robbins v 
 Cox, 1 Levinz, 22; 5 Barn. & Cres. 512, n. Attornment by the ten. 
 ant is now unnecessary. 1 R. S. 739, § 146. ' The consent of the 
 lessee was, however, in this case, proved by the payment of rent to 
 the lessor's assignee. The lease from Lawrence to Smith, together 
 with the lessor's assignment to the plaintiff, and the payment of 
 rent to the plaintiff, established the relation of landlord and tenant 
 between the plaintiff and the defendant, and brought the case within 
 the terms of the statute which gives the action for use and occupa- 
 tion to any landlord where the demise is not by deed. 3 The plaintiff, 
 by the lessor's assignment became the landlord, under whom the 
 defendant held the demised premises, and the defendant could not 
 dispute his title. The lease of the 18th of April, 1845, and the 
 assignment thereof, were properly admitted for the purpose of show- 
 ing this relation between the parties; and the previous lease of the 
 nth of January was also properly received in evidence, to show the 
 duration of the term, in relation to which the latter lease referred to 
 the former. 
 
 The offer by the defendant to prove the premises out of repair, 
 
 was rightly rejected. There was no agreement or obligation on the 
 
 part of the lessor to repair the premises, and the plaintiff was 
 
 therefore entitled to recover the amount of rent agreed to be 
 
 paid. * * * 
 
 Judgment affirmed. 5 
 
 » § 194, N. Y. R. P. L. — Ed. 
 
 [90, N'. Y. R. I'. I-. — Ed. 
 3 Sec g 193, N. Y. R. P. L. — ED.
 
 II. 4 .] ESTATES FOR YEARS OR "TERMS." 751 
 
 FISHER v. DEERING. 
 60 Illinois, 114. — 1871. 
 
 Mr. Justice Walker delivered the opinion of the court. — It 
 appears, from an examination of the authorities, that at the ancient 
 common law a lease was not assignable so as to invest the assignee 
 with the legal title to the rent. Such instruments were, in that 
 respect, on a footing with other agreements and choses in action. 
 But the 32 Hen. 8, chapter 34, § 1, declared that the assignee 
 of the reversion should become invested with the rents. But not- 
 withstanding this enactment, the courts held that the assignee of the 
 reversion could not sue for and recover the rent unless the tenant 
 should attorn, when the holder of the reversion might recover subse- 
 quently accruing rent in an action of debt. Marie v. Fake, 3 Salk. 
 118; Robbins v. Cox, 1 Levinz, 22; Ardsv. Walkins, 2 Croke's Eliz. 
 637; Knowles' Case, 1 Dyer, 5 D. ; 5 Barn. & Cress. 512, and the note. 
 
 In Willims v. Hayward, 1 Ellis & Ellis, 1040, after reviewing the 
 old decisions on this question, it was, in substance, held that, under 
 the 32 Hen. 8, an assignee of the rent, without the reversion, could 
 recover when there was an attornment, and that such an assignee 
 could, under the 4 of Anne, recover without an attornment. 
 
 The courts seem to have proceeded upon the ground that there 
 could be no privity of contract unless the tenant should attorn to 
 the assignee of the reversion; that, whilst the assignment of the 
 reversion created a privity of estate between the assignee and the 
 tenant, privity of contract could only arise by an agreement between 
 them. Some confusion seems to have got into the books from call- 
 ing the purchaser of the reversion an assignee of the lease, by its 
 passing by the conveyance as appurtenant to the estate. But where 
 the tenant attorned to the assignee of the reversion the assignment 
 became complete, and then there existed both privity of estate and 
 of contract between the assignee and the tenant, and by reason of 
 the privity of contract the assignee might sue in debt, and recover 
 subsequently accruing, but not rent in arrear at the time he acquired 
 the reversion. 
 
 To give the assignee of the reversion a more complete remedy, 
 the 4 and 5 Anne, chapter 16, section 9, was adopted, dispensing 
 with the necessity of an attornment which the courts had held to be 
 necessary under the 32 Hen. 8, to create a privity of contract. But 
 this latter act has never been in force in this State, and hence the 
 decisions of the British courts, made under it, are not applicable. 
 In many States of the Union this latter act has been adopted, and 
 the decisions of their courts conform, of course, to its provisions.
 
 752 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 But we having adopted the common law of England, so far as the 
 same is applicable and of a general nature, and all statutes or acts 
 of the British parliament made in aid of, and to supply defects of 
 the common law, prior to the fourth year of James the First, except 
 certain enumerated statutes, and which are of a general nature and 
 not local to that kingdom, they are declared to be the rule of 
 decision, and shall be considered of full force until repealed by legis- 
 lative authority. Gross' Comp. 1869, 416. It then follows that the 
 32 Hen. 8, chapter 34, § 1, is in force in this State, as it is 
 applicable to our condition, and is unrepealed. And we must hold, 
 that the construction given to that act by the British courts was 
 intended also to be adopted. 
 
 The facts in this case show such a privity of contract as brings it 
 fully within the rule announced in the above cases. Appellee paid 
 to appellant several instalments of rent falling due under the lease 
 after it was assigned to him. By paying the rent, the lessee fully 
 recognized the appellant as his landlord, and created the necessary 
 privity of contract to maintain the action. 
 
 The case of Chapman v. McGrew, 20 111. 101, announces a contrary 
 doctrine. In that case this question was presented, and notwith- 
 standing the lessee had fully recognized the assignee of the lease as 
 his landlord, it was held that the lessor of the premises might main- 
 tain an action to recover the rent. In that case, the fact that the 
 lessee had attorned to the assignee, was given no weight, and the 
 fact that such privity was thereby created as authorized the assignee 
 of the lease to sue for, and recover the rent, was overlooked. In 
 that, the decision was wrong. The right of action could not be in 
 both the lessor and his assignee, and the privity thus created gave 
 it to the latter. 
 
 The subsequent case of Dixon v. Buell, 21 111. 203, only holds 
 that such an assignee, whether he holds the legal or equitable title 
 to the lease, may have a claim for rent growing out of the lease, 
 probated and allowed against the estate of the lessee. That case 
 has no bearing on the case at bar. 
 
 Judgment reversed.
 
 II. 5-] ESTATES FOR YEARS OR "TERMS." 753 
 
 5. Rights and Duties of Landlord and Tenant Independent 
 
 of Covenants 
 
 a. Landlord. 
 
 (1.) May Protect Reversion, But Has no Action for an invasion of the 
 
 Possessory Right. 
 
 FRENCH v. FULLER. 
 
 23 Pickering, 104. — 1839. 
 
 Wilde, J., delivered the opinion of the court. — It was testified 
 by one of the witnesses, that the tenements, for the entering of 
 which the defendant is charged as a trespasser, were, at the time, 
 occupied by under-tenants; and the fact we understand is admitted; 
 and if so, it seems quite clear, that this action cannot be main- 
 tained. To maintain an action of trespass quare clausum for an 
 injury done to real property, the plaintiff must prove, that he has 
 the actual possession of the property; for, though the freehold of 
 the land may be in him, he cannot maintain the action, if the land, 
 at the time of the trespass, was in the lawful possession of another. 
 It is not denied that this is the general rule, but it has been argued, 
 that when land is in the possession of a tenant at will, the rule is not 
 applicable, as .the possession of a tenant at will is the possession of 
 his landlord; and the case of Starr v. Jackson, 11 Mass. R. 519, is 
 relied on in support of this position. But it is very clear, that the 
 decision in that case is no authority in support of the present action. 
 It was decided in that case, that trespass quare clausum /regit lies for 
 the owner of land in the possession of his tenant at will, where the 
 injury affects the permanent value of the property, as the cutting 
 down of trees, destruction of buildings, and like acts. There can 
 be no doubt, that for such an injury the owner of the land would be 
 entitled to a remedy; the perplexing doubt in that case, was as to 
 the form of the action, whether it should be trespass or trespass on 
 the case. In the case under consideration, no such question can be 
 raised; for upon the facts argued no injury has been done to the 
 freehold, and the plaintiff is not entitled to an action in any form. 
 All that appears by the statement of facts, is, that the defendant had 
 been on the premises at sundry times, exercising act of ownership, 
 such as demanding rent and letting some of the tenements to the 
 tenants in possession. It does not even appear, that the entry was 
 tortious, so that the tenants could support an action of trespass. 
 But however this may be, no actual damage was done to any one; 
 and, most certainly, the plaintiff cannot maintain an action for the 
 
 LAW OF PROP. IN LAND — 4S
 
 754 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. II. 
 
 mere disturbance of the possession. In the case of Little v. Palister, 
 3 Greenleaf, 6, the defendant entered upon land in the possession of 
 a tenant at will, and threw down a fence erected by the tenant for 
 his own convenience; and it was held, that the landlord could not 
 maintain trespass, or any other action, for the wrong, the injury 
 being wholly to the rights of the tenant. We think the decision in 
 that case is unquestionably correct, and, consequently, that this 
 action cannot be maintained. 
 
 I think it proper to add, to prevent misapprehension, that it must 
 not be inferred, that the judgment of the court would be different, 
 if this case had been in all respects similar to that of Starr v. Jack- 
 son. Since the decision of that case, the law in respect to the rights 
 of tenants at will has been materially changed. By the Revised 
 Stat. c. 6o, § 26, it is enacted, " that ail estates at will may be 
 determined by either party, by three months' notice in writing, for 
 that purpose, given to the other party." A similar provision was 
 contained in a previous statute. 
 
 Since this change of the law regulating the manner of terminating 
 estates at will, the possession of a tenant at will before notice, and 
 for three months after, can in no sense be held to be the possession 
 of the landlord. The tenant has not only the possession, but also 
 the right of possession, and, in this respect, he stands on the same 
 footing as a tenant for a term certain. The landlord's remedy, 
 therefore, for an injury to his freehold, or reversionery interest by a 
 stranger, is by an action on the case and not by an action of trespass 
 quare clausum f regit. 
 
 Plaintiff nonsuit. 
 
 b. Tenant. 
 
 (1.) Has Right to Estovers and Emblements, But Must Not Commit 
 
 Waste. 1 
 
 (2.) Distress for Rent. 5 
 
 PRESCOTT v. DE FOREST. 
 
 16 Johnson, 159. — 1819. 
 
 In error, on certiorari to a Justice's Court. 
 
 This was an action of trover, brought in the court below, by the 
 plaintiff in error. The material facts in the case are as follows: 
 ( )m the 1st of February, 181 7, Stewart leased a house in Pearl street, 
 
 1'art III.— Ed. 
 'Sec also In - 1 oil v. Sergeant, supra, p. 86, for further discussion of the sub- 
 ject. Distress has been abolished in most of the States, including New York
 
 IT. 5.] ESTATES FOR YEARS OR "TERMS." 75J 
 
 in the city of New York, to Samuel Satterlee, for one year, from the 
 1st of May, 1817; Satterlee then leased part of the house, retaining 
 the front part as a store, to the plaintiff, for the annual rent of $1,000, 
 payable quarterly, for the same term at which he had taken it. On 
 the 1st of February, 1818, Satterlee obtained a new lease of the house 
 for a year from the first day of ensuing May. On the 2d of March 
 1818, the plaintiff having only paid Satterlee $32 of her rent, he dis- 
 trained her goods, upon the premises, and sold them at public auction, 
 in due form of law. The defendant was a purchaser of several arti- 
 cles of furniture at this sale, and there had been a demand and 
 refusal of them before suit was brought. 
 
 It was proved, that the plaintiff had said, that Satterlee had a 
 right to distrain her goods for the rent, and expressed gratitude for 
 his forbearance; but at the time of the demise from Satterlee to her, 
 nothing was said as to the right to distrain, and there was no agree- 
 ment that he should have that right. It was also proved by two 
 constables, and another witness, that they had each known one 
 instance in the city of New York, in which the party distraining for 
 rent had no reversionary interest in the leased premises, and that no 
 objection was taken on that account. The plaintiff objected to all 
 evidence of this kind, but the objection was overruled. A verdict 
 and judgment were taken for the defendant below. 
 
 Platt, J., delivered the opinion of the court. The lease from 
 Satterlee to the plaintiff, for a part of the house, for the whole term, 
 must be deemed an assignment, and not an underletting. There was 
 no privity of estate between the plaintiff and Satterlee, but a privity 
 of contract merely. The plaintiff did not hold as tenant to Satterlee, 
 but as tenant to Stewart, the original lessor and reversioner. The 
 right of distress is incident to, and inseparable from, the reversion; 
 under such an assignment of the whole term, Stewart had a right to 
 distrain on the assignee, and a double right of distress cannot exist 
 in Satterlee and in Stewart, unless there was an express agreement 
 for that purpose between the assignee and Satterlee. Stewart, by 
 reason of the privity of contract and estate, may sue the plaintiff, 
 or distrain her goods, for the rent due to him; but Satterlee, having 
 
 (1846). The landlord's remedies for rent at present depend on the circumstance 
 of the case, but one or more of the following courses are usually open to him: 
 (a) Action of debt; (b) on contract; (c) covenant, express or implied, the latter if 
 rent is reserved, but there is no express agreement for its payment; (d) re-entry 
 or ejectment if the right of re-entry is expressly reserved; (e) summary proceed- 
 ings to recover the land in the cases provided for in such statutes as that of 
 New York Code Civ. Proc. £§ 2231-2265; (f) under some circumstances an 
 action for use and occupation. See N. Y. R. P. L., § 190. — Ed.
 
 756 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. II. 
 
 a privity of contract only, without privity of estate, and without 
 express power to distrain, can only sue upon the contract. 'Wood- 
 fall L. & T. 285, 286, 196 ; 2 Wils. 375; 1 Term Rep. 441. There 
 is no difference, in this respect between an assignment of the whole 
 of the demised premises, or a lease or assignment of the whole term, 
 in a part of the premises. Nor can the second lease to Satterlee, for 
 the year ensuing, that is, from the 1st of May, 1818, to the 1st of 
 May, 1819, make any difference in the case. That was a lease to 
 commence in futuro, and cannot operate as an assignment of the 
 reversion, which still remained in Stewart. By granting, on the 1st 
 of February, the new lease to commence on the 1st of May following, 
 Stewart did not transfer or lose his right of distraining for the rent, 
 under the old lease. And whether the new lease for the ensuing 
 year was granted to Satterlee or a stranger, could make no differ- 
 ence in the rights of the parties in relation to the first lease. 
 
 The plaintiff's declaration, that Satterlee had a right to distrain, 
 must be ascribed to her ignorance of her legal rights, and cannot vary 
 the rule of law. The evidence of custom in New York was futile, 
 and ought not to have been received. The witnesses, on that point, 
 failed to prove any custom in regard to distress for rent in such 
 cases; but if they had proved it, we cannot allow any custom in this 
 State to control the general rules of the common law. Where a 
 custom is of such antiquity that we cannot trace its origin, it is 
 coeval with the common law itself; and then it forms an exception 
 to the general rule; because, there is ground to presume that they 
 are of equal authority, and that the same power which established 
 the rule, also made the exception. If Satterlee had no right to dis- 
 train and sell the goods, it necessarily follows, that the defendant, 
 though a bona fide purchaser for valuable consideration, acquired no 
 title. It was an unauthorized sale, and transferred no right. I am, 
 therefore, of opinion, that the judgment ought to be reversed. 
 
 Judgment reversed. 
 
 (3.) Is Estopped to Deny His Landlord's Title. 
 Denio, C. J., in VERNAM v. SMITH. 
 
 15 New York, 327. — 1S57. 
 
 It was a good plea, at common law, in an action of debt for 
 
 rent, by virtue of a parol demise, of upon a lease not under 
 
 in ■ seal of the lessee, that the plaintiff had nothing in the tene- 
 
 ts at the time of the lease; Co. Lttt, by Thomas, 415; Sylli- 
 
 van v. Stradling, 2 Wils. 217; and the reason of this is, according to
 
 II. 5-] ESTATES FOR YEARS OR "TERMS.*' 757 
 
 Lord Coke, that " in every contract there must be quid pro quo, and 
 therefore, if the lessor hath nothing in the land, the lessee hath not 
 quid pro quo, nor anything for which he should pay a rent." If the 
 lease be made by deed indented, then both parties are concluded, 
 and this plea cannot be interposed. The lessee in that case is 
 bound by a technical estoppel, by deed, to deny that the term passed 
 by the lease. Further exceptions to the rule of the common law, 
 have been created by the modern doctrine of equitable estoppel, 
 arising out of circumstances unconnected with a deed. Thus, it has 
 been very often decided that in debt or assumpsit for use and occu- 
 pation, the defendant cannot deny the title of the lessor. Lewis v. 
 Willis, i Wils. 314; Cooke v. Loxley, 5 Term. R. 4; Phipps v. Schul- 
 thrope, 1 Barn. & Aid. 50; Fleming v. Gooding, 10 Bing. 549; Dolby 
 v. lies, 11 Adolph. & Ellis, 335; Curtis v. Spitty, 1 Bing. N. C. 15; 
 Agar v. Young, 1 Carr. & Marsh. 78. The action for the use and 
 occupation is given by statute, and it arises where there has been 
 an enjoyment by the defendant of the plaintiff's lands or tenements, 
 under a demise or agreement not made by deed. Stat. 11 Geo. II., 
 ch. 19, § 14; 1 R. S. 748, § 26. The statutes do not declare that 
 the defendant in this action shall be precluded from pleading nil 
 habuit in tenementisj but inasmuch as the action is given for the use 
 and occupation, which presupposes an entry and enjoyment of the 
 premises, the courts have constantly held that the defendant was 
 estopped from showing that the lessor was not the owner of the land. 
 The judges have applied the equitable principles referred to in the 
 construction of the statute. " I cannot help thinking," said Lord 
 Chief Justice Willes, " but that they, the Legislature, intended to 
 take away the plea of nil habuit, etc., as if they had said, after the 
 tenant has enjoyed the land by a demise or permission of the land- 
 lord, he shall not be permitted to pry into the title, and pick holes 
 in settlements and wills." Syllivan v. Stradling, supra. Lord Ken- 
 yon, in Cooke v. Loxley, said that the rule precluding the tenant in 
 this class of actions from contesting the title of the landlord, was 
 not a mere technical rule, but one founded in public convenience 
 and policy.
 
 758 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 6. Rights under Covenants Implied in Law. 
 
 a. Implied covenant for quiet enjoyment. 
 
 MAYOR v. MABIE. 
 
 13 New York, 151. — 1855. 
 
 Action for rent. Defendant seeks to recoup damages suffered by 
 him by reason of the breach of an implied covenant for quiet enjoy- 
 ment. Judgment for plaintiff below. Defendant appeals. 
 
 Denio, J. * * * There is not found in the contract set out 
 in the complaint any express undertaking, on the part of the cor- 
 poration, that Mabie shall have and enjoy the interest conveyed; but 
 the defendants insist that there is one implied in law. If the grant 
 in question was a lease of corporeal property for a term, there is no 
 doubt whatever but that, independently of the statute which we 
 shall presently consider, there would be an implied covenant by the 
 grantors for quiet enjoyment by the grantee. JVoke' s Cases, 4 Coke, 
 80, b.j Barney v. Keith, 4 Wend. 502; 8 Paige, 597: Piatt on Cove- 
 nants, 40. But the right to wharfage, which was the subject con- 
 veyed by the corporation to Mabie, was an incorporeal right; and 
 it does not necessarily follow that all the legal incidents of a lease 
 for years, of land, attach to the conveyance. On examination of 
 the cases, however, I have come to the conclusion that the principle 
 is not limited to a demise of tangible property, but that it applies in 
 its full force to conveyances of incorporeal rights. * * * 
 
 Other instances of covenants of quiet enjoyment, implied in con- 
 veyances of incorporeal hereditaments, will be found referred to in 
 Piatt on Covenants, 58. 
 
 The main object of a covenant for quiet enjoyment is to protect 
 the lessee from the lawful claims of third persons having a title para- 
 mount to the lessor; but such a covenant, when fully written out, 
 provides also for the protection of the lessee against the unlawful 
 entry of the lessor himself. Piatt on Covenants, 312. Conse^" 
 quently, where the law implies such a covenant from the character 
 and terms of a conveyance not containing any express engagement, 
 the scope of the implied guaranty should be equally extensive. The 
 case of Seddon v. Senate, above mentioned, is a striking application of 
 that principle ; and other cases may be found in the section on implied 
 covenants in Mr. Piatt's treatise (p. 40, et seqJ) It is not, however, 
 eyj ry mere trespass by the lessor upon the demised premises which 
 will amount to a breach of this covenant! AltlTough the covenantor 
 cannot avail himself of the subterfuge that his entry was unlawful,
 
 II. 6.] ESTATES FOR YEARS OR "TERMS." 759 
 
 and he, therefore, a trespasser to avoid the consequences of his own 
 wrong, still, to support the action of covenant, the entry must be 
 made under an assumption of title. Piatt on Covenants, 319, 320. 
 It need not be averred in the pleading that the grantor acted under a 
 claim of title; but if the character of the act be such as reasonably 
 to show that the defendant acted upon such an assumption, the 
 action will be sustained. Thus, where the defendant demised to the 
 plaintiff with a full covenant for quiet enjoyment, certain premises, ! 
 to which a pew in a church was appurtenant, and the lessee brought 
 covenant against him, alleging that he had disturbed him in the use 
 and enjoyment of the pew by sometimes sitting in it himself, and at 
 Other times putting other persons into it, and by locking it up on 
 other occasions, the objection being taken that these acts were mere 
 trespass, the court said: "The act itself asserts a title; for the 
 defendant locked up the pew, which is as strong an assertion of right 
 as can well be imagined." Loydv. Tomkins, 1 Term. R. 671. The 
 acts imputed to the plaintiffs in this case are equally unequivocal; 
 and when we consider that they were a municipal corporation, acting 
 by agents, and were moreover the general owners of the wharfage, 
 and that they authorized and directed those agents to assume a con- 
 trol over the berths and locations which ships were accustomed to 
 occupy, and granted such berths and locations to ship-masters for 
 a compensation to be paid by them, we must infer that this was 
 done under some claim of right. 
 
 These considerations have led me to the conclusion that there was 
 in this case, upon the principles of the common law, an implied 
 covenant by the plaintiffs to abstain from interfering with the right 
 which they granted to Mabie, in the manner which the answer charges 
 them with having done. 1^ remains only to inquire whether the 
 statute has forbidden the implication of a covenant of quiet enjoy- 
 ment in such a case as this. 
 
 The Legislature has declared that " no covenant shall be implied 
 in any conveyance of real estate, whether such conveyance contain 
 special covenants or riot." 1 R. S. 738, § 140. ' If this grant of 
 wharfage for one year is a conveyance of real estate, no covenant 
 can be implied in it, and there can be no recoupment for an alleged 
 breach of covenant. I am of opinion that it is not a conveyance of 
 real estate. Section 10 of title 5, of the same chapter of the Revised 
 Statutes in which the foregoing provision is found, defines certain 
 of the terms there used, thus: " The terms ' real estate ' and 
 ' lands,' as used in this chapter, shall be construed as coextensive 
 in meaning with lands, tenements and hereditaments." Id. 750. 
 
 1 § 216, N. Y. R. P. L. — Ed.
 
 760 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. II. 
 
 In a subsequent chapter of the Revised Statutes, that which relates 
 to the proof and recording of conveyances, there is another definition 
 of one of these terms, as follows: " The term ' real estate,' as used 
 in this chapter, shall be construed as coextensive in meaning with 
 lands, tenements and hereditaments, and as embracing all chattels 
 real, except leases for a term not exceeding three years." 2 R. S. 
 762, § 36. There is much significance in the language added to the 
 first definition when the same terms came again to be defined for 
 another purpose. It is a virtual declaration that the words employed 
 to define real estate, in the first definition, would not embrace 
 chattels real. We must intend that in those definitions, language 
 was used with great care and discrimination. The object being to 
 remedy, by precise definitions, the inconvenience arising from the 
 use of words to which different meanings might otherwise be 
 attached, we cannot suppose that any vagueness of expression would 
 
 f be indulged. In comparing these two definitions with each other, 
 we arrive at a pretty satisfactory conclusion that the Legislature 
 understood the words, " lands, tenements and hereditaments," as 
 
 , excluding terms for years in land. And in this I think they were 
 clearly right. The Legislature was dealing with terms of art and is 
 presumed to have used them in their technical sense. We might lay 
 out of view in this case the word " lands" for that word always 
 refers to something corporeal; but the other two words may be cor- 
 rectly applied to an estate in incorporeal hereditaments. Now a 
 term for years in lands (and a fortiori m incorporeal rights), is not 
 in law a tenement or a hereditament. Coke says that " tenementum, 
 tenement, is a large word, to pass not only lands and other inherit- 
 ances which are holden but also offices, rents, common profits 
 apprender out of lands and the like, wherein a man hath any frank- 
 tenement, aud whereof he is seized ul de libero te/ieme/ito." 1 Co. Litt. 
 by Thomas, 219. " But hereditament, " he says, "is the largest 
 word of all that kind; for whatsoever may be inherited is a heredita- 
 ment, be it corporeal or incorporeal, real, personal or mixed." Id. 
 The first of these definitions requires that the estate, or interest to 
 amount to a tenement, should be a freehold at least; and to be 
 termed a hereditament, according to the second, it must be descend- 
 ible by inheritance. Terms for years fall within the definitions of 
 things personal. They go to the executors like other chattels, and 
 although they are denominated chattels real to distinguish them 
 from mere movables, they are not, when speaking with legal accu- 
 1 onsidered real estate. 2 Bl. Com. 386. In The People v. 
 Westervelt, 17 Wend. 674, the meaning of the terms " real estate " 
 and " tenements," at common law, was shown to exclude terms for
 
 II. 6.] ESTATES FOR YEARS OR "TERMS.' 761 
 
 years and other chattel interests; and it was furthermore shown 
 that these words were used in that sense in that part of the Revised 
 Statutes which relates to the redemption of lands. The Supreme 
 Court, it is true, in Kinney v. Watts, 14 Wend. $&, held that the pro- 
 vision in the Revised Statutes, forbidding the implication of 
 covenants, embraced leases and other conveyances of terms for 
 years where the term exceeded three years; but this conclusion was 
 arrived at by inadvertently applying to the case the second definition 
 of real estate, which is found in the chapter respecting the recording 
 of conveyances. The learned judge who delivered the opinion does 
 indeed say that the legal import of the terms would be the same 
 which he gave them if there had been no legislative definition; but 
 having found, as he supposed, a statutory definition which precisely 
 suited the case, he examined less attentively than he otherwise would 
 have done as to their meaning at common law. Chancellor Wal- 
 
 worth had occasion to examine this question in Tone v. Brace, 11 
 Paige, 566; and he held that the Supreme Court in Kinney v. Watts, 
 fell into an error, and that the statute referred to had no application 
 to terms for years. See also 8 Paige, 597, and 1 Clarke's Ch. R. 507. 
 I am satisfied that the construction adopted by the chancellor is the 
 true one, and that there is nothing in the provision of the Revised 
 Statutes under examination which forbids us from finding, in the 
 grant in question, an implied covenant against the acts of the grantors 
 and against others claiming by lawful title. The result would be the 
 same if the question had arisen upon a lease for years of land. The 
 evidence offered by the defendants at the trial should have been 
 received. If such evidence shall be produced on a future trial, it 
 will still be competent for the plaintiffs to show, if they are able, 
 that the acts complained of as a disturbance of the rights of the 
 lessee, were done in the lawful exercise of a power to regulate the 
 disposition of vessels in the public docks, under any ordinances or 
 legal regulations which may exist upon that subject. We do not 
 intend to express any opinion upon that question, the evidence not 
 being before us. The judgment of the Superior Court must be 
 reversed, and a new trial ordered in that court.
 
 y62 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 DALY v. WISE. 
 
 132 New York, 306. — 1892. 
 
 Action for rent on a lease of a furnished house. Defendant 
 objects that the house was in an untenantable condition and that he 
 had abandoned it for that reason. Judgment for plaintiff. Defend- 
 ant appeals. 
 
 Follett, Ch. J. — * * * In case the whole of an unfurnished 
 dwelling is leased for a definite term, under a single contract which 
 contains no covenant that the premises are in good repair, or that the 
 lessor will put or keep them so, the law does not imply a covenant on 
 the part of the lessor that the dwelling is without inherent defects 
 rendering it unfit for a residence. Franklin N.Brown, 118 N. Y. 
 no. In Smith v. Marrable, n M. & W. 5, a contrary rule was laid 
 down by Baron Parke. That case rose out of a contract to let a 
 furnished dwelling for six weeks at eight guineas per week. The 
 tenant moved in, but found the house so infested with bugs that it 
 was uninhabitable, and at the end of the first week, left, paying the 
 rent for that week. In an action brought to recover rent, it was 
 held in the opinion delivered by Baron Parke, concurred in by 
 Barons Alderson and Gurney: " That if the demised premises are 
 encumbered with a nuisance of so serious a nature that no person 
 can reasonably be expected to live in them, the tenant is at liberty 
 to throw them up. This is not the case of a contract on the part of 
 the landlord that the premises were free from this nuisance; it 
 rather rests in an implied condition of law, that he undertakes to let 
 them in a habitable state." 
 
 Chief Baron Abinger concurred upon the ground that: " A man 
 who lets a ready furnished house surely does so under the implied 
 condition or obligation, call it which you will, that the house is in a 
 fit state to be inhabited." The opinion of Baron Parke was rested 
 on the authority of Edwards v. Etherington, Ry. & M. 268; s. c. 7 D. 
 X: R. 117; and Collins v. Barrow, 1 M. & Rob. 112, both of which 
 1 ases, together with Salisbury v. Marshal, 4 C. & P. 65, were expressly 
 overruled by Hart v. Windsor, 12 M. & W. 68, in which Parke said: 
 
 We are under no necessity of deciding in the present case, whether 
 'hit of Smith v. Marrable be law or not. It is distinguishable from 
 tin' presenl 1 ase on the ground on which it was put by Lord Abinger, 
 both on the argument of the case itself, but more fully in that of 
 Sutton x . Temple^ 12 M. >!v W. 52, for it was the case of a demise of 
 a ready furnished house for a temporary residence at a watering 
 plat e It was not a lease of real estate merely. But that case
 
 II. 6 } ESTATES FOR YEARS OR "TERMS." 763 
 
 certainly cannot be supported on the ground on which I rested my 
 judgment." 
 
 Smith v. Marrable was decided at Hilary Term, 1843, and Hart v. 
 Windsor and Sutton v. Temple, at Michaelmas Term of the same year. 
 The rule laid down in Smith v. Marrable by Abinger, B., as applica- 
 ble to furnished houses, has been followed in Campbell v. Lord Wen- 
 lock, 4 F. & F. 716, and Wilson v. Hatton, L. R. (2 Exch. Div.) 336, 
 but the rule as stated by Parke, B., has not been followed in Eng- 
 land or in this State. Franklin v. Brown, 118 N. Y. no. The 
 defendant cannot escape liability for rent on the ground that the 
 law implied a covenant that the dwelling was fit for habitation. 
 
 Is the evidence contained in the record sufficient to have required 
 the trial court to have held, as a matter of law, that the plaintiff 
 fraudulently represented that the dwelling and its fixtures were in 
 good condition, or that she fraudulently concealed from the plaintiff 
 the fact that it was in an unsanitary condition? 
 
 In case the owner of a dwelling knows that it has secret defects 
 and conditions rendering it unfit for a residence, and fraudulently 
 represents to one who becomes a tenant that the defects and con- 
 ditions do not exist, or if he fraudulently conceals their existence 
 from him, the lessee, if he abandons the house for such cause, will 
 not be liable for subsequently accruing rent. Wallace v. Lent, 1 
 Daly, 48 1 ; Jackson v. Odell, 12 Id. 345; Rheinlander v. Seaman, 13 
 Abb. N. C. 455; Cesar v. Karutz, 60 N. Y. 229. In the case at bar 
 the defendant testified, and in this he was not contradicted, that 
 when he first went to the house with the plaintiff's agent he said: 
 " I complained to him, the agent, at the time, that I thought some 
 of the plumbing looked old. He said that Mrs. Daly was very stiff, 
 determined not to put in any new, that it was all in good condition, 
 that they had fixed it as they thought it ought to be." This is the 
 only representation which was made by the plaintiff, or her agent in 
 respect to the sanitary condition of the dwelling. It was not shown 
 that the plaintiff or her agent knew that the representations were 
 false, or that the plumbing was out of order, and fraudulently con- 
 cealed the fact. This takes the case out of the rule above referred 
 to in respect to the owner's liability in case he fraudulently misre- 
 presents the condition of the dwelling, or knowing that it is in bad 
 condition fraudulently conceals the fact from the person who 
 becomes the lessee. 
 
 Is the defendant liable for having stated that a material fact existed 
 which did not exist, i. e., that the plumbing was in good order, uponj; 
 the theory that she was bound to know whether or not the statement 
 was true.
 
 764 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 In case a party, for the purposes of inducing another to contract 
 with him, states, on his personal knowledge, that a material fact does 
 or does not exist, without having knov/ledge whether the statement 
 is true or false, and without having reasonable grounds to believe 
 it to be true, is liable in fraud, if the statement is relied on and is 
 subsequently found to be false, although he had no actual knowledge 
 of the untruth of the statement. Bennett v. Judson, 21 N. Y. 238; 
 Marsh wFalker, 40 Id. 562; Oberlandcr v.Spiess, 45 Id. 175; Wake- 
 man v. Dally, 51 Id. 27; 2 Pom. Eq. Juries, §§ 8S7, 888; Story's Eq. 
 Juris. § 193. 
 
 It does not appear that the plumbing had not been fixed as stated, 
 nor that the statement that " it was all in good condition," was 
 made without actual or supposed knowledge of its condition, nor 
 that it was made in bad faith, and we think the case does not fall 
 within the principle of the authorities last cited. 
 
 The defendant cannot escape liability on the ground that the state- 
 ment of the agent amounted to a warranty because it is not so 
 pleaded in the answer. 
 
 Judgment affirmed. 
 
 7. Express Covenants. 
 a. For renewal of a lease. 
 BLACKMORE v. BOARDMAN. 
 
 28 Missouri, 420. — 1859. 
 
 Ejectment by Blackmore to recover the possession of certain 
 premises. Plaintiff had held a lease of the land for a ten years' term. 
 The lease contained a covenant for renewal in the following 
 language: "And it is hereby covenanted and agreed by and 
 between the said parties, that at the end of the term hereby demised 
 this lease shall be renewable for the further term of ten years; and 
 so on from time to time perpetually at the option of the party of the 
 second part, his executors, administrators or assigns, he or they 
 giving to the party of the first part, in every instance, a notice in 
 writing of his or their wish to renew the same three months at least 
 before the end of the term. And every renewal lease shall contain 
 all the covenants, agreements, clauses and stipulations herein con- 
 tained." * * * 
 
 1 he interest of plaintiff was sold out on a judgment against him 
 to one Hayne, under whom defendant, Boardman, holds. Just 
 before the expiration <>f the term Blackmore and Hayne both made
 
 II. 7-] ESTATES FOR YEARS OR "TERMS.'* 765 
 
 application for a renewal of the lease and the renewal was executed 
 to Blackmore, who now seeks to obtain possession of the land. 
 Judgment for defendant. Plaintiff appeals. 
 
 Richardson, J., delivered the opinion of the court. — The 
 numerous authorities cited by the defendant's counsel establish in 
 his favor the first two propositions presented in the statement. As 
 the law discourages perpetuities, it does not favor covenants for 
 continued renewals; but, when they are clearly made, their binding 
 obligation is recognized and will be enforced. The covenant for 
 renewal is only an incident to the lease, and as it cannot be passed 
 without the principal, the conveyance of the principal by a proper 
 description will necessarily carry the incident. They are insepara- 
 ble, and a right of action cannot exist in favor of a person claiming 
 the benefit of the covenant without any right to the possession of 
 the leasehold; but the covenant, being annexed to the estate, runs 
 with it, and cannot be retained by itself or assigned or severed so as 
 to give an independent cause of action. A sale of the land under 
 execution will pass to the purchaser all the covenants that run with 
 it as effectually as if he had received a conveyance from the lessee; 
 for as the purchaser, after he acquires possession, is bound to pay 
 the rent and in that way assumes the burdens of the lease, he has 
 the right to take advantage of the covenants that touch and concern 
 the thing demised, which enhance the value of the estate. * * * 
 
 PHILLIPS v. STEVENS. 
 16 Massachusetts, 238. — 1819. 
 
 Parker, C. J. — The point presented by the pleadings in this 
 case seems to have been considered to be very clear by the bar; for 
 the counsel for the defendant, although industrious and able, could 
 produce no authority to justify their plea. On the other hand, the 
 authorities in favor of the plaintiff are numerous, clear and decisive; 
 so that, whatever may be thought of the merits of the doctrine they 
 maintain, when first established, there is no escape from it now, 
 until the Legislature shall see fit to alter the law, which it is hardly 
 probable they will ever do; since parties may always protect them- 
 selves against it, by due caution in making their contracts. 
 
 A formal opinion, in a case so free from doubt, and so well settled 
 in the books would be unjustifiable, were it not for the ignorance 
 generally prevailing in the country, of the legal effect of covenants 
 in leases and other instruments, which are often executed without
 
 766 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. II. 
 
 any particular inspection or knowledge of their contents; and thus 
 people are surprised into contracts, which neither party intended, 
 when the instrument was executed. 
 
 Printed forms of leases are most generally made use of, and when 
 they are not obtained, copies are made from books of forms, or 
 from some old instrument in print. In this way covenants are trans- 
 mitted from one generation to another, which are never made in Eng- 
 land, without being very well understood; but, with us, often 
 astonish the party to be bound, when the occasion arises, which 
 calls for the performance of them. 
 
 Thus it was matter of surprise a few years ago that a lessee for 
 years, who had covenanted to pay rent during the term, should be 
 held to pay it after the buildings, which alone were valuable, were 
 destroyed by fire. And yet nothing was more clear than that he 
 had stipulated so to do; as was found in the case of Fowler et al. v. 
 Bolt et al., referred to by the counsel for the plaintiff. So in the 
 present case, although the defendant had, under his hand and seal, 
 stipulated that he would keep in repair, support and maintain the 
 fences and buildings, with the exception of natural decay, he was 
 undoubtedly astonished at being called upon to rebuild a house, etc., 
 the use of which he had enjoyed but for one year; and yet he has, 
 in express terms, covenanted so to do. His excuse would be that 
 he never read the covenants in his lease, or that he did not under- 
 stand the force and effect of the terms. But the law does not pro- 
 tect men from their own carelessness or ignorance. The former 
 they must cure; the latter they must provide against by asking 
 counsel. Any lawyer, in any village of the commonwealth, could 
 have stated the hazard, and would have guarded against it, by intro- 
 ducing such an exception, as is now generally adopted in mercantile 
 contracts, "fire or other casualty excepted;" which would make 
 the contract conformable to the intention of both the parties, as the 
 words " dangers of the sea and inevitable accidents " do in a charter 
 party or bill of lading. 
 
 The case of Walton v. JVater/iouse, and the cases cited by Sergeant 
 Williams in his note to that case, contain all the law upon this sub- 
 ject; the principle extracted from which is, "that although a man 
 may be excused from a duty imposed upon him by the law, if he 
 is disabled from performing it without any fault of his own; yet 
 if by his own contract, he creates a duty or charge upon himself, he 
 is bound to make it good, notwithstanding any accident by inevitable 
 necessity; because he might have provided against it by his contract." 
 Tins doctrine is recognized and enforced in the case of Bullock v. 
 Dommitt, and in the case from our own reports, before referred to.
 
 III. i.] ESTATES AT WILL. jbj 
 
 Men must be more cautious in making their contracts, and not 
 rely upon the hardship of their cases to relieve them, when they are 
 brought into difficulty. Such mistakes rarely occur in England, 
 although there is a court of equity there which may sometimes relieve 
 in such cases. With us there is no such authority. The law must 
 have its course, and the citizens must take care of themselves in 
 making their bargain. 
 
 Plea adjudged bad. 
 
 III. Estates at will. 
 
 i. How Created. 
 
 (a.) By express agreement therefor. 
 
 DOE ex dem. BASTOW v. COX. 
 ii Adolphus & Ellis N. S., (Eng., Q. B.), 122. — 1847. 
 
 Ejectment for premises in Surrey. On the trial, before Coltman, 
 J., at the last Surrey assizes, it appeared that the defendant, on 
 June 18, 1844, mortgaged his interest in the premises to the trus- 
 tees of a building society, now lessors of the plaintiff, by a deed con- 
 taining this proviso: 
 
 " The said W. Cox doth hereby agree to become tenant to the 
 said R. Bastow," etc., " their executors," etc., " of the premises 
 hereby demised, henceforth, at their will and pleasure, at and after 
 the rate of ^25. 4s. per annum, payable quarterly." 
 
 The defendant retained possession and paid a year's rent, but 
 afterwards made default. In January, 1847, the lessors of the plain- 
 tiff distrained for four quarters' rent then due; and on May 6, 
 1847, they gave him notice to quit in a week, which not being obeyed, 
 the present action was brought. The defendant's counsel insisted 
 that, by the proviso, he was tenant from year to year, and entitled 
 to six months' notice. Coltman, J., was of a different opinion, but 
 reserved leave to move for a nonsuit. Verdict for plaintiff. 
 
 Lush now moved that a nonsuit might be entered. The legal 
 operation of the proviso was to create a tenancy from year to year. 
 The courts have always favored such a construction where a yearly 
 rent has been reserved, and the lessors of the plaintiff recognized a 
 yearly tenancy by the distress for four quarters. (Erle, J. Is there 
 any instance in which the words " at will " have been overlooked? 
 Coleridge, J. : " So long as both parties shall please " is very differ- 
 ent.) This, under the circumstances, was a tenancy at the pleasure 
 of both.
 
 768 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 Lord Denman, C. J. — The courts are desirous to presume a ten- 
 ancy from year to year, where parties do not express a different 
 intention; but here they have expressed it. To hold otherwise 
 would be going beyond any decided case. 
 
 Coleridge, J. — Mr. Lush says the rule has been to presume in 
 favor of a yearly tenancy. But it is also a rule that documents shall 
 be construed according to the apparent intention; which, in the 
 present instance, clearly is to create a tenancy at will. Rent, at 
 the rate of ^25. 4s. per annum, is to be paid quarterly; but that is, 
 if the will continues undetermined; otherwise the reservation by 
 quarters will not take effect. 
 
 Wightman, J. — I am of the same opinion. The meaning of the 
 reservation is, that the tenant shall pay at such and such a rate 
 during the time for which he may occupy. 
 
 Erle, J. — I am of the same opinion. The intention is, that the 
 tenant shall hold at the will of the lessors, and at will only. 
 
 Rule refused. 
 
 BURNS v. BRYANT. 
 31 New York, 453. — 1865. 
 
 Campbell, J. — The defendant was in possession, holding for no 
 particular time, paying no rent, making no compensation for the use 
 of the land, but under agreement to surrender the premises whenever 
 the landlord should require the possession. He was clearly a tenant 
 at will. Post v. Post, 14 Barb. 253, and cases and authorities cited 
 there. As such tenant at will the defendant was entitled to one 
 month's notice to quit and surrender the premises. 3 R. S. 5th ed., 
 P- 35> S§ 7» 8, 9. 1 The duration of the tenancy is uncertain, and the 
 landlord cannot eject the tenant summarily. He has one calendar 
 month in which to make his arrangements to remove. The form 
 of the notice is not prescribed further than it must require the ten- 
 ant to remove from the premises, and it must be in writing. The 
 9th section declares that " at the expiration of one month from the 
 service of such notice the landlord may re-enter, etc." In this 
 the premises being unoccupied at the time, the landlord 
 re-entered by the plaintiff before the expiration of the month. But 
 the trespasses were not committed till May and June following, two 
 or three months after the month had expired. The fact that the 
 notice was served on the 24th of January, requiring the tenant to 
 remove on the 20th February, could make no difference, as there is 
 
 1 N. Y. R. I'. L. § 198. -Ed.
 
 III. p.] ESTATES AT WILL. 769 
 
 no claim for trespasses committed prior to the 24th February. All 
 the defendant was entitled to was one month's notice to quit. It 
 could make no difference that a specific day was fixed in the notice. 
 The statute would still give him the month in which to make his 
 preparations to remove. This month had long expired when the 
 defendant virtually undertook to re-enter himself, as against his 
 landlord, claiming that his tenancy had not terminated. 
 
 It seems to me very clear that there was no foundation for such a 
 claim on the part of the defendant. 
 
 This judgment should be affirmed. 
 
 b. By implication of law. 
 
 (1.) Tenant Enters under Void Parol Lease or Parol Contract for a Sale. 
 
 TALAMO v. SPITZMILLER. 
 
 no New York, 37. — 1890. 
 
 [Reported herein at p. 741.] 
 
 Rapallo, J., in HARRIS v. FRINK. 
 49 New York, 24 (32). — 1872. 
 
 I have, thus far, examined the case without reference to the 
 position of the plaintiff's counsel, that the plaintiff, having entered 
 upon the land with the license and permission of the owner to occupy 
 and work it, became a tenant at will, and, as such, entitled to the 
 emblements (Co. Litt. 55 b.), notwithstanding that he entered under 
 contract of purchase. 
 
 The simplest form of a tenancy at will was where one man let to 
 another to hold at the will of the lessor. Co. Litt. § 68. But a 
 tenancy at will may be created otherwise than by express contract; 
 it may arise by implication. Craft on Real Prop. § 1544. And an 
 obligation to pay rent is not a necessary incident of such a tenancy. 
 Where one enters by permission of the owner for an indefinite period, 
 and without the reservation of any rent, he is, by implication of law, 
 a" tenant at will. Doe v. Baker, 4 Dev. N. C. 220. If he be placed 
 upon the land without any terms prescribed or rent reserved, and as 
 a mere occupier, he is strictly a tenant at will. Jackson v. Bradt, 2 
 Caines'. R. 174; 4 K. C. 114-125, nth ed. ; Post v. Post, 14 Barb. 
 253; Burns v. Bryant, 31 N. Y. 453. Where a householder permitted 
 
 LAW OF PROP. IN LAND — 49
 
 770 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 another to occupy, rent free, the occupant was held to be a tenant 
 at will. Rex v. Collett, Russ & Ry. 498; Jackson v. Bryan, 1 Johns. 
 322, and would be entitled to emblements. Doe v. Price, 9 Bing. 
 357, 358. A parol gift of land creates a tenancy at will. Jackson 
 v. Rodgcrs, 1 Johns. Cas. ^t,; s. c. 2 Caine's Cases, 314. And there 
 is much authority in favor of the position, that one who is let into 
 possession under a contract to purchase is strictly a tenant at will. 
 Washburn on Real Property, 511, 513, 515, 3d ed. ; Howard v. Shaw, 
 8 M. & W. 118-122; Waring v. King, Id. 571; Doe v. Miller, 5 Car. 
 
 6 P. 595; Doe v. Chamberlaine, 5 M. & W. 14; Right v. Beard, 13 
 East, 210; Gould v. Thompson, 4 Met. 224; 12 Mass. 325. And he 
 has the right of ingress and egress to remove his effects. Love v. 
 Edmonston, 1 Iredell, N. C. 152; Jones v. Jones, 2 Rich. L. R. S. C. 
 542; Doe v. Baker, 4 Dev. 220; Manchester v. Doddridge, 3 Iredell, 
 360; Lozury v. Tew, 3 Barb. Ch. 414; 5 Wend. 29. He is not liable 
 for rent, because a promise to pay rent cannot be implied in such a 
 case, the tenant having entered under a different contract. Smith 
 v. Stewart, 6 Johns. 46; Bancroft v. Wardwell, 13 Id. 4S9; Winter- 
 bottom v. Ingham, 7 Q. B. 611. But, nevertheless, he is a tenant at 
 will. Howard v. Shaw, 8 M. & W. 122. And he is not entitled to 
 notice to quit if he makes default in his contract. Jackson v. Miller, 
 
 7 Cow. 747. A tenant strictly at will was not, prior to the Revised 
 Statutes, entitled to notice to quit. Jackson v. Bradt, 2 Caines' R. 
 169; Doe v. Baker, 4 Dev. 220; Jackson v. Bryan, 1 Johns. 322; 13 
 Maine, 214; 2 Esp. 717; Crabb on Real Property, § 1559; Post v- 
 Post, 14 Barb. 253. From considerations of equity, tenancies at will 
 were, under certain circumstances, treated by the courts as tenancies 
 from year to year merely for the sake of notice to quit. 4 Cow. 
 350. This is called by Chancellor Kent a species of judicial legisla- 
 tion. 4 K C. 127, nth ed. ; Jackson v. Bryan, 1 Johns. 322. But 
 this indulgence was not extended to a tenancy at will created by 
 entry unl- a parol contract of purchase. 7 Cowen, 751, 752; 
 Suffern v Townsend, 9 Johns. 35; 9 Id. 331. In England, a tenant 
 at w;il by e itry under a contract of purchase is not entitled to 
 noti 1 q lit at a future time; but, unless he does some wrongful 
 ac 1 1 tate the tenancy, he cannot be treated as a trespasser or 
 sued 11 1 j tment without a demand of possession. 5 Carr. & P. 
 595; 1 j East 210; 5 M. & W. 14. If he makes default in his con- 
 tra- t of purchase or commits waste, or in any other manner termin- 
 ates thi te 1 incy by his own wrongful act, he becomes a trespasser, 
 and m iy I' --uecl as such or in ejectment, and he cannot dispute the 
 title "f ti> Lrty u ider whom he entered; Cooler v. Stower, 9 Johns. 
 331; Doolittle v Eddy, 7 Barb. 74; 1 Wend. 418; 5 Id. 30; 6 Johns.
 
 III. 2.] ESTATES AT WILL. 77 1 
 
 34, 49; and he would, no doubt, forfeit his right to emblements 
 under those circumstances. Co. Litt. 55 b. 
 
 Expressions are to be found in some of the authorities cited, to 
 the effect that one entering under a contract of purchase does not 
 stand in the relation of tenant to the vendor. 6 Johns 46; 13 Id. 
 489. These expressions are used, however, in reference to the ques- 
 tion whether an undertaking to pay rent can be implied. But where 
 a purchaser of a farm enters upon it under an express agreement of 
 the vendor that he may occupy and work it until the vendor is pre- 
 pared to convey, and the agreement to sell is merely by parol, and 
 the question arises with reference to the rights of sucli an occupant, 
 in case of a refusal of the vendor to perform, and a termination by 
 him of the occupancy, without any default on the part of the occu- 
 pant, there is strong reason for according to such occupant the rights 
 of a tenant at will. The permission to occupy unaccompanied by 
 any contract of sale, would clearly create a tenancy at will. 31 
 N. Y. 453; 2 Caine's R. 174, and cases supra. The effect of the 
 invalidity of the contract of sale is to reduce the right of the vendee 
 to that of a mere licensee, and to enable the vendor to revoke the 
 license at his pleasure. When he exercises that right there is no 
 injustice in placing him in the same position as if the contract of 
 sale which he repudiates had not been made. The holding, from 
 the beginning was, in fact, at his will; and the principles upon which 
 emblements are allowed to a tenant at will would seem applicable to 
 such a case. Comyns' Dig., title Bisns. G. 2; Co. Litt. 55 a., 55 b. 
 
 2. Termination of Tenancy at Will. 
 a. By express determination of the will. Notice. 
 
 DOE ex dem. BASTOW v. COX. 
 
 11 Adolphus & Ellis N. S., (Eng. Q. B.), 122. — 1840. 
 
 [Reported herein at p. 767.] 
 
 BURNS v. BRVANT. 
 31 New York, 453. — 1865. 
 [Reported herein at p. 768.]
 
 7/2 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 b. By implied determination of the will. 
 
 (i.) Transfer of Interest of Either Party. 
 
 Allen, J., in RECKHOW v. SCHANCK. 
 
 43 New York, 448. — 1871. 
 
 The defendants now claim that their lessors were tenants at will, 
 or by sufferance of the plaintiff, and that they, by the act and assent 
 of such tenants having acquired the possession of the premises, have 
 thereby become and are the tenants of the plaintiff, holding by the 
 same tenure and entitled to the same notice to quit as those to 
 whose possession they have succeeded. Assuming that the case 
 establishes the relation of landlord and tenant between the plaintiff 
 and Reckhow & Hudson, under whom the defendants claim to have 
 acquired the possession and right of possession, which is by no 
 means clear, the result claimed by the defendants by no means fol- 
 lows. A tenant at will is disqualified from granting a lease available 
 against anyone but himself; for the demise would amount to a ter- 
 mination of the will, and it would be optional with the landlord to 
 regard the entry of the lessee of the tenant at will as a disseisin. 
 1 Piatt on Leases, 104. The same rule holds as to a tenant by 
 sufferance. Id. 122. The yielding of the possession of the premises 
 terminates the original tenancy, and a new tenancy at the will of the 
 owner cannot be created except by his or her assent. Every lease 
 at will is at the will of both parties, and a tenant at will has no certain 
 and indefeasible estate; nothing that can be granted by him to a 
 third person. If a tenant at will assigns over his estate to another 
 who enters on the land he is a disseisor, and the landlord may have 
 an action of trespass against him. 1 Greenleaf Cruise, 278; 
 Campbell v. Proctor^ 6 Greenleaf R. 12. A tenancy by sufferance, 
 existing only by the laches of the owner, cannot give the occupant 
 an estate or interest capable of transmission to another. At com- 
 mon law, a tenant at sufferance is not entitled to notice to quit. 
 There is no evidence that the plaintiff assented to the occupancy of 
 the defendants, or that she had any knowledge of such occupancy 
 prior to the commencement of the action. It is undoubtedly true 
 that when the relation of landlord and tenant is established, it 
 attaches to all who may succeed to the possession through or under 
 the tenant; but this cannot apply to tenancies that are terminated 
 by the very act of transmission of the possession. The defendants 
 have not shown any permission from the plaintiff to enter upon the 
 premises, and they were, therefore, trespassers and not entitled to 
 notice to quit,
 
 IV. i.] ESTATES FROM YEAR TO YEAR. JJl 
 
 IV. Estates from year to year. 
 
 i. How They Arise. 
 a. By express agreement. 
 
 PUGSLEY v. AIKIN. 
 
 ii New York, 494. — 1854. 
 
 Gardiner, Ch. J. — I do not perceive that distinct causes of 
 action are united in this complaint, as the defendants have alleged, 
 and the Supreme Court have determined. The tenancy created by 
 the original contract between the defendant's testator and those 
 represented by the plaintiff was to continue until the parties to it, 
 one or both, elected to terminate the demise, by giving the half 
 year's notice prescribed by law. 1 If, after the close of the first year, 
 the lessee rightfully remained in possession, it was not by virtue of 
 a new demise, but by force of the old one. That he continued, 
 under a contract for the possession of some kind, must be and is 
 admitted; otherwise, the occupation would be tortious, and the ten- 
 ant holding over could have been ousted at any time at the election 
 of the landlord. No such right upon the part of the lessor is pre- 
 tended. The supposition of a new agreement, made at the com- 
 mencement of the second year, for a continuance of the tenancy, is 
 not only untrue in fact, but in this case conflicts with the allegations 
 of the complaint which are admitted by the demurrer. The plaintiff 
 there avers " that the testator hired and rented the farm for the 
 term of one year, and an indefinite period thereafter." There was, 
 therefore, but one contract, and we are not at liberty to suppose 
 another For although the law will sometimes tolerate a fiction, it 
 is always in aid of, and never to the prejudice of the right of a party. 
 In Legg v. Strudivick, 2 Salk. 414, it was adjudged in reference to a 
 lease of this description, " that it was a lease for a year certain; 
 and that every year after it was a springing interest arising upon 
 the first contract, and parcel of it; and that the lessor might 
 avow as for rent due upon an entire lease, and not for a several 
 rent, due upon several leases, accounting each year a new lease." 
 In a note in Bacon's Abridgement, (Lease, L. p. 626,) it is said, 
 " that notwithstanding the puzzle in the books respecting these run- 
 ning leases, the law is now considered settled agreeably to the case 
 of Legg v. Strudwick. They are leases for one, two and more years 
 certain, according to the form of the lease, depending for their 
 further continuance upon the will of the parties. And that such will 
 
 'The lease was " for the te;m of one year and an indefinite period there- 
 after," at an annual rent. — Ed.
 
 774 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. II. 
 
 be their will, the law presumes, unless the contrary be evidenced by 
 a regular half year's notice, that the tenant continuing in possession 
 is not a tenant at will, but a tenant for years." 
 
 The doctrine of these authorities, when analyzed, amounts to this: 
 that when a tenancy from year to year is created by the agreement 
 of the parties, it continues until terminated by a legal notice. The 
 estate does not depend upon a continuance of possession; for the 
 tenant cannot put an end to the tenancy, or his liability for rent, by 
 withdrawing from the occupancy of the premises. The notice is a 
 condition of the contract, in the language of these authorities, arising 
 out of it, which must be complied with, in order to absolve him from 
 further responsibility. 
 
 If this view is correct, there is no misjoinder of distinct causes of 
 action in the case before us. The testator had manifested his elec- 
 tion, that the lease should not terminate during the year succeeding 
 his death; and was, as we have seen, liable for the rent of the year 
 1842. After his decease, in April, his executors, as such, entered 
 into possession. They were under no obligation to put an end to 
 an interest which the decedent had deemed beneficial, and which 
 they as his representatives thought advantageous to his estate. 
 They would have violated a plain duty, as trustees of the property, 
 by relinquishing by their own act a valuable lease, without any 
 equivalent. They therefore continued, as the representatives of the 
 testator, to occupy the lands during the period in which the rent 
 accrued for which this action is brought. This is distinctly averred 
 in the complaint. And having as trustees and executors rightfully 
 received the profits of the demised premises, they are liable in that 
 character to the payment of the rent. 
 
 The second cause of demurrer, viz., that the complaint did not 
 state a cause of action, is consequently untenable. The current 
 year, according to the terms of the lease stated in the complaint, 
 would expire on the first of April. To terminate the tenancy the 
 lessee must have given, six months previously, notice of his intention 
 to do so, or the lease would continue another year. The testator 
 died in the month of April, 1841, without having given any notice 
 whatever, and, of course, his liability for the rent of that year had 
 its inception, in any view of the case, in the lifetime of the lessee, 
 am! when that time expired, became a debt properly chargeable 
 against his estate. The Supreme Court accordingly placed their 
 (1 ision upon the first cause of demurrer, which is obviously the 
 only one deserving consideration. 
 
 Tli" judgmenl of the Supreme Court at General Term must be 
 reversed, .0111 that of the Special Term affirmed.
 
 IV. i.J ESTATES FROM YEAR TO YEAR. 775 
 
 b. By implication of law. 
 REEDER v. SAYRE. 
 70 New York, 180. — 1877. 
 
 Folger, J. — * * * The plaintiffs went into occupation, in pur- 
 suance of what passed, orally, between them and Tuthill. The oral 
 agreement was void, by the statute of frauds, as to the term attempted 
 to be created, or any interest in lands to be derived from it. 2 R. S. 
 p 134, § 6. The right to take off a crop of wheat, after the two years 
 had expired, though sowed before, was an interest in lands. Earl 
 Falmouth v. Thomas, 1 Cromp. & Mees. 89; Stewart v. Doughty, 9 J. 
 R. 108. So that the whole agreement was void, and might have 
 been legally repudiated, as soon as it was made, by either party to 
 it. But occupation of the lands was taken with the consent of the 
 owner and the rent was paid to him, in pursuance of and under the 
 void agreement. In such case the occupation inures, as a tenancy 
 from year to year. 1 Clayton v. Blakey, 8 T. R. 3; Thunder v. Belcher, 
 3 East, 449; Lounsbery v. Snyder, 31 N. Y. 514; Schuyler v. Leggett, 
 2 Cow. 660; The People v. Rickert, 8 Id. 226. 
 
 The agreement, though by parol, and void as to the term and the 
 interest in lands sought to be created, regulates the relations of the 
 parties to it in other respects upon which the tenancy exists, and 
 may be resorted to to determine their rights and duties, in all things 
 consistent with, and not inapplicable to a yearly tenancy, such as 
 the amount of rent to be paid, the time of year when the tenant could 
 be compelled by the landlord to quit, and any covenants adapted to 
 a letting for a year. Doe v. Bell, 8 T. R. 579; 8 Cow. supra; Arden 
 v. Sullivan, 14 Q. B. (Ad. & El. N. S.) 832; Doe x.Amey, 12 Ad. & 
 El. 476; Berry v. Lindsley, 3 M. & F. 498; Edwards v. demons, 24 
 Wend. 480. 
 
 We are thus enabled to ascertain the relations to each other, of 
 the Reeders and Tuthill, when Sayre, the defendant, came in, as the 
 vendee of the premises by a valid contract of sale and pur- 
 chase. * * * 
 
 They were entitled to remain and use through the year 1873 and 
 up to the 1st of April, 1874, unless the occupation was sooner 
 determined by mutual assent of them and Tuthill, or his successors 
 in interest, or by a sufficient notice to quit from some one having 
 legal right to give it. 
 
 It is said that so to construe is to make the lease interminable. 
 It is interminable, save as it may be terminable, by the notice to 
 
 1 See Talamo v. Spitzmiller, p. 741, supra. — Ed.
 
 J76 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. II. 
 
 quit of the lessor or the lessee ; or by an actual or implied surrender. 
 " In truth, he is a tenant from year to year, as long as both parties 
 please," says Lord Kenyon in Rex v. Inhabitants of Stone, 6 T. R. 
 295; Doc v. Wood, 14 M. & W. 682. 
 
 A sufficient notice to quit, given in 187 1, would have terminated 
 their right of occupation on the first day of April, 1872. People v. 
 Rickert, supra. A sufficient notice to quit in 1872, would have 
 terminated their right of occupation on the first day of April, 1873; 
 and either of such notices, given before seeding, would have pre- 
 vented the right to sow in 1873 for a crop of wheat to be gathered 
 in 1874. For, in case of a tenancy from year to year, growing out 
 I of a parol lease void by the statute of frauds, the lessor has a right, 
 1 in any year of the occupancy under it, to give a sufficient notice to 
 . quit and thus to terminate the tenancy on the last day of the rental 
 year. A formal notice was necessary to terminate their holding, or 
 1 to cut off the rights accrued and accruing to them from their occu- 
 pation as tenants from year to year, under the void lease, except as 
 hereinafter noticed. Bradley v. Covel, 4 Cow. 349; Jackson, ex. dem. 
 v. Salmon, 4 Wend. 327. The notice to quit must have been for the 
 end of some year of the holding. 4 Cow. supra. In this case, for 
 the first day of April, 1873. 
 
 So that we have before us in May, 1872, the Reeders, the plaintiffs 
 as tenants, and Tuthill, the owner, as landlord; the Reeders, with 
 the right to remain and use, through the year 1873 and up to April 
 1st, 1874, unless, in due time, a due notice to quit, is given to them 
 by their lessor, or by some one succeeding to his rights. * * * 
 
 But the question then is, was it necessary that the Reeders should 
 have service of notice to quit, ending when the term would have 
 ended by the parol agreement ? In England it has been held, that a 
 tenant from year to year, under an agreement for a lease for seven 
 years, which lease was never executed, was not entitled to notice to 
 quit at the end of the seven years, as the contract itself gave him 
 sufficient notice. Doe ex dem Tilt. v. Stratton, 4 Bing. 446; Tress v. 
 Savage, 4 Ell. cSt Bl. 36. 
 
 It has been held in this State, that under a valid lease, which fixed 
 the length and ending of the term, no notice to quit was necessary. 
 Allen v. Jaquish, 21 Wend. 628. I know of no decision expressly 
 holding that the same rule does not apply to a holding from year to 
 year, begun under a void lease, which named a time for the termina- 
 tion of the tenancy; but see 4 Wend., supra. 
 
 I'.it whal was the time for tin; termination of the tenancy in this 
 
 Was it the first day of April, [873, or was it after the crop 
 
 of whe it, sowed in 1872 was harvested? We think that it was not
 
 IV. 3-] ESTATES FROM VEAR TO YEAR. J"J7 
 
 until the latter event that the whole interest of the Reeders in the 
 lands terminated. They knew that their right to remain on the farm 
 ceased, so far as the oral agreement gave right, on the first day of 
 April, 1873. A surrender of the premises generally at that time, of 
 itself made no difference in their right to an off-going crop. 9 J. R. 
 supra. They also knew that the same agreement gave right to sow 
 and reap a crop of wheat thereafter, and that this was a prolongation 
 of their term. Beavan v. Delahay, 1 Hy. Bl. 5; Boraston v. Green, 
 16 East, 71. Under the decisions above cited, they are held to no 
 more than to take note of the time of the termination of their interest 
 in the lands, and to govern themselves accordingly. Their interest 
 in the lands, under an operative and valid lease, would not have 
 ceased entirely until they had harvested and threshed the crop of 
 wheat sowed in 1872. So that we are brought to the conclusion that 
 they had a right in the lands after the first day of April, 1873. which, 
 while it could have been terminated by a sufficient notice to quit, 
 given by one legally entitled so to do, could not be terminated in 
 any other way. As Tuthill, the owner of the legal title, did not give 
 that notice, the tenancy was not terminated. * * * 
 
 The judgment appealed from should be affirmed. 
 
 2. Alienability, etc. 
 
 PUGSLEY v. AIKIN. 
 11 New York, 494. — 1854. 
 [Reported herein at p. 773.] 
 
 3. Termination. Notice. 
 
 STEFFENS v EARLE. 
 40 New Jersey Law, 128. — 1878. 
 Summary proceeding to recover real property from a tenant. 
 Judgment for the landlord. The tenant appeals. 
 
 Reed, J. — * * * What, then, in the first place, is the char- 
 acter of this tenancy, in respect to time? 
 
 To support the judgment in this case, it must be a monthly letting. 
 The defendant insists that the words employed by the claimant, in 
 the affidavit, import a tenancy at will, or from year to year, and 
 therefore a three months' notice was requisite to determine the 
 tenure. The question is important from the fact that, acting upon 
 the supposition that the tenancy was monthly, only a month's notice
 
 778 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CII. II. 
 
 was attempted by the claimant. Indeed, the distinction between 
 tenancies from year to year and tenancies for a less period, in all the 
 cases, seems to be important only in relation to the notice by which 
 the determination of either kind can be effected. Unless it can be 
 shown that monthly or weekly tenancies are unknown, I do not see 
 how it is possible to hold the tenancy described in the affidavit to be 
 other than a monthly tenancy. That such tenancies have an exist- 
 ence, the cases hereafter cited will establish, and to hold that the 
 contract here shown is a monthly letting is only giving to the words 
 of the affidavit their literal force. Further argument would be 
 wasted upon this point. 
 
 If a monthly tenancy, is there a sufficient notice shown? 
 
 The rule relative to notices seems to be as follows: Where there 
 is a lease for a certain period, the term determines without notice. 
 Cobb v. Stokes, 8 East, 358; Right v. Darby, 1 Term R. 159; Decker 
 v. Adams, 7 Halst. 99. In uncertain tenancies, reasonable notice 
 was necessary, which reasonable notice had, from the time of Henry 
 VIII., according to Lord Ellenborough, been six months. Doe d. 
 Strickland v. Spence, 6 East, 120. 
 
 This rule was applied to all uncertain tenancies in this State, 
 whether rent was or was not reserved. Den v. Drake, 2 Green, 523. 
 The time was changed to three months by act of 1840, Pamph. L., 
 104, now, with a little change in the text, the twenty-seventh section 
 of the landlord and tenant act in the revision. Rev., p. 575. 
 
 In cases of tenancies for periods running less than a year, the rule 
 enunciated by the text-writers is, that the notice must be- regulated 
 by the letting, and must be equivalent to a period. Taylor on Land. 
 and Ten. § 478; Archb. on Land, and Ten. 87. How the rule arose 
 is uncertain. It certainly did not have its origin in any resolutions 
 of the courts. Indeed, Baron Parke, in Huffell v. Armistead, 7 C. & 
 P. 56, said that he knew of no decision holding a week's or month's 
 notice was necessary to determine a weekly or monthly tenancy. 
 See, also, the remarks of the judges, to the same import, in Towne 
 v. Campbell, 3 C. B. 921. 
 
 It seems, however, to have clearly shaped itself into a custom. 
 The habit of giving and requiring reasonable notice, in cases of ten- 
 am ies, not for a single term, but for recurring periods, which rea- 
 sonable notice, when the periods were from year to year, was, 
 according to Lord Ellenborough, very early held to be six months, 
 was, probably by a custom equally as old, in tenancies for less 
 periods, established as now stated by the books. 
 
 By strict relativeness, the rule of a half year's notice in tenancies 
 from vi ar to year, would only require a half month's or a half week's
 
 IV. 3-] ESTATES FROM YEAR TO YEAR. 779 
 
 notice in cases of monthly or weekly tenancies. The briefness of 
 the latter, and the length of the former kind of tenancies, was the 
 probable reason why the rule was not uniform. Whatever the 
 reason of the rule, it seems to have been well grounded in the general 
 understanding of the English people. The cases cited by the books 
 of authority in support of the rule already stated are merely recog- 
 nitions of what was obviously a custom, and, as such, the cases would 
 seem to have as much weight and authority as if they had expressly 
 ruled the point. 
 
 The first is the case of Doe ex dem. Parry v. Hazell, 1 Esp. 94. It 
 was a case of ejectment, tried before Chief Justice Kenyon in 1794. 
 The full report of the case is as follows: The defendant had taken 
 the house by the month, and a month's notice to quit had been 
 given. It was agreed that the notice had reference, in all cases, to 
 the letting, and that a month's notice was sufficient to entitle the 
 plaintiff to recover. 
 
 In Peacock v. Raffun, 6 Esp. 4, tried before Lord Ellenborough 
 in 1808, the court remarked that a week's notice to quit was certainly 
 sufficient where the holding was weekly. 
 
 In Doe d. Campbell v. Scott, 6 Bing. 362, the same rule was, in 
 1830, recognized by the Court of Common Pleas. The rule was 
 incorporated in the text of the books of authority upon this subject 
 as the law, and may be considered as settled both in England and in 
 this country, excepting where the matter of notice has been the sub- 
 ject of statutory regulation. Prifidle v. Anderson, 19 Wend. 391; s. 
 c. 23 Wend. 616; Seem v. McLees, 24 III. 192; Walker v. Sharpe, 14 
 Allen, 43. 
 
 The common-law rule I take to be undoubted, that notice is 
 necessary to determine a monthly or weekly renting, and that a 
 month's or week's notice, respectively, is sufficient. 
 
 2d. It is said that the notice in this case is insufficient, because 
 the day for quitting named in the notice was the first of August, and 
 not the last day of July. 
 
 The point made is, that according to the statement of the affidavit, 
 the term originally commenced on the 1st day of May, and, by the 
 usual mode of computation, it determined on the last day of the 
 month. So, throughout the tenancy, the recurring periods each 
 terminated on the last day of each month. It is, therefore, urged 
 that the notice was given to quit on a day subsequent to the last day 
 of the term, and that then a new term had commenced to run, and 
 that, therefore, the tenant's holding must continue until determined 
 by a new notice. Taylor on Land, and' Ten. § 477. 
 
 It is true that the notice required to determine these tenancies
 
 ;So ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 must be given to quit at the end of a period. When a term has 
 commenced without such notice, the tenant is entitled to remain 
 during and bound to pay for the term. 
 
 A notice given to quit, in the middle of a term, is ineffec- 
 tual. * * * 
 
 By strict computation, the term set out by the present affidavit 
 probably terminated on the last midnight of July. I think it would 
 be carrying the rule that a notice to quit must be made with refer- 
 ence to the end of the term, to an illogical and unreasonable length 
 to hold that a notice given for the day commencing at that midnight 
 is not a good notice. The law is ignorant of fractions of a day. The 
 notice covers all and any period of the twenty-four hours from mid- 
 night to midnight. The very moment the tenancy expires the tenant 
 is confronted with a direction to quit. On what process of reason- 
 ing can it be said that a new term has commenced before notice is 
 given? * * * Judgment affirmed. 
 
 COUDERT v. COHN. 
 
 118 New York, 309. — 1890. 
 
 Bradley, J. — The action was brought to recover rent of premises 
 described in a written lease made by the agent of the plaintiff's 
 intestate to the defendants in January, 1884, for the term of two 
 years and five months, commencing on the first day of March, 1884, 
 and ending on the first day of August, 1886, at the yearly rent of 
 $3,000, payable in equal monthly payments, on the last business day 
 of each month. The authority of the agent to make the lease not 
 being in writing, it was void. 2 R. S. 134, § 6. The defendants 
 went into possession on the first of March, 1884, and continued to 
 occupy and pay rent up to August, 1885, when they left the premises 
 and sought to surrender the possession up to the plaintiff's intestate, 
 who declined to accept it. He recovered for the amount of rent at 
 the rate mentioned in the lease from the first of August, to the first 
 of March following. While the cases are not entirely in harmony 
 on the subject, the doctrine now in this State is such that the 
 defendants on going into possession of the premises and paying rent, 
 became, by reason of the invalidity of the demise, tenants from year 
 to year, and in such case the continuance of occupancy into the 
 ond year rendered them chargeable with the rent until its close. 
 They could then only terminate their tenancy at the end of the current 
 year. Reeder v. Sayre, 70 N. Y. 1S0; Laughran v. Smith, 75 N. Y. 205. 
 
 The question presented is: When did the rental year arising out 
 of such relation commence and terminate? It is contended bv the
 
 IV. 3-] ESTATES FROM YEAR TO YEAR. 78 1 
 
 defendants' counsel that inasmuch as the end of the term designated 
 by the terms of the lease was the first of August, 1S86, that was 
 the time when the yearly tenancy in contemplation of law terminated, 
 and, therefore, the surrender was properly made on the first of 
 August, 1885. It is urged that this view is in harmony with the 
 recognized principle that, although the lease was invalid, the agree- 
 ment contained in it regulated the terms of the tenancy in all respects, 
 except as to the duration of the term, and Doe v. Bell, 5 D. & E. 471, 
 is cited. There a farm was, in January, 1790, let by a parol lease, 
 void by the statute of frauds, for seven years, the lessee to enter 
 upon the land when the former tenant left, on Lady-day, and into the 
 house on the 25th of May following, and was to quit at Candlemas. 
 He entered accordingly and paid rent. A notice was served upon 
 the tenant September 22d, 1792, to quit on Lady-day. In ejectment 
 brought against him it was claimed, on the part of the lessee, that 
 his holding was from Candlemas, and, therefore, the notice was 
 ineffectual to terminate the tenancy. Lord Kenyon, in deciding the 
 case, said and held that " it was agreed that the defendant should 
 quit at Candlemas, and though the agreement is void as to the number 
 of years for which the defendant was to hold, if the lessor choose to 
 determine the tenancy before the expiration of the seven years, he 
 can only put an end to it at Candlemas." That case has in several 
 instances been cited by the courts of this State upon the question 
 of the force remaining in the terms of the agreement embraced in a 
 void lease. And in Schuyler v. Leggett, 2 Cow. 663, it was remarked 
 by Chief Justice Savage, in citing it, that such an agreement " must 
 regulate the terms on which the tenancy subsists in other respects; 
 as the rent, the time of year when the tenant must quit, etc." And 
 the citation was repeated to the same effect by the Chief Justice in 
 People v. Rickert, 8 Cow. 230. 
 
 The question here did not arise in either of those two cases, nor can 
 they be treated as authority that the time for termination of a tenancy 
 from year to year, in any year other than that of the designated 
 expiration of term, is governed by such designation in a void lease 
 for more than one year rather than by the time of entry. The effect 
 sought to be given in the present case to the case of Doe v. Bell is 
 not supported by English authority. In Berrey v. Lindley, 3 M. & 
 G. 496, the tenant entered into possession of premises under an 
 agreement void by the statute of frauds, by the terms of which he 
 was to hold five years and a half from Michaelmas. Several years 
 after his entry, and after expiration of the period mentioned in the 
 agreement, the lessee gave notice to his landlord to terminate the 
 tenancy at Michaelmas. It was there contended on the part of
 
 /S2 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 the latter, and Doe v. Bell was cited in support of the propo.ition, 
 that the time designated in the agreement for the termination of the 
 tenancy governed in that respect. But the court decided otherwise, 
 and held that the notice was effectual to terminate the tenancy. The 
 views of the court there were to the effect, that, although the ten- 
 ancy was from year to year, the tenant might without notice have 
 quit at the expiration of the period contemplated in the agreement, 
 but having remained in possession and paid rent subsequently to 
 that time, he must be considered a tenant from year to year with 
 reference to the time of the original entry. 
 
 The same principle in respect to holding over a term was announced 
 in Doe v. Dobell, i A. & E. (N. R.) 806, where it was said that " in 
 all cases the current year refers to the time of entry unless the 
 parties stipulate to the contrary." 
 
 The doctrine of the English cases seems to be that a party enter- 
 ing under a lease, void by the statute of frauds, for a term, as 
 expressed in it, of more than one year, and paying rent, is treated as 
 a tenant from year to year from the time of his entry, subject only 
 to the right to terminate the tenancy without notice at the end of 
 the specified term. And to that extent and for that purpose only, 
 the terms of agreement, in such case, regulate the time to quit. 
 This right is held to be reciprocal. Doe v. Stratton, 4 Bing. 446. 
 That proposition is not without sensible reason for its support. The 
 lease, for more than one year, unless made in the manner provided 
 by the statute, cannot be effectual to vest the term in the lessee, yet 
 in other respects the rights of the parties may be determined by its 
 terms, so far as they are consistent with its failure, to create any 
 estate or interest in the land or any duration of term for occupancy 
 by the lessee. And that principle is properly applicable to such 
 leases. Porter v. Bleller, 17 Barb. 154; Reeder v. Savre, 70 N. Y. 
 184; La ugh ran v. Smith, 75 N. Y. 205, 209. 
 
 This view does not aid the defendants. They became tenants 
 from year to year as from the time of their entry; and although by 
 virtue of the terms of the agreement, in that respect, in the lease, 
 they may have been at liberty to quit on the first of August, 1886, 
 if they had remained until then, such time in that, or the year pre- 
 vious, could not be treated as the end of any year of the tenancy. 
 The defendants having entered upon the second year from the time 
 of the original entry, it was not within their power to terminate 
 their relation or liability as tenants until the end of the then current 
 year, which did not terminate until the first day of March, was 
 reached. 
 
 Judgment affirmed.
 
 IV. 3-] ESTATES FROM YEAR TO YEAR. 783 
 
 ADAMS v. CITY OF COHOES. 
 
 127 New York, 175. — 1891. 
 
 Action for rent. The tenant held under a void parol lease from 
 May 1, 1875, and paid his rent for some years in May and Novem- 
 ber. In August, 1885, without notice to the landlord, he moved 
 out. Plaintiff has recovered the rent to May 1, 1886, in former 
 actions. This action is to recover rent due November 1, 1886. 
 Judgment for defendant. Plaintiff appeals. 
 
 Potter, J. — There are two questions involved in the considera- 
 tion of this appeal. The one is whether the defendant was bound 
 to give the plaintiff notice of its intention to quit the premises 
 before it could successfully maintain a defense to the claim for rent 
 set forth in the complaint in this action and if it was so bound, 
 whether the undisputed facts established upon the trial of the action 
 do not constitute such notice. 
 
 If such notice was not required, or if required and was sufficiently 
 given, the direction of the trial court to the jury to render a verdict 
 for the defendant was proper. 
 
 From the examination I have given the record in this case, I enter- 
 tain a clear conviction that the defendant was not bound to give the 
 plaintiff such notice, and if it was bound to, sufficient notice was 
 given. 
 
 The plaintiff's contention is to the effect that the tenancy of the 
 defendant to the plaintiff, formerly existing, had not been legally 
 terminated prior to May 1, 1886, and that the defendant continued 
 liable to pay the plaintiff the rent of the premises from that date to 
 the 1st day of November, 1886. It is undisputed that the occupation 
 of the premises by defendant ceased upon the 1st day of August, 
 1885, and I am of the opinion that the legal tenancy ceased on the 
 first day of May following that date. 
 
 The defendant had, prior to May, 1875, occupied the premises 
 with the consent of the plaintiff for some years, and paid the plain- 
 tiff as annual rent from the same, the sum of seven hundred dollars 
 in half yearly payments, upon the first days of May and November 
 in each year. 
 
 In the month of April, 1875, the plaintiff gave the defendant notice 
 that from May 1, 1875, the rent of the premises occupied by defend- 
 ant would be twelve hundred dollars a year. Thereupon the common 
 council of the defendant passed a resolution authorizing its mayor 
 to lease the premises of the plaintiff for the period of three years 
 from May 1, 1875, at a rent of twelve hundred dollars a year. There
 
 784 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 was no specification either in the requirement of the plaintiff or in 
 the resolution of defendant when or in what instalments the rent 
 should be payable. But that is not at all important, for the defend- 
 ant paid the increased rent half yearly as it had paid the former rent. 
 
 No written lease was executed between the parties, and as a parol 
 lease for a period beyond one year is void, the relation that resulted 
 between the parties was a lease for a year if the tenant occupied the 
 premises during that period; and if the tenant continued in the occu- 
 pancy of the premises beyond the year, he thereby became a tenant 
 from year to year at the same rate of rent. Reeder v. Sayre, 70 
 N. Y. 180-182; Laughran x. Smith, 75 Id. 209; Coudert v. Co/in, 118 
 Id. 309-31 1 ; Talamo v. Spitzmiller, 120 Id. 37-43. 
 
 The language of the court in Reeder v. Sayres, supra, is: " The 
 agreement, though by parol, and void as to the term and the interest 
 in lands sought to be created, regulates the relations of the parties 
 to it in other respects upon which the tenancy exists, and may be 
 resorted to to determine their rights and duties in all things con- 
 sistent with and not inapplicable to a yearly tenancy, such as the 
 amount of rent to be paid, the time of year when the tenant could 
 be compelled by the landlord to quit and any covenants adapted to 
 a letting for a year. Doe v. Bell, 8 T. R. 579; 8 Cow. supra; Arden 
 v. Sullivan, 14 Q. B. (Ad. & El. N. R.) 832; Doe x.Amey, 12 Ad. 
 & El. 476; Berrey v. Lindley, 3 M. & G. 498; Edivards v. demons, 24 
 Wend. 480." 
 
 And the court through Justice Bradley in the above cited case, 
 Talamo v. Spitzmiller, says: " While there may appear to have been 
 some confusion in the cases in this State upon the subject, this doc- 
 trine has been more recently recognized. Reeder v. Sayre, 70 N. Y. 
 184; Laughran v. Smith, 75 Id. 209. 
 
 In the cases last cited the tenants had been in possession more 
 than a year when the question arose, but having gone into occupancy 
 under an invalid lease, their yearly tenancy was held dependent 
 upon a new contract, which might be implied from the payment and 
 acceptance of rent, and when once created could be terminated by 
 neither party without the consent of the other, only at the end of 
 the year. 
 
 The plaintiff contends that until the tenancy was terminated by a 
 notice from the defendant that he intended at some definite future 
 period to quit the premises, the tenancy and defendant's liability to 
 the rent continued. Now what are the relations between land- 
 lord and tenant in a tenancy for a year or from year to year in 
 respei I tithe amount of rent and the duration of the term or of the 
 it Mm of tenant's liability to pay rent? The rate of rent is that
 
 IV. 3-] ESTATES FROM YEAR TO YEAR. 785 
 
 specified in the lease for a year or in the void lease. When the term 
 expires in a valid lease, at a fixed and defined period, or when the 
 term is for one year by reason of the lease being void, under the 
 statute of frauds and occupation for that period, no notice to quit 
 is necessary. When the parties have agreed in the lease or the law 
 has fixed the period of the termination of the tenancy, it would be 
 a work of simple supererogation to give such notice. Hence where 
 the duration of the term is fixed, there is no rule nor any reason for 
 a rule, requiring any notice to quit to be given. § 107, McAdam, 
 Landlord and Tenant, and cases cited. 
 
 In tenancies for a term fixed by the lease or by law for the want 
 of a valid lease as to the term, the rights of the parties are determin- 
 ate. The landlord in such lease has the right of an election. He 
 may, if the tenant does not vacate the premises at the end of the 
 term, treat him as a wrongdoer and bring ejectment or take summary 
 proceedings under the statute to remove him from the premises, and 
 he is not required before doing so to serve the tenant with any 
 notice to quit Park v. Castle, 19 How. Pr. 29, and the cases there 
 cited, or the landlord may waive his right to the immediate posses- 
 sion and the wrong of the tenant in remaining beyond the expiration 
 of the term and recover of him the rent for another year, for the 
 tenant by remaining over has, by implication, become a tenant for 
 another year from the expiration of his term. § 21, McAdam L. and 
 T., citing Schuyler v. Smith, 51 N. Y. 309; Mack v. Burt, 5 Hun, 28; 
 Conway v. Starkweather, 1 Denio, 113. So absolute is the implica- 
 tion from holding over for a few days only, of a hiring for another 
 year, that the tenant will not be excused from the payment of rent, 
 even where he gave the landlord notice before the end of the term 
 that he did not intend to hire for another year and had hired other 
 premises which would be ready for his occupancy in a few days. 
 Schuyler v. Smith, supra. A good illustration of this rule is to be 
 found in the judgments put in evidence in this case where the plain- 
 tiff herein recovered the rent of the entire year, although the defend- 
 ants had removed from the premises with the knowledge of the 
 plaintiff nine months before the end of the year for which the plain- 
 tiff recovered the rent. At the end of the year thus hired by impli- 
 cation, the rights and the remedies which existed at the end of the 
 former term are again revived. Those rights are, as we have seen, 
 that the landlord may remove the tenant without notice and the 
 tenant may quit the possession without giving the landlord any 
 notice of his intention to do so. § no, McAdam, L. and T. ; Park 
 v. Castle, and the other cases above cited. 
 
 In Ludington v. Gar lock, 29 N. Y. S. R. 600, it was held in a case 
 
 LAW OF PROP. IN LAND — 50
 
 786 ESTATES AS TO QUANTITY AND QUALITY. [PT. IV. CH. II. 
 
 of a lease from month to month and the tenant held over, that the 
 tenant who vacated the premises at the end of a subsequent month 
 and gave the agent of the landlord notice of that fact and left the 
 keys with him, that the tenant was no longer liable for the rent of 
 the premises. That case is analogous to this in all respects, except 
 that was a tenancy from month to month and this is a tenancy from 
 year to year. In that case the tenant paid during the time of the 
 occupancy and quit at the end of the month. In the case at bar 
 the defendant did not quit the possession at the end of the year as it 
 had the right to do and was, therefore, compelled to pay for nine 
 months after it quit the premises, because it did not quit the 
 premises at the end of the year, but occupied them three months 
 beyond the end of a year. 
 
 It is quite apparent from the cases above cited that the necessity 
 or occasion for the service of a notice to quit upon the part of the 
 landlord or tenant, has no application to a tenancy which terminates 
 at a fixed period. It is only in cases where the end of the term is 
 not fixed, as in tenancies at will or at sufferance, that the landlord 
 is required by law before bringing ejectment or summary proceed- 
 ings to recover possession from a tenant to give notice to quit. 2 R. 
 S. 5, § 28; 1 Id. 745, § 7. Those statutes are evidently based upon 
 that theory. Park v. Castle, supra. 
 
 I find no case, and upon principle I should not expect to find a 
 case, holding that it was not the right of the tenant to leave the 
 premises at the end of the term or requiring him to give the land- 
 lord in such case a notice of his intention to quit the premises. 
 
 We have before. seen in Park v. Castle, supra, and the other cases 
 cited, that in such case the landlord is not bound to give the tenant 
 notice to leave even for the purpose of instituting summary proceed- 
 ings to recover possession of the premises. 
 
 If such is the case in respect of the landlord, why should it not be 
 so as to the tenant? Their rights and duties are correlative or 
 reciprocal. 
 
 My conclusion is that the defendant in this case had the right to 
 quit the premises at the end of any year from the first day of May, 
 without giving the plaintiff any notice of his intention to do so. 
 
 Judgment affirmed.
 
 V.] « TENANCY AT SUFFERANCE. 787 
 
 V. Tenancy at sufferance. 
 
 JACKSON ex uem. VAN CORTLANDT v. PARKHURST. 
 5 Johnson, 127. — 1809. 
 
 This was an action of ejectment. The cause was tried at the 
 Oneida Circuit, the 5th June, 1809, before Mr. Justice Yates. 
 
 At the trial it was proved that the lessor of the plaintiff, by his 
 attorney, duly authorized for that purposes, on the 1st April, 1803, 
 executed a lease of the premises in question to the defendants, for 
 three years, ending on the 1st April, 1806. On the 15th December, 
 1807, the attorney of the plaintiff sent a written notice to the defend- 
 ants, demanding a surrender of the possession of the premises, and 
 that, if they neglected to deliver up the possession, they would be 
 answerable for double rent; and that the lessor refused to let them 
 occupy the premises. The defendants were in possession when this 
 suit was commenced. It appeared, that in June, 1806, one of the 
 defendants applied to the attorney of the lessors, to know if he had 
 received any instructions as to leasing or selling the premises; who 
 replied, that he had not, nor was he authorized to make any new 
 agreement with the defendants, but advised them to continue in 
 possession, until they heard from the lessor. The attorney received 
 no instructions as to a new agreement, until some time in the autumn 
 of 1807, when he was empowered to execute a new lease of the 
 premises to the defendants for seven years; but the defendants 
 refused to accept the lease. 
 
 The counsel for the defendants insisted, that the defendants were 
 entitled to a notice to quit, previous to bringing the ejectment; and, 
 under the direction of the judge, the jury found a verdict for the 
 plaintiff, subject to the opinion of the court, on the question, whether 
 the defendants were entitled to such notice. 
 
 The case was submitted to the court without argument. 
 
 Per Curiam. — No notice to quit was requisite in this case. After 
 the expiration of the lease, the tenants did not continue in possession 
 by any new agreement with the plaintiff; nor did the plaintiff do any 
 act whatever, from which a renewal of the contract, or a consent to 
 the tenant to hold for a year could be inferred. The proof is decisive 
 that the agent, who gave the lease for three years, had no authority 
 to make any new agreement, and that he so declared to the tenants. 
 The defendants were, therefore, no more than tenants at sufferance. 
 There must be a judgment for the plaintiff. 
 
 Judgment for the plaintiff. 1 
 
 1 But of course notice would be required now in New York R. P. L. § 198. 
 For other cases on tenancy at sufferance see pp. 735-740, supra. — Ed.
 
 CHAPTER III. 
 
 Licenses. 
 
 I. Nature of a license. 
 
 i. In General. 
 
 COOK v. STEARNS. 
 
 ii Massachusetts, 533. — 18 14. 
 
 [Reported herein at p. 480.] ' 
 
 2. How a License Differs from a Leasehold Interest. 4 
 
 3. How a License Differs from an Easement. 
 
 THE GREENWOOD LAKE AND PORT JERVIS R. R. CO. v. 
 THE NEW YORK AND GREENWOOD LAKE R. R. CO. 
 
 134 New York, 435. — 1892. 
 
 [Reported herein at p. 472.] 
 
 4. Executed and Executory Licenses. 
 COOK v. STEARNS. 
 
 11 Massachusetts, 533. — 1814. 
 I 
 
 [Reported herein at p. 480.] 1 
 
 1 See also G. L. & P. J. R. R. Co. v. N. Y. 6° G. L. R. R. Co., supra, p. 472; 
 Huff v. McCauley, supra, p. 76, and the cases reported below. As a license does 
 not properly give an interest in the land, but merely furnishes a defense for an 
 hich would otherwise be a trespass, the subject may seem out of place in 
 this " Part." However, its superficial resemblance to an estate at will and the 
 thai a few states treat it as an " interest " under certain circumstances 
 may justify its treatment here. — En. 
 
 'A lea ehold gives the exclusive possession of the land to the lessee as 
 against the Lessor. See cases reported herein. — En. 
 
 [788]
 
 II. i ] HOW A LICENSE MAY BE GIVEN. 789 
 
 II. How a license may be given. 
 
 1. In Express Terms or by Implication. 
 
 Foster, J., in STERLING v. WARDEN. 
 
 51 New Hampshire, 217. — 1S71. 
 
 The substance of the defendant's attempted justification is, not 
 merely that, as assistant postmaster, an officer and agent of the 
 United States government, — the agent and servant also of his 
 immediate principal, Gilchrist, the postmaster, an officer and agent 
 of the government. — he committed the acts charged in the declara- 
 tion, solely and necessarily in pursuance of his right and duty; but, 
 also, that his entry upon the premises and removal of the personal 
 property were justified by the license and permission given by the 
 plaintiff to his principal, Gilchrist, and that the assault upon the 
 plaintiff was committed in self-defense, and was accompanied with 
 no unnecessary force. He also attempts to justify his entry into the 
 building, by insisting upon the right of a citizen to enter a public 
 post-office for the purpose of getting his mail-matter, alleging that 
 he went there for that purpose, making his errand known to the 
 plaintiff. 
 
 We will first consider the subject of the license given by the plain- 
 tiff to Gilchrist, — bearing in mind that upon demurrer, all the alle- 
 gations of the defendant are to be regarded as established facts. 
 
 It appears, then, that with full notice on the part of the plaintiff 
 of the appointment and qualification of Gilchrist and the defendant 
 as postmaster and assistant postmaster, and special information from 
 Gilchrist that he proposed and intended to go to the post-office 
 room on the thirtieth of July, " and then and there remove and take 
 away therefrom the furniture, articles, and other things belonging 
 to said post-office, and remove the same to another building," the 
 plaintiff then and there " assented thereto, and gave his consent, 
 license, and permission that said Gilchrist might and should take 
 away and remove said furniture, articles, and things, as aforesaid." 
 It also appears that the defendant was employed by Gilchrist, and 
 acted under his direction, in the attempt to take possession of and 
 to remove the property, and that his assistance was necessary for 
 this purpose. * * * 
 
 The plea alleges that the plaintiff " gave his consent, license, and 
 permission that said Gilchrist might and should take away and 
 remove " the public property. 
 
 " A license is express where, in direct terms, it authorizes the per- 
 formance of a certain act, — as where a man who owns a dam author- 
 izes his neighbor to draw water from it to his mill; in this case the
 
 790 LICENSES. [PT. IV. CH. III. 
 
 licensee has a right to enter the premises to get the water. ' ' 2 Bouv. 
 Inst. 567. A bare parol license, though without consideration, will 
 furnish a justification for an act which would otherwise be a tres- 
 pass. Marston v. Gale, 24 N. H. 177; Batchelder v. Sanborn, Ibid, 
 479; Rawson v. Morse, 4 Pick. 127. 
 
 Such a license, though ordinarily regarded as personal, extending 
 only to the party to whom it is expressly given, will nevertheless 
 apply to and protect the agents and servants of the licensee, when- 
 ever from the circumstances it can be presumed that there was an 
 implied license to such persons, — "as where a license is given to 
 a man to remove a weighty matter, which requires the assistance of 
 several other persons." 2 Bouv. Inst. 56S. A license to a man to 
 remove a bank safe would imply a license to as many servants of the 
 licensee as should be requisite for his assistance. A license neces- 
 sarily implies the right to do everything without which the act can- 
 not be done. Taylor's Land, and Ten. § 766; Curtis v. Galvin, 1 
 Allen, 217. 
 
 The plea in this case is conclusive upon this fact, and establishes 
 the license to the defendant. It alleges that Gilchrist requested 
 the defendant to assist him, and that " it was necessary and proper, 
 in order that said Gilchrist should be able to have sufficient force 
 conveniently and properly to take away and remove said furniture, 
 articles, and things from said post-office room as aforesaid, that he 
 should then and there be aided and assisted by the defendant." 
 
 Undoubtedly a bare license is revocable before it is executed; but 
 there are licenses which are irrevocable, though they relate to an 
 entry upon and the occupation of land or real estate, and are by 
 parol; "as where, for instance, the license is directly connected 
 with the title to personal property which the licensee acquires from 
 the licenser at the time the license is given, whereby the license is 
 coupled with an interest. Thus, where one sells personal chattels on 
 his own land, and, before a reasonable time to remove them, forbids 
 the purchaser to enter and take them, it was held to be a license 
 which he could not revoke within such reasonable time. Nettleton 
 v. Sikes t 8 Met. 34; Wood v. Manley, n Ad. & E. 34; Parsons v. 
 Camp, 11 Conn. 525; White v. Elwell, 48 Me. 360; 1 Washb. Real 
 Prop. *4oi. 
 
 And it is said that a license coupled with an interest is where the 
 party, obtaining a license to do a thing, also acquires a right to do 
 it; in such case the authority conferred is not merely a permission; 
 it amounts to a grant, and it may be assigned to a third person. 2 
 Bouv. Inst. 568. 
 
 It is not indispensable to the condition of such a license that the
 
 II. i.] HOW A LICENSE MAY BE GIVEN. 79I 
 
 right or title to the property sought to be removed should have been 
 derived from the licenser. The license to enter on the land and 
 remove the property is a license coupled with an interest, and so 
 assignable and irrevocable, if the licensee's right to the possession 
 of the property is derived from another source, provided the party 
 granting the license has assented to the contract or other condition 
 of things whereby the licensee gains the title or the right to the 
 possession of the property. And such assent may be inferred from 
 the duty of the licenser to recognize the contract or circumstances 
 from which the other party's right is derived. A person cannot 
 justify entering the close of another to take his own property, with- 
 out showing the circumstances under which it came there, even 
 though he alleges he did not do any unnecessary damage, — Anthony 
 v. Haneys, 8 Bing. 186; 2 Selw. N. P. 1342; — "but," says Baron 
 Parke, " all the old authorities say that where a party places upon 
 his own close the goods of another he gives to the owner of them 
 an implied license to enter for the purpose of recaption." Patrick 
 v. Co/erich, 3 M. & W. 483; Mussey v. Scott, 32 Vt. 84. 
 
 Here, Gilchrist gained his title to the possession and control of 
 the property from the United States. To that possession, right, and 
 control the plaintiff expressly assented. And so Gilchrist acquired 
 a license coupled with an interest, although the interest and title 
 were not derived from the plaintiff. And as instances of the effect 
 of a license, Vaughan, C. J., in Thomas v. Sorrell, Vaughan Rep. 
 331, says, — "A dispensation or license properly passeth no interest, 
 nor alters nor transfers property in anything, but only makes an 
 action lawful which, without it, had been unlawful; as a license to 
 go beyond the seas, to hunt in a man's park, to come into his house, 
 are only actions which, without license, had been unlawful. But a 
 license to hunt in a man's park, and carry away deer killed to his 
 own use; to cut down a tree in a man's ground, and carry it away 
 the next day after to his own use, — are licenses as to the acts of 
 hunting and cutting down the tree; but as to the carrying away the 
 deer killed and tree cut down, they are grants. So, to license a 
 man to eat my meat, or to fire the wood in my chimney to warm him 
 by, as to the actions of eating, firing my wood, and warming him, 
 they are licenses; but it is consequent necessarily to those actions 
 that my property may be destroyed in the meat eaten and in the wood 
 burnt. So, as in some cases by consequent, and not directly and as 
 its effect, a dispensation or license may destroy and alter my 
 property." 
 
 And Baron Alderson, in Wood v. Leadbitter, 13 M. & W. 843, says, 
 "A mere license is revocable; but that which is called a license is
 
 JQ2 LICENSES. [PT. IV. CH. III. 
 
 often something more than a license; it often comprises or is con- 
 nected with a grant, and then the party who has given it cannot, in 
 general, revoke it so as to defeat his grant, to which it was incident. ' ' 
 
 In J Food v. Manley, n Ad. & E. 34, it appeared that goods which 
 were upon the plaintiff's land were sold to the defendant, and that 
 by the conditions of the sale, to which the plaintiff was a party, the 
 buyer was to be allowed to enter and take the goods. It was held 
 that after the sale, the plaintiff could not countermand the license. 
 And the defendant having entered to take and the plaintiff having 
 brought trespass, and the defendant having pleaded leave and license 
 and a peaceable entry to take, to which the plaintiff replied de 
 injuria, — it was held that the defendant was entitled to the verdict, 
 though it appeared that the plaintiff had, between the sale and the 
 entry, locked the gates and forbidden the defendant to enter; and 
 the defendant had broken down the gates, and entered to take the 
 goods, " the plaintiff," as was said by Williams, J., " having assented 
 to the terms of the contract, put himself into a situation from which 
 he could not withdraw." 
 
 It is not necessary, as before remarked, that an authority in law 
 to enter into the post-office and take the public property, by an agent 
 of the government duly authorized for that purpose, should be 
 shown, or presumed, from the circumstances of the case, although 
 perhaps such authority and right, and the means of exercising it, 
 would be a fair legal conclusion. The assent, license, and permis- 
 sion to enter and take the goods is express in this case; and if the 
 authority of a purchaser of goods from the vendor, having license 
 to enter and remove them, becomes an authority coupled with an 
 interest irrevocable and assignable, a fortiori, it would seem that a 
 license freely given by the party who never had any property in the 
 goods, and whose right to the possession had been terminated by his 
 removal from office, — a license given to his successor in office, 
 entitled by law to the possession of the property, — could not be 
 regarded as a license of more restricted character. Under the 
 defendant's plea, he may prove a license in law or in fact express or 
 implied. 4 Bouv. Inst. 57. 
 
 Moreover, the pleas allege no revocation, in terms nor by implica- 
 tion, of the license to Gilchrist; and we have seen that such license, 
 by necessary consequence, implies a license to employ such agents, 
 servants and assistance as may be requisite to make the license 
 effectual. * * * 
 
 Another important consideration is suggested by the pleadings. 
 It is shown that " when the defendant arrived at said post-office 
 building as aforesaid, and during all the time when he was in and
 
 III.] ASSIGNABILITY OF LICENSE. 793 
 
 about said building and room, as is hereinafter set forth, said Gil- 
 christ was in and about said building and room for the purpose, and 
 was engaged in the work and business of taking away and removing 
 said furniture, articles, and things as aforesaid." 
 
 So that it would seem that when the defendant entered the build- 
 ing, the plaintiff, regardful as well of his duty as his license, had 
 abandoned the possession and control of the goods to Gilchrist, and 
 that the license therefore had been substantially executed; and a 
 license executed is not countermandable. Liggins v. Zuce, 7 Bing. 
 682. * * * 
 
 III. Assignability of license. 
 
 BLAISDELL v. RAILROAD. 
 
 51 New Hampshire, 483. — 1871. 
 
 Trespass qnare clausum f regit against the Portsmouth, Great Falls 
 & Conway Railroad, forbidding a railroad across plaintiff's lands and 
 using same to date of writ. Defendant pleaded a license from one 
 Brackett, deceased, whose estate plaintiff now has, to the predecessor 
 of the defendant company. Demurrer. Finding of law reversed for 
 this court. 
 
 Sargent, J. — The argument of the plaintiff, that no consent to 
 enter upon land for the purpose of building a railroad could be 
 effectual, or of any avail, unless the right to enter by strict compli- 
 ance with all the requirements of the statute had been acquired is 
 not well founded. 
 
 One man can give to another permission or license to make a rail- 
 road or dig a canal on his land, just as well as to make a private way 
 or dig a ditch. 
 
 And it matters not whether the party wishing to build or to dig 
 has a charter, or an act of incorporation, or any other authority to 
 do it, or whether he have pursued one course or another previously 
 to obtaining the land-owner's consent or license. 
 
 The license which he thus obtains of the land-owner is a sufficient 
 authority for all acts done upon said land within the scope of the 
 license, and will so continue until it is revoked; and nothing more 
 is needed as a license to justify the building of a railroad on land of 
 another than to build a barn or fence. 
 
 The demurrer to this plea of license and the joinder in demurrer 
 raise the question whether the facts set forth in this plea in bar 
 amount to a justification of the alleged trespass complained of.
 
 794 LICENSES. [PT. IV. CM. III. 
 
 The plea does not claim any title to the land, or any interest or 
 easement in the soil. The defendants only claim a license from 
 Brackett. But a license does not convey any right or estate in the 
 land, and amounts to nothing more than an excuse for an act which 
 would otherwise be a trespass. Cook v. Steams, n Mass. 537, 538. 
 
 If any right or easement in the soil were claimed, then the law 
 requiring that such right must be by deed, the defendants should 
 have pleaded their deed or other conveyance, so that the court 
 might see whether it was a lawful conveyance of the right or not. 
 
 Id. 536, 537- 
 
 Where no deed is averred, or other instrument in writing, which 
 would convey an interest in land, it is to be presumed that the 
 authority relied on is only by parol, a mere permission or license. 
 
 Such parol licenses may be in writing, or verbal; but there is no 
 distinction between the two, if the writing has not the legal requisites 
 to make it a deed or grant of real estate. Dodge v. McClintock, 47 
 N. H. 383, was a case of a license in writing, but not amounting to 
 a deed or grant, was held to be merely by parol. So in this case it 
 makes no difference whether the license was verbal or written, — it 
 is pleaded as a license, and not as a deed; and therefore we inquire 
 whether, from the facts stated in the plea, such license is an answer 
 to the plaintiff's case? If the license had been given by this plaintiff 
 to these defendants directly, it would be a good answer to this action 
 of trespass if it had not been revoked, and standing on demurrer 
 would be well enough. But in this case the plea admits that 
 Brackett, who is alleged to have given the license, is dead, and that 
 the plaintiff holds his estate; and no license is alleged from the 
 plaintiff. 
 
 The plea also admits that the party or company, to whom the 
 original license was given, has sold out to these defendants since the 
 alleged license was given, and no license to these defendants, 
 directly, is claimed to have been given by any one. When the title 
 in the land passed from Brackett to this plaintiff, the license which 
 is here pleaded was revoked and terminated, and the assignment of 
 the railroad to these defendants, by those to whom the license was 
 first granted, also terminated the license, as it was a mere personal 
 privilege, and incapable of assignment. Cowles v. Kidder, 24 N. H. 
 
 37% 3 8 °- 
 
 There can be no prescription or adverse possession in this case; 
 whatever is held under a license cannot be held adversely. Dodge 
 v. McClintock, ante; see also Carleton v. Redington, 21 N. H. 291; 
 Marston v. Gale, 24 X. H. 176; Houston v. Laffee, 46 N. H. 507. 
 
 Demurrer sustained.
 
 IV. i.] REVOCATION OF LICENSE. 795 
 
 IV. Revocation of license. 1 
 
 1. When Irrevocable. 
 
 a. An executed license.'' 
 
 b. An executed license to interfere with or obstruct an easement. ' 
 
 Peckham, J., in WHITE v. MANHATTAN RAILWAY CO. 
 
 139 New York, 19. — 1893. 
 
 The plaintiffs insist that the paper was of no more effect than a 
 parol license to do work on the land of the licensor would have been, 
 and that it was revocable at the pleasure of the licensor, and that a 
 revocation was effected by the conveyance of the land, and by the 
 commencement of this action by the devisees of the former owner, 
 James H. White. 
 
 There is no finding or proof that the plaintiffs have any title to 
 any portion of the street or square upon which their building fronts, 
 but there is a finding that they acquired with their title to the 
 premises the right to have Chatham square kept open as a public 
 street, " and to have a free and unobstructed right of way, access 
 and passage to and from said premises, and over and upon said 
 street, together with all the use and benefit of the light and air com- 
 ing in and upon said lot and premises through and from said street, 
 free and unobstructed." 
 
 I think the proof shows without contradiction that all the rights in 
 the street they had were what has been termed property rights in the 
 nature of easements of light, air and access. Story Case, 90 N. Y. 
 122; Kane Case, 125 Id. 164, and cases cited. 
 
 The defendants, therefore, insist that as the plaintiffs or their pre- 
 decessors had no title to any portion of the street, the consent of 
 their predecessors, while in the possession and ownership of the 
 abutting land, that the defendants might construct and operate the 
 railroad in the square in front of their land, was more than a mere 
 license to do an act on the land of the licensor, and that it amounted 
 in law and in fact to an abandonment of their rights or easements in 
 
 1 There are two distinct cases involved under this heading: (1) After the 
 licensee has done the act or series of acts for which the permission was given, 
 may the licensor revoke the license so as to hold the licensee for trespass on 
 account of such acts? (2) Has the licensor a right to forbid the continued main- 
 tenance of a condition which resulted from the doing of the act or series of 
 acts? The customary treatment of the subject has been followed here, but the 
 student should observe that some of the cases come under one query some 
 under the other. — Ed. 
 
 2 See cases generally under this chapter. — Ed.
 
 796 LICENSES. [PT. IV. CH. III. 
 
 the street so far as was necessary for the construction and operation 
 of the railroad, and that the consent to such construction having 
 been acted on and large amounts of money expended on the faith 
 thereof, the plaintiffs as the successors of those who gave the con- 
 sent are themselves estopped from making any claim for damages 
 arising from such construction and operation. It has been the law 
 in this State for a number of years, that an easement to do some act 
 of a permanent nature on the land of another can be created only by 
 a deed or conveyance in writing, operating as a grant, and that a 
 consent in writing on the part of the landowner is no more valid 
 than if it were by parol. 
 
 Thus a parol agreement by the owner of the land that a person 
 may abut and erect a dam on such land, not for a temporary purpose, 
 but for a permanent use such as the creation of a water power for 
 the use of mills, is void, and the agreement being a mere license 
 may be revoked even after it has been acted upon by the other 
 party. Also a permanent easement to drain through the land of 
 another is not created by a license so to do, even when in writing 
 and made upon a good consideration. Mumford v. Whitney, 15 
 Wend. 381; Wiseman v. Lucksinger, 84 N. Y. 31; Cronkhite v. Cronk- 
 hite, 94 Id. 323; Babcock v. Utter, 1 Abb. Ct. of App. Dec. 27, and 
 cases cited; Eckerson v. Crippen, no N. Y. 585. 
 
 The question of the establishment of an easement by adverse user, 
 which may authorize the presumption of a grant, is not involved, 
 nor is the ability to thus prove its existence denied. Hammond x . 
 Zehner, 21 N. Y. 118. It is, however, held, what would otherwise 
 seem to be plain enough, that there can be no adverse user where 
 the right to use exists and is exercised under a license. 84 N. Y. 
 31, supra. 
 
 The reasoning upon which these decisions as to the insufficiency of 
 a license are based, is that the right which is claimed under a license 
 amounts to an interest in land and that such interest cannot be 
 created and cannot pass to another without a proper conveyance or 
 grant of such interest in writing and under seal as required by our 
 statute. It is said that a license is a mere authority to enter upon 
 the land, and is a sufficient protection to the licensee while it lasts, 
 but that it may be revoked at any time, and after its revocation it 
 cannot be used as a protection for any future acts. It is held there 
 can be no equitable estoppel which will operate to prevent the revo- 
 cation of the license, grounded upon the fact that the licensee has 
 entered upon the land of the licensor and expended thereon labor and 
 money upon the faith of the license, because it must be held that 
 the licensee knew that the license gave him no interest in the land,
 
 IV. i.] REVOCATION OF LICENSE. 797 
 
 and that he must rely only upon the indulgence of the licensor, and 
 if that be withdrawn he must himself withdraw from the land. 
 Otherwise, it is said, the statute in regard to the creation and con- 
 veyance of interest in land would be in great part abrogated. 
 The easements of abutting owners in New York city, who are with- 
 out title to any portion of the streets upon which their lands abut, 
 differ somewhat in their origin from ordinary easements. They have 
 not been created by grant or covenant, but it is said of them that 
 it is easier to realize their existence than to trace their origin; that 
 they arise from the situation, the course of legislation, the trust 
 created by statute, the acting upon the faith of public piedges and 
 upon a contract between the public and the property owner, implied 
 from all the circumstances, that the street shall be kept open as a 
 public street, and shall not be devoted to other and inconsistent uses. 
 Kane Case, 125 N. Y., supra. Whatever the means by which the 
 easements were created they are in their nature the same as if they 
 had been created by grant. The owners thereof cannot be divested 
 of them without their consent unless they are compensated therefor. 
 Although it may generally be said, under the authority of the cases 
 already cited, that an easement in the nature of an interest in the 
 land of another can only be created by a grant, yet after it has been 
 created and while it is in existence, it may be abandoned and thus 
 extinguished by acts showing an intention to abandon and extinguish 
 the same. This has been many times decided and by many different 
 courts. A cesser to use, accompanied by an act clearly indicat- 
 ing an intention to abandon the right, would have the same effect as 
 a release without reference to time. Snell v. Levitt^ no N. Y. 595, 
 and cases cited in opinion of Earl, J., at page 603. The intention 
 to abandon is the material question and it may be proved by an 
 infinite variety of acts. If a third party interested in the servient 
 estate has acted upon such abandonment, and in regard to whom it 
 would operate unjustly if the exercise of the easement should be 
 resumed in favor of the dominant estate, added force is given to the 
 claim of abandonment. Id. 
 
 The railroad company having procured the consent of the authori- 
 ties of the city to the construction of the railroad in the street or 
 square in question upon the terms agreed upon, such company 
 obtained an interest in and to a certain extent a title to the street 
 for the purposes of the construction and operation of its railroad, 
 which was in the nature of property, and which was sufficient to 
 enable it to treat with abutting property owners in the character of 
 one who had an interest in the servient estate. People v. O'Brien, 
 in N. Y. 1.
 
 798 LICENSES. [PT. IV. CH. III. 
 
 The case before us is, therefore, different from those cases where 
 an easement has been claimed to have been created in the land of a 
 third person, by reason of his mere license to enter upon his land 
 and do some act of a permanent nature which would amount, if the 
 right should continue, to an interest in the land of such person. 
 This interest in land, the cases hold, requires a grant. In this case 
 the owners of the abutting land had no title to the street. They 
 had an easement in it only, and their consent purported to carry no 
 title to land. There can be no question that they had the right to 
 release, abandon or otherwise extinguish that easement, and upon 
 such terms as they should think fit. The question before us is, 
 whether they have done so and to what extent by the execution of 
 the paper proved upon the trial. 
 
 c. A license subsidiary to an interest or valid grant. } 
 STERLING v. WARDEN. 
 
 51 New Hampshire, 217. — 1871. 
 [Reported herein at p. 789.] 
 
 d. By equitable estoppel when the licensee has incurred expense in conse- 
 quence of the fraud of the licensor. % 
 
 JACKSON & SHARP COMPANY v. THE PHILADELPHIA, 
 WILMINGTON AND BALTIMORE RAILROAD COMPANY. 
 
 4 Delaware Chancery, 180. — 1871. 
 
 The Chancellor. — The claim made on the part of the complain- 
 ants to the perpetual use of the side track in controversy as a legal 
 right is based upon two grounds. One of these is, that the right 
 was acquired by contract between their predecessors, — Jackson & 
 Sharp, and the Railroad Company, — the other, that even were 
 there, in the first instance, no contract, but only a permissive use 
 of the track under a license, still, that the license, having been acted 
 upon in the expenditure of large sums of money on the faith of its 
 
 1 In these cases there can be no revocation until the entire purpose of the 
 license has been fulfilled and that whether the license be partly executed or 
 wholly executory at the time the revocation is attempted. — Ed. 
 
 '' In this case and under e below the result of the rule is to give the licensee 
 an interest in tin- land in most instances as it permits him to maintain perma- 
 nently any works or structures vv h ich he may have erected. — En.
 
 IV. r.] REVOCATION OF LICENSE. 799 
 
 indefinite continuance, has become irrevocable under the doctrine 
 of equitable estoppel. * * * Let us then proceed to consider 
 the case in the aspect of a license. 
 
 On this branch of the case there are several material points upon 
 which no controversy was raised in the argument. One of these is, 
 that the right claimed for the complainant is to an easement or inter- 
 est in the land of the Railroad Company, the claim being to the 
 perpetual use of the side track as a right appurtenant to the car 
 works, transmissible with the title to them, and binding the land of 
 the company into whosesoever hands it may come, at least so long as 
 it shall be used for the purposes of a railroad. Pitkin v. The Long 
 Island Railroad Company, 2 Barb. Ch. R. 221, is a case very similar. 
 Further, it is agreed that at law an estate or interest in land can be 
 created only by deed or grant under seal, or by prescription, or in this 
 country by twenty years adverse possession or user; in equity such 
 an interest may additionally be acquired by contract, which, however, 
 must, under the statute of frauds, be in writing, subject to an excep- 
 tion of the equity arising out of part performance of a verbal con- 
 tract. Again, it must be admitted that a license or permission to 
 exercise some privilege upon the land of the licensor can create no 
 estate or interest in the land, such as binds the land and is trans- 
 missible from the licensee, the utmost effect of a license being to 
 confer a personal privilege, which is not assignable or transmissible, 
 and is revocable at the licensor's pleasure. Nor does it matter 
 whether the license be by parol or in writing, so long as it remains 
 a mere license, not converted into a conveyance, grant or contract, 
 nor rendered irrevocable by estoppel, as under some circumstances, 
 to be presently noticed, it may be in equity though not at law. Few 
 points have undergone more discussion, and have at length come to 
 be better settled, than the insufficiency of a license at law to create 
 or transfer an interest in land In England the leading cases are 
 Fentiman v. Smith, 4 East, 107; Rex v. Herndon on the Hill, 4 M. & 
 S. 565; Hewlins v. Shippman, 5 B. & C. 221, (n E. C. L. 207); Bryan 
 v. Whistler, 8 B. & C. 288 (15 E. C. L. 149); Coeker v. Coivper, 1 C. M. 
 & R. 418, and Wood v. Leadbitter, 13 M. & W. 838, in which last case 
 the prior course of decisions is very fully reviewed. In this country 
 the same rule was adjudged, as early as 1814, by C. J. Parsons, in 
 Cook v. Stevens, n Mass. 533. He has been followed in many of the 
 States. Mumfordv. Whitney, 15 Wend. 384; Foot v. The N. H. & 
 Northampton Railroad Company, 23 Conn. 214; Foster v. Brozoning, 4 
 R. I. 47; Den v. Baldwin, 1 Zabriskie, 390; Hays v. Richardson, 1 
 G. & F. 38; Carter v. Harlan, 6 Md. 20; Bridges v. Purcell, 1 Dev. 
 & Bat. 492.
 
 800 LICENSES. [PT. IV. CH. III. 
 
 But it was earnestly urged that although a license is revocable so 
 long as it is executory and the parties remain in statu quo, it ceases 
 to be so, under the doctrine of equitable estoppel, after it has been 
 executed, the licensee having expended money or otherwise involved 
 himself so that he cannot recede without prejudice; that in this case 
 Jackson & Sharp having made large expenditures in erecting and 
 afterwards enlarging their car works upon the faith of their enjoying 
 the continued use of this side track, the railroad company are 
 equitably estopped from revoking the license. 
 
 Were this a case in a court of law, the answer would be that at law 
 a license can under no circumstances become irrevocable by estoppel 
 when the effect would be to create an interest in land. The doctrine 
 of equitable estoppel, although largely adopted in courts of law and 
 frequently so applied as to render licenses irrevocable, has been held 
 not to apply to licenses, which, if rendered perpetual, would amount 
 to an easement in lands. The reason is a plain and necessarily con- 
 clusive one, viz.: that courts of law do not recognize mere equities, 
 such as arise out of an equitable estoppel enforced against the legal 
 owner of lands; but they deal only with legal estates, such as are 
 acquired through legal forms of conveyance, or their equivalent under 
 the statute of limitations, an adverse possession, of twenty years, 
 or at least by writing under the statute of frauds. Hence, a mere 
 license affecting lands is at law always revocable, even though 
 granted for a valuable consideration, as in Fentiman v. Smith, 4 East, 
 107, and Wood v. Leadbitter, 3 M. & W. 833, and although the 
 licensee may have expended money under it, which was a feature of 
 many of the cases before cited. 
 
 It is true, however, that in this court, equities in land though not 
 created by any deed, grant or writing whatever, but springing out 
 of the acts and relations of the parties, are largely enforced, and 
 among these a large class are those which arise under the doctrine 
 of equitable estoppel applied to prevent constructive fraud, — as 
 where one having title to land is knowingly silent in the presence of 
 an innocent purchaser from a third person, or where one knowing his 
 title to land silently permits another ignorantly to build on it, — in 
 these, and in like cases, this court, in order to prevent fraud, will 
 raise out of the transaction an equity in favor of the party misled, 
 binding the conscience of the owner and restraining the exercise of 
 his legal rights against such party. No reason is perceived why, in 
 a proper case, the same principle should not in equity restrain the 
 revoi at ion of ;i privilege affecting the use of land. But it must be 
 carefully ohserved that this principle of equitable estoppel proceeds 
 upon the ground of preventing fraud. Its effect, when applied, is
 
 IV. I.] REVOCATION OF LICENSE. Soi 
 
 to restrain a party from exercising his legal right, and this even a 
 court of equity cannot do unless there have been on his part some 
 conduct, declaration or improper concealment, misleading an inno- 
 cent person to his prejudice and rendering the assertion of the legal 
 right as against such person an act of bad faith, amounting to con- 
 structive fraud. Moreover, it may be well added that to warrant 
 the interference of the court with the legal right or title of a party, 
 the case relied on to work the estoppel must be clear, beyond doubt, 
 upon the facts. And the more stringently do these rules apply in a 
 case such as this, where the effect of the estoppel, if allowed, will be 
 to convert what was originally a bare privilege, temporary and revo- 
 cable, into an easement in the licensor's land, perpetually binding it 
 as transmissible from the licensee. 
 
 It is a fatal infirmity in this branch of the complainant's case that 
 there was nothing in all the communications had between the officers 
 of the Company and Jackson & Sharp, or in the conduct of these 
 officers, to justify Jackson & Sharp in assuming that the company, 
 by granting the accommodation applied for intended to relinquish 
 any right of property in the soil. It is agreed that no stipulation or 
 promise to that effect was expressed. * * * Looking to all the 
 circumstances of the case, it is my conviction that although the 
 connection of the car works with the railroad was doubtless con- 
 templated on both sides as one to be in fact permanent, yet that no 
 stipulation to that effect was asked or given, or supposed by either 
 party to have been given; but that the arrangement was tacitly left 
 to rest upon the general understanding with respect to such accom- 
 modation, Jackson & Sharp either not anticipating the contingency 
 which has now happened, or trusting to the mutual interest and 
 good will of the parties as a sufficient guarantee for the permanence 
 of the connection, without securing it as a legal right according to 
 prescribed forms of law. Their disappointment certainly involves 
 them in no little hardship. But hardship is not a ground for equitable 
 relief, except in favor of one who, without any negligence in secur- 
 ing his rights by the appropriate legal modes, has been misled to his 
 prejudice through some fraud or laches of the party against whom 
 the relief is sought, or by such conduct of the latter as renders it an 
 act of bad faith to take advantage of the mistake. 
 
 The injunction must be dissolved and the bill dismissed. 
 [law of prop in land. — 51.]
 
 802 LICENSES. [PT. IV. CM. III. 
 
 e. Cases where licensee has paid consideration, or has incurred expense in 
 executing the license and there is no positive fraud. 
 
 CROSDALE v. LANIGAN. 
 
 129 New York, 604. — 1892. 
 
 Andrews, J. — This case presents a question of importance from 
 the principle involved, although the particular interest affected by 
 the decision is not large. 
 
 The action was brought to obtain equitable relief by injunction to 
 restrain the defendant from tearing down a stone wall erected on 
 the defendant's land by the plaintiff, under an alleged parol license 
 from the defendant, and in the erection of which the plaintiff 
 expended in labor and materials a sum exceeding one hundred dol- 
 lars. The parties are the owners of adjoining lots fronting upon a 
 public street. The plaintiff's lot is west of the lot of the defendant. 
 The land in its natural state descended toward the east. In 1S86 the 
 plaintiff graded his lot. and in so doing, raised an embankment 
 several feet high along his eastern line, adjacent to the lot of the 
 defendant, and erected a house on his lot. In 1887 the defendant 
 graded his lot and excavated the earth up to his west line, adjacent 
 to the embankment on the plaintiff's lot, to the depth of four or 
 more feet, thereby removing the natural support to the lot of the 
 plaintiff as it was in its orginal state. Before the defendant had 
 completed his excavation, the parties had an interview and the ques- 
 tion of the support of the plaintiff's embankment arose. The plain- 
 tiff claimed that the defendant was bound to build a wall where his 
 excavation was. The defendant denied his obligation to do so and 
 referred to the fact that the plaintiff had raised his land several feet 
 higher than it was in its natural state. The plaintiff wanted the 
 defendant to sell him two feet of his land to build a wall upon, which 
 the defendant declined to do. * * * 
 
 Some days after the interview * * * the defendant addressed 
 a letter to the plaintiff, in which * * * he said: * * * "I 
 have thought the matter over seriously, put myself in your place, so 
 to speak, and decided to give you two feet asked for to build your 
 wall on." * * * 
 
 This case was tried and decided upon the theory that the plaintiff 
 had a license from the defendant to build the wall on his land, 
 which, when executed, became in equity irrevocable. It was not 
 claimed on the trial, nor is it now claimed, that there was any con- 
 tract on the part of the defendant to sell the land occupied by the 
 wall to the plaintiff, which, by reason of part performance, equity
 
 IV. i.] REVOCATION OF LICENSE. 803 
 
 will enforce. The claim and the finding is that the license to enter 
 upon the defendant's land, when acted upon by the plaintiff, con- 
 ferred upon him a right in equity, in the nature of an easement, to 
 maintain the wall on the defendant's lot. If this claim is well 
 founded, there has been created, without deed and in violation of 
 the statute of frauds, an interest in the plaintiff and his assigns in 
 the land of the defendant, impairing the absolute title which he 
 theretofore enjoyed, and subjecting his land to a servitude in favor 
 of the adjacent property. It is quite immaterial in result that this 
 interest claimed, if it exists, is equitable and not legal. An encum- 
 brance has been created upon the defendant's lot, and his ownership, 
 to the extent of such interest, has been divested. 
 
 We are of opinion that this judgment is opposed to the rule of law 
 established in this State. There has been much contrariety of 
 decision in the courts of different States and jurisdictions. But the 
 courts in this State have upheld with great steadiness the general 
 rule that a parol license to do an act on the land of the licensor, 
 while it justifies anything done by the licensee before revocation, is, 
 nevertheless, revocable at the option of the licensor, and this, 
 although the intention was to confer a continuing right and money 
 had been expended by the licensee upon the faith of the license. 
 This is plainly the rule of the statute. It is also, we believe, the 
 rule required by public policy. It prevents the burdening of lands 
 with restrictions founded upon oral agreements, easily misunder- 
 stood. It gives security and certainty to titles, which are most 
 important to be preserved against defects and qualifications not 
 founded upon solemn instruments. The jurisdiction of courts to 
 enforce oral contracts for the sale of land, is clearly defined and well 
 understood, and is indisputable; but to change what commenced in 
 a license into an irrevocable right, on the ground of equitable 
 estoppel, is another and quite different matter. It is far better, we 
 think, that the law requiring interests in land to be evidenced by 
 deed should be observed, than to leave it to the chancellor to con- 
 strue an executed license as a grant, depending upon what, in his 
 view, may be equity in the special case. There are several circum- 
 stances in the present case which render the enforcement of such a 
 jurisdiction a dangerous precedent. The only license claimed is 
 contained in the letter of April 13th. The language is: "I have 
 decided to give you the two feet you asked for to build your wall 
 on." How far the wall was to extend, its character, or how it was 
 to be built, is not stated. Referring to the previous interview to 
 which the letter alludes, the evidence of the plaintiff of what was 
 said at the interview leaves the whole matter indefinite and uncertain.
 
 804 LICENSES. [PT. IV. CII. III. 
 
 He testifies that neither the description, dimensions and character 
 of the proposed wall were spoken of. The testimony of the defend- 
 ant is to the contrary, but perhaps it is to be assumed that the trial 
 judge adopted the testimony of the plaintiff. 
 
 Upon the case made by the plaintiff upon the letter and the prior 
 conversations, if it was a contract, it is difficult to see how it could 
 be enforced in equity. The cases are decisive that equity will only 
 enforce a parol contract for an interest in land when the contract is 
 definite and certain in all its parts. The extent of the injury which 
 will be suffered unless equity intervenes is also an element to be con- 
 sidered when its extraordinary jurisdiction is invoked. Here the 
 amount expended by the plaintiff in reliance upon the license was 
 comparatively small. The most reasonable inference is that the 
 plaintiff confided in the good faith of the defendant as his security 
 that the wall would be permitted to remain. It does not appear 
 that anything was said as to the time it should be maintained. It 
 is claimed that the wall was built for the benefit of both parties. 
 This is founded on the assumption that the defendant's excavation 
 removed the natural support of the plaintiff's land, and subjected 
 him to liability. But this would not take the case out of the statute 
 nor authorize the interference of equity to enforce the license as a 
 grant in equity. The same element of common benefit is found in 
 the case of Cronkhite v. Cronkhite, 94 N. Y. 323. 
 
 The trial judge refused to find the facts as to the effect which 
 would have followed from the defendant's excavation in case the 
 plaintiff's land had continued in its natural state. He tried and 
 decided the case on the theory that the license when executed 
 became irrevocable. In this we think he erred. The cases of 
 Minn ford v. Whitney, 15 Wend. 380; Wiseman v. Lucksinger, 84 N. Y. 
 31; and Cronkhite v. Cronkhite, supra, are, we think, decisive of this 
 action. 
 
 Judgment reversed. 
 
 FERGUSON v. SPENCER. 
 127 Indiana, 66. — 1890. 
 
 Mitchell, J. — The nature of the action, as disclosed by the 
 pleadings, is not very well defined. It may be regarded as a suit to 
 recover damages caused by interrupting the flow of an artificial 
 stream through, or diverting it from, a tile drain through which 
 water was supplied to the plaintiff's animals on her farm. 
 
 The merits of the case may be determined upon the following facts 
 returned to the court in a special verdict. In 1884 the plaintiff,
 
 IV. I.] REVOCATION OF LICENSE. 805 
 
 Mrs. Spencer, and the appellant, William Ferguson, were adjoining 
 landowners in Warren county, their farms being separated by a pub- 
 lic highway running east and west on the division line. Their farms 
 occupied such a relation that surface and spring water collected on 
 and issuing from the defendant's land was discharged over and 
 through a depression, with more or less defined banks, through a 
 similar depression over and upon the plaintiff's land. In the year 
 above mentioned the parties mutually agreed to construct a covered 
 tile drain, of specified dimensions, to be laid at a given depth, each 
 to construct the distance required, on his or her own land. In 
 pursuance of this agreement the plaintiff, commencing at the high- 
 way separating her farm from that of the defendant, constructed a 
 drain of the dimensions agreed upon of the length of forty rods, at 
 a cost of over sixty dollars. The defendant at the same time con- 
 structed a similar drain on his land, connecting it with that built by 
 the plaintiff at one end, and with an existing tile drain on his land 
 at the other, thereby making a continuous drain over the lands of 
 both, through which water flowed constantly. The drain thus con- 
 structed was beneficial to the plaintiff's farm, enhancing its value by 
 affording her more perfect drainage than before, and by furnishing 
 a constant supply of living water for stock on her farm, she having 
 utilized the water by constructing a convenient watering place. In 
 1887 the defendant refused to continue the arrangement, and dug 
 up some of the tiling on his own land, so as to disrupt the drain 
 and diminish the supply of water, to the damage of the plaintiff. 
 
 The question is whether or not, after money had been expended 
 in constructing the drain in reliance upon the agreement, either of 
 the parties, without the consent of the other, could terminate the 
 arrangement without becoming liable for any damage which might 
 result? 
 
 The effect of the agreement, when acted upon by the parties, was 
 to create mutual or cross-licenses in favor of each in the land of the 
 other. Each was given a license from the other to make use of the 
 other's land for the purpose of conducting water over it for a pur- 
 pose supposed beneficial to his own land. 
 
 A license is defined to be an authority given to do some act, or a 
 series of acts, on the land of another without possessing an estate 
 therein. Cook v. Stearns, 11 Mass. 533, 13 Am. & Eng. Encyc. of 
 Law, 539. 
 
 By means of the arrangement entered into the plaintiff obtained a 
 license to connect the covered tile drain which she constructed with 
 a similar drain constructed by the defendant, thereby affording her 
 the means of draining or conducting water from springs and other
 
 8o6 LICENSES. [PT. IV. CII. III. 
 
 sources on the defendant's land for the benefit of her farm. This 
 is found to have been a valuable privilege, to obtain which the plain- 
 tiff expended money in reliance upon a mutual agreement entered 
 into with the defendant. It is everywhere settled that a parol license 
 to use the land of another is revocable at the pleasure of the licensor, 
 unless the license has been given upon a valuable consideration, or 
 money has been expended on the faith that it was to be perpetual 
 or continuous. Where a license has been executed by an expenditure 
 of money, or has been given upon a consideration paid, it is either 
 irrevocable altogether, or cannot be revoked without remuneration, 
 the reason being that to permit a revocation without placing the 
 other party in statu quo, would be fraudulent and unconscionable. 
 Nowlin v. J J 'hippie, 120 Ind. 596; Robinson v. Thrailkill, no Ind. 117; 
 Snowden v. Wilas, 19 Ind. 10; Clark v. Glidden, 60 Vt. 702. 
 
 Where a license is coupled with an interest, or the licensee has 
 done acts in pursuance of the license which create an equity in his 
 favor, it cannot be revoked. East Jersey Iron Co. v. Wright, 32 N. J. 
 Eq. 248. 
 
 The present case is closely analogous to Clark v. Glidden, supra, 
 where it was held that an executed license to lay pipes to conduct 
 water from one farm to another, for the benefit of the owner of the 
 latter, was irrevocable, and the licensor was enjoined, upon terms, 
 from interfering with the water-pipes laid in pursuance of the license. 
 
 The present case is not distinguishable in principle. It may be 
 conceded that the adjudications upon the subject of the right to 
 revoke parol licenses are not uniform, and that they cannot be suc- 
 cessfully classified, or arranged into harmonious groups; but it is 
 the settled law of this State, as it is of many others, that where a 
 license, involving the expenditure of money, has been so far executed 
 that its withdrawal would operate as a fraud upon the person who 
 expended money in reliance upon it, no revocation can take place 
 without making compensation to the person injured by the with- 
 drawal. Simons v. Morehouse, 88 Ind. 391, and cases cited; Rogers 
 v. Cox, 96 Ind. 157. Thus in Rerick v. Kern, 14 Serg. & Rawle, 
 267, 16 Am. Dec. 497, and note, a leading case on the subject, it is 
 held that an executed license, the execution of which involved the 
 expenditure of money or labor, is regarded in equity as an executed 
 agreement for a valuable consideration, and that it is, therefore, 
 irrevocable, although given merely by parol and relating to the use 
 and occupation of real estate. This doctrine is so thoroughly set- 
 tled by the decisions of this court that we do not deem it profitable 
 to elaborate ill- subject further. See 5 Lawson, Rights and Reme- 
 dies, ij -^75; Woodbury v. Parshiey, 7 N. H. 237. The rule is, of
 
 IV. i.] REVOCATION OF LICENSE. 807 
 
 course, different where nothing but a mere naked license is involved. 
 Parish v. K as pa re, 109 Ind. 586. ' 
 
 It may be conceded that a different rule prevails in the State 
 of New York, as well as in some other States. Cronkhite v. Cronk- 
 hite t 94 N. Y. 323; Johnson v. Skill/nan, 29 Minn. 95, 43 Am. Rep. 
 
 IQ2. * * * 
 
 Judgment affirmed. a 
 
 f. In all other cases revocable. 
 McCREA v. MARSH. 
 12 Gray, 211. — 1858. 
 
 Metcalf, J. — It was correctly ruled, at the trial, that the plain- 
 tiff could not maintain this action, and that his remedy, if any, was 
 by an action of contract. We therefore need not express an opinion 
 concerning any of the other rulings. 
 
 Assuming that the plaintiff, by purchase of the ticket from the 
 defendant, obtained permission to enter the family circle in the 
 Howard Athenaeum, in his own person, and occupy a place there 
 during the exhibition, yet it was " only an executory contract." It 
 was a license legally revocable, and was revoked before it was in any 
 part executed. After it was revoked, the plaintiff's attempts to 
 enter were unwarranted, and the defendant rightfully used the force 
 necessary to prevent his entry. 
 
 According to the decision in Woody. Leadbitter, 13 M. & W. 838, 
 even if the plaintiff had been permitted to enter the family circle, 
 the defendant might have ordered him to leave it, at any time dur- 
 ing the exhibition, and, upon his refusal, might have removed him, 
 using no unnecessary force. The doctrine of revocable licenses was 
 there thoroughly discussed, and the authorities analyzed by Mr. 
 Baron Alderson, and the case of Tayler v. Waters, 7 Taunt. 374, 
 and 2 Marsh. 551, was overruled. See also Adams v. Andrews, 15 
 Ad. & El. N. R. 296; Roffey v . Henderson, 17 Ad. & El. N. R. 574; 
 Bridges v. Purcell, 1 Dev. & Bat. 492; Foot v. New Haven & North 
 Hampton Co., 23 Conn. 214; Jamieson v. Millemann, 3 Duer, 255. 
 
 1 See also Huff v. McCauley. supra, p. 76. — Ed. 
 
 2 In Clark v. Gliddcn, supra, the decree provided that " the injunction remain 
 in force so long as the present aqueduct lasts, with the right in the oratrix and 
 her heirs and assigns, during that time, of repairing the same as may be neces- 
 sary to keep it usable, but not with the right of making any repairs that shall in 
 any just sense amount to a renewal of the aqueduct itself." — Ed.
 
 808 LICENSES. [PT. IV. CII. III. 
 
 The plaintiff is doubtless entitled to recover, in an action of con- 
 tract, the money paid by him for the ticket, and all legal damages 
 which he sustained by the breach of the contract implied by the sale 
 and delivery of the ticket. 
 
 Exceptions overruled. 
 
 HIRTH v. GRAHAM. 
 
 50 Ohio State, 57. — 1893. 
 
 \Reported herein at p. 34.]
 
 CHAPTER IV. 
 Incorporeal Interests in Land. 
 
 1. Nature and kinds. 
 
 i. In General. 1 
 
 2. An Incorporeal Interest May be as for a Fee, or for Life 
 
 or a Leasehold. 2 
 
 II. Easements. 3 
 
 i. Nature in General. 
 
 a. Continuous and discontinuous. Illustrations. 
 
 GILMORE v. DRISCOLL. 
 
 122 Massachusetts, 199. — 1877. 
 
 [Reported herein at p. 826.] 
 
 WALKER v. PIERCE. 
 38 Vermont, 96. — 1865. 
 [Reported herein at p. 822.] 
 
 1 In our American law " an incorporeal hereditament is a right issuing out of 
 a thing corporate " real, " or concerning or annexed to, or exercisable within, the 
 same," and " transmissible to heirs, according to the law regulating the inherit- 
 ance of land." See 2 Black. Com. 20; 2 Broom & Hadley, 20. See also note 8. 
 in Hammond's Edition, 2 Black. Com. Blackstone enumerates ten sorts of 
 incorporeal hereditaments: " Advowsons, tithes, commons, ways, offices, dig- 
 nities, franchises, corodies or pensions, annuities and rents." Many of these are 
 obsolete and some of them would not come within our definition as given above. 
 
 Future interests in lands are sometimes classed as incorporeal hereditaments, 
 though not with strict propriety. The contingent right to enter in case a condi- 
 tion should be broken has a better claim to be treated here, but see p. 527, supra, 
 and under future estates infra. — Ed. 
 
 2 See Huff v. McCauley, supra p. 76, at p. 78. — Ed. 
 
 3 From the point of view of the servient tenement these are often called servi- 
 tudes. — .Ed. 
 
 [809]
 
 8lO INCORPOREAL INTERESTS IN LAND. [PT. IV. CH. IV. 
 
 b. Appendant or appurtenant, or in gross? 
 
 BOATMAN v. LASLEY. 
 23 Ohio State, 614. — 1873. 
 
 McIlvaine, J. — Is a private right of way over the lands of 
 another, in gross, such an interest or estate in land, as may be 
 cast by descent, or may be assigned by the grantee to one who has 
 no interest in the land? These are the only questions in this case. 
 If such a right be inheritable or assignable, the Court of Common 
 Pleas erred in its charge; otherwise there is no error in the record. 
 
 The terms of the deed from Lasley to Logue plainly import an 
 intention to make the right of way therein granted appendant and 
 appurtenant to other lands, but the record does not disclose either 
 the facts or the law given to the jury, whereby it could determine 
 whether or not that intention was accomplished. It simply shows 
 that the jury was instructed that if the right of way granted did not 
 and could not, under the circumstances, become appurtenant to lands 
 other than those over which it was granted, then it was a mere per- 
 sonal right in the grantee, which could not be inherited from him, 
 or transferred by him to a stranger. 
 
 The correctness of this instruction does not depend upon a con- 
 struction of the deed by which it was granted, for the terms of the 
 grant are " to Alexander Logue, his heirs and assigns." The real 
 question is, whether or not a private right of way in gross is, in law, 
 capable of being transferred or transmitted. 
 
 It is strongly insisted upon, in argument, that a right of way, in 
 gross, maybe conveyed to the grantee " and to his heirs and assigns 
 forever," because an owner in fee may carve out of his estate any 
 interest less than the whole and dispose of the less estate absolutely; 
 and this because the power to dispose of the whole estate includes a 
 power to dispose of any part of it. 
 
 This argument assumes the affirmative of the very question in con- 
 troversy, to-wit, that such a right of way is an interest or estate in 
 the land. 
 
 A mere naked right to pass and repass over the land of another, 
 a use which excludes all participation in the profits of the land, is not, 
 in any proper sense, an interest or estate in the land itself. Such a 
 right is in its nature personal; it attaches itself to the person of him 
 to whom it is granted, and must die with the person. 
 
 If such a right be an inheritable estate, how will the heirs take? 
 
 1 " Easements in gross " not being inheritable in modern times have ceased 
 to 1'" incorporeal hereditaments, and are mere persona] rights. — En.
 
 II. 2.] EASEMENTS. 8ll 
 
 In severalty, in joint tenancy, coparcenary, or as tenants in com- 
 mon? If not in severalty, how can their interests be severed? 
 
 If it be assignable, what limit can be placed on the power of alien- 
 ation? To whom and to how many may it be transferred? Why not 
 to the public at large, and thus convert into a public way that which 
 was intended to be a private and exclusive way onlyr 
 
 Where the way is appendant or appurtenant to other lands, very 
 different considerations arise. There the right attaches to the land 
 to which the way is appurtenant, because it is granted for the con- 
 venience of their occupation without respect to the ownership or 
 number of occupants. In such case the right of way passes with the 
 dominant estate as an incident thereto. A right of way appendant 
 cannot be converted into a way in gross, nor can a way in gross be 
 turned into a way appendant. 
 
 A very marked distinction also exists between a way in gross and 
 an easement of profit a prendre; such as the right to enter upon the 
 lands of another, and remove gravel or other materials therefrom. 
 The latter so far partakes of the nature of an estate in the land itself, 
 as to be treated as an inheritable and assignable interest. Post v. 
 Pear sail, 22 Wend. 432. 
 
 Both upon principle and authority, we think there was no error in 
 the charge of the court below. Mr. Washburn in his work on Ease- 
 ments, page 8, par. n, states the law upon this subject as follows: 
 " A man may have a way in gross over another's land, but it must, 
 from its nature, be a personal right not assignble or inheritable; nor 
 can it be made so by any terms in the grant, any more than a col- 
 lateral and independent contract can be made to run with the land." 
 See also Ackroyd v. Smith, 10 C. B. 164; Garrison v. Budd, 19 111. 
 558; Post v. Pearsall, 22 Wend. 432; Woolrych on Ways, 20; 2 Black. 
 Com. 35; 3 Kent's Com. 420, 512. 
 
 Leave refused. 
 
 2. How Created. 
 
 a. By grant. 
 
 (1.) Express. 
 
 WALKER v. PIERCE. 
 
 38 Vermont, 94. — 1865. 
 [Reported herein at p. 822.]
 
 8l2 INCORPOREAL INTERESTS IN LAND. [PT. IV. CM. IV. 
 
 (2.) Implied. 
 (a.) Implied in consequence of a restrictive covenant, 
 
 BLAKEMORE v. STANLEY. 
 
 159 Massachusetts, 6. — 1893. 
 
 {Reported herein at p. 387.] 
 
 ROWLAND v. MILLER. 
 
 139 New York, 93. — 1893. 
 
 [Reported herein at p. 388.] 
 
 (0.) Implied where oivner of premises sells a parcel for which he has created special 
 advantages to the detriment of the rest. 1 
 
 CURTTSS v. AYRAULT. 
 
 47 New York, 73. — 1871. 
 [Reported herein at p. 126.] 
 
 (c.) Implied by reference in deed to a way or a map showing a way. 
 
 Grover, J., in COX v. JAMES. 
 
 45 New York, 557. — 1871. 
 
 The question whether the lot conveyed to the plaintiff was bounded 
 by north side of or center of the alley, is not material to the right 
 claimed by the plaintiff in the action, which was a right of way over 
 the alley, and the correctness of the legal conclusion of the referee 
 upon this point will not be examined. The judgment declaring the 
 plaintiff entitled to a right of way over the alley cannot be sustained 
 upon the ground that he required the right as a way from necessity, 
 for the reason that access might be had from the land conveyed to 
 public streets; nor can it be sustained upon the ground that the alley 
 had been dedicated to the public as a highway, for the reason that it 
 had never in any way been accepted or used as such by the public. 
 The only ground upon which the judgment can be sustained, is that 
 the plaintiff acquired a right of private way over the alley as appur- 
 tenant to the lands conveyed to him by the Maxwells. This right 
 had not become appurtenant to the lands in consequence of a pre- 
 vious user in connection therewith, the alley never having been so 
 
 'The interests ari:-irik r under (n) and (/') are often called " equitable ease. 
 merits." — Ed.
 
 II. 2.] EASEMENTS. 813 
 
 used. The substantial facts proved and found by the referee, are 
 that the Maxwells, prior to their conveyance to the plaintiff, were 
 the owners of a parcel of land, embracing the lands conveyed to the 
 plaintiff, South alley and other lands; that they caused the said 
 parcel to be surveyed and subdivided into lots, of suitable size for 
 building purposes, and a map thereof to be made, upon which the 
 lots were designated by numbers, and South alley designated as an 
 alley, and afterward conveyed lots forty-eight, forty-nine and fifty 
 to the plaintiff, describing lot fifty as all that certain lot situate in 
 the village of Saratoga Springs, known and distinguished as lot 
 number fifty on a map of village lots owned by the parties of the 
 first part, referring particularly to the said map, and specifying the 
 boundaries of the lot as laid down thereon, referring as follows to 
 South alley; thence to a stake in north line of South alley; thence 
 along the north line of South alley, etc. South alley was laid down 
 on the map as an alley running along the boundary of the lot, sixteen 
 feet in width, continuing along past the rear of lot fifty, and along 
 other lots owned by the Maxwells. This conveyance of the lot, so 
 made in reference to the map designating the strip as an alley, gave 
 the plaintiff a right of way over the alley to the rear of his lot, as 
 against his grantors and their subsequent grantee of the alley. In 
 re Mayor, 2 Wend. 472; Smyles v. Hastings, 22 N. Y. 217; Badeau 
 v. A/ead, 14 Barb. 328. The question whether the plaintiff had not 
 an adequate legal remedy for the disturbance of this right of way 
 does not arise, as it was not insisted upon in the answer. Roy v. 
 Piatt, 4 Paige, 77; Truscott v. King t 2 Seld. 147. The rights of the 
 party were established by the conveyances. This renders an exam- 
 ination of the exceptions taken by the defendant to other evidence 
 introduced by the plaintiff unnecessary. 
 
 b. By operation of law. 
 
 KUHLMAN v. HECHT. 
 
 77 Illinois, 570. — 1875. 
 
 [Reported herein at p. 819.] 
 
 HOLMES v. SEELEY. 
 
 19 Wendell (N. Y.), 507. — 1838. 
 
 [Reported herein at p. 817.]
 
 S14 INCORPOREAL INTERESTS IN LAND. [PT. IV. GIL IV. 
 
 c. By prescription. 
 KUHLMAN v. HECHT. 
 
 77 Illinois, 570. — 1875. 
 {Reported herein at p. 819.] 
 
 3. Transfer of an Easement. 1 
 
 4. Destruction of an Easement. 
 
 a. Effect of release t abandonment, non-user; merger. 
 
 SNELL v. LEVITT. 
 
 no New York, 59s. — 1888. 
 
 fir 
 
 Earl, J. — * * * This easement having been acquired by Mrs. 
 
 Higgins by grant could not be lost by mere nonuser for any length of 
 time. It could be lost by adverse user or possession by the owner of 
 the servient tenement, and the easement could be lost and extinguished 
 bv abandonment in some of the modes or by some of the means 
 recognized in the law. Nonuser for a period of twenty years, under 
 such circumstances as show an intention to abandon and give up the 
 easement, is sufficient to extinguish it; and even an abandonment 
 for a shorter period, under such circumstances as show an intention 
 to give up and release an easement, which is acted upon by the 
 owner of the servient tenement so that it would work harm to him 
 if the easement were thereafter asserted would operate to extinguish 
 the easement. 
 
 Here there is no doubt of the actual intention of Mrs. Higgins to 
 
 I abandon the easement acquired by her from Edwin Snell. She 
 expressly agreed to relinquish it for the consideration of $75 in 
 money and the right to draw water from other logs for an indefinite 
 time; and that agreement was acted upon for more than twenty 
 years. During that time, the defendant, and others through whom 
 he claims, purchased the servient tenement by warranty deeds with- 
 out any notice whatever of any claim of an existing easement under 
 the deed to Mrs. Higgins in the premises conveyed. These facts 
 are undisputed and upon them the trial court should have held and 
 ruled, as matter of law, that the easement was abandoned and 
 
 1 . extinguished. Vogler v. Geiss, 51 Md. 407; Steere v. Tiffany, 13 R. 
 I. 568; Dyer v. San ford, 9 Met. 395; Curtis v. Noonan, 10 Allen, 
 406; Morse v. Copeland, 2 Gray, 302; Pope v. Devereux, 5 Gray, 409; 
 
 1 Sec Kuhlman v. He Jit. infra, p. S19. — Ed.
 
 II. 4-] EASEMENTS. 815 
 
 King v. Murphy, 140 Mass. 254; Queen v. Chorley, 12 Ad. & El. N. 
 S. 515; Crossley v. Lightowler, L. R. 2 Ch. App. 478, 482; Cariwright 
 v. Maplesdcn, 53 N. Y. 622; White's Bank v. Nichols, 64 Id. 65. In 
 Washburn on Easements, 3d ed., at page 661 and subsequent pages, 
 the author says: " The owner of an easement may destroy his 
 right to the same by actually abandoning the right as well as the 
 enjoyment, especially if a third party become interested in the 
 servient estate after such act of abandonment; and it would operate 
 unjustly upon him if the exercise of the easement were resumed in 
 favor of the dominant estate. It is not easy to define, in all cases, 
 what would be such act of abandonment as would destroy a right of 
 easement, and each case seems to be a matter for a jury to determine. 
 But nothing short of an intention so to abandon the right would 
 operate to that effect, unless other persons have been led by such 
 acts to treat the servient estate as if free of the servitude, and the 
 same could not be resumed without doing an injury to their rights 
 in respect to the same. And in this it is not intended to embrace 
 questions which may arise from a mere nonuser of an easement." 
 " The question of abandonment is one of intention, depending upon 
 the facts of the particular case. But time is not a necessary element 
 in a question of abandonment. A cesser to use, accompanied by an 
 act clearly indicating an intention to abandon the right, would have 
 the same effect as a release, without reference to time." " Although 
 an abandonment is sometimes inferred from a nonuser for twenty 
 years, it seems to depend less upon the duration of the time than the 
 acts which accompany the ceasing to use the easement for its effect 
 upon the right. The length of time that this is continued is one of 
 the elements from which the intention to abandon or retain the right is 
 inferred. . . . The cesser to use, coupled with any act clearly 
 indicative of an intention to abandon the right, would have the same 
 effect as a release, without any reference to the time during which 
 such cesser has continued." And the text of the learned author is 
 well supported by the authorities he cites. 
 
 Here, after an abandonment by Mrs. Higgins, Edwin Snell con- 
 veyed the water from this spring to two houses upon his own 
 premises, and, with the water running from the spring through the 
 pipes to those houses, the premises have several times been bought 
 and sold. There was a nonuser of the easement for upwards of! 
 twenty years, and a substituted easement was used during a large 
 portion of that time. i 
 
 Under such circumstances, we think, there was not even a ques- 
 tion of fact for the jury; but that it was the duty of the court to 
 rule, as a matter of law, that the easement was extinguished.
 
 8l6 INCORPOREAL INTERESTS IN LAND. [PT. IV. CIL IV. 
 
 Morton, J., in BUTTERFIELD v. REEL). 
 160 Massachusetts, 361. — 1893. 
 
 The plaintiff contends, in the next place, that the grantors were 
 disseised by her at the time when they made and delivered the deed 
 to the defendant. But the nature of the defendant's right, being a 
 right of flowage, was such that its continued existence was consistent 
 with the use and occupation of the premises by the plaintiff. There 
 was nothing in the nature of the acts done by the plaintff upon the 
 premises that was an interference with or adverse to the right of the 
 defendant or his predecessors in title. So long as the defendant and 
 his predecessors in title did not exercise the right of flowage, the 
 plaintiff and her predecessors in title were at libety to use the land. 
 Doubtless the plaintiff and those who preceded her could have used 
 the premises in so adverse and exclusive a mannner that the lapse 
 of twenty years would have barred the right of the defendant and 
 those under whom he claims. But the use in the present case con- 
 sisted in cutting hay, digging out muck, enlarging and using springs, 
 and occupying a portion of it for a hen-house and hen-yard. There 
 was nothing in all this that was adverse to, or infringed upon, the 
 defendant's right. Arnold v. Stevens, 24 Pick. 106; Barnes v. Lloyd, 
 112 Mass. 224. The jury, under instructions not objected to as to 
 what would constitute an adverse use, have found that the right of 
 flowage has not been lost by adverse use on the part of the plaintiff 
 and those under whom she claims. We think there was evidence 
 warranting such a finding. 
 
 The plaintiff also contends that the right of flowage has been lost 
 by abandonment. The right rests upon an actual grant. It is well 
 settled that an estate or easement derived from an actual grant is 
 not lost by mere nonuse. White v. Crawford, 10 Mass. 183; 
 Arnold v. Stevens, 24 Pick. 106; Owen v. Field, 102 Mass. 90, 114; 
 Barnes v. Lloyd, 112 Mass. 224. There was evidence in the case that 
 the right had not been abandoned. It was for the jury to say what 
 weight should be given to the filling of the raceway. It could not 
 be said that the consenting to it by the owner of the privilege was a 
 conclusive act of abandonment, nor that the putting of the wheel 
 into the wasteway was not a user of the easement. The jury, under 
 instructions not otherwise objected to, have found that the right 
 was not abandoned, and we think there was evidence justifying the 
 finding.
 
 II. 5-1 EASEMENTS. 817 
 
 b. Effect of license to owner of the servient estate, or one acting under 
 aim, to interfere with easement. 
 
 Peckham, J., in WHITE v. MANHATTAN RAILWAY CO. 
 
 139 New York, 19. — 1893. 
 [Reported herein at p. 795.] 
 
 5. Specific Easements. 
 
 a. Ways. 
 
 (1.) Distinguish Ways in Gross and Highways. 
 
 BOATMAN v. LASLEY. 
 
 23 Ohio State, 614. — 1873. 
 
 [Reported herein at p. 810.] 
 
 (2.) Ways of Necessity. 
 Nelson, Ch. ] .. in HOLMES v. SEELY. 
 
 19 Wendell (N. Y.). 507. — 1838. 
 
 It is probable from the facts in the case, that the defendant is 
 entitled to a private way across the eight-acre lot, from the Bedford 
 road to his small lot, for agricultural purposes as a way of necessity. 
 Lewis McDonald formerly owned both of these lots, and in 1792 sold 
 the small one to Smith, from whom the defendant derives his title. ' 
 McDonald died in 1797, and the eighty-acre lot fell to his brother 
 James, from whom the plaintiff claims. The son of James, who was 
 a witness, testified that there was no other way to the defendant's lot 
 than over the locus in quo. If this was the situation of the lot at the 
 time of the conveyance to Smith, and has thus continued ever since, 
 a right of way followed as an incident to the grant. 1 Wms. Saund. 
 323, n. 6, to the case of Pompel v. Ricroft\ 8 T. R. 56; 4 Maule & 
 Selw. 393; Cro. Jac. 170; Siderf. 39; 5 Taunt. 311; Woolrych on 
 Ways, 20, 22, 291. This way should be a convenient one over the 
 adjoining close of the grantor, due regard being had to the interest 
 of both parties. Woolrych, 23, and cases there cited. Subject to I 
 this rule it would seem reasonable that the grantor should be allowed / 
 to assign such way as he could best spare. Id. 2 Roll. Abr. 60. If 
 he decline or omit, the grantee must select for himself, and the 
 court would no doubt extend a liberal indulgence to the exercise of 
 
 LAW OF PROP. IN LAND — 52 
 

 
 c 
 
 818 INCORPOREAL INTERESTS IN LAND. [FT. IV. CM. IV. 
 
 his discretion. Nothing short of evident abuse ought to invalidate 
 the one thus designated and used, as the grantor or those under him 
 would be in fault for not assigning a way themselves. But under 
 this right, the party cannot set up a claim to the use of several ways 
 over the adjoining close; it cannot be carried beyond the necessity. 
 This was strongly exemplified in the case of Holmes v. Garing, 2 Bing. 
 76, where it was decided that a way of necessity became extinguished 
 because the party could conveniently reach his lot by means of a 
 close of his own, subsequently purchased. 
 
 In respect to a public way, if there be an obstruction so as to 
 make the ordinary track dangerous, the traveler may go extra viam 
 passing as near to the original way as possible. Henri s Case, Sir ' 
 Wm. Jones, 297; 3 Salk. 182; 2 Show. 28. This rule, generally, is 
 not applicable to a private way which becomes foundrious or impass- 
 able, (Doug. 745, 4 Maule & Sel. 387,) as where a specific way is 
 prescribed for, no implication of a right arises to go to the right or 
 left; or in the language of Lord Ellenborough, " to break out of it 
 at random over the whole surface of the close." Highways are for 
 the public service and if the usual track be impassable, the general 
 good requires that there should be an outlet, so that the people may 
 at all times have a passage. The better opinion, however, seems to 
 be, that in the case of a private way of necessity, a passage extra 
 viam may be justified where the usual track is obstructed. Woolrych, 
 51 Doug. 749. There is a distinction between private way by grant 
 and one of necessity, resting upon the ground that the one is a grant 
 of specific track over the close, while the other is a general right to 
 a way over it; the one an express specific grant, the other a more 
 general implied one. If the outlet in case of obstruction exist at all 
 in the case of a way of necessity, it is clear that it does not where it f 
 , could be avoided by reasonable repairs; and this duty devolves upon 
 the defendant. Doug. 749. The burthen falls upon the party 
 enjoying the benefit. 
 
 The proof fell altogether short of establishing a way by prescrip- 
 tion, for although there is some evidence of a user for twenty years, 
 it is not confined to any particular or specific track. The right 
 proved, if it amount to anything in this respect, is a right to several 
 cross roads over the greater part of the eighty-acre lot, for the proof 
 of user applies about equally to all of them. I have found no 
 authority for a right of way by prescription to travel at random over 
 another's close, nor that such user is evidence of a prescriptive right 
 of way over any particular part of it; on the contrary it rather nega- 
 tives such conclusion. Indeed, after the judge required the defend- 
 ant to make his election and confine his defense to one of the tracks
 
 II. 5-] EASEMENTS. 819 
 
 used as a way, I do not perceive how the jury could have arrived at 
 the conclusion that no trespass was committed upon the plaintiff. 
 The defendant elected the way through the ridge lot, which may be 
 called the middle route, and by so doing would seem to have left 
 confessedly undefended the travel over all the others. 
 
 If right in the foregoing view of this case, a new trial must be 
 granted, because, 1. Assuming that a right of way of necessity 
 exists, the defendant did not confine himself to it in passing and 
 repassing to and from his lot; and 2. There was no right by pre- 
 scription established to justify the several ways over the eighty-acre 
 lot proved to have been used. 
 
 KUHLMAN v. HECHT. 
 
 77 Illinois, 570. — 1875. 
 
 Action of trespass by Hecht against Kuhlman. 
 
 Mr. Justice Walker delivered the opinion of the court: — 
 
 It appears that the parties to this suit own adjoining farms; that 
 both farms, at one time, belonged to Samuel Whiteside. The tract 
 on which appellant resides, and of which he is the owner, was 
 improved, about thirty-five years since, by a son of Samuel White- 
 side, and he lived upon the same until he sold to appellant, in 1855. 
 His father did not convey the land to him until in 1854, and, on the 
 same day, Samuel Whiteside conveyed to his son-in-law, Henderson, 
 the farm on which he resided, and which is now owned by appellee. 
 
 From the time Ray Whiteside went upon the farm now owned by 
 appell.ant, until a short time before this suit was brought, there has 
 always been an open lane to the public highway, from appellant's 
 farm, over the land of appellee. Appellant could not, at any time, 
 get from his farm to a public road without passing over the land of 
 some other person. He had used this way from the time he pur- 
 chased, until appellee obstructed it by placing a gate across it, a 
 short time previous to the commencement of this suit. Ray White- 
 side had used it, to get out from his farm, from the time he settled 
 upon and improved it. Previous to that time, and afterwards for a 
 time, neighbors passed over it, in going to Collinsville. The way 
 was then only fenced on one side, and was open on the other, but it 
 became a lane perhaps soon after, and so continues. Witnesses 
 testify that it had been used by the neighborhood more than fifty 
 years, but only had been used exclusively by the parties to this suit, 
 and their friends, for the last fifteen or sixteen years. It was always 
 used by Ray Whiteside, of whom appellant purchased, from the time
 
 820 INCORPOREAL INTERESTS IN LAND. [PT. IV. CIL IV. 
 
 he went on the place until he sold to appellant; thus showing a con- 
 tinuous user by appellant and his grantor for full thirty-five years, 
 and nearly nineteen years after the same was conveyed to Ray 
 Whiteside by his father, before it was obstructed by appellee. 
 
 After appellee obstructed the lane, by erecting a gate across it, 
 appellant demanded of him that he remove the obstruction, which 
 was refused. Thereupon, appellant broke down and removed the 
 gate, and appellee sued him before a justice of the peace. On a 
 trial before him, plaintiff recovered a judgment for $3.00. An 
 appeal was prosecuted to the County Court, where a trial was had. 
 with a similar result. Defendant thereupon appealed to the Circuit 
 Court. On the trial in that court, on a bill of exceptions, the judg- 
 ment of the County Court was affirmed, and the defendant brings tne 
 case to this court by appeal, and asks a reversal. 
 
 There was not twenty years' adverse use of this way, by appellant 
 and his grantor, before this suit was brought. Ray Whiteside used 
 and occupied the farm, under his father, until the twenty-fifth of 
 November, 1854, when he acquired title from his father. Up to that 
 time, both places were held and owned by the father, and Ray used 
 this way by the consent, expressed or implied, of the father. There 
 is no evidence that he used it in his own right, or under any inde- 
 pendent claim of his own. It also appears that the father and his 
 family used it the same as Ray did. There is nothing appearing in 
 the evidence from which it can be inferred that its use by Ray was 
 adverse until he received the conveyance from his father; and after 
 that, the adverse enjoyment, without being interrupted, was until in 
 July, 1873. Thus, it will be seen that the adverse use of the way 
 was less than nineteen years. 
 
 This, then, did not show a prescriptive right. Such a prescription 
 cannot be acquired short of twenty years' continuous, uninterrupted 
 adverse enjoyment. Where the use has been for that length of time, 
 and it has been peaceable, the law presumes a grant; but if it lack 
 in time, in peaceable enjoyment, or is founded on a lease, it will not 
 be good, even if a greater length of time has elapsed. It must be 
 founded in wrong. If one person enters as the tenant of another, 
 and holds under him, a prescription cannot be acquired whilst the 
 tenant thus holds; nor will any portion of the time he thus holds be 
 counted in making out the prescriptive right. 
 
 It then follows that, as Ray Whiteside was in under his father, any 
 use lie. may have made of this way, whilst he so held, was as tenant, 
 and was in nowise adverse. It was a privilege he enjoyed as his 
 father's tenant, at will or otherwise, for the more commodious 
 enjoyment of the farm he was occupying under his father. No
 
 II. 5 .] EASEMENTS. 821 
 
 portion of the time he thus used this way can be counted, as he did 
 not use it adversely, but subserviently to his father's title. There 
 was, therefore, no prescriptive right shown. 
 
 It is, however, urged that the use of this way was, and had been 
 since Ray Whiteside commenced to occupy the farm, appurtenant 
 to it, and, as such, passed to Ray by the conveyance from his father. 
 Had this way been appurtenant to the farm of the appellant, at the 
 time he purchased, then it would have passed by the grant to him. 
 A way held by grant or prescription will, no doubt, pass by a convey- 
 ance of the land with which it is used and enjoyed as an appurte- 
 nance; but a mere license to use a way, which has not ripened into a 
 right, but may be revoked, is not an appurtenance, and will not so 
 pass to a grantee of the land. Until there was twenty years' 
 adverse enjoyment, Samuel Whiteside, as the owner of both farms, 
 could have revoked the license expressly or impliedly given, and 
 could rightfully have closed the lane before he sold the land over 
 which it ran Hence, this way was not appurtenant to, and did not 
 pass by, the conveyance from the father to his son, Ray Whiteside. 
 
 It is also urged that Ray Whiteside, after he purchased, had a way, 
 of necessity, over this land, and that appellant, by purchasing from 
 Ray, acquired the same right, and hence, appellee purchased of 
 Samuel Whiteside subject to this right of way from necessity; that 
 when Samuel Whiteside conveyed to his son, there was an implied 
 grant to him of a way over the grantor's land to the farm granted, 
 that he might have ingress, for its enjoyment; and that we should 
 presume it was intended that the way should be the same that had 
 been used for the purpose for perhaps almost forty years. A way 
 from necessity is said to arise where the owner sells land to another, 
 which is wholly surrounded by the land of the grantor, and the pur- 
 chaser has the right of way over the grantor's land, to arrive at 
 his own. 3 Kent's Com. 420. This is the rule as generally stated 
 by text-writers, and used in adjudicated cases. 
 
 From the evidence in this case, it is manifest that appellant's lands 
 were not so situated. It was not in the midst of, or surrounded by, 
 the land of Samuel Whiteside, when he sold to the grantor of appel- 
 lant. His farm adjoined the land of Samuel Whiteside, but was not 
 surrounded by it. It is true that Samuel Whiteside still owned land 
 between that and a public road, and over which this lane passed; but 
 other persons also owned lands adjoining the tract owned by appel- 
 lant, so that the facts in the case by no means bring it within the 
 rule as stated by Kent and other text-writers. 
 
 But the case of Hawton v. Freeman, 8 T. R. 50, is referred to as 
 establishing a broader rule, and one, it is claimed, which will
 
 822 INCORPOREAL INTERESTS IN LAND. [PT. IV. CH. IV. 
 
 embrace this case. On turning to that case, we find that it is based 
 on the general rule, and by no means enlarges it. Lord Kenyon 
 says, in delivering the opinion of the court, that he found it impossi- 
 ble to distinguish that, from the general rule, where a man grants a 
 close, surrounded by his own land, in which case the grantee has a 
 way to it, of necessity, over the land ol the grantor, merely because 
 the grantor conveyed to the defendant in the character of trustee, 
 as it could not be intended that he meant to make a void grant. 
 He says, there being no other way to the land granted but over the 
 lands of one of the persons who granted to him, he was entitled to 
 a way of necessity, upon the authority of all the cases, that a grant 
 must be taken most strongly against the grantor. This in nowise 
 enlarges the rule itself, but only extends its application to a grantor 
 who was a mere trustee. 
 
 We, after a careful consideration of the entire case, are of opinion 
 that appellant has failed to show that he has a prescriptive right to 
 the way, or that he acquired a right of way, as appurtenant to his 
 farm, when he purchased of Ray Whiteside, or that he acquired or 
 has a way from necessity. He, therefore, failed to establish a 
 defense, and the judgment of the court below must be affirmed. 
 
 Judgment affirmed. 
 
 (3.) Repair of Way. 
 
 WALKER v. PIERCE. 
 
 38 Vermont, 94. — 1865. 
 
 Peck, J. — The deed from the defendant to the orator, conveying 
 the easterly portion of the building, grants to the orator " the right " 
 to use the common passway " at the west end of the building, also 
 a right to a passway therefrom to the rear of the portion of the 
 building hereby conveyed, to be forever so fenced and provided 
 with a gateway as to give said Walker, his heirs and assigns, 
 room to pass of the width of a common cartway for all neces- 
 sary and ordinary household purposes, to the rear of the building 
 herein conveyed." This is the language of the grant. The com- 
 mon passway, mentioned in the grant, passes from the street down 
 to the rear of the building; and the other passway granted passes 
 from the common passway along in the rear of the defendant's part 
 of the building to the rear of the orator's portion of the building. 
 The two passways, if they can be so called, are nearly at right angles 
 with earli othei at the point of intersection. It might with more 
 propriety be said to be one entire passway, turning its course near
 
 II. 5 .] EASEMENTS. 823 
 
 the middle of it, at an angle or sharp curve, about ninety 
 degrees. * * * 
 
 The only remaining question is, whose duty is it to grade down 
 that way. When a party grants a private way, he is not bound by 
 implication to construct or keep in repair the way granted. That 
 duty rests on the grantee if he wishes to enjoy the way, and he takes 
 bv the grant the right to do so. But it appears in this case that the 
 defendant has filled up and raised this common way from the street 
 to the rear of his building since the date of his deed to the orator, 
 thereby causing, to some extent, the abrupt descent which embar- 
 rasses the orator in approaching the rear of his house through the 
 way in question. As it does not appear affirmatively that the mas- 
 ter's report and decree of the court of chancery require the defend- 
 ant to grade down that way more than he has raised it since the 
 execution of his deed to the orator, we find no error in this part of 
 the decree. The defendant objects to this portion of the decree 
 on the ground that Anderson owns this common way in common 
 with the parties to this suit, and that the defendant, by complying with 
 the decree, will trespass upon Anderson. But it is right, as between 
 the orator and the defendant, that the latter should undo what, 
 to the prejudice of the orator, he has improperly done; and the 
 defendant has a right, as between him and Anderson, to make 
 necessary and proper repairs. Under these circumstances this 
 decree may properly be made against the defendant without making 
 Anderson a party. The view we take of the case destroys the main 
 basis on which the master awards damage to the orator. No subs- 
 tantial damage worth the cost of estimating has been sustained, and 
 none is allowed. 
 
 The decree of the court of chancery is reversed, and the cause 
 remanded with directions to that court to enter a decree for the 
 orator only requiring the defendant to grade the common passway 
 as required by the original decree, and as the orator fails in the 
 main portion of his bill, neither party should recover costs. 
 
 (4.) Excessive use of Way. 
 
 Eastman, J., in FRENCH v. MARSTIN. 
 
 32 New Hampshire, 316. — 1855. 
 
 There is one ground, however, which appears to us to settle the 
 present action, whatever might be the finding of the jury or the con- 
 clusions of the court upon the other points. 
 
 There is no pretence of any right of way of any kind having been 
 acquired by anyone beyond and east of lot 54; the Bean lot, the
 
 824 INCORPOREAL INTERESTS IN LAND. [PT. IV. CH. IV. 
 
 Brown lot and Sheafe lots lying east and south of 54, and adjoining 
 thereto, were acquired by the plaintiff in 1847 and 1848, and this 
 suit was commenced in 1849. 
 
 It is well settled that if a person have a right of way over another's 
 land to a particular close, he cannot enlarge it and extend it to other 
 closes. Com. Dig., Title Chimin, D. 5; Woolrych on Ways, 34; 
 Senhouse v. Christian, 1 Term, 569; Howell v. King, 1 Mod. 190; Bac. 
 Abr. , Highway, C. ; Davenport v. Lamson, 21 Pick. 72; Comstock v. 
 Van Deusen, 5 Pick. 166. 
 
 In Davenport v. Za/nson, the plaintiff brought trespass against the 
 defendant for breaking and entering his closes, called the eight-acre 
 lot, and the Brown lot. and the defendant justified under a right of 
 way across the lots to a three-acre lot belonging to him. It appeared 
 that the defendant owned the three-acre lot, and also a nine-acre lot 
 purchased by him subsequently to his becoming tenant of the former, 
 and that he had a right of way to the three-acre lot. At the time of 
 the trespass these two lots, the three-acre and the nine-acre, were 
 not separated by any fence, and were one mowing field; and the 
 defendant, taking a load of hay, which was made up partly from each 
 lot, proceeded from the three-acre lot across the plaintiff's close; 
 and it was held that the defendant was liable for the trespass; that 
 he had no right to use the way as a way from the nine-acre lot, 
 although in so doing he passed last from the three-acre lot upon the 
 plaintiff's close, and a part of the load was taken from the three- 
 acre lot. 
 
 The doctrine of the books upon this question is undoubtedly sound. 
 If a right of way to one lot can be extended at will, by the tenant, 
 to another lot that may adjoin it, then may it be extended to a third, 
 and so on to any limits that the tenant may choose. 
 
 Admitting, then, for the purposes of this decision, and for that 
 only, that the defendant had a right of way to lot 54, to the extent 
 and in the manner claimed by him, and still he cannot sustain this 
 action, for he was undoubtedly in the wrong in attempting to cross 
 the defendant's close to go upon the Brown or Sheafe lot. 
 
 The case finds that, at the time of the alleged assault, the plaintiff 
 was going to what he called his " Mountain pasture," which con- 
 sisted of the three lots, the Bean, the Sheafe and the Brown lots, to 
 salt his sheep, and that he actually went and called his sheep 
 together in the South pasture, which, in that year, was formed by a 
 part of the Bean lot and the Sheafe lot, there being no fence between 
 these lots; it appearing, also, that the sheep generally ran in the 
 BrOWD and Sheafe lots. 
 
 Now, what was the plaintiff using the way for, when the defend-
 
 II. 5-] EASEMENTS. 825 
 
 ant stopped him? Not to go to the quarter acre; not to go to the 
 Bean lot, and salt his sheep there; but to go to the " Mountain 
 pasture," wherever he might find his sheep. That was his purpose, 
 and that purpose he carried into effect. It cannot be said that his 
 intent was only to go to the quarter acre or to the Bean lot, because 
 the fact is stated in the case to be otherwise. The case finds that 
 the fracas occurred while the plaintiff was passing over the way in 
 question, on the land of the defendant, to salt his sheep in his 
 Mountain pasture. He claimed the unrestricted right to go to the 
 Mountain pasture. It was with that intent that he entered upon the 
 way; to go to any part of the pasture; and he was in the exercise of 
 a right which did not exist in him when the defendant interfered; 
 the right to go to the Mountain pasture, the whole pasture, wherever 
 the sheep might be. 
 
 We do not see how this case can be distinguished in principle from 
 that of Davenport v. Lamson, nor indeed from the general doctrine 
 upon the subject; and sufficient matters are stated in the case as 
 facts to settle this question without submitting it to the jury. 
 
 It does not relieve the plaintiff that the defendant did not resist 
 his passing, on the ground that he was going to lots beyond the Bean 
 lot. No doubt both parties understood the object of the plaintiff, 
 but the defendant was not obliged to state the reasons why he 
 objected. If he was in the wrong, he was answerable; and if in the 
 right, he was not called upon to show his reason. It was quite as 
 incumbent on the plaintiff to state that he was not going to the 
 Mountain pasture, as for the defendant to object to his using the 
 way on that ground. 
 
 The fact, also, that the defendant had permitted the sheep to be 
 driven over the way to the pasture about a week before, and that he 
 had been paid for it, does not aid the plaintiff. His going there 
 under those circumstances gave him no right to pass over the way 
 on the day of the trespass, nor had this fact any tendency to show 
 a right. 
 
 When the plaintiff was on the way, using it for an unauthorized 
 purpose — the purpose of going to the Mountain pasture to salt his 
 sheep, wherever they might be — the defendant had the right to stop 
 him. 
 
 The court ordered a verdict for the defendant; and upon the ques- 
 tion which we have considered, we think they were right, and there 
 must be 
 
 Judgment on the verdict.
 
 826 INCORPOREAL INTERESTS IN LAND. [PT. IV. CH. IV. 
 
 b. Lateral and subjacent support. 
 
 (i.) Lateral Support. 
 
 GILMORE v. DRISCOLL. 
 
 122 Massachusetts, 199. — 1877. 
 
 Gray, C. J. — The right of an owner of land to the support of the 
 land adjoining is jure naturce., like the right in a flowing stream. 
 Every owner of land is entitled, as against his neighbor, to have the 
 earth stand and the water flow in its natural condition. In the case 
 of running water, the owner of each estate by which it flows has only 
 the right to the use of the water for reasonable purposes, qualified 
 by a like right in every other owner of land above or below him on 
 the same stream. But in the case of land, which is fixed in its place, 
 each owner has the absolute right to have his land remain in its 
 natural condition, unaffected by any act of his neighbor; and, if the 
 neighbor digs upon or improves his own land so as to injure this 
 right, may maintain an action against him, without proof of 
 negligence. 
 
 But this right of property is only in the land in its natural con- 
 dition, and the damages in such an action are limited to the injury 
 to the land itself, and do not include any injury to buildings or 
 improvements thereon. While each owner may build upon and 
 improve his own estate at his pleasure, provided he does not infringe 
 upon the natural right of his neighbor, no one can by his own act 
 enlarge the liability of his neighbor for an interference with this 
 natural right. If a man is not content to enjoy his land in its natural 
 condition, but wishes to build upon or improve it, he must either 
 make an agreement with his neighbor, or dig his foundations so 
 deep, or take such other precautions, as to insure the stability of his 
 buildings or improvements whatever excavations the neighbor may 
 afterwards make upon his own land in the exercise of his right. 
 
 In 2 Rol. Ab. 564, it is stated that in Wilde v. Minsterley, in 15 
 Car. 1, it was decided in the King's Bench, after a verdict for the 
 plaintiff, that " if A. be seised in fee of copyhold land next adjoining 
 to the land of B., and A. erects a new house upon his copyhold land, 
 and some part of the house is erected upon the confines of his land 
 next adjoining to the land of B., and B. afterwards digs his land so 
 near to the foundation of A.'s house, but no part of A.'s land, that 
 by the foundation of the house and the house itself fall into the 
 pit , yel mi action lies by A. against B., because it was A.'s own fault 
 • he built his house so near the land of B., for he by his act can- 
 not hinder B. from making the best use of his own land that he can.
 
 II. 5-] EASEMENTS. 827 
 
 But it seems that a man who has land next adjoining to my land 
 cannot dig his land so near my land that thereby my land shall go 
 into his pit; and, therefore, if the action had been brought for this, 
 it would lie." 
 
 In the same court, in 15 Car. 11, Justices Twisden and Windham 
 said that it had been adjudged that, " If I, being seised of land, 
 lease forty feet thereof to A. to build a house thereon, and other 
 forty feet to B. to build a house, and one of them builds a house, 
 and then the other digs a cellar in his land, whereby the wall of the 
 first house adjoining falls, no action lies for that, because each one 
 may make the best advantage of his digging," " but it seemed to 
 them that the law is otherwise, if it was an ancient wall or house that 
 falls by such digging." Palmer v. Fleshees, 1 Sid. 167. In another 
 report, the corresponding statement is that " it was adjudged that 
 two having ground adjoining, the one built de novo, and the other in 
 his ground digged so near, that the other fell, and no remedy, the 
 house being new." Palmer v. Flessier, 1 Keb. 625. * * * 
 
 There are indeed two or three early cases, in which actions appear 
 to have been sustained for undermining houses by digging on adjoin- 
 ing land. Slingsby v. Barnard, 14 Jac. 1, 1 Rol. R. 430; Smith v. 
 Martin, 23 Car. n, 2 Saund. 400; Barwell v. A'ensey, 35 Car. 11, 3 
 Lev. 171; s. c. 1 Mod. Entr. 195. But in Slingsby v. Barnard, and 
 in Smith v. Martin, the objections made were not to the right to 
 maintain the action, but only to particulars in the form of the decla- 
 ration; and in Barwell v. Kensey the declaration, as construed by 
 the majority of the court, alleged not merely digging near the plain- 
 tiff's foundation, but digging that foundation itself. 
 
 In Tenant v. Goldwin, 2 Ld. Raym. 1089-1094, Lord Holt and Jus- 
 tice Powell are reported to have " held that a man cannot build so 
 near another man's house as to throw it down." But the only point 
 adjudged was the same as in Ball v. Nye y 99 Mass. 582, that a man 
 is bound, of common right, to keep a vault upon his own land in 
 repair, so that the filth shall not flow upon his neighbor's land, " for 
 he whose dirt it is must keep it that it may not trespass." s. c. 1 Salk. 
 360, 361; 6 Mod. 311; 1 Salk. 21; Holt, 500. And upon a compari- 
 son of the various reports it is evident that the digging so near 
 another's wall as to weaken it was not spoken of as giving a right of 
 action to the owner of the wall, but as limiting his liability for the 
 escape of filth caused by the new digging. 
 
 The latest and the most authoritative statement of the law of 
 England upon this point before the American Revolution is that of 
 Chief Baron Comyns, who, citing Rolle's Abridgment and Sider- 
 fin's Reports, ubi supra, says that an action upon the case lies for a
 
 828 INCORPOREAL INTERESTS IN LAND. [PT. IV. CH. IV. 
 
 nuisance, " if a man dig a pit in his land, so near that my land falls 
 into the pit," but does not lie, " if a man build an house, and makes 
 cellars upon his soil, whereby an house newly built in an adjoining 
 soil falls down." Com. Dig. Action upon the case for a Nuisance, 
 A. C. 
 
 In Thurston v. Hancock, 12 Mass. 220, which was decided in 1815, 
 and is the leading American case on this subject, the plaintiff in 
 1802 bought a parcel of land upon Beacon Hill in Boston, bounded 
 on the west by land of the town of Boston; and in 1804 built a brick 
 dwelling-house thereon, with its rear two feet from this boundary, 
 and its foundation fifteen feet below the ancient surface of the land. 
 The defendants, in 181 1, took a deed of the adjoining land from the 
 town, and began to dig and remove the earth therefrom, and, though 
 notified by the plaintiff that his house was endangered, continued to 
 do so to the depth of forty-five feet, and within six feet of the rear 
 of the plaintiff's house, and thereby caused part of the earth on the 
 surface of the plaintiff's land to fall away and slide upon the defend- 
 ant's land and rendered the foundations of the plaintiff's house 
 insecure, and the occupation thereof dangerous, so that he was 
 obliged to abandon it. 
 
 The court, after advisement, and upon a review of the earlier Eng- 
 lish authorities, held that the plaintiff could recover for the loss of 
 or injury to the soil merely, and not for the damage to the house; 
 and Chief Justice Parker, in delivering judgment, said: " It is a 
 common principle of the civil and of the common law, that the pro- 
 prietor of land, unless restrained by covenant or custom, has the 
 entire dominion, not only of the soil, but of the space above and 
 below the surface, to any extent he may choose to occupy it. The 
 law, founded upon principles of reason and common utility, has 
 admitted a qualification to this dominion, restricting the proprietor 
 so to use his own, as not to injure the property or impair any actual 
 existing rights of another. Sic utere tuo ut alienutn non /cedas." " But 
 this subjection of the use of a man's own property to the convenience 
 of his neighbor is founded upon a supposed pre-existing right in his 
 neighbor to have and enjoy the privilege which by such act is 
 impaired." 12 Mass. 224. " A man, in digging upon his own land, 
 is to have regard to the position of his neighbor's land, and the 
 probable consequences to his neighbor, if he digs too near his line; 
 and if he disturbs the natural state of the soil, he shall answer in 
 damages; but he is answerable only for the natural and necessary 
 1 onsequences of his act, and not for the value of a house put upon 
 Or near the line by his neighbor." "The plaintiff built his house 
 within two feet of the western line of the lot, knowing that the town,
 
 II. 5-] EASEMENTS. 829 
 
 or those who should hold under it, had a right to build equally near 
 to the line, or to dig down into the soil for any other lawful pur- 
 pose. He knew also the shape and nature of the ground, and that 
 it was impossible to dig there without causing excavations. He 
 built at his peril; for it was not possible for him, merely by building 
 upon his own ground, to deprive the other party of such use of his as 
 he should deem most advantageous. There was no right acquired 
 by his ten years' occupation, to keep his neighbor at a convenient 
 distance from him." "It is, in fact, damnum absque injuria." 12 
 Mass. 229. 
 
 Upon the facts of that case, it was questionable whether the acts 
 of the defendant would not have caused the falling away of the 
 plaintiff's land if no house had been built thereon; and yet the court 
 held the plaintiff not to be entitled to recover any damages for the 
 fall of his house, without regard to the question whether the weight 
 of the house did or did not contribute to the fall if his soil into the 
 pit digged by the defendant. No claim for like damages was made 
 in this commonwealth until more than forty years afterwards, when 
 the decision in Thurston v. Hancock was followed and confirmed. 
 Foley v. Wyeih, 2 Allen, 131. 
 
 In Foley v. IVyeth, the court, after stating that the right of support 
 from adjoining soil for land in its natural state stands on natural 
 justice, and is essential to the protection and enjoyment of property 
 in the soil, and is a right of property which passes with the soil 
 without any grant for the purpose, said: " It is a necessary conse- 
 quence from this principle, that for any injury to his soil, resulting 
 from the removal of the natural support to which it is entitled, by 
 means of excavation of an adjoining tract, the owner has a legal 
 remedy in an action at law against the party by whom the work has 
 been done and the mischief thereby occasioned. This does not 
 depend upon negligence or unskilfulness, but upon the violation of 
 a right of property which has been invaded and disturbed. This 
 unqualified rule is limited to injuries caused to the land itself, and 
 does not afford relief for damages by the same means to artificial 
 structures. For an injury to buildings, which is unavoidably inci- 
 dent to the depression or slide of the soil on which they stand, 
 caused by the excavation of a pit on adjoining land, an action can 
 only be maintained when a want of due care or skill, or positive neg- 
 ligence, has contributed to produce it." 2 Allen, 133. And it was 
 accordingly adjudged that, if the defendant in that case, by exca- 
 vating and carrying away earth on her own land, caused the plain- 
 tiff's land to fall and sink into the pit which she had dug, she was 
 liable for the injury to the soil of the plaintiff; but that, in the
 
 830 INCORPOREAL INTERESTS IN LAND. [PT. IV. Cll. IV. 
 
 absence of any proof of negligence in the execution of the work, the 
 jury could not take into consideration, as an element of damage for 
 which compensation could be recovered, the fact that the foundation 
 of the plaintiff's house had been made to crack and settle, although 
 the weight of his house did not contribute to the sliding or crumbling 
 away of the soil. * * * 
 
 Upon a question of this kind, affecting all the lands in the com- 
 monwealth, it would be unjustifiable and mischievous for the court 
 to change a rule of law which has been established and acted upon 
 here for sixty years. Even in England, it is held that for digging 
 upon neighboring land, and thereby causing the plaintiff's land to 
 sink and his building to fall, although the jury find that the land 
 would have sunk if there had been no building upon it, yet no action 
 will lie, if no appreciable damage is proved to the land without the 
 building. Smith v. Thackerah, L. R. 1 C. P. 564. 
 
 The weight of American authority is in accordance with the 
 decisions of this court. It has generally been considered that for an 
 excavation causing an injury to the soil in its natural state an action 
 would lie; but that, without proof of a right by grant or prescription 
 in the plaintiff, or of actual negligence on the part of the defendant, 
 no action would lie for an injury to buildings by excavating adjoin- 
 ing land not previously built upon. Panton v. Holland, 17 Johns. 
 92; Lasala v. Ho/brook, 4 Paige, 169; Hay v. Cohoes Co., 2 Comst. 
 159, 162; McGuire v. Grant, 1 Dutcher, 356; Richart v. Scott, 7 
 Watts, 460; Richardson v. Vermont Central Railroad, 25 Vt. 465; 
 Beard v. Murphy, 37 Vt. 99, 102; Shrieve v. Stokes, 8 B. Mon. 453; 
 Charless v. Rankin, 22 Mo. 566. 
 
 It is difficult to see how the owner of a house can acquire by pre- 
 scription a right to have it supported by the adjoining land, inasmuch 
 as he does nothing upon land has no use of that land, which can be 
 seen or known or interrupted or sued for by the owner thereof, and 
 therefore no assent of the latter can be presumed to the acquirement 
 of any right in his land by the former. The English cases are 
 founded on an analogy to the doctrine of ancient lights, which is not 
 in force in this country. Hide v. Thornborough, 2 Car. & K. 250, 
 255, and Stansell v. follard, there cited; Solomon v. Vintners' Co., 4 
 H & \. 585, 599, 602; Chasemore v. Richards, 7 H. L. Cas. 349, 385, 
 386; Greenleaf x . Francis, t8 Pick. 117, 122; Keats v. Hugo, 115 Mass. 
 204, 215; Richart v. Scott, 7 Watts, 460, 462; Napier v. Bulwinkle, 5 
 Rich. 311, 324. But this case does not require us to determine that 
 question, because there is no evidence that the structures and 
 improvements upon the plaintiff's land have been there for twenty 
 years.
 
 II. 5-] EASEMENTS. 831 
 
 Nor is it necessary to consider whether negligence on the part of 
 the defendant could enlarge the measure of his liability; because the 
 case stated does not find that he was negligent, nor set out any facts 
 from which actual negligence can be inferred. The cause of action 
 is that the plaintiff has an absolute right to have her soil stand in 
 its natural condition, and that any one who injures that right is a 
 wrongdoer, independently of any question of negligence. Foley v. 
 Wyeth, 2 Allen, 131, 133; Hay v. Cohoes Co., 2 Comst. 159, 162? 
 Richardson v. Vermont Central -Railroad, 25 Vt. 465, 471; Humphries 
 v. Brodgen, 12 Q. B. 739. 
 
 The fact that the defendant was not the owner of the adjoining 
 land affords him no exemption. It was never considered necessary, 
 in an action of this kind to allege that the defendant owned or 
 occupied the land on which the digging was done that injured the 
 plaintiff's soil. Smith v. Martin, 2 Saund. 400, and note; Nicklin 
 v. Williams, 10 Exch. 259. Even an agent of the owner of the 
 adjoining land would be liable for his own negligence and positive 
 wrongs; for his principal could not confer upon him any authority to 
 commit a tort upon the property or the rights of another. Bell v. Jos- 
 selyn, 3 Gray, 309; Story on Agency, § 311. And, upon the case 
 stated, the defendant appears not to have been an agent of the owner 
 of the land, but to have removed the soil therefrom for his own bene- 
 fit, by permission of Gillighan, who had a like agreement with and 
 license from the owner; and it is at least doubtful whether the owner 
 of the land could be held responsible for the defendant's acts. 
 Gayford v. Nicholls, 9 Exch. 702 ; Hilliard v. Richardson, 3 Gray, 349. 
 
 The case finds that the defendant ceased his work towards the end 
 of October, and left the bank in such a shape that by the effect of 
 rains and frost it was rendered insufficient to hold the soil of the 
 plaintiff in its natural condition, and began to give way at once, 
 although the plaintiff's soil was not actually disturbed till the month 
 of March following. The necessary inference is that by the opera- 
 tion of natural and ordinary causes upon the land as it was left by 
 the excavations of the defendant, and which he took no precaution 
 to guard against, part of the soil of the plaintiff's land slid and fell 
 off; and for the injury so caused to her soil this action may be main- 
 tained. But she cannot maintain an action for the injury to her 
 fences and shrubbery, because her natural right and her correspond- 
 ing remedy are confined to the land itself, and do not include build- 
 ings or other improvements thereon. * * * 
 
 Judgment for plaintiff.
 
 832 INCORPOREAL INTERESTS IN LAND. [PT. IV. CH. IV. 
 
 (2.) Subjacent Support. 
 
 MARVIN v. BREWSTER IRON MINING CO. 
 
 55 New York, 538. — 1874. 
 
 Folger, J. — The ultimate principles upon which the decision 
 of this case should rest, are not undetermined nor obscure. The 
 relative rights and duties of owners of superjacent lands, and of 
 subjacent minerals, have been much discussed and passed upon. 
 Then, too, the position of adjacent owners of land is an analogous 
 one, and the rules which have been laid down, as to them, and often 
 enforced, throw light upon the questions arising here. * * * 
 
 A reserve of minerals and mining rights, is construed as is an 
 actual grant thereof. It differs not, whether the right to mine is by 
 an exception from a deed of the surface, or by a grant of the mine 
 by the owner of the whole estate, therein reserving to himself the 
 surface. Shep. Touch. 100; Dand v. Kingscole, 6 M. & W. 174; 
 Williams v. B agnail, 15 Week. R. 272; see Wickham v. Hawker, 7 
 M. & W. 78; and comment thereon in Proud v. Bates, 34 L. J. 
 Chanc. — , 406; s. c. 5 Am. Law Reg. N. S. 171-174. A reservation 
 of minerals and mining rights from a grant of this estate, followed 
 by a grant to another of all that which was first reserved, vests in 
 the second grantee an estate as broad as if the entire estate had first 
 been granted to him, with a reservation of the surface. Arnold x. 
 Stevens, 24 Pick. 106. Though a reservation is to be construed most 
 strictly against the grantor, still there will be retained in him all 
 that it was the clear meaning and intention of the parties to reserve 
 from the conveyance. Harris v. Ryding, 5 M. & W. 60; per Parke, 
 B. p. 70. These observations are made necessary, by positions 
 taken and urged on the argument by the learned counsel for the 
 plaintiff. And here is a fit place to notice Hilton v. Ld. Granville, 
 5 Q. B., 48 E. C. L. R. 701, much relied upon by him, in that it held 
 that there cannot be reserved in a grant that which will deprive the 
 grantee of the enjoyment of the whole thing granted, and that a 
 clause to that effect must be rejected as absurd and repugnant, has 
 in that respect been from time to time much questioned, and finally 
 in effect overruled. Rowbotham v. Wilson, 8 H. of L. Cases, 348; 
 Duke of />. v. Wakefield, 1>. Rep. 4 H. of L. 377; and see Hext v. 
 Gill, supra, 700-716. * * * 
 
 The plaintiff acquired, as a right of property, that there should be 
 left of the minerals, in their place under the land, sufficient to 
 support the surface in its natural state. This was the extent of his 
 right to subjacent support, there being no buildings upon the land 
 when Parks conveyed to Downs, nor the erection of any, one of the
 
 II. 5- J EASEMENTS. 833 
 
 purposes in their contemplation. Cat. R. IV. Co. v. Sprot, supra. 
 The defendant lays stress upon the small consideration given for the 
 land. The right to support is without regard to the comparative 
 value of the strata. Humphries v. Brogden, 12 Q. B. 739. This 
 right to sufficient subjacent support is likened sometimes to that to 
 have lateral support to land. In that case, all which can be claimed 
 is, that the adjacent owner shall not so dig upon his land as 
 that of his neighbor shall fall into his pit. If the weight of the 
 buildings, of late erected by his neighbor on his land, causes it to 
 slide, when of its own weight it would not, there is no claim for 
 redress. Lasala v. Holbrook, 4 Paige, 169. Is it not the same rule, 
 that whatever an adjacent owner can do upon or in his own land, 
 confined within that, and necessary for the convenient and beneficial 
 enjoyment of it, which works no physical injury to his neighbor's 
 possession in its natural state, he may do without liability to his 
 neighbor, although it may work physical injury to a building lately 
 erected thereon by his neighbor? For in Humphries v. Brogden, supra, 
 the reason is given, that an owner cannot by putting an additional 
 weight upon his own land, and so increasing the lateral pressure 
 upon his neighbor's land, render unlawful any operation thereon 
 which before would have caused no damage. Is this exemption 
 from liability confined to a case of lateral pressure? If he may so dig 
 as that the building shall topple down, and not be liable so long as 
 that but for the building, the earth would not have fallen in; may he 
 not so blast in digging as that the building shall shake, crack and 
 crumble, without giving cause of action, so long as that the surface 
 of his neighbor's ground is not injured or disturbed, though it be 
 shaken? He is not bound to support the building, so long as he 
 affords a support sufficient for the soil without the building. He is 
 not bound to refrain from digging in his own land, so soon as he 
 comes near the limit of support for his neighbor's building, not an 
 ancient one. He is not bound to be circumspect in his means of 
 digging, so long as they do not affect badly his neighbor's land. Is 
 he bound to refrain from the use of the means which do not injure 
 his neighbor's land, for that they badly affect a modern house 
 thereon? In our judgment he is not. See Smith v. Thackerah, Law 
 Rep. 1 C. P. 564. Whatever it is necessary for him to do for the 
 profitable and beneficial enjoyment of his own possession, and which 
 he may do- with no effect to the adjacent surface in its natural state, 
 that he may do though it harm erections lately put thereon. As the 
 rights and relations of adjacent owners and those of superjacent and 
 subjacent owners are alike, so may the subjacent owner do beneath 
 the surface what the adjacent owner may do beside it. And where, as 
 
 LAW OF PROP. IN LAND — 53
 
 834 INCORPOREAL INTERESTS IN LAND. [PT. IV. CH. IV. 
 
 in Harris v. Ryding t supra, learned judges of the subjacent owner not 
 being entitled to let down the surface or injure the enjoyment of it, 
 they mean the surface in its natural state, and not with additions to 
 it in buildings not ancient. And see Partridge v. Scott, 3 M. & 
 W. 220. 
 
 c. 'Party-walls. 
 
 BROOKS v. CURTIS. 
 50 New York, 639. — 1872. 
 
 Rapallo, J. — The deed from Everard Peck to the plaintiff states 
 that the wall in controversy was, at the time of the conveyance, 
 being erected by Peck, as the west wall of a block of stores. The 
 centre line of the wall is, by the deed, made the easterly boundary 
 of the land conveyed, which includes the land on which the westerly 
 half of the wall stands. It appears that Peck's stores were after- 
 ward completed, and the plaintiff erected a building upon his own 
 lot, using the wall as a party-wall, and inserting in it the joists of 
 his building. Peck afterward conveyed to the defendant, who made 
 the addition to the height of the wall. 
 
 We think that the language of the deed and the acts of the parties 
 show that it was their intention that the wall should be a party-wall 
 for the common use of both lots. The deed states that Peck was 
 at the time erecting the wall, half of which was conveyed, and that 
 it was to be the west wall of his block. This implies that the wall 
 was not then completed, and that Peck was to have the right to 
 complete it and use it as the west wall of his block. If the deed is 
 to be treated as an absolute conveyance, free from any reservation, 
 easement or privilege in the co-owner of the wall, Peck would have 
 had no right to proceed to complete it, or, at least, that part which 
 was beyond his line, after the conveyance. It cannot be supposed 
 that any such was the intention of the parties. Subsequently to this 
 conveyance the wall had been used for more than twenty years as a 
 party-wall. 
 
 Although land covered by a party-wall remains the several prop- 
 erty of the owner of each half, yet the title of each owner is qualified 
 by the easement to which the other is entitled ; and an important 
 question in this case is whether such easement includes the right to 
 increase the height of the wall, provided such increase can be made 
 without detriment to the strength of the wall or to the property of 
 tin- adjacent owner. 
 
 This question, in the absence of statutory regulations upon the 

 
 II. 5-] EASEMENTS. 835 
 
 subject, does not seem to have been distinctly settled by authority; 
 but the fact appears in several of the cases relating to party-walls 
 that the height has been increased, and there is no intimation that 
 such increase was unlawful. Watt v. Hawkins, 5 Taunton, 20, was 
 an action of trespass. The plaintiff had added to the height of a 
 party-wall, and the defendant tore down the addition, for which 
 injury the plaintiff brought trespass. The only point decided was 
 that the parties were not tenants in common of the land, and there 
 fore the action of trespass could be maintained. In Campbell v. 
 Mesier, 4 Johns. Ch. 334, a party- wall, standing equally on two lots, 
 having become ruinous, the owner on one side, against the will and 
 in spite of the prohibition of the adjacent owner, pulled down the 
 wall and rebuilt it higher than it was originally. It was held that 
 the adjacent owner was bound to contribute to the expense of the 
 new wall, but not to the extra expense of making it higher than the 
 old. There is no intimation in the case that the increase of height 
 was wrongful. In Partridge v. Gilbert, 15 N. Y. 601, the new wall 
 built by the defendant was not only higher, but its foundations were 
 deeper, than the old wall which it replaced. The right to make 
 these additions was not, however, discussed in the case, and perhaps 
 there was no occasion to discuss it; the action being brought by the 
 tenant of the adjacent lot, whose goods were injured in making the 
 repair, and not by the owner. 
 
 In Eno v. Del Vecchio, 4 Duer, 53, it was held that the owner on 
 one side of a party-wall might, for the purpose of improving his own 
 premises, underpin the foundation of the wall and sink it deeper if 
 he could do so without injury to the building on the adjoining lot; 
 also, that he might increase, within the limits of his own lot, the 
 thickness, length or height of the wall, if he could do so without 
 injury to the building on the adjoining lot. Whether he could raise 
 the whole party-wall higher or whether any additional elevation 
 must be wholly within the limits of his own lot, the court expressly 
 declined to decide. 
 
 We think that the right of either of the adjacent owners to increase 
 the height of a party-wall, when it can be done without injury to 
 the adjoining building, and the wall is clearly of sufficient strength 
 to safely bear the addition, is necessarily included in the easement. 
 No adjudication adverse to that right has been referred to by counsel 
 nor found by us. The party making the addition does it at his peril; 
 and if injury results he is liable for all damages. He must insure 
 the safety of the operation. But when safe it should be allowed. 
 The wall is devoted to the purpose of being used for the common 
 benefit of both tenants. In Hendricks v. Stark, 37 N Y. 106, it is
 
 836 INCORPOREAL INTERESTS IN LAND. [PT. IV. CII. IV. 
 
 held that a party-wall is in no sense a legal encumbrance upon either 
 property; that the mutual easements of adjoining proprietors in such 
 walls are a mutual benefit to each, and not a burden, but a valuable 
 appurtenant which passes with the title to the property. This is 
 undoubtedly correct, provided each party is allowed to derive from 
 the wall all the benefit which it is capable of affording without detri- 
 ment to the other. But if, though of sufficient strength, it cannot 
 be used by either party in increasing the height of his building, it 
 may prove a serious injury to the property of one desiring to make 
 that improvement; an improvement which is very usual and often 
 very necessary in crowded cities. The fairer view, and the one 
 generally adopted in legislative provisions on the subject in this and 
 other countries, is to treat a party-wall as a structure for the com- 
 mon benefit and convenience of both of the tenements which it 
 separates, and to permit either party to make any use of it which 
 he may require, either by deepening the foundation or increasing 
 the height, so far as it can be done without injury to the other. 
 The party making the change, when not required for purposes of 
 repair, is absolutely responsible for any damage which it occasions 
 (Eno v. Del Vecchio, 6 Duer, 17); but in so far as he can use the wall 
 in the improvement of his own property, without injury to the wall 
 or the adjoining property, there is no good reason why he should 
 not be permitted to do so. 1 
 
 d. Easements in water. 
 
 GARWOOD v. N. Y. CENT. & HUD. R. R. R. CO. 
 
 83 New York, 400. — 1881. 
 
 [Reported herein at p. 116.] 
 
 Sheplev, J., in HEATH v. WILLIAMS. 
 
 25 Maine. 209. — 1S45. 
 
 [Reported herein at p. 120.] 
 
 CORNING v. TROY IRON & NAIL FACTORY. 
 
 40 New York, 191. — 1869. 
 [Reported herein at p. 121. ] 8 
 
 ' Division or " line " fences resemble " party walls " in some respects. Their 
 construction and maintenance are usually regulated by statute, however. For 
 the New York statutes, see " The Town Law," ^^ 100-108. — En. 
 
 ' See also Curtis v. Ayrault, supra, p. 126; Ocean Grove Ass'n. v. Asbury Park, 
 tupra, ]>. 130, Delhi v. Youinans, supra, p. 133. — Ed.
 
 II. 5-] EASEMENTS. 837 
 
 e. Rights to flow lands. 
 
 EATON v. B. C. &. M. R. R. 
 
 51 New Hampshire, 504. — 1872. 
 
 [Reported herein at p. 1.] 
 
 THE B. & M. HYDRAULIC CO. v. BUTLER. 
 
 91 Indiana, 134. — 1883. 
 
 [Reported herein at p. 141.] 
 
 f. Easements of light and air. 
 
 The Chancellor in ROBESON v. PITTENGER. 
 
 2 New Jersey Equity, 57. — 1838. 
 
 The object of this bill is to restrain the defendant from obstruct- 
 ing the light and air of a building belonging to the complainants. 
 When the bill was presented, I granted the injunction with much 
 reluctance, without notice; and I did so from the pressing character 
 of the case, as the defendant was actually at work erecting the very 
 obstruction complained of I am now furnished with the briefs of 
 the counsel of the respective parties, on a motion to dissolve the 
 injunction upon the case made by the bill, and shall consider the 
 same without prejudice, as if the propriety of the interference of 
 the court was now, for the first time, considered. I am not aware 
 that this question has ever been decided in New Jersey, and it has 
 caused me some anxiety to determine, not so much what views have 
 been taken by other judges and in other countries, of the question, 
 but what should be the course of decision in this State, and particu- 
 larly in a country under a rapidly increasing state of improvement. 
 It would seem unreasonable, that in those places where land is cheap, 
 and the country thinly settled, a party, after being permitted to 
 build his house and place his windows on the side adjoining the open 
 field of another man, and especially after so long a possession as to 
 presume a grant for that purpose, should have them obstructed by 
 the erection of a wall or another building, when perhaps a little 
 accommodation, by placing the new building a few feet further off, 
 might work no injury to anybody; and yet in populous cities, where 
 land is very valuable, and it is the constant practice to place build- 
 ings side by side, the enforcement of the same rule might work great 
 inconvenience and injustice. The difficulty, therefore, is to lay
 
 838 INCORPOREAL INTERESTS IN LAND. [PT. IV. CH. IV. 
 
 down one rule for all cases. Nor will it do to leave all parties to 
 their remedy at law. That would be shutting up the doors of a 
 court of equity, when the exercise of its legitimate powers is most 
 needed. Cases might arise where damages would be no adequate 
 compensation for the injury sustained, and the party unable to 
 respond in damages at all. 
 
 The cases in the English courts are numerous in which damages 
 at law have been recovered for obstructing lights, and where injunc- 
 tions have been issued to prevent such obstructions. The law is there 
 well settled, and of long standing. In 1 Levinz's Rep. 122, the case 
 of Palmer v. Fletcher, there is an early and important decision on 
 this subject. This was a case at law. A man built a house on his 
 own lands and then sold the house to one man, and the land adjoining 
 to another, who obstructed the windows of the house by piles of 
 timber. This house had been recently built, yet the actio;") was sus- 
 tained. The judges differed as to what would have been the result 
 had the man sold the vacant lot first, seeing the building had been 
 recently erected; but all agreed that if a stranger had owned the 
 adjoining lands, he might obstruct the lights of a newly erected 
 building, but not of an ancient building so that he has gained a right 
 in the lights by prescription. 
 
 In 1 Comyn's Digest, title, " Action on the Case for a Nuisance," 
 A., the cases are cited in which actions on the case for a nuisance 
 have been allowed. If a man erect a house or mill to the nuisance 
 of another, every occupier afterwards is subject to an action for the 
 nuisance. 
 
 In the case of Rosewell v. Pryor, 6 Modern, 116, the question was, 
 whether in a declaration for stopping the plaintiff's lights, it was 
 necessary to state the lights and messuage as being ancient, and it 
 was held not to be necessary. In that case, Holt, Chief Justice, 
 says: " If a man have a vacant piece of ground, and build there- 
 upon, and that house has very good lights, and he lets this house to 
 another, and after he builds upon a contiguous piece of ground, or 
 lets the ground contiguous to another, who builds thereupon to the 
 nuisance of the lights of the first house, the lessee of the first house 
 shall have an action upon the case against such builder, for the first 
 house was granted to him with all the easements and the lights then 
 belonging to it." 
 
 This general principle is also stated in 3 Bl. Com. 217, where it is 
 declared to be essential to the maintenance of the action, that the 
 windows be ancient. The English cases are uniform on this sub- 
 ject; and Chancellor Kent, in 3 Kent's Com. 445, declares in gen- 
 eral terms, that " according to the English law, the owner of a house
 
 II. 5-] EASEMENTS. 839 
 
 will be restrained by injunction, and he will be liable to an action 
 on the case, if he makes any erections or improvements, so as to 
 obstruct the ancient lights of an adjoining house." 
 
 In our own country, too, the same doctrines have been maintained; 
 and I do not perceive that Chancellor Kent, in his Commentaries 
 above referred to, denies anywhere that the same rules of law on 
 this subject apply in this country, except in a note, where he declares 
 that this common-law prescription does not reasonably or equitably 
 apply to buildings on narrow lots in the rapidly growing cities in this 
 country, and upon the ground that such was not the presumed 
 intention of the owners of such lots. From all he says, I infer that 
 he recognizes the general principles before stated as in force in this 
 country, but exempts the case of city lots, from the necessity and 
 reason of the thing, as necessary for their advancement and con- 
 tinued improvement. 
 
 The case of Story v. Odin, in 12 Mass. 157, is a very clear and plain 
 decision in our own courts. The property was situated in the town 
 of Boston. The building was purchased of the town in 1795, and 
 stood adjoining other lands of the town, with lights looking out 
 directly upon this vacant land. In 1812, the town sold this vacant 
 lot, and the purchaser built directly adjoining the plaintiff's build- 
 ing, and obstructed his lights. The court decided, that as the pur- 
 chaser of the first building bought without reserving to the grantors 
 any right to build on the adjoining ground so as to interfere with 
 his lights, they could not, nor could their grantees, build so as to 
 interfere with this right. * * * 
 
 From a careful examination of the cases, and the principles on 
 which they are decided, I have come to the conclusion that the same 
 rules which have been established in the English courts, and in other 
 states of the union, upon this subject, apply with the same force to 
 us, and that there is nothing in our condition which can prevent 
 their wholesome application; that, as a general rule, in a case of 
 ancient lights, where they have existed for upwards of twenty years 
 undisturbed, the owner of the adjoining lot has no right to obstruct 
 those lights, and particularly so, if the adjoining lot was owned by 
 the man who built the house at the time, and subsequently sold by 
 him; and that, whether this court will interfere by injunction, or 
 leave the party to establish his right at law, must depend on the 
 particular circumstances of each case. * * * 
 
 I am very clear the injunction ought not to be dissolved, and that 
 upon all the authorities cited. The case is a very strong one. The 
 builder of this house owned both lots at the time of erecting the 
 building. The lights are ancient, having continued unmolested for
 
 840 INCORPOREAL INTERESTS IN LAND. ( I'T. [V. CH. IV. 
 
 thirty-five years. Lot No. 10, on which the house stands, passed 
 out of the hands of the heirs at law of the original owner first; and 
 there is no pressing necessity for this interference with the estab- 
 lished rights of the complainants. 
 
 HUBBARD v. TOWN. 
 33 Vermont, 295. — 1860. 
 
 Pierpoint, J. — This action is brought to recover the damage 
 claimed to have been sustained by the plaintiff in consequence of 
 the defendant's obstructing his lights. It appears from the case 
 that the building, which has been owned and occupied by the plain- 
 tiff and his tenants for more than twenty-five years prior to the acts 
 complained of, stands upon the line between his premises and the 
 premises of the defendant, and that the defendant has owned and 
 occupied his premises during the aforesaid period; that the windows 
 in the plaintiff's building opened out toward the premises of the 
 defendant, admitting light from that direction, and that they have 
 so remained without obstruction and without question on the part 
 of the defendant, for the period of twenty-five years or more; that 
 in 1859 the defendant erected a building on his own premises imme- 
 diately adjoining that of the plaintiff, so as to exclude the light from 
 two of the plaintiff's windows. 
 
 The only question involved in this case is, whether the plaintiff 
 by such long and uninterrupted use of his windows, and the light 
 passing through them, has thereby acquired the right so to continue 
 his windows and thus to have the light pass through them, so that 
 any act of the defendant which shall materially obstruct such light 
 will make him a wrongdoer, and liable for any damage to the 
 defendant that may ensue therefrom. 
 
 The rule seems now, to be well settled in England, that such long 
 and uninterrupted use of light gives the right to continue its use, 
 and to insist upon its remaining unobstructed by the adjoining pro- 
 prietor for all time. The courts place this upon the same ground 
 as rights of way, and other rights acquired in and over the premises 
 of another by long and undisturbed use; presuming from the long 
 exercise of the privilege by the one, and an acquiescence therein by 
 the other, that the right had its origin in a grant. 
 
 While the general doctrine has been universally adopted in this 
 country, its application to cases of this kind has not been generally 
 recognized, and in many of the St ites has been expressly denied. 
 
 ( )ur statute of limitations cannot be brought in aid of the plaintiff's
 
 II. 5-] EASEMENTS. 841 
 
 claim. The statute in terms only deprives the aggrieved party of 
 the right of action after the limited period from the time the cause 
 of action accrues, and although our courts have held that the exer- 
 cise of the right by one party, and an acquiescence therein by the 
 other, for such period, vests in the party so exercising it an absolute 
 right, still in determining the question whether such right has in 
 fact become an absolute one, the time that the one has so exercised 
 it is to be computed from the period when a cause of action therefor 
 first accrued to the other, which he has omitted to enforce; so that 
 no right can be lost or acquired by virtue of the statute where there 
 has been no act done by the one for which the law gives a remedy 
 by action to the other; and it is conceded in the case that the 
 defendant had no right of action against the plaintiff for any act of 
 his in erecting his building and opening and continuing his windows 
 on the side adjoining to and overlooking the defendant's premises. 
 
 This reason would seem to imply with equal force against the plain- 
 tiff's right to recover on the ground that a grant will be presumed 
 from lapse of time to sustain his claim. 
 
 The principle upon which a grant is presumed is, that in no other 
 way can the acts of the parties be rationally accounted for. Such 
 presumption is required to account for the exercise of the right by 
 the one, and the acquiescence therein by the other, for so long a 
 period. 
 
 The right must be exercised adversely or under a claim of a right 
 so to exercise it by the one, and it must be acquiesced in by the other. 
 
 This of itself presupposes that the exercise of the right by the 
 one, without a grant, is a violation of some right of the other; other- 
 wise it could not be adverse, within the meaning of the rule; neither 
 could the other acquiesce, for that presupposes a legal right to object 
 and resist. 
 
 If, then, there is no violation of the rights of another, no pre- 
 sumption of a grant by such other arises; there is no occasion for it. 
 There is no right exercised or claimed by the one, that belongs to 
 the other, or which he could grant, if he should attempt it. 
 
 How, then, can this doctrine of presumption apply to a case like 
 the present? The erection of the building by the plaintiff on the 
 line between him and the defendant was no violation of any right of 
 the defendant; he could not complain of or prevent it, and his 
 assent or dissent could in no manner affect the transaction. The 
 legal right to do the act was perfect in the plaintiff. His right to 
 erect his building on the division line is not controverted; the wis- 
 dom of the act is more questionable. He might have made his walls 
 solid, thus entirely excluding the light from that direction ; he chose
 
 842 INCORPOREAL INTERESTS IN LAND. [PT. IV. CII. IV. 
 
 to leave apertures therein, thereby allowing the light to remain 
 unaffected to that extent; but how can it be said that by excluding 
 the greater part, he acquires any better right to the remainder, than 
 he would have had to the whole of it if he had not excluded any? 
 He has not done any act which has had any effect to control or 
 influence the light, except to exclude it. He did not draw or cause 
 the light to pass in upon his premises in any other than its natural 
 manner; it remained upon and over the defendant's premises as it 
 had always been. As there was no interference with the rights of 
 the defendant, it is difficult to see upon what the presumption of a 
 grant can be based. Lapse of time and the presumption arising 
 therefrom are resorted to only to justify in one that which would 
 otherwise be a usurpation of the rights of another. 
 
 If a man can acquire, by use, a right to an uninterrupted enjoy- 
 ment of light under circumstances like the present, why not acquire 
 a right to a like enjoyment of the prospect from the same windows, 
 or to a free access of the air to the outside of his building to prevent 
 decay, and many other rights of a similar and no more ethereal 
 character? 
 
 The result of which would be, if allowed, an utter destruction of 
 the value of the adjoining land for building purposes. Windows are 
 often of more importance for the prospect they afford than for the 
 light they admit. The light may be obtained from other directions, 
 the prospect cannot. A pleasant prospect from the windows of a 
 dwelling always contributes more or less to the enjoyment of the 
 occupants, and often enters largely into its pecuniary estimate. 
 But to admit that a mere enjoyment of such prospect for fifteen 
 years gives him the right to insist that it shall remain uninterrupted 
 for all future time, would be to recognize a principle at variance 
 with well established rules, and one that could not be tolerated in 
 this country. 
 
 No such right can be acquired by use, for the same reason that its 
 exercise by one is no infringement of the rights of another, for 
 which the law gives an action. Le Blanc, J., in Chandler v. Thomp- 
 son, 3 Camp. 82, says: ' That although an action for opening a 
 window to disturb the plaintiff's privacy was to be read of in the 
 books, he l*a d never known such an action to be maintained, and he 
 had heard it laid down by Eyre, Ch. J., that such an action did 
 not lie." 
 
 We think the English courts, in applying the doctrine of the pre- 
 sumption of grants from long use and acquiescence to this class of 
 cases, clearly departed from the ancient common-law rule as laid 
 down in Berry v. Pope, Cro. Eliz. [18, and the error, as it seems to
 
 II. 5-j EASEMENTS. 843 
 
 us, consists in placing cases like the present upon the same footing 
 and making them subject to the same rules that govern another 
 class of cases, to which they really have no analogy. In Lewis v. 
 Price, 2 Saund. 175a., Wilmot, J., said: 'That when a house 
 had been built forty years, and has had lights at the end of it, if the 
 owner of the adjoining ground builds against them so as to obstruct 
 them, an action lies; and this is founded on the same reason as 
 where they have been immemorial, for this is long enough to induce 
 a presumption that there was originally some agreement between the 
 parties and . . . that twenty year.5 was sufficient to give a man 
 a title in ejectment on which he may recover the house itself, and he 
 saw no reason why it should not be sufficient to entitle him to an 
 easement belonging to the house." As we have already seen, no 
 presumption of an agreement arises, as none was necessary to justify 
 the act. The man who occupies his own house for twenty years has 
 no better title to it at the end of that time than he had in the outset. 
 Does he acquire any greater right to the light by the occupation 
 than to the house? Clearly not; having usurped no right, he can 
 acquire none by lapse of time. The error in the reasoning is *n say- 
 ing that because the man who takes possession of his neighbor's house 
 and holds it adversely for twenty years (his neighbor acquiescing 
 therein) acquires a title to it, therefore, the man who opens windows 
 in his own house that in no way interfere with the rights of his neigh- 
 bor, and of which such neighbor has no legal right to complain, and 
 keeps them open for twenty years, thereby acquires a right to insist 
 that no act shall be done by his neighbor on his own land that in 
 any respect interferes with or obstructs the light to those windows. 
 In the one case there is an infringement of the rights of another for 
 which the law gives a remedy by action; in the other there is not. 
 This constitutes a radical difference between the two cases, and that, 
 too, in respect to the very point upon which the whole doctrine of 
 presumption in cases like those under consideration depends. 
 
 It might be urged with much force that a man who conveys a 
 house with the privileges, etc., would not have a right to make an 
 erection on his own land adjoining that would shut out the light 
 from the windows in the house so conveyed, and it may be said that 
 he who has occupied another's house for such a length of time and 
 under such circumstances that a grant will be presumed, stands 
 upon the same footing as an ordinary grantee. However that may 
 be, this case involves no such question. In those cases the question 
 turns upon the fact that the title to the premises was derived by 
 deed, actual or presumed, from the party who seeks to deprive his 
 grantee of the enjoyment of the right he has conveyed. The right
 
 844 INCORPOREAL INTERESTS IN LAND. [PT. IV. CH. IV. 
 
 does not depend upon the lapse of time, but is as perfect in the 
 grantee the moment the deed is executed as it can ever be. Here 
 the title to the premises of the plaintiff was never in the defendant, 
 but has been in the plaintiff through the whole period. 
 
 This question was fully considered in New York, in the case of 
 Packer v. Poole, 19 Wendell, 309. Bronson, J., says: " Upon what 
 principle courts in England have applied the same rule of presump- 
 tion to two classes of cases so essentially different in character, I 
 have been unable to discover. If one commit a daily trespass upon 
 the land of another, under a claim of right to pass over, or feed his 
 cattle upon it, or divert the water from his mill, or throw it back 
 upon his land or machinery, in these and the like cases long-con- 
 tinued acquiescence affords strong presumption of right. But in the 
 case of lights there is no adverse user, nor, indeed, any use whatever 
 of another's property, and no foundation is laid for indulging any 
 presumption against the rightful owner." And again he says: 
 
 ' There is no principle, I think, upon which the modern English 
 
 doctrine of ancient lights can be supported." 
 
 The same doctrine was held in Pierre v. Fernald, 26 Maine, 436, 
 and in Napier v. Bulwinkle, 5 Richardson (S. C), 312, in both of 
 which cases the subject was fully discussed. 
 
 We see no reason growing out of the nature or necessities of this 
 class of cases that require us to extend the doctrine of the presump- 
 tion of grants to them; but, on the other hand, the establishment of 
 a rule that would require a man to erect a building or wall that he 
 did not need on his own premises, for the sole purpose of excluding 
 the light from his neighbor's windows, would lead to continual strife 
 and bitterness of feeling between neighbors, and result in great 
 mischief. The judgment of the County Court is affirmed. 1 
 
 6. Public (quasi) Easements — Highways. 4 
 
 a. Pig/its of the public. 
 
 Parker, J., in NUDD v. HOBBS. 
 
 17 New Hampshire, 524. — 1845. 
 
 The first special plea of the defendant sets forth a right of way in 
 all the inhabitants of the town of Hampton across the plaintiff's 
 
 1 As to easements of light, air, etc., in a street in favor of an abutting owner 
 when the iee is in the municipality, see White v. Manhattan Ry. Co., p. 795, 
 !//■>, 1 ; Story v. Elevated A'. A'. Co., 90 N. Y. 122; Kane v. A 7 . )'. Elevated A'. A'. 
 Co., 125 N. Y. 104. — Ed. 
 
 * In some 1 ases the public own the fee in the highway. For special ease- 
 ments of abutting owners in such case, see note 1, supra. — En.
 
 II. 6.] EASEMENTS. 845 
 
 close; and we are of opinion that this is a sufficient plea for the 
 matters attempted to be justified by it. 7 N. H. 236, Per ley v. 
 Langley, and authorities there cited. It is not necessary to show an 
 open public highway. There may be a way across the land of an 
 individual, over and along which all persons have a right to pass, 
 with a right in the owner of the soil to keep up gates and bars 
 across it, for the protection of his field. So there may be other 
 limitations or restrictions upon a public easement, — as that it shall 
 be used by persons on foot only, or by those, and persons riding on 
 horseback. And in such cases a plea in justification must qualify 
 the right accordingly. Chitty on PI. n 16, note y, 9th Am. ed. 
 
 A right of way also may exist in particular persons holding certain 
 estates. There can, therefore, be no objection to a way limited to 
 the inhabitants of a particular territory, and Chitty, in the page just 
 cited, note w., refers to Lutw. 1507, for a precedent of a right of 
 way by the inhabitants of a town. It is not necessary in pleading to 
 set out the abuttals of such a way, or to state its termini. 1 H. Bl. 
 351; 8 T. R. 608; 2 Chitty PI. 1116. 
 
 MAKEPEACE v. WORDEN. 
 
 1 New Hampshire, 16. — 1816. 
 
 Per Curiam. — In highways laid out through the lands of indi- 
 viduals in pursuance of statutes, the public has only an easement, a 
 right of passage; the soil and freehold remain in the individual, 
 whose lands have been taken for that purpose. Perley v. Chandler, 
 6 Mass. 454. Towns whose duty it is to make roads and keep them 
 in repair have a right to cut trees growing in highways so far as is 
 necessary to the performance of that duty. It is therefore clear, that 
 the defendants are entitled to judgment on the first count in this 
 case. Whether towns have a right to use trees thus cut, in the con- 
 struction of the road, is a question not necessary to be settled in 
 this case. The plaintiff complains, not that his trees have been thus 
 used, but that they have been converted to the private use of the 
 defendants. This complaint in our opinion is well founded and the 
 plaintiff is entitled to judgment on his second count for the value of 
 the wood. 
 
 Judgment for the plaintiff.
 
 846 INCORPOREAL INTERESTS IN LAND. [PT. IV. CH. IV. 
 
 b. Rights of the owner of the fee. 
 
 CODMAN v. EVANS. 
 
 5 Allen (Mass.), 308. — 1862. 
 
 Chapman, J. — The parties are owners of adjoining lands, and the 
 defendant's house stands on or near the line. The construction of 
 his deed was settled in the former case between the same parties. 
 1 Allen, 443. He has erected a bay-window which extends beyond 
 the line, over the plaintiff's land, and maintains it there. The justi- 
 fication which he sets up in this action is, that there is a highway 
 over the plaintiff's land, extending to the line, and that his structure 
 does not interfere with the use of the way. But this furnishes no 
 legal defense. Nothing is better settled than that a highway leaves 
 the title of the owner unaffected as to everything except the right 
 of the public to make and repair it and use it as a way, and for some 
 other public purposes, such as drainage and the laying of aqueducts; 
 and that an adjoining proprietor has no more right to erect and 
 maintain a permanent structure over the land than if no highway was 
 there. A mere easement has passed to the public, leaving the fee in 
 the owner. An adjoining proprietor may have occasion to use the 
 way in connection with his lands, in a different manner from other 
 people. In O' Linda v. Lothrop, 21 Pick. 292, it was held that he 
 might swing his gate or door over the way, suffer his horses or car- 
 riages to stand upon it, lay building materials upon it designed to be 
 used on his land, and throw earth upon it as he removed the earth 
 from his cellar. But these are all temporary acts, and are connected 
 with the use of the way. He may spread earth upon it to make it 
 more level and his access to it from his premises more convenient; 
 but this is merely fitting it more perfectly to be used as a way. In 
 Underwood v. Carney, 1 Cush. 285, the uses of the way which were 
 held to be legal were of the same character as those in O 'Linda v. 
 Lothrop. They did not constitute permanent occupation; nor do 
 those cases justify any occupation except for a reasonable time, and 
 as connected with its use as a way. Here the occupation has been 
 permanent, and having no connection with the use of the way. 
 
 The evidence of the alleged custom was rightly rejected. If there 
 be a custom in Boston to erect bay-windows, balconies and other 
 structures over the streets, provided they do not interfere with the 
 rights of the public, by proprietors who own the soil of the street, 
 sueh a 1 ustom has no application to the case. If it be a custom to 
 ere< I them over the land of other people, such a custom is illegal; 
 and the defendant cannot justify himself in occupying his neighbor's
 
 III.] COMMON OR PROFITS A PRENDRE. 847 
 
 property as a part of his dwelling-house on the ground that such 
 trespasses are customary in Boston. Homer v. Dorr, 10 Mass. 26; 
 Waters v. Lilley, 4 Pick 145. In some of our ancient highways the 
 fee has always been in the town. Probably this is the case as to 
 many of the streets of Boston. It does not follow from the decision 
 of this case that the public could maintain an action like the present. 
 There are also many cases where land adjoining the highway has 
 been so conveyed that, by our established construction of deeds, the 
 fee of the land from the side line to the center of the highway 
 remains in the grantor, though both parties actually supposed it was 
 conveyed. It is now too late to discuss the question whether it 
 would have been better to hold that all deeds bounding on the high- 
 way conveyed all the rights of the grantor as far as the middle of the 
 way, as deeds bounding on streams extend to the thread. But 
 in such cases, where there are no covenants such as are contained in 
 the deed of Amory to Apthorp respecting the way, and defining the 
 rights of the parties (see 1 Allen, 444), and where the grantor has 
 no other land adjoining the highway to be affected by building a 
 structure over the way, and can have no possible use of his fee so 
 long as the highway exists, it does not follow from the decision in 
 this case that he can maintain an action for the erection of such a 
 structure. For in the present case the plaintiff not only has a right 
 to have the whole space occupied by the street open, from the soil 
 upwards, for the free admission of light and air, and the prospect 
 unobstructed from every point, but it is a right of appreciable value 
 in reference to himself and his grantees, who are proprietors of the 
 other land adjoining the way. If the defendant may obstruct the 
 light and air and prospect by means of a bay-window, he may by a 
 much larger structure, and thereby greatly injure the property 
 bounding on the street. 
 
 These views make it unnecessary to decide the questions argued 
 as to the actual existence of the highway; because, if it does exist, 
 that fact does not constitute a defense to the action 
 
 III. Common or profits & prendre. 1 
 
 VAN RENSSELAER v. RADCLIFF. 
 
 10 Wendell (N. Y.), 639. — 1833. 
 
 [Reported herein at p. 475.] 
 
 1 These rights were anciently common of pasture, piscary, turbary and 
 estovers. They are rarely to be found at present. — Ed.
 
 848 
 
 INCORPOREAL INTERESTS IN LAND. [PT. IV. CH. IV. 
 
 IV. Rents. 
 
 V. Franchises. 
 
 HUFF v. McCAULEY. 
 
 53 Pennsylvania State, 206. — 18S6. 
 {Reported herein at p. 76.] 
 
 CALDWELL v. FULTON. 
 
 31 Pennsylvania State, 475. — 1858. 
 
 {Reported herein at p. 102.] 
 
 VAN RENSSELAER v. HAYS. 
 19 New York, 6S. — 1859. 
 {Reported herein at p. 81.] 
 
 INGERSOLL v. SERGEANT. 
 
 1 Wharton (Pa.), 336. — 1836. 
 
 {Reported herein at p. S6.] 
 
 MARSHALL v. MOSELEY. 
 21 New York. 280. — 1860. 
 {Reported herein at p. 412.] 
 
 JOHNS v. JOHNS. 
 
 1 Ohio State, 350. — 1853. 
 
 {Reported herein at p. 14.] 
 
 SYRACUSE WATER CO. v. CITY OF SYRACUSE. 
 
 116 New York, 167. — 1889, 
 
 Suit to restrain the city of Syracuse from granting to the Central 
 City Water-works Co. the right to place pipes, etc., in the city of 
 Syracuse, with a view to supply it with water. A second case, 
 argued herewith, was brought to restrain that company and the city 
 from proceeding under a resolution which the common council had 
 passed. Judgment for the defendants. Plaintiffs appeal.
 
 V.] FRANCHISES. 849 
 
 Bradley, J. — The company evidently was created solely for the 
 purpose of supplying water to the city for the use of it and its inhabi- 
 tants; and, so far as appears, the city then had no means for such 
 supply other than such as had been possessed by Teall and his asso- 
 ciates, and such as it may have been contemplated the plaintiff would 
 provide. It must be assumed that the Legislature was advised of the 
 situation, and that the franchise was granted for all the purposes 
 within the provisions of the charter. The question now under con- 
 sideration is the legislative intent. And for the purpose of ascer- 
 taining the powers and privileges which were granted to the plaintiff, 
 other than those incidental to the powers expressly given and neces- 
 sary to carry them into effect, reference can be had only to the terms 
 of the grant. 2 Kent's Com. 298; 1 R. S. 600, § 3; Halstead v. 
 Mayor, etc., 3 N. Y. 433. 
 
 The construction and effect to be given to the contract between 
 the State and the grantee of a franchise, have been the subject of 
 much discussion, and the view of Chancellor Kent at one time was 
 that, although " the creation of the franchise be not declared exclu- 
 sive, yet it is necessarily implied in the grant, as in the case of the 
 grant of a ferry, bridge or turnpike or railroad, that the government 
 will not either directly or indirectly interfere with it so as to destroy 
 or materially impair its value. All grants of franchises ought to be 
 so construed as to give them due effect by excluding all contiguous 
 competition which would be injurious and operate fraudulently upon 
 the grant." 3 Kent's Com. 469; Newburgh Turnpike Co. v. Afiller, 
 5 Johns. Ch. 101. 
 
 Whatever support that rule may seemingly have in reason or 
 propriety, it is not now available to that extent for the beneficial 
 protection of the grantee in the exercise of his franchise, but, on the 
 contrary, public .grants are to be so strictly construed as to operate 
 as a surrender by them of the sovereignty no farther than is expressly 
 declared by the language employed for the purposes of their creation. 
 
 The grantee takes nothing in that respect by inference. Such is 
 deemed the legal intent of the State in imparting to its citizens or 
 corporations powers and privileges of public character. And, there- 
 fore, except so far as they are by the terms of the grant made exclu- 
 sive, the power is reserved to grant and permit the exercise of com- 
 peting and rival powers and privileges, however injurious they may 
 be, to those taken by the prior grantee. 
 
 The important leading case to that effect in this country was 
 Charles River Bridge v. Warren Bridge, 11 Peters, 420, where was 
 sustained the grant of the right to erect a bridge over the Charles 
 river, near one which had been constructed over the same river pur- 
 
 LAW OF PROP. IN LAND — 54
 
 850 INCORPOREAL INTERESTS IN LAND. [PT. IV. CH. IV. 
 
 suant to prior grant from the State of Massachusetts, although it 
 produced a competition practically destructive of the value to the 
 grantee of such prior franchise. And this was put upon the ground, 
 resulting from the declared rule of construction of such grants, that 
 they should be strictly construed as against the grantee, and that 
 nothing should be taken by inference or presumption to enlarge 
 their import. The court held that the State had relinquished its 
 sovereignty so far only as the purpose to do so was expressed in the 
 prior grant, and, therefore, as it had not by it made the franchise 
 exclusive in that locality, or denied to itself the power to grant similar 
 privileges to others, there was no violation of the legal rights of the 
 prior grantee produced by the subsequent one complained of. 
 Although that case was determined by a divided court, and it does 
 not very clearly appear, by the report of it, upon precisely what 
 ground all the members of the majority placed their concurrence in 
 the result, the doctrine there announced by Mr. Chief Justice Taney 
 has since then been treated by that court as established. Lehigh 
 Water Co. v. Easton, 121 U. S. 391. It has also been adopted and 
 is the settled rule in this State. Mohawk Bridge Co. v. Utica 6° S. 
 R. R. Co., 6 Paige, 554; Osivego Falls Bridge Co. v. Fish, 1 Barb. Ch. 
 547; Thompson v. N. Y. 6° H. R. R. Co., 3 Sand. Ch. 625; Auburn, 
 etc., Plank Road Co. v. Douglass, 9 N. Y. 444, 452; Fort Plain Bridge 
 Co. v. Smith, 30 Id. 44, 61; Power v. Village of Athens, 99 Id. 592; 
 Dermott v. State, Id. 107. * * * 
 
 The inquiry which presents more important considerations has 
 relation to the franchise granted to the plaintiff, and represented by 
 its charter. By it the plaintiff was given corporate existence and 
 vested with powers and privileges to enable it to exercise its func- 
 tions. This incorporeal hereditament was its property, and whatever 
 other or corporeal property it had or acquired, having relation to its 
 legitimate powers, and for the purposes of their exercise, became, 
 and while applicable to such purpose was inseparably united with 
 the franchise. The corporate rights and the corporeal means of 
 their exercise, therefore, constitute, as it were, a single body con- 
 sisting of property corporeal and incorporeal. Both the power and 
 the means of exercising it are essentially united, and upon such union 
 is dependent the enjoyment, as well as the practical value of the 
 franchise. Gue v. Tidt Water Canal Co., 24 How. U. S. 257; People 
 v. O'Brien, n 1 N. Y. 2. 
 
 When its charter was granted it was in contemplation that the 
 plaintiff would be called upon to assume its corporate duties and 
 exercise its powers in furnishing water to the city of Syracuse, and 
 that for such purpose it would take and acquire the means of doing
 
 V.] FRANCHISES. 85 1 
 
 so. And in that behalf the company did take, by conveyance, cer- 
 tain property, then in use for that service, and thereafter acquired 
 and applied other property to such use, and for nearly forty years 
 has continued to furnish water for the city and its inhabitants. So 
 far as appears, until the year 1885, no means of supply have been 
 sought for otherwise than through the plaintiff. Then, pursuant to 
 the general act authorizing it, Laws 1880, chap. 85, The Central City 
 Water-Works Company was incorporated, and the objects of its crea- 
 tion, as expressed in its articles of incorporation, were " To supply 
 the city of Syracuse, N. Y., and adjacent villages, with pure and 
 wholesome water for domestic use, for fire protection and other pub- 
 lic purposes, and for the purpose of accumulating, storing, selling, 
 furnishing and supplying water in said city and adjacent villages for 
 domestic, manufacturing, municipal and agricultural purposes." 
 Shortly thereafter the Common Council of the city adopted a resolu- 
 tion to the effect that The Central City Water-Works Company, sub- 
 ject to the conditions therein mentioned, were authorized to 
 construct, maintain, own and operate water-works in the city of 
 Syracuse, for the purpose of supplying it with pure and wholesome 
 water, etc., specifying the sources from which the water should be 
 taken, how its quality should be approved, the pressure which it 
 should have at the hydrants, the number, character and generally 
 the distribution of the hydrants to be furnished; and that on the 
 completion of the works, which was to be accomplished within three 
 years after acceptance by it of the proposition, the city agreed to rent 
 from the company, for the period of twenty years, the right to use 
 the water to be supplied by it at five hundred and twenty hydrants, 
 and such additional number as might be ordered, and to pay therefor 
 at the rate of fifty dollars per hydrant annually. The right was 
 reserved to rescind the grant on failure of the company to comply 
 with its terms; also the right after five years to acquire the works 
 and property of the company in the manner there mentioned. This 
 agreement and proposition, and all the terms expressed in the 
 resolution, were formally accepted by the defendant company in 
 April, 1885. The purpose of these actions was to prevent the con- 
 templated agreement between the defendants, and, as made between 
 them, from being carried into effect, upon the ground and for the 
 alleged reason that the plaintiff had the exclusive right or franchise 
 to supply the city and its inhabitants with water. And although the 
 charter of the plaintiff does not, in terms, declare such power to be 
 exclusive or deny to the State the right to create a rival franchise in 
 another, it is contended that the grant to the plaintiff, in its nature, 
 necessarily gave to the plaintiff the exclusive right to supply the city
 
 8$2 INCORPOREAL INTERESTS IN LAND. [PT. IV. CII. IV. 
 
 with water, because a franchise to do so can embrace no less than 
 the whole city and the entire supply of water within its boundaries, 
 and, therefore, the proposed grant to the defendant is an invasion 
 of the plaintiff's franchise. 
 
 It may be assumed that what is embraced within the terms of the 
 grant to the plaintiff is exclusive in such sense that it cannot be 
 covered by grant to another. That is to say, a grant from the State 
 to a company to construct and operate a bridge, ferry or telegraph, 
 gives to it the exclusive right to operate such ferry, bridge or tele- 
 graph, and no right can be given or taken to occupy the same space 
 as the one so constructed or operated under the grant. The prop- 
 erty in the company, to that extent and for such purpose exclusively, 
 belongs to it, but a similar franchise may not infringe such right 
 although it may have the effect to impair its operative value. In 
 such case that would be the incidental consequence of the lawful 
 competition and not an invasion of the prior grant. Lehigh Water 
 Company s Appeal, 102 Penn. St 515. By reference to the plain- 
 tiff's charter, it will be observed that the provisions directly bearing 
 upon the subject of furnishing water are that, " for the purpose of 
 supplying the said city of Syracuse with pure and wholesome water, 
 said company may purchase, etc., real estate necessary for the pur- 
 pose." § 8. "And said company shall, when requested, furnish 
 water to the Common Council of the city of Syracuse for extinguish- 
 ing fires and other purposes." § 16. 
 
 After careful consideration of the able and forcible argument of 
 the plaintiff's counsel on this subject, we are unable, in view of the 
 governing rule of construction in such cases, to adopt its reasoning 
 to the effect that the language or nature of the grant is such as to 
 cut off all competition in furnishing water to the city and its inhabi- 
 tants, and to vest in the plaintiff the exclusive franchise in that 
 respect. 
 
 The effect of rival means for the supply of water to the city upon 
 the value of the plaintiff's franchise, is not properly the subject of 
 consideration upon this inquiry, unless it bear upon the question of 
 construction of its charter, for which purpose it does not seem 
 important The plaintiff's structures belong to it conclusively, and 
 it is its exclusive right to take water from its reservoirs, convey it 
 through its mains and pipes and to use its apparatus for the distri- 
 bution and supply of water to the city and its inhabitants. The fran- 
 chise of the plaintiff and all its property remain subject to its 
 control and management. By force of the grant to it, the plaintiff 
 took and has the right to maintain its structures, the privilege of 
 supplying all the water the city or its inhabitants may take from it,
 
 V.] FRANCHISES. S5 3 
 
 but not the right to supply them with all the water they may be 
 permitted to use. It may be that the demand upon it for supply 
 will be lessened by the addition of other means which may be pro- 
 vided to bring water into the city. 
 
 The supply embraced within the franchise of the plaintiff did not, 
 by the terms of the grant or by necessary implication, shut out all 
 other means of obtaining supply there. And, in view of the demand 
 of the rule of construction before referred to, such exclusive right 
 in the grant of a public franchise cannot rest upon inference, pre- 
 sumption or doubtful construction. Chenango Bridge Co. v. Bi/ig- 
 hamton Bridge Co., 27 N. Y. 93; 3 Wall. 75. It would hardly be 
 claimed that a grant to a ferry company of the franchise to supply 
 the means of travel and transportation across the East river, 
 between New York and Brooklyn, would confer the exclusive right 
 on such company to control such transportation, by ferry, on that 
 river between the two cities, although it would have the exclusive 
 right to operate its boats and enter its slips. Such exclusive right 
 would necessarily result from the nature of the grant as vested by 
 it, because the property and means provided for the exercise of the 
 franchise belong to the grantee, and can be occupied or used by no 
 other party.
 
 CHAPTER V. 
 Equitable Estates and Interests in Land. 1 
 
 JAQUES v. TRUSTEES OF M. E. CHURCH. 
 
 17 Johnson (N. Y.), 548. — 1820. 
 \Reported herein at p. 93.] 
 
 Kennedy, J., in PULLEN v. RIANHARD. 
 
 1 Wharton (Pa.), 514. — 1S36. 
 {Reported herein at p. 95.] 
 
 'Uses Before the Statute Of Uses. —"Our early jurists regarded the 
 legal estate in fee simple, and the conterminous use, as being two separate 
 things, commonly found together, and prima facie presumed to be united in the 
 legal tenant; but capable of separation, and having definite characteristics 
 when separated. When such separation took place, the use conferred the right 
 both to take the profits of the lands, and also to call upon the person having the 
 legal estate to make such conveyances thereof as the person having the use 
 should think fit. * * * Regarded as a descendible entity, the descent of the 
 use followed the descent of the thing of which it was the use. So that the use 
 of lands which were subject to no peculiar local custom, held for an interest 
 analogous to a common-law fee simple, descended to the heir general [of the 
 cestui que use] * * * The person entitled to the use (cestui que use) might 
 alienate the use by conveyance inter vivos. So also he might devise the use 
 before the Statute of Wills, although the use of lands which were not them- 
 selves devisable." Challis' Law ol Real Property (2d ed), pp. 351-2. Such use 
 of lands might be a {quasi) fee, or for life, or for years. The cestui que use hav 
 ing, in equity, the ri^ht to the possession and full control of the lands, a use 
 was certainly an " equitable estate." Of course, at law, the cestui que use in 
 possession was regarded as no more than the tenant at will of the holder of the 
 legal title. 
 
 Uses Under the Statute of Uses. — In 1535 (27 Hen. VIII., c. 10, see 
 
 Bolles' Important Eng. Statules, p. 32), was passed the Statute of Uses, the 
 
 purpose of which was 10 convert the use into a legal estate and make it fully 
 
 subject to the law governing such estates. Had this statute fully brought 
 
 about thai result we should probably have heard no more of " equitable 
 
 ■ " For the operation and effect of this statute in conveyancing, see 
 
 undei " Title." The New York Statute of Uses will be found in £^ 72 
 
 • il Pro] rt) Law. 
 
 [854]
 
 IT. IV. CH. VI] EQUITABLE ESTATES AND INTERESTS IN LAND. 855 
 
 The Modern "Trusts." — The uses which survive the statute, as equitable 
 rights or interests, are now called " trusts." The following are the more 
 important: 
 
 (1) Active Trusts. — The statute was held not to execute the use when the 
 legal holder of the land had duties to perform with reference thereto, or for the 
 be neficia r y -, 'which required that he should retain the possession or control 
 thereof. The interest of the beneficiary in these " active trusts " is rather an 
 equitable chose in action than an " estate." See X. V. R. P. I... ,'.' 7'', 77 
 for trusts of this kind permitted in New York. See also pp. 583-604, supra, for 
 "spendthrift trusts." 
 
 (2) Chattel Interests Limited to Uses. — " Th^t^rm^sdsed^jused-iiLxiejcribing its 
 [the Statute of Uses'] operation, means invested with the legal possession for an 
 estate of freehold, excluding possession for a term of years or a chattel inter- 
 est. Therefore, a use declared or raised upon a term of years is not executed by 
 t he st atute and remains cognizable in equity only." 1 Leake, Law of Property 
 in Land, 118. _ A gift the n to A ^ for ten years jo the use of B. does not give B. 
 the ]egal interest, but only an " equitable estate for years." But see N. Y. R. 
 P. L., § 72. 
 
 (3) A Use upon a Use. — The courts have decided that the statute does not 
 execute a use limited upon a use; that is to say, upon a feoffment to A. and his 
 heirs to the use of B. and his heirs, to the use of, or in trust for C, the statute 
 executes" the use in B. vesting him with a legal title, but is then exhausted and 
 the use limited to C. becomes an equitable estate if the trust was passive; an 
 equitable chose in action if the trust was active. But see N. Y. R. P. L., § 72. 
 
 (4) Trusts for the Separate Use of a Married Woman. — These are held not to 
 be executed by the statute and remain " equitable estates " unless, of course 
 they are in the form of active trusts. See Pullen v. Rianhard, p. 95, supra. 
 
 (5) Trusts Created by Operation of Law. — These are (a) resulting trusts, as in 
 cases where the grantor disposes of the legal title only, where the express object 
 of the trust fails in whole or in part, and where a conveyance is taken in the 
 name of another than the one paying the consideration (see N. Y. R. P. L., § 74); 
 (/>). constructive trusts, where a title is acquired by fraud and a court of equity, 
 converts the wrongdoer into a trustee for the one defrauded. (See Hopkins on 
 Real Property, pp. 265 and 269.) In these cases the statute does not execute 
 the use, and the interest of the beneficiary may in some jurisdictions still be 
 an "equitable estate." — Ed,
 
 CHAPTER VI. 
 Future Estates and Interests in Land. 
 
 I. Kinds of future estates, the characteristics of each and the mode 
 of their creation. 
 
 i. Reversions; Interests and Possibilities Analogous Thereto. 
 
 a. Reversions.* 
 
 BATES v. SHRAEDER. 
 
 13 Johnson (N. Y.), 260. — 1816. 
 [Reported herein at p. 460] 
 
 1 -'An estate in reversion is the residue of an estate left in the grantor, to 
 commence in possession after the determination of some particular estate 
 granted out by him." 2 Bl. Com. 175. See also N. Y. R. P. L., § 29, 
 "A reversion is the residue of an estate left in the grantor or his heirs, or in the 
 heirs of a testator, commencing in possession on the determination of a particu- 
 lar estate granted or devised." " If there be a gift, in tail, the reversion of the 
 fee is, without any special reservation, vested in the donor by act of law; and 
 so also the reversion after an estate for life, years, or at will, continues in the 
 lessor. * * * A reversion is never, therefore, created by deed or writing, 
 but arises from construction of law." 2 Bl. Com. 175. Bates v. Shraeder, 
 supra, p. 460. Since the creation of an " estate " for years or at will leaves the 
 lessor still " seised," his interest is not a true " reversion." It seems, how- 
 ever, to have been called by that name ever since those " estates " passed over 
 from mere contract rights into interests in the land. 
 
 Reversions are always vested rights. In Floyd v. Carow, S8 N. Y. 560, occurs 
 the following language: " The estates devised to the unborn issue of the life 
 tenants were contingent remainders in fee, depending upon a double contin- 
 gency, viz.: the birth of issue and their survivorship. There was left in the 
 testator a contingent reversion in fee, expectant upon the determination of the 
 life estates, and the failure of issue of the life tenants. * * * The life ten- 
 ants died, after the death of the testator, without issue. Upon their death, the 
 contingent reversion of the testator in the lands devised to them and their 
 issue was changed into an absolute fee, which, not having been specifically 
 devised, descended to the plaintiff as heir-at-law, unless it passed to the 
 appointees of the testator's wife under the sixth clause of the will." See also 
 Chaplin's Suspension of the Power of Alienation, $ 129. It is submitted that the 
 condition here is subsequent as to the reversion and not precedent and that the 
 reversion is vested. See Gray's Rule- Against Perpetuities, §§ 11 and 113, 
 
 [856]
 
 I. I.] KINDS OF FUTURE ESTATES: REVERSIONS. 857 
 
 b. Equitable reversions. 
 
 LORING v. ELIOT. 
 
 16 Gray (Mass.), 5^8. — 1S60. 
 
 Hoar, J. — The construction of the deed of trust made by Elizabeth 
 Fleet Eliot 1 to her father was settled by this court in the case of Hil- 
 dreth v. Eliot, 8 Pick. 293, so far as it was necessary to determine 
 the questions which that case presented. It was there held, and we 
 have no doubt, correctly, that the trustee took the entire legal estate, 
 and that the equitable estate of Mrs. Hildreth was only for life, so 
 that her children, if she should leave any at her decease, would take 
 a remainder as purchasers. The grant was to the trustee and his 
 heirs forever. It was in trust to sell the whole or any part and apply 
 the proceeds to her support as she should judge necessary; and the 
 estate of the trustee must be co-extensive with the trust. 
 
 The only question which remains to be considered is whether any 
 equitable estate was created in Mrs. Hildreth by force of the pro- 
 vision that, in case of her death leaving no children, the trustee 
 should convey the estate to her heirs-at-law, and this must depend 
 upon the consideration whether the words " heirs-at-law " in this 
 conveyance are to be construed as words of limitation or of purchase. 
 
 In Shelley s Case. 1 Co. 103, the rule was stated, " when the ancestor 
 by any gift or conveyance takes an estate of freehold, and in the 
 same gift or conveyance an estate is limited either mediately or 
 immediately to his heirs in fee or in tail, that always in such cases 
 ' the heirs ' are words of limitation of the estate, and not words of 
 purchase. 1 ' This rule was abolished by the St. of 1791, c 60, § 3, 
 as to wills; but it remained in force as to deeds until the Rev. Sts. 
 c. 59, § 9, terminated its application to deeds as well as wills. As 
 this deed was executed in 181 7, the rule in She/ley's Case was there- 
 fore in force, and is to be regarded in its construction. 
 
 The equitable estate of Mrs. Hildreth was, from the time of her 
 marriage, an estate for life, with a contingent remainder in fee to 
 her children, in case she should leave any at her decease; and a 
 farther limitation, which, if made to any person by name, would have 
 been a contingent remainder, collateral to the first remainder in fee, 
 and therefore good in law. 4 Kent's Com. (6th ed.) 200; 2 Doug. 
 
 Reversions may arise by the creation of a less estate out of a fee of any quality. 
 01 out of an estate for life. The residue of a term of years remaining in one 
 who has given a sub-lease is also termed a " reversion." — Ed. 
 
 1 Miss Eliot married Hildreth. The deed in question was a marriage settle- 
 ment. — Ed.
 
 858 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CII. VI. 
 
 505, note, and cases there cited. But as the second limitation is to 
 her heirs-at-law, it seems to fall precisely within the rule in Shelley s 
 Case, to wit, that the ancestor taking an estate for life, and in the 
 same conveyance an estate being limited mediately (that is to say, 
 with an estate interposed between the two) to the heirs, this 
 remainder shall attach in the ancestor, and shall not be in abeyance. 
 2 Rol. Abr. 417; Remainder, H. pi. 3. And by an application of the 
 same principle, a conveyance in fee, with a limitation of an ultimate 
 use to the heirs of the grantor, is construed as retaining a reversion 
 in him; " for the ancestor during his life beareth in his body (in 
 judgment of law) all his heirs." " And if the limitation had been 
 to the use of himself for life, and after to the use of another in tail, 
 and after to the use of his own right heirs, the reversion of the fee 
 had been in him, because the use of the fee continued ever in him." 
 Co. Lit. 22 b. 
 
 Trusts are subject to the same rules of descent, and are deemed 
 capable of the same limitations, as legal estates. 4 Kent Com. 302. 
 As was said by Lord Mansfield in Burgess v. Wheate, 1 W. Bl. 160, 
 "whatever would be the rule of law, if it was a legal estate, is 
 applied in equity to a trust estate." Parker v. Converse, 5 Gray, 
 339; New hall v. Wheeler, 7 Mass. 189. 
 
 But a distinction has prevailed to some extent in regard to the 
 construction of trust estates, especially as to those which are execu- 
 tory, and to those created by marriage settlements; they are to be 
 construed with a much greater deference to the manifest intention, 
 to be deduced from the whole instrument of conveyance, than in 
 construing the like limitations in legal estates. 1 Fearne Cont. 
 Rem. (10th ed.) 90; Neves v. Scott, 9 How. 196. It is therefore 
 proper to inquire, whether there is anything in the objects of this 
 deed of trust, which would lead to the conclusion that it was intended 
 to alter the usual rule of construction, and to use the word " heirs " 
 as a word of purchase. 
 
 The recital preceding the grant to the trustee states that " whereas 
 she, the said Elizabeth Fleet Eliot, is desirous of securing the said 
 , both real and personal, in the event of her marriage, to ner 
 use and benefit; and for this purpose it hath been agreed that 
 all the estate and property aforesaid shall be granted " to a trustee, 
 " to be held in trust for the separate and sole use and benefit of her, 
 the said Elizabeth, ~\n6 her heirs (notwithstanding any such cover- 
 ture), upon the terms and conditions, for the uses, intents and pur- 
 , under the limitations, and for and during the time, as 
 ! > reinafter expre I " The estate Tor life is limited until the 
 marriage to the sole use and behoof of the said Elizabeth and her
 
 I. I.] KINDS OF FUTURE ESTATES: REVERSIONS. 859 
 
 heirs, and then " to the sole use and separate benefit of her, the said 
 Elizabeth, without being liable to the debts, incumbrances or control 
 of any husband she may have during the existence and continuance 
 of said trust." The income, with such portion of the principal as 
 the trustee shall judge necessary for her convenience and support, 
 is to be paid to her, or to such persons as she shall in writing, with- 
 out the signature or interference of any husband, appoint. At her 
 death, the trustee is to convey and transfer all that remains to her 
 children, if she shall leave any, to them and their heirs and assigns 
 forever; and in case she should die without issue, to her heirs-at-law. 
 
 It would seem to be apparent from these clauses in the deed, that 
 its whole purpose was to secure the estate to the separate use of the 
 wife during her life, free from any control of her husband; and to 
 secure what should remain of it to her children, if she should leave 
 any. So far from anything in the deed showing a purpose to give a 
 different meaning to the word " heirs " from its usual legal import 
 as a word of limitation, it is noticeable that in the covenants of the 
 trustee none is inserted for any disposition of the estate beyond the 
 remainder to the children. It has been suggested ai the argument 
 that this omission was accidental; but it is an accident which would 
 not have been likely to occur if the purpose had been to make an 
 express provision for collateral relatives. By limiting the estate in 
 the first instance to the wife for life, with a contingent remainder in 
 fee to the children, if she should leave any, the children would take, 
 if at all, as purchasers; and, therefore, although the husband is 
 entitled to curtesy in his wife's equitable estate of inheritance, the 
 condition of an estate by the curtesy, that there should be issue of 
 the marriage which could inherit the estate, would not exist. 
 Roberts v. Dixwell, 1 Atk. 607; 1 Fearne Corn. Rem. 90; 1 Cruise 
 Dig. tit. 5, c. 1, § 22; Barker v. Barker, 2 Sim. 249. As far, there- 
 fore, as the protection of the estate of the wife and of the children 
 against the control of the husband or any incumbrance arising from 
 the coverture, was the object, that object was secured. 
 
 We are, therefore, of opinion that Mrs. Hildreth had an equitable 
 reversion, which she could lawfully devise, and that the claimants 
 under her will are entitled to a conveyance from the trustee. 
 
 Decree accordingly.
 
 86o FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 c. Possibilities analogous to reversions. 
 
 (i.) The Feudal Escheat. 
 
 (a.) On failure of heirs to a fee. 1 
 
 (5.) On the dissolution of a corporation seised of real estate. 
 
 Holman, J., in STATE BANK OF INDIANA v. STATE OF 
 
 INDIANA. 
 
 i Blackford (Ind.), 267. — 1823. 
 
 The president and directors of the corporation become the agents 
 of the stockholder, and if they violate the conditions on which he 
 enjoys this privilege [the corporate franchise], his privilege is imme- 
 diately subject to forfeiture by this act of his agents. Nor will the 
 regard which the Constitution has for private property, secure such 
 property from annihilation by a dissolution of the corporation. So 
 that we see nothing in the Constitution to prevent the seizure of 
 those franchises, let the effect upon private property be what it may. 
 And there can be no doubt but that this judgment so far as it 
 authorizes a seizure of the franchises into the hands and custody of 
 the State, is warranted by law. When it appears that the liberty has 
 been once granted, and is forfeited by misuser or nonuser, the judg- 
 ment shall be that it be seised into the King's hands. Year-book, 
 15 Ed. 4, cited in 2 Kyd on Cor. 407. And such appears to be the 
 law at present. Thus far everything appears to be regular. But 
 when we proceed to that part of the judgment that authorizes a 
 seizure into the hands of the State of all the goods and chattels, 
 rights, credits and effects, together with all and singular the lands, 
 tenements and hereditaments of the corporation, we are compelled 
 to pause and minutely examine the ground on which this part of the 
 judgment has been founded. * * * 
 
 The most of the cases to be found in the books against corpora- 
 tions are where the corporations have been created for the purposes 
 of government, and calculated for perpetuity, and where the prop- 
 erty of the corporation, whether real or personal, has formed a very 
 inconsiderable feature in the case. Of course, the effect of the 
 
 1 The feudal escheat in these cases was to the grantor — the creator of the fee 
 in question. Since the statute quia emptores all conveyances in fee are theoreti- 
 cally transfers of a fee already in existence and not the creation of a new fee, 
 and the escheat is to the grantor's lord. Where tenure is abolished there can 
 be n 1 te< hnti al escheat, but there is unsually a statutory escheat, on failure of 
 heirs, to the State. See N. Y. State Const., art. I., § 10. — Ed.
 
 I. i.] KINDS OF FUTURE ESTATES: REVERSIONS. 86l 
 
 judgment on the property of corporations has been but seldom a 
 question, and is much less explained than the effect of the judgment 
 on the franchises. There is a tedious labyrinth of cases through 
 which we have to travel on this subject, and many of the landmarks 
 are so dim and uncertain that we are frequently at a loss to know 
 whether we are on safe and tenable ground. It is certain, however, 
 that the dissolution of a corporation is effected by a seizure of its 
 franchises, although the franchises themselves are not thereby 
 destroyed, for they exist in the hands of the State, and may be after- 
 wards granted to the same or other individuals, in the same manner 
 in which they were originally granted. But the existence of the 
 corporation is terminated. Its being is so completely lost that it 
 can have no power over, nor connection with, anything in existence; 
 of course, it can no longer be considered as the owner or possessor 
 of lands or goods, rights or credits. But it does not follow that 
 those lands and goods, rights and credits, necessarily fall into the 
 hands of the State, much less that they are proper objects to be 
 included in the terms of the judgment. There are but two grounds 
 on which it can be contended the corporate effects fall into the 
 hands of the State: ist, as a forfeiture for abusing the franchises; 
 or 2d, for the want of an owner by the dissolution of the corporation. 
 When we examine the first of these grounds, we find nothing in the 
 books to support an idea that the abuse of corporate franchises 
 occasions a forfeiture of lands or goods, rights or credits, or, in 
 fact, occasions any other forfeiture but the franchises themselves. 
 The consequence of a breach of the implied condition on which their 
 liberties were granted, was not that they should forfeit their prop- 
 erty or possessions if they abused their franchises, but only that 
 they should forfeit the franchises. That which comes out of the 
 hands of the King is the proper subject of forfeiture; the King, by 
 the seizure, resuming what originally flowed from his bounty. 
 Authorities leading to this conclusion are numerous. See the cases 
 cited in 2 Bac. 32, and in The King v. Amery, 2 T. R. 515. For the 
 forfeiture is the same for nonuser, when no property has been held 
 or rights exercised, as for misuser or abuser, after the possession of 
 much property and the exercise of extensive rights and credits; and 
 the judgment is the same in both cases. Consequently, the judg- 
 ment could not direct a seizure of the corporate possessions, as a 
 forfeiture for the violation of the charter. Nor is the second ground 
 — that the property falls to the State for the want of an owner, on 
 the dissolution of the corporation — more tenable as a foundation on 
 which to sustain this judgment. For the ownership of the cor- 
 poration does not cease until its dissolution. And whether it is dis-
 
 S6? future estates and interests in land. [PT. IV. CH. VI. 
 
 solved by the judgment of seizure, or not until the State has execution 
 on that judgment, is not here very material. For if the corporation 
 is dissolved by the judgment, the judgment must be regularly 
 entered, and have its full effect before the dissolution takes place; 
 and it is not till then that the property can be said to be without 
 an owner. The loss of the property to the corporation is a conse- 
 quence of the judgment; and it is a contradiction of the first princi- 
 ples of reason — a complete reversal of effect and cause — to make 
 such loss of property a part of the judgment. That which cannot 
 exist until after the judgment, can never be the subject-matter on 
 which the judgment is given. But the better opinion seems to be, 
 that the corporation is not dissolved by the judgment of seizure, but 
 that it exists until the franchises are seized by the execution on that 
 judgment. See 2 Kyd on Cor. 409, 410, and the authorities there 
 cited. Consequently, the last shadow of a support for this judg- 
 ment, on this ground, must vanish. 
 
 We have thus far examined the judgment which directs a seizure 
 of the goods and chattels, rights and credits, lands and tenements, 
 of the corporation, on the assumed position that they will necessarily 
 fall to the State on the dissolution of the corporation. We shall 
 now inquire into the correctness of this position. In order to eluci- 
 date the subject, we shall examine it in detail; and in the 1st place 
 inquire, what becomes of the lands and tenements — 2d, what 
 becomes of the goods and chattels — and 3d, what becomes of the 
 rights and credits, of the corporation; and we shall find that each 
 of these three items is governed by different principles. 1st. As to 
 the lands and tenements. — " When a corporation is dissolved," says 
 Sir William Blackstone, " the lands and tenements revert to the per- 
 son or his heirs who granted them to the corporation; for the law 
 doth annex a condition to every such grant, that if the corporation 
 be dissolved, the grantor shall have the lands again. The grant is 
 only during the life of the corporation, which may endure forever; 
 but when that life is determined by the dissolution of the body 
 politic, the grantor takes it back by reversion, as in the case of every 
 other grant for life." B. Com. 484. This is the doctrine advanced 
 by Lord Coke. Co. Litt. 13 b. See also, 2 Kyd on Cor. 516; 2 Bac. 
 32; 2 Cruise, 493; and Colchester v. Seaber, 3 Burr. 1866. We see but 
 little in the books that contradicts or questions those authorities, and 
 the cases that look a different way, maintain that the lands would 
 escheat. 2 Bac. 32. If cither of those principles be correct, we 
 fed warranted in determining that the corporate lands and tene- 
 ments cannot by seised into the hands of the State, and certainly not 
 in the manner contemplated by this judgment. 2d. As to the goods
 
 I. i.] KINDS OF FUTURE ESTATES: REVERSIONS. 863 
 
 and chattels. — On this subject the books are almost silent. In the 
 argument of Colchester v. Seaber it is said by Sir Fletcher Norton, 
 on the authority of 1 Ro. Ab. 816, that the goods and chattels gc to 
 the crown. An English writer, who has collected together most of 
 the cases on corporations, concludes his remarks on the effect of a 
 dissolution in these words: " What becomes of the personal estate 
 is, perhaps, not decided; but probably it vests in the crown." 
 2 Kyd on Cor. 516. We do not feel under the necessity of resolv- 
 ing any doubts which may rest on the subject; for if the law were 
 conclusive, that the goods and chattels in this case would vest in the 
 State on the dissolution of the corporation, yet we have already seen 
 that this would not be as a forfeiture, but because they were with- 
 out an owner, and that the claim of the State could not exist until 
 after judgment; consequently it is impossible to include them in the 
 terms of the judgment. 3d. As to the rights and credits of the cor- 
 poration. — These, as applying to debts, etc., due to the corporation 
 are supposed to be of considerable amount, and have formed a 
 principal feature in every view of this case. But the importance of 
 the case, arising from the amount in controversy, cannot affect the 
 principles by which it is governed; and when those principles are 
 fixed, they must be declared, let the consequence to individuals or 
 the community be what it may. That the debts are necessarily lost 
 to the corporation naturally follows from the principles we have 
 examined. For when dissolved they have no existence, and can 
 have no claim to, nor control over, anything whatever. They not 
 only die, but leave no representative behind them. This, in every 
 respect, is the case with aggregate corporations. Sole corporations 
 depend, in this respect, upon principles somewhat different; but 
 with them we have no concern. But although the debts fall out of 
 the lifeless hands of the corporation, at the same time with their 
 real and personal estate, yet when thus out of their hands, they are 
 very different in their natures from the real and personal estate. 
 Lands and goods have a necessary existence, although they may be 
 without an owner in being or in expectancy. They continue in 
 being, and may be made the subject of possession by occupancy. 
 But this is not the case with respect to debts. They have no neces- 
 sary existence, and are so conclusively personal, that they cannot 
 exist without an obligor and obligee in being, or in expectancy. 
 And on the death of the obligor or obligee, without the possibility of 
 a representative, the obligation ceases. Such appears to be the 
 case on the dissolution of a corporation aggregate. Blackstone 
 says, " the debts of a corporation, either to or from it, are totally
 
 864 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 extinguished by its dissolution; so that the members thereof cannot 
 recover, or be charged with them, in their natural capacities. 1 Bl. 
 Com. 484. 2 Kyd on Cor. 516, uses the same language. 2 Bac. t> 2 , 
 advances nearly the same doctrine, on the authority of Lev. 237; 
 Owen, 73; and 2 And. 107. And this doctrine is either directly or 
 indirectly supported in a variety of cases. See the before-mentioned 
 case of Colchester v. Seaber. Also Rex v. Pasmore, 3 T. R. 199; The 
 Mayor, etc., of Scarborough v. Butler, 3 Lev. 237; 4 Com. Dig. 273. 
 If this doctrine be correct, and we find it uncontradicted, the seizure 
 of the rights and credits of the corporation is impossible in the 
 nature of things; because their existence ceases as the claim of the 
 State commences. But even if they could be seised into the hands 
 of the State they would be unavailing. The debts due to the cor- 
 poration could not, on any common-law principle, be collected by 
 the State, or its agent; there being no privity of contract, either in 
 fact or law, between the State and the debtor to the corporation. 
 It is true, that when the powers of the corporation have lain dor- 
 mant for many years, and have afterwards been revived by a new 
 charter, they have been considered capable of collecting debts 
 formerly due to them. This was the case in Colchester v. Seaber. 
 And even when the name of the corporation has been changed by 
 letters patent, they have collected debts due them by their former 
 name. This was done in The Mayor, etc., of Scarborough v. Butler. 
 But these cases were decided on the principle that the corporation 
 that sued was, virtually and substantially, the same body that made 
 the contract, and to whom the obligation was properly due. But 
 such is not the case with the State. It has no connection with the 
 obligor or the obligation, and cannot recover the debt by suit. Nor 
 does the act of Assembly, authorizing the collection of the corpora- 
 tion debts by commissioners to be appointed for that purpose, make 
 any alteration in the case. This act was not intended to make a 
 new law to regulate those debts or to alter the principles that gov- 
 erned the corporation contracts; but seems founded on the suppo- 
 sition that the debts would become due to the State by the seizure 
 of the corporate franchises, and therefor? make provision for hav- 
 ing them collected by commissioners. There is nothing in the act 
 < ah ulated to give those debts a continued existence after the disso- 
 lution of the corporation. The act only presumes they would by 
 law have such an existence, and therefore makes a disposition of 
 them. The debts must, therefore, be considered, on common-law 
 principles, unaffected by the act; and therefore subject to extin- 
 guishment by a dissolution of the corporation.
 
 I. i.] KINDS OF FUTURE ESTATES : REMAINDERS. 865 
 
 Thus, in no view of the case, can that part of the judgment which 
 directs a seizure, into the hands of the State, of the goods and 
 chattels, rights, credits, and effects, lands, tenements, and heredita- 
 ments of the corporation, be supported ' 
 
 Rapallo, J., in HEATH v. BARMORE. 
 50 New York, 302, (505). — 1872. 
 
 In so far as the plaintiff's right to recover in this action is sought 
 to be sustained, on the ground that at common law real estate held 
 by a corporation at the time of its dissolution reverts to the grantor, 
 it cannot be supported for two reasons: First, because the plank- 
 road company has not been dissolved, and secondly, because the f 
 rule of law invoked by the plaintiff does not prevail in this State in 
 respect to stock corporations. Under the provisions of 1 R. L. 248, 
 and iR.S. 600, §§ 9 and 10, upon the dissolution of a corporation, the 
 directors or managers at that time become trustees of its property, 
 unless some other custodian is appointed, for the purpose of paying 
 the debts of the corporation and dividing its property among its 
 stockholders; and these provisions apply as well to the real as to 
 the personal property of corporations. Otven, Receiver, v. Smith, 31 
 Barb. 641; 2 Kent Com. 307 and 308; notes 371 and 372 of n ed. ; 
 Angell and Ames on Corporations, § 799, a, 5th ed. ; 46 Barb. 365. 
 Consequently, where lands are conveyed absolutely to a corporation 
 having stockholders, no reversion or possibility of a reverter 
 remains in the grantor. 
 
 The conveyances to the plank-road company in this case appear 
 to have been absolute conveyances — no condition or limitation of f 
 
 the estate seems to have been contained in them, and they therefore 
 passed the whole estate of the grantor. 2 R. S., 748, § 1. 
 
 
 (2.) Feudal Forfeitures. 
 
 (a.) For denying tenure. 
 
 (b.) For felony. 
 
 1 See the dicta in Nicoll v. R. R. Co., p. 527, supra. See also Wentworth v. Payne, 
 74 N. Y. 196 (200). This supposed rule that land undisposed of by a corporation 
 returns to the grantor when the corporation is dissolved is usually regarded as 
 a part of the feudal doctrine of escheats. For a discussion of the origin and 
 validity of the rule, see Gray's Rule Against Perpetuities, §§ 44-51. — Ed. 
 
 LAW OF PROP. IN LAND — 55
 
 866 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CII. VI. 
 
 (3.) The Possibility of Reverter in Case of a Fee upon Special Limitation. 
 LEONARD v. BURR. 
 18 New York, 96. — 1858. 
 {Reported herein at p. 521.] 
 
 Allen, J., in FIRST UNIVERSALIST SOCIETY v. BOLAND. 
 
 155 Massachusetts, 171. — 1892. 
 {Reported herein at p. 525.] 
 
 (4.) The Contingent Right of Re-entry in Case There Should be a Breach 
 of a Condition Subsequent. 1 
 
 NICOLL v. NEW YORK AND ERIE R. R. CO. 
 
 12 New York, 121. — 1854. 
 {Reported herein at p. 527.] 
 
 UPINGTON v. CORRIGAN. 
 
 151 New York, 143. — 1896, 
 [Reported herein at p. 533.] 
 
 2. Remainders. 2 
 
 a. Vested remainders. 
 
 GREEN v. HEWITT. 
 
 97 Illinois, 113. — 1880. 
 
 Bill for a partition. William Thompson died seised of the lands 
 in controversy, leaving him surviving his widow, Elizabeth, and his 
 daughter, Mary. He left a will of which the material portion is set 
 
 1 This also is sometimes called, but improperly, a " right of reverter." — Ed. 
 
 2 "A remainder is a remnant of an estate in land, depending upon a particu- 
 lar prior estate, created at the same time, and by the same instrument, and 
 limited to arise immediately on the determination of that estate and not in 
 abridgment of it." 4 Kent's Com. K)7. This definition of a common-law 
 remaindei involves the following essential features, usually stated separately: 
 (l) 1 nat a remainder is created by express limitation, — cannot arise by opera- 
 tion of law. (2) That a remainder must depend on a particular estate created
 
 I. 2.] KINDS OF FUTURE ESTATES: REMAINDERS. 867 
 
 out in the opinion. Mary married Henry Abbott and died, leaving 
 her husband and one child her surviving; the child died later under 
 age, leaving its father its only heir-at-law. Elizabeth married as her 
 second husband, Benjamin Green, and is now deceased, leaving 
 Green and her three sisters her surviving. One of the sisters brings 
 this suit, claiming that Elizabeth died seised of a fee. 
 
 Mulkey, J. — The whole controversy in this case turns upon the 
 construction to be given to the second clause of the will of William 
 C. Thompson, through which all the parties claim. It is as follows: 
 " Second. After the payment of such debts and funeral expenses, I 
 
 by the same livery or deed. (3) That a remainder must not be so limited as to 
 cut short the particular estate before its natural termination. (4) That a 
 remainder must be ready to take effect in possession immediately upon the ter- 
 mination of the particular estate upon which it depends. 
 
 From (3), above, it follows that a remainder cannot be limited after an estate 
 at will or by sufferance, nor after an estate in fee unless such estate be a fee- 
 tail. A remainder (so called) limited after an estate for years is but a quasi- 
 remainder, for the seisin is in the " remainderman," the possession of the 
 tenant is that of the " remainderman " in this respect. As will be seen, an 
 estate for years will not support a contingent remainder. 
 
 An estate for years, being but a chattel, could not at common law be divided 
 up into a particular estate and a remainder limited thereon. But see § 40, 
 N. Y. R. P. L. 
 
 Modern statutes have modified many of these rules. (1) The New York 
 Revised Statutes of 1830 broadened the scope of the term remainder. " Where 
 a future estate is dependent on a precedent estate, it may be termed a remain- 
 der, and may be created and transferred by that name." R. P. L., § 28. 
 "A remainder may be limited on a contingency, which, if it happens, will 
 operate to abridge or determine the precedent estate; and every such remainder 
 shall be a conditional limitation." § 43, R. P. L. Thus it will be seen that 
 shifting executory estates (see below) have become in New York one class of 
 " remainders." (It is to be observed here that the N. Y. Real Property Law of 
 1896 (ch. 547) is a re-enactment of that portion of the Revised Statutes relating to 
 real property, with few material changes and that the N. Y. R. S. on these 
 topics were substantially re-enacted in Michigan, Minnesota and Wisconsin, 
 and have influenced the legislation of many other States.) In Georgia it 
 appears that any future estate, even a springing use or springing executory 
 devise, is a " remainder." Code, 1895, § 309S. (2) A " remainder " may be so 
 limited as to cut short the preceding estate (§ 43, N. Y. R. P. L.) and may, 
 therefore, be limited after a fee on condition. (3) A " remainder," to be valid, 
 need not be ready to take effect in possession immediately upon the determina- 
 tion of the particular estate. See §§ 47, 48. 
 
 While reversions have everywhere been preserved unchanged it would seem 
 that other estates in expectancy are to be classed in most of the States as either 
 " remainders " or " estates limited to commence in possession at a future day 
 without the intervention of any precedent estate," in other words " springing " 
 future estates. For the New York classification, see the R. P. L., §^ 25, 29, 
 43. — Ed.
 
 868 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CM. VI. 
 
 give and bequeath to my beloved wife, Elizabeth Thompson, the 
 farm on which we now reside, situate in said county, and known and 
 described as the northeast quarter of the southwest quarter of sec- 
 tion seven, township fifteen, range thirteen, also all my personal 
 property of every description, so long as she remains my widow; at 
 the expiration of that time the whole, or whatever remains, to 
 descend to my daughter, Mary Thompson." [ The court held that the 
 limitation of the estate during widowhood applied to the real as well as the 
 personal property and that the expression "whatever remains " is of no 
 vital significance, and proceeds as follows .•] 
 
 It is further claimed by plaintiffs in error that the estate of the 
 daughter was a contingent remainder, and that inasmuch as she died 
 before the termination of the particular estate which supported it, it 
 never vested at all. Counsel are entirely mistaken in this view. 
 The estate of the daughter had not a single element in it that distin- 
 guishes a contingent from a vested remainder. There was certainly 
 no uncertainty as to the person who was to take. It was Mary 
 Thompson, the daughter, clearly. And the time of her taking in 
 possession was equally certain, namely, when Elizabeth Thompson 
 ceased to be the widow of the testator, whether it was effected by 
 death or a second marriage. 
 
 A clearer example of a vested remainder could scarcely be con- 
 ceived. But admitting, for argument's sake, plaintiffs in error are 
 right upon this question, the admission is certainly fatal to their 
 right of recovery; for, if the daughter took a contingent remainder, 
 of necessity the widow could not have taken a fee, and their right 
 of recovery rests entirely upon the hypothesis that she took a fee 
 simple title under the will. 
 
 We are, in any view, clearly of opinion that the decree of the 
 Circuit Court was right, and it is therefore affirmed. 
 
 Decree affirmed. 1 
 
 /'. Contingent remainders.' 1 
 HENNESSY v. PATTERSON. 
 
 S5 New York, 91. — i38i. 
 
 Ejectment to recover the possession of certain premises in Brook- 
 lyn. The rights of the parties depend upon the construction of a 
 will the material parts of which are as follows: 
 
 " First. After all my lawful debts are paid and discharged, I give 
 
 1 Sec also Jackson ex dent. Wells v. Wells, p. 513, supra. — Ed. 
 '■'Tin- theory of the common law future estates (reversions and remainders) is 
 based on the idea that there must always be some one seised of an estate of
 
 I. 2.] KINDS OK FUTURE ESTATES: REMAINDERS. 869 
 
 and bequeath to my dear wife, Catherine Healey, the house and lot 
 in which I now reside, and which house and lot I now own and 
 which house and lot is situated on the northerly side of Luqueer 
 street, in the twelfth ward, in the city of Brooklyn, aforesaid. The 
 said described property is to be held by my said wife, after my 
 death, to and for the chief purpose of keeping and protecting the 
 same for her own and my daughter's benefit; provided, however, 
 that my said wife shall prudently use the rents and benefits, if any 
 there may be, of said property for the maintenance and support of 
 herself and said daughter; and also, that my said wife shall be and 
 act as the sole guardian and protector of my said daughter as long 
 as she remains unmarried; but if she, my said wife, should get mar- 
 ried, or otherwise commit acts contrary to the wishes of my 
 executors herein named, then my executors shall have the power to 
 have the control of said property taken from my said wife, and also 
 the guardianship of my said daughter. This use and privilege of my 
 said property to my said wife is in lieu of her dower right. 
 
 " Second. I also wish and will that if my said daughter Margaret 
 should get married, or die without leaving any children, and that* 
 her husband should live after her death, he shall not inherit the said 
 property or any part thereof; but if there are any children born of 
 my daughter, and living after her death, the property shall be theirs, 
 share and share alike, and managed accordingly by my executors. 
 
 " Third. I wish and will, that should my said daughter Margaret 
 die without leaving any issue, then the said property shall be left to 
 my nephew, John Foley." 
 
 freehold in the land, and upon the fact that a freehold estate to commence in 
 futuro could be created only in connection with a present livery, for a present 
 freehold interest, to a person other than the one in whom the future interest is 
 to" vest." Estates less than freehold have no true relation to the system of 
 future estates, except as the " possession " of the leasehold tenant constitutes 
 one element in the " seisin " of the landlord. 
 
 Interests of freehold succeeding one another in time must, therefore, as they 
 come into possession vest or clothe (vestire) their holders with successive por- 
 tions of the seisin of the fee. But he who has a present fixed right to a future 
 freehold is said to have an estate vested in interest, or vested simply. 
 A remainder is " contingent " if it is subject to some condition precedent (which 
 may or may not happen, either at all or within a given time) other than the 
 natural determination of the precedent particular estate; " vested " if it is sub- 
 ject to no other condition precedent than that jusr indicated. A remainder then 
 may be contingent because the person who is to take it is not yet ascertained, or 
 because, the person being known, his right to the future enjoyment of the estate 
 is dependent upon a contingent event. Either a vested or a contingent remain- 
 der may be defeasible by reason of a condition subsequent, but this does not 
 alter its original character. — Ed.
 
 870 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 The testator's widow died in 1874. His daughter Margaret there- 
 after married the plaintiff. Foley died in 1876, and Margaret died 
 in 1878, leaving no issue surviving Margaret, prior to her death, 
 conveved the premises to one Battersberry, who conveyed to plain- 
 tiff. In an action of partition between the heirs of John Foley, 
 defendant was appointed receiver. 
 
 Finch, J. — The general intention of the testator, in this case, is 
 very plain. Having a wife, and an unmarried daughter, he desired 
 to secure to them during their lives the full benefit of the use and 
 income of his property; but dreading the influence and possible 
 selfishness of a husband of either, he aimed at a disposition which 
 would make it impossible for such husband to obtain any interest in, 
 or control over, the estate devised. To effect this purpose, he took 
 from the widow, in the event of her remarriage, the management of 
 the property and also the guardianship of his daughter and vested 
 both in his executors. In the event of the daughter's marriage, he 
 provided that her husband should not inherit the property, nor any 
 * part thereof, and, as a mode of securing that result, he gave no 
 estate to the daughter in express terms, but directed that upon her 
 death it should go to her issue then living, or, in default of such 
 issue, then to the testator's nephew, John Foley. The will was evi- 
 dently intended to bar the possible interest of a successor, or son- 
 in-law, and keep from the hands of strangers, not of the testator's 
 blood, the property gained by his care and labor. Whatever else 
 may be true of the case, this purpose and intention is distinct and 
 plain, and must have its proper weight in determining the construc- 
 tion of the will. The claim of the plaintiff, if sustained, overrides 
 that intention, and renders nugatory and useless the precautions 
 of the testator; for it is the husband of the daughter who now 
 claims the absolute ownership of the estate and seeks to wrest it 
 from the possession of the children of the nephew. 
 
 As to the proper construction of the will the parties differ widely. 
 The theory of the plaintiff is, that the widow had a life estate, and 
 the daughter, Margaret, took the fee by descent, such fee subject, 
 however, to be determined by the presence of issue living at her 
 death, or in default of such issue living at that date, subject to the 
 right of Foley to take the fee if he should be living at the death of 
 Margaret; but that in case both of the prescribed failure of issue. 
 and the survivorship of Foley at the happening of that contingency, 
 the fee inherited by Margaret lost its base or determinable quality, 
 and became a fee simple absolute, which, through Margaret's deed 
 in her lifetime, passed as such to her husband. In this view of the
 
 T. 2.] KINDS OF FUTURE ESTATES: REMAINDERS. 871 
 
 will the devise to Foley is deemed a contingent remainder, vesting 
 neither in interest nor possession until the happening of two uncer- 
 tain events, viz., the death of Margaret without issue living, and 
 the survival of Foley at the date of such death. This construction 
 bars utterly the heirs of Foley, and reduces his right to a mere pos- 
 sibility of acquiring an estate, which lapsed by his death in the life- 
 time of Margaret. 
 
 The theory of the defendant is that the widow took a life estate, 
 then Margaret a life estate, with remainder in fee to John Foley, 
 vesting in interest at the death of the testator, and in possession at 
 the death of Margaret without issue living, but liable to be divested 
 by the existence of such issue living at her death. The estate of 
 Foley is claimed to be a vested remainder, affected in no manner by 
 his death before Margaret, but in that event descending to his heirs 
 who thereby took the entire estate. 
 
 The argument on both sides draws largely upon the provisions of 
 the common law, as explanatory of the changes effected by the 
 Revised Statutes, and some brief consideration of what would have 
 been the operation of the former upon the devise in question may 
 aid us in the application of the modified enactments. 
 
 The first difficulty in the defendant's position, as affected by the 
 language of the will, would have arisen in the absence of a precedent 
 estate to support the remainder to Foley. The general rule was 
 that no remainder could be created without a particular estate to 
 support it, and must have been so limited as to take effect on the 
 regular and natural determination of the precedent estate. 2 Washb. 
 R. E. 503. That rule would be fatal in the present case to the 
 remainder of Foley, if the sole estate preceding it was the life estate 
 of the widow, for that estate might end, and in fact did end, before 
 the daughter, Margaret, died, and, therefore, before the contingency 
 upon which Foley's estate depended had occurred. If to meet this 
 difficulty resort is had to the plaintiff's theory, that besides the life 
 estate of the widow, there was in Margaret a qualified, base or 
 determinable fee, coming to her by descent, we are baffled by, 
 another rule of the common law that a remainder could not be 
 limited on a base or determinable fee which had vested in interest. 
 Lalor, 65. It is possible, however, that a just construction of the 
 will would give to Margaret a life estate by implication. The use of 
 the property, until her death, was probably intended for her as well 
 as her mother. While the widow lived she was to have the use of 
 the property for the joint benefit of herself and her daughter, unless 
 she remarried. In that event the executors were to have the control 
 of the estate. This provision was evidently aimed at the protection 

 
 872 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 of Margaret, and indicates a purpose to secure her maintenance out of 
 the income. It may be possible, therefore, to say, as the respondent 
 contends, that after the death of the widow, the right of Margaret 
 to the income and profits of the estate for her support and mainten- 
 ance remained. In that event, the difficulty we have mentioned 
 would disappear, because a precedent life estate in Margaret would 
 have remained until her death, and sustained the remainder to her 
 issue or to Foley. If it be then objected that such devise to the 
 daughter for life, with remainder to her issue is, at common law, 
 turned into a fee in the daughter by the operation of the rule in 
 Shelley's Case, upon the ground that the word issue is used as the 
 equivalent of heirs, and is here a word of limitation and not of pur- 
 chase In re Sanders, 4 Paige, 293; 2 Washb. on Real Prop. 569, the 
 answer is that the rule applied only to the case of the first taker, 
 and not to the use of the word in a case like the present. Cushney 
 v. Henry, 4 Paige, 345, citing Finch's Ch. 280, and Coke's, 263, 
 note 15. 
 
 If the difficulties of the common law seem thus far obviated, they 
 become more serious as we approach a consideration of the nature 
 and character of the devise over to Foley. Alternative estates, or 
 contingencies with a double aspect, as they are sometimes called, 
 were permissible and recognized before the Revised Statutes 
 expressly authorized their creation. They were unobjectionable, 
 because only one could vest, and the happening of the contingency 
 merely substituted one for the other, and in no respect prolonged 
 any restraint upon alienation. Luddington v. Kime, 1 Ld. Raymond, 
 203; Doe v. Holme, 2 Black. 777. If, therefore, Foley had been 
 alive at the death of Margaret, it seems possible to put a construc- 
 tion upon the. will which would have given him, at that date, even 
 at common law, a vested remainder which would, of course, have 
 descended to his heirs. But he died before Margaret, and whether, 
 for that reason, his estate lapsed, or was of such character that it 
 descended to his heirs, so that they took upon the happening of the 
 contingency as succeeding to all his rights, becomes a very important 
 question. Before the Revised Statutes, his estate would have been 
 a contingent remainder, or, at least, good by way of executory 
 devise; for, even if Margaret had not a life estate, but a base or 
 determinable fee, so that a remainder in fee could not be limited 
 upon it, the limitation to Foley would have been good as an execu- 
 tory devise. Jackson v. Staats, 11 Johns. 348; Sherman v. Sherman, 
 5 Barb. 385; Maurice v. Graham, 8 Paige, 486. Viewed in either 
 aspect, his estate was descendible, unless his survivorship of Mar- 
 garel was an element of the contingency upon which his estate was
 
 I. 2.] KINDS OF FUTURE ESTATES: REMAINDERS. 873 
 
 limited. Pinbury v. Elkin, 1 Peere Williams, 563; Moor v. Hawkins, 
 2 Eden's Ch. 341; Winslowv. Goodwin, 48 Mass. 374. Of contingent 
 remainders, a very accurate writer says (Washburn on Real Prop- 
 erty, 549) that at common law, before the contingency happens, 
 they cannot be conveyed, except by way of estoppel; but, where the 
 person who is to take the remainder if it becomes vested, is ascer- 
 tained, and he dies, it will pass to his heirs and may be devised by 
 him. And, as to the interest of an executory devisee, the same 
 writer says that contingent and executory estates, and possibilities 
 accompanied with an interest, are descendible to the heir or trans- 
 missible to the representative. Ibid. 662. Of course, the rule can- 
 not apply where the survivorship of the devisee at the happening of 
 the contingency is itself a contingency upon which the devise is 
 limited. That is claimed to be the situation here, and it becomes 
 apparent that, even at common law, the one vital question in the 
 case is whether, by the terms and intent of the will, Foley was only 
 to take upon the contingency that he survived Margaret, in addition 
 to the contingency that the latter should die without issue living at 
 the date of her death. 
 
 If now we test the case by the simpler provisions and definitions 
 of the Revised Statutes, we shall find that the same question con- 
 fronts us as the pivotal point in the case. What has been said of the 
 common-law rules shows, at least in some directions, the difficulties 
 which the revisers sought to remove and the force and effect of the 
 radical change which they wrought. A remainder no longer fails 
 by reason of the determination of the precedent estate before the 
 happening of the contingency upon which it is to vest, and a life 
 estate in Margaret ceases to be necessary to support the remainder 
 of Foley. A fee may be limited on a fee upon a contingency which, 
 if it should occur, must happen within the limits of the prescribed 
 period, so that even if Margaret took a base or determinable fee by 
 descent the limitation over to Foley was possible. Alternative 
 estates, where upon the failure of one to vest, the next in succession 
 shall vest, are expressly recognized; and all future estates are made 
 in terms descendible, devisable and alienable, like estates in posses- 
 sion. Not only are difficulties thus removed and doubts solved, but 
 future estates, like that devised to Foley, are expressly authorized 
 and defined. Estates, in respect to the time of their enjoyment, are 
 divided into estates in possession and estates in expectancy. The 
 latter are declared to be those in which the right of possession is 
 postponed to a future period, and are further divided into future 
 estates and reversions. A future estate dependent on a precedent 
 estate is termed a remainder, and that may be either vested or con-
 
 874 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 tingent. It is vested, when there is a person in being who would 
 have an immediate right to the possession of the lands upon the 
 ceasing of the intermediate or precedent estate and is contingent 
 whilst the person to whom, or the event upon which it is limited to 
 take effect remains uncertain. R. S. Part 2, chap. 1, tit. 2, art. i. 1 
 Tested by these definitions the estate of Foley is to be deemed a 
 contingent remainder, vesting as a right upon the death of the testa- 
 tor, and in interest and possession upon the death of Margaret with- 
 out issue living, unless, indeed, the survivorship of Foley is made by 
 the terms of the will an additional and further contingency. We 
 are thus brought again to what we have already described as the 
 pivotal question in the case, and it is necessary now to consider it. 
 Reliance is placed upon the mention of Foley by name without allusion 
 to his heirs. But the omission was not material. Without such 
 words in a devise the fee would pass unless an intent should appear 
 in the will by express terms or necessary implication, to pass a less 
 estate. 4 Kent's Com. 7; 1 R. S. (Edm.) § 1, p. 699. Some stress 
 is laid upon the language of the devise to Foley, which was in these 
 words: " Should my daughter Margaret die without leaving any 
 issue, then the said property shall be left to my nephew, John 
 Foley." The argument is that the word " should " implies a con- 
 tingency, and the expression "should she die," standing alone, is 
 inaccurate, since death at some time is certain and inevitable. 
 Therefore, it is said, the contingency referred to must be that of 
 time; death before Foley. This construction utterly overlooks the 
 real contingency named in the will, and substitutes, or rather adds, 
 one not there at all. The contingency named by the testator was, 
 should she die without issue living at her death. That was the 
 uncertainty to which he referred, and for which he meant to provide; 
 and the word " then " plainly refers to the event; to the happening 
 of that contingency; and not to the time at which Foley's right 
 should commence. It is said that Foley was expected by the 
 testator to survive Margaret, and the principal reason assigned is 
 that Foley was named as one of the executors, and the will provided 
 that after the death of Margaret, leaving issue, the estate in then 
 was to be " managed " by the executors. Nevertheless, the testator 
 might easily have contemplated the death of one or both of them, 
 and the substitution, if necessary, of administrators with the will 
 annexed, or of trustees. The provision itself was awkward and 
 probably would have proved ineffectual. But if such expectation 
 existed, it was of little consequence in view of the testator's evident 
 intention. He meant to keep the property in the line of his blood. 
 
 1 N. Y. k. P. L. §§ 26-28, 30. — Ed.
 
 I. 2.] KINDS OF FUTURE ESTATES: REMAINDERS. 875 
 
 Preferring first his wife; then Margaret and her issue; he next casts 
 the estate upon the nephew and his heirs, preferring them to possible 
 husbands, or strangers to his blood. 
 
 We do not think, therefore, that, by the terms of the will, Foley's 
 estate was limited upon the added contingency of his survival of 
 Margaret. It follows that his right was descendible to his heirs, 
 both at common law and under the statute, unless some other legal 
 difficulty intervenes. 
 
 Such difficulties are suggested. The one founded upon the doc- 
 trine of the common law, that the heir of a primary devisee can never 
 take by substitution unless the estate vests in such primary devisee, 
 we do not think has a proper application to the case before us, but 
 if it has, will find its answer in the changed provisions of our statutes, 
 and also in the views presently to be taken of their effect upon con- 
 tingent remainders. 
 
 But a further difficulty is founded upon the denial to the estate of 
 Foley of any descendible quality, upon the ground that it never vested 
 in him, and was nothing, in fact, but the possibility of acquiring an 
 estate. The logic of this view is very forcibly presented in a case 
 similar to and yet different from the one before us, by the dissent- 
 ing opinion of Grover, J. Moore v. Littel, 41 N. Y. 66. The court 
 did not concur in the reasoning, or the conclusion to which it led. 
 Followed steadily to its logical consequences, it would apparently 
 take out of the operation of the statute a large class of future estate, 
 upon the ground that they are mere possibilities, and not estates at 
 all. The collision at the bottom of that case was over the character 
 of a contingent remainder limited to the heirs of a person then liv- 
 ing. The majority of the court, founding their opinion upon the 
 definitions of the Revised Statutes, and their express authority, held 
 that the children of John Jackson had, during his life, and notwith- 
 standing the uncertainty of their ever living to be his heirs, an 
 expectant estate which could be aliened. The dissent went upon 
 the ground that such children, during the life of the father, had no 
 estate at all, but only the possibility of acquiring one, which, there- 
 fore, was not the subject of a conveyance. The case differed from 
 the one under consideration in many respects, but at least settles 
 the question that such a contingent right as was devised to John 
 Foley is within the definition of expectant estates, and governed by 
 the provisions of the Revised Statutes. 
 
 It is true that to allow of title by descent there must be some- 
 thing to descend; and what that is, in a case of contingent 
 remainder, which may never vest either in interest or possession 
 except a mere possibility of acquiring an estate, is a question
 
 876 FUTURE ESTATES AND INTERESTS IN LAND. [FT. IV. CH. VJ. 
 
 which the mandate of the statute sufficiently answers, but which 
 may also be answered on principle. John Foley had something 
 more than a mere possibility of acquiring an estate; he had the 
 fixed, absolute right to have the estate if the contingency occurred. 
 That right was conferred by the will of the testator, and vested in 
 him at the instant of the latter's death. The devisee held it as a 
 vested right, but such a right as the contingent and uncertain 
 character of the devise created; nevertheless a fixed and vested 
 right, which the Revised Statutes recognize as an estate, place in 
 the category of expectant estates, and decree shall be descendible, 
 and which, as we have already seen, was descendible even at com- 
 mon law. In his chapter on executory devises Washburn reminds 
 us of the necessity of distinguishing " between the vesting of a right 
 to a future estate of freehold, the vesting of a freehold estate in 
 interest, and the vesting of the same in possession." 2 Washburn 
 on Real Property, 664. 
 
 We do not agree, therefore, with the opinion of the General Term, 
 while we concur in the result of their decision. They held, as the 
 respondent claims, that Foley took a vested remainder, subject to 
 be divested by the contingency of Margaret's death, leaving issue, 
 such contingency operating as a condition subsequent. This con- 
 struction drives us to give Margaret an estate for life by implication, 
 upon a very doubtful and debatable state of facts, at the peril of 
 holding that, after the death of the mother, the daughter had no 
 interest in the property during the rest of her life, and was bound 
 to surrender it and its income to Foley. We do not accuse the testa- 
 tor of any such unreasonable and unexplainable purpose. 
 
 Nor can we see that Foley took a vested remainder under the defi- 
 nition given by the Revised Statutes. The present capacity of tak- 
 ing effect in possession if the possession were to become vacant, was 
 the test at common law. Fearne on Rem. (7th ed.) 216. When the 
 person to whom a remainder after a life estate is limited is ascer- 
 tained, and the event upon which it is to take effect is certain to 
 happen, the remainder is vested. Williamson v. Field, 2 Sandf. Ch. 
 533 If, at the ceasing of the precedent estate, it would be uncertain 
 who was entitled or whether the event upon which it was limited 
 would happen, then the remainder is contingent. Moore v. Li/tel, 
 supra, 79. Here the event upon which Foley was to take at all was 
 uncertain. At the death of the widow, the termination of the prece- 
 dent estate, it was still uncertain if Foley would ever take, and 
 whether he should or not depended upon a contingency yet to 
 happen. It is possible that, by giving to Margaret a life estate after 
 the death of the widow, the case might be brought within the rule
 
 I. 2] KINDS OF FUTURE ESTATES: REMAINDERS. 877 
 
 stated in Moore v. Littel by Judge Woodruff, that where the same 
 event — in this case the death of Margaret — at the same time, eo 
 instantly terminated the precedent estate, and settled the contin- 
 gency, the remainder was vested. But that was said of a remainder 
 to the heirs of one living, and we think does not fairly apply to the 
 case before us. And, besides, the doctrine was not assented to by 
 three of the judges, and the case was really decided upon the ground 
 (which strongly sustains the conclusion we have reached) that the 
 remainder was contingent, but nevertheless an expectant estate, as 
 defined by the Revised Statutes, and as such alienable. 
 
 We conclude, therefore, in this case, that John Foley took a con- 
 tingent remainder, which vested in him at the death of the testator 
 as a right according to its character, and which descended to his 
 heirs, so that, upon the death of Margaret, leaving no issue, the 
 estate vested in the defendants. The objection to the allowance in 
 addition to costs presents no question for our review. 
 
 Judgment affirmed. 
 
 WHITESIDES v. COOPER. 
 
 115 North Carolina, 570 — 1894. 
 
 Action by plaintiffs to be let into possession as tenants in com- 
 mon with defendants of one-sixth undivided interest in the premises 
 in dispute. Plaintiffs are the children of S. J. Whitesides, who, sup- 
 posing himself the owner of a vested interest in the lands, had sold 
 them to one Kimberly, and then, under a partition sale, they had 
 passed to defendants. Further facts appear in the opinion. 
 
 Shepherd, C. J. — The numerous authorities cited in the elaborate 
 brief of the defendant's counsel fail to convince us that we are war- 
 ranted in so far departing from the plain and natural import of the 
 language used in the limitation before us as to hold that the seven 
 sons named in the will of their father took a vested remainder in 
 the land therein devised. Fully appreciating, as we do, the public 
 policy which induces the courts to favor the early vesting of estates, 
 we are, nevertheless, of the opinion that it would be doing violence 
 to the most liberal rules of construction were we to say that it was 
 the intention of the devisor that the estates limited to his said sons 
 should vest before the death of his widow, the life tenant. On the 
 contrary, it was his evident purpose that the entire remainder in fee 
 should be disposed of absolutely at a definite time, and that he did 
 not intend that the remainder, as to any part of the property, should
 
 878 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 become vested while the remainder in the residue was dependent 
 upon a contingency. 
 
 After a limitation to the wife for life, the will proceeds as follows: 
 " At the death of my said wife, the said plantation, with all its rights 
 and interests, I bequeath and devise to our seven sons, namely, 
 Henry Clay, James Hardy, Charles Lincoln, Frank Patton, Simpson 
 Jarrett, William Ratliff, and John Bowman, or such of them as may be 
 living at their mother s death, and to their heirs, share and share alike; 
 and if any one or more of our said sons should be dead, leaving 
 lawful issue, said issue shall take the deceased father's share in each 
 and every such case." 
 
 The words we have italicized very clearly do not divest, by way 
 of condition or otherwise, any estate previously limited, but are 
 manifestly used as a part of the description of the persons who are 
 to take; and these persons are plainly such only of the sons as may 
 survive the life tenant. In other words, the limitation, with a very 
 slight transposition of the words, reads, " To such of my sons, 
 Henry Clay, James Hardy, etc., as may be living at their mother's 
 death, and to their heirs." If the language indicating survivorship 
 were at all doubtful, the construction we have adopted would be well 
 sustained by the fact that the words of inheritance do not immediately 
 follow the names of the seven sons, but they follow the qualifying 
 language," such of them as may be living at their mother's death." 
 
 Under the construction we have put upon the will, there can be 
 no question that the limitations to the sons were contingent remain- 
 ders, the contingency being that they should survive their mother, 
 and failing in this, as to any one or more of them, the remain- 
 der to vest in his or their issue, as purchasers. This, as we have 
 said in Watson v. Smith, no N. C. 6, is a limitation of several con- 
 current fees by way of substitutes or alternatives, one for the other, 
 " the latter to take effect in case the prior one should fail to vest in 
 interest, and is known as a remainder on a contingency with a 
 double aspect." If one of these die before the mother, his remain- 
 der is at an end, and can never vest, and another remainder to the 
 issue is substituted, who take nothing from their father, but directly 
 from the devisor. 
 
 That the limitation, under the construction we have adopted, is a 
 contingent remainder is apparent from the decisions of this court, 
 and these decisions, it is believed, are in harmony with the princi- 
 ples of the common law as enunciated by the most approved authori- 
 ties in other jurisdictions. In Starnes v. Hill, 112 N. C. 1, and Clark 
 v. Cox, at this term, we quoted with approval the language of Mr. 
 Gray in his excellent work on Perpetuities, " that the true test in
 
 I. 2.] KINDS OF FUTURE ESTATES : REMAINDERS. 879 
 
 limitations of this character is that if the conditional element is incor- 
 porated into the description of the gift to the remainderman (as it 
 is in the case under consideration), then the remainder is contingent, 
 but if after the words giving a vested interest a clause is added 
 divesting it, the remainder is vested. Thus, on a devise to A. for 
 life, remainder to his children, but if any child die in the lifetime of 
 A. his share to go to those who survive, the share of each child is 
 said to be vested, subject to be divested by its death. But on a 
 devise (as in the present case) to A. for life, remainder to such of 
 his children as survive him, the remainder is contingent." 
 
 In Watson v. Watson, 3 Jones, Eq. 400, the devise was to A. for 
 life, and at his death to such of his children as might then be living, 
 and the issue of such as might have died leaving issue. It was held 
 that A. was tenant for life " with a contingent remainder in fee to 
 his children who may be living at his death, and to the issue of such 
 children as may have died in his lifetime, leaving children. See, 
 also, Watson v. Smith, no N. C. 6. 
 
 In Williams v. Hassell, 74 N. C. 434, the court said, " inasmuch 
 as the lands are devised to the first takers for life only, with remain- 
 ders to such of their children as should be living at their death, it 
 cannot be ascertained now who are to take the remainder." 
 
 In Young v. Young, 97 N. C. 132, the court said: " The contin- 
 gent remainders limited on the termination of the life estate are to 
 such of her children as are then living and to the then living issue of 
 such as have died leaving issue, so it is impossible to tell who will 
 be entitled when the life tenant dies. 
 
 In Miller, ex parte, 90 N. C. 625, there was a devise of land to A. 
 for life, with remainder to such children as she may leave her sur- 
 viving, and it was held that the children took contingent remainders. 
 
 Without resorting to the text-books, these authorities abundantly 
 show that the element of survivorship in our case fully characterizes 
 the limitation as a contingent remainder. 
 
 In view of the construction we have placed upon the language of 
 the will, and of the decisions of our own court, we do not deem it 
 necessary to review the many English and other cases cited by 
 counsel. None of them are directly in point, and even if they were, 
 we would not be inclined to depart from our own decisions, which, as 
 we have already remarked, are, in our opinion, well supported by prin- 
 ciple as well as authority. If the will should read as we have con- 
 strued it (and of this we think there can be but little doubt), it is 
 clear that these remainders are contingent. The case most strongly 
 pressed upon us in the argument is Ex parte Dodd, Phil. Eq. 97. 
 The decision turned upon the construction placed upon the
 
 880 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 language of the will, under which it seems that the limitation was 
 general, that is, to all of the children of the life tenant, or the issue of 
 such children. The element of survivorship as a condition to the 
 vesting of the remainder was considered as absent, and it was held 
 that the remainder was vested as to the children living, subject, of 
 course, to open and let in after-born children, or the issue of such 
 as should die before the life tenant. That this is the ratio decidendi 
 of the case, is apparent from the opinion of the court in Irvi.n v. 
 Clark, 98 N. C. 437. The limitation there was " to Margaret Irvin 
 and her husband during their natural lives, and to descend to the 
 children of the said Margaret equally." This was treated as a 
 vested remainder, but the court was careful to say that, " if the 
 devise had been to those children living at the death of the mother, 
 there would have been a contingent and not a vested interest in 
 either, for until that event occurred it could not be known who 
 would take, and in such case the contingent interest could not be 
 sold by a court of equity. But when the gift is general, not being 
 confined to survivors, when to take effect, it is otherwise, and, by 
 representation, those who may afterwards come into being are 
 concluded by the action of the court upon those whose interests 
 are vested, but whose possession is in the future. The dis- 
 tinction is pointed out by Battle, J., in delivering the opinion in Ex 
 parte Dodd." 
 
 As we have seen, the remainders to the sons being limited only 
 to such of them as survived their mother, and Simpson Jarrett White- 
 sides, one of the said sons, having died in 1874, before the death of 
 the life tenant in 1887, it must follow that his children, the plain- 
 tiffs, acquired the interest in controversy as purchasers, and the only 
 question which remains to be determined is whether they are pre- 
 cluded from asserting their title by the conveyance of their father, 
 and the proceedings for partition under which the land was sold and 
 purchased by one Davis, under whom the defendant claims. 
 
 2. If the view we have taken of this limitation is correct, it is 
 hardly necessary to cite authority in support of his Honor's ruling 
 that the plaintiffs are not rebutted by the conveyance and warranty 
 of their father in 1867. The case of Flynn v. Williams, 1 Ired, 509, is 
 not in point. It was there held that where one having an estate of 
 inheritance in possession sells the same with general warranty, his 
 heirs are bound, whether the warranty be lineal or collateral, and 
 whether they have assets or not. Tn the present case, no estate 
 whatever vested in the ancestor, and his children who take as pur- 
 chasers under the will, are, therefore, not bound by his warranty. 
 1, 11 had a life estate vested in him, his warranty would likewise
 
 I. 2.] KINDS OF FUTURE ESTATES: REMAINDERS. 88 1 
 
 have been ineffectual by way of rebutter. The Code, § 1334; Starnes 
 v. Hill, supra. 
 
 3. Were the plaintiffs bound by the sale for partition? It appears 
 that in 1870 John Kimberly (who had purchased the interest of Simp- 
 son Jarrett Whitesides), together with the life tenant (Catherine) 
 and the other contingent remaindermen, united in a petition for the 
 sale of the land for partition. Under a decree rendered in this 
 proceeding the land was sold and T. K. Davis became the purchaser. 
 The defendant claims under the said Davis, and denies the claim of 
 the plaintiffs that they are tenants in common with him to the 
 extent of one-sixth interest in the said land. The life tenant 
 (Catharine) having died in 1887, the plaintiffs' contention must be 
 sustained, unless they are bound by the decree of sale. Neither these 
 plaintiffs (if, indeed, they were in existence at that time) nor their 
 father were parties to the proceeding, but it is insisted that they 
 were represented by others of the same class, or at least by the life 
 tenant. It is plain that the other parties could not represent 
 these plaintiffs as a part of the same class, and upon this point it 
 is only necessary to refer to Irvin v. Clark, supra, and the authori- 
 ties therein cited. Equally untenable is the position that these con- 
 tingent remaindermen were represented by the life tenant. This 
 would be a very radical departure from well settled principles, and 
 has received no countenance from this court. In Overman v. Tate, 
 114 N. C. 571, we quoted, with approval, the language of Lord Hard- 
 wicke in Hopkins v. Hopkins, 1 Atk. 590, that " if there were so many 
 contingent limitations of a trust, it is an established rule that it is 
 sufficient to bring the trustees before the court, together with him in 
 whom the first remainder of inheritance is vested, and all that may 
 come after will be bound by the decree, though not in esse, unless 
 there be fraud and collusion between the trustees and the first per- 
 son in whom the remainder of inheritance is vested." In referring 
 to the application of this principle in one or two jurisdictions, where 
 the first remainder was only for life, we stated that we were not pre- 
 pared to adopt such a view, and a fortiori would it be rejected in a 
 case like the present, where the limitations are not in trust but 
 purely legal? Under the peculiar circumstances of the case referred 
 to, we applied the principle declared by Lord Hardwicke, the fact 
 that the limitations were in trust not having been adverted to in a 
 previous ruling. The decision was not based upon the idea that the 
 child of Annie was of the same class as the issue of Caswell, but this 
 was mentioned as a circumstance tending to show that but little 
 prejudice would probably result by the application of the principle 
 above stated, under the particular limitations then before us.
 
 882 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 4. Neither is there any force in the contention that our case falls 
 within the principle of England \ . Garner, 90 N. C. 197, and other 
 decisions in which the court has gone very far in sustaining judicial 
 sales. It is not pretended that these plaintiffs, even if in esse, were 
 represented by guardian or any one claiming to be their attorney. 
 Indeed, they are not mentioned as parties in any stage of the pro- 
 ceeding, nor is there anything in the decree which purports to bind 
 their contingent interests. 
 
 5. As to the statute of limitations, it is only necessary to say that 
 it did not begin to run against these plaintiffs until the death of the 
 life tenant in 1887. Their rights accrued only upon that event, and 
 it is therefore clear that they are not barred. 
 
 After a careful consideration of the elaborate brief of counsel, we 
 have been unable to discover any error in the rulings of his Honor. 
 
 Affirmed. 
 
 MORSE v. PROPER. 
 82 Georgia, 13. — 1888. 
 
 One L. S. Morse conveyed certain premises to his stepmother, 
 Anna Morse, as her separate estate for life, and after the death of 
 said Anna Morse gives " said property * * * to such of the 
 children of said Anna Morse by her present husband as may be living 
 at her death, and the representative of such as may be dead, in fee, 
 the representative to take the share these deceased persons would 
 have been entitled to, had he or she been alive; but if the said Anna 
 Morse should die without child or children, or the representative 
 of either, then the whole of the above-named property, with the 
 increase, I give unto the said Oliver Morse [her husband] in fee 
 simple." Daniel Morse, the only child of Oliver and Anna, was 
 living when the deed was made. Daniel died in 1868, and thereafter 
 Oliver made a will giving all his property, present and expectant, to 
 Anna. Oliver soon thereafter died, and Anna made a will giving all 
 her property to her sister, Mrs. Proper. Anna having died, L. S. 
 Morse brings this action to prevent Mrs. Proper from interfering 
 with the property in question. 
 
 Decision below for Mrs. Proper. Morse appeals. 
 
 Simmons, J. — * * * The question for decision in this case is, 
 whether Oliver Morse had such an interest in this property at the time 
 of his death, in 1868, as he could transmit by will to his wife. If he 
 did have such a devisable interest, having devised it to his wife, and 
 his wife having devised it to her sister, the defendant in error here, 
 the chancellor was right in refusing the injunction. It will be remem-
 
 I. 2.] KINDS OF FUTURE ESTATES: REMAINDERS. 883 
 
 bered that the deed from L. S. Morse to Anna Morse gave her this 
 property for and during her natural life, and after her death it was to 
 go to her children or the representatives of the children; and in case 
 she died leaving no children or representatives of children, the prop- 
 erty was to go to Oliver Morse, in fee. In our opinion, Oliver 
 Morse, under this deed, took a remainder interest in this property. 
 Was it vested or a contingent remainder? The plaintiff in error con- 
 tended that it was a contingent remainder, and that the contingency 
 was as to the person, and therefore Oliver Morse, under section 2266 
 of the code, had no such interest in the property as he could devise 
 to his wife. Counsel for the defendant in error contended (1) that 
 Oliver took a vested remainder, under the deed made in 1855, (2) but 
 that if it was a contingent remainder, the contingency was as to the 
 happening of an event, and not as to the person, and therefore he 
 had a right to devise it. This case was ably argued by counsel on 
 both sides, and we have given it a great deal of consideration, and 
 we think that Oliver Morse had such an interest in this property as 
 he could devise to his wife; and therefore the chancellor was right 
 in refusing the injunction. We think that under the deed he took 
 a contingent remainder, and the contingency was as to the event and 
 not as to the person The language of the code on this subject is 
 as follows, § 2265: " Remainders are either vested or contingent. 
 A vested remainder is one limited to a certain person at a certain 
 time, or upon the happening of a necessary event. A contingent 
 remainder is one limited to an uncertain person, or upon an event 
 which may or may not happen." § 2266: " If the remainderman 
 dies before the time arrives for possessing his estate in remainder, 
 his heirs are entitled to a vested remainder interest, and to a con- 
 tingent remainder interest when the contingency is not as to the 
 person but as to the event." The deed in this case declares that 
 " if the said Anna Morse should die without child or children or the 
 representative of either, then the whole of the above named prop- 
 erty, with the increase, I give unto the said Oliver Morse in fee 
 simple." We think the contingency depended on the event of Anna 
 Morse dying without children or the representative of children. 
 The deed means, in our opinion, that in the event, or in that case, 
 or when that particular thing should happen, Oliver Morse should 
 take the property in fee. There was no uncertainty as to who 
 should take if there were no children or representative of children, 
 living at the time of her death. The person to take in that event 
 was certain, and was fixed by deed. In case there were no children 
 or representatives of children living at the time of Anna's death, the 
 deed points unerringly to the person who would take, and declares
 
 884 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. GIL VI. 
 
 that he should take in fee simple, which, under our law, means not 
 only himself but his heirs and assigns. If the deed had said that in 
 case Mrs. Morse died without children or representative of children, 
 then to the heirs or right heirs of Oliver Morse, the person to take 
 in that event would have been uncertain ; or if it had said, in case of 
 Mrs. Morse dying without children or representative of children, to 
 the heirs of John Smith, the persons to take would have been uncer- 
 tain; but as we have said before, the deed does not leave it uncertain 
 who is to take in the event she died without children or representa- 
 tive of children. It seems that in that case, Oliver Morse is to take 
 in fee simple. Oliver Morse having a contingent remainder interest 
 in this property, did he have a right to dispose of it by will to his wife? 
 We think he did. The old doctrine was, that contingent remainders 
 were not devisable by the person entitled thereto; but that doctrine 
 was abandoned many years ago, and it is now held almost universally 
 that a contingent remainder is devisable where the contingency is 
 not as to the person but as to the event. Indeed, that is the princi- 
 ple announced in our code, §2266. That section declares that if the 
 remainderman dies before the time arrives for possessing his estate, 
 his heirs are entitled to a contingent interest, when the contingency 
 is not as to the person but as to the event. If the contingency be 
 as to the person, and that person be not in esse at the time when the 
 contingency happens, his heirs are not entitled. It is contended by 
 counsel for the plaintiff in error that the latter part of this section 
 controls the case; but we think we have shown that the contingency 
 was not as to the person, but as to the event; and therefore the 
 latter part of the section does not apply to this case. 
 
 Counsel for the defendant in error cited the case of Loring v. 
 Arnold, 8 Atlantic Rep. 335, Supreme Court of Rhode Island, the 
 facts of which case, we think, are exactly the same as in the case 
 now under consideration. In that case, it appears that Thomas 
 Whipple died in 1843, leaving a will by which he devised certain real 
 estate to his son James, " for and during his natural life, and at his 
 decease, if he should leave any lawful child or children, then to 
 them, their heirs and assigns forever; but if he should die without 
 leaving any lawful child or children, then my will is that the same 
 shall descend and be divided equally among his brother T., his 
 sisters G., M., S., A., and J. A. B., to them, their heirs and assigns 
 forever." 1. A. B. died in Illinois, in 18S1, leaving by will all her 
 estate in Rhode Island to C. E. B. James died in 1885, leaving no 
 mi- children. It was held that J. A. B. had a contingent 
 tinder; and thai although this contingency was not determined 
 Until after the death of J. A. B., yet the person who was to take
 
 I. 2.] KINDS OF FUTURE ESTATES: REMAINDERS. 885 
 
 being certain, the interest was descendible and devisable. So also 
 in 2 Leading Cases in the American Law of Real Property, 374; 
 Buzby's Appeal, 61 Pa. 11 r; Chess's Appeal, 87 Pa. 362; Fearne on 
 Rem. 7th ed. 364-5; 4 Kent, 264; 2 Washb. Real Prop. 522. 
 
 The case of Jackson v. Waldron, 13 Wendell, 17S, relied on so 
 strongly by the plaintiff in error, was overruled in the case of Miller 
 et ux. v. Emmons et al., 19 N. Y. 384. The decision in the case of 
 Morelwursi' v. Wainhouse, decided in 1767 and reported in 1 Black- 
 stone's Reports, also relied on by the plaintiff in error, was put upon 
 the peculiar circumstances of that case, and the facts of that case 
 are different from the facts in this. 
 
 Judgment affirmed. 
 
 c. Certain special cases. ,' 
 
 (1.) Remainder to a Class. 
 
 MINNIG v. BATDORFF. 
 
 5 Pennsylvania State, 503. — 1847. 
 
 In error from the Common Pleas of Lebanon. Case stated. In 
 1793, Noll made his will, wherein he devised to his wife for life, 
 remainder to his daughter, Elizabeth, for life. " Item, that when 
 my said daughter depart this her natural life, the children which are 
 come or born of her body shall hold and possess my said land or 
 plantation. Item, I do give and bequeath my land and plantation, 
 (at the time of my said daughter her decease,) to the children which 
 are come and born of and from her body, together with the deeds, 
 draughts, and all other writings thereunto belonging to them (the 
 said plantation) and their heirs and assigns forever." 
 
 Testator died in 1794, when his daughter Elizabeth had two chil- 
 dren, one of whom was Jacob Ditzler. After the death of testator 
 she had four other children. In 1827, Jacob conveyed all his estate 
 to Batdorff, the ancestor of the plaintiffs below, and died in 1836, 
 his mother surviving; she died in 1841, leaving five children. 
 
 The court gave judgment for the plaintiffs for one-sixth of the 
 land, and the defendants sued out this writ of error. 
 
 Bell, J. — The question presented by this. record is, whether the 
 children of Elizabeth Ditzler took a vested remainder under the will 
 
 ' It is always a question of construction whether a condition is precedent or 
 subsequent, and so whether the remainder is contingent, or is vested subject to 
 being defeated. The law favors vesting even though defeasibly. The cases 
 under this head illustrate this tendency. — Ed.
 
 886 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 of their grandfather, the testator, or whether, as the defendant avers, 
 it was contingent as to each of them, dependent upon their respect- 
 ively surviving their mother. If the limitation over vested in the 
 children on the death of the testator, it is conceded the deed from 
 Jacob Ditzler to John Batdorff passed a fee in one-sixth part of the 
 land devised, and, consequently, the judgment rendered by the court 
 below is correct. 
 
 Looking to the almost unbroken current of decisions, commencing 
 with Borastoris Case, 3 Rep. 19, which settles the rule of construc- 
 tion that must govern here, it was hardly to have been expected we 
 would be called on, at this late day, to reaffirm principles that have 
 long ago passed into rules of property. One of these, clearly 
 deducible from all the cases, is stated by Mr. Powell in his admira- 
 ble Treatise on Devises, vol. 2, p. 215, to be, that when land is given 
 to one person for life, or for any other estate upon which a remainder 
 may be dependent, and after the determination of that estate it is 
 devised over, whether to persons nominatim, or to a class of per- 
 sons, it will vest in the objects to whom the description applies at the 
 death of the testator. But in devises to children, where the ques- 
 tion has been most frequently agitated — at what period are the 
 objects who are to take to be ascertained? — the rule is different. 
 When there is an immediate gift to children, those only living at 
 the testator's death will take; but it is now settled, that where a 
 particular estate or interest is carved out, with a gift over to the 
 children of the person taking that interest, or of any other person, 
 the limitation will embrace not only the objects living at the death 
 of the testator, but all who shall subsequently come into existence 
 before the period of distribution. Such a remainder vests in the 
 objects to whom the description applies at the death of the testator, 
 subject to open and let in others answering the description as they 
 are born successively. 1 As to the latter, the remainder is contingent 
 until they are in esse, but then it immediately vests, and from thence- 
 forth is attended by all the properties incidental to vested estates. 
 Fearne on Cont. Rem. 242; 2 Powell on Dev. 303, and cases there 
 cited. Our own cases are in accordance with this doctrine, as may 
 be seen by consulting Wager v. Wager, 1 Serg. & Rawle, 374, which 
 I select as most decisive, from the fact that it was an assurance by 
 deed, but decided on the intention of the grantor. There the con- 
 veyance was to P. and H., his wife, for their joint lives, and the life 
 of the survivor, with remainder to the children of H. lawfully 
 begotten, in fee, immediately after the decease of the survivor. It 
 
 'Thai is the remainder is subject to a condition subsequent — the birth of 
 other children upon the happening of which it will be divested is part. — En.
 
 I. 2.] KINDS OF FUTURE ESTATES: REMAINDERS. 887 
 
 was held, the children in being at the death of the testator took vested 
 remainders liable to open for the admission of those subsequently 
 born. 
 
 But it is supposed the devise, immediately under consideration, 
 presents peculiar features that withdraw it from the governing influ- 
 ence of these rules, and as showing this, the counsel for the plaintiff 
 in error called our attention particularly to the words " when " and 
 " which are come to be born of the body," in the clause " that when 
 my said daughter departs this her natural life, the children which are 
 come or born of her body shall hold and possess my said land and 
 plantation." We are, however, unable to perceive anything in the 
 latter words indicating an intent that only those of Elizabeth's 
 children who should be living at her death, should take in exclu- 
 sion of the heirs of such of them as might happen to die during her 
 life. The sentence is certainly somewhat awkwardly expressed, but 
 its terms are amply broad enough to cover all the children born of 
 Elizabeth; and to hold that it confined the devise to children living 
 at the death of the mother, would be straining a point against the 
 often expressed unwillingness of the courts to construe a remainder 
 contingent, when it may, without any manifest violence done to the 
 language of the testator, be supported as vested. Doe v. Perryn, 3 
 Term Rep. 484. In Doe ex dem. Barnes v. Provoost, 4 Johns. R. 61, 
 a case always received with approbation, the words used were much 
 stronger to show an intent to postpone the vesting of the remainder 
 until the death of the tenant for life, than those of the present will. 
 The devise was, " to my daughter C. P., etc., during the term of 
 her natural life, and immediately after her death I give the same unto 
 and among all and every such child and children as the said C. shall 
 have lawfully begotten at the time of her death in fee simple." It 
 was strongly urged that the words " shall have " were to be used in 
 immediate connection with the sentence "at the time of her death," 
 the words " lawfully begotten " being merely used to confine the 
 gift to legitimate children, whereby the limitation over would be 
 restricted to such of the children as survived the mother, and there-, 
 fore contingent. But it was held that to effectuate the intent, 
 " begotten " must be taken as used synonymously with " born," and 
 the subsequent words referring to the death of the mother, were 
 employed simply as expressive of the time when the devise over was 
 to vest in possession. The same may be said with much stronger 
 show of reason in respect to the apparent intent of the devisor in the 
 present case, for if there be nothing in the phrase " are come or 
 born " to favor the construction of the plaintiff in error, it is certain 
 that the word " when," used in this collocation, will not aid him.
 
 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 Though this term may in certain cases import contingency, as, for 
 instance, when a legacy is given to A. when he attains the age of 
 twenty-one years, without more, King v. Crazvford, 17 Serg. & 
 Rawle, 118, yet it is settled by repeated decisions, that when it is 
 employed as it is here, it is considered as merely marking the period 
 at which the estate is to take effect in enjoyment, and not as post- 
 poning the period of vesting. It is scarcely worth while to run 
 through all the cases on this point. It will be sufficient to refer to 
 Boraston s Case, supra, as a leading authority. The devise there was, 
 first for an estate for years, and after its determination, to the exe- 
 cutors, for the purposes of the will, till such time as H. should 
 accomplish his age of twenty-one years, and when H. should attain 
 twenty-one, then to him in fee. It was contended the remainder did 
 not vest in H. until he attained full age, but it was determined that 
 the adverbs of time, when, etc., did not make anything necessary to 
 precede the vesting of the remainder, but merely expressed the time 
 when it should fall into possession. The same principle is recog- 
 nized in Hanson v. Graham, 6 Ves. 239, cited for the plaintiff in 
 error as an opposing authority, as established by all the cases, and 
 particularly in Goodtitle v. Whitby, 1 Burr. 228, ruled by Lord Mans- 
 field. So plainly applicable is this class of cases to the one in hand, 
 that the attempt to distinguish it runs into a refinement of ingenuity 
 too subtle to be practicable, and it is therefore not surprising that 
 the counsel who essayed it found difficulty in presenting his views 
 clearly to the court. To all that was urged by him, it would, with- 
 out more, be a sufficient answer, that any other construction than 
 that we have put on this will, would exclude the offspring of those 
 of the children who might happen to die, pending the particular 
 estates — an intent, in a case like the present, not to be imputed to 
 a testator, unless it be undoubtedly manifested. 
 
 It follows, from the view we have taken, that Jacob Ditzler, eldest 
 son of Elizabeth, and grantor to the plaintiff's ancestor, took a vested 
 remainder in fee, immediately on the death of the testator, which 
 opening to let in his brothers and sisters, subsequently born, left in 
 him ultimately one-sixth part of the land in fee, expectant on the 
 death of his mother, which passed under the conveyance made by 
 him. The judgment of the court below in favor of the plaintiff, 
 being for this proportion, is consequently right. 
 
 Judgment affirmed. 1 
 
 See also Adams v. Ross, supra, p. 4S3. — Ed.
 
 La.] KINDS OF FUTURE ESTATES: REMAINDERS. 889 
 
 (2.) Remainders After Estates-tail. 1 
 HAVENS v. SEA SHORE LAND CO. 
 
 47 New Jersey Equity, 365. — 1890. 
 [Reported herein at p. 926.] 
 
 (3.) Remainders in Default of Appointment Under a Power. 2 
 The LORD CHANCELLOR in CUNNINGHAM v. MOODY. 
 
 1 Vesey, Sr. (Eng.), 174. — 1748. 
 
 Next as to the inheritance; and if the plaintiff must claim this 
 reversion in fee from her sister, she cannot have it; because being 
 but of half-blood to her, she cannot be heir. But I am of opinion, 
 that she may claim it from her father, who took also an estate for 
 life by the same settlement; so that according to the ordinary rules 
 it vested in him; and whoever takes afterward must take through 
 him. It is certain, that where no person is seen or known, in whom 
 the inheritance can vest, it may be in abeyance; as in a limitation 
 to several persons, and the survivor, and the heirs of such survivor; 
 because it is uncertain who will be survivor; but the freehold 3 can- 
 not, because there must be a tenant to the prcecipe always. The 
 fee's being in abeyance has in some cases occasioned an act of parlia- 
 ment to remedy it; but here it was not so; nor does the power of 
 appointment make any alteration therein, for the only effect thereof 
 is, that the fee which was vested, was thereby subject to be divested, 
 if the whole was appointed; or if part so much as was not drawn 
 out of the inheritance, still remained in the father as part of the old 
 fee. And there is no occasion to put the inheritance in abeyance, 
 which the court never does but from necessity, and will so mould 
 it by opening the estate as in Lewis Boivle s Case, and several others, 
 as best to answer the purposes of the limitations. But if the appoint- 
 ment was not made, it remained undisturbed. 
 
 1 These were treated as vested, but defeasible as the tenant-in-tail might bar 
 the remainder by proper proceedings. The chance that he might do this was 
 regarded as a condition subsequent. See Gray's Rule Against Perpetuities, 
 § in. See for the treatment of such remainders under the N. Y. Statute, £ 22, 
 R. P. L. — Ed. 
 
 2 See § 31, N. Y. R. P. L., and § 112, Gray's Rule Against Perpetuities. — Ed. 
 3. The term " freehold " is used here, as often, to denote the present estate in 
 
 possession whether for life or in fee. — Ed.
 
 89O FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 (4.) Where the Event Which Forms the Natural Termination of the Pre- 
 cedent Estate Would Also (Should it Happen Now) Give a Person in 
 Being the Qualification Necessary to Enable Him to Take, is the 
 Remainder Vested or Contingent ? 
 
 In re JACKSON'S DEED. 
 
 4 Keyes (N. Y.) 569; 41 New York, 66; 50 New York, 161. ' 
 
 In 1832 Samuel Jackson conveyed certain lands to his son, John 
 Jackson, " for and during his natural life, and after his decease to 
 his heirs and their assigns forever.' John then had thirteen chil- 
 dren. One of them died prior to 1844 and in that year John executed 
 a deed conveying to his twelve children all his right, title and interest 
 in the said property. One of those children died intestate, unmar- 
 ried, without issue prior to 1848, and in that year John Jackson and 
 his wife executed another deed, whereby they '' granted, bargained, 
 sold, released, conveyed and confirmed " the same land, with all 
 their right, title, interest, etc., to his then eleven surviving children. 
 In 1848 these eleven children undertook to partition this land among 
 themselves by sets of partition deeds some of which were made in 
 that year and some in 1849. In 1861 John Jackson died, one of the 
 eleven children having died before him, leaving an infant child. 
 After the death of John the children, ignoring their partition deeds, 
 effected a new partition by action. 
 
 Sheridan v. House, 4 Abb. Ct. App. Dec. 218; 4 Keyes, 569. 
 (1868). Richard Jackson, a son of John had received a certain 
 parcel of the land by one of the partition deeds in 1849. In 1856 the 
 sheriff sold this parcel on a judgment against Richard and the pur- 
 chaser sold to House. In the action for partition after John's death 
 these premises were again set off to Richard, and on execution against 
 him were sold to Sheridan. This is a case submitted without action, 
 to determine as to which, if either, has the title to this parcel of land. 
 
 The decision below was for the plaintiffs. Defendant appeals. 
 
 This court agreed that under our statute the rule in Shelley's Case 
 could not apply and that the deed from John Jackson carried only 
 his life estate. 
 
 Grover, J., held the remainder contingent and that it could vest 
 in no one until the death of John, by which event his heirs would 
 be ascertained, and the remainder vest; that such an interest 
 not a legal estate and could not under the statutes be sold on execu- 
 tion; that Richard's share of the life estate is all that passed 
 
 1 Also Jackson v. Sheridan, 50 N. Y. 660; Jackson v. Littel, 56 N. Y. 108; House 
 v. U, Cormick, 57 N. Y. 310. — Ed.
 
 La.] KINDS OF FUTURE ESTATES: REMAINDERS. 891 
 
 under the first execution sale. He holds, however, that under the 
 covenants in the partition deeds the shares in this parcel of nine of 
 the children passed by estoppel to Richard on the death of John and 
 so inure to defendant; that the estoppel is not binding on the infant 
 child of Fanny, and that since said chdd was a party to the partition 
 suit its interest in this parcel passed to Richard under the judgment 
 in partition and to the plaintiff under the second execution sale. 
 This would give plaintiff two-elevenths and defendant nine-elevenths. 
 
 Woodruff, J. — * * * Nor is it questioned that by the convey- 
 ance of John Jackson to his children, they acquired, as tenants in 
 common, each an estate for his life in one undivided eleventh part 
 of the land, and that the limitation in remainder gave them as his 
 heirs presumptive, an estate, interest or expectation, which, at his 
 death, they still being alive, would become in them severally an 
 absolute fee. 
 
 If that estate, expectation or interest was alienable, then the deed 
 of partition executed by the eleven children operated to place Rich- 
 ard Jackson, one of their number, in the same relation to the lots 
 assigned and conveyed to him in severalty, in which he was before 
 that deed, to the undivided one-eleventh of the whole property; 
 that is to say, he held an estate for the life of John Jackson in the 
 lots so allotted and conveyed to him in severalty, and he would be 
 entitled to the fee of each one-eleventh part thereof, provided, in 
 respect to each eleventh, the grantor thereof should survive John 
 Jackson. * * * 
 
 On the other hand, if the several grantors in that deed had no 
 estate or interest in the land which was alienable, it conveyed noth- 
 ing, and considering that deed simply as a conveyance, the defendant 
 here has no estate in the lots, because the estate which she claims 
 was derived from a conveyance to her, or to her grantor, before the 
 death of John Jackson. Whether that deed operated as an estoppel, 
 so as to assure to Richard Jackson the fee, when in fact the grantors 
 did survive John Jackson, and thus assured to her the title which 
 they had proposed to convey, I shall not consider. 
 
 I Drefer to rest my conclusions upon the answer which should be 
 given to the question whether the children of John Jackson had, 
 before his decease, an alienable interest or estate in the premises 
 and by this to test the effect of the partition deed and the validity 
 of the defendant's title. And in my opinion the consideration of 
 this question will also determine whether, if alienable, the interest 
 or estate of Richard was subject to levy and sale upon execution 
 against his property.
 
 892 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 The circumstances of the present title would not at the common 
 law have presented the question. The abrogation of the rule in 
 Shelley's Case has created a state of things which at the common law- 
 could not exist; thus by the common law under the rule in Shelley's 
 Case, a grant to A. for life, with remainder to his heirs, gave to A. a 
 fee; no question under the law of remainders could therefore arise 
 under such a grant. And that is the case now before us in which 
 Samuel Jackson conveyed to John Jackson for life with remainder 
 to his heirs. On the other hand, a grant to A. for life with 
 remainder to the heirs of B. did present a case to which the law of 
 remainders was, of course, applicable. 
 
 In considering the effect of the grant under consideration, made 
 since the rule in Shelley's Case was abrogated, we may seek for an 
 anology in the example last named, to wit, a grant to A. for life with 
 remainder to the heirs of B. 
 
 In such case the limitation over to the heirs of B. is by the com 
 mon law wholly contingent. It is not only impossible during the 
 life of B. to say who will be his heirs, and hence, who will be 
 entitled to claim under the limitation, but if B. is living at the death 
 of A., the remainder over will wholly fail, because it cannot take 
 effect at the expiration of the precedent freehold estate upon which 
 it is limited. This last result is now prevented by our revised 
 statutes, 1 R. S. § 725, 34, and therefore the limitation over is 
 operative, and whenever B. dies it will take effect for the benefit of 
 those who may be his heirs. In such case, however, so long as B. 
 lives, A. being also living, there can be no vested estate in remainder 
 under our statutes, because there are no persons in being who would 
 have an immediate right to the possession of the land upon the ceas- 
 ing of the precedent estate; that is, if A. were to die to-day, it would 
 still be uncertain who are the heirs of B., and, therefore, there is no 
 one who under the grant is entitled to possession. 
 
 But now suppose B. dies, then the estate would vest, and for the 
 reason that there are notv persons in being, who, if A. dies to-day, 
 will be entitled to immediate possession. Whether the estate or 
 interest can be defeated by the death of such persons, or by any 
 other future event or not, their interest is vested according to the 
 very terms of our statute. 
 
 It is this precise alteration of circumstances which furnishes 
 examples within the contemplation of our statute in its definition of 
 a " vested future estate " and a " contingent future estate." 
 
 1. An estate is vested where there is a person in being who will 
 take if the precedent estate then terminates. 
 
 2. An estate is contingent while the person to whom . . . it is
 
 I. 2.] KINDS OF FUTURE ESTATES: REMAINDERS. 893 
 
 limited is uncertain, i. e., while it is uncertain who will take if the 
 precedent estate then terminates. 
 
 One definition is the converse of the other, and they are to be read 
 together. 
 
 In the case supposed, then, on the death of B., A. being still alive, 
 the heirs of B. are in a condition to take if A. should then die, and 
 their estate is, by the terms of the statute, a future vested estate. 
 This, in my judgment, illustrates the new case made by our statute 
 abrogating the rule in Shelley s Case. 
 
 Thus John Jackson took a life estate; and every child of his, bear- 
 ing to him such relation, that, at any moment, he would, if John 
 Jackson then died, be entitled to immediate possession, and to hold 
 in fee, had a " vested future estate" under our statute. It was 
 vested, because by the death of John Jackson the precedent estate 
 terminates, and such child, then in being, becomes eo instanti entitled 
 to immediate possession, which is the precise character of one who 
 in the language of our statute has a future vested estate. 
 
 This vested estate might be defeated, because such child might 
 die before his father; but the statute has, nevertheless, made his 
 estate a vested estate, notwithstanding the grant under which he 
 claims has annexed a further condition which may defeat it. 
 
 In short, the statute has made this remainder, although its bene- 
 ficial enjoyment depends upon the condition that he survives his 
 father, a vested remainder liable to be defeated by a condition 
 subsequent. 
 
 Such an estate is, in its nature, devisable, descendible and aliena- 
 ble. 1 R. S. 725, § 35. This is made a general rule, going much 
 farther, and embracing all expectant estates. In this particular 
 case, the death of the party in whom it is vested, before the termina- 
 tion of the precedent estate, would defeat it, but this does not change 
 its legal character; it is still a vested estate, although death may 
 defeat it. It is, therefore, alienable, subject to that contingency, 
 and the deed of partition was therefore inoperative. 
 
 The question remains, could this estate, vested in interest, but 
 liable to be defeated by the death of the person to whom it was 
 limited, be sold under execution? 
 
 Our statutes declaring the lien of judgments, and authorizing sales 
 by virtue of execution, apply to " land, tenements, real estate and 
 chattels real." 2 R. S. 359, § 3; 363, § 2; 367, § 24 et seq.\ 373, 
 § 61 et seq. 
 
 If the words " lands or real estate " embrace such an estate as 
 that in question, then it was subject to sale on execution, and the 
 defendant acquired title, defeasible as to any share of one-eleventh,
 
 894 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 by the death of one of the eleven children of John Jackson before 
 his decease, and actually defeated, as to the one-eleventh conveyed 
 to Richard Jackson by his sister, Fanny Baldwin, who died before 
 her father. 
 
 Concede that a possibility of reverter, as in 4 Den. 412, a naked 
 possibility, as in Edwards v. Varick, 5 Id. 664, or a merely equitable 
 interest, trustees being in possession, holding the legal title, as in 
 Brewster v. Striker, 2 N. Y. 19; or other purely equitable interest, 
 unaccompanied by possession, as in Sage v. Cartwright, 9 Id. 49, or 
 a contingent remainder, as in Striker v. Mott, 28 Id. 82, cannot be 
 sold on execution. This is far short of holding that a vested estate 
 in remainder, only liable to be defeated by a subsequent event, may 
 not be. 
 
 The subject of sale here was an estate in the land, a legal estate, 
 vested in interest by the very terms of the statute, and alienable by 
 the owner thereof; this is " real estate," and by such name is sub- 
 ject to levy and sale. 
 
 For these reasons, I think the judgment of the Supreme Court 
 must be reversed. 
 
 The appellant appears, by the pleadings, to claim but ten-elevenths 
 of the premises, and seems to concede that the death of Fanny 
 Baldwin defeated her title to one-eleventh of the premises. This is 
 clearly so at law; and it is not claimed that there are any equities 
 arising out of the partition deeds which inure to the benefit of 
 the defendant to make her purchase effectual as to that one-eleventh. 
 
 The judgment should be reversed, and judgment ordered affirming 
 the title of the defendant to ten-elevenths and of the plaintiff to 
 one-eleventh part of the premises in fee. 
 
 A majority of the judges concurred in this opinion. 
 
 Moore v. Littel, 41 N. Y. 66 (1869). By the partition deeds of 
 1848 nine of the children of John Jackson set off by warranty deed 
 to Parmenus and Edward a certain lot. Parmenus and Edward 
 mortgaged the premises, the mortgage was foreclosed and plaintiff 
 became the owner in 1855. This action is ejectment against a lessee 
 (in i860) of one of the mortgagors. Two questions are said to arise. 
 Had the children of John Jackson any interest in the fee of the 
 premises, which they could convey at the time when the deeds in 
 partition were executed and if not, are they estopped by the parti- 
 tion deeds? 
 
 Woodruff, J. — * * * This liability of the precedent life estr.te 
 to I"- determined before the actual decease of the tenant for life, 
 has led to a discussion of the question whether, after a grant to one,
 
 I. 2.] KINDS OF FUTURE ESTATES; REMAINDERS. 895 
 
 so long as he lives or so long as he lives a natural life, and after his 
 decease, to another, does not necessarily create a contingent 
 remainder. 
 
 This was the decision of the courts in New Hampshire in Hall v. 
 JVu/e, 38 N. H. 422, and Hayes v. Taber, 41 N. H. 421.' But this 
 decision has been the subject of criticism, and cannot be said to be 
 generally approved, while the contrary has often been stated and 
 held on the ground that it is uncertainty in the right of enjoyment, 
 and not the uncertainty of its actual enjoyment that renders an 
 estate contingent. 
 
 And this suggests again the inquiry whether, if it be inevitably 
 true in a given case that the determination of the life-estate cannot 
 happen without eo instanti entitling the remainderman to possession, 
 he has not a vested remainder. 
 
 In general, the answer must and will be in the affirmative. But it 
 is said that where the remainder is limited to the heirs of the tenant 
 for life, there, even if you can exclude all possibility of terminating 
 the particular estate by means other than the death of the tenant, 
 no one can have a vested estate in remainder, because two events, 
 in legal theory, must happen before his right is absolute: 1. The 
 tenant must die and terminate the particular estate. 2. The tenant 
 must die and so ascertain his heirs. 
 
 That although the single fact, to wit, the death of the tenant, 
 accomplishes both results, and although if that death should now 
 happen, there is a person immediately entitled to take, still, the 
 character of heir must be gained before the remainder can vest in 
 possession, and the remainder must vest on the instant of the death; 
 and so in theory, the former must precede the latter. 
 
 It would be doing no violence to good sense to say that, when the 
 same fact, the death of the tenant for life, at the same instant must 
 determine who is heir and vest the remainder in possession, then it 
 is true that there is at any time an ascetained person who has capacity 
 to take if the present estate then determines. 2 
 
 In such case, the test proposed by Nelson, Ch. J., in Hawley v. 
 James, 16 Wend. 137, would be apt to determine that a remainder is 
 vested in any case in which the particular estate can only be deter- 
 mined by the death of the tenant for Ufa, viz., when nothing can 
 
 1 '■ Inexplicable aberrations of an able but eccentric court." Gray's Rule 
 against Perpetuties, § 103, n. — Ed. 
 
 * Relying on Chancellor Kent's assertion that the New York definition (§ 30 
 R. P. L.) "appears to be accurately and fully expressed," certain courts have 
 called such a remainder as this vested on supposed common law principles. 
 See Gray's Rule against Perpetuities, £ 107 n. — Ed.
 
 896 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 prevent such remainder from vesting in possession but the death of 
 the remainderman before the termination of the life estate. 
 
 It is not, however, in my judgment, profitable or necessary to the 
 view which I intend to suggest, that I should pursue the considera- 
 tion of the peculiar case created by the grant now in question, if it 
 were to be governed by the refinements of the common law, under 
 the influence of its feudal customs, restrictions, complications, and 
 of the ingenuity and learning sometimes employed to avoid rather 
 than give rational effect to the intentions of parties. 
 
 It was one of the objects of our Revised Statutes to reduce to 
 greater simplicity the rules governing the taking, holding, and 
 transmitting of real estate, and, espectially, to favor the vesting of 
 estates and the alienability thereof. 
 
 And in my judgment, the statute definition of remainders vested 
 and contingent, in connection with other statutes, forming part of 
 an entire system, has made the answer to some of the questions 
 above proposed, simple and easy; and I have occupied time in the 
 preceding discussion, chiefly that the design and meaning of the 
 statute might be more clearly apparent. * * * 
 
 It was argued on this appeal, that definitions of vested and con- 
 tingent remainders in adjudged cases, and text writers have not been 
 successfully attempted, and that our revisors did not attempt to alter 
 the law, or do more than describe what had already been adjudged 
 to be vested, and what to be contingent. 
 
 In my opinion, they have defined a vested remainder in terms that 
 do clearly avoid much of the uncertainty in which the subject was 
 before involved, and in such terms that it is now true, that if there 
 be a person in being of whom it can be positively averred, that if the 
 estate for life were now to cease he would have an immediate right 
 of possession, he has a vested remainder; and notwithstanding sub- 
 sequent events may defeat it, the operation of the statute itself is to 
 make them subsequent conditions. 
 
 Why was a remainder to the heirs of A. after the expiration of the 
 life-estate of B. contingent at the common law? Because B. might 
 die before it was ascertained who are the heirs of A. 
 
 Why is it said that a remainder to the heirs of A., after the deter- 
 mination of a life-estate in A. is contingent? Because the life-estate 
 may, at the common law, be determined before it is ascertained who 
 are the heirs of A. 
 
 I [em e the introduction, into the various definitions, of the qualifi- 
 es so much insisted upon in the argument of this appeal, that 
 no ■ 51 ite can vest until the person in whom it is to vest shall be 
 rtained; .'iml from this it follows, if there be some condition
 
 I. 2.] KINDS OF FUTURE ESTATES: REMAINDERS. 897 
 
 which must be fulfilled, before the person who will take on the deter- 
 mination of the precedent estate is known, there can be no vested 
 remainder. 
 
 But here suppose, that the one sole condition, to wit: The deter 
 mination of the precedent estate is all that is necessary to entitle a 
 person in esse to take, it is not denied that such a person has a vested 
 remainder. Why, then, if the precedent estate can only be deter- 
 mined by the death of the life tenant, and by that death the heirship 
 is alike also determined, is not the statute definition in all respects 
 satisfied? It makes the precise case described, and I deny the right 
 to interpolate qualifications drawn from the refined reasoning of cases 
 or text books, prior to the statute, to limit the operation of its 
 plain terms. 
 
 Now, in the case before us of an estate in John Jackson for his 
 natural life, with remainder to his heirs, I know of nothing other 
 than the death of John Jackson which would determine the life- 
 estate which was vested in him; his interest may cease by convey- 
 ance or other transfer, but the life-estate will continue until his 
 natural death. He could do nothing which would defeat the 
 remainder. 1 R. S. 725, § 32. 
 
 He could do nothing which would extinguish the life-estate by 
 merger in the inheritance. 
 
 His alienation, or attempted alienation, by feoffment, fine and 
 recovery, or otherwise, of a greater estate than his own, could not 
 forfeit the life-estate, or determine it, because feoffment and livery 
 of seisin are abolished here; we have no fine and recovery; and, 
 finally, conveyances here by a tenant for life, although in form con- 
 veying a greater estate than he possesses, do not work a forfeiture 
 of his estate, but will pass to the grantee such estate, title and 
 interest as he can lawfully convey. 1 R. S. 738, § 1, p. 739,. 
 
 §§ J43, M5- 
 
 Whatever effect the disclaimer of his landlord's title, by a tenant 
 
 for years, in any possible form, by record or otherwise, may have 
 upon his rights as between him and his landlord, no disclaimer by 
 John Jackson could operate to extinguish the life-estate. See Jack- 
 son v. JVoves, 11 J. R. 33; Jackson v. Vincent, 4 Wend. 63$; 1 Wash- 
 burn on Real Property, 92. 
 
 Conviction of felony no longer works a forfeiture. 2 R. S. 701, 
 
 § 22 - 
 
 And whatever was the effect of an attainder of treason in England, 
 
 it is clear that here, since it is enacted that no act of the tenant for 
 
 life, nor any destruction of the precedent estate shall defeat the 
 
 remainder, no outlawry upon conviction of treason which operates as 
 
 LAW OF PROP. IN LAND — 57
 
 898 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 a forfeiture during his life only, 2 R. S. 656, § 3, can have any 
 effect except as a transfer of such life-estate. 
 
 Our statutes have, therefore, taken the case out of the condition 
 of a contingent remainder at the common law, and have brought it 
 within the statute definition; and for the reason that in respect 
 to any child of John Jackson, it was, at any and every moment of 
 his life, inevitable and unquestionably true that if John Jackson 
 then died, he would have an immediate right of possession of the 
 lands. During John Jackson's life he was not heir, and had not 
 such right; the one event, which might at any moment happen, 
 determined the life-estate, and eo instanti being " heir," he was 
 entitled to possession; not by descent, but by " purchase," the 
 statute declares. 
 
 But it has been argued that this construction of the definition of 
 vested remainders, leaves very little room for the application of the 
 definition of a contingent remainder, which immediately follows, and 
 that it withdraws entirely from the test of their character, in this re- 
 spect, the certainty or uncertainty of the person entitled in remainder. 
 
 So far as it can be shown that the statute, or any sensible con- 
 struction thereof, tends to the holding of estates vested, rather than 
 contingent, so far that construction is strengthened and sus- 
 tained by the policy of the law, which always favored such holding. 
 And it will be no evil in this country that those interests, which, by 
 reason of contingencies or possibilities, are often held withdrawn 
 from the ordinary incidents of property, are few. 
 
 But the construction given to the definition, does by no means 
 destroy the effect of the definition of a contingent remainder. 
 
 That definition is to be construed in connection with the other, if 
 there is no person who would have an immediate right of possession 
 upon the ceasing of the intermediate or precedent estate, i. e., if no 
 person can be found of whom this can now be avowed, either because 
 if that precedent estate should now cease, it would be uncertain who 
 was entitled, or whether the event upon which it was limited would 
 happen; then the remainder is contingent. * * * 
 
 2d. If the preceding reasoning be wholly fallacious, and be deemed 
 to give an interpretation to the statute, and a construction to the 
 law, which is unsound, I am wholly unable to see how the result to 
 the present appellants would be different. 
 
 The alternative insisted upon is, that since our statutes, and not- 
 withstanding <>ur statutes, the children of John Jackson had only 
 contingent remainders in fee of the land, whereof they made par- 
 tition, and that, therefore, they conveyed nothing by the deeds they 
 severally executed.
 
 I. 2.] KINDS OF FUTURE ESTATES: REMAINDERS. 899 
 
 Here again, the change made by our Revised Statutes is important. 
 
 A contingent remainder, it is said in the books, was alienable 
 when the uncertainty which made it contingent was in the event 
 upon which it was limited to take effect, and was only inalienable 
 when it was uncertain to whom the remainder was limited; and this 
 distinction is affirmed and relied upon by the counsel on this appeal. 
 See Washburn on Real Prop. 237-8; Williams on Real Prop. 232-4; 
 Preston on Estates, 76. Though this distinction has often been 
 overlooked or denied. See Striker v. Mott, 28 N. Y. 82; Williams 
 on Real Prop. 231; 4 Kent, 261-2. 
 
 It is now insisted that our statute has both affirmed and perpetu- 
 ated this distinction. 
 
 The frame of the statute, and its language, are inconsistent with 
 this; and the whole policy of our law which encourages the free 
 transmissibility of property of every description is in marked 
 hostility to it. 
 
 As above shown, " expectant future estates " as defined in the 
 statute, do expressly include all remainders, whether vested or con- 
 tingent. Not only so, the " expectant future estates," of which the 
 article treats, are declared to be " contingent, whilst the person to 
 whom, or the event upon which they are limited to take effect 
 remains uncertain." And notwithstanding the uncertainty in the 
 person who may in the future be entitled thereto, the expectancy 
 or estate is declared to be a " remainder," and " it may be created 
 and transferred by that name." Nothing can more clearly declare, 
 therefore, that a remainder, which is contingent because the person 
 to whom it is limited is uncertain, is an expectant estate. And there- 
 upon, the statute declares, that expectant estates are descendible, 
 devisable, and alienable. 
 
 Instead of perpetuating, this abrogates all distinctions, and gives 
 to all expectant estates, of whatsoever description, and whether 
 vested or contingent, and whether contingent upon an event which 
 may never happen, or by reason of uncertainty in the person, the 
 character or quality of alienability. 
 
 It is argued that another section of the statute restrains the effect 
 of the first, to wit: " The absolute power of alienation is suspended 
 when there are no persons in being by whom an absolute fee in pos- 
 session can be conveyed," and such suspension for more than two 
 lives in being shall render the future estate, which works that result, 
 void. 
 
 These provisions were not intended, and do not operate to restrain 
 alienation at all; they are made and intended expressly to prevent 
 such restraint, except within brief limits.
 
 900 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 They do not import that the contingent remainder may not be 
 aliened, but only when contingent remainders are so limited that, 
 for a period not authorized, an absolute fee cannot be conveyed, 
 the future estate having this effect shall be void. 
 
 Indeed the alienation of the contingent remainder is entirely con- 
 sistent with inability to convey an absolute fee. Where the succes- 
 sive estates are all valid, every person in being having any vested or 
 contingent interest may often convey, and they may be entirely 
 capable of conveying, and yet no absolute fee be conveyed. It is to 
 prevent this, for too long a period, that the statute declares the 
 effect of such a restraint of alienation. 
 
 These are the words, also, of the statute, " The absolute power of 
 alienation is suspended when there is no person by whom an abso- 
 lute fee in possession can be conveyed; " this is not saying that a 
 future estate in expectancy cannot be aliened when there is no person 
 by whom an absolute fee can be conveyed; and yet, this is the 
 inference urged upon us. 
 
 It might as well be argued that the precedent life-estate cannot be 
 aliened when there is no person by whom an absolute fee can be 
 conveyed; and it is like the argument that because an estate is 
 limited to an unborn child, such limitation, perse, imparts to the 
 estate itself the quality of inalienability, because, until the child is 
 born, he cannot convey. The contingency of birth may make an 
 estate contingent, but the physical fact of inability to convey does 
 not affect its quality. It may be a remainder in fee simple, or a 
 term for years, or for life; their quality of alienability does not 
 depend upon the question whether the remainder is limited to one 
 who has legal or physical capacity to convey, but upon its essential 
 nature. If contingent, then the statute says it is alienable, /'. e., it 
 has that character and quality. 
 
 Whether the absolute fee in land may not be so situated that the 
 actual alienation of all present vested and contingent interests will 
 not avail to convey an absolute fee in possession, is a totally differ- 
 ent question, and one on which the alienability of the contingent 
 remainders in nowise depends. 
 
 It is, of course, true that in the present case the contingent estate 
 of no child of John Jackson could descend, or be devised; but this 
 is not because the statute has not given to all contingent remainders 
 the quality of being devisable, descendible and alienable, but because 
 in the special instance before us the death of such child would 
 defeat it. The statute is to be applied according to the nature of 
 the contingency, and in consistency with it.
 
 I. 2.] KINDS OF FUTURE ESTATES: REMAINDERS. 9OI 
 
 An expectant estate for life, clearly vested, is alienable, but is not 
 descendible nor devisable in its very nature. 
 
 The statute designed to give to ail expectant estates, vested or 
 contingent, the same character and quality in these respects. The 
 actual ability to devise or transmit, or to convey, and the efficiency 
 of alienation to confer an absolute fee, it was not the purpose of the 
 statute to declare. In the case above referred to (Lawrence v. 
 Bayard}, the chancellor declares that the statute making expectant 
 estates alienable includes every present right or interest, either 
 vested or contingent, which may by possibility vest in possession at 
 a future day. The mooted question whether a mere possibility, 
 coupled with an interest, is capable of being conveyed or assigned at 
 law is, therefore, forever put at rest in this State. Miller v. Emans, 
 in this court, 19 N. Y. 384, supports the alienability of remainders, 
 though contingent. Upon this ground, if I am wholly wrong in the 
 point first discussed, the judgments should be affirmed. 
 
 Grover, J., dissents on all points. All the judges, except Grover, 
 agreed that the interest was alienable, whether vested or not. 
 
 House v. Jackson, 50 N. Y. 161 (1872). Under the partition 
 deeds Edward Jackson was assigned the lot in question. His share 
 was sold out on execution in 1857 and this title came to plaintiff. In 
 a partition suit defendant, the widow of Edward, who died in 1863, 
 claims dower. 
 
 Peckham, J. — * * * I see no objection to the merger of this 
 life-estate of John Jackson, the father, in the vested remainder of 
 his son, the husband of Mary L. Jackson, under the decision of Moore 
 v. Littel, 41 N. Y. 66. This is a part of the same estate there 
 adjudged. If the son should die in the lifetime of the father, I think 
 the better opinion is that the estates divide again and the widow is 
 then not entitled to dower. 
 
 Moore v. Littel, holds the estate of the son, prior to the death of 
 the father, to be a vested remainder; the son was also seised in fact 
 and in law of his father's life-estate, and then became seised of the 
 inheritance, subject to being defeated by his own death, prior to the 
 decease of his father. In such case I think the wife has dower, sub- 
 ject to being defeated by the same means. The plaintiff claims that 
 the sale of the son's life-estate upon execution cut off his title. 
 
 It is a settled rule of the common law, laid down in the elementary 
 books, that after dower has once attached, it cannot be extinguished 
 or suspended by any act of the husband alone, in the nature of alien- 
 age or charge. Park, 191.
 
 902 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 The rule is adopted in much broader language in our statute, 
 i R. S. 742, § 16. 
 
 At common law there might have been an intermediate estate for 
 years and yet the wife had dower — as estates for years were not 
 highly regarded at common law. But cessit executio during the term. 
 Com. Dig. Dower, A. 6; Perk. § 336. 
 
 So, if there be a mesne remainder for life, who surrenders his 
 estate to the tenant for life (Id.), though the surrender be upon con- 
 dition, for the estate is gone until the condition be broken. Id. 
 
 In this case there is no intervening estate. The husband is seised 
 of the life-estate in fact and in law, and he is also seised of a vested 
 remainder as adjudged, subject to be defeated of the remainder by 
 his death prior to that of his father. 
 
 This is such a seisin as prevents the alienation of the estate or its 
 incumbrance, to the prejudice of the wife's dower. In other words, 
 dower attaches to such an estate, subject to be defeated as above 
 stated, and as the husband survived the father, his dower becomes 
 absolute. The decree must be modified according to these views, 
 with costs to her — no costs to either of the others, and the cause 
 remitted for further proceedings. 1 
 
 CARMICHAEL v. CARMICHAEL. 
 43 New York, 346. — 1868. 
 
 Clerke, J. — Daniel Carmichael died September 3d, 1849, leaving 
 the defendant, his widow, and six children, him surviving. The 
 eldest of them (Otis) was the child of a first marriage. He did not 
 live with his father, but lived in Middletown, in this State, where 
 his father provided for him. At the time of his father's death he 
 was an invalid, and he died about two years afterward. He married 
 the plaintiff soon after his father's death, the engagement having 
 been made prior to that event; he left one child. Daniel Carmichael, 
 shortly previous to his death, made a will, of which the following is 
 a copy: [ The material part only is given here.] 
 
 " After the payment of all my debts, I give, devise and bequeath 
 
 1 See also Mead v. Mitchell, 17 \ T . V. 210; Minot v. Minot, 17 App. Div. (N. Y.) 
 521: Lawrence v. Bayard^ 7 Paige Ch. 70; Coster v. Lorillard, 14 Wend. 310. 
 In the last named case the judge boldly declares such a remainder both vested 
 and 1 intingent. See also discussion of this subject in Chaplin on Suspension of 
 the Power of Alienation, §§ 2S-52, and Gray's Rule Against Perpetuities, 
 ;; [04-108. — Ed.
 
 I. 2.] KINDS OF FUTURE ESTATES: REMAINDERS. 903 
 
 ail and singular my estate and property, of whatsoever kind, and 
 wheresoever the same may be situate, unto my belowed wife Eliza, 
 for and during the term of her natural life; and from and after her 
 decease, then I give, devise and bequeath the same unto my children, 
 who may be then living, in equal parts, share and share alike — it 
 being distinctly understood that the part or share of my son, Otis 
 Carmichael, under said division or appropriation, shall be held and 
 invested by my surviving executor, his heirs and assigns, in trust, to 
 keep the same well and securely invested during the lifetime of my 
 said son, and to pay over to him, my said son, the rents, income and 
 interest thereof as received, and to dispose of and apply the princi- 
 pal of said share as my said son may by his last will and testament, 
 or any instrument in the nature thereof, direct, limit and appoint. 
 And in default of such direction, then to the right heirs of my said 
 son, under the intestate laws of New York." * * * 
 
 This will was admitted to probate on or about the 15th of October, 
 1S49, before the surrogate of the county of Broome. Otis Carmichael, 
 previous to his death, made a will, by which he gave to his wife (the 
 plaintiff) the annual sum of $500 during her natural life; and he 
 further gave unto her, in trust, for the maintenance and education 
 of his son, all the annual proceeds of his real and personal property, 
 until his son should attain the age of twenty-one years. He secondly 
 devised and bequeathed unto his son, all his real and personal prop- 
 erty, subject to the annual payments given to his wife. 
 
 This action is brought b)- the widow of Otis, for the purpose of 
 compelling the defendant, executrix of the will of Daniel Carmichael, 
 to render an account of his property and effects, which may have 
 come into her hands as such executrix; and, after the accounting, 
 it is prayed that the same may be divided, and that the defendant be 
 adjudged to pay over to the plaintiff, one-sixth part of the estate of 
 Daniel Carmichael, with interest thereon from January 1, 1850. 
 
 The defendant demurred to the complaint, upon the ground, first, 
 that the plaintiff had no legal capacity to sue, and, second, that the 
 complaint does not state facts sufficient to constitute a cause of 
 action. 
 
 The demurrer was sustained, both at the Special and General Term. 
 
 The demurrer was properly sustained. The widow of Daniel Car- 
 michael is living, and, by the express provision of his will, she is 
 entitled to all the use and enjoyment of his property during the term 
 of her natural life; and she is under no obligation to account to any 
 of the children, for the purpose of having it divided among them. 
 The estate does not vest in remainder until her death; and then it 
 vests only in those children who shall be living at the time of her 

 
 904 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 death. The plaintiff, under the will of Otis Carmichael, acquired no 
 
 estate or interest in the property of Daniel Carmichael, and has, in 
 
 fact no standing in court. 
 
 Judgment affirmed. 
 
 HENNESY v. PATTERSON. 
 85 New York, 91. — 1881. 
 [Reported herein at p. 868. ]> 
 
 d. Alternate remainders} 
 
 WHITESIDES v. COOPER. 
 
 115 North Carolina, 570. — 1894. 
 
 [Reported herein at p. 877.] 
 
 WADDELL v. RATTEW. 
 
 5 Rawle (Pa.), 230. — 1835. 
 
 [Reported herein at p. — .] 
 
 MORSE v. PROPER. 
 
 82 Georgia, 13. — 188S. 
 [Reported herein at p. 8S2.] 3 
 
 e. Acceleration of remainders. 
 
 Andrews, J., in PURDY v. HAYT. 
 
 92 New York, 446. — 1883. 
 
 It is provided by the seventeenth section of the article of the 
 Revised Statutes, before referred to, that " successive estates for 
 lift; shall not be limited unless to persons in being at the creation 
 
 1 For comment on this case see Minot v. Minot, 17 App. Div. (N. Y.), 521, and 
 Chaplin, ££ 49-51. See n. 37 Hammond's Ed. 2 Blk. Com. — Ed. 
 'See N. Y. R. P. L. §41.— ED. 
 Foi ■; 1 ase in which the rule in Shelley's Case prevents an alternate remainder 
 rorn arising, sec Loring v . Eliot, supra, p. S57. — Ed.
 
 I. 2.] KINDS OF FUTURE ESTATES — REMAINDERS. 905 
 
 thereof; and where a remainder shall be limited on more than two 
 successive estates for life all the life-estates subsequent to those of 
 the two persons first entitled thereto shall be void, and upon the 
 death of those persons the remainder shall take effect in the same 
 manner as if no other life-estates had been created." 1 R. S. 723, 
 §17.' The prohibition against the creation of more than two suc- 
 cessive life-estates in the same property has no necessary connection 
 with the law of perpetuities. There is no suspense of the power of 
 alienation of land by the creation of successive life-estates therein 
 unless they are contingent. Any number of successive vested life- 
 estates may be created without violating the statute of perpetuities. 
 The prohibition against creating more than two successive life- 
 estates in the same property applies to such estates, whether vested 
 or contingent. The policy of the prohibition, where applied to 
 vested and therefore alienable interests, need not be considered. It 
 is sufficient to say that it was regarded by the Legislature as not 
 imposing an undue restraint upon the owner of property, and the 
 provision is in harmony with the general rule prescribing the period 
 during which the power of alienation of land may be suspended, viz., 
 two lives in being at the creation of the estate. The statute, how- 
 ever, does not avoid the whole limitation where more than two suc- 
 cessive life-estates are limited. It permits the first two to take effect, 
 avoiding those only which are in excess of the permitted number. 
 So also the seventeenth section preserves a remainder limited on 
 more than two successive estates for life. But we apprehend that 
 the section must be construed as referring to vested, and not to 
 contingent remainders. It cannot in reason, or by its true construc- 
 tion, be held to apply to the latter. Where the right of the remain- 
 derman is vested, and the right of possession only is postponed, the 
 statute, in cases of three or more precedent estates for life, acceler- 
 ates the period fixed by the will or deed for the vesting of the 
 remainder in possession, and vests it immediately upon the termina- 
 tion of the two estates for life first created. The statute so far 
 overrides the precise intention of the grantor or testator, as 
 expressed in the will or deed, but as the possession in the remainder- 
 man was postponed, presumably for the purpose of allowing an 
 intermediate life-estate to run, and that purpose being defeated by 
 section 17, the statute, by accelerating the remainder, gives effect 
 as near as may be to the intention of the creator of the estate. But 
 where the gift in remainder is upon a contingency which has not 
 happened at the time of the death of the second life tenant, so that 
 
 '§33 N. Y. R. P. L. — Ed.
 
 906 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CII. VI. 
 
 it cannot then be known who. will be entitled in remainder according 
 to the terms of the instrument creating the estate, the statute, we 
 conceive, can have no application. 
 
 The construction that section 17 applies only to vested remainders, 
 is, moreover, sufficiently plain upon its language. The remainder, 
 the section says, is to take effect in the same manner as if no other 
 life-estate had been created. Where the remainder was contingent 
 when the life-estate commenced, and remains so at the death of the 
 tenant of the second life-estate, it would not vest, although no other 
 life-estate had been created, and the statute gives effect to remain- 
 ders only in the same manner as if limited upon two life-estates 
 instead of three. It is plain we think that the statute only executes 
 the remainder in possession in favor of such ascertained persons as, 
 except for the void life-estate, would under the terms of the will or 
 deed, be entitled to the immediate possession. See Knox v. Jones, 
 47 X. Y. 397; Smith x. Edwards, 88 Id. 104. 1 
 
 3. Executory Future Estates or Interests." 
 
 1 See also Dana v. Murray, 122 New York, 604. — Ed. 
 
 5 " Executory limitations." These were originally future estates of freehold 
 not created by livery of seisin. Such estates were not possible at common law 
 except in one or two localities in England where lands were subject to devise 
 prior to the Statute of Wills. They ordinarily arose either under conveyances 
 operating under the Statute of Uses (27 Hen. VIII. Cap. 10) or by virtue of devises 
 under the Statute of Wills (32 Hen. VIII, Cap. 1.) But even in such cases 
 where a freehold estate was created to take effect as soon as the instrument 
 should become operative aftd was to be followed by a future estate which would 
 have been a valid remainder (vested or contingent) had livery been made, the 
 courts construed the estates on common-law principles. So also a future estate 
 dependent upon a particular estate which was itself to begin in futuro would be 
 converted into a remainder, if possible, the moment the particular estate should 
 vest in possession. And a future use or executory devise capable of being con- 
 strued as a remainder could not afterwards be saved by adopting a more liberal 
 construction in case as a remainder it should fail. See Waddell v. Rattciu, p. 
 932, infra. 
 
 Executory future estates may now be created in one of the following ways: 
 (ii! ;y an instrument operating to create a legal estate by virtue of the Statute of 
 Uses. Such future estates are either shifting or springing uses. (2) By a 
 devise under the Statute of Wills, — ;in executory devise. (3) Under statutes 
 which declare that corporeals as well as incorporeals shall lie in grant instead 
 of in livery (see §§ 16 and 17, Gray's Perpetuities), or perhaps under statute^ 
 which merely abolish feoffment and livery of seisin. See Wyman v. Brown, 
 infra, \>. 909, (4) Under special statutory systems regulating the creation of 
 future estates, as in New York, and the states which have copied from it, Wis- 
 consin, Minnesota, Michigan and others. See for New York, §§ 206, 25-54,
 
 I. 3.] EXECUTORY FUTURE ESTATES. 907 
 
 a. Shi/ting executory future estates, " conditional limitations."* 
 HATFIELD v. SNEDEN. 
 
 54 New York, 280. — 1873. 
 [Reported herein at p. 641. ] 3 
 
 b. Springing executory limitations . % 
 
 KENYON v. SEE. 
 
 94 New York, 563. — 1884. 
 
 Accounting of the executors of the will of John Mildeberger. 
 The will gives one-third of testator's real and personal property to 
 S. M. Spencer, in trust to pay the interest thereoTT6~testator's 
 " grandson, Seymour Hobart Spencer, upon the express condition 
 that the said Seymour Hobart Spencer shall renounce the Roman 
 Catholic priesthood, said payment of interest to commence at the 
 time of such renunciation, and upon the further condition that the 
 said Seymour Hobart Spencer shall marry" the principal of said 
 trust fund is given to said S. H. Spencer. In case of the death of 
 S. H. Spencer before marriage, his share is given to S. M. Spencer. 
 S. H. Spencer executed an instrument under seal professing to 
 assign all his rights under the will to S. M. Spencer and the executor 
 paid to S. M. $28,000, on account of his share and that of S. H. 
 S. M. died and his executors now claim the balance of the two shares. 
 The accounting executor claims that S. H.'s share was not assigna- 
 ble and must remain in the hands of the trustees to await perform- 
 ance of the condition. 
 
 Andrews, J. — Seymour H. Spencer took no vested estate or 
 interest in the principal or income of the fund given in trust to Sel- 
 
 N. Y. R. P. L. In New York these future estates may be called " remainders " 
 if there is any sort of a precedent estate; otherwise they are simply "future 
 estates." — Ed. 
 
 1 These include shifting uses, shifting executory devises, and shifting estates 
 of any kind authorized by special statute. As to the term " conditional limita- 
 tion " see note, p. 551, supra. Alternate remainders and the like are to be care- 
 fully distinguished from these limitations. See p. 904, supra. — Ed. 
 
 2 See also Turner v. Wright, supra, p. 391; Adams v. Ross, supra, p. 483; Evans 
 v. Evans, p. 669; Ed-wards v. Bibb, p. 671. — Ed. 
 
 3 Here no present estate at all is created, but the fee is left in the grantor or 
 his heirs, or the heirs of the testator, until the happening of the future event on 
 which the future estate is limited to commence. — Ed.
 
 908 future estates and interests in land. [PT. IV. CH. VI. 
 
 den M. Spencer by the eighth clause of the will of the testator, 
 John Milderberger. The right to either was conditional. He was 
 entitled to the income only upon and from his renunciation of the 
 Roman Catholic priesthood, and to the principal only upon his mar- 
 riage. The conditions were precedent, and, until performance, he 
 took no interest, legal or equitable, in the fund. The tenth clause 
 makes an alternative gift of the trust estate to Selden M. upon his 
 marriage, in case of the death of Seymour H., without having mar- 
 ried. This gift was conditional also, there being a double con- 
 dition, first, the death of Seymour H. before his marriage, and 
 second, the marriage of Selden M. If the contingent interest of 
 Selden M. did not lapse upon his death before Seymour H., or in 
 other words, if it survived and was transmissible like a vested 
 interest, then the appellant must fail, as he has no interest which 
 can be affected by the decree of the surrogate. We think this con- 
 tingent right passed on the death of Selden M. to his representa- 
 tives, and that, on the death of Seymour H. before marriage, they will 
 be entitled to the fund. The survivorship of Selden M. is no part of 
 the contingency upon which the gift to him is limited. The tes- 
 tator, as the will indicates, intended to make a complete disposition 
 of his property. The alternative disposition was made to meet the 
 contingency that Seymour H. might not accept the conditions upon 
 .which the gift to him depended. There is no reason to suppose 
 that the testator intended to confine the benefit of this provision to 
 Selden M. personally, and to exclude his family or descendants 
 when he made marriage one of the conditions of his taking at all. 
 If the continued existence of the legatee, in case of a contingent 
 legacy, is part of the contingency upon which the gift is limited, 
 then there can be no doubt. But in this case the personal enjoy- 
 ment of the legacy by Selden M. was not made essential to its taking 
 effect. The general rule is that contingent interests are assignable, 
 devisable and descendible. " In general," says Fearne, " it seems 
 that contingent interests pass to the real and personal representa- 
 tives, according to the nature of such interests, as well as vested 
 interests, so as to entitle such personal representatives to them 
 when the contingencies happen." Fearne on Cont. Rem. 364. 
 The rule stated by the learned author is supported by numerous 
 authorities. Pinbury v. Elkin, 1 P. Wms. 563; King v. Withers, 
 Temp. Talb. 117; Chancy v. Graydon, 1 Atk. 616; Barnes v. 
 Allen, 1 Bro. Ch. Rep. 181; Winslow v. Goodwin, 7 Mete. 363. 
 
 Here one of the conditions upon which Selden M. was to take, 
 viz., marriage, was performed before his death. The other con- 
 dition, viz., the death of Seymour H. before marriage, has not hap-
 
 I. 3.] EXECUTORY FUTURE ESTATES. 909 
 
 pened. It may never happen, as Seymour H. may marry, how- 
 ever improbable this may be. If he does marry, then he will be 
 entitled to the third part of the estate of the testator, under the 
 will, unless his attempted transfer to Selden M. operates as an 
 estoppel. In either event, whether Seymour H. takes, or the repre- 
 sentatives of Selden M., the appellant has no interest. One of the 
 two things will happen, and which is a matter with which he has no 
 concern. No question is made as to the validity of the trust in the 
 will of John Milderberger. 
 
 We think the case was properly disposed of by the surrogate, and 
 that the judgment of the General Term should be affirmed. 
 
 Judgment affirmed. 1 
 
 Walton, J., in WYMAN v. BROWN. 
 
 50 Maine, 139. — 1863. 
 
 Another question raised in this case is, whether the deed from 
 Mrs. Brown to Oliver S. Nay was valid. The objection to it is, that 
 it purports to convey a freehold estate to commence in futuro; and 
 such is its effect, for by its terms Mrs. Brown was " to have quiet 
 possession, and the entire income of the premises until her decease." 
 
 Deeds in which grantors have reserved to themselves estates for 
 life are believed to be very common in this State; and whether or 
 not such deeds are valid is certainly a very important question, and 
 ought to be authoritatively decided. 
 
 It was a principle of the old feudal law of England that there 
 should always be a known owner of every freehold estate, and that 
 the freehold should never, if possible, be in abeyance. This rule 
 was established for two reasons: 1. That the superior lord might 
 know on whom to call for the military services due from every free- 
 holder, as otherwise the defense of the realm would be weakened. 
 2. That every stranger who claimed a right to any lands might know 
 against whom to bring his suit for the recovery of them; as no real 
 action could be brought against any one but the actual tenant of the 
 freehold. Consequently, at common law, a freehold to commence 
 in futuro could not be conveyed, because in that case the freehold 
 would be in abeyance from the execution of the conveyance till the 
 future estate of the grantee should vest. And it is laid down in 
 unqualified terms in several cases in Massachusetts, and in one in 
 this State, that an estate of freehold cannot be conveyed to com- 
 
 1 See also Leonard v. Burr, supra, p. 521.
 
 9IO FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 mence infuturo by a deed of bargain and sale, which owes its validity 
 to the statute of uses, and not to the common law. 
 
 But the doctrine that freehold estates to commence infuturo can- 
 not be conveyed by deeds of bargain and sale, since the passage of 
 the statute of 27 Henry 8, c. 10, commonly called the statute of 
 uses, is clearly erroneous. It is clear that, at common law, such 
 conveyances could not be made; and it is equally clear that, by 
 virtue of the statute of uses, such conveyances may be made. Prior 
 to the reign of Henry 8, real estate could be so held that one person 
 would have the legal title, and another the right to the use and 
 income. To obviate many supposed inconveniences which had 
 grown out of this practice of separating the legal title from the use, 
 the statute of uses was passed, by which it was enacted that the 
 estates of the persons so seised to uses should be deemed to be in 
 them that had the use, in such quality, manner, form, and condition, 
 as they had before in the use. It will be noticed that the effect of 
 this statute was to annex the legal title to the use, so that they could 
 not be separated. Mr. Cruise says, that when this statute first 
 became a subject of discussion in the courts of law, it was held by 
 the judges that no uses should be executed that were limited against 
 the rules of the common law; but that this doctine was not and could 
 not be adhered to, for the statute enacts that the legal estate or seisin 
 shall be in them that have the use, in such quality, manner, form, 
 and condition, as they before had in the use; that chancery having 
 permitted uses to commence infuturo, and to change from one per- 
 son to another, by mat^r ex post facto, the courts of law were obliged 
 to admit of limitatio ^ of this kind. The statute did not attempt to 
 limit or control tr doctrine of uses; it simply declared that where 
 the use was, the. . the legal estate should be also. The result was 
 that it opened several new modes of conveying legal estates wholly 
 unknown to the common law; for whatever would convey the use 
 and income of real estate before its passage, would, by virtue of the 
 statute, convey the legal estate afterwards. It will thus be seen that 
 conveyances through the medium of the statute of uses are effected 
 in this way: — The owner of an estate in lands, for a consideration 
 either good or valuable, agrees that another shall have the use and 
 income of it, and the statute steps in and annexes the legal title to 
 the use, and thus the cestui que use becomes seised of the legal estate 
 in the same manner as before the statute he would have been 
 seised of the use. The argument, presented in a syllogistic form, 
 is this: Since the statute of uses, freeholds can be conveyed in any 
 manner that uses were conveyed before its passage. Before its pas- 
 sage, uses were conveyed to commence in futuro; therefore, free-
 
 I. 3.] EXECUTORY FUTURE ESTATES. 9II 
 
 holds may be conveyed to commence in future? since its passage. It 
 must be remembered, however, that neither legal estates nor uses 
 can be so limited as to create perpetuities. If future estates are so 
 limited as to take effect in the lifetime of one or more persons living, 
 and a little more than than twenty-one years after, the rule against 
 perpetuities will not be violated. We will refer to a few leading 
 authors: 
 
 Mr. White, a very learned English writer, in one of his additions 
 to the text of Mr. Cruise, says: " By executory devise and convey- 
 ances operating by virtue of the statute of uses, freehold estates may 
 be limited to commence in futuro." 1 Greenleaf's Cruise, title 
 
 h §36. 
 
 Mr. Chitty, after stating that by a common law conveyance, a 
 freehold to commence in futuro could not be conveyed, continues. 
 " But deeds operating under the statute of uses, such as bargain and 
 sale, covenant to stand seised, or a conveyance to uses, or even a 
 devise, may give an estate of freehold to commence in futuro." 
 1 Chitty's General Practice, 306; 2 Bl. Com. 144, note 6. 
 
 Mr. Sugden says: " A bargain and sale to the use of D., after 
 the death of S., is good." Gilbert on Uses (Sug. edition), 163. 
 
 Mr. Cornish: " By a bargain and sale, or covenant to stand seised, 
 a freehold may be created in futuro. " Cornish on Uses, 44. 
 
 Chancellor Kent: " A person may covenant to stand seised, or 
 bargain and sell, to the use of another at a future day." 4 Kent's 
 Com. 298. 
 
 Mr. Archibold: " Deeds acting under the statute of uses, such 
 as bargain and sale, covenant to stand seised, or a conveyance to 
 uses, or even a devise, may give an estate of freehold to commence 
 in futuro." Note to 2 Bl. Com. 166. 
 
 In a note to the 5th American edition of Smith's Leading Cases, 
 vol. 2, p. 451, after noticing the Massachusetts cases, in which it is 
 held that a freehold to commence in futuro cannot be created by a 
 deed of bargain and sale, the learned editors say: " It is undoubtedly 
 true that such limitations are bad at common law; but it seems 
 equally well settled that they are good in deeds operating under the 
 statute of uses, whether the use be raised on a pecuniary considera- 
 tion or on blood or marriage. The point is so held in England, and 
 has been repeatedly and expressly decided in New York, and several 
 of the other States of this country. The attributes of a use are the 
 same, whatever may be the consideration in which it is founded; 
 and, if uses commencing in futuro were without the operation of the 
 statute, when raised by a bargain and sale, they would be equally 
 so when originating in a covenant to stand seised."
 
 912 FUTURE ESTATES AND INTERESTS IN LAND. [l'T. IV. CH. VI. 
 
 In Rogers v. Eagle Insurance Co., 9 Wend. 611, the question under- 
 went a most thorough examination, and the conclusion was, that a 
 freehold to commence in futuro could be conveyed by a deed of 
 bargain and sale, operating under the statute of uses; and the court 
 expressed surprise that any one should have ever supposed that such 
 was not the law. 
 
 In Bell v. Scammon, 15 N. H. 381, the same question was raised 
 and the court held that " a freehold in futuro could be conveyed either 
 by deed of bargain and sale, or by a covenant to stand seised." 
 
 Mr. Washburn, in his late very able work on Real Property, vol. 
 2, p. 617, § 16, says that the reasoning of Chancellor Walworth, in 
 Rogers v. Eagle Insurance Co., 9 Wend. 611, in which he maintains 
 that an estate of freehold, to commence in futuro, can be conveyed 
 by a deed of bargain and sale, and the authorities upon which he 
 rests would seem to leave little doubt in the matter, beyond what 
 arises from the circumstance that other courts have taken a different 
 view of the law. 
 
 It is true, that in Massachusetts and this State, when determining 
 that the deeds then under consideration were valid upon other 
 grounds, judges have expressed the opinion that a freehold to com- 
 mence in futuro could not be conveyed by a deed of bargain and 
 sale; but these opinions are mere obiter dicta, for they have never 
 yet had the effect of defeating a deed. The idea seems to have 
 originated in an unauthorized statement, probably accidental, to be 
 found in Pray v. Pierce, 7 Mass. 381. Having under discussion the 
 rule that deeds should be so construed as to give effect to the inten- 
 tion of the parties, and not to defeat it, the case of JVallis v. JVallis, 
 4 Mass. 135, was referred to by way of illustration, and the reporter 
 makes the court say that the deed in the latter case was held to be 
 a covenant to stand seised, " because, as a bargain and sale, it would 
 have been a conveyance of a freehold in futuro, and therefore void." 
 
 By turning to that case, Wallis v. JVallis, it will be seen that such 
 a statement in unauthorized. The court remarked that, by a common 
 law conveyance, a freehold could not be conveyed to commence in 
 futuro, which was unquestioanbly true; but the court did not say 
 that such a conveyance could not be made by deed of bargain and 
 sale, which owes its validity to the statute of uses and not to the 
 common law. Why the deed in JVallis v. Wallis, was not sustained 
 as a bargain and sale, instead of covenant to stand seised, does not 
 appear. The case was submitted without argument, and, as the deed 
 could readily be sustained as a covenant to stand seised, it may not 
 have occurred to the court that it could just as well be sustained as 
 a bargain and sale. ( )n careful examination, it will be seen that
 
 I. 3-] EXECUTORY FUTURE ESTATES. 913 
 
 these cases, Wallis v. Wallis, and Pray v. Pierce, are not authorities 
 for the doctrine they are so often cited in support of. 
 
 In Welch v. Foster, 12 Mass. 93, the deed, for a valuable con- 
 sideration, to be paid whenever the deed should take effect, and not 
 otherwise, purported to convey a certain part of a mill, with the 
 land, etc., " provided that the said deed should not take effect or be 
 made use of, until the said mill-pond should cease to be employed 
 for the purpose of carrying any two mill-wheels." It was held that 
 nothing passed by the deed, not because it was to take effect only 
 upon the happening of a future event, but because the event, if it 
 should ever happen, might be delayed much beyond the utmost 
 period allowed for the vesting of estates on a future contingency. 
 The event, it was held, must, in its original limitation, be such that 
 it must either take place, or become impossible to take place, within 
 the space of one or more lives, in being, and a little more than 
 twenty-one years afterwards, to prevent the creating of a perpetuitv, 
 or an unalienable estate. Such is undoubtedly the law Besides, 
 no consideration was ever paid for the deed, and the grantor after- 
 wards conveyed to another. Under these circumstances the court 
 very properly held the deed void. But the distinction made by 
 Judge Jackson, in that case, between covenants to stand seised, and 
 deeds of bargain and sale, is mere dictum, and has neither reason 
 nor authority to rest upon. 
 
 Speaking of the qualities of a bargain and sale, Judge Jackson 
 says: " One of these qualities is, that it must be to the use of the 
 bargainee, and that another use cannot be limited on that use; from 
 which it follows that a freehold to commence infuturo cannot be 
 conveyed in this mode; as that would be to make the bargainee hold 
 to the use of another until the future freehold should vest." Hold 
 what? Upon the execution of a deed in which the grantor reserves 
 to himself an estate for life, and conveys the residue, the grantee 
 obtains a present vested right to a future enjoyment of the prop- 
 erty; but, until the future freehold vests, the use, the seisin, and the 
 right of possession, remain with the grantor, and there is no con- 
 ceivable thing that the bargainee will be required to " hold to the 
 use of another." 
 
 Judge Jackson seems to have supposed that when such a deed is 
 executed the legal estate or seisin passes immediately to the grantee, 
 and that, until his own future freehold vests, he holds this legal 
 estate, or ideal seisin, to the use of the grantor. But such a theory 
 is wrong, and contrary to every authority we have been able to find. 
 In fact, under the statute of uses, such a theory, which separates the 
 legal estate from the use, cannot be correct; for, by the very terms 
 
 LAW OF PROP. IN LAND — 45
 
 914 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 of the statute, the lawful seisin, estate, and possession, shall be 
 deemed and adjudged to be in him that hath the use, to all intents, 
 constructions, and purposes, in law; and is made applicable to " any- 
 such use in fee simple, fee tail, for life, or for years." ' The seisin 
 remains in the person creating the future use till the springing use 
 arises, and is then executed to this use by the statute." 2 Wash- 
 burn on Real Prop. 282. " If raised by a covenant to stand seised, 
 or bargain and sale, the estate remains in the covenantor or 
 bargainor until the springing use arises." Gilbert on Uses, Sug- 
 den's note, 163. " A person may covenant to stand seised, or 
 bargain and sell, to the use of another at a future day." In 
 such a case, " the use is served out of the grantor's seisin." 
 4 Kent, 298. " Here is a conveyance to the bargainee to take effect 
 at the decease of the bargainor, which creates a resulting use to the 
 latter during life, with a vested use in remainder to the bargainee in 
 fee, both uses being served, in succession, out of the seisin of the 
 bargainor." Jackson v. Dunsbah, 1 Johns. Cases, 96. 
 
 The rule that a bargain and sale must be to the use of the bar- 
 gainee and not to the use of another, applies to only so much of the 
 estate as is bargained for, and not to the residue, which is not bar- 
 gained for, and not paid for; and the rule is not violated and there 
 is nothing inequitable or repugnant to the grant, in requiring him to 
 wait for the enjoyment of the property till such time as, by the 
 express terms of the deed under which he claims, he is entitled to it. 
 
 It will be noticed that Judge Jackson assumes the existence of a 
 rule, that one use cannot be limited upon another, and that it would 
 be a violation of this rule to give effect to a deed of bargain and 
 sale of a freehold, to commence in futuro. Such a rule does exist 
 in England. Mr. Watkins, in his introduction to his very able work 
 on conveyancing, says, that " about the time of passing the statute 
 of uses, some wise man, in the plentitude of legal learning, declared 
 there could not be an use upon an use; and that this very wise 
 declaration, which must have surprised every one who was not suffi- 
 ciently learned to have lost his common sense, was adopted; " and 
 Lord Hardwicke, in Hopkins v. Hopkins, 1 Atk. 591, says, that by 
 this means, a statute made upon great consideration, introduced in 
 a solemn and pompous manner, has had no other effect than to add, 
 at most, three words to a conveyance. Mr. Williams, in his work 
 on Real Property, page 124, says this rule has much of the technical 
 tility of the scholastic logic which was then prevalent. Lord 
 Mansfield calls it" absurd narrowness." 2 Doug. 774. Blackstone 
 calls it a " technical scruple; " and Mr. Sugden, in a note to Gilbert 
 Oil Uses, page 348, says it never ought to have been sanctioned at
 
 I. 3.] EXECUTORY FUTURE ESTATES. 915 
 
 all. In Thacher v. Omans, decided in 1792, reported in 3d Pick. 521, 
 on page 528, the court refer to the censures of Blackstone and Lord 
 Mansfield, and express strong doubts as to the propriety of admitting 
 it in this country; and Mr. Greenleaf says it may well be doubted 
 whether the rule has been adopted in this country. Note to Greenl. 
 Cruise, title 12, c. 1, § 4. With such a weight of authority against 
 it, if the effect of the rule would be to defeat such conveyances as 
 we are now considering, we think we might be warranted in rejecting 
 it altogether. But such is not its effect. When a freehold is con- 
 veyed, to commence at a future day, till such future day arrives the 
 use results to the grantor, and then passes to the grantee; and the 
 uses are not limited one upon the other, but one after the other; 
 and, in this way, a fee simple may be carved into an indefinite num- 
 ber of less estates. " So long as regular order is laid down, in 
 which the possession of the lands may devolve, it matters not how 
 many kinds of estates are granted, or on how many persons the same 
 estate is bestowed. Thus, a grant may be made at once to fifty 
 different people, separately, for their lives." Williams on Real Prop. 
 189-90. " Shifting or substituted uses do not fall within this 
 technical rule of law, for they are merely alternate uses." 4 Kent's 
 Com. 301. 
 
 The s t " ~ment that a freehold to commence in futuro cannot be 
 conveyed by deed of bargain and sale, which seems first to have 
 been made in Pray v. Pierce, as before stated, has been several 
 times repeated in Massachusetts, Walsh v. Foster, 12 Mass. 93; 
 Parker v. Nichols, 7 Pick. 115; Gale v. Coburn, 18 Pick. 397; Brewer 
 v. Hardy, 22 Pick. 376; and once at least in this State, Marden v. 
 Chase, 32 Maine, 329; but the only case we have found in which an 
 attempt has been made to give a reason for the supposed rule is that 
 of Welsh v. Foster; and a careful examination has satisfied us that 
 the argument in that case is unsound, and not supported by an 
 adjudged case that has the weight of authority. It is admitted in all 
 these cases that if it can be shown that the parties to such deeds 
 are near relatives, effect may be given to them as covenants to stand 
 seised, made, not as they purport to be for a pecuniary considera- 
 tion, but in consideration of love and affection. And there is no 
 doubt that if two deeds should be executed instead of one, that is, if 
 the grantor should first convey the whole estate, and then take back 
 a life lease, the transaction would be held legal. 
 
 The doctrine, therefore, that a freehold to commence in futuro 
 cannot be conveyed by a deed of bargain and sale, amounts to no 
 more than this: That if the owner of a fee simple estate proposes 
 to reserve to himself a life estate, and to sell the residue, if he deals
 
 gi6 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 with a relative, such an arrangement can be carried into effect by 
 making one deed; but if he deals with a stranger it will be necessary 
 to make two. It is certainly very strange that a doctrine so techni- 
 cal, so easily evaded, and so utterly destitute of merit, should have 
 gained the currency it has. 
 
 We entertain no doubt that, by deeds of bargain and sale, deriving 
 their validity from the statute of uses, freeholds may be conveyed to 
 commence infuturo. It will be seen that, the law is so held in Eng- 
 land, and by an overwhelming weight of authority in this country. 
 In fact that such was the law seems never to have been doubted 
 except in Massachusetts and in this State; and we think the error 
 originated in the unauthorized remark found in Pray v. Pierce, and 
 has been repeated from time to time without receiving that con- 
 sideration which its importance demanded. 
 
 We are also of opinion that effect may be given to such deeds by 
 force of our own statutes, independently of the statute of uses. Our 
 deeds are not framed to convey a use merely, relying upon the 
 statute to annex the legal title to the use. They purport to convey 
 the land itself, and being duly acknowledged and recorded, as our 
 statutes require, operate more like feoffments than like conveyances 
 under the statute of uses. In Thacher v. Omans, 3 Pick, on p. 525, 
 Chief Justice Dana, speaking of our statute of conveyances, first 
 enacted in 1697, re-enacted in the Revised Laws of 1784, incor- 
 porated into the statutes of this State in 182 1, and still in force, 
 says:" This statute was evidently made to introduce a new mode of 
 creating or transferring freehold estates in corporeal heredita- 
 ments; namely, by deed, signed, sealed, and acknowledged, and 
 recorded, as the statute mentions; it does not prescribe any particular 
 kind of deeds or conveyances, but is general, and extends to all 
 kinds of conveyances." On p. 532 he further says: " It seems 
 evident to me that a deed executed, acknowledged and recorded as 
 our statute requires, cannot be considered as a bargain and sale, 
 because the legal estate is thereby passed without the operation 
 of the statute of uses, i;i as ample a manner as by a feoffment 
 at common law, accompanied with the ancient ceremony of 
 livery of seisin." Such also were the opinions of Chancellor Kent 
 and Prof. Greenleaf, .| Kent, \6i\ Greenleaf's Cruise, title 12, c. 1, 
 § j. note; title 32, c. 4, £ 1, note. Mr. Greenleaf, in the note first 
 ;. says that in most of the States, including Maine, "deeds of 
 ince derive their effect, not from the statute of uses, but 
 from their own statutes of conveyances; operating nearly like a 
 nent, with livery of seisin, to convey the land, and not merely 
 to raise a use to be afterwards executed by the statute of uses."
 
 II. i.] SPECIAL RULES TO BE OBSERVED. 917 
 
 Mr. Oliver in his work on conveyancing, ed. of 1S53, p. 281, speak- 
 ing of our common warranty deed, says: " This deed derives its 
 operation from statute and has therefore some properties peculiar to 
 itself. . . . The transfer is not effected by the execution of a 
 use, as in a bargain and sale, but the land itself is conveyed, as in a 
 feoffment, except the livery of seisin is dispensed with, upon comply- 
 ing with the requisitions of the statute, acknowledging and recording, 
 substituted instead of it." We think these views are sound and if 
 any of the technical rules which have grown up under the statute of 
 uses stood in the way of giving effect to deeds executed in accord- 
 ance with the provisions of our statute, simply because they purport 
 to convey freeholds to commence at a future day, we think effect 
 might be given to them independently of the statute of uses. But 
 in our judgment no such rules do stand in the way of giving effect 
 to such deeds. They may be upheld either as bargains and sales 
 under the statute of uses or as conveyances deriving their validity 
 from our own statutes. 
 
 Having come to the conclusion that the demandant is entitled to 
 recover upon another ground, it was not absolutely necessary to 
 consider the validity of the deed from Mrs. Brown to Oliver S. Nay, 
 which purports to convey a freehold to commence in future But, 
 as the question involved is an important one, and was ably argued 
 by the counsel in the case; and, as the court has already decided 
 one case within the past year (Hunter v. Hunter}, in the county of 
 Sagadahoc, in accordance with the views here expressed, but with- 
 out any written opinion, and as several other suits involving the 
 same question, are still pending before the court, we deemed it best 
 to make known our decision of the question, and to state our reasons 
 for the decision, in connection with this case. 
 
 II. Special rules to be observed in creating future estates subject to 
 a condition precedent. 1 
 
 1. A Common-law Contingent Remainder Must be so Created 
 that it may by possibility vest in interest during, 
 or £0 /^r^a^r/ with the termination of, the particular 
 Estate. 1 Furthermore, It Cannot be Made to Depend 
 on an Estate for Years. 
 
 1 The condition precedent referred to is one which either may not happen at 
 all, or may not happen before some other future event expressly connected 
 with it by the terms of the deed or will.. See note p. 869, supra — . Ed. 
 
 1 See definition supra. The remainder will be valid in its creation if it obeys 
 this rule though it may afterwards fail because the particular estate ends before
 
 91 8 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 STEWART v. NEELY. 
 
 139 Pennsylvania, 309. — 1890. 
 
 Per Curiam. — The authorities cited on behalf of the appellants 
 were not necessary to sustain the familiar rule of the common law, 
 that a contingent remainder must have an estate of freehold to sup- 
 port it. The application of this rule to the case in hand is unique. 
 It may be concisely stated thus: The tenant for life purchases, and 
 has conveyed to her by deed, the interest of the contingent 
 remainderman — the one furthest removed from the succession. 
 The life-tenant then claims that her life-estate is merged into the 
 remainder, that intermediate contingent remainders are thereby 
 destroyed, and that by reason thereof the life-estate has been 
 enlarged into a fee. The idea of a life-estate being merged into a 
 contingent remainder is a novel proposition. Aside from this, a 
 contingent remainder can only be conveyed by a devise; a deed 
 purporting to convey it operates only as an estoppel, unless the con- 
 veyance is after the contingency happens. 4 Kent Com. 260; 
 William, R. P. 215; 1 Washb. R. P. 264. We think judgment was 
 properly entered for the defendant on the case stated. 
 
 Affirmed. 
 
 GOODRIGHT v. CORNISH. 
 
 1 Salkeld (Eng.), 226. — 1791. 
 
 In ejectment a special verdict was found, viz., Knowling had issue 
 two sons, John and Richard, and devised lands to John for 50 years, 
 if he should so long live, and as for my inheritance after the said 
 term, I devise the same to the heirs male of the body of John, and 
 for default of such issue, then to Richard. The court resolved, 1st. 
 That John had not an estate tail by implication upon the words with- 
 out issue, because the devisor had given him an estate for years by 
 express words, and the court cannot make such a construction 
 
 it is ready to vest. There seems also to be one specific rule limiting contingent 
 remainders, viz: "An estate cannot be given to an unborn person for life fol- 
 lowed by an estate to any child of such unborn person." The latter will be a 
 void limitation. It is thought by some that the "rule against perpetuities'* 
 applies to common-law contingent remainders, but this is more than doubtful. 
 See Gray (who favors the doctrine) Rule against Perpetuities, §£ 284, 298. In 
 those States where remainders are cut loose from their dependence on the pre- 
 cedent estate there is no doubt that the rule against perpetuities must be 
 extended to them; they would otherwise be under no limitation against remote- 
 ness. — Ed.
 
 II. I.] SPECIAL RULES TO BY OBSERVED. 919 
 
 against express words, when thereby they would also drown the 
 estate for years, and make an estate of inheritance. 2d. The court 
 held this devise to the heirs male of the body of John, to be void in 
 its creation. For, for want of an estate of freehold to support it, it 
 was void as a remainder; and they seemed not to think it an execu- 
 tory devise, because it was limited as a remainder, and because it is 
 limited per verba de prase iiti. If one devise his estate to the heir of 
 J. S., and J. S. is living, the devise shall not be construed an execu- 
 tory devise, and such a devise is therefore void; but if it were to 
 the heir of J. S., after the death of J. S., that is good, as an execu- 
 tory devise. So note the diversity inter verba de prcesenti and verba de 
 futuro. 3d. The court held the limitation to the heirs male of John 
 was become void by the event, whatever it was in its creation, because 
 John is now dead without issue. 4th. The court held, that if the 
 remainder to the heirs male of John was void in point of limitation, 
 then the next remainder limited to Richard took effect presently. 
 4 Mod. 255, s. c. 
 
 The Chancellor in HAWLEY v. JAMES. 
 
 — — ' 
 5 Paige's Chancery (N. Y.), 318. — 1835. 
 
 The 20th section of the title of the Revised Statutes, so often 
 referred to, prohibits the creation of a contingent remainder upon a 
 term of years, unless the nature of the contingency upon which it is 
 limited is such that the remainder must vest in interest, during the 
 continuance of not more than two lives in being at the creation of 
 the remainder, or at the termination of such lives. 1 R. S. 724. ' 
 But this provision of the Revised Statutes cannot be construed to 
 mean that no contingent remainder shall be limited on a term of 
 years, unless it is so limited as to render it certain that the remainder 
 must, in any event, become vested in interest. Upon such a con- 
 struction of the 20th section of the statute, the next section is not 
 only useless but absurd. The 21st section provides that no estate 
 for life shall be limited as a remainder on a term of years, except to 
 a person in being at the creation of such estate. 1 R. S. 724. 
 A remainder to a person not in being must always be contingent 
 until his birth; and until that event it cannot be known that it will 
 ever vest in interest, in whatever form it may be limited. Even if 
 it is to the general heirs of a person in being at the creation of the 
 remainder, it may never become vested, as such person may die 
 
 1 N. Y. P. L. §§ 36, 37. — Ed.
 
 920 FUTURE ESTATES AND INTERESTS 7N LAND. [PT. IV. CH. VI. 
 
 without an heir. The fair construction of these two sections of the 
 statute taken together, therefore, is, that a contingent remainder 
 upon a term of years must be so limited that it will necessarily vest 
 in interest within the period required by the 20th section, if it ever 
 becomes thus vested. And that a contingent remainder for life, to 
 a person not in being, shall not be limited on a term of years, 
 although it is so limited that it will become vested within that period, 
 if ever. Neither does this 20th section of the statute render it abso- 
 lutely necessary that the term of years, on which a contingent 
 remainder is limited, should be made determinable upon lives. But 
 such remainder may be limited upon a term in gross, if the remainder 
 itself is so limited that it must necessarily become vested in interest, 
 if ever, during, or at the expiration of, not more than two specified 
 or ascertained lives, in being at the creation of such remainder. 
 Thus, upon a devise to A. for fifty years, as an absolute term, 
 remainder to B. for life, if he should marry C, and remainder in fee 
 to the children of such marriage. The remainder to B., upon con- 
 dition of his marriage with C, is contingent, but must necessarily 
 vest in interest, if ever, during the period of his own life, although it 
 will never vest in possession if he dies within the term. And the 
 ultimate remainder in fee to the children of the marriage must also 
 vest in interest, if ever, within the period of one life in being at the 
 death of the testator. The first child of the marriage would, upon 
 its birth, take a vested interest in the ultimate remainder in fee, 
 subject to open and let in after-born children. And it would be no 
 objection to the validity of the contingent remainders to the child- 
 ren, in the cases supposed, that a child might not be born in the 
 lifetime of the father, although begotten before his death, and that 
 it might be brought into existence by the csesarean operation, even 
 after the death of the mother. For, upon a limitation of a future 
 estate to children, or heirs, or issue, a posthumous child, if born 
 alive, is considered as in existence and capable of taking a vested 
 interest for its own benefit, in the same manner as if born and living 
 at the death of its parents. 1 R. S. 725, sec. 30.' Marsellis v. 
 Thalheimer, 2 Paige's Rep. 35. 
 
 1 N. Y. R. P. L. § 46. — Ed.
 
 II. 3-] SPECIAL RULES TO BE OBSERVED. 921 
 
 2. Executory Future Estates, Subject to a Condition Prece- 
 dent, Must Obey in their Creation the "Rule Against 
 Perpetuities." ' 
 
 FIRST UNIVERSALIST SOCIETY v. BOLAND. 
 
 155 Massachusetts, 171. — 1892. 
 [Reported herein at p. 52s.] 2 
 
 3. In New York and a Few Other States 3 Two Other Rules 
 are Substituted for the Rule Against Perpetuities. 
 
 a. " Every future estate shall be void in its creation which shall suspend 
 the absolute power of alienation, by any limitation or condition what- 
 ever, for a longer period than during the continuance of not more 
 than two lives in being at the creation of the estate ; except that a con- 
 tingent 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 die under the age of twenty-one years, or on any other contin- 
 gency by which the estate of such persons may be determined before 
 they attain full age. ' ' 4 
 
 (1.) Estates Subject to a Condition Precedent Come Naturally 
 Within this Rule. 
 
 HAYNES v. SHERMAN. 
 
 117 New York, 433. — 1889. 
 
 [Reported herein at p. q22.^\ 
 
 1 This rule, in general terms, is that " no interest subject to a condition prece- 
 dent is good, unless the condition must be fulfilled, if at all, within twenty-one 
 years after some life [or lives] in being at the creation of the interest." Gray, 
 Rule Against Perpetuities, §§ 201, 214. Periods of gestation, if they occur, will 
 be included. § 220, Gray. Some of our States have rejected the absolute term, 
 allowing an actual minority. This is not a rule against the suspension of the 
 power of alienation. It applies even though the interest be alienable. Gray's 
 Rule against Perpetuities, § 268. A " perpetuity " in the sense of the rule is 
 not " an inalienable, indestructible interest." but " an interest which will not 
 vest till a remote period." Id., § 140. — Ed. 
 
 2 See Leonard v. Burr, p. 521, supra. Sears v. Russell, infra, p. 1134. — Ed. 
 
 3 See note p. S67, supra. — Ed. 
 
 4 § 32, N. Y. R. P. L. " The absolute power of alienation is suspended, when 
 there are no persons in being by whom an absolute fee in possession can be 
 conveyed." Id. — Ed.
 
 922 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 (2.) By Construction of the Courts and Within the Spirit of the Rule 
 a Spendthrift Trust May Violate the Rule. 1 
 
 HAYNES v. SHERMAN. 
 117 New York, 433. — 1SS9. 
 
 Earl, J. — Elijah T. Sherman died in the city of New York in 
 October, 1886, leaving his wife and six children, him surviving, 
 three of them minors, and leaving a will in which he disposed of his 
 estate as follows: " After paying my just debts I give, devise and 
 bequeath all my estate, real and personal and mixed, and wherever 
 situate, to my wife Catharine M. Sherman, in trust, nevertheless, to 
 have and to hold the same and use so much of the income and 
 principal as she may deem necessary for her support and the support 
 of our children until our youngest child now living shall arrive at 
 the age of twenty-one years or would arrive at that age if living, and 
 at that time I order and direct my said estate to be divided among 
 my legal heirs then living in such manner and proportion as they 
 and each of them would be entitled under the laws of the State 
 of New York if I had died intestate." And he appointed his wife 
 sole executrix and empowered her to sell and convey all or any 
 portion of his estate at such prices and upon such terms as she 
 might elect. 
 
 The plaintiff contends that this disposition of his estate by the 
 testator is invalid because it offends against the statutes which 
 prohibit perpetuities, and that, therefore, the estate has passed as 
 if he had died intestate; and we are of that opinion. The youngest 
 child of the testator living at the date of his will was born December 
 10, 1872, and will not, therefore, attain the age of twenty-one years 
 until the 10th day of December, 1893. 
 
 The defendants contend that the words " or would arrive at that 
 age. if living," may be disregarded, and that the trust would be 
 simply for the minority of the youngest child, would terminate at 
 his death if he died before twenty-one, and hence that it could not 
 extend beyond his life, and is, therefore, valid. When a will con- 
 tains separate trusts, some of which are legal and some illegal, or 
 various limitations of estates not dependent upon each other or 
 essentially connected, some of which are legal and some illegal, the 
 illegal portions maybe stricken out and the other portions permitted 
 
 'The new revision — the Real Property Law of 1S96 — has changed the 
 arrangement of the sections of the Revised Statutes and their phraseology to 
 some extent. It has been suggested that an unlawful suspension of the abso- 
 lute power of alienation < annot now arise merely on account of the creation of 
 endthrift trust, no matter how many lives are involved. Chaplin on 
 " 1. -press Trusts and Powers," §§383-386, — Ed.
 
 II. 3-] SPECIAL RULES TO BE OBSERVED. 923 
 
 to stand; and the books are full of illustrations of such cases. The 
 courts will strive to uphold so much of a will as they can without 
 frustrating the main intention of the testator or violating any rule 
 of law. Here it is clear that the testator meant that the trust 
 should last, not only during the life of his grandchild if he should 
 die before twenty-one, but until the time he would reach twenty-one 
 if living. It is the same as if he had in terms created a trust to last 
 until the 10th day of December, 1893. It was then, and not till 
 then, that he meant his estate should be divided among his legal 
 heirs living at that time. There are not two trust terms, but one, 
 and there is but one trust, and hence no part of the trust term can 
 be cut off and no part of the trust can be disregarded for the purpose 
 of rendering the remainder of the term and trust valid. It matters 
 not that the youngest child might live until he should be twenty-one. 
 He might not live so long, and that is enough to condemn the trust. 
 In determining the validity of limitations of estate under the Revised 
 Statutes, 1 R. S. 723, § 15 ; x Id. 773, § 1 2 , as said by Grover, J., in 
 Schcttler v. Smith, 41 N. Y. 328, " It is not sufficient that the estates 
 attempted to be created may, by the happening of subsequent events, 
 be terminated within the prescribed period if such events might so 
 happen that such estates might extend beyond such period. In other 
 words, to render such future estates valid, they must be so limited 
 that in every possible contingency they will absolutely terminate at 
 such period, or such estates will be held void. 
 
 It cannot be well said that this trust was limited upon the life of 
 the widow and to terminate at her death. It is doubtless true 
 that the testator expected that his wife would live to the termination 
 of the trust. But the trust was for the benefit of his children as well 
 as his wife, and they have an interest in its execution. It was to 
 continue until the division of the estate, and that was not to take 
 place until December 10, 1893. If the widow should die before that 
 date, the trust, if valid, would devolve upon the court, and it could 
 appoint another trustee. The trust was not so far personal that it 
 would disappear with the death of the widow. The discretion vested 
 in her was not a personal discretion, but one to be exercised by her 
 as trustee, which could, therefore, be devolved upon her successor 
 to be appointed by the court. Hull v. Hull, 24 N. Y. 647; Rogers 
 v. Rogers, n 1 Id. 228. 
 
 It is contended further, on the part of the defendants, that, as the 
 widow has full power to use so much of the principal of the estate 
 as she might deem necessary for the support of herself and children, 
 
 'N. Y. R. P. L., §32. — Ed. 
 
 J N. Y. Personal Property Law, § 2. — Ed.
 
 924 FUTURE ESTATES AND INTERESTS IN LAND. [FT. IV. CH. VI. 
 
 and as she has full power of sale the testator meant her to have 
 dominion of the entire estate, and that her children should take what 
 she did not use, and that such disposition confers upon her a fee; 
 and the cases of Beaumont v. Beaumont, 91 N. Y. 464; Wager v. 
 Wager, 96 Id. 164; and Crane v. Wright, 114 Id. 307, are cited to 
 uphold this contention. These cases, as well as certain provisions 
 of the Revised Statutes (1 R. S. 733, §§ 81-83), would have been 
 controlling if the testator had given his widow the absolute power to 
 dispose of the estate for her sole benefit. But she was not solely 
 interested in the estate. She was a trustee and was clothed with a 
 power for the benefit of others as well as herself, and, therefore, she 
 took no greater or other estate under the will than its terms gave her. 
 
 As there was here an absolute power of sale conferred upon the 
 widow, it cannot be said that the power to alienate the real estate 
 was suspended. But the proceeds of the sales of the real estate, 
 whether regarded as realty or personalty, would be tied up by the 
 trust, in violation of the provisions of the Revised Statutes first above 
 referred to, and hence the power of sale does not save the provisions 
 of the will from condemnation. 
 
 This estate did not vest in the testator's children at his death. 
 It vested in the widow as trustee, and at the termination of the trust 
 period what remained of it was to vest in the testator's legal heirs 
 then living as if he had then died intestate. There were, therefore, 
 no persons in being at the death of the testator, assuming the trust 
 to be valid, who could convey an absolute title to the estate. The 
 trust stood in the way of such a conveyance as well as the impossi- 
 bility of determining who would take the estate after it passed from 
 under the trust. 
 
 We are, therefore, brought to the conclusion that the judgment of 
 the General Term should be reversed and that of the Special Term 
 affirmed, and that the costs of all parties upon the appeal to the Gen- 
 eral Term and in this court should be paid out of the estate. 
 
 Judgment reversed. 
 
 b. "Estates in l Remainder 1 Shall be so Limited that Within the 
 Statutory Period, if Ever, they Must Vest in Interest." ' 
 
 1 Chaplin on The Suspension of the Power of Alienation, § 1. The term 
 " remainder " is here used in the broad sense given to it by the New York stai- 
 Utes. Sec note, p. 867, supra. This rule is nowhere stated in terms in the 
 N. Y. statute, but is a generalization from ££ 32-36, 40, N. Y. R. P. L. The 
 " statutory period " is two lives in being at the creation of the estate, except in 
 the case of B contingent remainder limited on a fee. ^32. See ^jg 319, 323, 
 
 Chaplin. — Ed,
 
 III.] DESCENT, DEVISE AND ALIENATION. 925 
 
 4. The Rule Restricting the Accumulation of the Income 
 
 of Land. 1 
 
 III. Descent, devise and alienation of future estates and interests 
 in land;- 
 
 HALL v. CHAFFEE. 
 14 New Hampshire, 215. — 1843. 
 
 Another question in the case arises from the deed by Mrs. Hall. 
 It appears that on the 26th day of April, 1824, the petitioner and 
 her husband, by their quit-claim deed, conveyed to Gaius Hall " all 
 our right, title and claim to all the land or real estate willed to us 
 by Seth Britton." The defendants have all the right and interest 
 of Gaius Hall. Mrs. Chaffee died in the year 1839. The question 
 is, whether the interest which Mrs. Hall took under the will, being 
 by way of executory devise, could be transferred by such a convey- 
 ance? A contingent remainder does not confer any interest which 
 is grantable. Shep. Touch. 238. At common law, a possibility was 
 held not to be assignable. 6 Cruise, tit. 39, § 47. Contingent 
 executory interests or possibilities may be passed at law by fine, by 
 way of estoppel. Fearne on Rem. 551. An assignment of a con- 
 tingent interest in lands of inheritance may be carried into execu- 
 tion by a court of chancery, upon the ground that it is such a 
 contract that its specific performance may be decreed. Wright v. 
 Wright, 1 Vesey, Sen. 409. It may be transferred by deed in equity 
 to a stranger. Higden v. Williamson, 3 P. Wins. 132. A court of 
 law, however, will not recognize the assignment of such interests 
 before they vest in possession. 2 Prest. Abstr. 118. If A have a 
 term for 1,000 years, and devise it to B for life, remainder to C and 
 his heirs, C may release his interest to B, although he cannot grant 
 it over. 1 Co. no, 114, Albany s Case; 10 Co. 47, 51, 52, Lampet" s 
 Case. 
 
 But the deed of the petitioner contained a covenant of warranty 
 against all claims under the grantors, and the effect of this covenant 
 remains to be considered. And here the case of Blanchard v. 
 Brooks, 12 Pick. 47, is in point. In that case, a person being the 
 devisee of a contingent, and also of a vested remainder in lands, 
 made a deed, with covenants of general warranty, and for quiet 
 enjoyment, purporting to convey all his " undivided share or por- 
 tion, right, title and interest of, in and to " the lands. Mr. Ch. Jus- 
 
 ' This rule is statutory. For the New York Statute, see the N. Y. R. P. L., 
 
 §§ 5I-53- 
 
 5 See § 49, N. Y. R. P. L. — Ed.
 
 926 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CII. VI. 
 
 Shaw says: " The grant in the deed is of all his right, title and 
 interest in the land, and not of the land itself, or of any particular 
 estate in the land. The warranty is of the premises, that is, of the 
 estate granted, which was all his right, title and interest." " The 
 grant in legal effect operated only to pass the vested interest, and 
 not the contingent interest, and the warranty being coextensive 
 with the grant, did not extend to the contingent interest, and of 
 course did not operate upon it by way of estoppel." It was held 
 that the plaintiff was not bound as a privy in estate with the grantor. 
 The opinion of the court is, that the petitioner is not estopped by 
 her deed to claim the land. 
 
 HAVENS v. SEA SHORE LAND CO. 
 
 47 New Jersey Equity, 365. — 1890. 
 
 Van Vleet, V.-C. — This is a partition suit. The title to one of 
 the tracts which the complainants seek to have divided is in dispute. 
 The defendant asserts title to the whole tract; the complainants, on 
 the other hand, assert a title to the undivided half of it, but admit 
 that the defendant has title to an undivided fourth and that the title 
 to the other undivided fourth is in certain other persons. The 
 defendant exhibits a paper title to the whole tract; the important 
 question, therefore, presented for decision is, is the title exhibited 
 by the defendant valid? for if it is, the bill as against the defendant, 
 as to that tract, must be dismissed. 
 
 Both parties claim under David Curtis, who died intestate between 
 1783 and 1788. At the time of his death he owned two undivided 
 sevenths of Manasquan Beach, one of which he acquired from Elisha 
 Lawrence, by deed dated July, 1770, and the other from Benjamin 
 Lawrence, by a deed which it is alleged is lost. Among the gifts 
 made by David Curtis by his will there is one which reads, in sub- 
 stance, as follows: 
 
 " I give and devise unto my eldest son, Elisha, that right of beach 
 I bought of Elisha Lawrence — to him and the heirs of his body 
 lawfully begotten, and for the want of such heir or heirs, then to 
 be equally divided between my two sons, John and Benjamin." 
 
 David Curtis, besides limiting over to his two sons, John and 
 Benjamin, the land devised to his son, Elisha, made John and 
 Benjamin his residuary devisees, and they, as such devisees, took 
 that undivided seventh of Manasquan Beach which had been con- 
 d to their father by Benjamin Lawrence. The thing in dispute 
 is the one-half of that seventh which David Curtis acquired from 
 Elisha Lawrence, and which he by his will limited over to his son
 
 III.] DESCENT, DEVISE AND ALIENATION. 927 
 
 John in case his son Elisha, for the want of heirs of his body, did 
 not take it. The defendant claims this half and puts forward as the 
 foundation of its title a deed purporting to have been made on the 
 31st day of May 1788, by John Curtis to Joseph Lawrence. The 
 whole contest between the parties centres in this deed. If it passed 
 the land in controversy, the defendant will be entitled to prevail in 
 this suit; if it did not, the complainants will be entitled to the 
 decree they ask. The complainants contend, first, that the deed 
 has not been sufficiently proved to entitle it to be admitted in evi- 
 dence; and, secondly, that if it was admitted, no effect could be 
 given to it — first, for the want of apt words to pass any right or 
 estate which the grantor may have held at the time of its execution; 
 and, second, because the grantor then held no right or estate in the 
 land which he could grant or convey. These questions will be con- 
 sidered in an order directly the reverse of that in which they have 
 just been stated. 
 
 It is undisputed that Elisha Curtis, the eldest son of David, died 
 childless, never having had issue of his body. John died before 
 Elisha. Their deaths occurred very near together in point of time, 
 but the proof makes it entirely clear that John died first, so that it 
 was undetermined when John died whether or not Elisha would have 
 issue of his body. As the law stood when the devise to Elisha took 
 effect, it is clear that he took an estate tail in the land devised. Our 
 statute cutting an estate tail down to an estate for life in the first 
 taker, with remainder in fee to the issue of his body, was not passed 
 until 1820, Elm. Dig. 130, § 6, and the devise to Elisha took effect 
 prior to 1788. Chief Justice Kirkpatrick stated with great clearness 
 in Den v. Taylor, 2 South. 413, 417, what words would be held to 
 be sufficient to create an estate tail. He said: " It is well settled 
 that a devise to one and his heirs if he die without issue, then over 
 to another, creates an estate tail, as if the principal devise had been 
 in the most technical language, to him and the heirs of his body. 
 The words of the devise over — if he die without issue then over to 
 another — limit the generality of the term heirs in the principal 
 devise, and lead us to the inevitable conclusion that the testator 
 intended heirs of the body only, and not heirs generally. And 
 whenever this intention can be collected from the whole will, taken 
 together, let the phraseology in the particular clauses of it be what 
 it may, it has been always construed to make an estate tail." This 
 statement of the law has been so uniformly followed by the courts 
 of this State as to have become a canon of real property law. Moore 
 v. Rake, 2 Dutch. 574, 585. It is entirely clear that Elisha Curtis 
 took an estate tail ; n the land in controversy.
 
 928 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 This being so, it necessarily follows that the devise over to John 
 and Benjamin, in case Elisha did not have issue of his body, gave 
 them a vested remainder in fee, subject to be defeated by the birth 
 of issue to Elisha. The law is settled, that a remainder limited upon 
 an estate tail will be held to be vested, though it is uncertain whether 
 a right to possession will ever vest in the remainderman. The 
 decision of the Court of Errors and Appeals in Moore v. Rake, 2 
 Dutch. 574, is directly in point, and furnishes an authoritative illus- 
 tration of the manner in which this principle of law is to be applied. 
 The devise in that case took effect in 1795, and was expressed sub- 
 stantially in this form: 
 
 " I give to my son Isaac, his heirs and assigns, all my lands 
 whereon I now live, to hold to him, his heirs and assigns forever, 
 but if my son Isaac should die without lawful issue, then I give all 
 my land to my wife, her heirs and assigns forever." 
 
 The testator's son Isaac died in 1843, without issue, never having 
 been married. His mother, the testator's widow, died in 1832, over 
 ten years before Isaac. The controverted question in the case was 
 what estate the testator's wife took under the devise. The court 
 held that she took a vested remainder, and not by way of an execu- 
 tory devise, nor a contingent remainder. Each of the three judges 
 who wrote opinions — Chancellor Williamson and Justices Elmer 
 and Vredenburgh — so expressly declared. Justice Vredenburgh 
 (p. 586) gave the following summary of the leading rules distinguish- 
 ing a vested from a contingent remainder: " An estate is vested 
 when there is a present fixed right of present or future enjoyment. 
 The law favors the vesting of remainders, and does it at the first 
 opportunity. It is the present capacity of taking effect in pos- 
 session, if the possession were to become vacant, that distinguishes 
 a vested from a contingent remainder. It is the uncertainty of the 
 right which renders a remainder contingent, not the uncertainty of 
 the actual enjoyment. A remainder limited upon an estate tail is 
 held to be vested, though it is uncertain if the possession will ever 
 take place." There can, therefore, be no doubt that John Curtis, 
 by force of the devise to him, took a vested remainder in fee in the 
 land in controversy, and it is equally certain, if such was the 
 character of his estate, that he had good right and full power to 
 1 ;m effectual conveyance of it during the life of his brother 
 Elisha. 
 
 If a different conclusion had been reached as to the nature of 
 John's estate, and it had been found that the remainder limited to 
 him was contingent, still 1 think the court would have been bound 
 to declare, in conformity to the well-settled law on this subject, that
 
 III.] DESCENT, DEVISE AND ALIENATION. 929 
 
 he had full power, during the life of Elisha, to make an effectual con- 
 veyance of his estate in the land, though it was uncertain whether 
 such estate would ever vest in possession. All contingent estates of 
 inheritance, or possibilities coupled with an interest, where the per- 
 son who is to take is certain, may be conveyed or devised before the 
 contingency on which they depend happens. In Acker man s Admr. 
 v. Vrceland's Exr., 1 McCart. 23, 29, Chancellor Green said, it may 
 be relied on as a rule, that every interest in land, however remote 
 the possibility is, may be released. The law on this subject as 
 stated by Sergeant Williams, in his note to Purefoy v. Rogers, 2 
 Saund. 388k, and adopted by the Supreme Court in Den v. Manners, 
 Spen. 142, 145, and restated approvingly by Justice Vredenburgh in 
 Moore v. Rake, 2 Dutch. 593, is this: " It seems now to be estab- 
 lished, notwithstanding some old opinions to the contrary, that con- 
 tingent and executory estates and possibilities, accompanied by an 
 interest, are descendible to the heir, or transmissible to the repre- 
 sentative of a person dying, or may be granted, assigned or devised 
 by him, before the contingency upon which they depend takes 
 effect." These authorities make it plain that the first question must 
 be decided in favor of the defendant. At the date of the deed which 
 the defendant puts forward as the foundation of its title there can 
 be no doubt that John Curtis had full power to make an effectual 
 conveyance of the land in controversy. * * * 
 
 In re JACKSON'S DEED. 
 
 4 Keyes (N. Y.), 369, and Other Cases. 
 
 [Reported herein at pp. S90-902.] 
 
 BATES v. SHRAEDER. 
 
 13 Johnson (N. Y.), 260. — 1816. 
 
 [Reported herein at p. 460. ]' 
 
 NICOLL v. NEW YORK AND ERIE R. R. CO. 
 
 12 New York, 121. — 1854. 
 
 [Reported herein at p. 527.] 
 
 UPINGTON v. CORRIGAN. 
 
 151 New York, 143. — 1896 
 
 [Reported herein at p. 533.] 
 
 1 See also Cook v. Hammond, 4 Mason, 467, Fed. Cases No. 3159. — Ed. 
 LAW OF PROP. IN LAND — 65
 
 930 FUTURE ESTATES AND INTERESTS IN LAND. [FT. IV. CH. VI. 
 IV. The destruction of future estates and interests in land. 1 
 Brayton, J., in WILLIAMS v. ANGELL. 
 7 Rhode Island, 145. — 1862. 
 
 A second objection suggested to this title of the wards is, that the 
 title has been forfeited under the condition imposed upon the estate 
 for life. This condition was, that the tenant for life should pay into 
 the hands of Elisha Harris, appointed a trustee for that purpose, 
 yearly, the sum of twenty-five dollars. This annuity was not paid. 
 The arrears amounted, in 1841, to the sum of $211.77, no part of 
 which has ever been paid. It is suggested that the life-estate, by 
 the forfeiture, was destroyed before the birth of issue, and before 
 the remainder could, by law, vest, and so the remainder failed for 
 want of this estate to support it. 
 
 By failure to pay. and suffering the annuity to be in arrear, the 
 life estate became liable to forfeiture; and had the proper proceed- 
 ings been taken to avoid the estate for this cause, and equity had 
 not relieved against it, as it might, it might have been and would 
 have been destroyed. In order to the forfeiture in such case, how- 
 ever, it is necessary that there should be an entry for condition 
 broken, or claim by the heirs for the purpose of avoiding the estate. 
 
 Co. Lit., § 247; 2 Bl. Com. 135; Cruise Digest, c. xxxii., § 30. 
 No direct claim, and no entry were ever made for the forfeiture of 
 this estate while it existed; but it remained subsisting in the donee 
 until it expired by its own limitation, upon his death, and until, by 
 the terms of the will, the remainder vested in his issue. 
 
 JORDAN v. McCLURE. 
 
 85 Pennsylvania State, 495. — 1877. 
 
 Sharswood, J. — * * * But let us concede that the instru- 
 ment of May 6th, 1819, is distinguishable from that in Turner v. 
 Scott, supra, that it was not a will but an irrevocable grant. Eckman 
 v. Eckman, 18 P. F. Smith 460. It conveys to Pomp, Tamer and 
 Betty the premises " for their own use during their natural life, and 
 afterwards to their lawful [issue], if they have any, and if not [no] 
 lawful issue remains after their deaths, the above described lands 
 shall revert to the lawful heirs of James Nicholson, and the said 
 Pomp, Tamer and Betty Mathers art- to take possession of said tract 
 
 1 See Moore v. Littel p. 894 tupra, ;it p. 897. See also N. Y. R. P. L. §§ 47-48. 
 — Ed.
 
 IV.] DESTRUCTION OF FUTURE ESTATES. 931 
 
 of land immediately after the decease of the said James Nicholson 
 and Mary, his wife, and not before, then to have full possession, 
 one or more of them, during their natural life and the life or lives 
 of their lawful issue, which land by them, or any one or more of 
 their lawful issue shall not be allowed to rent or dispose of in any 
 way or manner whatsoever." 
 
 If this instrument were a will and to be construed according to 
 the principles applied in such cases, there would be great reason for 
 holding the limitation to be that of an estate tail to Pomp, Tamer 
 and Betsey. But it is a deed and the word " issue " will not supply 
 the want of the word "heirs" in a deed. 2 Black. Com. 115. 
 Lord Coke tells us, on the authority of Littleton, that if a man 
 giveth land to a man et exiHbus de corpore suo, legitimate procreatis or 
 semine suo he hath but an estate for life, for that there wanteth words 
 of inheritance. Co. Litt. 20 b. 
 
 Taking the entire clause together we are of the opinion that it 
 granted an estate for their lives to Pomp, Tamer and Betty, with a 
 remainder to their children for their lives. This was of course a 
 contingent remainder to the children, as there were none then in 
 being. The reversion in fee was invested in James Nicholson, for a 
 limitation to the right heirs of the grantor continues in him as the 
 old reversion. Fearne on Cont. Rem. 50. James Nicholson 
 devised this reversion after the death of his widow to Pomp, Tamer 
 and Betty in fee, subject as we have seen to an executory devise 
 over to the survivor. When it vested in them a merger of their life 
 estate held under the deed immediately took place — of the lesser 
 into the greater estate. No children of Pomp, Tamer and Betty 
 had been then born — the life-estate to them in remainder was still 
 in contingency. It was destroyed by the merger, a familiar and 
 well-settled principle. Fearne on Cont. Rem. 323. The life-estate 
 in remainder was left without any particular estate to support it and 
 it fell. The deed to McClure then passed to him the fee. 
 
 Thus we conclude that quacunque via data, whether the instrument 
 of May 6th, 1819, be regarded as a will or as a deed, the title to the 
 premises was in the defendant below. 
 
 Judgment affirmed.
 
 932 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 WADDELL v. RATTEW. 
 5 Rawle (Penn.), 230. — 1S35. 
 
 Kennedy, J. — As the question to be decided in this case arises 
 out of the will of John Rattew, deceased, it becomes necessary in 
 order to solve it correctly, to ascertain, if possible, from the face of 
 the will itself, what was the intention of the testator. And after 
 having discovered this, it will be our duty in construing the devise 
 in question, to carry it into effect, so far as it shall be found con- 
 sistent with the rules and policy of the law to do so. 
 
 The words of the will which have given rise to the present contro- 
 versy are: " Item, I give and bequeath to my son Aaron, the mes- 
 suage, plantation, and tract of land, where my son John now lives, 
 in Middleton township, containing about one hundred and nineteen 
 acres, more or less, with the appurtenances, to hold to him, my said 
 son Aaron, during the term of his natural life, and if he shall here- 
 after have issue of his body lawfully begotten, then to hold to him, 
 and his heirs and assigns forever; but in case he shall die without 
 having such issue, then I give and devise the same to all the rest of 
 my children, and their heirs and assigns forever, as tenants in 
 common." 
 
 The plaintiff's counsel contend that Aaron took under the will a 
 conditional fee, determinable upon his dying without issue living at 
 his death, and that the limitation over in that event to the testator's 
 other children, must therefore be considered an executory devise, 
 and consequently not affected by the common recovery suffered by 
 Aaron; or, in other words, they allege that Aaron, according to the 
 terms of the will, in case he had had issue, would thereupon have 
 become immediately vested with a fee simple estate in the land 
 devised to him, defeasible, however, upon his dying without issue 
 living at the time of his death. The birth of issue would have 
 instantly determined his life estate, by enlarging it into a fee; and 
 again in the event of his surviving such issue, and dying without any 
 living at the time of his death, the ulterior devise to the other chil- 
 dren of the testator could only have operated as an executory devise; 
 because, as a contingent remainder, it could not take effect after the 
 determinable fee had become vested in Aaron. I must confess that 
 this view of the devise in question when first presented by the 
 counsel for the plaintiff struck me forcibly as having something in 
 it; and it was certain! y maintained on their part with great ingenuity. 
 And if Aaron had nol suffered the common-law recovery and had had 
 issue, who had dud during his life:, and he had then died himself 
 without any living at the time of his death, it may possibly be that
 
 IV.] DESTRUCTION OF FUTURE ESTATES. 933 
 
 the ulterior devise of the land to the other children of the testator 
 would have been operative and taken effect as an executory devise, 
 for it has been said that an estate may be devised over in either of 
 two events, so that in the one event the devise may operate as a 
 contingent remainder, and in the other as an executory devise. 
 Doe v. Selby, 2 Earn. & Cress. 926; s. c. 9 Eng. Com. Law Rep. 277; 
 2 Pow. on Dev. by Jarman, 245. 
 
 Be this, however, as it may, the event which has occurred in this 
 case does not render it necessary to decide it under such aspect; 
 but if it did, I see no objection that could be made to it, unless it 
 might possibly be thought by some, that to adopt such a principle 
 would be entrenching upon a rule that has been said to prevail with- 
 out even an exception to it; which is, that when a devise is capable, 
 according to the state of the objects at the death of the testator, of 
 taking effect as a remainder, it shall not be construed to be an 
 executory devise. Reeve v. Long, Carth. 310; Purefoy v. Rogers, 2 
 Saund. 380, and cases cited in note (9), also 2 Pow. on Dev. by 
 Jarman, 237. Besides these there is said to be another rule by 
 which an executory devise is distinguishable from a contingent 
 remainder, which seems to be opposed to the construction contended 
 for by the plaintiff's counsel; it is this: That to constitute an 
 ulterior limitation, an executory devise where there is a prior estate 
 of freehold devised, the latter must not be merely liable to be 
 determined before the former shall take effect, which only renders 
 the remainder dependent on it contingent, but it must be determined 
 before the taking effect of the ulterior devise; as in the case of a 
 devise to A. for life, and after his decease to the unborn children of 
 B., this would be a contingent remainder in such children ; but under 
 a devise to A. for life, and after his decease and one day to the 
 children of B., the children of B. in this case would take an execu- 
 tory devise. 2 Pow. on Dev. by Jarman, 238. And for the day 
 undisposed of, between the death of A. and the time fixed for the 
 ulterior devise to the children of B. to take effect, the estate would 
 belong to the heir or residuary devisee. Ibid. Stephens v. Stephens, 
 Ca. Temp. Talb. 238. Now, it is obvious in the case under con- 
 sideration, that the prior estate devised to Aaron for life could not 
 be said to be necessarily determinable before the time at which the 
 ulterior limitation over to the other children of the testator was to 
 take effect; it was at most, even upon the construction contended 
 for by the counsel of the plaintiff, only liable to be determined before 
 that event might happen; and hence according to the rule just men- 
 tioned cannot, or at least in the event that has occurred cannot, be 
 considered an executory devise, but must be deemed a contingent
 
 934 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 remainder. This construction seems to be requisite also, for the 
 purpose of carrying into effect an intention pretty plainly manifested 
 by the testator, that Aaron should not have it in his power to dispose 
 of the land beyond the period of his own life; so that by construing 
 the prior devise to Aaron, for the term of his natural life, an absolute 
 vested estate in him for life, making it neither more or less with a 
 contingent remainder to him in fee upon his dying, leaving issue 
 living at the time of his death; we give full effect to the letter of the 
 will, as well as the intent of the testator. If the fee given to Aaron, 
 which is admitted to have been determinable, had vested in him dur- 
 ing his life, the limitation over to the other children of the testator 
 could only have taken effect as an executory devise, but being ever 
 in contingency and the event having failed upon which it is claimed 
 by the counsel for the plaintiff, that it would have become vested, 
 the ulterior devise of the land to the other children had all the prop- 
 erties of a contingent remainder, and as such might and would have 
 taken effect, if the recovery had not been suffered, and, therefore, 
 could not have operated as an executory devise. The devise to the 
 other children of the testator, is not then the case of a limitation 
 over to them, after a prior vested determinable fee given to Aaron, 
 which would make it an executory devise, but it is one of two several 
 fees limited merely as substitutes or alternatives, one for the other, 
 that is, the first to Aaron, if he should die leaving issue living at the 
 time of his death; but, if not, then to the other children of the testa- 
 tor in lieu thereof; thus substituting the latter in the room of the 
 former, if it should fail of effect. This is the principle which was 
 decided in Loddington v.Kyme, 3 Lev. 431; s. c. 1 Ld. Raym. 208, 
 where it was held that the first remainder was a contingent remainder 
 in fee to the issue of A., and the remainder to B. was also a con- 
 tingent fee, not contrary to, or in any degree derogatory from the 
 effect of the former, but by way of substitution for it. And this 
 of alternative limitation, was termed a contingency with a 
 double aspect. Fearne on Cont. Rem. 373. So that if the estate 
 vested in the one, it never could in the other. Herbert v. Selby, 2 
 Barn. & Cress. 926; s. c. 9 Eng. Com. L. Rep. 278. The ulterior 
 devise then to the other children of the testator, being considered in 
 the event that has taken place, a contingent remainder, and Aaron, 
 uffering the common recovery, having determined his life-estate, 
 the only proof of the remainder, before it became vested, it fell, 
 
 and never could take effect afterwards. 
 
 Tin plaintiffs, therefore, have no right to recover the land, and 
 the judgmenl is affirmed.
 
 IV.] DESTRUCTION OK FUTURE ESTATES. 935 
 
 RICE v. BOSTON & WORCESTER RAILROAD CORPORA- 
 
 TION. 
 
 12 Allen (Mass.), 141. — 1866. 
 
 Writ of entry. Demandant's father conveyed the premises in 
 question to the railroad corporation in 1834, by a warranty deed 
 which stated that the conveyance was made upon the express con- 
 dition that the corporation should forever maintain and keep in 
 good repair a pass-way over the same, and also certain fences. In 
 1842 demandant's father conveyed to him by a deed of warranty a 
 large tract the description of which included the demanded prem- 
 ises, and died intestate before any breach of the condition. 
 Demandant offered evidence of a breach of condition after his 
 father's death. The judge excluded the evidence and demandant 
 excepts. 
 
 Bigelow, C. J. — It is one of the established rules of the common 
 law that the right or possibility of reverter which belongs to a 
 grantor of an estate on condition subsequent cannot be legally con- 
 veyed by a deed to a third person before entry for a breach. This 
 rule is stated in Co. Litt. 214 a, in these words: " Nothing in 
 action, entry or re-entry can be granted over;" and the reason 
 given is " for avoiding of maintenance, suppressing of rights and 
 stirring up of suits," which would happen if men were permitted 
 " to grant before they be in possession." This ancient doctrine 
 had its origin in the early statutes against maintenance and cham- 
 perty in England, the last of which, 32 Henry VIII., c. 9, expressly 
 prohibited the granting or taking any such right or interest under 
 penalty, both on the grantor and the buyer or taker, of forfeiting 
 the whole value of the land or interest granted, or, as Coke 
 expesses it, " the grantor and grantee, albeit the grant be merely 
 void, are within danger of the statute." Co. Litt. 369 a. The 
 principle that a mere right of entry into land is not the subject of a 
 valid grant has been fully recognized and adopted in this country as 
 a settled rule of the law of real property, both by text writers and 
 courts of justice. 2 Cruise Dig., Greenl. ed., tit. xiii., c. 1, § 15; 1 
 Washburn on Real Prop. 453; 2 lb. 599; I. Smith's Lead. Cas. (5th 
 ed.) 113; Nicoll v. New York &* Erie Railroad, 2 Kernan 133; 
 Williams v. Jackson, 5 Johns. 498; Hooper v. Cummings, 45 Maine 
 359; Guild v. Richards, 16 Gray. 
 
 The effect of a grant of a right or possibility of reverter of an 
 estate on condition is thus stated in 1 Shep. Touchstone, 157, 15S: 
 A condition " may be discharged by matter ex post facto; as in the
 
 936 FUTURE ESTATES AND INTERESTS IN LAND. [PT. IV. CH. VI. 
 
 examples following. If one make a feoffment in fee of land upon 
 condition, and after, and before the condition broken, he doth make 
 an absolute feoffment, or levy a fine of all or part of the land, to the 
 feoffee, or any other; by this the condition is gone and discharged 
 forever." So in 5 Vin. Ab. Condition, (id. 11) the rule is said to 
 be, " when condition is once annexed to a particular estate, and 
 after by other deed the reversion is granted by the maker of the 
 condition, now the condition is gone." See also 1 Washburn on 
 Real Prop. 453; Hooper v. Cummings, 45 Maine, 359. The original 
 maker of the condition cannot enforce it after he has parted with 
 his right of reverter, nor can his alienee take advantage of a breach, 
 because the right was not assignable. In the light of these princi- 
 ples and authorities, it would seem to be very clear that the original 
 grantor of the demanded premises destroyed or discharged the con- 
 dition annexed to his grant to the defendants by aliening the estate 
 in his lifetime and before any breach of the condition had taken 
 place. 
 
 The only doubt which has existed in our minds on this point arises 
 from the fact that the son and heir of the original grantor of the 
 premises is the demandant in this action. But on consideration we 
 are satisfied, not only that the son took nothing by the deed, but 
 also that the possibility of reverter was extinguished so that the 
 original grantor had no right of entry for breach after his deed to 
 his son, and the latter can make no valid claim to the demanded 
 premises either as grantee or as heir for a breach of the condition 
 attached to the original grant. A condition in a grant of land can 
 be reserved only to the grantor and his heirs. But the latter can 
 take only by virtue of the privity which exists between ancestor and 
 heir. This privity is essential to the right of the heir to enter. But 
 if the original grantor alienes the right or possibility in his lifetime 
 before breach, the privity between him and his heirs as to the pos- 
 sibility of reverter is broken. No one can claim as heir until the 
 decease of the grantor, because nemo est lucres viventis; and upon 
 his death his heir has no right of entry, because he cannot inherit 
 that which his ancestor had aliened in his lifetime. The right of 
 entry is gone forever. Perkins, §§ 830-833; Litt., § 347. 
 
 It may be suggested, however, that if the deed is void and con- 
 veys no title to the grantee, the right of entry still remains in the 
 grantor and is transmissible to his heir. This argument is inconsist- 
 ent with the authorities already cited, which sanction the doctrine 
 that alienation by a grantor of an estate on condition before breach 
 extinguishes the condition; it also loses sight of the principle on 
 h tin doctrine rests. The policy of the law is to discourage
 
 IV.] DESTRUCTION OF FUTURE ESTATES. 937 
 
 maintenance and champerty. Neither party to a conveyance which 
 violates the rule of law can allege his own unlawful act for the pur- 
 pose of securing an advantage to himself. The grantor of a right 
 of entry cannot be heard to say that his deed was void, and that the 
 right of entry still remains in him, because this would be to allow 
 him to set up his own turpitude in engaging in a champertous trans- 
 action as a foundation of his claim. His deed is therefore effectual 
 to estop him from setting up its invalidity as the ground of claiming 
 a right of entry which he had unlawfully conveyed. Nor can the 
 grantee avail himself of the grant of the right of entry for a like 
 reason. He cannot be permitted to set up a title which rests upon 
 a conveyance which he has taken in contravention of the rules of 
 the law. Both parties are therefore cut off from claiming any bene- 
 fit of the condition. The grantor cannot aver the invalidity of his 
 own deed, nor can the grantee rely on its validity. Both being par- 
 ticipators in an unlawful transaction, neither can avail himself of it 
 to establish a title in a court of law. It is always competent for a 
 party in a writ of entry to allege that a deed, under which an adverse 
 title is claimed, although duly executed, passed no title to the 
 grantee, either because the grantor was disseised at the time of its 
 execution, or because the deed for some other reason did not take 
 effect. Stearns on Real Actions, 226. 
 
 We know of no statute which has changed the rules of the com- 
 mon law in this commonwealth in relation to the alienation of a 
 right of entry for breach of a condition in a deed. By these rules, 
 without considering the other grounds of defense insisted upon at 
 the trial, it is apparent that the demandant cannot recover the 
 demanded premises; not as heir, because he did not inherit that 
 which his father had conveyed in his lifetime; nor as purchaser, 
 because his deed was void. 
 
 Exceptions overruled.
 
 CHAPTER VII. 
 Joint Ownership of Interests in Land. 
 I. Kinds of joint interests and characteristics of each, 
 i. Estates in Joint Tenancy. 
 
 BABBITT v. DAY. 
 
 41 New Jersey Equity, 392. — 18S6. 
 
 [Reported herein at p. 6S5.] 1 
 
 HAUGHABAUGH v. HONALD. 
 
 1 Constitutional Court (S. C.;, 90. — 1812. 
 
 This was an action to recover a moiety of 100 acres, originally 
 granted to Anthony Slack. — A. S. by his last will, in 1761, devised 
 the 100 acres to his wife and three daughters, and their heirs. The 
 widow and three daughters occupied the land after his death; after- 
 wards the widow died intestate; then one of the daughters died an 
 infant and unmarried. The two surviving daughters married ; one 
 of them with Mark Honald; the other with John Seastrunk. Seas- 
 trunk and Honald, and their wives, lived on the same tract, and a 
 fence divided their possessions. In 1786 Mark Honald's wife died, 
 leaving one son, David Honald. Mark Honald continued in posses- 
 sion after his wife's death, married a second wife, and died in the 
 year 1795, leaving a widow, the defendant, Hannah Honald, who has 
 continued in possession from the time of his death. John Seastrunk 
 and his wife continued in possession of their part until 1798, when 
 they conveyed a moiety of the said 100 acres to one John Wain- 
 wright; which moiety they describe as bounded on the upper side 
 by part of the said tract held by the heirs of Mark Honald. This 
 de< d was executed by the wife of Seastrunk, but she did not release 
 her inheritance. John Wainwright conveyed the part purchased of 
 trunk to the plaint ill". David Honald, after he became of age, 
 ey< d to the plaintiff the other moiety. 
 
 1 Aa i" 1 1 1 « - " unities " needful to constitute an estate in " joint tenancy " see 
 Spencer v. Austin, \>. 944, infra. Ed. 
 
 [938]
 
 I. I.] ESTATES IN JOINT-TENANCY. 939 
 
 The defendant contended that at the death of the wife of Mark 
 Honald, her interest survived to her sister, Mrs. Seastrunk, and 
 that nothing passed to the plaintiff by the conveyance of David 
 Honald. 
 
 His Honor charged the jury that, on the death of Mrs. Honald her 
 part survived to Mrs. Seastrunk, her sister; and no estate in the 
 land descended to David Honald, the lessor of the plaintiff. 
 
 Verdict for defendant. Motion for a new trial. 
 
 Colcock, J. — It is conceded that the daughters of Anthony 
 Slack held as joint tenants. The only question then is, " Was there 
 any division in their lives of the property? " It does not appear 
 that there was any division, or any act of the parties, which the 
 court can construe into a severance of the estate. On the death of 
 Mrs. Honald, her sister took the whole by survivorship. The land 
 did not descend to the son, and therefore he had no right to convey 
 to the plaintiff. As the plaintiff must recover on the strength of 
 his own title, the defendant's need not be inquired into. I am of 
 opinion the motion should be rejected. 
 
 Brevard, J. — The plaintiff must recover in this action on the 
 strength of his own title, and not on the weakness of his adversary's. 
 It was contended for the plaintiff: 1st. That on the death of Mrs. 
 Honald in 1786, the estate did not vest in Mrs. Seastrunk, by sur- 
 vivorship, for that the act of Assembly of 1748, P. L. 217, takes 
 away the right of survivorship. 2d. That the evidence given in the 
 case was sufficient to prove a severance of the joint estate before 
 Mrs. Honald's death. My opinion is the verdict ought to stand. 
 The act of Assembly, 1748, only provides an easier mode for obtain- 
 ing partition of joint estates; but does not change their nature or 
 properties. The jus accrescendi was abolished by the act of 1791, and 
 not before. This act is a legislative declaration of what the law was 
 before that time. On the death of Mrs. Honald, in 1786, the whole 
 estate vested in her sister, unless the joint tenancy had been severed 
 in her life. If there was clear proof, or even such evidence as would 
 amount to a strong probability, of a severance between the joint 
 tenants, by agreement; or, by a bargain and sale of Mrs. Seas- 
 trunk's moiety, which would operate a severance, before Mrs. Hon- 
 ald's death, my opinion would be different. A parol agreement and 
 partition was good at common law, Co. Lit. 165, 171; and notwith- 
 standing the statute of frauds, such a partition may be valid, if the 
 line be sufficiently marked on the ground, and manifested by a sep- 
 arate distinct possession for a sufficient length of time. 1 Binney, 
 216. The evidence in this case was too vague and slight to found
 
 94-0 JOINT OWNERSHIP OF INTERESTS IN LAND. [PT. IV. CH. VII. 
 
 a presumption of a legal and valid partition, even by parol. There 
 was no evidence of agreement to divide. The joint tenants were 
 both married women, and would not be bound by any agreement 
 made by their husbands, unless their consent was obtained agreeably 
 to law. The evidence of a separate possession was too loose to 
 afford any solid ground to presume a partition. This evidence con- 
 sists chiefly of proof that Mark Honald was in possession of a part 
 until his death; and that in 1798 John Seastrunk and his wife con- 
 veyed to John Wainwright a moiety of the tract; and the convey- 
 ance in describing the land states that it is bounded on the upper 
 side by part of the said tract held by the heirs of Mark Honald. 
 Mrs. Seastrunk is joined in this deed, but there is no renunciation 
 of her inheritance. The argument drawn from the language of this 
 deed in the description of the premises has no weight. It cannot 
 by intendment and implication divest Mrs. Seastrunk of her inherit- 
 ance. For anything that appears to the Court, she has never con- 
 sented to part from her estate. The deed could not estop her, even 
 if it were more explicit than it is. * * * 
 
 Since, therefore, there is no will, no proof whatever of partition, 
 agreeably to the act of 1748, and the primogeniture act does not 
 apply, it follows that Mrs. Seastrunk took the whole estate by sur- 
 vivorship, and nothing passed to the plaintiff by the deed of David 
 
 Honald. 
 
 Motion refused. 
 
 THORNBURG v. WIGGINS. 
 
 135 Indiana, 178. — 1893. 
 
 Dailey, J. — This was an action instituted in the court balow, in 
 two paragraphs, in the first of which appellees allege, in substance, 
 that on and before December 15, 1884, one Lemuel Wiggins was the 
 owner of a certain tract of real estate therein described, containing 
 eighty acres; that on said day said Lemuel and his wife, Mary, 
 executed and delivered to the appellees [Wiggins and wife] a war- 
 ranty deed, conveying to them the fee-simple of said real estate; 
 that at the time of said conveyan.ce the appellees were, ever since 
 have been, and now are, husband and wife; that said deed conveyed 
 to the appellees the title to said real estate which they took and 
 accepted, ever since have held, and now hold by entireties and not 
 otherwise; that appellees hold their title to said real estate by said 
 deed of Lemuel Wiggins, anil not otherwise; that on the 24th " day 
 of April, 1X77, Isaac K. Howard and Isaac N. Gaston, who were
 
 I. i.] ESTATES IN JOINT-TENANCY. 94I 
 
 defendants below, recovered a judgment in the Randolph Circuit 
 Court for the sum of $403.70 and costs, against one John T. Bur- 
 roughs and the appellee, Daniel S. Wiggins, as partners, doing busi- 
 ness under the firm name of Burroughs & Wiggins; that on May 12, 
 1886, said Howard and Gaston caused an execution to be issued on 
 said judgment and placed in the hands of the appellant, Thornburg, 
 as sheriff of said county, and directed him to levy the same on said 
 real estate, and that said sheriff did, on the 25th day of May, 1886, 
 levy said execution on said real estate, or on the one-half interest in 
 value thereof, taken as the property of said appellee, Daniel S. Wig- 
 gins, to satisfy said writ ; that pursuant to the levy thereof said sheriff 
 proceeded by the direction of said Howard and Gaston to advertise 
 said real estate for sale under said execution and levy to make said 
 debt, and did, on the 8th day of June, advertise the same for sale 
 on the 3d day of July, 1886, and will, on said day, sell the same, 
 unless restrained and enjoined from so doing by the court; that said 
 Daniel S. Wiggins has no interest in said premises, subject to sale 
 thereon; that the appellees hold the title thereto as tenants by 
 entireties and not otherwise; that the sale of said tract on said exe- 
 cution would cast a cloud on the appellee's title," etc. 
 
 The second paragraph is the same as the first, in substantial aver- 
 ments, except that in this paragraph the appellees set out as a part 
 thereof a copy of the deed under which they claim title to said real 
 estate as such tenants by entireties. 
 
 The granting clause of the deed is as follows: " This indenture 
 witnesseth, that Lemuel Wiggins and Mary Wiggins, his wife of 
 Randolph County, in the State of Indiana, convey and warrant to 
 Daniel S. Wiggins and Laura Belle Wiggins, his wife, in joint ten- 
 ancy," etc. 
 
 Appellants separately and severally demurred to each paragraph 
 of the complaint, and their demurrers were overruled by the court, 
 to which the appellants excepted, and, refusing to answer the com- 
 plaint, judgment was rendered in favor of appellees on said demur- 
 rers. 
 
 Appellants appeal, assigning as errors the overruling of said 
 demurrers, and urge that the appellees under the deed took as joint 
 tenants, and hence that the husband's interest is subject to levy and 
 sale upon execution. A joint tenancy is an estate held by two or 
 more persons jointly, so that during the lives of all they are equally 
 entitled to the enjoyment of the land or its equivalent in rents and 
 profits, but, upon the death of one his share vests in the survivor 
 or survivors until there be but one survivor, when the estate becomes 
 one in severalty in him and descends to his heirs upon his death.
 
 94- JOINT OWNERSHIP OF INTERESTS IN LAND. [PT. IV. CII. VII. 
 
 It must always arise by purchase, and cannot be created by descent. 
 Such estates may be created in fee, for life, for years, or even in 
 remainder. But the estate held by each tenant must be alike. 
 Joint tenancy may be destroyed by anything which destroys the 
 unity of title. Our law aims to prevent their creation and they can- 
 not arise, except by the instrument providing for such tenancy. 
 Griffin v. Lynch, 16 Ind. 396. 
 
 The 9th Am. and Eng. Encyc. of Law, 850, says: " Husband and 
 wife are, at common law, one person, so that when realty or per- 
 sonalty vests in them both equally . . . they take as one per- 
 son, they take but one estate as a corporation would take. In the 
 case of realty, they are seized wot per my et per tout, as joint tenants 
 are, but simply/*?/- tout; both are seized of the whole, and each 
 being seized of the entirety, they are called tenants by the entirety, 
 and the estate is an estate by entireties. . . . Estates by 
 entireties may be created by will, by instrument of gift or purchase, 
 and even by inheritance. Each tenant is seized of the whole, the 
 estate is inseverable — cannot be partitioned; neither husband nor 
 wife can alone affect the inheritance, the survivor's right to the 
 whole." 
 
 This tenancy has been spoken of as " that peculiar estate which 
 arises upon the conveyance of lands to two persons who are, at the 
 time, husband and wife, commonly called estates by entirety." As 
 to the general features of estates by entireties there is little room 
 for controversy, and there is none between counsel. Our statute 
 re-enacts the common law. Arnolds. Arnold, 30 Ind. 305; Davis v. 
 Clark, 26 Ind. 424. * * * 
 
 Where a contrary intention is clearly expressed in the deed, a 
 different rule obtains. 
 
 " A husband and wife may take real estate as joint tenants or 
 tenants in common, if the instrument creating the title use apt 
 words for the purpose." 1 Preston on Estates, 132; 2 Blackstone's 
 Com., Sharswood's note; 4 Kent's Com., side page 363; 1 Bishop 
 on Married Women; Freeman on Cotenancy, § 72; Fladung v. 
 Rose, 58 Md. 13 (24). 
 
 And in case of devises and conveyances to husband and wife 
 together, though it has been said that they can take only as tenants 
 by entireties, the prevailing rule is that, if the instrument expressly 
 so provides, they may take as joint tenants or tenants in common." 
 Stewart on Husband and Wife, §§ 307-310; Tiedeman on Real Prop- 
 erty, § 244. 
 
 " And as by common law it was competent to make husband and 
 wife tenants in common by proper words in the deed or devise,"
 
 I. i.] ESTATES IN JOINT-TENANCY. 943 
 
 etc. Hoffman v. Stigers, 28 la. 310; Brown v. Brown, 32 N. E. 
 Rep. 1128. 
 
 So it seems that husband and wife may, by express words, be 
 made tenants in common by gift to them during coverture. Mc- 
 Dermott v. French, 15 N. J. Eq. 80. * * * 
 
 If, as contended by appellees, the rule prevails that the same words 
 which, if the grantees were unmarried, would have constituted them 
 joint tenants, will, they being husband and wife, make them tenants 
 by entireties, then it would result as a logical conclusion that hus- 
 band and wife cannot be joint tenants. Because, by this rule, 
 words, however apt or appropriate to create a joint tenancy, would, 
 in a conveyance to husband and wife, result in an estate by entireties 
 — joint tenancy would be superseded or put in abeyance by the 
 estate created by law — tenancy by entirety. 
 
 The result of such reasoning would be to destroy the contractual 
 power of the parties where this relationship between the grantees is 
 shown to exist. Any other process of reasoning would carry the 
 rule too far and. we must hold it modified to the extent here indi- 
 cated. Husband and wife, notwithstanding tenancies by entirety 
 exist as they did under the common law, may take and hold lands 
 for life, in joint tenancy, or in common, if appropriate language be 
 expressed in the deed or will creating it, and we know of no more 
 apt terms to create a joint tenancy in the grantees in this estate 
 than the expression " convey and warrant to Daniel S. Wiggins and 
 Laura Belle Wiggins in joint tenancy." 
 
 These words appear in the granting clause of the deed conveying 
 the land in question, and the estate accepted and held by the 
 grantees is thereby limited, and they hold not by entireties but in 
 joint tenancy. A joint tenant's interest in property is subject to 
 execution. Freeman on Ex., 125. 
 
 Judgment reversed, with instructions to the Circuit Court to sus- 
 tain the demurrer to each paragraph of the complaint. 
 
 CAMPBELL v. HERRON. 
 1 Conference Reports (N. C), 291. — 1801. 
 [Reported herein at p. 947.]
 
 944 JOINT OWNERSHIP OF INTERESTS IN LAND. [FT. IV. CH. VII. 
 
 2. Estates in Common. 
 
 SPENCER v. AUSTIN. 
 
 3S Vermont, 25S. — 1865. 
 
 Bill in chancery to ascertain the interests of the several parties 
 in the premises in question. In 1830 Gideon and Stephen Spen- 
 cer, owning the lands in common, by joint lease demised the lands 
 to one Ward, reserving an annual rent of $800. The lease con- 
 tained a clause for re-entry in case of non-payment of rent. In 1833 
 Stephen Spencer transferred to Apollos Austin all his right in the 
 lands and rents. In 1836 Ward transferred his rights under the 
 lease in one undivided moiety of the same land to Austin. Gideon 
 Spencer died in 1847. 
 
 Wilson, J. — The orators seek to charge the whole land with the 
 payment of the rent due to them as the assignees and representa- 
 tives of Gideon Spencer, and whether they are entitled to the relief 
 sought for depends upon the original rights of Gideon and Stephen 
 Spencer as tenants in common of the land sought to be charged, and 
 upon the legal effect of the several conveyances under which these 
 parties respectively claim title to the premises. Gideon and Stephen 
 Spencer were, at the date of the lease to Ward, tenants in common 
 of the land conveyed. " The only unity required between tenants 
 in common is that of possession, for one tenant may hold his part in 
 fee simple, the other in tail or for life; so that there is no unity of 
 interest. One may hold by descent, the other by purchase; so that 
 there is no unity of title. One estate may have been vested fifty 
 years, the other but yesterday; so that there is no unity of time." 
 Litt., § 292; 1 Inst. 190; Cr. Dig. B. 2, tit 20; 2 Black. Com. 191. 
 " Joint tenants have one and the same interest, accruing by one and 
 the same conveyance, commencing at one and the same time, and 
 held by one and the same undivided possession." Black. Com. 146. 
 And among the incidents attending a joint tenancy is the doctrine or 
 right of survivorship which does not exist in tenancy in common. 
 The ancient English law was apt in its constructions of conveyances 
 to favor joint tenancy rather than tenancy in common; but joint 
 tenancies, for a long period of time, have been and still are regarded 
 with so little favor in England and in this country, both in courts of 
 law and equity, that whenever the expressions will import an inten- 
 tion in favor of a tenancy in common, such effect will be given to 
 them. Our legislature, for the purpose of protecting the several 
 interests of persons in the same land, and guarding them against 
 the incidents attending a joint tenancy and the injustice which might
 
 I. 2.] ESTATES IN COMMON. 945 
 
 resuit therefrom, has declared that all conveyances and devises of 
 lands made to two or more persons, except conveyances and devises 
 made in trust, or made to husband or wife, shall be construed to 
 create estates in common, and not in joint tenancy, unless it shall 
 be expressed therein that the grantees or devisees shall take the 
 lands jointly, or as joint tenants, or in joint tenancy, or to them and 
 the survivor of them or unless it shall manifestly appear from the 
 tenor of the instrument that it was intended to create an estate in 
 joint tenancy. G. S., c. 64, §§ 2 and 3. 1 The reason of the rule 
 which protects the title and several interests of tenants in common, 
 while they jointly possess the estate, each under his own absolute 
 title to a moiety of the lands, may exist in case of a joint convey- 
 ance by them, of part of their interest in the premises, and upon 
 principle the rule should extend to and protect their reserved rights 
 in the estate under such conveyance, and preserve them in severalty, 
 so long as such relation exists, either in respect to the proceeds of 
 the estate, or in respect to their reserved rights in the estate, unless 
 the conveyance contain some express provision to the contrary. 
 The principal incidents then attending a tenancy in common being 
 such as merely arise from the unity of possession, it follows that 
 one tenant in common may convey his estate without the other, and 
 resume it at any time, or they may unite in a common conveyance 
 of their respective estates, without necessarily intermingling or 
 prejudicing their separate rights or interests. 
 
 The two Spencers, holding by separate and independent titles, in 
 1830, by their joint deed, made the lease to Ward, reserving an 
 annual rent of $800. The lease among other stipulations contained 
 a clause of re-entry in case of non payment of the rent. The rent 
 was made payable in gross, but it belonged to each separately, in 
 equal moieties, as tenants in common, in the same right as that in 
 which they had held the land. By the terms of the lease neither 
 Spencer released to the other any right to or interest in his moiety 
 of the estate, nor in his security upon such moiety for his share of 
 the rent. The joint lease of Spencers to Ward did not in any man- 
 ner affect their reserved rights as tenants in common. They were 
 the same as if the lease to Ward had been made by two separate 
 deeds of the Spencers, each of his own moiety, reserving rent, and 
 a right of re-entry for condition broken. The lease gave neither of 
 them any estate in, or control over the title or part of the other. 
 Their reserved estate in the land was, in effect, several, their right 
 to the rent several, and their right of re-etry for condition broken 
 
 1 For New York see the R. P. L. § 56. — Ed. 
 
 LAW OF PROP. IN LAND — 66
 
 946 JOINT OWNERSHIP OF INTERESTS IN LAND. [PT. IV. CII. VII. 
 
 was several. And " where a person enters for condition broken the 
 estate becomes void ab initio, and the person who enters is again 
 seised of his original estate in the same manner as if he had never 
 conveyed it away." Lit., § 325; 1 Inst. 202 a; Cruise's Dig. B. 2, 
 tit. Condition. Stephen Spencer in 1833 conveyed his interest in 
 the premises to Apollos Austin. He conveyed to Austin his moiety 
 of the rent due and growing due, and his moiety of the land 
 charged only with the payment of his part of the rent; by which 
 Austin succeeded to the title and rights of Stephen Spencer which 
 were co-extensive with the rights of Gideon Spencer. In 1836 
 Ward assigned his interest in one undivided moiety of the same land 
 to Austin, by which Austin became seised of all the right and title 
 to the moiety owned by Stephen Spencer at the time the lease was 
 made by the Spencers to Ward. It is urged by the orators that the 
 assignment from the lessor Stephen Spencer of one-half of the 
 lessor's interest in the premises, and the conveyance from Ward of 
 one-half of the lessee's interest, operated as a merger of these 
 estates in Apollos Austin and vested in him the title to one undivided 
 half, in fee. It is true that those conveyances vested in Apollos 
 Austin the title to one undivided half of the premises, but it did not 
 necessarily follow that the conveyances operated as a merger of 
 those estates in Austin, so far as to extinguish his rights under the 
 lease. The question is upon the intent of Austin, in whom the 
 interests were united; and it appears to us that there could have 
 been no intention to create a merger of the estates. In Walker, 
 Smith &• Co. v. Barker and Fletcher, 26 Vt. 710, it was held that the 
 estates when united will not be treated as merged, so as to operate 
 as payment or extinguishment of the debt, unless such was the evident 
 intention of the parties, nor will that result follow if there exists 
 some beneficial interest that should be protected, and where it is for 
 the benefit of the party to keep the legal and equitable interests sep- 
 arate and distinct. And in the case of Forbes v. Moffat, 18 Vesey 
 384, the rule was recognized that the whole question rests upon an 
 expressed or presumed intention of the parties, and that the debt will 
 be treated as paid and satisfied when it is evident that the estates 
 were united with a view to satisfy the debt, otherwise it will have no 
 such effect; and such is the rule both at law and in equity. Under the 
 circumstances we think the case stands the same as if Stephen 
 u r had become the assignee of Ward. The two estates, viz.: 
 that of Stephen Spencer reserved in the lease, and that of W r ard in 
 Stephen Spencer's moiety of the land, were united in Apollos Austin 
 and he became the owner of the moiety of Stephen Spencer and a 
 tenant in common with Gideon Spencer with all the right of prop-
 
 I. 3.] ESTATES IN COPARCENARY. 947 
 
 erty vested in him that was vested in Stephen Spencer at the date 
 of the lease. The right of Austin to the rent in arrear was not sat- 
 isfied by the union of the two estates; he still had a right to enjoy 
 his moiety of the land, as well for the rent in arrear as for the 
 accruing rent. Gideon Spencer, at the time of the execution of the 
 lease by him and his co-tenant Stephen Spencer to Ward, had no 
 title to or interest in Stephen Spencer's moiety of the premises; he 
 derived none from the joint lease to Ward, nor from the subsequent 
 assignment and conveyance by which Austin became the owner of 
 Stephen Spencer's moiety of the premises; and it is clear that 
 Austin is entitled to the free use and profits of his moiety of the 
 lands, and to an equal lien and charge for the Stephen Spencer 
 rents, upon the property in the same manner and to the same extent 
 as the orators. We are entirely satisfied with the result, for it 
 appears to be in accordance with the intention and understanding 
 of the parties as disclosed by the testimony in the case. It is not 
 reasonable to suppose that the Spencers, by uniting in the execution 
 of the lease to Ward, intended to affect their separate rights in the 
 estate, or the rights of their grantees, nor will equity allow the 
 orators to extend their security over the whole land when so mani- 
 festly contrary to the intention of the parties. * * * 
 
 The decree of the chancellor, by which the orator's bill was dis- 
 missed, is affirmed with costs to the defendants. * * * 
 
 3. Estates in Coparcenary. 
 
 CAMPBELL v. HERRON. 
 
 1 Conference Reports (N. C), 291. — 1801. 
 
 The will of Rufus Mersden gave to his wife the use of certain 
 lands for life and after her death to the use of his " three daughters, 
 namely, Hannah, Alice and Peggy, and to their heirs, executors, 
 administrators and assigns forever, and to no other use or uses 
 whatever." Hannah married and both she and her husband died 
 before the widow, leaving a child, Alice, one of the complainants 
 herein. The widow died in 1758, leaving her daughters, Alice and 
 Peggy, and her grandaughter Alice surviving. Peggy married in 
 1785, and is now deceased, leaving her husband and a son, both of 
 whom are defendants herein. The daughter Alice and John Lorden, 
 husband of Peggy, are in possession of the land. Complainant 
 claims one-third part of the premises and an account of the profits 
 accrued since the death of the life tenant. Defendant demurred on
 
 948 JOINT OWNERSHIP OF" INTERESTS IN LAND. [PT. IV. CH. VII. 
 
 the ground that the daughters were joint tenants and that therefore 
 complainant has no claim to a share of the land. If they took as 
 co-parceners or tenants in common, complainants could succeed. 
 
 By the Court. — It is not doubted but that if a person devises 
 land to one who is his next heir, and his heirs, the devise is void, 
 and the heir shall take by descent; or if a testator devise that his 
 lands shall descend to his son, the devise is void, and the devisee 
 shall be in by descent. Powell on Devises, 427, 428, and the 
 authorities there cited. 1st. Because it was for the benefit of cred- 
 itors. 2d. Because the lord would have been defrauded of the fruits 
 of his seigniory, the consequence of descent. But wherever the 
 devise makes an alteration of the limitation of the estate, from that 
 which takes place in the case of descent, then the principle ceases 
 to operate, and the heir takes by purchase. Pow. Dev. 439. In 
 the present case, if the lands, etc., had descended to the three 
 daughters, they would have taken as coparceners. Survivorship 
 therefore never could have taken place between them. But the tes- 
 tator, after giving a life-estate to his wife in the premises, gives, 
 grants, etc., the use of them to his three daughters, named Hannah, 
 Alice and Peggy, and to no other use or uses whatsoever. 
 
 It is admitted that the words made use of in this devise, in feudal 
 
 times, would have created an estate in joint tenancy — the reason 
 
 assigned why joint tenancies were favored in those times is that it 
 
 prevented a multiplication of tenures. But it is said that as the 
 
 feudal tenures wore off this rule has been gradually departed from 
 
 — that the intent, and not the words, should form the rule of decision. 
 
 It is true that joint tenancies are less and tenancies in common are 
 
 more favored than they anciently were, particularly where a father 
 
 is making provision for his children, and makes use of any words, 
 
 which a court can properly lay hold of and make instrumental for 
 
 that purpose. 1 P. W. 14, 2 Atk. 122; Cowp. 660, 2 Ves. 252, 256; 
 
 3 Atk. 731. But every one of the cases proves that an estate created 
 
 by the same words that are made use of in the present instance 
 
 must be a joint tenancy. The ground of decision in every one of 
 
 . was particular words made use of, from which the court col- 
 
 le< ted an intent in the devisor to create a tenancy in common; such 
 
 1 equally to be divided, etc.," " respectively, etc." But we know 
 
 i-n in a will, or in deeds which derive their operation 
 
 from ' le tatute of uses, where the same or similar words are not 
 
 made use of, that a similar determination has taken place; so that 
 
 are rather exceptions to the general rule; and as no 
 
 are made use of here that can bring the case within any of the 
 
 ex< 1 ptions, it must be considered a joint tenancy.
 
 I. 3.] ESTATES IN COPARCENARY. 949 
 
 Can it be presumed, in the case of Regden v. Val/iers, as reported 
 in 2 Ves. 252, and 3 Atk. 731, above cited, that Lord Hardwicke 
 would have made the same determination, had the words " equally 
 to be divided between them " not have been made use of in this 
 deed? Or would his reasoning have been applicable to the case had 
 these words been omitted? Although the reasons that formerly- 
 favored joint tenancy do not hold now so strong as formerly, yet 
 the rules to which they gave rise in many respects exist (Pow. Dev. 
 355), although frequently inconveniencies are felt from them. We 
 therefore think that the words made use of in this devise create a 
 joint tenancy, there being no particular circumstance or words in it 
 from which an intent can be collected that the testator meant to 
 convey a tenancy in common. Pow. Dev. 439; Cro. Eliz. 431; 2 
 Vern. 545; 3 Lev. 127, 128; Co. Litt. 1S9; 1 Lev. 112. 
 
 GILPIN v. HOLLINGSWORTH. 
 
 3 Maryland, 190. — 1S52. 
 
 Ejectment to recover an undivided third part of certain lands. 
 The question involved arises under the will of Henry Hollingsworth, 
 the material part of which is set forth in the opinion. Hollingsworth 
 left two children by his first and four by his second wife. These six 
 children partitioned the land amongst themselves by mutual deeds and 
 the parcel in question was allotted to Anne, one of the second wife's 
 children. Anne died seised, intestate and without issue. Her half- 
 sister, Mary, her sister of the whole blood, Elizabeth, and children 
 of another sister of the whole blood survived her. The plaintiffs 
 are the heirs-at-law of Mary, who died after Anne's decease, and they 
 claim an undivided third as against Anne's relations of the whole 
 blood, who are defendants. 
 
 Tuck, J., delivered the opinion of this court. 
 
 The will of Henry Hollingsworth contained the following clause: 
 " All the rest and residue of my estate, real, personal or mixed, 
 whatsoever or wheresoever, I give, devise and bequeath, to be 
 divided amongst all my children, in equal shares and portions, to 
 them, their heirs and assigns, forever." He left children of the 
 whole and of the half blood. If his children took by descent, and 
 not by purchase, the plaintiffs are entitled to recover, being of the 
 half blood; if, on the contrary, the property passed by the will, the 
 defendants, being of the whole blood, must succeed. 
 
 " Where the same quantity and quality of estate is devised, that
 
 950 JOINT OWNERSHIP OF INTERESTS IN LAND. [PT. IV. CH. VII. 
 
 the devisee would have acquired by descent, the title passes by the 
 worthier title — by descent, and not by purchase." 7 Gill & 
 Johns. 70; 2 Hilliard on Real Prop. 528, 529. The only inquiry, 
 then, would seem to be whether these devisees took the same estate 
 as if their father had died intestate? Estates in joint-tenancy, 
 coparcenary, and in common, are different from each other. We 
 need not mention the well-recognized distinctions. It may be con- 
 ceded, as contended in argument, that for most practical purposes 
 in this country, there is no real difference between coparceners and 
 tenants in common, yet they are different as legal estates, and their 
 qualities and incidents are not the same. Tenancies in common and 
 joint tenancies are recognized by the act of 1822, ch. 162; and 
 estates in coparcenary by the Court of Appeals in the case of Hoffar 
 v. Dement, 5 Gill, 132, where it is said: " In Maryland the children 
 of parents who die intestate, seized in fee in lands, etc., take as 
 coparceners, and are so treated by the act of 1820, ch. 191, sec. 5." 
 The same principle applies to persons inheriting in virtue of the act 
 of 1786, ch. 45. They all constitute but one heir. Suppose, instead 
 of the words employed in this clause, the will had devised this residue 
 to the children, as tenants in common, can it be doubted that they 
 would have taken as devisees, and not as heirs-at-law? 3 Anstr. 
 727. These words are not used, but terms of the same import are. 
 In wills the expressions, " equally to be divided," " share and share 
 alike," " respectively between and amongst them," have been held 
 to create a tenancy in common. 2 Bl. Com., ch. 12, note by Chitty, 
 and in 2 Powell on Devises, ch. 18, pages 370, 371, it is said: " It 
 may be stated generally that all expressions importing division by 
 equal or unequal shares, or referring to the devisees as owners of 
 respective or distinct interests, and even words simply denoting 
 equality, will have this effect." He also states several examples 
 and references. We are referred to 4 Kent Com. 367, as an authority 
 to show that in this country, where primogeniture does not exist, the 
 technical distinction between coparcenary and estates in common 
 may be considered as essentially extinguished. This, however, is 
 not the law in this State, for, as we have seen, these estates have 
 been recognized by the legislature and by the Court of Appeals. 
 
 But the question has been expressly decided in England. At com- 
 mon law it could not arise, except where the ancestor died without 
 male heirs, or where lands descended to all the sons according to 
 the custom. Where a testator seized of lands in fee, being of the 
 nature of gavel-kind, devised them to his heirs, by the custom 
 and to their heirs equally to be divided amongst them, the ques- 
 tion was, whether they should be in by descent or devise? Ander-
 
 I. 3] ESTATES IN COPARCENARY. 95 1 
 
 son, J., held that without the words " equally to/n£.divided amongst 
 them," they would be joint tenants, and that wfft ^bfese words they 
 were tenants in common, but, in either case, that they took as heirs, 
 
 I CD 
 
 and the other justices concurred. Bear s C<kf } '1 Leon. 112, 315. 
 This case is quoted as authority in 1 Powel,\j38, and 1 Jarman 
 on Wills, 68. See also Packman v. Cole, 2 Sid. 53, 78, to the same 
 effect. And so in Cro. Eliz. 431, a man having two daughters, being 
 his heirs, devised his land to them and their heirs. " The ques- 
 tion was whether they took as joint tenants by the devise, or as 
 coparceners by descent?" And all the justices held clearly that they 
 took as joint-tenants. If, therefore, the will creates a joint tenancy, 
 or a tenancy in common, the property does not pass to the devisees 
 as heirs-at-law, but as purchasers under the will. 
 
 It is contended that the distinction is merely technical, and does 
 not affect the enjoyment of the estate, whether held in coparcenary 
 or in common, as in Maryland there is very little, if any, difference 
 between these titles, and we are told that this distinction should not 
 avail against the rule on which the appellants rely to convert this 
 devise into an inheritance. This argument may be applied the other 
 way with as much force. When a will is made the presumption is 
 that the testator intended that the estate should pass by devise and 
 not by descent. This design, however, is sometimes frustrated by 
 rules of law, which is sought to be done in the present case, by one 
 for which there are not the same reasons under our laws as in Eng- 
 land. 1 Powel, 421. This rule is as technical as the other. How- 
 ever, it exists, and we have no disposition to disregard it, but we 
 think it does not apply in the present case, as the will does not pass 
 the same estate in quality and quantity that the devisees would have 
 taken as heirs-at-law. 
 
 Judgment affirmed. 
 
 HOFFAR v. DEMENT. 
 
 5 Gill, (Md.) 132. — 1847. 
 
 Assumpsit by one of the heirs-at-law of Joseph N. Stonestreet, 
 deceased, for use and occupation of lands of said decedent after his 
 death. The court instructed the jury that plaintiffs are not entitled 
 to recover for the reason, among others, that the several heirs of 
 J. N. Stonestreet should have been united as plaintiffs. Judgment 
 for defendants. Plaintiffs appeal. 
 
 Spence, J. — * * * The first question to be disposed of is, 
 whether the county court erred in deciding that the plaintiffs could
 
 952 JOINT OWNERSHIP OF INTERESTS IN LAND. [PT. IV. CH. VII. 
 
 not recover upon the first count in the declaration? We think they 
 did not. The defendant's testator entered upon the land under a 
 purchase from Nicholas Stonestreet, subsequent to the death of 
 Joseph Stonestreet; there is no evidence of any express demise or 
 agreement, to rent by the heirs of Joseph Stonestreet, jointly or 
 severally; in fact the evidence is conclusive that there was none. 
 The plaintiffs, to maintain this action, then must rely upon an 
 implied demise or agreement to establish the relation of landlord 
 and tenant between George Dement, the defendant's testator, and 
 the children of J. N. Stonestreet. 
 
 Tindal, C. J., in the case of Decharms v. fforwood, 10 Bingham's 
 R. 526, expresses his opinion in this unequivocal language: " The 
 authorities all agree that whatever be the number of coparceners, 
 they all constitute but one heir — they are connected together by 
 unity of interest and unity of title." In Maryland the children of 
 parents who die intestate seised in fee of lands, tenements, or 
 hereditaments, take as coparceners, and are so treated by the act of 
 1820, ch. 191, § 5; and the conclusion is irresistible that if they can- 
 not separately maintain an action of assumpsit, for money had and 
 received, against a person who had received the rent in the char- 
 acter of trustee, as was decided in the case of Decharms v. Horwood, 
 that they cannot recover in separate actions upon an implied demise 
 or agreement to rent, upon a count for use and occupation. 
 
 4. Estates by the Entirety. 
 
 BERTLES v. NUNAN. 
 
 92 New York, 152. — 1883. 
 
 Suit to compel a purchaser of lands to complete the purchase. 
 The lands in question were conveyed " to Cornelius Day and Hannah 
 Day, his wife, . . . their heirs and assigns." Cornelius died, 
 and thereafter Mrs. Day remained in possession of the premises until 
 her death. The premises were sold by the administratrix of Mrs. 
 Day for the payment of debts against her estate. Purchaser asserts 
 that Mrs. Day was not seised of more than an undivided half interest 
 and that plaintiff cannot give a good title to the whole under the 
 surrogate's order. Judgment for plaintiff below. Defendant appeals. 
 
 Earl, J. — On the first day of August, 1868, certain land, which 
 is the subjectof this controversy, was conveyed by deed to Cornelius 
 Day and Hannah Day, his wife, and to their heirs and assigns; and 
 the sole question for our determination is whether the grantees took
 
 I. 4.] ESTATES BY THE ENTIRETY. 953 
 
 the land as tenants in common or whether each took and became 
 seised of the entirety. 
 
 By the common law, when land was conveyed to husband and 
 wife, they did not take as tenants in common, or as joint tenants, 
 but each became seised of the entirety, per tout, et no// per my, and 
 upon the death of either the whole survived to the other. The sur- 
 vivor took the estate, not by right of survivorship simply, but by 
 virtue of the grant which vested the entire estate in each grantee. 
 During the joint lives the husband could, for his own benefit, use, 
 possess and control the land, and take all the profit thereof, and 
 he could mortgage and convey an estate to continue during the joint 
 lives, but he could not make any disposition of the land that would 
 prejudice the rights of his wife in case she survived him. 
 
 This rule is based upon the unity of husband and wife, and is very 
 ancient. It must have had its origin in the archaic period of our 
 race, and it colored all the relations of husband and wife to each 
 other, to the law and to society. In 1 Blackst. Com. 442, the 
 learned author says: " Upon this principle, of an union of person 
 in husband and wife, depend almost all the legal rights, duties and 
 disabilities that either of them acquired by the marriage. I speak 
 not at present of the rights of property, but of such as are merely 
 personal. For this reason a man cannot grant anything to his wife 
 or enter into covenant with her; for the grant would be to suppose 
 her separate existence, and to covenant with her would be only to 
 covenant with himself." They were not allowed to give evidence 
 against each other, mainly because of the union of person, for if 
 they were admitted to be witnesses for each other they would con- 
 tradict one maxim of the common law, nemo in propria causa testis 
 esse debet; and if against each other they would contradict another 
 maxim, nemo tenetur se ipsum accusare. 
 
 As one of the consequences of the same rule, the husband was 
 made responsible to society for his wife. He was liable for her torts 
 and frauds, and, in some cases, for her crimes. 
 
 This, and the other rules regulating the effect of marriage at com- 
 mon law, were not designed to degrade and oppress the wife. 
 
 Blackstone (2 Com. 445) says: " Even the disabilities which the 
 wife lies under are, for the most part, intended for her protection 
 and benefit; so great a favorite is the female sex of the laws of 
 England." 
 
 The common-law rule as to the effect of a conveyance to husband 
 and wife continued in force, notwithstanding the Revised Statutes, 
 which provided that " every estate granted or devised to two or 
 more persons in their own right shall be a tenancy in common unless
 
 
 954 JOINT OWNERSHIP OF INTERESTS IN LAND. [PT. IV. CH. VII. 
 
 expressly declared to be in joint tenancy." 3 R. S. 2179 (7 tn ed); 1 
 Dios v. Glover, 1 Hoff. Ch. 71; Torrey v. Torrey, 14 N. Y. 430; 
 Wright v. Saddler, 20 id. 320. In the latter case Comstock, J., 
 said: " It appears to be well settled that this statute does not apply 
 to the conveyance of an estate to husband and wife. They are 
 regarded in law as one person." 
 
 But the claim is made that the legislation in this State, in the 
 years 1848, 1849, i860 and 1862, in reference to the rights and property 
 of married women, has changed the common-law rule so that now 
 when land is conveyed to husband and wife they take as tenants in 
 common, as if unmarried. In construing these statutes the rule 
 must be observed, and usually has been observed, that statutes 
 changing the common law must be strictly construed, and that the 
 common law must be held no further abrogated than the clear import 
 of the language used in the statutes absolutely requires. 
 
 Section 3 of chapter 200 of the Laws of 1848, as amended by chap- 
 ter 375 of the Laws of 1849, provides that " any married female may 
 take by inheritance or by gift, grant, devise or bequest, from any 
 person other than her husband, and hold to her sole and separate 
 use, and convey and devise, real and personal property, or any 
 interest or estate therein, and the rents, issues and profits thereof, in 
 the same manner and with like effect as if she were unmarried, and 
 the same shall not be subject to the disposal of her husband or be 
 liable for his debts." It is not the effect of this section, and plainly 
 was not its purpose, to change the force and operation of a convey- 
 ance to a wife. It does not enlarge the estate which a wife would 
 otherwise take in land conveyed to her, and whatever the effect of 
 a conveyance to a husband and wife was prior to that statute, so it 
 remains. If the operation of such a conveyance was to convey the 
 entire estate to each of the grantees, so that each became seised of 
 the entirety, there is nothing in the force or effect of the language 
 used to change the operation of such a deed so as to make the 
 grantees tenants in common. The section gives the wife no greater 
 right to receive conveyances than she had at common law, but its 
 sole purpose was to secure to her during coverture what she did not 
 have at common law, the use, benefit and control of her own real 
 estate, and the right to convey and devise it as if she were unmarried. 
 
 By § 1 of the act (chapter 90 of the Laws of i860) it is pro- 
 vided that " the property, both real and personal, which any married 
 woman now owns as a sole and separate property; that which comes 
 to her by descent, devise, Inquest, gift or grant; that which she 
 
 1 N. V. R. I'. I.. § 56. - ED.
 
 I. 4-] ESTATES BY THE ENTIRETY. 955 
 
 acquires by her trade, business, labor or services, carried on or per- 
 formed on her sole and separate account; that which a woman mar- 
 ried in this State owns at the time of her marriage, and the rents, 
 issues and profits of all such property, shall, notwithstanding her 
 marriage, be and remain her sole and separate property, and may be 
 used, collected and invested by her in her own name, and shall not 
 be subject to the interference or control of her husband, or liable 
 for his debts;" and in § 3 of the Act of i860, as amended by 
 the act, chapter 172 of the Laws of 1862, it is provided that " any 
 married woman possessed of real estate as her separate property 
 may bargain, sell and convey such property, and enter into any con- 
 tract in reference to the same, with the like effect, in all respects, 
 as if she were unmarried." There is great plausibility in the claim 
 that these provisions in the Acts of 1S60 and 1862 have reference 
 only to the separate property of a wife, which she owns separate 
 from her husband, and that they have no reference whatever to land 
 conveyed to husband and wife, in which, by the common law, each 
 became seised of the entirety. The language is not so strong and 
 direct as that of the Revised Statutes, which provided that a grant 
 to two or more persons shall create a tenancy in common, and which 
 was yet held not to make husband and wife tenants in common. 
 But it is not necessary now to determine that these provisions of 
 law do not apply to lands conveyed to husband and wife, and we 
 pass that question. It is sufficient now to hold that they do not 
 limit or define what estate the husband and wife shall take in lands 
 conveyed to them jointly. Their utmost effect is to enable the wife 
 to control and convey whatever estate she gets by any conveyance 
 made to her solely or to her and others jointly. 
 
 The claim is made that the legislation referred to has destroyed 
 the common-law unity of husband and wife, and made them substan- 
 tially separate persons for all purposes. We are of the opinion that 
 the statutes have not gone so far. The legislature did not intend 
 to sweep away all the disabilities of married women depending upon 
 the common-law fiction of a unity of persons, as a brief reference to 
 the statutes will show. The Act of 1848 gave no express authority 
 to a married woman to grant or dispose of her property; such 
 authority came by the Act of 1849. The legislature clearly under- 
 stood that the common-law unity of husband and wife, and the dis- 
 abilities dependent thereon still remained, notwithstanding those 
 acts, because in i860, by the act of that year, it empowered a mar- 
 ried woman to perform labor and to carry on business on her 
 separate account; to enter into contracts in reference to her sep- 
 arate real estate; to sue and be sued in all matters having relation
 
 956 JOINT OWNERSHIP OF INTERESTS IN LAND. [PT. IV. CH. VII. 
 
 to her property, and tu maintain actions for injuries to her person. 
 Until 1867 (chap. 782) husbands retained their common-law rights 
 of survivorship to the personal property of their wives. It was not 
 until chapter 887 of the laws of the same year that husband and wife 
 could, in civil actions, be compelled to give evidence for or against 
 each other; and in 1876 (chap. 182), for the first time, they could be 
 examined in criminal proceedings as witnesses for each other; and 
 provision was first made in the Penal Code (§ 715) that they could, 
 in criminal proceedings, be witnesses for and against each other. 
 
 From this course of legislation it is quite clear that the legislature 
 did not understand that the common-law rule as to the unity of hus- 
 band and wife had been abrogated by the acts of 1848, 1849 and 
 i860, and that whenever it intended an invasion of that rule, it made 
 it by express enactment. Still more significant is the act, chapter 
 472 of the Laws of 1880, which provides that " whenever husband 
 and w T ife shall hold any lands or tenements as tenants in common, 
 joint tenants or as tenants by entireties, they may make partition or 
 division of the same between themselves," by deeds duly executed 
 under their hands and seals. Here the disability of husband and 
 wife, growing out of their unity of person, to convey to each other is 
 recognized, as is also the estate by entireties created by a deed to 
 them jointly. 
 
 So the common-law incidents of marriage are swept away only by 
 express enactments. The ability of the wife to make contracts is 
 limited. Her general engagements are absolutely void, and she can 
 bind herself by contract only as she is expressly authorized to do so 
 by statute. A husband still has his common-law right of tenancy 
 by the curtesy. Although § 7 of the Act of i860 authorizes a 
 married woman to maintain an action against any person for an 
 injury to her person or character, yet we have held that she cannot 
 maintain an action against her husband for such an injury, and so it 
 was held, notwithstanding the acts of 1848, 1849 and i860, that the 
 common-law disability of husband and wife growing out of their 
 unity of person to convey to each other still existed. White v. 
 Wager, 25 N. Y. 333; Winans et al. v. Peebles et a/., 32 Id. 423; 
 Meeker v. Wright, 76 Id. 262, 270. It is believed also that the com- 
 mon-law rule as to the liability of the husband for the torts and 
 crimes of his wife are still substantially in force. 
 
 \ After discussing Goelet v. Gori, 31 Barb. 314; Farmers and Me- 
 Chanics' National Bank of Rochester v. Gregory, 49 Barb. 155; 
 Miller v. Miller, <> Abb. Pr. (N. S.) 444; Freeman v. Barber, 3 N. 
 Y. Sup. Ct. (T. <> C.) 574; Beach v. Hollister, 3 ////// 519, and 
 Ward v. ''nun, 54 How. Pr. 95, the court proceeds \\
 
 I. 4-] ESTATES BY THE ENTIRETY. 957 
 
 It is true that these decisions are not absolutely binding upon 
 this court, but they settled the law in the Supreme Court. For 
 twenty years after 1849 there was no decision or published opinion 
 in this State in conflict with them, and they are, under the circum- 
 stances, entitled to great weight here. They undoubtedly lay down 
 a rule which has been followed and observed by conveyancers, and 
 we have no doubt that property to the value of millions is now held 
 under conveyances made in reliance upon the common-law rule as 
 thus expounded. These decisions were never questioned in this 
 State by any court until the decision in the case of Meeker v. 
 Wright, which was rendered in this court in 1879 (76 N. Y. 262). 
 In that case the learned judge writing the opinion reached the con- 
 clusion that the common-law rule governing conveyances to husband 
 and wife had been abrogated by the modern legislation in this State. 
 But that portion of the opinion was not concurred in by a majority 
 of the judges. The views of that judge were very forcibly and ably 
 expressed, and they have been carefully reconsidered. They do not 
 convince us that the conclusions he reached should be adopted by 
 this court. That case is supposed to have unsettled the law some- 
 what in this State. In Feely v. Buckley, 28 Hun 451, it was held 
 upon its authority, by a divided court, that tenancy by the entirety 
 is abrogated by the Married Woman's Acts; and upon the same 
 authority it is said a similar holding was made in Zorntlein v. Brain, 
 decided in the Superior Court of New York, in January of this year, 
 by a divided court. It is also said that in Forsyth v. McCall, in the 
 fourth department in June, 1880, and in Meeker v. Wright, after a 
 new trial, in the third department, in April, 1882, it was decided 
 that the common-law rule was not abrogated. 27 Albany Law Jour- 
 nal, 199. And these decisions, together with the one which is now 
 under review, are all the decisions made in this State since the case 
 of Meeker v. Wright was in this court which have come to our atten- 
 tion. 
 
 Legislation similar to that which exists in this State, as to the 
 rights and property of married women, exists in many of the States 
 of the Union, and the decisions are nearly uniform in all the other 
 States where the question has arisen, that a conveyance to husband 
 and wife has the common-law effect, notwithstanding such legisla- 
 tion. Without citing all, we call attention to the following cases 
 and authorities: Bates v. Seeley, 46 Penn. St. 24S; French v. MaJian, 
 56 Id. 289; Diver v. Diver, Id. 106; Fisher v. Peovin, 25 Mich. 350; 
 McDuff v. Beauchamy, 50 Miss. 531; Washburn v. Burns, 34 N. J. 
 18; Chandler v. Cheney, 37 Ind. 391; Morburgh v. Cole, 49 Md. 402, 
 33 Am. Rep. 266; Bennett v. Child, 19 Wis. 362; Robitison v. Fagle,
 
 95§ JOINT OWNERSHIP OF INTERESTS IN LAND. [PT. IV. CM. VII. 
 
 29 Ark. 202; 1 Washb. on Real Prop. (3d ed.)577; Schouler on Hus- 
 band and Wife, §§ 397, 398; 1 Bishop on the Laws of Married 
 Women, 438, §§ 613, etc.; 2 Id. 284, § 284. In the last section the 
 learned author says: " Under the late married woman's statutes, 
 the effect of which is to prevent any part of the wife's interest in her 
 lands passing to her husband, the rule of the common law, by force 
 of which the two became tenants by the entirety of lands conveyed 
 to both, is not changed," and he says: " The reason for the doc- 
 trine, looking at the question in the light of legal principle, is, that 
 the statutes which preserve to married women their separate rights 
 of property do not have, or profess to have, any effect upon the 
 capacity of the wife to take property, or the manner of her taking 
 it, but when she does take it they simply preserve the right in her, 
 to her separate use, forbidding it to pass in part or in full to her 
 husband under the rules of the unwritten law. If, then, land is con- 
 veyed to a husband and his wife, they take precisely as at the com- 
 mon law — that is, as tenants by the entirety." In Diver v. Diver, 
 Strong, J., said: " But it is said the Act of 1848, by destroying the 
 legal unity of the husband and wife, has converted such^an estate 
 into a tenancy in common; that is, that such a deed conveys a 
 different estate from that which the same deed would have created 
 if made prior to the passage of the act. To this we cannot assent. 
 It mistakes alike the letter and the spirit of the statute, imputing to 
 it a purpose never intended. The design of the legislature was 
 single. It was not to destroy the oneness of husband and wife, but 
 to protect the wife's property, by removing it from under the 
 dominion of the husband. To effect this object she was enabled to 
 own, use and enjoy her property, if hers before marriage, as fully 
 after marriage as before, and the act declared that if her property 
 accrued to her after marriage, it should be owned, used and enjoyed 
 by her as her own separate property, exempt from liability for the 
 debts and engagements of her husband. All this had in view the 
 enjoyment of that which is hers, not the force and effect of the 
 instrument by which an estate may be granted to her. It has noth- 
 ing to do with the nature of the estate. The act does not operate 
 upon rights accruing to her until after they have accrued. It takes 
 such rights of property as it finds them, and regulates the enjoyment, 
 that is the enjoyment of the estate after it has vested in the wife." 
 At common law, where the estate was conveyed to husband and 
 wife, as above stated, the husband had the control and use of the 
 property during their joint lives. It is unnecessary now to determine 
 whether, under the Married Woman's Acts in this State, the hus- 
 band still lias such a right in real estate conveyed to him and his
 
 I. 4-] ESTATES BY THE ENTIRETY. 959 
 
 wife jointly. It was said in some of the authorities cited that the 
 statutes had changed that common-law rule, and that while husband 
 and wife, in conveyances to them jointly, each took the entirety, 
 yet that the land could not be sold for the husband's debts, or the 
 use and profits thereof during their joint lives be entirely appropri- 
 ated by him. It is not important in this case to determine what the 
 relation of the wife to the land, in such a case, now is, during the 
 life of her husband. 
 
 It is said that the reason upon which the common -law rule under 
 consideration was based has ceased to exist, and hence that the 
 rule should be held to disappear. It is impossible, now, to deter- 
 mine how the rule, in the remote past, obtained a footing, or upon 
 what reason it was based, and hence it is impossible now to say 
 that the reason, whatever it was, has entirely ceased to exist. 
 There are many rules appertaining to the ownership of real property 
 originating in the feudal ages, for the existence of which the reason 
 does not now exist, or is not discernible, and yet, on that account, 
 courts are not authorized to disregard them. They must remain until 
 the legislature abrogates or changes them, like statutes founded 
 upon no reason, or upon reasons that have ceased to operate. 
 
 It was never, we believe, regarded as a mischief that under a 
 conveyance to husband and wife they should take as tenants by the 
 entirety, and we have no reason to believe that it was within the 
 contemplation of the legislature to change that rule. Neither do 
 we think that there is any public policy which requires that the stat- 
 utes should be so construed as to change the common-law rule. It 
 was never considered that that rule abridged the rights of married 
 women, but rather that it enlarged their rights, and improved their 
 condition. It would be against the spirit of the statutes to cut 
 down an estate of the wife by the entirety to an estate as tenant in 
 common with her husband. If the rule is to be changed it should 
 be changed by a plain act of the legislature, applicable to future 
 conveyances; otherwise incalculable mischief may follow by 
 unsettling and disturbing dispositions of property made upon the 
 faith of the common-law rule. The courts certainly ought not to 
 go faster than the legislature in obliterating rules of law under 
 which many generations have lived and flourished and the best civ- 
 ilization of any age or country has grown up. 
 
 We are, therefore, of opinion that the judgment should be 
 affirmed, with costs. 1 
 
 1 But if the intent of the deed is clear a grant to husband and wife may make 
 them joint-tenants, Thomburg v. Wiggins, p. 940, supra; Joose v. Fay, 219 N Y 
 7; or tenants in common, Miner v. Brown, 133 N. Y. 308. — Ed.
 
 I 
 
 960 JOINT OWNERSHIP OF INTERESTS IN LAND. [PT. IV. CH. VII. 
 
 STELZ v. SHRECK.-. 
 12S New York, 263. — 1891. 
 
 Action for the admeasurement of dower. Cross appeals from an 
 order of the General Term denying motions by both plaintiff and 
 defendant for a new trial. 
 
 The premises in question were conveyed in 1886 to William Stelz 
 and Minnie Stelz, his wife. William thereafter obtained a divorce 
 from Minnie for her adultery; later he married the plaintiff, Maria 
 Stelz, and died intestate. Minnie is the defendant. Maria claims 
 dower in the whole estate; Minnie claims to be absolute owner of the 
 entire parcel of land. 
 
 Peckham, J. — We agree in this case with the views expressed by 
 the learned judges who delivered the opinions at the Special and 
 General Terms of the Supreme Court. The sole question arises 
 out of the decree of divorce which the husband obtained from his 
 first wife on account of her adultery. 
 
 Did that divorce have any, and if so what, effect upon the char- 
 acter of the holding of the real property by the former husband and 
 wife? By the conveyance the husband and wife took an estate as 
 tenants by the entirety. Bertles v. Nunan, 92 N. Y. 152; Zorntlein 
 v. Brain, 100 Id. 13. 
 
 Such a tenancy differs from all others. In one respect it is like a 
 joint tenancy, in that there is a right of survivorship attached to 
 both, but it is not a joint tenancy in substance or form. Barber v. 
 Harris, 15 Wend. 615; Jackson v. McConnell, 19 Id. 175; Bertles v. 
 JVunan, supra. 
 
 It originated in the marital relation, and although the survivor- 
 ship presents the greatest formal resemblance to joint tenancy, 
 instead of founding the estate by the entirety upon the notion of 
 joint tenancy, all the authorities refer it to the established effect of 
 a conveyance to husband and wife pretty much independent of any 
 principles which govern other cases. Jackson v. McConnell, supra. 
 
 At common law husband and wife were regarded as one person, 
 and a conveyance to them by name was a conveyance in law to but 
 one person. These two real individuals, by reason of this relation- 
 ship, took the whole of the estate between them, and each was 
 seised of the whole and not of any undivided portion. They were 
 thus seised of the whole because they were legally but one person. 
 Death separated them, and the survivor still held the whole because 
 he or she had always been seised of the whole, and the person who 
 died had no estate which was descendible or devisable.
 
 I. 4.] ESTATES BY THE ENTIRETY. 961 
 
 Being founded upon the marital relation and upon the legal theory 
 of the absolute oneness of husband and wife, when that unity is 
 broken, not by death, but by a divorce a vinculo, it stands to reason 
 that such termination of the marriage tie must have some effect 
 upon an estate which requires the marriage relation to support its 
 creation. The claim on the part of the counsel for the first wife is 
 that it is only necessary the parties should stand in the relation of 
 husband and wife at the time of the conveyance, and at that time 
 the estate vests, and no subsequent divorce can affect an estate 
 which is already vested. But the very question is, What is the char- 
 acter of the estate which became vested by the conveyance? If it 
 were of such kind that nothing but the termination of the marriage 
 by the death of one of the parties could affect it, then of course the 
 claim of the counsel is made out, but it is an assumption of the 
 whole case to say that the estate was of the character he claims. 
 When the idea upon which the creation of an estate by the entirety 
 depends is considered, it seems to me much the more logical as well 
 as plausible view to say that as the estate is founded upon the unity 
 of husband and wife, and it never would exist in the first place but 
 for such unity; anything that terminates the legal fiction of the 
 unity of two separate persons ought to have an effect upon the ! 
 estate whose creation depended upon such unity. It would seem as 
 if the continued existence of the estate would naturally depend 
 upon the continued legal unity of the two persons to whom the con- 
 veyance was actually made. The survivor takes the whole in case 
 of death, because that event has terminated the marriage and the 
 consequent unity of person. An absolute divorce terminates the 
 marriage and unity of person just as completely as does death itself, 
 only instead of one as in the case of death there are in the case of 
 divorce two survivors of the marriage, and there are from the time 
 of such divorce two living persons in whom the title still remains. 
 It seems to me the logical and natural outcome from such a state of 
 facts is that the tenancy by the entirety is severed, and a severance 
 having taken place, each takes his or her proportionate share of the 
 property as a tenant in common without survivorship. It is said 
 that in such case it ought to be a joint tenancy, but I see no reason 
 for that claim. As it has been held that seisen by the entirety does 
 not create a joint tenancy either in substance or form (19 Wend. 
 supra), and as a tenancy by the entirety depended wholly upon the 
 marital relationship, there can be no reason why the seisen should 
 be turned into a joint tenancy by virtue of the very fact which 
 terminated the unity of persons upon which the right of survivor- 
 ship is itself founded, and to which it owed its continued existence. 
 
 LAW OF PROP. IN LAND — 6l
 
 962 JOINT OWNERSHIP OF INTERESTS IN LAND. [PT. IV. CH. VII. 
 
 It is true that a conveyance of this kind, if made to two persons 
 who were not husband and wife, would, at common law, have 
 created a joint tenancy. But our statute provides that every estate 
 granted or devised to two or more persons in their own right shall 
 be a tenancy in common, unless expressly declared to be a joint 
 tenancy. 1 R. S. 727, § 44. This statute did not reach an estate by 
 the entirety, nor did the statutes of 1848 and 1849, an d x 86o and 
 1S62. Berths v. Nunan, supra. It, therefore, still exists under our 
 law. 
 
 We have seen, however, that a tenancy by the entirety is not a 
 joint tenancy in form or substance. Upon what principle should 
 the termination of a tenancy by the entirety, resulting from an abso- 
 lute divorce, be changed into a joint tenancy in the face of our stat- 
 ute relating to joint tenancies? The conveyance did not expressly 
 declare that the tenancy was to be a joint tenancy, and, therefore, 
 when the original character of the tenancy by the entirety is 
 changed, it cannot be transformed into that of a joint tenancy with- 
 out a clear violation of our statute. 
 
 The counsel for the defendant urges that we are giving by this 
 decision a retroactive effect to a decree of divorce in a case not war- 
 ranted by the statute, and in violation of the well-settled rule in this 
 State as to the effect of such a decree. He says that we change the 
 effect of the deed of conveyance and that the decree of divorce not 
 only severs the unity of person from the time of its entry, but that 
 we allow it to da:e back to the date of the conveyance, and to give 
 an effect to such conveyance that it did not have at the time of its 
 execution. We think not. 
 
 /We do not at all question the contention of the defendant's coun- 
 sel that a decree of divorce in this State only operates for the future, 
 and has no retroactive effect or any other effect than that given by 
 ,the statute. But we hold that the character of the estate conveyed 
 was such in its creation that it depended for its own continuance 
 upon the continuance of the marital relation, and when that relation 
 is severed as well by absolute divorce as by death, the condition 
 necessary to support the continuance of the original estate has 
 ed, and the character of the estate has for that reason changed. 
 Tin- estate does not revest in the grantor or his heirs, for no such 
 « onditioncan be found in the law or in the nature of the estate, and 
 • must, therefore, remain in the grantees, but by an altered tenure. 
 I heir holding is now a holding of two separate persons, and for the 
 ons already given such holding should be by tenancy in com- 
 mon, and of ( ourse without any survivorship. 
 
 I think the contention that the first wife is entitled to the whole
 
 I. 4-] ESTATES BY THE ENTIRETY. 963 
 
 of the estate as the survivor of her husband cannot be maintained, 
 although the question is new in this State, it has been somewhat 
 debated in the courts of some of the other States. In Harrer v. Wall- 
 ner, 80 111. 197, and Lash v. Lash, 58 Ind. 526, and Ames v. Norman, 4 
 Sneed, 683, similar views to those we have herein stated are set 
 forth. A contrary decision has been made in Michigan in the case 
 of Lewis, reported in 48 Northwestern Reporter at 680. We have 
 read the opinion in that case, but we feel that our own view is more 
 in accord with legal principles, and we cannot, therefore, follow it. 
 
 Upon the defendant's appeal, the judgment ought to be affirmed. 
 
 Upon the appeal of the plaintiff, her counsel contends that there 
 is a condition annexed to the estate by the entirety which is implied 
 by law, and the condition is that each of the grantees shall remain 
 faithful to the obligations of the married state and shall not by his 
 or her misconduct cause a dissolution of the marriage relation upon 
 which the estate depends. I find no warrant for implying any such 
 condition in the character of the holding, and still less for the result 
 which, as he claims, flows from a violation of such condition. Its 
 violation (judicially determined) results according to the plaintiff's 
 argument, in the immediate vesting of the whole estate in the inno- 
 cent party to the marriage, just the same as if the other party thereto 
 were actually dead instead of divorced. None of the authorities 
 treats the estate as dependent upon any such condition, and how- 
 ever proper it might be to enact by legislative authority a condition 
 of that nature, this court has not that power. * * * 
 
 Judgment affirmed. 
 
 HILES v. FISHER. 
 144 New York, 306. — 1895. 
 
 Ejectment. The premises in question were conveyed to defend- 
 ant as husband and wife. The husband, in 1886, mortgaged the 
 premises to secure certain of his debts. In 1890 Fisher quitclaimed 
 the land in question to his wife. The mortgage was foreclosed in 
 1892, and plaintiff acquired the title under the foreclosure. The 
 plaintiff now claims that he should recover the premises with right 
 to hold the same during the joint lives of husband and wife, and in 
 fee in case the husband survives the wife. Mrs. Fisher claims the 
 mortgage was void as she did not sign it. The General Term held 
 with the plaintiff. Defendant appeals. 
 
 Andrews, Ch. J. — It was decided in Berths v. Nunan, 92 N. Y. 
 152, that the separate property acts relating to the rights of married
 
 964 JOINT OWNERSHIP OF INTERESTS IN LAND. [PT. IV. CII. VII. 
 
 women had not abrogated the common-law doctrine, that under a 
 conveyance to husband and wife they take not as tenants in com- 
 mon, nor as joint tenants, but by the entirety, and upon the death 
 of either the survivor takes the whole estate. In that case the hus- 
 band had died, leaving his wife surviving, and the question was 
 whether the wife as survivor took upon the death of her husband 
 the entire fee under the doctrine of the common law. The ques- 
 tion, what change, if any, had been wrought by the separate prop- 
 erty acts in respect to the common-law rights of the husband to 
 control and use the property conveyed to husband and wife during 
 their joint lives, was not considered or decided, but was expressly 
 reserved on the ground that it was not involved in the case then 
 before the court. That question is involved in the present case and 
 must now be decided. 
 
 The decision in Berths v. Nunan is supported by the great weight 
 of authority in other jurisdictions in this country, but in some of the 
 States it has been held that as a consequence of statutory provisions 
 substantially like those in this State, conferring upon married women 
 the right to take and hold separate property to their own use, free 
 from the control of their husbands, as, femes sole, estates by entireties 
 have been abrogated and turned into tenancies in common. In the 
 States where this construction has been put upon the married 
 women's acts, the question of the rights of the parties to the 
 usufruct during their joint lives could scarcely arise, because it is 
 one of the generally admitted results of this legislation that the 
 common-law right vested in the husband to the rents, profits and 
 use of his wife's real estate during their joint lives has been 
 destroyed. 
 
 It is, however, a much more serious question what the effect of 
 this legislation is upon the common-law right of the husband to the 
 usufruct during the joint lives of the husband and wife, of lands con- 
 veyed to them jointly, in those States where it is held that notwith- 
 standing the new legislation a conveyance to husband and wife 
 retains its common-law character and incidents. If the right of the 
 husband to use during the joint lives of lands held under this tenure 
 ■vi- a right growing out of an incident to this particular species of 
 tenancy; in other words, if it was one of its specific and essential 
 characteristics, then it would be difficult to segregate this right from 
 the other rights incident to and flowing from the tenancy, and to say 
 that while the estate by entireties continues this feature of it was 
 intended to be taken away. Bu1 the taking away from the husband 
 the usufruct during the joint lives of lands conveyed to husband and 
 wife would not be inconsistent with the continuance of tenancies by
 
 I. 4] ESTATES BY THE ENTIRETY. 965 
 
 entireties, provided the common-law right to the usufruct was not 
 an incident of the tenancy, but of the marital right operating upon 
 property so held, as upon all other real property of the wife. The 
 grand characteristic which distinguishes a tenancy by the entirety 
 from a joint tenancy is its inseverability, whereby neither the hus- 
 band nor the wife, without the assent of the other, can dispose of 
 any part of the estate so as to affect the right of survivorship in the 
 other. 1 Bl. 182; Wash, on Real Prop. 425. Each is said to be 
 seised of the whole estate, and they do not take by moieties, and 
 the reason assigned in the old books for this anomalous characteris- 
 tic of this estate is the legal unity of the husband and wife, and the 
 incapacity of the wife to hold a separate and severable estate in 
 lands under a joint conveyance to both. The alleged incapacity of 
 a wife to take and hold lands conveyed to husband and wife as joint 
 tenant or tenant in common with him seems inconsistent with the 
 doctrine which has finally obtained, that by express words of a grant 
 or devise to husband and wife that species of tenure would be 
 created. This was pointed out in Miner v. Brown, 133 N. Y. 308, 
 and authorities were cited to show that where the intention disclosed 
 by the deed or will was to create a tenancy in common that estate 
 would be created. See, also, McDermott v. French, 15 N. J. Eq. 78; 
 Wales v ■. Coffin, 13 Allen, 213; 1 Wash, on Real Prop. 425. There 
 is a tendency now to regard the creation of an estate by the entirety 
 as resting upon a rule of construction rather than upon a rule of law, 
 and to regard the intention as disclosed by the deed or will creating 
 it as the governing rule for determining whether that estate was 
 created rather than a joint tenancy or tenancy in common. See In re 
 March, 27 Ch. Div. 166, and cases before cited. It was conceded under 
 the old law that husband and wife, who were joint tenants or tenants 
 in common of lands before marriage, remained so afterwards. Coke 
 on Litt. 187b. It would seem to follow that there was no general 
 incapacity in the wife to hold lands with the husband in joint ten- 
 ancy or as tenant in common. The quality of the estate held by 
 husband and wife as tenants by the entirety, in the aspect of its 
 inseverability has been adverted to. But it is important in view of 
 the subsequent discussion to observe that the wife, as well as the 
 husband, took an estate under a grant to both. Each was said to 
 be seised of the whole, and not of any separate part. Neither could 
 convey his or her interest to the prejudice of the right of survivor- 
 ship in the other. The common law, however, wholly ignored this 
 principle of equality between husband and wife in regulating the • 
 rights of the parties to the enjoyment of the estate during the joint | 
 lives. They were not regarded as having a joint seisin or a joint
 
 966 JOINT OWNERSHIP OF INTERESTS IN LAND. [PT. IV. CH. VII. 
 
 possession for the purpose of the use during coverture. The hus- 
 band was held to be entitled to the full control and to take the rents 
 and profits of the land during the joint lives to the exclusion of the 
 wife, and he had power to sell, mortgage or lease for the same 
 period, and this life interest was, according to the weight of 
 authority, subject to the claims of his creditors. Barber v. Harris, 
 15 Wend. 615; Jackson v. McConnel, 19 Id. 175; Meeker v. Wright, 
 76 N. Y. 262; Berths v. Nunan, supra; Ames v. Norman, 4 Sneed, 
 683; Pray v. Stebbins, 141 Mass. 219. But the right of the husband 
 at common law to take the rents and profits of lands held by him 
 and his wife as tenants by the entirety, during coverture, and to 
 assign and dispose of them during that period, did not, we appre- 
 hend, spring from the peculiar nature of this estate. He acquired 
 no such right by force of the conveyance itself, and it was not an 
 incident thereto. It was a right which followed the conveyance and 
 inured to the husband from the general principle of the common law 
 which vested in the husband jure uxoris the rents and profits of his 
 wife's lands during their joint lives. 2 Kent Com. 130; Stewart on 
 Husb. & Wife, § 308. The husband took the rents and profits of 
 lands held in entirety upon the same right that he took the rents 
 and profits of her other real estate, whether held by a sole or joint 
 title, namely, his right as husband. In none of the definitions of 
 tenancies by entireties have we found any suggestion that this was 
 one of the incidents or characteristics of such estates, and we think 
 it is plain, both upon reason and analogy, that it had its origin in 
 those harsh principles of common law which destroyed for most pur- 
 poses the legal identity of the wife and subjected her person and 
 property to the control of her husband. 
 
 In considering what effect, if any, the legislation in this State has 
 had upon the right of the husband to the rents, profits and control 
 of lands held by him and his wife in entirety, (.luring their joint 
 lives, it is important to regard not only the language, but the spirit 
 of the new enactments. The sole purpose of the original statute of 
 1848 was to secure to married women the enjoyment of their real 
 and personal property which belonged to them at the time of their 
 marriage, or which they might thereafter acquire by gift, grant or 
 bequest from third persons, and to abrogate the common-law right 
 of the husband in and to the real and personal property of the wife. 
 The righl to the rents and profits of her lands jure uxoris, during the 
 joint lives, was completely swept away, not by express enactment, 
 but as a necessary consequence of investing her with the beneficial 
 us'- of her own property, free from his control. Subsequent legisla- 
 tion 1 onfirmed her rights as defined by the Act of 1848, and enlarged
 
 I. 4-] ESTATES BY THE ENTIRETY. 967 
 
 them in other directions, but the Act of 1848 was the seed from 
 which all the subsequent legislation sprung. This legislation ren- 
 dered unnecessary any longer the cumbrous mechanism of settle- 
 ments or resort to the imperfect powers of Courts of Chancery to 
 secure to married women the enjoyment of their own property. 
 
 In determining the question now before us, too much emphasis 
 cannot be placed upon the fact that the legislation of 1848 and the 
 subsequent years uprooted the principle of the common law, hoary 
 with age, which vested in the husband, by virtue of the marriage 
 relation, control of the property of his wife and the right to exclude 
 her from its enjoyment. If it is still held, notwithstanding this 
 legislation, that the husband takes the whole rents and profits during 
 coverture in lands held in entirety, and may exclude the wife from 
 any participation therein, an exception is allowed, standing upon no 
 principle, and it deprives the wife, although she has an undoubted 
 interest and estate in the land, from any benefit thereof during the 
 lives of both. There are, as we can perceive, but two other alterna- 
 tives. Either the rents and profits follow the nature of the estate, 
 and can neither be disposed of nor charged except by the joint act 
 of both husband and wife, which seems to be the view taken in 
 McCurdy v. Canning, 64 Pa. St. 39, or the parties become tenants in 
 common or joint tenants of the use, each being entitled to one-half 
 of the rents and profits during the joint lives, with power to each to 
 dispose of or to charge his or her moiety during the same period, 
 which seems to be the view taken in Buttlar v. Rosenblath, 42 N. J. 
 Eq. 651. We think the rule adopted in New Jersey best reconciles 
 the difficulties surrounding the subject. The estate granted is not 
 thereby changed. It leaves it untouched, with all its common-law 
 incidents. It deals with the rents and profits and the use and con- 
 trol of the estate during coverture only, and gives to each party 
 equal rights so long as the question of survivorship is in abeyance, 
 thereby conforming to the intention of the new legislation to take 
 away the husband's right jure uxoris, in his wife's property, and to 
 enable the wife to have and enjoy " whatever estate she gets by any 
 conveyance made to her or to her and others jointly, and does not 
 enlarge or diminish that estate." The rule in Pennsylvania not only 
 deprives the husband of his common-law right to the enjoyment of 
 the whole rents and profits, but of the enjoyment of any share 
 thereof, except with the concurrence and permission of his wife. 
 
 The conclusion we have reached requires a reversal of the judg- 
 ment below so far as it adjudges that the mortgage executed by the 
 husband to the plaintiff, and the sale thereunder, vested in the plain- 
 tiff the right to the possession of the whole estate during the joint
 
 968 JOINT OWNERSHIP OF INTERESTS IN LAND. [PT. IV. CH. VII. 
 
 lives of Mr. and Mrs. Fisher. The husband had a right to mortgage 
 his interest, which was a right to the use of an undivided half of the 
 estate during the joint lives and to the fee in case he survived his 
 wife, and by the foreclosure and sale the plaintiff acquired this interest 
 and became a tenant in common with the wife of the premises subject 
 to her right of survivorship. The opinion of the General Term 
 exhibits, with great clearness, the reasons upon which it was held 
 that a conveyance or mortgage by the husband, without restrictive 
 words, binds the fee in case he survives the wife. See 1 Wash. Real 
 Prop. 425; 1 Prest. Est. 135; Ames v. Norman, supra. 
 
 The judgment below should be modified in accordance with this 
 opinion, and, as modified, affirmed, without costs to either party. 
 
 5. Estate in Homestead. 1 
 HELM v. HELM. 
 
 n Kansas, 19. — 1873. 
 [Reported herein at p. 711.] 
 
 6. Community Property. 
 
 Bell, J., in DE BLANE v. LYNCH. 
 
 23 Texas, 25. — 1S59. 
 
 The principle which lies at the foundation of the whole system of 
 community property is, that whatever is acquired by the joint efforts 
 of the husband and wife shall be their common property. It would 
 be unnecessary consumption of time to quote authorities for this 
 proposition. 
 
 It is true that in a particular case satisfactory proof might be 
 made, that the wife contributed nothing to the acquisitions; or, on 
 the other hand, that the acquisitions of property were owing wholly 
 to the wife's industry. But from the very nature of the mar- 
 riage relation the law cannot permit inquiries into such matters. 
 The law, therefore, conclusively presumes that whatever is acquired, 
 
 ' The " homestead " inn rest is in some jurisdictions an estate, of a special 
 character, in the husband alone, in others it is a sort of joint estate in husband 
 and wife, in still other jurisdictions it is not regarded as an estate at all. See 
 the American note to Hutchins' Williams on Real Property, pp. 153-163, for a 
 general view of the statutory provisions and the leading decisions thereunder. 
 Poi the New York statute, see .'.' 1 ^7-1404, Code Civ. Pro. — Ei>.
 
 I. 6.] COMMUNITY PROPERTY. 969 
 
 except by gift, devise or descent, or by the exchange of one kind of 
 property for another kind, is acquired by their mutual industry. 
 If a crop is made by the labor of the wife's slaves on the wife's land, 
 it is community property, because the law presumes that the hus- 
 band's skill or care contributed to its production; or that he, in 
 some other way, contributed to the common acquisitions. 1 
 
 PARKER v. CHANCE. 
 
 11 Texas, 513. — 1854. 
 
 Hemphill, Ch. J. — The ground upon which the exception was 
 sustained does not appear from the record. From the special cause 
 of exception, that the land was the individual property of the 
 defendant Lucy, and from the argument of counsel, it is to be 
 inferred that in the opinion of the court the land was the separate 
 property of the said defendant, and was therefore not to be classed 
 among effects of the deceased. The question then for decision is, 
 whether the land belonged to the community existing between the 
 deceased Farris and his wife, or to the wife exclusively in her sep- 
 arate right. 
 
 To determine this it will be necessary to ascertain in what the 
 community consists, and whether property conveyed to the wife 
 forms presumptively a portion of it. 
 
 In the case of Yates v. Houston, 3 Tex. R. 433, the articles com- 
 posing the community were specified ; and among other things it was 
 said, in effect, that property acquired in the name of both partners 
 becomes common, whether the accession be by gift or purchase, and 
 when received in the name of one, by onerous title, the property is 
 also common; but if by lucrative title, it becomes the separate right 
 of the beneficiary. That such are the established rules of Spanish 
 jurisprudence may be seen by referring to the authorities cited in 
 Scott and Solomon v. Maynard and Wife, Dallam 550. Vide La. R. 
 520. In that case reference was made to Febrero Addicionado. In 
 the Mexican edition of that author the doctrine is stated in § 6, vol. 
 1, p. 219. It is there said that the common gains are not only those 
 which both purchase during marriage, with the funds of the com- 
 munity, but also those which the husband purchases by himself 
 
 1 The doctrines of the Civil Law upon this topic are in force, modified more or 
 less by statutes, in Arizona, California, Idaho, Louisiana, Nevada, New 
 Mexico, Texas and Washington. For the origin and general features of this 
 estate see Ballinger on Community Property, Chapter I. — Ed.
 
 9/0 JOINT OWNERSHIP OF INTERESTS IN LAND. [PT. IV. CH. VII. 
 
 singly, or his wife with his license express or tacit — and whether 
 the purchase money be the common funds or the separate property 
 of one of them, since in all these modes the property becomes com- 
 mon, for the reason that the time of the acquisition is to be 
 regarded, and not the person in whose name the purchase is made. 
 
 In the succeeding section some limitations are placed on this rule; 
 as, for instance, where with the proceeds of the sale of an article of 
 property belonging to one of the partners another article is pur- 
 chased, and this is so expressed in the instrument of conveyance, or 
 is proven by witnesses or other legal means or the other partner 
 admits it; although such mere admission is but feeble proof, since 
 it will be regarded as a donation between the two, and this is con- 
 firmed only by death and for so much as bylaw is permitted; in 
 such case the article purchased will remain the individual property 
 of the partner whose funds were employed in making the purchase; 
 and also where one article of property is exchanged for another, the 
 articles procured will be substituted in the place of the one 
 exchanged, etc., etc. 
 
 It appears, then, that under the law of Spain, the fact of the con- 
 veyance being in the name of the wife is not conclusive or prima 
 facie presumptive proof that the property belongs to her exclusively. 
 It would, however, doubtless have some weight, if there were other 
 circumstances conducing to prove that the property belonged indi- 
 vidually to the wife. 
 
 The mere fact that the conveyance was made by Slauter to Mrs. 
 Farris does not make the land her separate property. Is there any- 
 thing in the circumstances under which this conveyance was made 
 which would confer on her a separate right? To arrive at a correct 
 conclusion on this point, we must ascertain whether the property in 
 the certificate or the land surveyed under it, belonged to the com- 
 munity or the husband individually. If it belonged to the husband 
 in his own right, then an intention to make a gift to his wife may be 
 very properly inferred from his acts; if, however, it belonged to the 
 community, it will be seen that no presumption of donation can arise 
 from the facts as stated in the petition. 
 
 In the case of Burris v. Wideman, 6 Tex. R. 232, we have decided 
 in effecl that headright certificates, issuing under the Constitution 
 of the Republic and the law of 1837, form a portion of the com- 
 munity property; and such is the legitimate and necessary inference 
 from the principles decided in Yates v. Houston, 3 Tex. R. 433. 
 
 I he 1 ertificate, then, placed in the hands of Slauter, belonged to 
 th«- community; for, although it is not expressly averred that the 
 certificate was issued to Edward Farris as the head of the matri-
 
 I. 6.] COMMUNITY PROPERTY. 971 
 
 monial union of which his wife Lucy formed the other partner, yet 
 such is the legitimate inference from the facts as averred. 
 
 The certificate being a portion of the community, what is the effect 
 of the assignment to Slauter, and the transfer of the one-half to 
 Mrs. Farris? Can it have any other consequence than would arise 
 from a retransfer to the husband, viz. . to restore it to the com- 
 munity from which it had been taken? The transaction is, in sub- 
 stance, an agreement by the husband to convey to the locator one- 
 half of a community league of land for clearing out the other half. 
 This he might have done by taking the patent in his own name, and 
 assigning one-half to the locator. But he pursued another mode. 
 He assigns the whole of the certificate and land, with an obligation 
 to reconvey the one-half, not to himself but to his wife. Could this 
 change from one partner to the other alter the rights of the com- 
 munity or of the individual partners? When the land was assigned 
 it belonged to the community; in the hands of the locator it 
 remained common property; and it is of no consequence that he 
 conveyed it to the wife, when under the law it is immaterial whether 
 the conveyance be to the wife or husband. For whether it be in the 
 name of either or of both, the property conevyed belongs to the com- 
 munity. 
 
 The presumption of law is that property, conveyed to the wife, 
 belongs to the community; and the direction of a husband, to make 
 out the deed in the name of the wife, will not, of itself, rebut this 
 legal presumption. In this case Slauter, the locator, might have 
 conveyed to either husband or wife. His conveyance to either has 
 the like effect, viz.: to vest the property in the community. 
 
 Where the husband intends to relinquish his right in the com- 
 munity property, and to transfer it to his wife, his act must be 
 explicit and such as to leave no doubt of his intentions. A mere 
 transfer of the property to a stranger, with directions to reconvey 
 to the wife, will not accomplish the object, and show that a donation 
 was intended; and especially when the stranger is bound under pen- 
 alty, to make title. For, in such case, the conveyance, though made 
 in the name of the wife, cannot deprive the community of its rights. 
 
 It is not necessary, in this case, to express any opinion as to the 
 validity or extent to which donations of community property may 
 be made from one partner in matrimony to the other. 
 
 Had this transaction, embracing the assignment of the league and 
 the retransfer of the one-half to the wife, taken place under the com • 
 mon law, where the estate of community and the doctrines in rela- 
 tion to it are unknown, the conveyance to the wife would have been 
 presumptive evidence of a gift in advancement by the husband. 2
 
 97- JOINT OWNERSHIP OF INTERESTS IN LAND. [PT. IV. CH. VII. 
 
 Vern. 67; 8 Ves. 199; Bright, Hus. and Wife, vol. 1, p. 32. Where 
 a husband purchases stock in the name of himself and wife, it is 
 prima facie a gift to her in the event of her surviving; Bright, Hus. 
 and Wife, vol. 1, p. 32; and a transfer, by the husband, of stock 
 already purchased, in, (into), their joint names, would be presumed a 
 gift to the wife. lb. These are doctrines of the common law, and 
 cannot be recognized under a system in which a conveyance to the 
 wife is presumptive evidence, not of her separate right but of that of 
 the community. 
 
 The doctrine in relation to donations between husband and wife 
 need not be discussed; as we are of opinion that the facts do not 
 afford any evidence of donation. Judgment reversed and cause 
 remanded. 
 
 Reversed and remanded. 
 
 7. Estates in Partnership. 
 
 BOPP v. FOX. 
 63 Illinois, 540. — 1S72. 
 [Reported herein at p. 686.] 
 
 II. Incidents of joint estates. 
 
 1. Possession and Disseisin. 
 WASS v. BUCKNAM. 
 
 38 Maine, 356. — 1S54. 
 [Reported herein at p. 640.] 
 
 2. Waste. 
 
 McCORD v. OAKLAND QUICKSILVER MINING CO. 
 
 64 California, 134. — 1883. 
 
 [Reported herein at p. 396.] 
 
 JOHNSON v. JOHNSON. 
 
 2 Hill's Equi i v (S. C). 277. — 1835. 
 
 [Reported herein >it p. 398.]
 
 II. 3-] INCIDENTS OF JOINT ESTATES. 973 
 
 3. Repairs and Improvements. 
 WALKER v. SHERMAN. 
 20 Wendell (N. Y.), 636. — 1839. 
 [Reported herein at p. 21S.] 
 
 CALVERT v. ALDRICH. 
 
 99 Massachusetts, 74. — 186S. 
 
 Foster, J. — The issue in this action is on an account of one 
 cotenant in common against another to recover from the defendant 
 in set-off part of the cost of certain needful repairs made by the 
 plaintiff in set-off upon the common property. It is not founded 
 upon any contract between the parties, but upon a supposed legal 
 obligation which, if its existence were established, the law would 
 imply a promise to fulfill. 
 
 The doctrine of the common law on this subject is stated by Lord 
 Coke as follows: " If two tenants in common or joint tenants be of 
 an house or mill, and it fall in decay, and the one is willing to repair 
 the same, and the other will not, he that is willing shall have a writ 
 de reparatione facienda % and the writ saith ad reparationem et susten- 
 tationem ejusdem damns teneantur, whereby it appeareth that owners 
 are in that case bound pro bono publico to maintain houses and mills 
 which are for habitation and use of men." Co. Litt. 200 b; lb. 54 
 b. And in another place he says: " If there be two joint tenants 
 of a wood or arable land, the one has no remedy against the other 
 to make inclosure or reparations for safeguard of the word or 
 corn," but if there be two joint tenants of a house, the one shall 
 have his writ de reparatione facie nda against the other. This is said 
 to be because of " preeminence and privilege which the law gives 
 to houses which are for men's habitation." Bowles's Case, 11 
 Co. 82. 
 
 In Carver v. Miller, 4 Mass. 561, it was doubted by Chief Justice 
 Parsons whether these maxims of the common law, as applied to 
 mills, are in force here, especially since the provincial statute of 7 
 Anne, c. 1, revised by St. 1795, c. 74. * * * 
 
 Doane v. Badger, 12 Mass. 65, was an action on the case. The 
 plaintiff had a right to use a well and pump on the defendant's land; 
 and the defendant had removed the pump and built over the well, 
 thereby depriving the plaintiff of the use of the water. The judge 
 before whom the case was tried had instructed the jury that the
 
 974 JOINT OWNERSHIP OF INTERESTS IN LAND. [PT. IV. CH. VII. 
 
 defendant, by the terms of a deed under which he claimed, was 
 bound to keep the well and pump in repair, although they were out 
 of repair when he purchased, and, without any previous notice or 
 request, was liable in damages for the injury the plaintiff had sus- 
 tained by his neglect to make repairs. The court held that no such 
 evidence was admissible under the declaration, the cause of action 
 stated being a misfeasance, and the proof offered being of a non- 
 feasance only; also, that a notice and request were indispensable 
 before any action could be maintained. Mr. Justice Jackson in 
 delivering the opinion made some general observations, unnecessary 
 to the decision of the cause, the correctness of which requires a par- 
 ticular examination. He said that the action on the case seems to 
 be a substitute for the old writ de reparatione facienda between ten- 
 ants in common, and could not be brought until after a request and 
 refusal to join in making the repairs. He added: " From the form 
 of the writ in the register, it seems that the plaintiff, before bringing 
 the action, had repaired the house, and was to recover the defend- 
 ant's proportion of the expense of those repairs. The writ con- 
 cludes, 'in ipsius dispendium non modicum ct gravamen.' 1 It is clear 
 that until he have made the repairs he cannot in any form of action 
 recover anything more than for his loss as of rent, etc., while the 
 house remains in decay. For if he should recover the sum neces- 
 sary to make the repairs, there would be no certainty that he would 
 apply the money to that purpose." Mumfordv. Brown, 6 Co wen, 
 475, a per curiam opinion of the Supreme Court of New York, and 
 Coffin v. Heath, 6 Met. 8o, both contain obiter dicta to the same 
 effect, apparently founded upon Doane v. Badger, without further 
 research into the ancient law. If it were true that the writ de 
 reparatione was brought by one cotenant, after he had made repairs, 
 to recover of his cotenant a due proportion of the expense thereof, 
 there would certainly be much reason for holding an action on the 
 case to be a modern substitute for the obsolete writ de reparatione. 
 But all the Latin forms of the writ in the Register, 153, show that it 
 was brought before the repairs were made, to compel them to be 
 made under the order of court. Indeed, this is implied in the very 
 style by which the writ is entitled, de reparatione facienda, viz.: of 
 repairs to be made; the future participle facienda being incapable of 
 any other meaning. This also appears in Fitzherbert, N. B 127, 
 when- the writ between cotenants of a mill is translated; the words, 
 in ipsius dispendium non modicum et gravamen, quoted by Judge Jack- 
 , being < orre< tly rendered, " to the great damage and grievance 
 of him," the said plaintiff, Fitzherbert says: "The writ lieth in 
 divers eases; one is, where there are three tenants in common or
 
 II. 3-] INCIDENTS OF JOINT ESTATES. 975 
 
 joint or pro indiviso of a mill or a house, etc., which falls to decay, 
 and the one will repair but the other will not repair the same; he 
 shall have this writ against them." 
 
 In the case of a ruinous house which endangers the plaintiff's 
 adjoining house, and in that of a bridge over which the plaintiff has 
 a passage, which the defendant ought to repair, but which he 
 suffers to fall to decay, the words of the precept are, " Command A. 
 that," etc., " he, together with B. and C, his partners, cause to be 
 repaired." The cases in the Year Books referred to in the margin 
 of Fitzherbert confirm the construction which we regard as the only 
 one of which the forms in that author are susceptible, namely, that 
 the writ de reparatione was a process to compel repairs to be made 
 under the order of court. There is nothing in them to indicate that 
 an action for damages is maintainable by one tenant in common 
 against another because the defendant will not join with the plaintiff 
 in repairing the common property. In a note to the form in the 
 case of a bridge, it is said in Fitzherbert: " In this writ the party 
 recovers his damages, and it shall be awarded that the defendant 
 repair, and that he be distrained to do it. So in this writ he shall 
 have the view contra, if it be but an action on the case for not 
 repairing, for there he shall recover but damages." There is no 
 doubt that an action on the case is maintainable to recover damages 
 in cases where the defendant is alone bound to make repairs for the 
 benefit of the plaintiff without contribution on the part of the lat- 
 ter, and has neglected and refused to do so. See Tenant v. Gold- 
 win, 6 Mod. 311; S. C. 2 Ld. Raym. 1089; 1 Salk. 21, 360. 
 
 The difficulty in the way of awarding damages in favor of one 
 tenant in common against his co-tenant for neglecting to repair is, 
 that both parties are equally bound to make the repairs, and neither 
 is more in default than the other for a failure to do so. Upon a 
 review of all the authorities, we can find no instance in England or 
 this country in which, between co-tenants, an action at law of any 
 kind has been sustained, either for contribution or damages, after 
 one has made needful repairs in which the other refused to join. 
 We are satisfied that the law was correctly stated in Converse v. 
 Ferre, 11 Mass. 325, by Chief Justice Parker, who said: " At com- 
 mon law no action lies by one tenant in common, who has expended 
 more than his share in repairing the common property, against the 
 deficient tenants, and for this reason our Legislature has provided a 
 remedy applicable to mills." The writ de reparatione facienda brought 
 before the court the question of the reasonableness of the repairs 
 proposed, before the expenditures were incurred. It seems to have 
 been seldom resorted to; perhaps because a division of the common
 
 976 JOINT OWNERSHIP OF INTERESTS IN LAND. [PT. IV. CH. VII. 
 
 estate would usually be obtained where the owners were unable to 
 agree as to the necessity or expediency of repairs. Between ten- 
 ants in common, partition is the natural and usually the adequate 
 remedy in every case of controversy. This is the probable explana- 
 tion of the few authorities in the books, and of the obscurity in 
 which we have found the whole subject involved. But if we have 
 fallen into any error in our examination of the original doctrines of 
 the common law of England, it is at least safe to conclude that no 
 action between tenants in common for neglecting or refusing to 
 repair the common property, or to recover contribution for repairs 
 made thereon by one without the consent of the other, has been 
 adopted among the common-law remedies in Massachusetts. 
 This result is in accordance with the rulings at the trial. 
 
 Exceptions overruled. 1 
 
 4. Accounting for Rents, Etc. 
 
 PICKERING v. PICKERING. 
 63 New Hampshire, 46S. — 1885. 
 
 Bingham, J. — The plaintiff seeks for an accounting, and to 
 charge the defendant for the rents and income of lands and buildings 
 thereon. The parties are tenants in common. The defendant has 
 had the possession and income of the property since December 27, 
 1883, and has in that time expended $370 in necessary repairs that 
 materially increased the value of the buildings and the income, and 
 claims to be allowed for the same in the accounting. The plaintiff 
 had no notice of the repairs, and was not requested to join in mak- 
 ing them. 
 
 If we are to consider it settled at common law that one tenant in 
 common cannot recover of his co-tenant a contribution for necessary- 
 repairs, where there is no agreement or request or notice to join in 
 making them, or excuse for a notice not being given to join, Stevens 
 v. Thompson, 17 N. H. 103, in; Wiggin v. Wiggin, 43 N '. H. 561, 
 568, because both parties, until this is done, are equally in fault, one 
 having as much reason to complain as the other, Mumford v. 
 Brown, 6 Cow. 475-477; Kidder v. Rixford, 16 Vt. 169-172, 4 Kent. 
 c, )m . 371; Doane v. Badger, 12 Mass. 65-70; Calvert v. Aldrich, 99 
 Mass. 78, it does not follow that in this proceeding for an equitable 
 accounting for the income, a pari of which is produced by the 
 repairs, th. ■ defendant may not lie allowed for them. There is a 
 
 1 See also Pickering v. Pickering; infra. — Ed.
 
 I. 4.] INCIDENTS OF JOINT ESTATES. 977 
 
 wide difference between a right of action at common law to recover 
 a contribution for repairs, and a right to have them allowed out of 
 the income, which exists in part through their having been made. 
 In the first case, the party makes them at his will on the common 
 property without the consent or knowledge of his co-tenant, while in 
 the last the co-tenant recognizes the existence of the repairs, that 
 they have materially increased the income, but demands the increase 
 and refuses to allow for the repairs. The objection, that no privity, 
 no joint knowledge, no authority existed is in equity and good con- 
 science waived when the entire income is demanded. It is not unlike 
 the ratification of the acts of an assumed agent; it relates back to 
 the time of making the repairs, and makes the plaintiff a privy from 
 the beginning. He cannot claim the repairs and the income, and 
 equitably ignore the expense of making them. 
 
 In Moore v. Cable, 1 Johns. Ch. 385, a bill for the redemption of 
 a mortgage, it was decided that the mortgagee should not be 
 charged for rents and profits arising exclusively from repairs made 
 by him. 
 
 In Jackson v. Loomis, 4 Cow. 168, an action of trespass for mesne 
 profits against a bona fide purchaser, it was held that he should be 
 allowed against the plaintiff, in mitigation of damages, the value of 
 permanent improvements, made in good faith, to the extent of the 
 rents and profits claimed by the plaintiff. Green v. Biddle, 8 
 Wheat. 1. 
 
 In Rathbun v. Colton, 15 Pick. 472, 485, it was decided that when 
 the rent of a trust estate is increased in consequence of improve- 
 ments made by the trustee, the beneficiary may be put to his elec- 
 tion, either to allow the trustee the expense of such improvements, 
 or be deprived of the increase of rent obtained by means thereof; 
 that the question was not whether the trustee has a right to make 
 a charge for the improvements, but whether the plaintiffs were 
 entitled to receive any benefit for them, they refusing to contribute 
 their share towards the expense. 
 
 It seems, however, that courts of equity have not confined the 
 doctrine of compensation for repairs and improvements to cases of 
 agreement or of joint purchases, but have extended it to other cases 
 where the party making the repairs and improvements has acted in 
 good faith, innocently, and there has been a substantial benefit con- 
 ferred on the owner, so that in equity and right he ought to pay for 
 the same. 2 Story Eq. Jur., §§ 1236, 1237, 799 b; Coffin v. Heath. 6 
 Met. 76, 80. And in 2 Story Eq. PL, § 799 b, n. 1, it is said: " In 
 cases where the true owner of an estate, after a recovery thereof at 
 law from a bona fide possessor for a valuable consideration without 
 
 LAW OF PROP. IN LAND — 62
 
 9/8 JOINT OWNERSHIP OF INTERESTS IN LAND. [PT. IV. CH. VII. 
 
 notice seeks an account in equity as plaintiff against such possessor 
 for the rents and profits, it is the constant habit of courts of equity 
 to allow such possessor, as defendant, to deduct therefrom the full 
 amount of all meliorations and improvements which he has bene- 
 ficially made upon the estate, and thus to recoup them from the rents 
 and profits. . . . So, if the true owner of an estate holds only 
 an equitable title thereto, and seeks the aid of a court of equity to 
 enforce that title, the court will administer that aid only upon the 
 terms of making compensation to such bona fide possessor for the 
 amount of his meliorations and improvements of the estate bene- 
 ficial to the owner. " This is on the old-established maxim in equity 
 jurisprudence, that he who seeks equity must do equity. Hannati 
 v. Osborn, 4 Paige Ch. 336; Dec/is Appeal, 57 Penn. St. 468, 472; 
 Peyton v. Smith, 2 Dev. & Bat. Eq. 325, 349; Hibbert v. Cooke, 1 Sim. 
 & S. 552. 
 
 The sum of $370 for the repairs may be deducted from the income, 
 if it amounts to that sum; if not, then to cancel the income, what- 
 ever it may be. 
 
 The claim for insurance should be disallowed. It does not appear 
 that it was procured for the plaintiff, or in her interest, or with her 
 knowledge, or that she has ever received or accepted any benefit 
 arising from it. 
 
 Case discharged. 
 
 5. Transfer, Descent, etc. 
 
 BABBITT v. DAY. 
 
 41 New Jersey Equity 392. — 1S86. 
 [Reported herein at p. 685.] ' 
 
 III. Partition. 
 
 1. Voluntary. 
 RECTOR v. WAUGH. 
 
 17 Missouri, 13. — 1852. 
 [Reported herein at p. 511.] 3 
 
 'See Overman v. Sasser, \<. 310 tupra, and Ferguson v. Tweedy, p. 628 supra. 
 - Ed 
 •See also Ferguson v. Tweedy, tupra, p. 628. Chap. 472, laws of 1S80. — Ed.
 
 III. 2. PARTITION. 979 
 
 2. Compulsory. 1 
 
 WALKER v. SHERMAN. 
 
 20 Wendell (N. Y.), 636. — 1839. 
 
 [Reported herein at p. 218.] 2 
 
 1 See New York Code of Civil Procedure, §§ 1532-1595. — Ed. 
 
 'See also IVass v. Bucknam, p. 640, supra. For a sketch of the history of com- 
 pulsory partition, see Mead v. Mitchell, 5 Abb. Pr. (N. Y.), 92 (aff'd 17 N. Y. 
 210). — Ed.
 
 PART V. 
 Of the Law of Persons in Relation to Land. 
 
 chapter I. 
 
 Aliens. 
 
 I. Capacity to take and hold. 1 
 
 FOSS v. CRISP. 
 
 20 Pickering (Mass.), 121. — 183S. 
 \_Reported herein at p. 645.] 
 
 PRIEST v. CUMMINGS. 
 
 20 Wendell (N. Y.), 338. — 1S3S. 
 
 [Reported herein at p. 692.] 
 
 CRAIG v. LESLIE. 
 
 3 WHEAroN(U. S.), 563. — 1818. 
 [Reported herein at p. 71.] 
 
 II. Capacity to transfer or transmit title. 
 
 Shaw, C. J., in SCANLAN v. WRIGHT. 
 
 13 Pickering, 523. — 1833. 
 
 In regard to the other objection, that Bishop Cheverus, by 
 accepting a civil and ecclesiastical office in France, renounced his 
 
 1 It is not i 1 1 1 • - n • 1 r '1 i" Ural very fully the subjects in Part V. They belong to 
 the course on the " Law of Domestic Relations and Persons." For other cases 
 on these topics see Woodruff's " Cases on the Law of Domestic Relations and 
 Pei ons." The present New York law as to the capacity of aliens to take, 
 hold, transmit and transfer Interests in land will be found in the N. Y. R. P. L., 
 See also U., ' ' 1 and 2. E d 
 [980]
 
 II.] ALIENS. 981 
 
 American allegiance, and- so became an alien, and that therefore 
 nothing passed by his deed, the consequence which is suggested 
 would not follow if the fact were proved. Were he in all respects 
 an alien, having been once well seised of an indefeasible estate, his 
 conveyance would not be void; it would vest an estate in his grantee, 
 subject only to be defeated by the government. 
 
 The other objections to the petitioner's title cannot be sustained, 
 especially when taken by a stranger, one who does not himself claim 
 the same title. So far as the alienage of Thomas Scanlan is relied 
 upon, as disabling him to join with his wife, in this petition, it is in 
 abatement only, and comes too late. If it be contended that he 
 could not take and become seised jointly with his wife in her right, 
 this is contrary to the rule of law, which is, that an alien may take 
 but cannot hold against the government; he takes a defeasible 
 estate, subject to escheat, at the suit of the government. But till 
 office found he is seised. If it be contended that on a feoffment to 
 the wife the husband becomes seized by act of law, and as in case of 
 descent the law will not cast seisin of an estate upon one who can- 
 not hold it, the consequence would be that the wife would remain 
 seised alone, and that she must petition by her husband as guardian 
 or next friend, instead of joining with him in the usual form. But 
 this would be mere matter of form, not affecting the title or merits 
 of the case.
 
 CHAPTER II. 
 Infants. 
 I. Nature of an infant's transfer. 
 
 WELCH v. BUNCE. 
 83 Indiana, 382. — 18S2. 
 
 Suit to set aside a deed and recover the possession of certain lands. 
 Plaintiff below had inherited the lands from her father and, her 
 husband joining with her in the deed, had conveyed them to Welch. 
 The complaint alleges that " at the time of executing said convey- 
 ance this plaintiff was a minor, under the age of twenty-one years, 
 and is yet," and that on a certain day named she had repudiated the 
 conveyance. The defendant demurred for the reason, among 
 others, that the complaint did not state facts sufficient to constitute 
 a good cause of action. The demurrer was overruled and defendant 
 appeals to this court. 
 
 Howk, J. — * * * This action was commenced on the 3d of 
 November, 1879, and it was alleged in the complaint then filed that 
 the appellee, Nancy Bunce, was then " a minor, under the age of 
 twenty-one years," and that she had disaffirmed her conveyance 
 of the real estate to the appellant on the 25th of October, 1879, 
 preceding the commencement of this suit. It is clear, therefore. 
 that the question above stated ' is fairly presented for decision by 
 the demurrer to the complaint. We are of the opinion that the 
 question stated must be answered in the negative. It would seem 
 to be settled by the decisions of this court that an infant cannot 
 disaffirm or avoid his or her conveyance of real estate, simply on 
 the ground of infancy, which is the only ground relied upon in the 
 < ase at bar, until his or her arrival at majority. Chapman v. Chap- 
 man, 13 I nd. 396; Miles v. Linger man, 24 Ind. 385; Law v. Long, 41 
 ln.1. 586. 
 
 1 " Can an infant disaffirm his or her conveyance of real estate during infancy, 
 or before he <<r she arrives at the full and lawful age of twenty-one years." 
 Ed. 
 
 [982]
 
 I.] NATURE OF INFANT'S TRANSFER. 983 
 
 The appellee's counsel, as we understand their argument, con- 
 cede that the rule of law, on the subject under consideration, was 
 formerly as we have stated it. But counsel claim that this rule was 
 changed by the provisions of § 10 of the Civil Code of 1852, and 
 that this section has been overlooked by this court in its more 
 recent decisions on the subject of the rule. This section 10 pro- 
 vides as follows: " When an infant shall have a right of action, such 
 infant shall be entitled to maintain suit thereon, and the same shall 
 not be delayed or deferred on account of such infant not being at 
 full age." 2 R. S. 1876, p. 37; § 12, Civil Code of 1881; § 255, R. 
 S. 1881. 
 
 We are of the opinion, however, that the section quoted has 
 no application to the question under consideration, and, there- 
 fore, makes no change in the rule of law in relation thereto. An 
 infant has no right of action as to lands conveyed away by him or 
 her, simply on the grounds of infancy, until such conveyance has 
 been disaffirmed or avoided. An infant's conveyance of real estate 
 is not void, but is merely voidable; and it cannot be avoided or dis- 
 affirmed, simply on the score of infancy, until the infant has arrived 
 at majority. It seems to us, therefore, that the facts stated in 
 the complaint, in the case now before us, showed clearly that the 
 appellee, Nancy Bunce, had no right or cause of action against the 
 appellant, at the commencement of this suit, and that the demurrer 
 to the complaint, for the want of sufficient facts, ought to have been 
 sustained. 
 
 Some other points, of minor importance, are noticed, rather than 
 discussed, by the appellant's counsel. We deem it unnecessary for 
 us to consider or decide these points, as the judgment must be 
 reversed for the reasons already given. 
 
 The judgment is reversed, with costs, and the cause is remanded 
 with instructions to sustain the demurrer to the complaint, and for 
 further proceedings not inconsistent with this opinion. 1 
 
 1 But the infant may enter while under age, and continue to take the profits 
 until he is of age, when he may either affirm or disaffirm. Bool v. Mix, 17 
 Wend. 119. — Ed.
 
 984 LAW OF PERSONS. [PT. V. CH. II. 
 
 GREEN v. GREEN. 
 69 New York, 553. — 1877. 
 
 Church, C. J. — The important question in this case is whether 
 it was necessary for the defendant to restore the consideration 
 received for the transfer of the land to the plaintiff to entitle him to 
 rescind the contract. The defendant is a son of the plaintiff. He 
 conveyed to the plaintiff the premises in question when under the 
 age of twenty-one years, for which he received the sum of $400. 
 It appeared affirmatively that the son had used up, lost, or squan- 
 dered the money before he became of age, and had no part of it, 
 nor any other property except the land at the time of arriving at 
 age. After a careful examination of the authorities and the con- 
 flicting opinions below, we are inclined to concur with the opinion 
 of Gilbert, J , in affirmance of the judgment. We do not deem it 
 profitable to review the authorities upon the question, and do not 
 intend to extend our decision beyond the principal facts involved in 
 this case. 
 
 There are expressions of judges, and general rules laid down by 
 text writers, and some cases which seem to favor the doctrine con- 
 tended for by the appellant, but in nearly all of them there is a man- 
 ifest distinction in the facts. The weight of authority is to the 
 contrary effect. 10 Peters U. S. 58, 74; 97 Mass. 508; 6 Gray, 279; 
 27 Vt. 268; 100 Mass. 174. These and like authorities, we think, 
 accord with the general principles of the law for the protection of 
 infants. The right to repudiate is based upon the incapacity of the 
 infant to contract, and the incapacity applies as well to the avails 
 as to the property itself, and when the avails of the property are 
 improvidently spent or lost by speculation or otherwise during 
 minority, the infant should not be held responsible for an inability 
 to restore them. To do so would operate as a serious restriction 
 upon the right of an infant to avoid his contract, and in many cases 
 would destroy the right altogether. A person purchasing real estate 
 of an infant, knowing the fact, and especially the father, must and 
 ought to take the risk of the avoidance of the contract by the infant 
 after arriving at maturity. The right to rescind is a legal right 
 established for the protection of the infant, and to make it depend- 
 ent upon performing an impossibility, which impossibility has 
 resulted from ants which the law presumes him incapable of perform- 
 ing, would tend to impair the right and withdraw the protection. 
 Both upon authority and principle we think a restoration of the con- 
 sideration could not be exacted as a condition to a rescission on the 
 part of the defendant.
 
 II.] INFANTS. 985 
 
 Mere acquiescence for three years after arriving at age without 
 any affirmative act was not a ratification. 11 J. R. 539; 14 Id. 124; 
 23 Maine R. 517. The entry made by the defendant in this case for 
 the purpose of disaffirming the contract with notice of such inten- 
 tion was sufficient to entitle him to recover. 17 Wend. 120. 
 
 The judgment must be affirmed. 1 
 
 II. Effect of judicial sales on legal character of infant's interest in 
 realty. 
 
 MARSH v. BERRIER. 
 
 6 Iredell's Equity (N. C), 524. — 1850. 
 \Reportcd herein at p. 70. ] 5 
 
 1 See the New York statutes as to infant's powers to convey. § 3 R. P. L. For 
 special proceedings for sale of infant's real estate, see Code Civ. Pro., §§ 2345- 
 2364. — Ed. 
 
 a See also § 2359 N. Y. Code Civ. Pro. — Ed.
 
 CHAPTER III. 
 Married Women. 
 I. Husband's right to dissent to devise or conveyance to wife. 
 BAXTER v. SMITH. 
 
 6 BlNNEY, 427. — 1814. 
 
 Tilghman, C. J. — It was given in charge by the president of the 
 Court of Common Pleas that the lease was void because made to a 
 married woman, against whom no action could be supported for the 
 non-performance of her part of the agreement. He took for granted 
 from the evidence that the husband did not assent. This broad 
 position took from the jury all right of considering the circum- 
 stances of the case; and it appears to me that the president went 
 too far in saying that the lease was void, because no action lay 
 against the woman. For granting that no action lay, yet if in fact 
 all the stipulations on her part were complied with, both during her 
 husband's life and afterwards, neither Finley himself, who had 
 received the benefit of those stipulations, nor the plaintiffs who 
 claim under his will, would be permitted to aver that the lease was 
 void, such averment being against all equity and good conscience. 
 A married woman may take by purchase unless her husband 
 expressly dissents. So that the jury should have been instructed 
 to consider whether from the direct or circumstantial evidence 
 George Baxter, the defendant's husband, had assented to this lease, 
 or whether the terms agreed to by his wife had been complied with, 
 and in either case, if their opinion should be in the affirmative, the 
 lease was valid and the plaintiffs ought not to recover. I give no 
 opinion on the evidence, which is sent up with the record, that being 
 a matter not proper for our consideration. On the whole, I am of 
 opinion that there was error in the judge's charge, and therefore 
 the judgment should be reversed, and a venire facias Jc novo 
 
 awarded. 
 
 [986]
 
 II.] TRANSFERS BY MARRIED WOMEN. 987 
 
 II. Transfers by married women. 
 
 Jewitt, J., in ALBANY FIRE INSURANCE CO. v. BAY. 
 
 4 New York, 9. — 1850. 
 
 By the common law a married woman is disabled from alienating 
 her lands by deed, either by uniting with her husband, or by execut- 
 ing it alone. The only mode in which she had power to transfer her 
 title or interest in real estate was by levying a fine or suffering a 
 common recovery, her deed being void. 1 Bl. Com. 444; 4 Cruise's 
 Dig., tit. 32 Deed, ch. 11, § 29; Compton v. Collinson, 1 H. Bl. Rep. 
 345; Jackson v. Vanderheyden, 17 John. 167; Martin v. Dwelly, 6 
 Wend. 9; Bool v. Mix, 17 id. 128; 2 Kent's Com. 150, 1; Gillet v. 
 Stanley, 1 Hill, 121; 5 Cruise's Dig., tit. 25, Fine, ch. 10, § 5; 
 Constantine v. Van Winkle, 2 Hill, 240. The husband, as a general 
 rule, was required to be a party with the wife in levying a fine for 
 the conveyance of her lands; but she might, as a feme sole, levy a 
 fine of her lands without her husband, and it would be valid and 
 effectual as against her and her heirs, unless it should be avoided 
 by the husband during the coverture, which he might do for the 
 benefit of the wife as well as of himself. 1 Preston on Abst. 336; 
 Com. Dig., tit. Baron and Feme, G. 88; Mary Portingtons Case, 
 10 Coke, 43, p. 322. Lord Loughborough, in Compton v. Collinson, 
 supra, said that it had been settled ever since the case in the 17 Ed. 
 3, Year Book 17 Ed. 3, 52, 78, that if a fine be levied by a feme 
 covert without her husband, it shall bind her and her heirs, if it be 
 not avoided by the husband; and that both Rolle and Comyns seem 
 to intimate that the law would be the same as to a recovery. In 
 the same case, page 345, it was said, in reference to the power of a 
 feme covert to dispose of her lands, that it would be more accurate 
 to state the law to be that a married woman can make no convey- 
 ance of her lands, except by fine or recovery, and that a fine levied 
 by her alone is avoidable only by her husband. 
 
 The disability of a married woman to convey her lands by deed 
 was not supposed to arise from want of reason, but because by her 
 marriage she was placed under the power and protection of her 
 husband; and it was upon that ground that the separate examina- 
 tion of such woman on a fine was good, because when delivered 
 from her husband her judgment was supposed to be free. Hearle 
 v. Greenbank^ 3 At.k. 712; Compton v. Collinson, supra; 2 Kent's 
 Com. 150; Durant v. Ritchie, 4 Mason, 54. Judge Story, in the 
 case of Durant v. Ritchie, said that fines, as a mode of conveyance, 
 did not appear ever to have been adopted in this country; and
 
 9§8 LAW OF PERSONS. [PT. V. CH. III. 
 
 common recoveries, though resorted to for other purposes, were not 
 known to have been used for transfer of the estates of femes covert. 
 Thompson, Ch. J., in Jackson v. Gilchrist, 15 John. 115, in regard 
 to the alienation of lands by married women, remarked that the 
 common-law modes, by fine and recovery, never were in use here. 
 
 The great object which the common law aimed at was to ascer- 
 tain whether the wife, in the transfer of her estate or interest in real 
 property, acted under fear or compulsion of her husband. In a con- 
 veyance by fine and recovery, the wife was privately examined by 
 the court, as to her voluntary consent, which removed the general 
 presumption of the law that she was acting under the compulsion of 
 her husband. 2 Bl. Com. 355; 5 Cruise's Dig., tit. 35, §§ 7, 8, 9; 
 Bool v. Mix, 17 Wend. 128. 
 
 Instead of using fines and recoveries for the conveyance of lands 
 by married women, under the government of the colony of New 
 York, deeds were used for that purpose, and upon their simple 
 acknowledgments by the grantors, or proof made by a subscribing 
 witness before a member of his majesty's council, a judge of the 
 supreme or county court, or a master in chancery, and sometimes 
 before a justice of the peace, without private examination; and 
 there were lands held under deeds of married women not acknowl- 
 edged or proved even in the manner mentioned; which practices 
 were recited in the act of the 16th of February, 1 77 1, and such 
 deeds were confirmed by it. As to future conveyances, it was 
 enacted by that act, that no estate of z.fe7?ie covert should thereafter 
 pass by deed without a previous acknowledgment made by her, 
 apart from her husband and on a private examination, that she exe- 
 cuted the same freely, and without any fear or compulsion of her 
 husband. 2 Kent's Com. 150; Jackson v. Gilchrist, 15 John. 109. 
 This act prescribing the form in which the deed of a feme covert 
 should be acknowledged in order to pass her real estate has been 
 substantially continued in respect to married women residing in this 
 State in the successive revisions of the laws. 2 Greenleaf, 99, § 3; 
 1 R. L. 369, § 3; 1 R. S. 758, § io. 1 No distinction is made, in 
 either of the statutes referred to, between the effect of a deed 
 executed by the husband and wife for the conveyance of her lands, 
 where the wife resides in this State, and a deed executed by the 
 wife without her husband for such purpose. By our usages and 
 laws we have substituted her deed for a conveyance of lands in the 
 place of the common-law mode, by fine. It is conceded that it must 
 have the same effect under our laws, where the husband joins with 
 
 1 See for present law £ 251 R. P L. — F.i>.
 
 II. j TRANSFERS BY MARRIED WOMEN. 989 
 
 the wife, if properly acknowledged, as a fine had, at the common 
 law, as a conveyance, where the wife joined with her husband in 
 levying it. And I can see no reason why her deed, properly 
 acknowledged, where the husband does not join with her in it, 
 should not have at least as extensive an effect as a fine had, at the 
 common law, when levied by her alone. * * * 
 
 At the time Mrs. Treat executed the mortgage in question, she was 
 seised of the premises in fee, capable of holding lands; and it is not 
 pretended that she was either an idiot or a person of unsound mind, 
 or an infant; and therefore was a person expressly authorized by 
 the statute to alien her estate or interest in lands at her pleasure, 
 subject only to such restrictions and regulations as were provided 
 by law; and that as to them the certificate of the officer before 
 whom she acknowledged the execution of the mortgages shows an 
 exact compliance. The defendants insist upon another restriction 
 to her alienating her estate or interest in lands; that her husband 
 must have joined with her in the conveyance to give it the effect to 
 pass her estate. I think that is answered by the fact that there is 
 no provision in our laws making it necessary in order to the passing 
 of the estate or interest of a married woman residing in this state, 
 in lands of which she is seised or entitled to, that her husband 
 should join with her in the conveyance. 
 
 It is said in 2 Kent's Com. 152, that the weight of authority would 
 seem to be in favor of the existence of a general rule of law, that 
 the husband must be a party to the conveyance or release of the 
 wife, and that such a rule was founded on sound principles, arising 
 from the relation of husband and wife. It was, however, admitted 
 that there were exceptions to the rule, and that it was not universal 
 in its application. * * * 
 
 The substitute in favor of a conveyance by the wife of a deed for 
 a fine or common recovery was made at an early day by most, if not 
 all, the colonial governments, by statutes which have been substan- 
 tially continued to this period by legislative enactments. These 
 statutes, in most cases, have expressly provided that the husband 
 and wife must join in the conveyance, to have the effect of passing 
 her present or contingent estate or interest in real estate. This is 
 so as it respects Maryland, Lawrence v. Heiste>\ 3 Har. & John. 371 ; 
 New Hampshire, Massachusetts, Vermont, and several other 
 States. In Vermont, the right of a married woman to convey her 
 lands by deed is given by statute to convey " by deed of herself and 
 baron," and making her separate examination and acknowledgment 
 necessary, and to be certified upon the deed. Sumner v. Conant, 10 
 Vern. Rep. 20.
 
 990 LAW OF PERSONS. [PT. V. CH. III. 
 
 It is said, 2 Kent's Com. 153, that the particular question, 
 whether the husband must be a party to the deed of release by the 
 wife of her dower, to give it validity, has never been judicially 
 settled in this State. * * * 
 
 So far as judicial decision is concerned it is an open question in 
 this State. But if we ma}' rely upon the dicta or casual remarks of 
 learned judges bearing upon it but not involved in the questions 
 determined, it may be as well sustained that a feme covert can, 
 during her coverture, part with her interest in her real estate by 
 deed without her husband, as that she must join with him to effect 
 
 I have come to the conclusion that a feme covert residing within 
 this State has power to convey her estate or interest in her land by 
 her separate deed without her husband, if she acknowledge, before 
 a proper officer, on a private examination apart from her husband, 
 that she executed such deed freely and without any fear or compul- 
 sion of her husband, and such acknowledgment is properly certified 
 by such officer; and therefore that the mortgages executed by Mrs. 
 Treat are valid and subsisting liens on lot No. 1. 
 
 III. Her power to devise her lands. 
 
 Denio, J. in WADHAMS v. AMERICAN HOME MISSIONARY 
 
 SOCIETY. 
 
 12 New York, 415. — 1855. 
 
 An argument in favor of this will has been deduced from the 
 course of decisions in respect to testamentary dispositions of real 
 estate made by married women, notwithstanding the prohibition 
 contained in the English Statute of Wills, and which we have seen 
 was re-enacted in this State. It is familiar law that, notwithstand- 
 ing this prohibition, a married woman was competent to appoint the 
 uses of land where a power for that purpose had been reserved by 
 or given to her by some conveyance competent to raise and to direct 
 the execution of such use, or where land had been conveyed in trust 
 for her benefit with a like power of appointment, and this she might 
 do by will where the power authorized it. Wills operating by way 
 • if the appointment of a use were common before the statute had 
 authorized a devise of lands. The use was considered as a thing 
 distni' t from the land, and might be transferred by methods which 
 would beentirely insufficient to convey the land itseif. The statute 
 of uses, passed a few years prior to the statute of wills, was designed
 
 III.] MARRIED WOMAN'S POWER TO DEVISE. 99I 
 
 to put an end to this distinction by conferring upon the possessor of 
 the use the legal seisin and ownership of the land. The manner in 
 which the intention of the legislature was defeated by the courts 
 forms one of the most curious chapters of the law of real estate, but 
 it i9 sufficient here to mention a single feature of this system, the 
 one which declared that future or contingent uses might be limited 
 upon a conveyance in fee, which would remain unexecuted until 
 they were designated and pointed out by the party to whom the 
 power to do so was given When the power was executed the per- 
 son in whose favor the appointment was made became invested with 
 the use, and instantly gained the legal estate by force of the statute. 
 3 Reeves' Hist. Eng. Law, 365, 366; 4 Id. 247, 253, 360; 1 Sugden 
 on Powers, 12, 184. 
 
 Now, by the common law, a married woman could not dispose of 
 her legal estate in lands without a fine or recovery, and by the stat- 
 ute of wills she was expressly prohibited from devising her lands; 
 but as the instrument or attorney of another she could, both before 
 and since the statute, convey an estate in the same manner as her 
 principal, because the conveyance was regarded as the deed of the 
 principal and not of the attorney. 1 Sugden on Powers, 184; 
 Thomlinson v. Dig/iton, 1 P. Williams, 149. It follows that a married 
 woman cannot in England, and could not in this country until the 
 passage of the act respecting married women in the year 1849, make 
 a will of her real estate, except by virtue of a power or by way of 
 appointing a use; but where she is clothed with such a power, her 
 coverture forms no impediment to the transaction. Peacock v. 
 Monck, supra; B radish v. Gibbs, 3 J. C. R. 523. It may be proper 
 to mention, to prevent misapprehension, though the doctrine has no 
 particular bearing upon this case, that a formal conveyance to uses, 
 or to trustees upon trusts to be executed by virtue of a power, is 
 unnecessary; and that marriage articles, by which the husband 
 agrees that his intended wife may dispose of her real estate, will be 
 enforced in the same manner as though there had been a formal con- 
 veyance. Lord Hardvvicke, in Peacock v. Monck, expressed a doubt 
 whether a simple agreement between husband and wife would be 
 sufficient; but the cases since that time have definitely settled the 
 question that a court of chancery, acting upon the consciences of 
 the parties and considering that done which they had agreed to do, 
 will sustain an appointment under the provisions of an ante-nuptial 
 contract, simply executory in its terms. Wright v. Cadogan, 6 
 Brown's P. C. 156; Rippon v. Dawding, Ambler, 565; B radish v. 
 Gibbs, supra.
 
 992 LAW OF PERSONS. [PT. V. CH. III. 
 
 Andrews, J. in BROWN v. CLARK. 
 
 77 New York, 369. — 1879. 
 
 We concur in the conclusion reached by the surrogate that the 
 will was revoked by the subsequent marriage of the testatrix.* It 
 was the rule of the common law that the marriage of a woman 
 operated as an absolute revocation of her prior will. Force and 
 Hembleys Case, 4 Co. 61. The reason of the rule is stated by 
 Lord Chancellor Thurlow in Hodsden v. Lloyd, 2 Bro. Ch. 534. He 
 says: " It is contrary to the nature of the instrument which must 
 be ambulatory during the life of the testatrix; and as by the mar- 
 riage she disables herself from making any other will, this instru- 
 ment ceases to be of that sort, and must be void." The rule that 
 the marriage of a feme sole revoked her will was made a part of the 
 statute law of -this State by the Revised Statutes. 2 R. S. 64, § 44. 
 The language of the statute that the will of an unmarried woman 
 shall be deemed revoked by her subsequent marriage is the declara- 
 tion of an absolute rule. The statute does not make the marriage a 
 presumptive revocation which may be rebutted by proof of a con- 
 trary intention, but makes it operate eo instanti as a revocation. 4 
 Kent, 528. It is claimed by the contestants that the testamentary 
 capacity conferred upon married women by the recent statutes in this 
 State takes away the reason of the rule of the common law, and that 
 upon the maxim cessa/iie ratione legis, cessat lex ipsa, the rule should 
 be deemed to be abrogated. Upon the same ground it might have 
 been urged at common law that the marriage of a feme sole should 
 only be deemed a revocation or suspension of her prior will during 
 the marriage, and that when the woman's testamentary capacity was 
 restored by the death of her husband, leaving her surviving, the will 
 should be revived; but the contrary was well settled. Force and 
 Urmblefs Case, 1 Jarman, 106; 4 Kent, 598. But the courts cannot 
 dispense with a statutory rule because it may appear that the policy 
 upon which it was established has ceased. The married women acts 
 confer testamentary capacity upon married women, but they do not 
 undertake to interfere with or abrogate the statute prescribing the 
 effect of marriage as a revocation. It was quite consistent that the 
 Legislature should have intended to leave the statute of 1830 in 
 for> e, although the new statutes took away the reason upon which 
 it was based. The Legislature may have deemed it proper to con- 
 tinue it for the reason that the new relation created by the marriage 
 would be likely to induce a change of testamentary intention, and 
 that a disposition by a married woman of her property by will should 
 depend upon a new testamentary act after the marriage.
 
 IV.] MARRIED WOMAN'S SEPARATE ESI ATE. 993 
 
 IV. Married woman's separate estate and her power to control and 
 dispose of same. 
 
 JAQUES v. TRUSTEES, etc. 
 
 17 Johnson (N. Y.), 548. — 1820. 
 
 [Reported herein at p. 93. J 
 
 PULLEN v. RIANHARD. 
 
 1 Wharton (Pa.), 514. — 1836. 
 [Reported herein at p. 95.] 
 
 FEARS v. BROOKS. 
 12 Georgia, 195. — r852. 
 [Reported herein at p. 571.] 
 LAW OF PROP. IN LAND — 53
 
 CHAPTER IV. 
 Persons of Unsound Mind. 
 ALLIS v. BILLINGS. 
 
 6 Metcalf (Mass.), 415. — 1843. 
 
 Writ of entry to recover certain lands. Tenant gave in evidence 
 a deed from demandant. Demandant offered to prove that he was 
 insane when the deed was given. The judge instructed the jury 
 " that if demandant was not of sane mind when he made the deed, 
 it was void absolutely, and not voidable merely, and that the receipt 
 of money on the note would not bar an action, though demandant 
 was sane when he received it." The jury found that demandant was 
 insane when the deed was made. 
 
 New trial to be granted if ruling of judge was incorrect; otherwise 
 judgment to be rendered for the demandant on the verdict. 
 
 Dewey, J. — The question raised in the present case is, whether 
 the deed of one who is insane at the time of the execution thereof 
 is void absolutely or merely voidable. 
 
 The term " void," as applicable to conveyances or other agree- 
 ments, has not at all times been used with technical precision, nor 
 restricted to its peculiar and limited sense as contradistinguished 
 from " voidable;" it being frequently introduced, even by legal 
 writers and jurists, where the purpose is nothing further than to 
 indicate that a contract was invalid, and not binding in law. But 
 the distinction between the terms " void " and " voidable," in their 
 application to contracts, is often one of great practical importance; 
 and whenever entire technical accuracy is required, the term 
 " void " can only be properly applied to those contracts that are of 
 no effect whatsoever; such as are a mere nullity, and incapable of 
 confirmation or ratification. 
 
 This question, then, arises: 1^ the deed of a person non compos 
 mentis of such a character that it is incapable of confirmation? This 
 point is nol now for the first time raised, but lias been the subject 
 of commenl both by elementary writers and in judicial opinions. 
 Mr. fustice Blackstone, in Ins Commentaries, vol. ii., p. 291, states 
 
 [994]
 
 CHAP. IV.] FERSONS OF UNSOUND MIND. 995 
 
 the doctrine thus: " Idiots, and persons of non-sane memory, infants 
 and persons under duress, are not totally disabled to convey or pur- 
 chase, but sub modo only, for their conveyances and purchases are 
 voidable, but not actually void." 
 
 Chancellor Kent says: "By the common law a deed made by a 
 person non compos is voidable only, and not void." 2 Kent's Com., 
 4th ed., 451. In Wait v. Maxwell, 5 Pick. 217, this court adopted 
 the same principle, and directly ruled that the deed of a non compos 
 not under guardianship was not void, but voidable. Such a deed 
 conveys a seisin to the grantee, and the deed, to that extent, is valid 
 until, by entry or action, the same is avoided. Mitchell v. Kingman, 
 5 Pick. 431, is to the like effect. In Seaver v. Phelps, 11 Pick. 305, 
 the contracts of insane persons are noticed as contracts not abso- 
 lutely void, but voidable. 
 
 It may seem somewhat absurd to hold that a deed should have 
 any effect when wanting in one of the essential elements of a valid 
 contract, viz., that of parties capable of giving an assent to such a 
 contract. But this objection as strongly applies to cases of deeds 
 executed by infants, who are alike wanting in capacity to make a 
 binding contract. Yet this principle of giving so much effect to the 
 contract as removes it beyond that of a mere nullity, and renders it 
 to some present purposes effectual and susceptible of complete 
 future ratification, is well settled and understood as to infants who 
 enter into contracts; and it will be found that there is a common 
 principle on this subject, alike applicable to the inability of a con- 
 tracting party, arising from lunacy or infancy. The civil and the 
 common-law writers group together idiots, madmen, and infants, as 
 parties incapable of contracting for want of a rational and deliberate 
 consenting mind. 1 Story on Eq., § 223, and authorities there cited. 
 It is true that the rule of the common law, as held at one time, 
 seemed to sanction, in one particular, a most unwarrantable distinc- 
 tion between the cases of deeds made by persons non compos and 
 those made by infants; holding that the former could not be avoided 
 by the party, upon the ground that no man of full age should be 
 admitted to stultify himself, although it allowed privies in blood, or 
 privies in representation, after the death of the non compos, to avoid 
 the deed, on the ground of incapacity in the grantor. This distinc- 
 tion has not been adopted by our courts. On the contrary, we hold 
 that such conveyance by one non compos mentis may be avoided by 
 himself, as in the case of an infant grantor. This principle was 
 directly recognized in the case of Mitchell v. Kingman, 5 Pick. 431. 
 Indeed, the English rule has, in modern times, been often ques- 
 tioned in England; and in the courts of our sister States it has
 
 996 LAW OF PERSONS. [PART V. 
 
 received little if any sanction. 1 Story on Eq., § 225, and cases 
 there cited. 
 
 It was urged by the demandant's counsel that the doctrine that 
 the deed of a non compos person was voidable only, and not void, 
 was to be limited to feoffments, or cases where there is a livery of 
 seisin, or what is equivalent, and would not embrace a conveyance 
 by an unrecorded deed. But we do not think that such a distinction 
 can be maintained. As between the grantor and the grantee, such 
 unrecorded deed is good and effectual, by force of our statute; and 
 the effect of such a conveyance would be to vest the title of the 
 grantor in the grantee immediately upon the execution of the deed, 
 and before the same is recorded Marshall v. Fisk, 6 Mass. 31. A 
 deed made in proper form, and duly acknowledged and recorded, is, 
 in this commonwealth, equivalent to a feoffment with livery of 
 seisin. Somes v. Breiuer, 2 Pick. 197. Without the registry, where 
 the delivery of the deed is accompanied by the surrender of the pos- 
 session of the conveyed premises to the grantee, the effect would be 
 the same, as to the conveyance by a nan compos, as would result 
 from a feoffment made by him. A deed of bargain and sale, it is 
 said, places the grantee upon the footing of a feoffment, as it passes 
 the estate by the delivery of the hand; such grants or deeds as take 
 effect by delivery of the hand being voidable only. Somes v. 
 Brewer, 2 Pick. 197; Zouch v. Parsons, 3 Burr. 1804. We come, 
 therefore, to the result that the deeds of infants and insane per- 
 sons are alike voidable, but neither are absolutely void. * * * 
 
 The presiding judge ruled, as a matter of law, that a deed of an 
 insane person was absolutely void. Under this ruling all that was 
 required of the demandant, to entitle himself to a verdict in his 
 favor was to show a temporary insanity at the time of the execution 
 of the deed. No matter what might have occurred subsequently, 
 or how soon afterwards the demandant might have been restored to 
 a sound mind; no matter what acts of confirmation may have been 
 done by him, or however fully he may have adopted and ratified the 
 t ransaction, by the receipt of money or other valuable consideration 
 paid for the land; still the legal title in the land would be in him. 
 This was the necessary result of the doctrine The deed of a non 
 <o»ifi<>\ was absolutely void, while, if it had been held only voidable, 
 these subsequent acts of the party might materially affect the ver- 
 dict <>f the jury. But adopting, as we do, the principle that the deed 
 of an insane person is only voidable, this, while it gives the insane 
 grantor full power and authority to avoid his deed, and thus fur- 
 nishes full protecion to him against all acts injurious to his interests, 
 done while he was /ton compos, also entitles the other party to set up
 
 CHAP. IV.] PERSONS OF UNSOUND MIND. 997 
 
 the deed, if he can show a ratification or adoption of it by the 
 grantor, after he is restored to a sound mind. If the grantor, when 
 thus capable of acting, and with full knowledge of his previous acts, 
 and of the nature and extent of them, will deliberately adopt and 
 ratify them; if he will knowingly, and in the exercise of his proper 
 faculties, take the benefit of a contract made while he was insane — 
 it is competent for him to do so. But the consequence will be to 
 give force, effect, and legal validity to his contract, which was 
 before voidable. 
 
 In the present case, therefore, upon the point first relied upon in 
 the defense, viz.: that the demandant was insane when he executed 
 the deed, the jury should have been instructed that this fact, if 
 established, rendered the deed voidable, and that it was competent 
 for the demandant to avoid it on that ground, if not estopped by his 
 subsequent acts, done while in his right mind; but that a voidable 
 deed was capable of confirmation; and that, if the grantor, in his 
 lucid intervals, or after a general restoration to sanity, then being 
 of sound mind, and well knowing and understanding the nature of 
 the contract, ratified it, adopted it as a valid contract, and partici- 
 pated in the benefits of it, by receiving from the purchaser the pur- 
 chase-money due on the contract, this would give effect to the deed, 
 and render the same valid in the hands of the grantee, and would 
 thus become effectual to pass the lands, and divest the title of the 
 grantor. Such instructions would have presented the question in 
 issue in a different aspect to the jury, and might have led to a differ- 
 ent result upon the only point upon which they passed. 
 
 Verdict set aside, and a new trial granted. 1 
 
 1 See, however, Aldrich v. Bailey, 132 N. Y. 85. See the New York statutes, 
 §3, R. PL; §§ 2345 2364, Code Civ. Pro. — Ed.
 
 CHAPTER V. 
 
 Corporations. 
 
 i. Power to Take and Hold. 
 
 NICOLL v. N. Y. & E. RAILROAD CO. 
 12 New York, 121. — 1854. 
 [Reported herein at p. 527.] 
 
 WHITE v. HOWARD. 
 
 46 New York, 144. — 1871. 
 
 [Reported herein at p. 47.] 
 
 CONGREGATIONAL SOCIETY v. STARK. 
 
 34 Vermont, 243. — 1S61. 
 [Reported herein at p. 509.] 
 
 The Assistant Vice-Chancellor in BARRY v. MERCHANTS 
 EXCHANGE COMPANY. 
 
 1 Sanford's Chancery (N. Y.), 280. — 1844. 
 
 Every corporation, as such, has the capacity to take and grant 
 property, and to contract obligations in the same manner as an 
 individual. 
 
 This is the general rule. But corporations are usually created for 
 some limited and specific purpose, and therefore the general powers 
 incident to a body corporate at common law are restricted by the 
 nature and object of the institution of each. And every such cor- 
 poration lias power to make all contracts which are necessary and 
 usual in the course of tin- business it transacts, as means to enable 
 it to effed such object, unless expressly prohibited by law, or the 
 pp. . ions of it*- charter, 
 
 [998]
 
 CHAP. V.] CORPORATIONS. 999 
 
 Upon this principle, and to the extent stated, a corporation in 
 order to attain its legitimate objects, may deal precisely as an indi- 
 vidual may who seeks to accomplish the same ends. If chartered 
 for the purpose of building a bridge, it may contract a debt for the 
 labor, the materials, or the land upon which the bridge is abutted. 
 If more advantageous, it may borrow money to purchase such land 
 or materials, or to pay for such labor. And as evidence of the 
 indebtedness and as security for its repayment, it may execute to 
 the creditor a promissory note, a bond or a mortgage; whether the 
 debt be for the money borrowed, or for the work, materials or 
 land. * * * 
 
 In the last revision of our statutes the Legislature thought proper 
 to enact many of the principles of the common law as then under- 
 stood. And it is accordingly provided in 1 Rev. Stat. 599, 600, § 1, 
 that every corporation as such has power, among other things, " to 
 hold, purchase, and convey such real and personal estate as the pur- 
 poses of the corporation shall require, not exceeding the amount 
 limited in its charter." By the third section, " In addition to the 
 powers enumerated in the first section of this title, and to those 
 expressly given in its charter, or in the act under which it is or shall 
 be incorporated, no corporation shall possess or exercise any cor- 
 porate powers, except such as shall be necessary to the exercise of 
 the powers so enumerated and given." * * * 
 
 Having examined some of the usual capacities of a corporation 
 created for a limited purpose or object, I will next inquire with 
 what power it is clothed in regard to real estate. 
 
 The Merchants' Exchange Company is expressly authorized by its 
 charter to take, hold and convey real estate. To what extent it 
 may hold real estate is fully discussed in a subsequent part of the 
 case. 
 
 At common law a corporation aggregate has an incidental right to 
 dispose of both lands and chattels. Except when restrained by law, 
 all corporations have the absolute jus disponendi, and in its exercise 
 are unlimited as to objects and quantity. 2 Kent's Commentaries, 
 281, 2d ed. ; Comyn's Digest, Franchise, F. 11, 18; 1 Kyd on Corp. 
 108; Angell & Ames on Corp. 125, 2d ed. ; Case 0/ Sutton's 
 Hospital, 10 Reports, 30 b; The Mayor, etc., of Colchester v. Lowten, 
 1 Ves. & Beames, 226, 244, and the arguments at the bar in that 
 case, pp. 237, 240. 
 
 This general right of disposal as to lands was much circumscribed 
 by the various statutes relative to charitable societies in England; 
 and in this country, where all grants of corporate power emanate 
 from the legislature, it is usual to limit Xht jus disponendi, in religious
 
 IOOO LAW OK PERSONS. [PART V. 
 
 societies and others of a charitable nature. Again, a corporation 
 which can dispose of its property, may, in general, dispose of any 
 interest in the same, as it deems expedient; and in this respect has 
 the same power as an individual. Thus, it is said that it may lease, 
 grant in fee or for life, mortgage, and even make an assignment for 
 the benefit of creditors, giving preferences, where the law admits of 
 such assignments by natural persons. Angell & Ames on Corp. 126, 
 and the cases there cited. Two of these cases, Jackson v. Brown, 
 5 Wend. 590, and Gordon v. Preston, 1 Watts, 385, I have stated at 
 large, and they establish the power to mortgage. 
 
 2. Power to Convey or Mortgage. 
 
 AURORA AGRICULTURAL & HORTICULTURAL SOCIETY 
 
 v. PADDOCK. 
 
 80 Illinois, 263. — 1875. 
 
 Mr. Justice Craig delivered the opinion of the Court: This 
 was a bill in equity, brought by appellees, to foreclose a mortgage 
 executed by the Aurora Agricultural and Horticultural Society 
 of Aurora, on the 28th day of December, 1870, to secure the 
 payment of $6,000 loaned by John R. Coulter to the society. The 
 court, on a hearing of the cause, rendered a decree directing a sale 
 of the mortgaged premises in satisfaction of the mortgage debt. 
 
 The society has prosecuted this appeal, and in order to obtain a 
 reversal of the decree, it is insisted by the counsel for appellant: 
 
 First. — That the society had no power whatever to mortgage. 
 
 Second. — That the mortgage in question was wholly unauthor- 
 ized. 
 
 The appellant was organized on the sixth day of March, 1869, 
 under an act approved Feb. 15, 1855, which authorized the incorpora- 
 tion of agricultural societies. Gross' Statutes, 1869, page 119. 
 By the third section of the act the society was made a body cor- 
 porate, with power to sue and be sued, to acquire and hold real 
 (.state not exceeding five hundred acres, to construct the necessary 
 improvements and buildings for its purpose, to have and employ 
 capital, machinery, live stock, etc., not exceeding in value $10,000. 
 
 While it is true no section of the act confers direct authority upon 
 the society to sell or mortgage its property, except upon a dissolu- 
 tion of the corporation, yet the act does not prohibit or restrict the 
 SOI iety from selling or giving a mortgage upon its real estate. The 
 power to mortgage, when not expressly given or denied, must be
 
 CHAP. V.] CORPORATIONS. IOOI 
 
 regarded as an incident to the power to acquire and hold real estate 
 and make contracts. 
 
 We understand it to be the common-law rule that corporations 
 have an incidental right to alien or dispose of their lands and per- 
 sonal property, unless specially restrained by the act under which 
 they are organized or by statute. 
 
 It is said in Angell & Ames on Corporations, p. 153: "Inde- 
 pendent of positive law, all corporations have the absolute jus dis- 
 ponendi, neither limited as to objects nor circumscribed as to 
 quantity." The same doctrine is clearly laid down by Kent, vol. 2, 
 page 280. 
 
 We are, therefore, of opinion, as the society was not prohibited 
 from mortgaging its lands, it possessed the power to do so as an 
 incident to the power to purchase and hold real estate and make 
 contracts. * * * 
 
 Decree affirmed.
 
 PART VI. 
 Of the Acquisition and Transfer of Interests in Land. 
 
 chapter I. 
 Title by Original Acquisition. 1 
 
 I. Title by occupancy.* 
 
 ATKINSON v. BAKER. 
 
 4 Durnford & East (Eng.), 229. — 1791. 
 
 [Reported herein at p. 579.] 
 
 II. Title by accretion op accession. 
 
 DEERFIELD v. ARMS. 
 
 17 Pickering (Mass.), 41. — 1835. 
 
 [Reported herein at p. 108.] 
 
 1 "A title is thus defined by Sir Edward Coke, titulus est justa causa possidendi 
 id quod nostrum est; or, it is the means whereby the owner of lands hath the 
 just possession of his property." 2 Blk. Com. 195. For the elements of a 
 complete title, see Id., 195 199, and note 41 to Hammond's edition. 
 
 Title by original acquisition and title by derivative acquisition are both titles 
 by " purchase " as distinguished from title by descent in which latter class of 
 tii lis no element of consent on the part of the recipient is involved or 
 required. - Ed, 
 
 'The term oci upancy (pccupare) is used here in the primary sense of "rasping 
 eizing upon. In a broader sense all titles by original acquisition maybe 
 called titles by " '"■upancy." In tin- narrow sense the term is applied to the 
 acquisition "i property which has no owner. The only case for the application 
 of the principle in modern law is tin- one illustrated in the text, as the ultimate 
 ownership of land is now in the crown or the State. It is not intended to con- 
 sider in this Part (except it lie iiu Mentally), the acquisition of title by the State; 
 this may be by discovery, conquest, treaty, confiscation, escheat, the exercise of 
 the right of eminent domain, or by purchase from individuals. — Ed. 
 
 [1002]
 
 II.] BY ACCRETION OR ACCESSION. 1003 
 
 GODDARD v. WINCHELL. 
 
 86 Iowa, 71. — 1892. 
 [Reported herein at p. log.]' 
 
 RITCHTMYER v. MORSS. 
 
 3 Keyes (N. Y.), 349. — 1867. 
 [Reported herein at p. 283.] 
 
 WARREN v. CHAMBERS. 
 25 Arkansas, 120. — 1S67. 
 
 Compton, J. — This was a bill in chancery, exhibited by Samuel 
 H. Warren against William E. Chambers, as administrator of 
 Stephen Bonnell, deceased, for an abatement in the price of certain 
 lands which Bonnell sold to the complainant. 
 
 At the final hearing the bill was dismissed, and the complainant 
 appealed. 
 
 The ground on which an abatement of the purchase money is 
 sought is, that Bonnell has no title to a portion of the land embraced 
 in his deed to the appellant. The land sold was bounded on Tucker's 
 lake, according to the original survey of the meanders of the lake, 
 made by authority of the United States. Shortly before the sale to 
 the appellant, the meanders of the. lake were again surveyed, when 
 it appeared that there was a strip of land lying between Bonnell's 
 land, as originally run, and the lake, which had become dry by 
 recession of the water. This strip was conveyed with the other 
 land, and is described in Bonnell's deed as " the swamp land 
 recently surveyed." The evidence showed that the water receded 
 gradually — continuing to do so through a series of years. 
 
 Waiving other questions that have been discussed, we will proceed 
 to determine whether Bonnell had title to the strip of land above 
 indicated; for, if he had, then this controversy is ended, and the 
 decree of the circuit court below must be affirmed. The question 
 presented involves an examination, to some extent, of the doc- 
 
 1 See as to ice, pp. 136, 146, supra; as to fixtures, see also the cases on pp. 218, 
 224, 227 and 309, supra. See also cases on sea-weed, wreck, stranded property, 
 mislaid goods, fish and game, pp. 351-371, supra, for analogous princi- 
 ples. — Ed.
 
 1004 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 trines of alluvion and dereliction. Alluvion, according to the Eng- 
 lish common law, is an addition made to land by the washing of the 
 sea, a navigable river, or other stream, where the increase is so 
 gradual in its progress that it cannot be perceived how much is 
 added in any moment of time. Land thus formed belongs to the 
 proprietor of the adjacent land to which it is attached. Derelic- 
 tion, according to the same authority, is a recession of the waters 
 of the sea, a navigable river, or other stream, by which land that 
 was before covered with water is left dry. In such case, if the 
 alteration takes place suddenly and sensibly, the ownership remains 
 according to former bounds; but if it is made gradually and imper- 
 ceptibly, the derelict or dry land belongs to the riparian owner from 
 whose shore or bank the water has so receded. Woolrych on Water 
 Courses, marg. 29, 34, 35, 46, 47, and authorities there cited. And 
 the reason, as given by Blackstone, why alluvial and derelict land, 
 gained by imperceptible degrees, belongs to the owner of the 
 adjoining land, is that de minimis Hon curat lex, and because such 
 owners, being often losers by the breaking in of the water, or at 
 charges to keep it out, this possible gain is a reciprocal considera- 
 tion for such possible charge or loss. Bl. Com., vol. 2, 262. 
 
 In this country these rules of the common law have been applied 
 to lake as well as other waters. Thus, in Murry v. Sermon, 1 
 Hawks. 56, decided by the Supreme Court of North Carolina, the 
 defendant in ejectment claimed title to the land in dispute, which 
 was bounded by Mattamuskeet lake, under a patent dated in 1761; 
 and the plaintiff claimed under a grant of recent date, covering 
 lands between the defendant's lines and the lake. Both parties 
 introduced evidence as to what had been actually run for the lines 
 of the defendant's land; and the court below instructed the jury to 
 find for the defendant, no matter whether the lake had receded or 
 not; for, in either case, it remained his boundary. This was held 
 to be erroneous, and a new trial was awarded, in order that the jury 
 might find the fact whether the waters of the lake had receded grad- 
 ually and imperceptibly, or suddenly and sensibly, from the land in 
 controversy, because, on that question, the court said the rights of 
 the parties depended. So, in Hanks v. Ogden, 2 Wal. 57, recently 
 determined in the Supreme Court of the United States, it was held 
 that accretion by alluvion from Lake Michigan belonged to the 
 proprietor of the land bounded by the lake. It is true that, in both 
 of these cases, the lakes are navigable, and in the case before us evi- 
 dence was introduced in the court below to prove that Tucker's lake 
 is navigable; hut in such cases it is immaterial whether the water is 
 navigable or not. In England, from whence we derive the doctrine
 
 II.] ACCRETION OR ACCESSION. IO05 
 
 of alluvion and dereliction, and where it is said to be applicable to 
 streams generally, Woolrych on Waters, marg. p. 46, no river is 
 navigable, in a common-law sense, above the point where the tide 
 ebbs and flows though it may be so in fact; and this rule has been 
 adopted in most of the American States. Angell on Water Courses, 
 § 542 et seq., and cases there cited. Whether a river is navigable, 
 in a technical common-law sense, or in the ordinary acceptation of 
 the term, or whether it is navigable or not, may become an import- 
 ant inquiry in cases touching the right of the public to use it as a 
 highway, and for commercial purposes. So, a like inquiry would be 
 pertinent in cases involving the ownership of the bed of the stream, 
 as between the government or those claiming under it and the 
 riparian proprietors, because, at common law, the bed of a river 
 belongs to the government so high up only as it is navigable in a 
 technical sense, that is, as far as the tide ebbs and flows; and above 
 that point it belongs to the riparian owners; each — where their 
 lands lie on opposite sides of the river — owning to the middle or 
 thread of the stream. But whether a river or other water is or is 
 not navigable can in no way affect the right of the riparian propri- 
 etor to such additions as may be made by alluvion or dereliction. 
 His right rests altogether on another and different foundation. The 
 facts to be ascertained are the local situation of the land and the 
 mode by which the increase has been added. If the land is con- 
 tiguous to the water and the addition is made slowly and insensibly, 
 his title to such addition is complete. In Municipality No. 2 v. 
 Orleans Cotton Press, 18 La. Rep. 122, it was decided that the right 
 to future alluvial formation was a vested right inherent in the prop- 
 erty, and an essential attribute of it, resulting from natural law, in 
 consequence of the local situation of the land to which it attaches, 
 and that it was an accessory to the principal estate or land, which 
 cities as wel.1 as individuals might acquire, jure alluvionis, as owner 
 of the front or riparian proprietor, and that the right was founded 
 in justice, arising from the risks to which the land was exposed, and 
 from the burden of keeping up levees or embankments in front of 
 the river to protect the estate. And in Banks v. Ogden, supra, the 
 Supreme Court of the United States said: "The rule governing 
 additions made to land bounded by a river, lake or sea has been 
 much discussed and variously settled by usage and by positive law. 
 Almost all jurists and legislatures, however, both ancient and mod- 
 ern, have agreed that the owner of the land thus bounded is entitled 
 to these additions. By some the rule has been vindicated on the 
 principle of natural justice, that he who sustains the burden of 
 losses and repairs, imposed by the contiguity of waters, ought to
 
 
 1006 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 receive whatever benefits they may bring by accretion; by others it 
 is derived from the principle of public policy, that it is the interest 
 of the community that all land should have an owner, and most con- 
 venient that insensible additions to the shore should follow the title 
 to the shore itself. 
 
 The testimony in the record brings the case before us clearly 
 within the rules of law to which we have referred. The conclusion, 
 therefore, is that the appellant acquired title to the derelict land 
 under the conveyance from Bonnell, and that consequently the 
 decree must be affirmed. 
 
 halsey v. Mccormick. 
 
 18 New York, 147. — 1858. 
 
 Pratt, J. — It was settled by this court, when this cause was 
 before it upon a former occasion, that the plaintiff's south line did 
 not originally extend to the centre of the creek, but only to the line 
 of low water on the north bank. Assuming this to be settled, the 
 plaintiff does not claim that, as the creek originally ran, the land in 
 dispute was embraced within the boundaries of his lot. But if I 
 understand it, he claims that the land in dispute is alluvion, and he 
 is entitled to it as a riparian owner. But to acquire title to land as 
 alluvion it is necessary that its increase should be imperceptible — 
 that the amount added in each moment of time should not be per- 
 ceived. When the change is so gradual as not to be perceived in 
 any one moment of time, the proprietor, whose land on the bank of 
 a river is thus increased, is entitled to the addition. Ang. on Water 
 Courses, § 53; 2 Bl. Com. 262; 3 Kent, 519. 
 
 It is enough that no such fact is found in this case as that this 
 piece of ground is alluvion — that it was formed by imperceptible 
 accretion. The evidence shows that it was not thus formed. Mc- 
 Cormick deepened the bed of the stream on the south side, and 
 placed stones along the centre so as to confine the water in the 
 channel thus deepened, and by this means the land in question was 
 left bare. He may have been guilty, by these acts, of a violation 
 of the riparian rights of the plaintiff or his grantors, but I know of 
 no rule of law which would constitute an illegal act of the kind a 
 transfer of the title. 
 
 As the < ase stands, it is not necessary to pass upon the question 
 whether then: is a distinction between the case of alluvion formed 
 by natural or artificial means. I find no such distinction in the 
 books. If, by some artificial structure or impediment in the stream,
 
 III. i.] ADVERSE POSSESSION. . IOO7 
 
 the current should be made to impinge more strongly against one 
 bank, causing it imperceptibly to wear away, and causing a cor- 
 responding accretion on the opposite bank, I am not prepared to say 
 that the riparian owner would not be entitled to the alluvion thus 
 formed, especially as against the party who caused it. 
 
 If the accretion was formed under all the other circumstances 
 necessary to constitute it alluvion, I can scarcely suppose that a 
 person could successfully resist the otherwise valid claim of the 
 riparian owner, by alleging his own wrong, by showing that the 
 accretion would not have thus formed if he had not himself wrong- 
 fully placed impediments in the stream. But that question is not 
 before us. It is enough that this case does not show that the land 
 in question was alluvion. 
 
 The judgment, therefore, must be affirmed, with costs. 
 
 III. Title by adverse possession. 1 
 
 1. Preliminary Considerations. 
 a. Mere possession as a title. 
 SHERIN v. BRACKETT. 
 
 36 Minnesota, 152. — 1886. 
 
 Berry, J. — This is an action in the nature of ejectment, in which 
 the plaintiffs, seeking to recover possession of a strip of land, alleged 
 that on October 1, 1885, and long before, they were and now are 
 owners thereof; and further that they and their ancestors, from 
 whom they derive title, have been in the actual, peaceable, open, 
 notorious, adverse, and continuous possession thereof for more than 
 twenty-five years prior and up to October 8, 1885; that on that day* 
 while they were in such actual possession, defendant unlawfully 
 entered upon said strip of land and wrongfully ejected them there- 
 from, and ever since wrongfully detains possession thereof. 
 
 Doubtless the intent of the pleader was to set up title in fee based 
 
 1 This is not. in and of itself, a complete and perfect title. It arises on a dis- 
 seisin or ouster of the true owner, and consists in an adverse holding subse- 
 quent thereto, and is good as against all the world, except the true owner, or 
 one claiming under him; it may become perfect by an estoppel or by the opera- 
 tion of a statute of limitations. See below and compare title by prescription 
 It is to be noted that immediately upon the disseisin the estate of the disseisee 
 is turned into a right of entry and later the right of entry may be tolled in 
 one way or another. The . disseisee then has a mere right of action, which 
 a statute of limitations may ultimately cut off. — Ed.
 
 T0O8 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 upon what is called adverse possession. But as the greater includes 
 the less, the complaint sufficiently pleaded actual possession at the 
 time of the defendant's alleged entry, so that if upon the trial the 
 plaintiffs failed to make out adverse possession, such as would give 
 them title as against the holder of the paper title, still, if they proved 
 actual possession, they might properly insist that they were within 
 the allegations of their complaint, and had made out a case as 
 against a mere trespasser. For as against one showing no title in 
 himself, possession is title. Wilder v. City of St. Paul, 12 Minn. 
 116, (192); Rau v. Minnesota Valley R. Co., 13 Minn. 407, (442); 
 Sedg. & W. Tr. Title Land, §§717, 718. 
 
 The evidence upon the trial below in the case at bar showed that 
 plaintiffs were in possession of the strip of land in controversy at 
 the time of defendant's entry upon it, and defendant gave no evi- 
 dence of any right or title in himself. In this state of the evidence 
 the plaintiffs were entitled to judgment, and hence the trial court 
 erred in dismissing the action at the close of the plaintiffs' testimony. 
 As this point is insisted upon by plaintiffs, it cannot be disregarded, 
 and so there must be a new trial. 
 
 This disposes of the present appeal, but, as we surmise, not of the 
 real merits of the controversy, and, therefore, with reference to a 
 new trial, we deem it expedient to determine certain other questions 
 raised upon the argument. 
 
 And, first, though there are a few cases which hold that the statu- 
 tory period of adverse possession, which will bar an action for the 
 recovery of land, may be made up by tacking together the periods 
 of the adverse possesson of several successive holders between whom 
 there is no privity, (see Scales v. Cockrill, 3 Head, 432; Stnith v. 
 Chapin, 31 Conn. 530; Davis v. Mc Arthur, 78 N. C. 357), the rule 
 laid down by the great majority of courts and by text-writers, and 
 supported by the weight of authority, and which must be regarded 
 as the true rule, is that privity between successive adverse holders 
 is indispensable. And this upon the principle that unless the suc- 
 cessive adverse possessions are connected by privity the disseisin of 
 the r < ; 1 1 owner resulting from the adverse possession is interrupted, 
 and during the interruption, though but for a moment, the title of 
 real owner draws to it the seisin or possession. Melvin v. Pro- 
 prietory, etc., 5 Mete. 15, (38 Am. Dec. 384); Haynes v. Boardman, 
 119 Mass. 414; McEntire v. Brown, 28 [nd. 347; Jackson v. Leonard, 
 <) Cow. 653; Wood, Lim. ^ 271; San Francisco v. Fuldc, 37 Cal. 349; 
 Crispen v. Hannavan, 50 Mo. 536; Shuffleton v. Nelson, 2 Sawy. 540; 
 Ang. Lim. 413, 414; Sedg. & W. 'IV. Title Land, §§ 740, 745-747; 
 Riggi v. Fuller, 54 Ala. 141.
 
 III. i.] ADVERSE POSSESSION. IOO9 
 
 Second. The privity spoken of exists between two successive holders 
 when the latter takes under the earlier, as by descent, for instance, 
 a widow under her husband, or a child under its parent, or by will 
 or grant, or by a voluntary transfer of possession. Leonard v. 
 Leonard, 7 Allen, 277; Hamilton v. Wright, 30 Iowa, 480; Jackson v. 
 Moore, 13 John. 513 (7 Am. Dec. 398); McEntire v. Brown, supra; 
 Weber v. Anderson, 73 111. 439; Wood, Lim. § 271; Sedg. & W. Tr. 
 Title Land, §§ 747, 748. 
 
 Third. While to operate as a bar, adverse possession must be con- 
 tinuous, continuity will not be interrupted by the possession, during 
 any part of its period, of one who occupies the premises as a tenant 
 of the alleged possessor. In such cases the tenant's possession is 
 that of his landlord. San Francisco v. Fulde, supra; Rayner v. Lee, 
 20 Mich. 384; Sedg. & W. Tr. Title Land, § 747. 
 
 Fourth. Possession, to be adverse, so as to bar an owner's right 
 of action, must be actual, open, continuous, hostile, exclusive, and 
 accompanied by an intention to claim adversely. Sedg. & W. Tr. 
 Title Land, § 731 et sea. 
 
 This is all which we deem it necessary to say in this case; for, as 
 there is to be a new trial, we forbear to comment upon the 
 evidence. 
 
 Order reversed, and new trial awarded. 
 
 b. Forcible entries and detainers. 
 PHELPS v. RANDOLPH. 
 
 147 Illinois, 335. — 1S93. 
 
 Craig, J. — The time for which the premises were leased had 
 expired when Phelps took possession and removed Randolph's cattle, 
 horses and other property from the lot or tract of land, and it is 
 claimed that he had the right to take possession of the property, 
 provided he could do so without a breach of the peace, while, on the 
 other hand, it is claimed that Randolph, being in the lawful pos- 
 session of the property, was entitled to hold that possession until 
 dispossessed in an action brought for that purpose. The court, on 
 the trial, instructed the jury, in behalf of the plaintiff [Randolph], 
 in substance as follows: 
 
 " The jury have nothing to do, in this case, with the question of 
 the ownership of the property in controversy. If they believe, from 
 the evidence, that the plaintiff was in possession of it, claiming the 
 right thereto as tenant of defendant, they should find that he was 
 
 LAW OF PROP. IN LAND — 64
 
 IOIO TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 entitled to retain such possession until deprived of the same by pro- 
 cess of law or by his own acts. 
 
 ' The jury are instructed that forcible entry does not necessarily 
 mean the taking of real estate from the possession of another by 
 breach of the peace. The taking of such property by opening a gate 
 and removing cattle or other stock therefrom, against the will of the 
 one occupying such property, is a forcible entry under the law. 
 
 " The jury are instructed that no one, not even the owner, has the 
 right to forcibly take real estate from the possession of another, no 
 matter how justly he may be entitled to it; and if the jury believe, 
 from the evidence, that the defendant forcibly took from the plain- 
 tiff the real estate in controversy, against the will of the plaintiff, 
 the jury should find the issue herein for the plaintiff." 
 
 The defendant requested the court to give the following instruc- 
 tions: 
 
 " A forcible entry, in the law, means an entry with such force and 
 violence as would amount to a breach of the peace. And in this 
 case, if you believe, from the evidence, that the defendant, in enter- 
 ing on the premises in question, did not use force and violence 
 amounting to a breach of the peace, then his entry was not a forcible 
 one, within the meaning of the law. 
 
 ; ' You are instructed that if you believe, from the evidence, that 
 the plaintiff, Randolph, on the 30th day of April, or the 3d of 
 May, 1890, rented the premises in question from the defendant for 
 the period of one year from that time, and paid him the sum of $100 
 as rent for said premises for such year, then it became the duty of 
 the plaintiff to surrender up the possession of said premises to the 
 defendant at the expiration of such year, and in such case the plain- 
 tiff would not be entitled to any notice to quit and surrender up such 
 possession to the defendant. And if you further believe, from the 
 evidence, that the plaintiff did not surrender up the possession of 
 said premises at the end of such year, then the defendant had the 
 right to peaceably enter into the possession of said premises, even 
 though they were still occupied by the plaintiff; and in such case, 
 if you believe, from the evidence, that the defendant peaceably 
 entered into possession of said premises and peaceably removed the 
 cattle of plaintiff therefrom, this the law gave him a right to do, 
 and you should, in such case, find the defendant not guilty." 
 
 But the court rcfus< id these and other like instructions prepared 
 by the defendant, and the decision of the court on the instructions 
 is tin- principal, and, indeed, the only, question of any importance 
 presented by t he record. 
 
 ( > 1 j r present statute provides, " that no person shall make an entry
 
 III. i.] ADVERSE POSSESSION. IOII 
 
 into lands or tenements except in cases where entry is allowed by 
 law, and in such cases he shall not enter with force, but in a peacea- 
 ble manner." Rev. Stat. chap. 57, § 1. The first section of the act 
 of 1845, entitled " Forcible Entry and Detainer," declared: " If 
 any person shall make an entry into any lands, tenements or other 
 possessions, except in case where entry is given by law, or shall make 
 any such entry by force, . . . such person shall be adjudged 
 guilty of a forcible entry and detainer," etc. It will be observed 
 that the two statutes are substantially alike, and hence any decision 
 of the court rendered under the statute of 1845 ' s applicable under 
 the present statute. 
 
 As early as 1837, in Atkinson v. Lester, 1 Scam. 407, it was held: 
 ' To constitute a forcible entry and detainer, under the statute, it is 
 not necessary that actual force and physical violence should be 
 used." The same doctrine was announced in Croff 'v. Ballinger, 18 
 111. 202. The court said: "To constitute forcible entry and 
 detainer, under our statute, it is not essential that the entry be made 
 with strong hand or be accompanied with acts of actual force or vio- 
 lence, either against person or property. If one enters into the pos- 
 sessions of another against the will of him whose possession is 
 invaded, however quietly he may do so, tne entry is forcible, in legal 
 contemplation. The word 'force,' in our statute, means no more 
 than the term vi et armis does at common law, — that is, with either 
 actual or implied force." In Smith v. Hoag, 45 111. 250, the same 
 question arose. It was there insisted the entry was not forcible, 
 because Scott, the landlord of the appellant, was the owner and had 
 the right to enter; that the owner may use all necessary force to 
 make an entry unless he commits a breach of the peace. But the 
 court held that under our statute of Forcible Entry and Detainer 
 actual violence amounting to a breach of the peace is not necessary 
 in any case. In Reeder v. Purdy, 41 III. 279, in passing upon the 
 statute, the court held that any entry is forcible, within the meaning 
 of the law, that is made against the will of the occupant. 
 
 From the authorities it is plain, under our statute, although Phelps 
 did not use force amounting to a breach of the peace, he is liable 
 under this form of action. Randolph, on going to Chicago on busi- 
 ness, left the pasture and his stock in the care of George Bermal, his 
 servant. At seven o'clock in the morning, in the absence of both 
 Randolph and his agent, Phelps, with a force of seven men, went to 
 the premises, and, without the knowledge or consent of Randolph 
 or his agent, entered the premises, drove out Randolph's stock and 
 removed all of his property, and took possession of the pasture and 
 fastened the gates, and upon Randolph's return refused to permit
 
 IOI2 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 him to enter upon the premises. In Wilder v. House, 48 111. 279, 
 where the landlord entered upon leased premises in the absence of 
 the tenant and removed his goods, it was held that such an entry 
 was unlawful, and the landlord was liable in an action for trespass. 
 So in Chapman v. Cawrey, 50 111. 513, it was held, although a tenant 
 may be holding over, yet if, during his temporary absence from the 
 premises, the entrance is closed against him, he has the right to 
 remove the obstruction by force and re-enter, and is not liable for a 
 criminal prosecution for so doing. In Doty v. Burdick, 83 111. 473, it 
 was held, to maintain forcible entry and detainer actual or construc- 
 tive force only is necessary. It was also held that the landlord has 
 no right to employ force and violence to regain possession, although 
 the adverse possession may be wrongful. 
 
 Much reliance is, however, placed in Fort Dearborn Lodge v. Klein, 
 115 111. 190. There may be expressions in the opinion in that case 
 which might be construed as favoring the position of appellant; but 
 that was an action of trespass where title to the premises involved 
 was in issue, and it was held that the plea of liberum tenementum was 
 a good plea in the action. In an action of forcible entry and deta ; ner 
 the question of title does not arise, and cannot be considered, as has 
 been held by this court in numerous cases. What was said in that 
 case in regard to our statute of Forcible Entry and Detainer was 
 obiter dictum, as the statute was not involved in the case. 
 
 If Randolph's term had expired, which the evidence tends to 
 show it had, Phelps had a complete remedy in an action of forcible 
 detainer, or ejectment, to regain possession of the premises, but he 
 had no right to take the law in his own hands and take possession 
 by force. No breach of the peace was committed, but the entry was 
 a forcible one, — one which the statute forbids. Where a person is 
 in possession of a tract of land, cultivating it or using it for pasture, 
 but not residing upon it, he is entitled to the same protection as 
 against an intruder, as he would be if he resided upon the land. His 
 absence from the land is not a license or invitation for any one to 
 enter, and an entry in the absence of the party in possession, against 
 his will, may be regarded as forcible, and in violation of the statute. 
 
 The instructions of the court substantially conformed to the law 
 as indicated, and we regard them correct. 1 
 
 1 For the New York Statute sec Code Civ. Proc, ^ 2233; N. Y. Penal Code, 
 
 ;'.' \'<- \'-7- - Ed.
 
 III. 2.] ADVERSE POSSESSION. IOI3 
 
 2. The Essentials of an Adverse Possession. 
 
 a. The possession must be actual and exclusive. 
 
 Shiras, J., in WARD v. COCHRAN. 
 150 United States, 597. — 1893. 
 
 No state statute has been referred to as regulating or defining 
 title by adverse possession, and, indeed, it is stated in the brief of 
 defendant in error that there is no such statute; but there is a 
 statutory provision that an action for the recovery of the title or 
 possession of lands, tenements, or hereditaments can only be 
 brought within ten years after the cause of such action shall have 
 accrued. 
 
 Our investigation, therefore, into the sufficiency of the special 
 verdict must be controlled by the principles established, in this 
 branch of the law, by the decisions of the courts, particularly those 
 of the Supreme Court of the State of Nebraska and of this court. 
 
 In French v. Pcarcc, 8 Conn. 439, 440, it was said that "it is the 
 fact of exclusive occupancy, using and enjoying the land as his own, 
 in hostility to the true owner, for the full statutory period, which 
 enables the occupant to acquire an absolute right to the land." 
 
 In Sparrow v. Hovey, 44 Mich. 63, a refusal of the court to charge 
 that, when the title is claimed by an adverse possession it should 
 appear that the possession had been " actual, continued, visible, 
 notorious, distinct, and hostile," but merely charging the jury that 
 the possession " must be actual, continued, and visible," was held 
 erroneous. In Pennsylvania, it has been repeatedly held that, to 
 give a title under the statute of limitations, the possession must be 
 " actual, visible, exclusive, notorious, and uninterrupted." John- 
 ston v. Irwin, 3 S. & R. 291; Mercer v. Watson, 1 Watts, 330, 338; 
 Over field v . Christy, 7 S. & R. 173. 
 
 In Jackson v. Berner, 48 111. 203, it was held that an adverse pos- 
 session sufficient to defeat the legal title, where there is no paper 
 title, must be hostile in its inception, and is not to be made out by 
 inference, but by clear and positive proof; and further, that the pos- 
 session must be such as to show clearly that the party claims the land 
 as his own, openly and exclusively. 
 
 In Foulk v. Bond, 12 Vroom, 41 N. J. Law, 527, 545, it was said: 
 " The principles on which the doctrine of title by adverse possession 
 rests are well settled. The possession must be actual and exclusive, 
 adverse and hostile, visible and notorious, continued and uninter- 
 rupted."
 
 IOI4 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 It was held in Cook v. Babcock, n Cush. 206, 209, that " when a 
 party claims by a disseisin ripened into a good title by the lapse of 
 time as against the legal owner, he must show an actual, open, 
 exclusive, and adverse possession of the land. All these elements 
 are essential to be proved, and failure to establish any one of them 
 is fatal to the validity of the claim." 
 
 In Armstrong v. Morrill, 14 Wall. 120, 145, this court, speaking 
 through Mr. Justice Clifford, said: " It is well settled law that the 
 possession, in order that it may bar the recovery, must be continuous 
 and uninterrupted as well as open, notorious, actual, exclusive, and 
 adverse. Such a possession, it is conceded, if continued without 
 interruption for the whole period which is prescribed by the statute 
 for the enforcement of the right of entry, is evidence of a fee, and 
 bars the right of recovery. Independently of positive statute law, 
 such a possession affords a presumption that all the claimants to the 
 land acquiesce in the claim so evidenced." Hogan v. Kurtz, 94 U. S. 
 773, is to the same effect. 
 
 The authorities in Nebraska are substantially to the same effect 
 on questions of title by adverse possession. 
 
 A leading case is Horbach v. Miller, 4 Neb. 31, 46, 48, in which it 
 was said that " the elements of a title are possession, the right of 
 possession, and the right of property; hence, if the adverse occupant 
 has maintained an exclusive adverse possession for the full extent of 
 the statutory limit the statute then vests him with the right of prop- 
 erty, which carries with it the right of possession, and therefore the 
 title becomes in him. . . . The submission of the case to the 
 jury correctly was that if they believed, from the evidence, that 
 the plaintiff in error, for ten years next before the commencement of 
 the action, was in the actual, continued, and notorious possession, 
 of the land in controversy, claiming the same as his own against all 
 persons, they must find for the plaintiff in error." In Gatling v. 
 Lane, 17 Neb. 77, 82, the language used was: " A person who 
 enters upon the land of another with the intention of occupying the 
 same as his own, and carries that intention into effect by open, 
 notorious, exclusive adverse possession for ten years, thereby dis- 
 seises the owner." In Parker v. Starr, 21 Neb. 680, 683, a recovery 
 was sustained where the testimony clearly showed that " the defend- 
 ant and those under whom he claims have been in the open, notori- 
 ous, and exclusive possession for ten years next before the suit was 
 brought." In Ballard v. Hansen, 3.5 Neb. 861, 864, the following 
 instructions, whh h had been given in the trial court, were approved 
 by the Supreme Court: ' The jury are instructed that adverse pos- 
 session, as relied upon by the plaintiffs in this action, is the open,
 
 III. 2.] ADVERSE POSSESSION. IOI5 
 
 actual, exclusive, notorious, and hostile occupancy of the land, and 
 claim of right, with the intention to hold it as against the true owner 
 and all other parties; such occupancy, if continuous for ten years, 
 ripens into a perfect title, after which it is immaterial whether the 
 possession be continued or not." " If you find and believe, from a 
 preponderance of the testimony in this case, that the plaintiff was 
 in the actual, open, notorious, exclusive, continuous possession of 
 any of the lots in controversy for ten years, claiming to own and 
 hold them as against all others, as to such lots he is entitled to 
 recover." 
 
 Tested by these definitions, it is obvious that if the title relied on 
 in this case, by the defendant below, was fully described and charac- 
 terized by the special verdict, it was defective in two very essential 
 particulars; in that it was not found to have been actual and exclu- 
 sive. A possession not actual, but constructive; not exclusive, but 
 in participation with the owner or others, falls very far short of 
 that kind of adverse possession which deprives the true owner of his 
 title. 
 
 Where a special verdict is rendered all the facts essential to entitle 
 a party to a judgment must be found, and a judgment rendered 
 on a special verdict failing to find all the essential facts is 
 erroneous. * * * 
 
 In the present case, even if the verdict were regarded as a general 
 one, and therefore entitled to be supported by the presumption that 
 sufficient facts existed to sustain it, yet we should feel constrained 
 to reverse the judgment, because of the errors complained of in the 
 eighth, ninth, and tenth assignments. 
 
 The plaintiff's counsel requested the court to charge the jury that, 
 in order that possession of land may overcome the title of the true 
 owner, "there must be a concurrence of the following elements: 
 Such possession must be actual, hostile, exclusive, open, notorious, 
 and continuous for the whole period of ten years. Every element in 
 this enumeration is absolutely essential, and if one of these elements 
 does not exist there can be no adverse title acquired;" and the 
 court did so charge; but the court then proceeded to say that, after 
 having disposed of the written instruction, " I propose to go outside 
 of what is there stated and give one on my own motion." Those 
 voluntary instructions given by the learned judge, though correct in 
 most respects, were imperfect in the very particulars in which we 
 have found the special verdict defective. The jury were not told 
 that, to make out the defense, the possession, in addition to certain 
 other features properly specified, must be shown to have been actual 
 and exclusive. * * *
 
 IOl6 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 b. It must be open, visible and notorious. 
 
 Scates, C. J., in McCLELLAN v. KELLOGG. 
 
 17 Illinois, 498. 
 
 The intent to assert title in himself by his son, may be clear 
 enough from the proof, for this must, be shown. Blunden v. Baugh, 
 3 Croke R. 302. But the doctrine of adverse possession is to be 
 taken strictly, and is not to be made out by inference, but by clear 
 and positive proof, Bonnell et al. v. Sharp, 3 John. R. 169: Rochelle 
 ads. Holmes, 2 Bay R. 491, and proof of actual ouster shown. 
 2 Espin. N. P. 9, old paging. The possession must be with such 
 circumstances as are capable in their nature of notifying to mankind 
 that he is upon the land, claiming it as his own. in person or by 
 tenant — it must be visible, open, exclusive, Irving v. Brownell, 11 
 111. R. 413; it must be hostile in its inception, and so continue, 
 Turney v. Chamberlain, 15 111. R. 273; and notorious; and not secret, 
 as this cannot answer the purpose of notoriety to adverse claimants, 
 cannot extinguish their claim for not being put in in due time. 
 Adams on Eject. App. 485; Angell on Limit. 400, § 4, p. 416, § 13, 
 p. 427, § 19. For the law proceeds upon the presumption of an 
 acquiescence, which cannot be where the possession and claim are 
 unknown ; and the acts of possession are such as not to give notoriety 
 to it. Id. 
 
 c. It must be with hostile intent. 
 AYERS v. REIDEL. 
 
 84 Wisconsin, 276. — 1893. 
 
 Ejectment. Plaintiff and defendant owned adjoining parcels of 
 land. Defendant built a fence through the forest as he opened up 
 his land lying near the boundary and has occupied up to the fence 
 for more than twenty years. A survey now shows that he had 
 enclosed a portion of plaintiff's land. Judgment for plaintiff. 
 Defendant appeals. 
 
 PlNNEY, J. — * * * It is contended that the court erred in 
 refusing to direct a verdict for the defendant — first, on the ground 
 that the undisputed evidence showed that the defendant had held 
 < ontinuous and adverse possession of the premises under claim of 
 title for more than twenty years before the commencement of the 
 a. t ion ; ami, second, that it conclusively appeared that the boundary
 
 III. 2.] ADVERSE POSSESSION. IOI7 
 
 line in question had been settled by acquiescence more than fifteen 
 years before the action was brought. What constitutes adverse 
 possession is for the court to determine, but the facts which establish 
 it are for the jury, and the question of the character of the possession 
 is generally submitted to them. Gross v. Welwood, 90 N. Y. 638. It 
 was for the jury to say what was the real character of the defendant's 
 possession of the strip in dispute, and whether it was taken and 
 maintained with an intention by the defendant to oust the true 
 owner, — whether it was adverse to him in fact. To constitute 
 adverse possession there must be the fact of possession and the 
 hostile intention, — the intention to usurp posession; and, if there 
 be possession of land by one not the true owner, the presumption 
 of law is that such possession is in accord or amity with, and 
 in subservience to, the true title and legal possession of the owner. 
 Dhein v. Beuscher, 83 Wis. 316; Schwallback v. C, M. 6° St. P. R. 
 Co., 69 Wis. 298; Hacker v. Horlemus, 74 Wis. 21; Harvey v. 
 Tyler, 2 Wall. 349. The whole inquiry is reduced to the fact of 
 entering, and the intention to usurp possession. Probst v. 
 Trustees, 129 U. S. 191, 192. Permissive possession is never 
 a basis for the statute of limitations, and the rule is that evi- 
 dence of adverse possession must be strictly construed, and 
 every presumption is in favor of the true owner, and that the 
 defendant entered under his conveyance, and that his possession is 
 only co-extensive with his title, and restricted to the premises 
 granted by it. Sydnorv. Palmer, 29 Wis. 252; Graeven v. Dieves, 
 68 Wis. 317; Fair field 'v. Barrette, 73 Wis. 468. The instructions of 
 the Circuit Court on the question of adverse possession were as 
 favorable to the defendant as the law would justify, and the jury 
 were properly instructed that, " whether the defendant's possession 
 was adverse depended upon the quo animo with which he entered 
 upon the land; whether it was to hold it adversely, or whether it 
 was merely tentative or provisional, depending upon where the true 
 line should be afterward ascertained to be." Whether the entry 
 of defendant, and his continued possession, were an ouster of the 
 plaintiff and his grantor, or were merely in subordination to the 
 plaintiff, or permissive, was a question of fact for the jury. Hacker 
 v. Horlemus, 74 Wis. 25. * * * 
 
 The jury, in view of all the facts and circumstances, might well 
 say that the old fence was not intended as a permanent boundary, 
 but was built and maintained as a matter of convenience until the 
 true line should be ascertained, and that the defendant's posses- 
 sion of the strip in question had not been adverse for twenty years 
 before the suit was commenced. While possession, occupation, and
 
 I0l8 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 improvements for several years, with the knowledge of the true 
 owner, may ht prima facie evidence of adverse possession, yet they 
 are not conclusive, and may be explained and rebutted by proof of 
 facts showing that the possession was not in fact adverse, Worcester 
 v. Lord, 56 Me. 265; Dow v. Mc Kinney, 64 Me 138; Lamb v. Coe, 
 15 Wend. 642; that it was permissive or provisional, and without the 
 intention in fact of claiming or acquiring title. 
 
 BARNES v. LIGHT. 
 116 New York. 34. — 1889. 
 
 Ejectment. Plaintiff relies on a title acquired by adverse pos- 
 session. Judgment for defendant. Plaintiff appeals. 
 
 Vann, J. — * * * Whether the portion north of the woods was 
 protected by a substantial enclosure, and whether it has been usually 
 cultivated or improved within the meaning of the statute, were ques- 
 tions of fact which the jury should have been permitted to pass upon. 
 The defendant, however, contends that it does not appear that the 
 plaintiff or his grantors ever claimed this strip of land, or any part 
 of it. There is no evidence that any claim of title was made by 
 word of mouth, but it appears that each grantee in taking possession 
 of the farm, under his deed, entered upon, actually occupied and 
 improved the land in controversy, or a part of it, although it was not 
 included in his conveyance. This, if done in good faith, was enough 
 to satisfy the statute. A claim of title may be made by acts alone, 
 quite as effectively as by the most emphatic assertions. As was 
 said by the chancellor, when speaking for the Court of Errors in La 
 Fromboisv. Smith, 8 Cow. 589, 603: 'The actual possession and 
 improvement of the premises, as owners are accustomed to possess 
 and improve their estates, without any payment of rent, or recog- 
 nition of title in another, or disavowal of title in himself, will, in the 
 rice of all other evidence, be sufficient to raise a presumption of 
 his entry and holding as absolute owner, and unless rebutted by 
 ■ evidence, will establish the fact of a claim of title. Pos 
 session, accompanied by the usual acts of ownership, is presumed 
 I 1 be adverse until shown to be subservient to the title of another. 
 
 We think that the refusal of the court to submit to the jury the 
 question " whether the plaintiff had not had such adverse possession 
 of the premises < laimpd in the complaint, lying north of the woods, 
 to give him title thereto," as requested by the counsel for plain- 
 tiff, was error, and calls for a reversal of the judgment.
 
 III. 2.] ADVERSE POSSESSION. IOI9 
 
 DOHERTY v. MATSELL. 
 
 119 New York, 646. — 1890. 
 
 Action to recover the possession of real estate. The city had 
 leased the lands for twenty-five years on account of non-payment 
 of taxes. The tax sale has been held void. Plaintiff seeks now to 
 recover the land. Judgment for plaintiff. Defendant appeals. 
 
 Per curiam: It is undoubtedly true that for irregularities in 
 the imposition of the taxes and in the proceedings leading to the 
 tax sale the lease was void. But Matsell entered under the lease, 
 and his right to hold under it does not appear ever to have been 
 disputed. While under such a lease he was not estopped from dis- 
 puting the title of the real owners, and while during the term he 
 could have originated an adverse possession, yet he did not do so; 
 and the lease, although void, was competent and persuasive evidence 
 that he entered into and held possession of the land under the lease, 
 and that he claimed no other title thereto. In order to establish 
 title by adverse possession, it was incumbent upon the defendants 
 to show that they and their grantors held the land adversely and in 
 hostility to the true owner, claiming the entire title thereto. Hoyt 
 v. Dillon, 19 Barb. 644; St. Vincent Orphan Asylum v. City of Troy, 
 76 N. Y. 108; Gross v. Wellwood, 90 Id. 638; Sands v. Hughes, 53 
 Id. 287. 
 
 Possession of land is always presumed to be in subordination to 
 the true title, and one who claims that it is in hostility to such title 
 must give evidence showing that fact or from which the fact may 
 properly be inferred. 
 
 Here the evidence and circumstances were ample to justify a 
 finding that Matsell, Sr., never, during the time he possessed the 
 land, claimed to own anything more than the estate which the lease 
 purported to give him, and that the land was never possessed 
 adversely and in hostility to the true owners prior to the 1st day of 
 November, 1864. The quitclaim deed to Mickle was an appropriate 
 instrument for the conveyance of Matsell's interest in the term, and 
 the assignment at the same time of the lease, subject to the rents 
 and covenants therein contained, authorizes, if it does not absolutely 
 require, the inference that all that Matsell intended to convey was 
 his term under the lease. The fact that he resumed possession of 
 the premises in 1858, without, so far as it appears, any reconveyance 
 to him, certainly is not conclusive evidence that he intended then 
 to assert an absolute title to the land; but the inference is permis- 
 sible and most probable that there was either an undisclosed recon-
 
 1020 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 veyance to him by Mickle or some arrangement between Mickle and 
 him by which he was to resume his former title. It must be pre- 
 sumed, in the absence of other proof, that he occupied the premises 
 then as he did before the conveyance to Mickle, and as Mickle did. 
 He knew the existence of the lease and that he had no right to 
 occupy the premises except by virtue thereof, and there can be no 
 presumption that he intended without any title or right to acquire 
 by simple possession the title to this land, and thus without a shadow 
 of right deprive the true owners thereof. 
 
 If the adverse possession of these premises commenced at any 
 time before the expiration of the lease from the city, the evidence 
 authorized a finding that it commenced not earlier than the ist day 
 of November, 1S64, when Matsell conveyed to his son. The defend- 
 ants admit that at the time of the conveyance of the land to Charles 
 Jones they claimed the adverse possession under that title, and, 
 therefore, it was proper that this action should be commenced in the 
 name of the grantors for the benefit of their grantee, under section 
 105 1 of the Code. 
 
 The case of Sands v. Hughes, supra, is not an authority for the 
 defendants. The case holds that a lessee under such a lease is not 
 estopped from disputing the title of the supposed owner for whose 
 default, in the payment of the taxes, the land was sold by the city, 
 and that, during the term of such a lease, even if valid, an adverse 
 possession may be originated which will ripen into a title within 
 twenty years after the end of the term; and that if the lease is 
 invalid an adverse possession may originate and commence to run 
 at any time which will ripen into a title within twenty years from 
 the time it originated. There the adverse possession under claim of 
 title was found. But the difficulty with the case of the defendants 
 here is that there is no evidence requiring or finding that Mickle 
 or George W. Matsell ever originated an adverse possession or 
 claimed an adverse title earlier than the ist of November, 1864, and 
 the defendants, therefore, faded at the trial, as they must fail here, 
 on the ground that they did not establish the adverse possession 
 upon which they seek to base their title. But for the lease the evi- 
 dence was ample to show the adverse possession. But the existence 
 of that, whether valid or invalid, and the entry thereunder character- 
 izes tli<; possession, and must properly dominate this case. 
 
 We are, therefore, of opinion that the judgment should be 
 affirmed, with costs.
 
 III. 3-J ADVERSE POSSESSION. 1021 
 
 3. What Lands Will be Deemed to be Held Adversely. 
 
 a. When no color of title in disseisor.'' 
 
 PROPRIETORS OF THE KENNEBECK PURCHASE v. 
 SPRINGER. 
 
 4 Massachusetts, 416. — 1S0S. 
 
 Parsons, C. J. — The demandants sued the tenant in a writ .of 
 entry, counting on their own seisin within thirty years, and demand- 
 ing the northerly half of lot number thirty-two in the second range 
 of lots, of which they had been disseised by the tenant. On the 
 trial, upon the general issue, the jury found a verdict for the demand- 
 ants; and the tenant moves for a new trial, because, as he supposes, 
 the verdict was against evidence, which is reported by the judge. 
 
 The tenant's title was under a release from James Springer, who 
 as the tenant alleges, entered more than thirty years before, and 
 disseised the demandants; for no evidence was given that James 
 entered claiming any title or right to the land. 
 
 The statute of 1786, c. 13, limits the time of suing any real action 
 by a corporation, declaring on its own seisin, to thirty years next after 
 such seisin. And the tenant insists that, by virtue of this statute, 
 the demandants are barred by the disseisin done to them by his 
 releasor in 1775, which is more than thirty years before the test of 
 their writ. 
 
 The law upon this subject seems to be very well settled. When a 
 man is once seised of land, his seisin is presumed to continue, until 
 a disseisin is proved. When a man enters on land, claiming a right 
 or title to the same, and acquires a seisin by his entry, his seisin 
 shall extend to the whole parcel, to which he has a right; for, in this 
 case, an entry on part is an entry on the whole. When a man, not 
 claiming any right or title to the land, shall enter on it, he acquires 
 no seisin but by the ouster of him who has seised and he is himself 
 a disseisor. To constitute an ouster of him who was seised, the 
 disseisor must have the actual exclusive occupation of the land, 
 claiming to hold it against him who was seised, or he must actually 
 turn him out of possession. When a disseisor claims to be seised by 
 his entry and occupation, his seisin cannot extend further than his 
 actual exclusive occupation; for no further can the party seised be 
 
 1 But in some States entry, with claim of title up to certain boundaries, will lay 
 the foundation for an adverse title to the whole tract, though only part be actu- 
 ally occupied and there be no color of title. Fitch v. Mann, 8 Pa. St. 503. — Ed.
 
 1022 TITLE BY ORIGINAL ACQUISITION. [PT. VI. C1I. I. 
 
 considered as ousted; for the acts of a wrongdoer must be con- 
 strued strictly, when he claims a benefit from his own wrong. 
 
 Let us now consider the evidence as applicable to these principles. 
 The demandants proved a title to the tenements demanded and a 
 seisin in 1769. This seisin must be presumed to be continued until 
 they were disseised, as they continued to claim title to the land. 
 James Springer entered on the front lot, numbered thirty-two, in 1775. 
 He continued in the occupation of that lot, improving and fencing a 
 part, and living on it until he died; having, in the year he entered, 
 cause it to be run round by a surveyor, and trees marked on the 
 lines. This land is not demanded. But the notherly half of lot 
 numbered thirty-two on the second range is demanded. And it 
 appears that when he surveyed the front lot in 1775, he at the same 
 time caused the demanded premises to be run round by the surveyor, 
 and the lines marked. There is no evidence that he ever fenced any 
 part of the land demanded until 1792, which is within thirty years, 
 or exercised any act of ownership on it, except that he sometimes 
 cut the grass on a small meadow which was part of it. Having 
 fenced a part in 1792, he conveyed the premises to the tenant, who 
 entered and has occupied the same under his deed ever since. 
 
 On considering the evidence, we are satisfied that the demandants 
 were not disseised until 1792, by the entry of the tenant; that the 
 running round the land by a surveyor, and marking the lines by the 
 direction of one who claims no title to the land, is not such an 
 exclusive occupation of the land, as can amount to an ouster or 
 disseisin of the demandants. Neither can the occasional cutting of 
 the grass on the meadow by Springer, who does not appear to have 
 claimed the land, amount to a disseisin. 
 
 To constitute a disseisin of the owner of uncultivated lands by the 
 entry and occupation of a party not claiming title to the land, the 
 occupation must be of that nature and notoriety, that the owner may 
 be presumed to know that there is a possession of the land adverse 
 to his title; otherwise a man maybe disseised without his knowl- 
 edge, and the statute of limitations may run against him, while he 
 has no ground to believe that his seisin has been interrupted. 
 
 As the tenant set up no title prior to 1792, but relied entirely on 
 the statute as a bar, and as it appears to us, from the facts reported, 
 that the demandants were seised within thirty years next before the 
 teste of their writ, we are of opinion that the conclusion made by 
 the jury from the evidence in the cause was legal, and that their 
 verdid must stand.
 
 HI. 3.] ADVERSE POSSESSION. IO23 
 
 b. When disseisin is under color of title. 
 STULL v. RICH PATCH IRON CO. 
 92 Virginia, 253. — 1895. 
 Ejectment by the Rich Patch Iron Co. against Stull. 
 
 Buchanan, J. — Upon the first trial of this cause, which is an 
 action of ejectment, there was a verdict in favor of the defendant 
 in the court below, the plaintiff in error here. That verdict was set 
 aside upon the motion of the plaintiff, the defendant in error. To 
 this action of the court the defendant excepted. Upon the next 
 trial, the jury failed to agree, and upon the third and last trial the 
 plaintiff company demurred to the evidence. In this demurrer the 
 court required the defendant to join, and, upon consideration, gave 
 judgment in favor of the plaintiff for the land in controversy, except 
 some twenty acres, which the plaintiff admitted it had no right to 
 recover. 
 
 From the action of the court in setting aside the verdict upon the 
 first trial, and in rendering judgment in favor of the plaintiff on 
 the demurrer to the evidence upon the last trial, this writ of error 
 was awarded. 
 
 The facts were substantially the same upon both these trials, and 
 it is conceded that if the judgment in favor of the plaintiff upon the 
 demurrer to the evidence was erroneous, then its action in setting 
 aside the verdict of the jury upon the first trial was also erroneous. 
 
 It is admitted that the plaintiff connected itself with the Common- 
 wealth by a regular chain of title to the land in controversy, and had 
 the right to recover, unless the defendant made good his defense of 
 adverse possession for more than fifteen years prior to the institution 
 of this action. 
 
 The defendant, to make out his defense under the statute of limi- 
 tations, introduced in evidence a deed from R. N. Weir and wife, 
 dated May 26, 1834, to John Deeds, Sr., for the tract of land in con- 
 troversy, described by metes and bounds, and represented as con- 
 taining one hundred and seventy eight acres, though in fact it oniy 
 contained one hundred and nineteen acres. The defendant con- 
 nected himself with the Weir title by a regular chain of conveyances, 
 but it does not appear that Weir and wife had any title to the land 
 by their deed, which lies wholly within the boundaries of the plain- 
 tiff's survey. Deeds, the vendee of Weir and wife, took possession 
 of the land under his deed, cleared and fenced a few acres, claiming 
 title to the whole boundary embraced by his deed. Additional land 
 was cleared from time to time, so that at the time of the trial there
 
 1024 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 were about twenty acres cleared and under fence. The defendant, 
 and those under whom he claims, have continuously held and culti- 
 vated the cleared land from the time Deeds took possession in 1834, 
 claiming title to the whole boundary embraced by the deed from 
 Weir and wife. They also cut rail-timber upon the wooded land 
 adjoining the cleared land, with which to build and repair fences 
 upon the land; but a large part of the boundary remained entirely 
 in a state of nature. 
 
 At the time Deeds purchased the land in controvrsy and took pos- 
 session under his deed, no one was in the actual possession of any 
 portion of the plaintiff's 9,000-acre survey, claiming under that title. 
 Afterwards, in the year 1842, David Wilson, who was then the owner 
 of the plaintiff's survey, placed a tenant upon the land, and soon 
 afterwards placed other tenants upon it. From the year 1842 to the 
 institution of this action, the plaintiff, and those under whom he 
 claims, have had one or more tenants upon the large survey outside 
 of the lands in controversy, but never had any one upon, nor exer- 
 cised any acts of ownership over, the land in controversy. 
 
 Upon this state of facts, the Circuit Court was of opinion that the 
 defense of adversary possession had not been made out, except as 
 to that part of the land which was under fence, and which the plain- 
 tiff admitted it had no right to recover. 
 
 It is settled in this State that when a person, having colorable 
 title, enters upon vacant land, claiming title to the whole tract 
 covered by his title papers, his possession is co-extensive with his 
 boundaries, and this is true although the title conveyed by the writ- 
 ing under which he claims is worthless. Creekmur v. Creekmur, 75 
 Va. 431, 439; 1 Lomax, Dig. 797; 2 Minor's Inst. 481, 4th ed. 
 
 In Taylor v. Burnsides, 1 Gratt., at pages 191-2, Judge Baldwin 
 says, " that the adverse claimant entering and holding under a 
 colorable title, for example, a patent, deed, or other document, upon 
 a vacant possession, gains the actual possession to the extent of his 
 boundaries," and this doctrine, " is sustained by numerous authori- 
 ties, and contradicted by none that I have seen." 
 
 In Overton's Heirs v. Davisson, 1 Gratt. 223-4, the court said: 
 ' The court is further of opinion that where the land in controversy 
 is embraced by conflicting grants from the Commonwealth to 
 different persons, and the junior patentee enters thereupon and 
 and holds actual possession of any part thereof, claiming title 
 to the whole under his grant, that such adversary possession of part 
 of the land in controversy is an adversary possession of the whole, 
 to the e\t<-nt of the limits of the younger patent; and to that extent 
 is an ouster of the seisin or possession of the older patentee, if the
 
 III. 3.] ADVERSE POSSESSION. 1025 
 
 latter has had no actual possession of any part of the land within 
 the limits of his grant." 
 
 Jn such a case, that is, where the true owner has only constructive 
 possession, never having entered upon his land, " if the junior 
 claimant," says Judge Lee, in delivering the opinion of this court in 
 Koiner v. Rankin, 11 Gratt. 427, "settle upon the land within the 
 interlock, claiming title to the whole within his boundary, he thereby 
 ousts the senior patentee of his constructive possession, and becomes 
 actually possessed to the extent of his grant," and cites several 
 Kentucky cases with approval, among them the case of Fox v. 
 Hinton, reported in 4 Bibb 559, which holds that where " two 
 patents interfere in part, and, before possession is taken under the 
 elder patent, the junior patentee enters upon the land within the 
 interference, with an intention to take possession, he shall be con- 
 strued to be in possession to the extent of his claim," In discussing 
 the question, on page 560, the Kentucky court said: " There is no 
 doubt that, according to the settled doctrine of the common law, a 
 person might, by entering upon a part of a tract or parcel of land in 
 the name of the whole, gain the possession of the whole, where the 
 possession was at the time of making such entry vacant." 
 
 In Cline's Heirs v. Catron, 22 Gratt., at page 392, this court said 
 upon the subject, that "to be actual, the visible occupancy and 
 improvement of a part of the land in controversy is an actual pos- 
 session of the whole to the limits of the claim under which it is held, 
 and ousts or interrupts the legal seisin incident to the patent of the 
 senior grantee." 
 
 The possession thus acquired by the junior claimant when he 
 enters upon the land in controversy, improving and cultivating a 
 part, and claiming title to the whole, is an actual possession of the 
 whole land within his boundary. And whilst such possession, as 
 was said by Judge Baldwin, in Taylor v. Burnsides, cited above, may 
 be more manifest as to a part than as to the rest, yet, in reference 
 to the whole, possession of part is possession of the entire tract. 
 Thus the real apparent owner, dwelling on his farm, is as truly in the 
 actual possession of his woods and waters as of his pastures, fields 
 and gardens. What is the whole is to be determined by the limits 
 owned or claimed. An intruder, without color of title, is of neces- 
 sity confined to his mere enclosure. There must be limits to his 
 possession, and these are all he can have. Such enclosures, how- 
 ever, are not the boundaries of the real or apparent owner; his 
 marked or described abuttals show the extent not merely of his 
 claim, but of his exclusive sway. The possession, therefore, of the 
 junior claimant in such a case is both actual and exclusive; and if
 
 1026 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 such possession be not abandoned during the statutory period by 
 the junior claimant, or he be not actually ousted of such possession 
 by the entry upon and actual possession of some part of the land in 
 controversy by the claimant under the senior grant, during that 
 period, his title becomes perfect. 
 
 In this case, when the claimant under the deed from Weir and wife 
 entered, in the year 1834, upon the 119-acre tract of land, enclosing 
 and cultivating a part, and claiming title to the whole, his possession 
 was co-extensive with his boundaries, there being at that time no 
 one claiming under the plaintiff's title in the actual possession of 
 any part of his survey. The claimant under the Weir title having 
 thus ousted or disseised the claimant under the plaintiff's title, he 
 was in the actual adverse possession of the whole boundary claimed 
 by him, and the statute of limitations then commenced to run in his 
 favor, not only as to that part of the land which he had enclosed, 
 but as to all his tract. 
 
 Before the period had elapsed necessary to make good the title of 
 the junior claimant under the statute of limitations, those under 
 whom the plaintiff claims entered upon, and took actual possession 
 of, the plaintiff's survey, outside of the land in controversy. This 
 entry and possession, it is most earnestly contended by the counsel 
 of the plaintiff, operated to oust or dispossess the claimant under 
 the Weir title of the whole of the land in controversy, except that 
 part which was enclosed. 
 
 We are referred to cases decided by the Supreme Court of the 
 United States and the highest courts of Pennsylvania and of other 
 States, as sustaining this view. The decisions of the Supreme Court 
 of the United States upon questions of land titles follows the deci- 
 sions of the courts of the States respectively in which the land in con- 
 troversy is located, and are, therefore, for the most part, based upon 
 local statutes and decisions. For, as was said by Mr. Justice Cat- 
 ron, in White v. Burnly, 20 Howard, at page 251, " We have 
 endeavored carefully to follow the doctrine of the Supreme Court 
 of Texas in this opinion, because we are bound to follow the settled 
 adjudications of the State in cases affecting titles of land there." 
 Supervisors v. United States, 18 Wall, at page 82; Balkatn v. Wood- 
 stock Iron Co., 154 U. S. 177, 187. 
 
 If, therefore, the question now under consideration were an open 
 question in this State, we could gain but little aid from the decisions 
 referred to unless we knew that they were based upon statutes similar 
 to \ 2740 of our Code, which provides that "in a controversy 
 . 1 1 1 < • ' 1 ing real 1 state, possession of part shall not be construed as pos- 
 session of the whole, where actual adverse possession can be proved."
 
 III. 3-] ADVERSE POSSESSION. IO27 
 
 But the question involved in this case, we think, was raised and 
 decided in this State as far back as 1844, in the case of Taylor v. 
 Burnsides, reported in 1 Gratt. 165. 
 
 The judgment of the court in that case, in which all the judges 
 sitting concurred, beginning at page 209, says: ' The court is of 
 opinion that the instruction given by the said Circuit Court to the 
 jury on the trial of the cause ought not to have been given, but 
 that, in lieu thereof, the said Circuit Court ought to have instructed 
 to the effect following." Then follow five instructions which the 
 court declares ought to have been given. The fourth and fifth of 
 these instructions are as follows: 
 
 " 4. The tenant cannot sustain his said defense of continued 
 adversary possession, if it shall appear from the evidence, that the 
 demandants, or those under whom they claim, did, within said period 
 of twenty-five years, enter upon the land in controversy, and take 
 actual possession thereof by such means as are mentioned in the 
 second instruction. 
 
 " 5. That such entry of the demandants, or those under wnom 
 they claim, upon, and possession of, the land within their older 
 grants, not embraced by the younger grant of the tenant, could not 
 have the effect of an entry upon and possession of the land in con- 
 troversy." 
 
 This latter instruction holds that an entry upon and possession of 
 the land within the older grant, not embraced within the younger 
 grant, does not have the effect of an entry upon and possession of 
 the land in controversy where the junior patentee had, prior to that 
 time, entered upon and was then actually occupying part of the land 
 in controversy by building, clearing, cultivating, or enclosing it, 
 claiming title to the whole. 
 
 This view must necessarily follow, since, under our decisions, the 
 entry of the junior claimant upon the land in controversy, and his 
 occupancy thereof by building, clearing, cultivating, or enclosing a 
 part, and claiming title to the whole — the claimant under the senior 
 patent not then being in actual possession of any part of his tract — 
 gives the junior claimant actual and exclusive possession of his whole 
 boundary The possession of the claimant under the junior title, 
 being an actual adversary possession, to the whole extent of his 
 boundary, the entry and actual possession of the claimant under the 
 senior grant, of lands outside of the lands in controversy would not 
 have the effect of ousting or disturbing the claimant under the junior 
 title as to any part of his tract. The entry, to be good for such 
 purpose, must be made upon the land in controversy; for to oust an 
 actual possession there must be an entry upon that possession. This
 
 1028 TITLE BY ORIGINAL ACQUISITION. [FT. VI. CH. I. 
 
 was expressly held in Fox v. Hinton, 4 Bibb, 559-60, referred to 
 above, and cited with approval by Judge Lee in Koiner v. Rankin. 
 
 If the subsequent entry of the claimant under the senior grant on 
 his tract, outside of the land in controversy, would have the effect 
 of ousting the claimant under the junior grant of any part of his 
 boundary, then he might be ousted or dispossessed not only without 
 his knowledge, but without any means of acquiring knowledge, and 
 without even knowing that any person other than himself claimed 
 title to the land. Under the loose system of granting lands in force 
 at an early day in this State, it is well known that the same land was 
 frequently granted to two or more persons, without any fault upon 
 their part. The claimant under the junior grant, thinking that he 
 had good title to the land, entered upon and actually occupied a part, 
 claiming title to his whole tract. He afterward sells it for a full 
 price, and his vendee takes a like possession and makes a like claim 
 to the whole tract; and thus the land may be held, as in this case, 
 for fifty years or more. The claimant under the senior grant then 
 brings his action to recover the land embraced in the boundaries of 
 the junior grant. Upon the trial of the case, the claimant under the 
 junior grant learns for the first time that the senior grantee, or those 
 who claim under him, had, before the statute of limitations had run 
 in favor of those claiming under the junior grant, entered upon a 
 part of the land embraced in the boundaries of the senior grant, five 
 or may be twenty miles away, for these grants frequently contained 
 from 100,000 to 500,000 acres, and had cleared and cultivated a few 
 acres, claiming title to the whole tract. To allow a plaintiff to 
 recover under such circumstances would work the grossest injustice 
 to the claimants under the junior title. 
 
 The claimant under the senior patent knows, or ought to know- 
 his own boundaries, and that another has settled within them, claim, 
 ing and exercising dominion over the land in controversy, and if 
 under these circumstances he remains quiet, allows the claimant 
 under the junior grant to believe he is the true owner of the land, 
 and fails to assert his right to the land in controversy by action or 
 entry within the statutory period, he ought not to be allowed to 
 recover. The statutes of limitations in real actions are founded 
 upon a wise and salutary public policy. They require nothing but 
 reasonable vigilance upon the part of the owner, and are necessary 
 for the repose of bona fide settlers in the regions of our wild and 
 uik nit ivated lands. 
 
 The questi >n involved in this 1 use is not, as counsel for the plain- 
 tiff contends, the question left undecided in the cases of Taylor v . 
 £urnside t and Overton v. Davisson, 1 Gratt., and in later cases,
 
 III. 3 . J ADVERSE POSSESSION. IO29 
 
 The question is this, viz. : Does the adverse possession of the claim- 
 ant under a junior title extend to the whole of his tract, or only to the 
 exteat of his enclosures, where there are conflicting grants or deeds 
 to lands causing an interlock, the claimant under the older title 
 being in actual possession of a part of his land outside of the inter- 
 lock, when the claimant under junior title entered upon and took 
 actual possession of a part of the interlock, claiming title to the 
 whole extent of his boundary? That is still an open question in this 
 State, and, as it does not arise in this case, we do not wish to 
 be understood as expressing any opinion upon it. 
 
 It follows from what has been said that the Circuit Court erred 
 in setting aside the verdict of the jury upon the first trial, and that 
 all proceedings in the case in the Circuit Court subsequent to that 
 verdict must be reversed and set aside, and judgment entered upon 
 that verdict for the defendant. 
 
 Reversed. 
 
 GRIMES v. RAGLAND. 
 28 Georgia, 123. — 1859. 
 Ejectment. — Verdict for defendant. Motion for new trial. 
 
 McDonald, J. — * * * The next ground is the important 
 one in the motion, and the point is easily extracted from the request 
 of the court to charge the jury, and the charge of the court as given 
 to the jury, viz.: whether a residence upon, and the actual posses- 
 sion and occupation of, one of two tracts of land conveyed to the 
 defendant in the same deed, is such a constructive possession of the 
 other tract, of which there is no actual occupation, as if continued 
 long enough, will bar an action by the rightful owner under the 
 statute of limitations. The court below charged the jury that it 
 would. The defendant resided on the tract of land adjoining that 
 sued for. He claimed both tracts of land under one and the same 
 deed. He had a hog pen on the land in dispute, and had rails split 
 and logs cut on it, but stated that he was not in possession of it, 
 except that he had paid taxes for it. 
 
 By our lottery system, lands are divided into tracts by number 
 and district, and ordinarily, there can be but one grantee or one set 
 of grantees, as when the grant is to orphans, so that a careful and 
 guarded purchaser can find but little difficulty in ascertaining 
 whether he has the rightful title. This consideration alone should 
 lead courts to adhere to the strictest rules of construction in favor 
 of the true owner. We have, in the judgment we pronounce, laid
 
 IO3O TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 some stress upon this matter, though it was not necessary in order 
 to sustain the case of the plaintiff in error. It is laid down in 
 Adams on Ejectment, 592, that where a large tract of land is divided 
 into lots, the possession of one lot adversely will not create a con- 
 structive adverse possession of the other parts of the tract, although 
 claimed by the defendant under the same paper title. The author 
 cites in support of the principle the case of Johnson ex dent. Ten 
 Eyck and Wife v. Richards, 6 Cowen, 623. " The law deems every 
 man to be in the legal seisin and possession of land, to which he has 
 a perfect right and complete title; this seisin and possession is 
 co-extensive with his right, and continues until he is ousted thereof 
 by an actual adverse possession." United States v. Arredendo and 
 Others, 6 Peters' Rep. 743. This court has held repeatedly that the 
 owner of land in this State, having the true title, is in constructive 
 possession of his wild lands wherever situated, and that a possession 
 to be adverse to him so as to create a bar under the statute of lim- 
 itations, must be open, notorious and continued. That is unques- 
 tionably the true and sensible rule. One reason which is assigned 
 why a possession is held to be adverse to the rightful owner of land, 
 is his presumed acquiescence in the right of the possessor. There 
 can be no acquiescence without notice, and there can be no not'ce 
 if the possession has not been open, visible, notorious and con- 
 tinued. Hence, the reason of the rule, that to create an adverse 
 possession it must be open and continued. If it be not continued, 
 another presumption comes to the aid of the true owner, and 
 every legal presumption is in his favor, and that is, that the 
 possessor, by relinquishing the actual possession, acknowledges 
 the superior title of the true owner. By his abandonment of 
 the possession, the constructive possession of the true owner 
 extends immediately to the premises, and it requires a new 
 ouster or disseisin to fix a starting point for the statute. On 
 this point Ch. J. Shaw said, in the case of Blood v. Woods, 1 Met. 
 Rep. Mass. 528, " One point seems to be well settled, which is, that 
 very strong acts of exclusive possession, such as building, inclosing 
 or cultivating, and that for a long time, and openly and notoriously, 
 are necessary in order to create an actual ouster of the true owner, 
 who has no notice of such acts." In regard to the premises now in 
 dispute, if the owner had passed the land and examined it, at any 
 time prior to the clearing of the field in 1S52 or 1853, he would have 
 had no notice whatever of an adverse claimant, for the hog pen, 
 which, according to the usage of the country, is no evidence of 
 ownership of the land on which it is put, the splitting of rails or the 
 Cutting of logs, which arc the ordinary works of trespassers residing
 
 III. 4-] ADVERSE POSSESSION. IO3I 
 
 on contiguous lands, would not have advertised him in the absence 
 of an actual occupant. 
 
 But again, here are two persons claiming title to the land. One 
 has the actual, rightful, bona fide title; the other has a spurious title. 
 Neither of them has the actual possession. In whom is the con- 
 structive possession? Surely in him who has the rightful bona fide 
 title. 
 
 For the reasons here assigned, we think that the court erred in 
 refusing to charge the jury as requested by plaintiff's counsel, and 
 in giving the charge he did to the jury, and on that ground he ought 
 to have granted a new trial. 
 
 Judgment reversed. 
 
 4. Power of Disseisee to Convey After the Disseisin. 
 JACKSON, ex dem. LATHROP v. DEMONT. 
 
 9 Johnson, 55. — 1S12. 
 Ejectment. — Verdict for defendant. Motion for new trial. 
 
 Kent, Ch. J., delivered the opinion of the court. Two questions 
 arise on this case: 1. Is the lessor, Nichols, entitled to recover upon 
 the deed from R. Lathrop to him? 2. If not, then can Lathrop 
 himself recover in opposition to his deed to Miller, under whom the 
 defendant holds? Unless we can answer one of these questions in 
 the affirmative, judgment must be rendered for the defendant. 
 
 1. At the time of the execution of the deed, from Lathrop to 
 Nichols, the defendant was in possession under Miller, who held the 
 land under a deed from another source. The possession was then 
 adverse to the claim or right of Rufus Lathrop, and it is a well set- 
 tled principle of law, that if a person out of possession conveys to a 
 stranger, land held adversely by another, the conveyance is void, so 
 that the stranger cannot maintain an action upon it. Nothing 
 passes by such a deed; for a right of entry, or a right in action, was 
 not assignable by the common law. This doctrine is by no means a 
 novel one, for it has been so frequently and uniformly acknowl- 
 edged, both in England and in our own courts, that it has now 
 grown to be familiar, and cannot be open for discussion. Litt. sect. 
 347. Co. Litt. ibid, and 369a.; Plowd. 88 b. ; 2 Sch. & Lef. 65, 
 105; 2 Caines, 1S3; Jackson v. Todd, 5 Johns. Rep. 489; IVilliams 
 v. Jackson. 
 
 Indeed this principle was conformable to the whole genius and 
 policy of the common law, by which a tenant could not aliene his fee
 
 IO32 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 or tenure, without the consent of his lord, nor the lord his seigniory, 
 without the consent or attornment of his tenant. Wright on Tenures, 
 166, 171. A feoffment was void without livery of seisin and without 
 possession a man could not make livery of seisin. Perkins, s. 220. 
 Nor was this principle peculiar to the English law. It was a funda- 
 mental doctrine of the law of feuds on the continent of Europe. 
 No feud could be created or transferred without investiture, or put- 
 ting the tenant into possession. Feudum sine investitura nulla modo 
 constitui potest. Investitura proprie dicitur possessio. Feudorum, lib. 
 1, tit. 25; lib. 2, tit. 2. And Voet says that delivery of possession 
 is still requisite in Holland and Germany, to the transfer of real 
 property. Com. ad Pand., lib. 41, tit. 1, §. 38. It is no doubt the 
 general sense and usage of mankind that the transfer of real prop- 
 erty should not be valid, unless the grantor has the capacity, as 
 well as the intention to deliver possession, and actually does it. 
 Blackstone says that it prevails in the codes of " all well-governed 
 nations." for possession is an essential part of the title and dominion 
 over property. 2 Com. 311, 312. 
 
 That the possession of Miller was in fact adverse to the right of 
 R. Lathrop, is most clearly made out, because he was in possession 
 under color and claim of title by virtue* of a deed from Samuel 
 Lathrop. This amounted to one of the species of disseisins men- 
 tioned by Bracton, who says, lib 4, fol. 161 b., that " disseisin may 
 be not only when the owner, or his family or steward are violently 
 ejected, but also when the owner, having gone abroad and left his 
 possession unoccupied, he is denied entry on his return; and so it is 
 if one uses another's land against his will, claiming it to be his own, 
 contendendo tenementum esse, suuin quod est alterius." 
 
 In the modern case of Doe v. Prosser, Cowp. 217, Lord Mansfield 
 
 gives a sample of what constitutes an adverse possession. " If 
 
 upon demand by the co-tenant of his moiety, the other denies to pay 
 
 and denies his title, saying he claims the whole, and will not pay, and 
 
 continues in possession, such possession is adverse and ouster 
 
 enough." It does not seem to be material, as it concerns the 
 
 operation of the deed, that the knowledge of the adverse pos- 
 
 ion should be brought home to the parties, though it might 
 
 be material, if either of them was prosecuted for the penalty 
 
 given by the statute against selling pretended titles. In Slyright 
 
 Page's Case, 1 I. con, t66, it was considered that the deed 
 
 might be void, and yel the party not liable to the penalty of the 
 
 ite. ' The firsl question in that case was, if the lease, being 
 
 made by one oul of possession, and not sealed and delivered 
 
 the land, and so not good in law as to pass any interest.
 
 III. 4.] ADVERSE POSSESSION. IO33 
 
 be within the statute faoresaid " But in this case the legal 
 inference is that R. Lathrop knew of the adverse possession of 
 Miller when he sold to Nichols, for he must be presumed to be 
 acquainted with his own right; and the presumption is that Nichols 
 purchased under the same knowledge, for Miller had not only a ten- 
 ant in actual possession, but his deed from S. Lathrop had been 
 recorded several days before, and the lands lay in a county in which 
 deeds, as well as mortgages, are required to be recorded. It is 
 extremely improbable that Nichols purchased, without having previ- 
 ously inspected the state of the title upon record, and inquired into 
 the claims of the actual occupant. He had, at least, constructive 
 notice, or notice in law. 
 
 The title set up by the lessor, Nichols, most undoubtedly fails, 
 and the next point is whether the other lessor, R. Lathrop, is 
 entitled to recover. 
 
 2. It might possibly be a question whether the acceptance of the 
 deed from R. Lathrop to Miller was not an act of maintenance in 
 Miller, as it was taken after the suit was brought, at least it was 
 so understood upon the argument, and probably with an intent to 
 defend himself with it in that suit. But as R. Lathrop was one of 
 the lessors of the plaintiff, and had the title of the land in himself, 
 it was not very inconsistent with good policy that he should be 
 enabled to sell, and the tenant in possession to purchase, for it was 
 putting an end to the controversy. We mean not, however, to dis- 
 cuss and decide this point in the present case; for, even admitting 
 the sale to have been an act of maintenance, yet the deed was 
 effectual as between the parties to it. Rufus Lathrop cannot recover 
 in opposition to his deed to Miller. It operates to estop him, and 
 it seems to be a principle which runs through the books that a feoff- 
 ment upon maintenance or champerty is good as between the feoffer 
 and feoffee, and is only void against him who hath right. Bro. tit. 
 Feoffments, pi. 19; Fitzherbert, J., in 27 Hen. VIII., fol. 23 b., 24 
 a; Co. Litt. 369a.; Cro. Eliz. 445; Beaumond, J., Hawk. b. I. c. 
 86, § 3. The consequence is, that when the question is upon the 
 demise of Rufus Lathrop, his deed to Miller is an effectual bar to 
 his recovery. The only objection that could have been made to the 
 introduction of this deed at the trial, assuming it to have been given 
 after suit brought and issue joined, was that it ought to have been 
 pleaded puis darrein continuance, so that it might have been returned 
 as parcel of the nisi prius record. This is, no doubt, the general 
 and proper course. Yelv. 180; 2 Rich. Com. Pleas, 13. But it is a 
 sufficient answer to this objection that the deed was admitted in evi- 
 dence, and went to the jury without opposition. It is, then, to be
 
 1034 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 considered as admitted by consent, and is to have the same effect as 
 if it had been duly pleaded. 
 
 Neither of the lessors of the plaintiff has, then, shown a right to 
 recover. We cannot give effect to the deed to Nichols, because of 
 the adverse possession existing at the time of the sale, and we can. 
 not allow Lathrop to recover, in defiance of his own deed to Miller. 
 To yield to the pretensions of either would be shaking established 
 principles; and though Nichols may, perhaps, have ground to com- 
 plain of the act of Lathrop in conveying to Miller, instead of lending 
 his name and assistance to recover the possession of the land for 
 him, yet that consideration cannot affect this case. In the action 
 of ejectment, we must look steadily to the legal title. His remedy, 
 if any, must be against Lathrop, for assuming to sell when he was 
 incapacitated to transfer his interest. Nichols cannot interpose in 
 this suit, and prevent the operation of the deed to Miller. As 
 to him, it is res inter alios acta. He must stand upon the strength 
 of his own demise. 
 
 The motion to set aside the verdict is, therefore, denied. 1 
 
 LIVINGSTON v. PROSEUS. 
 
 2 Hill, 526. — 1842. 
 
 Ejectment. — Defendant gave in evidence a lease for life from 
 plaintiff to one Shultis and proved that Shultis was still alive. Plain- 
 tiff, under objection and exception, proved that when the life lease 
 was given defendant was in possession of the premises, claiming to 
 hold adversely to plaintiff. Verdict for plaintiff. Motion for new trial. 
 
 Bronson, J. — * * * It is extremely well settled, that a con- 
 veyance of lands which are at the time held adversely to the grantor, 
 is inoperative and void. It would seem to follow from this doctrine 
 that the title remains in the grantor, and that he may assert it in 
 the same manner as though the deed had not been made. But it is 
 lly well settled, that as between grantor and grantee, and per- 
 standing in legal privity with them, the deed is operative and 
 passes the title. Jackson v. Demont, 9 John. R. 55; Livingston v. 
 /' nt Tron Co., 9 Wend. 516, per Savage, C. J.; I'a/i Hoesen v. Ben- 
 ham, 1 •-, bl. 16 1. From these two propositions, to wit, that the 
 owner has parted with his title, and that the grantee cannot assert 
 
 •Seethe X. V. R. I'. I... : 22^; N. V. Penal Code, §§ 129-131; Code Civ. 
 Proi .. ;' 1 -"i. Ed.
 
 III. 4.] ADVERSE POSSESSION. IO35 
 
 it on account of the adverse holding which avoids the deed, it has 
 been supposed to result as a necessary consequence that the title 
 was extinguished or lost. But it has been denied that any such con- 
 sequence follows. Jackson v. Brinckerhoff, 3 John. Cas. 101; Jack- 
 son v. Vredenburgh, 1 John. R. 159; Williams v. Jackson, 5 Id. 489; 
 Jackson v. Lcggctt, 7 Wend. 377. Indeed, it m^y be laid down as a 
 maxim in the law, that a title which once existed must continue to 
 reside somewhere; it cannot be annihilated. 
 
 The whole apparent difficulty arises from an inaccurate statement 
 of the consequence which results from the adverse holding at the 
 time the deed is executed. It is often said in the books, without 
 any qualification, that the deed is void. But that is only true in 
 relation to the person holding adversely, and those who afterwards 
 come in under him. As to all the rest of the world the deed is 
 valid, and passes the title from the grantor to the grantee. This I 
 think, is sufficiently established by the cases already mentioned and 
 the authorities on which they rest. The deed is void as against the 
 party who might otherwise be injured; but it is good as to all 
 others. If the person who held adversely voluntarily abandon the 
 possession, there can be no doubt that the grantee may enter and 
 enjoy the land. Or, if after such abandonment a stranger enter, the 
 grantee may bring ejectment and oust him. The stranger was in 
 no peril of being injured by the conveyance. His entry was tortious, 
 and he shall not cover himself with a shield which belongs to 
 another, between whom and himself there is no legal privity. 
 
 But as against the person holding adversely, the deed is utterly 
 void — a mere nullity. There was an attempt to convey, but the 
 parties failed to accomplish the object. The title still remains in 
 the original proprietor, and he may — indeed, must — sue to recover 
 the land. It is true that the recovery will inure to the benefit of the 
 grantee in the deed; but that is a matter between him and the 
 grantor, and with which the person holding adversely has nothing 
 to do. It is enough for him that the deed does him no injury. 
 
 When it has been apprehended that a deed might be attacked on 
 the ground of an adverse holding at the time it was made, it has 
 been usual to insert counts in the declaration on the title of the 
 grantor and the grantee, so that if that suit failed as to the one, it 
 might succeed as to the other. Jackson v. Lcggctt, 7 Wend. 377. 
 But the title is not in both of them, and it is but a poor compliment 
 to the law as a science that it cannot decide which ought to sue. It 
 has, I think, settled the question. When the action is brought 
 against the person holding adversely, or any one who has succeeded 
 to his right, the grantor must sue. But as against a stranger — one
 
 IO36 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CM. I. 
 
 who does not stand in legal privity with him who held adversely 
 when the deed was made — the grantee must sue. In cases where 
 the grantor may sue, he must of necessity be allowed to show the 
 deed void when the defendant attempts to set it up to defeat a 
 recovery. Otherwise, the defendant would first defeat the grantor 
 by showing he had conveyed, and then defeat the grantee by show- 
 ing the deed void; and thus we might come, in effect, to the result 
 of extinguishing a good title. 
 
 IV. Title by prescription. 
 
 COOLIDGE v. LEARNED. 
 
 S Pickering, 504. — 1829. 
 
 Trespass quare clausum f regit. — Defendant pleaded that the 
 locus in quo had been an open, common, public landing-place from 
 time immemorial. Decision below for defendant. Plaintiff moved 
 for a new trial. 
 
 Wilde, J., delivered the opinion of the court. — The plaintiff's 
 counsel except to the direction of the judge, and contend that no 
 usage commencing within the time of legal memory is sufficient to 
 establish a right by prescription ; and that it has been long settled 
 that the time of legal memory extends back to the commencement 
 of the reign of Richard I., so that in this country no prescriptive 
 right founded on immemorial usage can be maintained by the princi- 
 ples of the common law. 
 
 That the time of legal memory, according to the law of England, 
 extends back to the remote period contended for by the plaintiff's 
 counsel, cannot be denied; but for what reason, or for what purpose, 
 such a limitation should have been continued down to the present 
 day, we are unable to ascertain. Cruise says, " that it seems some- 
 what extraordinary, that the date of legal prescription should con- 
 tinue to be reckoned from so distant a period." And to us it seems, 
 that for all practical purposes it might as well be reckoned from the 
 time of the creation. The limitation in question, if it can now be 
 • 1 a limitation, was first established soon after the St. Westm. 
 1 j ed. 1, C. 39, and was founded on the equitable construction of 
 that statute, which provided that no writ of right should be main- 
 tained except on a seisin from the time of Richard I. 
 
 It was held thai an undisturbed enjoyment of an easement for a 
 period of time suffii ient to give a title to land by possession, was 
 sufficient also to give a title to the easement. 2 Roll. Abr. 269; 2
 
 IV. I WHEN TITLE PERFECTED BV PRESCRIPTION. IO37 
 
 Inst. 238; Rex v. Hudson, 2 Str. 909; 3 Stark, on Ev. 1205. Upon 
 this principle the time of legal memory was first limited, and upon 
 the same principle, when the limitation of a writ of right was reduced 
 by the statute of 32 Hen. 8, c. 2, to sixty years, a similar reduction 
 should have been made in the limitation of the time of legal mem- 
 ory. This was required, not only by public policy, to quiet long 
 continued possessions, but by a regard to consistency, as it would 
 have been only following up the principle upon which the first limi- 
 tation was founded. 
 
 And of this opinion was Rolle, 2 Roll. Abr. 269, though he admits 
 that at his time the practice was otherwise. Why the opinion of 
 this eminent judge, founded as it was on reasoning so solid and sat- 
 isfactory, was not adopted by the courts, does not appear. But it 
 does appear that the principle on which his opinion was founded, 
 was respected, and carried into operation in another form. For 
 although the courts continued to adhere to the limitation before 
 adopted, yet the long enjoyment of an easement was held to be a 
 sufficient reason, not only to authorize, but to require the jury to 
 presume a grant. And it has long been settled that the undisturbed 
 enjoyment of an incorporeal right affecting the lands of another for 
 twenty years, the possession being adverse and unrebutted, imposes 
 on the jury the duty to presume a grant, and in all such cases juries 
 are so instructed by the court. Not, however, because either the 
 court or jury believe the presumed grant to have been actually 
 made, but because public policy and convenience require that long 
 continued possession should not be disturbed. 
 
 The period of twenty years was adopted in analogy to the statute 
 of limitations, by which an adverse possession of twenty years was 
 a bar to an action of ejectment, and gave a possessory title to the 
 land. Thus it appears, that although prescriptive rights commenc- 
 ing after the reign of Richard I. are not sustained in England, yet a 
 possession of twenty years only is sufficient to warrant the presump- 
 tion of a grant; which is the foundation of a doctrine of prescrip- 
 tion. In the one case the grant is presumed by the court, or rather 
 is presumed by the law, and in the other case it is presumed by the 
 jury under the direction of the court The presumption in the lat- 
 ter case is in theory, it is true, a presumption of fact, but in prac- 
 tice and for all practical purposes, it is a legal presumption, as it 
 depends on pure legal rules; and as Starkie remarks, " it seems to 
 be very difficult to say, why such presumptions should not at once 
 have been established as mere presumptions of law, to be applied to 
 the facts by the courts, without the aid of a jury. That course would 
 certainly have been more simple, and any objection, as to the want
 
 IO38 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH I. 
 
 of authority, would apply with equal if not superior force to the 
 establishing such presumptions indirectly through the medium of a 
 jury." 
 
 But however this may be, it is clear that when the law became 
 settled as it now is, and a party was allowed to plead a non-existing 
 grant, and the jury were bound to presume it, on proof of twenty 
 years' possession, he would hardly be induced to set up a prescrip- 
 tive right; and the limitation of legal memory thus became in most 
 cases of very little importance. And this is probably the reason 
 why the period of legal memory, as it was limited soon after the 
 statute of Westm. 1, has been suffered to go on increasing to the 
 present time, although it has long since ceased to be of any practi- 
 cal utility, and is utterly inconsistent with the principle on which 
 the limitation was originally founded. 
 
 The question, then, is whether the courts of this country were not 
 at liberty to adopt the English law of prescription, with a modifica- 
 tion of the unreasonable rule adhered to by the English courts in 
 regard to the limitation of the time of legal memory. Certainly 
 the law without the rule of limitation might have been adopted, and 
 the courts here had competent authority to establish a new rule of 
 limitation suited to the situation of the country. They had the same 
 authority in this respect, that the courts in England had to establish 
 the English rule of limitation. This rule could not be adopted here 
 without, a modification, and it was modified accordingly; and in 
 conformity with the principle of the English rule of limitation. 
 This cannot be ascertained with certainty, but it is evident that the 
 English rule could not have been adopted, and it is to be presumed 
 that the period of sixty years was fixed upon as the time of limita- 
 tion, in analogy to the statute of 32 Hen. 8, c. 2, and in conformity 
 with the opinion of Rolle. At what period of our history the law of 
 prescription was first introduced into practice in the courts of Massa- 
 chusetts, cannot now be determined, but certainly it was before the 
 time of legal memory, as we understand the limitation of it; and 
 innumerable pleas of prescriptive rights are to be found in the 
 records of our courts. So the cases reported by Dane show that the 
 doctrine of prescription has been repeatedly recognized and sanc- 
 tioned by this court. 3 Dane, 253, c. 79, art. 3, §19. The only 
 question has been, whether our time of legal memory was limited to 
 sixty years, or whether it was to extend to a period beyond which 
 no memory or record goes as to the right in question. The general 
 opinion, we think, has been in favor of the limitation of sixty years; 
 and we think it dei i < 1 < • < 1 1 y the better opinion. This seems to us a 
 'liable limitation, and, as before remarked, it is founded on the
 
 IV.] WHEN TITLE PERFECTED BY PRESCRIPTION. IO39 
 
 principle of the English rule of limitation, which was adopted in 
 reference to the limitation of the writ of right by the statute of 
 Westm. 1. Whether since the writ of right has been limited to forty 
 years, a similar limitation of the time of legal memory ought to be 
 adopted is a question not raised in this case, and' upon which we give 
 no opinion. 
 
 The case of Ackerman v. Shelp, 3 Halst. 125, has been cited, to 
 show that the doctrine of prescription has not been adopted in New 
 Jersey; but this is no reason why it should be rejected in Massachu- 
 setts, where it has long since been adopted, and is now familiar in 
 practice; adopted, too, not only by the authority of our courts, but 
 with the implied sanction of the Legislature. As early as the year 
 1641, it was ordered and decreed by the Colonial Legislature, that no 
 custom or prescription should prevail in any moral case, that is, as 
 it was declared, " to maintain anything that could be proved to be 
 morally sinful by the word of God." Ancient Charters, etc., 177. 
 This provision, it is true, manifests great ignorance of the principles 
 of the common law, and for the purpose for which it was framed was 
 useless and inoperative. It serves, nevertheless, to show that when 
 afterwards the doctrine of prescription was introduced into practice, 
 it was not done without the countenance of the Legislature; although 
 certainly no legislative authority was necessary to give it validity. 
 
 But it has been argued, that the right set up by the defendant can- 
 not be maintained, by the principles of the common law, as a right 
 by prescription, or as a custom. The cases, however, cited in sup- 
 port of this argument, refer either to private rights or local customs. 
 The right in question is a public prescriptive right, and as such it is 
 well pleaded. It is similar to the easement which the public has in 
 highways, and may well be prescribed for. In pleading such a pub- 
 lic right to an easement, it is sufficient to aver that the locus in quo 
 is a public highway or public landing-place, etc., without showing 
 how it became so; for it cannot be presumed that every party has 
 knowledge of the origin of a public right. Aspindall v. Brown, 3 T. 
 R. 265; 3 Chit. Crim. Law, 570; 3 Dane, 248; Commonwealth v. 
 Manning, S. J. Court, Essex County, 1795, m 3 Dane, 19, c. 71, art. 
 5, §§ 8, 9, 10; Gateward 's Case, 6 Co. 60, 61. 
 
 HUBBARD v. TOWN. 
 
 33 Vermont, 295. — 1860. 
 {Reported herein at p. 840. ]' 
 
 1 See also Robeson v. Pittenger, supra, p. 837. — Ed.
 
 1040 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 V. Title by the statute of limitations. 
 
 i. Essentials for Such Title. 
 
 a. A disseisin and an adverse possession. 1 
 
 b. The adverse possession must be continuous for the term fixed 
 by the statute.* Tacking. 
 
 HUGHS v. PICKERING. 
 
 14 Pennsylvania State, 297 — 18S0. 
 
 Ejectment. — Judgment for plaintiff. Defendant brings error. 
 
 Rogers, J. — The plaintiff exhibits in evidence a perfect legal title 
 to the premises in controversy. This is admitted, but the defend- 
 ant relies on the act of limitations. The suit was instituted the 19th 
 March, 1847; the title under which the defendant claims commenced 
 in May, 1825, so that more than twenty-one years elapsed from the 
 commencement of the title until the institution of the suit. 
 
 To acquire a right by the act of limitations requires a possession 
 of twenty-one years, actual, visible, continued, notorious, distinct, 
 and hostile. The plaintiff contends he is not barred because the 
 possession was not a continued possession; but that the possession 
 was interrupted in its transmission from Mason, the first intruder, to 
 Hughs, the defendant. On this point the cause mainly turns. 
 Mason proves that he made the first improvement in May, 1825; 
 that he deadened trees in May, grubbed six acres in June, chopped 
 logs and saplings on four acres, burnt brush, chopped logs in July, 
 and that he had a shanty on the place, about ten by twelve feet 
 square. That, being about to leave the property, he told his sister, 
 the widow of Israel Bartlett, that she might take his right and sell 
 it, and if she could get anything for it, well and good. Whether we 
 consider this transaction as a parol sale, or gift, or an authority to 
 sell, is, perhaps, of but little consequence. But that it was the lat- 
 ter, in the estimation of the parties, at least, would appear from 
 their subsequent conduct; for, after selling to Hughs, who took pos- 
 session in pursuance of the contract, she paid over to her brother one- 
 half of the purchase money. Coupling this with the words used, it 
 indicates rather a power of sale than a gift or sale to her. But be 
 that as it may, is the agreement between Mrs. Bartlett and Hughs, 
 subsequently ratified by Mason receiving half the purchase money, 
 possession taken in pursuance of it, to be viewed as a separate, dis- 
 
 1 See above, pp, loi j ro2 j, 1 Id. 
 
 1 See N. Y. ( ode ( iv. Pro< .. .':' 362-375. - Ed.
 
 V. i.] STATUTE OF LIMITATIONS. IO4I 
 
 tinct trespass, or is it a continuation of the original trespass? In 
 other words, has Hughs the right to tack Mason's possession, for 
 which he paid value, to his own, so as to bar plaintiff's right? Had 
 Mason abandoned the property absolutely, or had Hughs taken pos- 
 session without authority, these would present such a want of 
 continuity as would be fatal to the defense. But does this appear? 
 These are points which the jury must decide. 4 Watts, 409; Simp- 
 son v. AIcBeth, 5 Watts, 441 ; Fish v. Brown. In Cunningham v. 
 Patton, 6 Barr. 355, it is ruled that when adverse possession is 
 proved by parol testimony only, it is a question for the jury whether 
 it is continuous. Indeed, when there is a spark of evidence, a ques- 
 tion of fact must be submitted to the jury as the legitimate triers of 
 it. Bank of Pittsburgh v. Whitehead, et a/., 10 Watts, 397. The 
 facts which particularly bear on this point are these : Under authority 
 derived from Mason, Mrs. Bartlett sells to Hughs; Mason receives 
 one-halt of the purchase money, and, under this contract, Hughs 
 enters, and ever since has been in the actual possession of the land. 
 That Hughs was a trespasser as to the plaintiff, may be admitted ; but 
 was he a trespasser as to either Mason or Mrs. Bartlett, who sold 
 their right in the property, whatever it was, and received the purchase 
 money? Under such a state of facts, it is clear that no action of 
 trespass could be sustained by either of them. The court would seem 
 to be under the impression that unless Mason was in the actual posses- 
 sion at the time of the contract, the law would not unite the possession 
 to the title; that the continuity of possession which the law requires 
 cannot be preserved, unless there is actual, continued possession of 
 the premises. So I understand the court, and, if so, the point is 
 ruled in direct opposition to Sailor v. Uertzog, 4 Whar. 272. In 
 that case it was insisted the continuity of possession was destroyed 
 by the interruption of the actual possession; that the premises had 
 been vacant about the year 1815, an important period in the title, 
 bearing directly on the defense under the statute. But the judge 
 who tried the cause at nisi prius, afterwards affirmed by the 
 Supreme Court, says: " That in order to destroy the continuity of 
 possession, the vacancy must not be merely occasional, such as 
 occurs in every case where a party, for some cause, unable to obtain 
 a tenant, shuts up his property for a short, or, indeed, for a long 
 time. When the possession is abandoned for any time, or when a 
 person takes possession of the property in dispute, or is totally 
 unconnected with the previous holder, it prevents the operation of 
 the act, because the continuity of possession, which is essential to a 
 title under the act of limitation, is broken. It is a principle of law, 
 it is true, that when the possession is vacant, the law casts the posses- 
 [law of prop in land. — 66.]
 
 1042 TITLE BY ORIGINAL ACQUISITION. [PT. VI CH. I. 
 
 sion on the legal owner. But the question is, what is such a vacancy 
 of possession as produces this effect? And when we have seen that 
 the vacancy must be not merely occasional, but the title of the sub- 
 sequent holder must be unconnected with the title of the previous 
 holder. There must be a want of privity of contract, for, when the 
 subsequent holder enters with the assent and permission of the 
 previous holder, the former has the right to tack one possession to 
 another. That actual possession is not required, is also shown in 
 Porter v. McGinnis, i Barr. 413. 
 
 HAYNES v. BOARDMAN. 
 
 119 Massachusetts, 414. — 1875. 
 
 Writ of Entry. — Plea mil disseisin. Verdict for demandant. 
 Tenant alleges exceptions which appear below. 
 
 Colt, J. — There was evidence tending to show adverse possession 
 of the demanded premises, commencing with the occupation of Mrs. 
 Atwood in 1832, and continued until her death in 1847. She devised 
 all her real estate to Susanna Gage for her life, remainder in fee to 
 the demandant. The possession was continued in Susanna until her 
 death in 1863, and by the demandant until shortly before the com- 
 mencement of this action. The principal question is whether there 
 was that privity of estate between the testatrix and her devisees 
 which is required to establish title by continuous adverse possession. 
 
 It is settled that the disseisin of an heir, devisee or grantee may 
 be tacked to that of an ancestor, devisor or grantor, to create title 
 by adverse possession. Leonard v. Leonard, 7 Allen, 277; Melvin v. 
 Proprietors of Locks and Canals, 5 Met. 15, 32. Such adverse pos- 
 session continued for twenty years affords a conclusive presumption 
 of grant to the first occupant. 
 
 It is claimed that there is no such privity between the life tenant 
 and the remainderman, because the latter in no sense claims under 
 the former. But the answer is, that both claim under the same will 
 by one title. The disseisin, which was commenced by the testatrix, is 
 continued by each in accordance with that title, and is referred by 
 each only to the entry of the testatrix. There has been no loss of 
 possession; no restoration of the seisin to the true owner; no new 
 entry. The disseisin which commenced with the testatrix has been 
 < ontinuous in her devisees, and establishes her title by lapse of time. 
 It is plainly distinguished from a case of successive entries and new 
 ins by different and independent parties. It does not follow, 
 b< 1 ause no act of the life tenant in disparagement of his title, and
 
 V. i. "I STATUTE OK LIMITATIONS. IO43 
 
 no disseisin of him, will be permitted to injure the remainderman, 
 that an adverse possession maintained by the tenant, under his 
 title, will not inure to the benefit of the former. The test of title is 
 that there has been no interruption of possession, and no new entry 
 required. If the possession ends before the expiration of the time 
 required to establish the presumption, the seisin of the true owner 
 is restored, and he comes in by right, and not by disseisin, as 
 against all parties. 
 
 The other question relates to the effect to be given to the alleged 
 payment of rent to the owner made by tenants of the demandant, 
 and those in privity with him, in occupation of the demanded 
 premises. There was evidence that some of the acts of those who 
 occupied under the testatrix and life tenant were permissive, and 
 the jury were told that the demandant could not have the benefit of 
 such acts, unless they were satisfied that they were under the 
 authority or direction of Atwood or Gage. Full instruction was also 
 given as to what constituted adverse possession. And it cannot be 
 stated as matter of law that the payment of rent, or an admission of 
 title, by a tenant of the demandant or his grantor, without the 
 knowledge of his landlord, would alone operate to interrupt an other- 
 wise continuous adverse occupation. 
 
 Exceptions overruled. 
 
 c. Exceptions in favor of persons under a disability. 
 HOWELL v. LEAVITT. 
 
 95 New York, 617. — 1884. 
 
 Finch, J. — In February, 1856, Roberts became the owner of the 
 premises in dispute, having good title thereto, but subject to a pur- 
 chase-money mortgage of $5,500 given by him to Leech. A few 
 months later Roberts conveyed to Tasker, subject to the $5,500 
 mortgage, the latter executing also his own mortgage to Roberts for 
 $1,800. Still later in the same year Tasked conveyed to Ephraim 
 Howell, subject to the Leech mortgage of $5,500, but the deed mak- 
 ing no reference to the $1,800 mortgage. On the 18th of September, 
 1857, Roberts filed a complaint for the foreclosure of the $1,800 
 mortgage, naming Tasker and Howell and wife as defendants, and 
 Mrs. Howell was served November 17th of that year. In the 
 previous month of October, Howell died, although the fact of his 
 death was for some time after unknown. An order of publication 
 was made, and in the end, judgment of foreclosure was rendered;
 
 1044 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 the property was sold to Roberts, the mortgagee, who by the aid of 
 a writ of assistance, put Tasker out and got into possession. At 
 this date, and at the date of the commencement of the foreclosure 
 action, Howell being dead, the title had descended to his five children, 
 who were all infants, the eldest being about fourteen years of age, 
 and the youngest only about one. The possession of Tasker after 
 his deed to Howell must be assumed to have been as tenant under 
 Howell, and upon his death as the tenant of his children, so that 
 Tasker's possession was theirs When he was expelled their pos- 
 session was taken away. But the judgment of foreclosure did not 
 affect them, for the} 7 were in no manner parties to it, and as to them 
 it was an absolute nullity. Possession of their property was taken 
 from them, not only without their consent, but against their will, 
 and by a force which had no right or authority behind it, but was in 
 all respects a trespass. After thus forcing out the true owners. 
 Roberts paid off and discharged the $5,500 mortgage, and then sold 
 the property, and the present defendants are his grantees and seek 
 to defend the ejectment brought by the true owners, who were thus 
 dispossessed by unlawful force, upon the alleged right of Roberts as 
 mortgagee in possession. In most of the cases which have upheld 
 the right of the mortgagee, his possession was obtained with the 
 consent, express or implied, of the owner of the land, although in 
 some of them the mode of acquiring possession did not distinctly ap- 
 pear, and in many the rule is stated quite broadly and with little of 
 restriction or limitation. Van Duyne v. Thayre, 14 Wend. 233; Phyfe 
 v. Riley, 15 Id. 248; Fox v. Life, 24 Id. 164; Olmsted v. Elder, 5 N. Y. 
 144; Mickles v. Dillaye, 17 Id. 80; Mickles v. Townsend, 18 Id. 575: 
 Chase v. Peck, 21 Id. 581; Waring v. Smyth, 2 Barb. Ch. 135; Pell 
 v. Ulmar, 18 N. Y. 139; Robinson v. Ryan, 25 Id. 320; Winslow v. 
 Clark, 47 Id. 261; Madison Avenue Baptist Church v. 01. Street Baptist 
 Church, 73 Id. 82; Gross v. Welwood, 90 Id. 63S. 
 
 It is scarcely necessary to review the authorities and consider them 
 in detail, for none of them have ever gone so far as to hold that a 
 possession of the mortgagee acquired by cither force or fraud, 
 against the will and consent of the rightful owner, and without even 
 1 olor of lawful authority as it respects such owner, and amounting 
 only to a pure trespass, was sufficient to defend an action of eject- 
 ment. The possession requisite for such a defense must have about 
 it at least sonic basis of right as against the owner evicted. Often 
 his assent or acquiescence may be inferred from slight circum 
 stances, bul the righl cannol I"- founded upon an absolute wrong. 
 'I Id thai one who has merely a lien, and but an equitable right. 
 . get a legal one by the commission of a trespass would be neither
 
 V. i.] STATUTE OF LIMITATIONS. IO45 
 
 logical nor just. It is easy to understand how some of the very 
 broad statements of the right of the mortgagee in possession origi- 
 nated. Before the Revised Statutes, and in the earlier consideration 
 of mortgage relations, the mortgagee, after condition broken, was 
 deemed to have the legal estate in the land. Of course his entry 
 upon the premises would be the entry of an owner and both rightful 
 and lawful if effected without a breach of the peace. His possession, 
 however acquired, unless by actual violence, was lawful as that of 
 an owner taking possession of his own. But when the Revised 
 Statutes denied him an action of ejectment, and the progress of 
 judicial decision deprived him of the least estate in the land, and left 
 him with only a lien, it followed that after as well as before condition 
 broken the mortgagor remained owner, and could not be lawfully 
 deprived of his possession, except by a valid foreclosure or his own 
 consent, express or implied. And yet the old rule, founded upon 
 and fitted to a different state of the law, kept its hold somewhat upon 
 the later opinions when the reason which led to it was gone. 
 
 But we need not determine its present extent beyond the exigency 
 of the case before us. Here the infant owners, without even a suit 
 instituted against them; so far as we know without notice or warn- 
 ing or the least opportunity to protect their rights; were expelled 
 from their property against their wills by a force which their tenant 
 could not resist. The expulsion was not only unlawful as to these 
 plaintiffs, but without the least shadow or pretense of right, since 
 the judgment under which the writ issued was not against them and 
 was absolutely a nullity so far as their rights were concerned. 
 A possession thus acquired by Roberts could not be maintained 
 against the ejectment of the owners because he was mortgagee. In 
 this respect we think the decision of the General Term was correct. 
 
 It is further contended that the statute of limitations barred the 
 right of Louise M. Howell. The facts were, that she became of 
 age December 31, 1864; that Roberts got possession claiming title 
 as owner March 15, 1S5S; and the action was begun November 7, 
 1878. The appellants' construction of the Code (§ 88, Code of Civ. 
 Pro. § 375), is in substance that where there is a disability the action 
 must be brought within ten years after its termination; and Louise 
 Howell, having reached full age December 31, 1864, had only until 
 December 31, 1S74, in which to sue. The effect of this contention 
 would be to cut down the twenty-years' limitation to a little over 
 sixteen years by reason of a disability of infancy. In a case where 
 the cause of action accrued to an infant twenty years of age the 
 limitation would be cut down to eleven years; and that which was 
 intended for fhe relief and benefit of a person under disability is
 
 IO4O TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 made to operate as a positive injury. We have already declined to 
 adopt that construction. Acker v. Acker, 16 Hun, 174; 81 N. Y. 
 143. The exception of the Code relates to the extension of the time 
 limited, and puts restraint only upon that extension. It means 
 that the disability shall not add more than ten years to the time 
 limited after the disability has ended. Practically, in a case of 
 infancy, it makes the extreme possible limitation a period of thirty- 
 one years. If the cause of action accrues to an infant on the day of 
 its birth for twenty-one years the running of the statute is supended; 
 then it begins to run; but the time limited — that is, the twenty 
 years considered as a period — having in fact elapsed, it is an exten- 
 sion of that period which is in progress, and the exception limits 
 that added time to not more than ten years after full age, that is, 
 until the expiration of thirty-one years. But for the exception the 
 infant would have had forty-one years. In the present case Louise 
 Howell had twenty years from December 31, 1864, in which to sue, 
 because giving her the full time of twenty years after that date did 
 not extend the whole time from the accruing of the cause of action 
 more than ten years added after she arrived at full age. Giving her 
 till 1884 made the whole period from the entry of Roberts less than 
 twenty-seven years, so that her infancy extended the twenty years, 
 the time limited, only about seven years, and so did not violate 
 the exception. What there is of difficulty in the section lies in the 
 phrase " after the disability ceases." That relates only to the 
 extended time, and has no effect in any case to cut down or lessen 
 the limitation of twenty years. To that the party is always entitled, 
 and, in case of a disability, to as much more as the period of disability 
 would add, except that such addition must not be longer than ten 
 years added after the disability has ended. Any unexpended part of 
 the period or time fixed by the general rule of limitation belongs to 
 the party entitled to sue, after the disability has ended, and so much 
 added time as will not extend the original limit beyond ten years 
 more after the end of the disability. The right of Louise M. Howell 
 v, as, therefore, not barred. 
 
 Judgment affirmed. 1 
 
 1 See § 375, N. Y. Code Civ. Proc. — Ed.
 
 V. I.] STATUTE OF LIMITATIONS. IO47 
 
 DEMAREST v. WYNKOOP. 
 3 Johnson's Chancery (N. Y.), 129. — 1817. 
 
 The Chancellor. — This is a suit to redeem a mortgage, exe- 
 cuted as early as 177 1. Persons claiming an estate, in fee, under the 
 mortgagee, have been in possession of the mortgaged premises since 
 May, 1788, or twenty-seven years before the filing of the bill. 
 
 Several objections have been taken to the suit. 
 
 1. The length of possession is set up, and relied upon, in the 
 answer, as a bar to the claim. 
 
 It is a well-settled rule, that twenty years' possession, by the mort- 
 gagee, without account or acknowledgment of any subsisting mort- 
 gage, is a bar to a redemption, unless the mortgagor can bring 
 himself within the proviso in the statute of limitations. This 
 proviso saves the rights of infants, femes coverts, etc., if they bring 
 their action within ten years after their disability removed. The 
 analogy between the right to redeem in this court, and the right of 
 entry at law, is presumed complete and entire throughout, so that the 
 mortgagor who comes to redeem, after the twenty years, must show 
 himself within one of the exceptions that would save his entry or 
 ejectment at law; and he must, likewise, show that he had filed his 
 bill within ten years after his disability ceased. The cases which I 
 have looked into, and to which I now refer, are uniform in support 
 of this just and necessary rule; and the construction of the statute 
 is the same here as at law. The same limitations are adopted, with 
 the allowance of the same time for disabilities. Jenner v. Tracey, 
 note to 3 P. Wms. 287; Belch v. Harvey, lb. and in app. No. 12 to 
 Sugden's Law of Vendors, 3d ed. ; Lord Kenyon in Bonny v. Rid- 
 gard, cited in 17 Vesey, 99; Lord Camden, in 3 Bro. 639, note; 
 Anon. 3 Atk. 313; Aggar v. Pickerell, 3 Atk. 225; Lord Rosslyn, in 
 Lytton v. Lytton, 4 Bro. 458; Hodle v. Haley, 1 Vesey & B. 536; 
 Reeks v. Postlethwaite, Cooper's Eq. Rep. 161 ; Bairon v. Postlethwaite, 
 Cooper's Eq. Rep. 161; Bairon v. Martin, Id. 189; Moor v. Cable ■ 
 1 Johns. Ch. Rep. 385. 
 
 In this case, Daniel Ludlow, who claimed the mortgage, took a 
 deed, in fee, on the 7th of May, 1788, from Banta, one of the mort- 
 gagors, and from Nagel and his wife, who was one of the heirs of 
 Banta's wife, the other mortgagor. From that time, we are to con- 
 sider the representative of the mortgagee in possession, claiming to 
 hold the land, not in trust, or mortgage, but adversely, and in his 
 own right. At that time, the plaintiff, Hannah Demarest, was an 
 infant of the age of seven years, and entitled to ail the equity of 
 redemption which she now sets up. She was of age in 1802, and
 
 IO48 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CIL I. 
 
 her bill was not filed till 1815, so that not only the twenty years had 
 elapsed since the mortgagee's possession, but the ten years since 
 her disability of infancy ceased. She had then lost her equity of 
 redemption by lapse of time. It is true she has not had twenty full 
 years, free of disability, to redeem, but she has had ten years free of 
 disability, and more than twenty years in the whole have elapsed, 
 and this is all that the statute allows. For this purpose I may refer 
 to the observations which I made in the Supreme Court, in the case 
 of Smith v. Bartis, 9 Johns. Rep. 181, and which appear to me to be 
 founded on a sound construction of the statute of limitations. The 
 party has in every event twenty years to make his entry; and if 
 under disability during any part of that time he has ten years and 
 no more after the disability ceases. It may so happen that the 
 twenty years, and more, will elapse during the disability, and then 
 ten years will be afterwards allowed cumulatively; or the disability 
 may cease, so far within the period of the twenty years, as to allow 
 of only twenty years in the whole, though part of that period be 
 covered by the disability. This construction does not give to per- 
 sons laboring under disability, the same number of years after they 
 become of competent ability, as it allows to other persons who were 
 under no such disability. Such is the policy, and the very language 
 of the statute, for it did not mean, as in the case of the limitation 
 of personal actions, that the party should, at all events, have the full 
 period of time after the disability had ceased, because the words of 
 the act are explicit, that the extension of the time of making the 
 entry beyond the twenty years, is in no case to exceed ten years 
 after the disability is removed. This is also the amount of the doc- 
 trine contained in the case of Doe, ex. dem. George and Frances, his 
 wife, v. Jesson, 6 East, 80, for there the whole period, from the 
 time that the right descended or accrued, to the time of bringing 
 the suit, was but twenty-seven years, and above eight of the first 
 years of that time had been consumed by an acknowledged disability; 
 yet the right of entry was held to be tolled by lapse of time. 
 
 In the case of Belch v. Harvey, one of the cases above referred to, 
 the cause was ended by consent of patties, after argument, but Lord 
 Talbot, who had studied the case thoroughly, then observed, that 
 if he had made decree, his opinion would have been, that after the 
 disability of infancy was removed, the time fixed for prosecuting, in 
 the proviso, which is ten years, should also have been observed. 
 The proviso, as he said, contained an exception of several cases out 
 of the pur iew of the statute, and if the parties at law would avail 
 themselves of the proviso, they must take it under such restrictions 
 as the Legislature hath annexed to it, and that is, to sue within ten
 
 V. i.] STATUTE OF LIMITATIONS. IO49 
 
 years after the impediment ceases. Lord Talbot also adds, " Why 
 should not the same rule govern in equity? I think that there is 
 great reason that it should. The persons who are the subjects of 
 the proviso are not disabled from suing; they are only excused from 
 the necessity of doing it during the continuance of a legal impedi- 
 ment; therefore, when that difficulty is removed, the time allowed 
 for their further proceeding should be shortened. If they would 
 excuse a neglect under the first part of the proviso, should they not 
 do it upon the terms on which such excuse is given? " 
 
 But another difficulty may be started in this case; during the 
 infancy of the plaintiff, a second disability ensued, by means of her 
 marriage; and it has been made a question, whether a succession of 
 disabilities, thus closing on each other, can be permitted as an 
 excuse within the statute. Upon one construction she would have 
 the whole period of her coverture, and ten years afterwards. 
 
 I am clearly of opinion, that the party can only avail himself of 
 the disabilities existing when the right of action first accrued. 
 
 If several disabilities exist together, at the time the right of action 
 accrues, the statute does not begin to run until the party has sur- 
 vived them all. 1 Plowd. 375. But the case of Doc v. /esson, 
 already referred to, is an authority to show that cumulative disa- 
 bilities cannot be allowed. There the disseisin happened when the 
 right owner was an infant, and he died in infancy, leaving his infant 
 sister his heir; and the court of K. B. held that she was bound, 
 notwithstanding her infancy, to bring her ejectment within ten 
 years after the death of her brother, as more than twenty years had, 
 in the whole, elapsed since the death of the person last seised. 
 
 The policy of the statute of limitations is to quiet possessions, and 
 extinguish dormant claims. There is much wisdom in the general 
 provision, and though courts of equity are not within the letter of 
 those statutes, they have generally followed the rule, and held 
 equitable rights concluded by the same bar, and subject to the same 
 exceptions. If there are instances to the contrary, they are special 
 cases, as those of direct trusts, or as that of Bond v. Hopkins, 1 
 Sch. and Lef. 413, where lapse of time was attempted to be set up 
 manifestly against conscience, or where there is fraud in the transac- 
 tion. 1 Johns. Ch. Rep. 594. If disability could be added to disa- 
 bility, claims might be protracted to an indefinite extent of time, 
 and to the great injury and oppression of the country. According 
 to an expression of Lord Eldon, " a right might travel through 
 minorities for two centuries." It would be impolitic, as well as 
 contrary to established rule, to depart from the plain meaning and 
 literal expression of the proviso in the statute of limitations. We
 
 IO50 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 cannot well misapprehend the meaning of the Legislature. The 
 party bringing himself within the proviso must be, "at the time 
 such right, or title, first descended, or accrued, within the age of 
 twenty-one years, feme covert, insane or imprisoned," and he must 
 bring his action within ten years " after such disability removed." 
 
 The case of Eager v. The Commonwealth, 4 Tyng's Mass. Rep. 182, 
 is another, and a very weighty decision on this point. The plaintiff 
 was an infant, and before the termination of her infancy, the disa- 
 bility of coverture occurred, but the Supreme Court of Massachu- 
 setts held, that the latter disability not existing when the right first 
 accrued, was not within the proviso, and that the party was bound 
 to have brought her writ within the given time after the first disa- 
 bility had ceased. The Supreme Court of Connecticut did, indeed, 
 in the case of Eaton v. Sanford, 2 Day's Rep. 523, recognize a right 
 which had floated through successive disabilities, for near sixty 
 years. But no reasons of the court are assigned in the case, and 
 the decision itself was afterwards disregarded, and the question 
 treated as an open one by the Supreme Court of the same State, 
 under a new organization of the court in the case of Bush v. 
 Bradley, 4 Day's Rep. 29S. In the last case, there was no decision 
 upon the point, but I may refer to the opinion of one of the judges 
 (Mr. Justice Smith), vindicating the construction given in 6 East, 
 by a plain and unanswerable argument. 
 
 The construction which excludes from the benefit of the proviso, 
 in all our statutes of limitations, successive or cumulative disabili- 
 ties, is within the reason and spirit of the decision in the celebrated 
 case of Stowel v. Zouch, Plowd. 353. The principle of that case 
 decidedly governs this question, and for the purpose of showing 
 this, it mav not be amiss to give a short review of it. 
 
 Stowel being seised in fee of certain lands, was disseised by Zouch, 
 who levied a fine with proclamations. Three years afterwards, 
 Stowel died, without entry or claim to avoid the fine, leaving his 
 heir-at-law, an infant of the age of six years. The infant made no 
 < I urn during his minority, but entered within one year after he came 
 ol i ,< . It was determined, by a great majority of the judges, in the 
 lequer chamber, after several solemn arguments (for the case was 
 argued I wice in ili<- ( '. B. and twice in the exchequer chamber, before 
 all 1 Ik; judges of England), that the demandant was barred, by 
 reason <>f not making his claim before the expiration of the five 
 years, which had begun to run in the time of his ancestor, and 
 red in the time ol his infancy. No point was, perhaps, ever 
 more fully, ably, ami profoundly argued. The discussion was aided 
 by illustrations drawn from reason, convenience, policy, precedents,
 
 V. i.] STATUTE OF LIMITATIONS. 1051 
 
 and the principles of the common law; in short, it was adorned by 
 all the learning and eloquence of Westminster Hall. The argument 
 and decision established the doctrine, that the exceptions in the 
 statute of fines of 4 Hen. VII., in favor of infants and others, 
 extended only to such infants, etc., to whom the right accrued, or 
 who actually possessed a right when the fine was levied, and that no 
 such right had at that time descended, or accrued to the demandant, 
 for his ancestor was then alive; that the circumstance of the demand- 
 ant being an infant when his ancestor died, was of no avail, because 
 the exception in the statute gave the excuse of infancy to those only 
 to whom a right first accrued, or who had a right at the time of the 
 fine levied, and, therefore the plea of infancy did not apply to the 
 case; that no new right accrued after the fine was levied, as 
 the demandant's title was as heir to his ancestor, in whom the right 
 attached when the fine was levied; that public tranquillity was more 
 to be favored than the nonage of an infant, and that if infancy, 
 closing on infancy, was to be allowed in succession, " the matter 
 might possibly be delayed many hundred years; " that the statute 
 intended to limit a certain time for the first right, and which was 
 not to be exceeded by exposition or equity, though particular per- 
 sons might suffer by it; " that the public repose was more to be 
 regarded than the private convenience of any particular person, 
 whether he be an infant, or of unsound mind, or in other degree; " 
 that if a disability terminates, and a party within one month there- 
 after, becomes disabled by a new disability, as imprisonment, unsound 
 mind, etc., and so continues all the five years, or, if at the end of 
 the first month of the five years, he dies, leaving an infant heir, the 
 statute continues to run, notwithstanding the subsequent disability. 
 The great principle of this case, that the disability within the pro- 
 viso must exist when the right of entry accrues, and that a subse- 
 quent disability is of no account, was recognized and confirmed in 
 Doe v. Jones, 4 Term Rep. 300. Lord Kenyon said, that one uniform 
 construction of all the statutes of limitations had prevailed, down to 
 that moment, and that " it would be mischievous to refine, and to 
 make nice distinctions between the cases of voluntary and involun- 
 tary disabilities; (as one of the counsel, without any sufficient war- 
 rant, had attempted) but in both cases, when the disability is once 
 removed, the time begins to run." It runs, said another of the 
 judges, notwithstanding any subsequent disability, either voluntary 
 or involuntary. The case of Doe v. Shane, M. 28, G. 3 (cited in the 
 note to 4 Term Rep. 306), is also a very strong case on this point. 
 The plaintiff, against whom a fine was set up in bar, was of sound 
 mind when the fine was levied, but he became insane about two
 
 IO52 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 years afterwards, and the question was, whether the time continued 
 to run against him while he was in that state. Erskine, for the 
 plaintiff, found the current of authorities so strong against him, that 
 he would not pretend to argue the question, and the K. B. said the 
 point was too plain to be disputed, and the rule for a nonsuit was 
 made absolute. 
 
 The doctrine of any inherent equity creating an exception as to 
 any disability, where the statute of limitations creates none, has been 
 long, and, I believe, uniformly exploded. General words in the 
 statute must receive a general construction, and if there be no 
 express exception, the court can create none. It was agreed, with- 
 out contradiction, in Stowel v. Zouch, Plowd. 369 b, 371 b, that the 
 general provision in the statute of fines would have barred infants, 
 feme coverts, and the other persons named in the proviso, equally 
 with persons under no disability, if they had not been named in the 
 exception or saving clause. So in Dupleix v. De Roven, 2 Vern. 540, 
 the Lord Keeper thought it very reasonable that the statute of limi- 
 tations should not run when the debtor was beyond sea, but as there 
 was no saving in the case, he could not resist the plea of the statute. 
 The same doctrine is declared, in explicit and impressive terms, by 
 Sir Wm. Grant, in Beckford v. Wade, 17 Vesey, 87, and who refers 
 to the opinion of Sir Eardly Wilmot, in Lord Buckinghamshire v. 
 Drury, Wilmot's Opinions, 177, § 194, and to the decision in the 
 common law courts {Hall v. Wybourn, 2 Salk. 420; Aubry v. Fortescue, 
 10 Mod. 206), that though the courts of justice be shut by civil war, 
 so that no original could be sued out, yet the statute of limitations 
 continued to run. 
 
 The opinion of Lord Redesdale, in Hovenden v. Annesley, 2 Sch. & 
 Lef. 630, 640, and of Lord Manners, in Medlicott v. O' 'Done/, 1 Ball 
 and Beatty, 156, are remarkably elaborate in tracing the authorities, 
 and in enforcing the duty of a court of equity to render entire obedi- 
 ence to all the provisions of the statutes of limitations. 
 
 Before I leave this point, I ought to notice the case of Lamar v. 
 Jones, 3 Harris and M' Henry's Rep. 328, in which the late Chancel- 
 lor Hanson, of Maryland, adopted the English rule, and held that 
 the equity of redemption was barred after twenty years' possession 
 by the mortgagee, without interest paid, or an account, and when 
 t lapse of time was relied on in the answer, and ten years had 
 expired after the disability had ceased. This would have been a 
 peri ctly in point, bul it was reversed on appeal, on the ground, 
 thai the Court of Chancery in England had not adopted that [tart of 
 the tatute of limitations which allows only ten years to infants, after 
 the) ■ ome of age, to bring then- ait ions, and the Court of Appeals
 
 V. I.] STATUTE OF LIMITATIONS. IO53 
 
 considered what Lord Talbot had said in Belch v. Harvey, as only a 
 dictum. But, I apprehend, that the opinion of Lord Talbot, formed 
 as it was, after argument, and ready for delivery, has all the weight 
 due to his very enlightened judgment. Lord Camden, in Smith v. 
 Clay, 3 Bro. 639, note, cites that very case and opinion, to show that 
 the statute of limitations, in all its provisions, had been adopted, 
 and become the " settled " law in equity. The case was also cited 
 by the counsel in Lyttou v. Lytton, 4 Bro. C. C. 458, and Lord Rosslyn 
 admits, that a similar proviso in the statute of limitations of 10 and 
 11 W. III., limiting infants to five years after they become of age, to 
 bring error, was to be adopted with the provisions of that statute, 
 as applicable to the analogous case of bills of review. This is a 
 clear judicial sanction to the doctrine of Lord Talbot, and, there- 
 fore, as well upon authority as upon the reason and policy of the rule, 
 I conclude, that the Court of Appeals in Maryland was, in this 
 instance, mistaken; and with respect to the learned Chancellor's 
 opinion, notwithstanding the reversal, I trust I may, without offense, 
 be permitted to say, Sccvvolce assentior. 
 
 I conclude, accordingly, that the lapse of time is here a bar to the 
 right of redemption. The plaintiff has not excused her laches, and 
 the length of adverse possession being insisted on by the answer, 
 the defendant is entitled to the benefit of it equally as if it had been 
 pleaded. 1 Atk. 494. 
 
 2. Nature of the Title. 
 BAKER v. OAKWOOD. 
 
 123 New York, 16. — 1890. 
 
 Action to recover an undivided quarter of lands in the possession 
 of the defendant. One Raynor was the owner in fee of the entire 
 premises and placed a mortgage thereon, and thereafter the title to 
 one-fourth passed to plaintiff's father, Chas. B. Hargin. After 
 Hargin's death the mortgage was foreclosed without any notice to 
 his heirs or widow, and Mrs. Raynor got title under the mortgage 
 sale and conveyed to defendant. Further facts appear in the opinion. 
 Judgment for defendants. Plaintiffs appeal. 
 
 O'Brien, J. — The findings of the court below are to the effect 
 that, upon the death of Charles B. Hargin in 1840, the undivided 
 quarter of the lands in question descended to his three children, of 
 whom the plaintiff is one, subject to the widow's dower. By the 
 subsequent death of two of the children, without issue and intestate,
 
 1054 TITLE BY ORIGINAL ACQUISITION. [PT. VI. GIL I. 
 
 the estate which the ancestor had at the time of his death became 
 vested in the plaintiff as the surviving child, subject to a life estate 
 in two of these shares in the widow. But it is also found that since 
 1849, when Lucy Maria Raynor purchased the whole farm from 
 Hovey, and went into possession, the whole premises have been 
 held adversely, first by Mrs. Raynor under her deed, and since 1859 
 by the defendant under its conveyance from Mrs. Raynor. The 
 heirs of Hargin became tenants in common with the other owners, 
 and the finding of adverse possession implies that the possession of 
 Mrs Raynor was such as to amount to an ouster of her co-tenants. 
 Whatever may be said in regard to the nature of Mrs. Raynor's pos- 
 session, whether hostile or not, there can be no doubt that the pos- 
 session of the defendant from the time that it purchased the land in 
 1859 to the time of the commencement of this action was of such a 
 character as to justify the conclusion that it commenced in an ouster 
 of the heirs. It was the case of the purchase by a public corpora- 
 tion, organized in perpetuity, of lands to be devoted to the burial of 
 the dead, followed by enclosing, improving and laying out the land 
 in such manner and devoting it to such use as was utterly incon- 
 sistent with every other claim of title, and this was a termination of 
 the joint tenancy, if it was not terminated before. Zapp v. Miller, 
 109 N. Y. 51 ; Millard v. McMullin, 68 Id. 345 ; Florence v. Hopkins, 46 
 Id. 182. The effect of this adverse possession upon the life-estate 
 of Mrs. Hargin is the most important question in this case. The 
 courts below have held that its effect was not only to cut off her 
 remedy for its recovery, but to extinguish the estate itself and vest 
 it in the defendant. If the contention be correct that the defend- 
 ant in virtue of its adverse possession took to itself the life estate, 
 then Mrs. Hargin, when she executed to the plaintiff the deed of 
 October, 1885, had nothing to convey and that deed was ineffectual. 
 The learned counsel for the plaintiff, perceiving the importance of 
 this point, has addressed himself to its solution with most commend- 
 able learning and industry. Perhaps the highest praise that can be 
 awarded to his argument is to record the fact that it drew from his 
 distinguished adversary a generous but well-deserved compliment at 
 the bar. We cannot, however, assent to the proposition that adverse 
 ion of land for a period sufficient to bar an action merely cuts 
 off the owner's remedy without affecting the estate. While this 
 principle is not without the sanction of judicial authority, and that 
 of text-writers, we think that the tendency of modern decisions in 
 this and most of the States, as well as in the federal tribunals, is 
 nsl it. It was held that the effect of the English Statute of 
 Limitations, 21 Jai . 1, chap. i(>, was to bar the remedy, but not to
 
 V. 2.] STATUTE OF LIMITATIONS. IO55 
 
 divest the estate. Davenport v. Tyrrel, 1 Wm. Black, 679; Beckford 
 v. Wade, 17 Ves. 87; Scott v. Nixon, 3 Dru. & War. 388, 403; Incor- 
 porated Soc. v. Richards, 1 Id. 258, 289; Trustees of Dundee Harbor 
 v. Dougall, 1 Macq. H. L. Cas. 317; Digley's Hist. Real Prop. 159; 
 3 Cruise on Real Prop. 430. But the construction placed by the 
 English courts upon that statute was not acceptable to a more liberal 
 and enlightened age. The commission of 1828 appointed to reform 
 the anomalies and abuses of the law reported, and parliament enacted 
 a new statute in respect to the possession of land (3 and 4 Wm. IV., 
 chap. 27), the thirty-fourth section of which not only barred the 
 remedy in case of adverse possession, but in terms extinguished the 
 estate. Angell on Lim. chap. 2, 10; App. (5th ed.) 15. Since 
 the passage of this statute it is held that adverse possession for a 
 period sufficient to bar the action divests the estate of the true owner, 
 and transfers it to the party holding adversely. 49 Hun, 420, and 
 cases there cited. 
 
 But the doctrine of the English courts, giving construction to the 
 Statute of James, does not seem to have been followed in this State. 
 It is true that Judge Cowen, in the course of a long and able opinion 
 in the case of Humbert v. Trinity Church, 24 Wend. 587, remarked 
 that it was of the nature of the statute of limitations, when applied 
 to civil actions, " to mature a wrong into a right by cutting off the 
 remedy; " and, again, when speaking of actions brought by the true 
 owner after the bar of the statute, " his title remains, but he has 
 lost his remedy." The question in that case was whether the long- 
 continued adverse possession of the defendant barred the plaintiff's 
 action, and it was held rightly that it did The effect of an adverse 
 possession as a means of acquiring title was not, however, involved 
 in the case. The doctrine that a statute of limitations merely 
 extinguishes the remedy has been frequently applied to contract 
 obligations. As thus applied, the principle cannot be disputed. 
 Time may bar an action upon the promise or contract, but it does 
 not pay the debt. That remains as a moral obligation at least, and 
 is a good consideration for a new promise. Adverse possession of 
 tangible property implies not only the lapse of time, but the occu- 
 pation and enjoyment by the possessor, and the acquiescence of the 
 true owner in a hostile claim of title. The idea that the title to 
 property can survive the loss of every remedy known to the law for 
 reducing it to possession and enjoyment would seem to have but 
 small support in logic or reason. Enactments which are appropri- 
 ately termed statutes of repose when applied to the adverse pos- 
 session of land, have, as it seems to us, a broader and deeper effect 
 than simply to destroy the remedy of the true owner for its recovery.
 
 IO56 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 One of the earliest cases in this State upon the question is Jack- 
 son v. Dieffendorf, 3 Johns. 269, decided nearly a quarter of a 
 century before the change made in the English Statute, 21 Jac. 1, 
 chap. 16. In that case a party who could show no other title to 
 land than an adverse occupation for thirty-eight years, was at the 
 end of that period put out of possession by another, who had the 
 paper title, under a judgment in ejectment obtained by default, and 
 the party recovering the judgment, and in whose deed the premises 
 were included, went into possession. The dispossessed party then 
 brought another action of ejectment against the person who had 
 turned him out, and who had a deed of the land, for the purpose of 
 repossessing himself of what he had lost. The court held that he 
 was entitled to recover upon the ground that the adverse possession 
 was conclusive evidence of his title. The doctrine of that case on 
 this point has never been disturbed, and the case itself has fre- 
 quently been cited with approval in this court. Baldwin v. Brown, 
 16 X. Y. 364; Reed\ T . Farr, 35 Id. 117. 
 
 The case of Cahill v. Palmer, 45 N. Y. 478, was an action to 
 recover money paid to the defendant for certain lands taken for 
 Central Park. Both parties claimed to own the land for which the 
 money was paid by the city. A statute provided that when the 
 money was paid to the wrong person the real owner of the land 
 might bring and maintain an action to recover it from the party to 
 whom paid. The plaintiff had the paper title to the land, and the 
 defendant, to whom the money was paid, showed an adverse posses- 
 sion for more than twenty years prior to the time the land was taken 
 by the city. This court held that the money was properly paid to 
 the defendant and that the plaintiff could not recover. Grover, J., 
 referring to the point now under consideration, said: " The counsel 
 for the appellant insists that an adverse possession, although for the 
 length of time required by statute to bar the owner, is available only 
 as a defense to a suit brought by such owner for the recovery of the 
 land. In this the counsel is in error. When the possession is actual, 
 exclusive, open and notorious, under a claim of title adverse to any 
 and all other for the time prescribed by statute, such possession 
 iblishes title. To uphold it, a grant from the true owner to such 
 party may be presumed." In Reformed Church v. Schoolcraft, 65 N. 
 Y. 134, it was held that adverse possession for the period prescribed 
 by the Statute to bar an action was sufficient proof of title upon 
 which to maintain an action of ejectment against parties in pos- 
 session without title. The policy upon which the Statute <<f Limita- 
 tion 1 ied when applied (o real property was examined and the 
 lusion reai tied in that ease that the real owner's title is lost by
 
 V. 2.] STATUTE OF LIMITATIONS. IO57 
 
 acquiescence in adverse possession by another, and that the title lost 
 is gained by the party in possession. 
 
 In Barnes v. Light, 116 N. Y. 34, it was held that an action of 
 ejectment, founded upon adverse possession alone, may be main- 
 tained by the party in whose favor the adverse possession has run, 
 even against the true owner. This case was decided mainly upon 
 the authority of Sherrhan v. Kane, 86 N. Y. 58; Carhton v. Darcy, 90 
 Id. 566; Mayor, etc. v. Carleton, 113 Id. 284, in all of which the prin- 
 ciple is recognized that title may be obtained by adverse possession 
 alone. 
 
 In Millard v. McMullin, 68 N. Y. 345, it is held that such a title 
 is sufficient to uphold the lien of an execution. A clear adverse 
 possession for twenty years constitutes a title, which a purchaser at 
 a judicial sale may not refuse. Seymour v. DeLancey, 1 Hopk. Ch. 
 436; Mott v. Mott, 68 N. Y. 246; Shriver v. Shriver, 86 Id. 575; 
 O'Connor v. Huggins, 113 Id. 511 
 
 The Supreme Court of the United States has repeatedly asserted 
 the recognized rule of the Roman law that adverse possession is one 
 of the modes of acquiring title to property. In Campbell v. Holt, 
 115 U. S. 620, Mr. Justice Miller, delivering the opinion of the 
 court, said: " By the long and undisturbed possession of tangible 
 property, real or personal, one may acquire a title to it, or owner- 
 ship, superior in law to that of another, who may be able to prove 
 an antecedent and, at one time, paramount title. This superior or 
 antecedent title has been lost by the laches of the person holding it 
 in failing within a reasonable time to assert it effectively; as, by 
 resuming the possession to which he was entitled, or asserting his 
 right by suit in the proper court. What the primary owner has lost 
 by his laches the other party has gained by continued possession, 
 without question of his right. This is the foundation of the doc- 
 trine of prescription, a doctrine which, in the English law, is mainly 
 applied to incorporeal hereditaments, but which in the Roman law, 
 and the codes founded on it, is applied to property of all kinds." 
 After pointing out the fact that possession was the earliest mode 
 known to mankind for the appropriation of anything tangible to the 
 use of one, and to the exclusion of all others, and that it was always 
 a means of acquiring title, he adds: " The English and American 
 Statutes of Limitations have in many cases the same effect, and if 
 there is any conflict of decisions on the subject, the weight of 
 authority is in favor of the proposition, that where one has had the 
 peaceable, undisturbed, open possession of real or personal prop- 
 erty, with an assertion of his ownership for the period which, under 
 the law would bar an action for its recovery by the real owner, the 
 
 LAW OF PROP. IN LAND — 67
 
 IO58 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 former has acquired a good title, a title superior to that of the lat- 
 ter, whose neglect to avail himself of his legal rights has lost him 
 his title. This doctrine has repeatedly been asserted in this court. 
 Leffingwell v. Warren, 2 Black. 599; Croxall v. Shererd, 5 Wall. 268, 
 289; Dicker son v. Colgrove, 100 U. S. 578, 583; Bicknell v. Comstock, 
 113 Id. 149, 152. It is the doctrine of the English courts, and has 
 been asserted in the highest courts of the States of the Union." 
 
 The principle has also the sanction of two eminent authors on the 
 law of limitations. Judge Cooley, in his recent work referring to 
 this question, says: " When the period prescribed by statute has 
 once run so as to cut off the remedy which one might have had for 
 the recovery of property in the possession of another, the title to the 
 property, irrespective of the original right, is regarded in the law as 
 vested in the possessor, who is entitled to the same protection in 
 respect to it which the owner is entitled to in other cases. A sub- 
 sequent repeal of the limitation law could not be given a retroactive 
 effect so as to disturb this title. It is vested as completely and per- 
 fectly, and is as safe from legislative interference as it would have 
 been had it been perfected in the owner by grant, or by any species 
 of assurance." The learned author, admitting that there is con- 
 troversy in regard to the point, has collected in a note the decisions 
 of the highest courts in several of the States sustaining the doctrines 
 stated in the text. Cooley on Const. Lim. (5th ed.) 449. 
 
 In the other treatise on this subject, which is of highest authority, 
 it is said: " As a general doctrine, it has too long been established 
 to be now in the least degree controverted that what the law deems 
 a perfect possession, if continued without interruption during the 
 whole period which is prescribed by the statute for the enforcement 
 of the right of entry, is evidence of a fee. Independently of posi- 
 tive or statute law, the possession supposes an acquiescence in all 
 persons claiming an adverse interest, and upon this acquiescence is 
 founded the presumption of the existence of some substantial 
 reason, though perhaps not known, for which the claim of an adverse 
 interest was forborne. Not only every legal presumption, but every 
 consideration of public policy, requires that this evidence of right 
 should be taken to be very strong, if not of conclusive force." 
 Angell on Lim., chap. 31, 373. The same learned author seems to 
 treat prescription and adverse possession, so far as this question is 
 concerned, as practically the same thing. Id., chaps, 1, 2. 
 
 These authorities, and others that might be cited, show that title 
 to an <statc in land may be acquired by one and lost by another by 
 means of adverse possession. This principle has become a rule of 
 property that cannot now be disturbed without grave injury to titles.
 
 V. 2.] STATUTE OF LIMITATIONS. IO59 
 
 There is no serious claim that the plaintiff can recover the share 
 which she took direct from her father, and as to the other two shares 
 the plaintiff's remainders are limited upon her mother's life estate 
 which the defendant has absorbed in its adverse possession, and is 
 not yet terminated, as under the principles above stated she had 
 nothing to convey, and nothing passed to the plaintiff under the 
 deed of October, 1885. Hence, the plaintiff's rights are to be deter- 
 mined in this case in the same way as if the deed had not been 
 executed at all. This point is, we think, decisive of the case, and it 
 is not necessary to examine the questions so ably discussed, whether 
 the conveyance offends against the champerty statutes; whether 
 the defendant is entitled to the rights of a mortgagee in possession, 
 or when, and under what circumstances a defendant in ejectment can 
 protect his possession by an outstanding title in another. 
 The judgment should be affirmed. 
 
 SCHOOL-DISTRICT No. 4, in WINTHROP, v. BENSON. 
 31 Maine, 381. — 1850. 
 
 Wells, J. — The jury were instructed, that if, in 1847, the agent of 
 the school district, at the request of the defendants, removed said 
 wood-house where it now is, intending to relinquish and give up the 
 land, and the district had subsequently ratified his acts by their con- 
 duct or otherwise, of which they were the judges, then such abandon- 
 ment, notwithstanding the district might before that time have had 
 an open, adverse, exclusive and notorious possession of the land, or 
 some part of it, for more than twenty years, would operate an 
 abandonment of their possession, and a surrender of their claim to 
 the former owners thereof, and the plaintiffs could not recover the 
 said land in this suit. 
 
 It is true that a mere possession of land of itself does not neces- 
 sarily imply a claim of right. The tenant may hold in subjection 
 to the lawful owner, not intending to deny his right or to assert a. 
 dominion over the fee. But the terms open, notorious, adverse and 
 exclusive, when applied to the mode in which one holds lands, must 
 be understood as indicating a claim of right. They constitute an 
 appropriate definition of a disseisin, and the acts which they describe,, 
 will have that effect if not controlled or explained by other testi- 
 mony. Little v Libbey, 2 Green]. 242; The Proprietors of Kennebec 
 Purchase v. John Springer, 4 Mass. 416. An adverse possession 
 entirely excludes the idea of a holding by consent.
 
 IO60 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 If the plaintiffs have held the premises by a continued disseisin 
 for twenty years, the right of entry by the defendants is taken away, 
 and any action by them to recover the same is barred by limitation. 
 Stat., c. 147, § 1. 
 
 A legal title is equally valid when once acquired, whether it be by 
 disseisin or by deed, it vests the fee simple, although the modes of 
 proof when adduced to establish it may differ. Nor is a judgment 
 at law necessary to perfect a title by disseisin any more than one by 
 deed. In either case, when the title is in controversy, it is to be 
 shown by legal proof, and a continued disseisin for twenty years is 
 as effectual for that purpose as a deed duly executed. The title is 
 created by the existence of the facts, and not by the exhibition of 
 them in evidence. 
 
 An open, notorious, exclusive and adverse possession for twenty 
 years, would operate to convey a complete title to the plaintiffs, as 
 much so as any written conveyance. And such title is not only an 
 interest in the land, but it is one of the highest character, the abso- 
 lute dominion over it, and the appropriate mode of conveying it is 
 by deed. 
 
 No doubt a disseisor may abandon the land, or surrender his pos- 
 session by parol, to the disseisee, at any time before his disseisin 
 has ripened into a title, and thus put an entire end to his claim. 
 His declarations are admissible in evidence to show the character of 
 his seisin, whether he holds adversely or in subordination to the 
 legal title. But the title, obtained by a disseisin so long continued 
 as to take away the right of entry, and bar an action for the land 
 by limitation, cannot be conveyed by a parol abandonment or 
 relinquishment, it must be transferred by deed. One having such 
 title may go out of possession, declaring he abandons it to the 
 former owner, and intending never again to make any claim to the 
 land, and so may the person who holds an undisputed title by deed; 
 but the law does not preclude them from reclaiming what they have 
 abandoned in a manner not legally binding upon them. A parol 
 conveyance of lands creates nothing more than an estate or lease at 
 will. Stat., c. 91, § 30. 
 
 The exceptions are sustained, and a new trial granted.
 
 VI. i.] TITLE BY ESTOPPEL. Io6l 
 
 VI. Title by estoppel. 
 
 1. Estoppel in Deed. 
 PIKE v. GALVIN. 
 
 29 Maine, 183. — 1S4S. 
 
 Shepley, J. — The title of both parties to the demanded premises 
 is derived from Artemas Ward, who, by his agent Robbins, made a 
 contract in writing on October 26, 1820, to convey a tract of land 
 including the premises to Theodore Jellison upon the performance 
 of certain conditions therein stated. Jellison appears to have 
 entered into possession, but does not appear to have performed the 
 conditions. On July 7, 1823, Jellison assigned that contract to the 
 demandant, and on the same day made a deed of release purporting 
 to convey the same tract of land to the demandant. Artemas Ward, 
 on October 27, 1825, by a deed containing covenants of warranty, 
 conveyed a larger tract of land including the tract before named, to 
 Jones Dyer, Jr., who, on July 11, 1829, conveyed to Theodore Jel- 
 lison the tract of land described in his deed to the demandant. 
 Jellison, on May 9, 1833, conveyed the premises demanded to 
 Stephen Emerson. These conveyances were all duly recorded. The 
 defendant is the tenant of Joseph Wyeth and Stephen G. Bass, who 
 have exhibited a title derived from Stephen Emerson. The 
 demandant has never been in possession of the land described in his 
 deed from Jellison, but Jellison and those claiming title from Ward 
 through Jellison have always been in possession. 
 
 As Jellison had no title when he made his deed on July 7, 1823, 
 the demandant can have none, unless that acquired by Jellison on 
 July 11, 1829, inured to him. 
 
 The deed from Jellison to the demandant contains no covenants 
 but the following: " So that neither I, the said Jellison, nor my 
 heirs or any other person or persons claiming from or under me or 
 them, or in the name, right or stead of me or them, shall or will, by 
 any way or means, have, claim or demand any right or title to the 
 aforesaid premises or to any part or parcel thereof forever." 
 
 Without entering upon a discussion of the doctrine or the different 
 aspects of it presented in the very numerous cases which have been 
 decided respecting the effect of covenants contained in a convey- 
 ance of land to transfer to the vendee by inurement, estoppel, or 
 otherwise, a title subsequently acquired, it will be sufficient for the 
 present purpose to state a couple of positions which appear to have 
 been asserted or admitted in many of them.
 
 1062 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 i. When one has made a conveyance of land by a deed contain- 
 ing a covenant of warranty, a title subsequently acquired will be 
 transferred to the vendee, or the vendor and those claiming under 
 him will be estopped to deny it. Such is the doctrine in this State. 
 White v. Erskine, i Fairf. 306; Lawry v. Williams, 13 Maine R. 281; 
 Baxter v. Bradbury, 20 Maine R. 260. In New Hampshire, Kimball 
 v. Blaisdell, 5 N. H. R. 533. In Vermont, Middlebury College v. 
 Cheney, 1 Vermont R. 336. In Massachusetts, Somes v. Skinner, 3 
 Pick. 52; White v. Patten, 24 Pick. 324. In New York, Jackson v. 
 Matsdorf, n Johns. R 91; Jackson v. Bradford, 4 Wend. 619; Pel- 
 letreau v. Jackson, 11 Wend. no. In Ohio, Hill v. West, 8 Ham. 
 222. In the courts of the United States, Terrett v. Taylor, 9 
 Cranch, 53; Mason v. Muncaster, 9 Wheat. 455; Stoddard v. Gibbs, 
 1 Sum. 263. 
 
 Against these and other decisions to the same effect, it has been 
 contended, that " the old common-law warranty has no practical 
 operation under the system of conveyancing employed in this coun- 
 try, except in the single case of release with warranty to a party in 
 adverse seisin of an estate, and of a subsequent descent of the right 
 of entry or action to the warrantor." And that " the doctrine of 
 estoppel in deeds cannot be based upon that of warranty." Doe v. 
 Oliver, Smith's L. C. 460, in note. If the question could be consid- 
 ered as open to discussion, it might be worthy of deliberate consid- 
 eration. But it would seem to be too late to entertain it. 
 
 2. Where one has made a conveyance of land by deed containing 
 no covenant of warranty, an after-acquired title will not inure or be 
 transferred to the vendee; nor will the vendor be estopped to set up 
 his title subsequently acquired, unless by doing so he be obliged to 
 deny or contradict some fact alleged in his former conveyance. 
 
 There is an irreconcilable difference in the decided cases respect- 
 ing this proposition. It is believed, however, to be fully established 
 by the better-considered opinions, and to be in accordance with well 
 established principles. 
 
 It is sustained in this State by the cases of Allen v. Sayward, 5 
 Greenl. 227, and //am v. Ham, 14 Maine R. 351; and opposed by 
 the 1 ase of Fairbanks v. Williamson, 7 Greenl. 96. In New Hamp- 
 shire it is sustained by the case of Kimball v. Blaidsdell, 5 N. H. R. 
 533. In Massachusetts it is sustained by the cases of Somes v. 
 Skinner, 3 Pick. 61 ; Blanchard v. Brooks, 12 Pick. 47; Comstock v. 
 Smith, 13 Pick. 116; and opposed by the case of Trull v. Eastman, 3 
 Mete. [2i. In Connecticut it is sustained by the case of Darts. 
 I hni. 7 Conn. R. 250. In New York it is sustained by the cases of 
 Jackson v. Wright, 14 Johns. R. 193; Jackson v. Bradford, 4 Wend.
 
 VI. i ] TITLE BY ESTOPPEL. IO63 
 
 619; Pelletreau v. Jackson, 11 Wend, no; Jackson v. Waldron, 13 
 Wend. 178. And it may be considered as opposed by the cases of 
 Jackson v. Bull, 1 Johns. Cas. 81, and Jackson v. Murray, 12 Johns. 
 R. 201. If they be so considered, they were overruled by the case 
 of Pelletreau v. Jackson. In Ohio it is sustained by the case of 
 Kinsman v. Loomis, n Ohio, 475. 
 
 The only suitable inquiry to be entertained in this State is, 
 whether our own case of Fairbanks v. Williamson, although the doc- 
 trine asserted in it may have been approved elsewhere, as well as in 
 the case of White v. Erskine, can, upon sound principles, be sus- 
 tained. The deed in that case, contained no covenant but that of 
 non-claim. The ground, upon which it was decided that a title sub- 
 sequently acquired inured to the vendee appears to have been that 
 the covenant of non-claim was "a covenant real, which runs with 
 the land and estops the grantor and his heirs to make claim, or set 
 up any title thereto." 
 
 Covenants which relate to the land, are said to run with the land. 
 Sale v. Kitchingam, 10 Mod. 158; Norman v. Wells, 17 Wend. 136. 
 But a covenant, which may run with the land, can do so only when 
 the land is conveyed. It can only run, when attached to the land, 
 as its vehicle of conveyance. Spencer's Case, 5 Coke, 17 b; Lucy v. 
 Levingston, 2 Lev. 26; Lewes v. Ridge, Cro. Eliz. 863; Bickford v. 
 Page, 2 Mass. 460; Slater v. Rawson, 1 Mete. 456; White v. Whitney, 
 3 Mete. 81; Clark v. Swift, 3 Mete. 390; Chase v. Weston, 12 N. H. 
 413; Garfield \. Williams, 2 Verm. 327; Beardsley v. Knight, 4 Verm. 
 471; Mitchell s.Warner, 5 Conn. 497; Kane v. Sanger, 14 Johns. 89; 
 Beddoev. Wadsworth, 21 Wend. 120; Garrison v. Sandford, 7 Halst. 
 261; Randolph v. Kinney, 3 Rand. 394; Backus v. McCoy, 3 Ham. 
 211; Aliens. Wooley, 1 Blackf. 149. The cases of Kingdon v. Nottle, 
 1 M. & S. 353, and 4 M. & S. 53, are denied to have been correctly 
 decided in Mitchell v. Warner, 5 Conn. 497, and in Clark v. Swift, 3 
 Mete. 390. Kent, also, in speaking of covenants which run with 
 the land, says: "They cannot be separated from the land and 
 transferred without it, but they go with the land, as being annexed 
 to the estate." 4 Kent's Com. 472, note b. 
 
 Admitting the covenant in the deed alluded to in Fairbanks v. 
 Williamson, to be a covenant that might run with the land, it could 
 not run or be transferred by law to the assignee of the grantee, so 
 as to enable him to derive any benefit from it. Nor could it operate 
 in his favor by way of estoppel to prevent circuity of action, for he 
 could maintain no action on that covenant. Nor could it so operate 
 in any other mode, unless there had been found some allegation in 
 the deed by which the releasor had asserted some matter to be true,
 
 1064 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 which he must necessarily contradict, and deny to have been true, 
 if he would claim to be the owner of the land. In such case he 
 would have been estopped, because the law will not permit one who 
 has in such a solemn manner admitted a matter to be true, to allege 
 it to be false. " This," says Kent, " is the reason and foundation 
 of the doctrine of estoppels." 4 Kent's Com. 261, note d. ; where 
 he also says, " A release or other deed, when the releasor or grantor 
 has no right at the time, passes nothing, and will not carry a title 
 subsequently acquired, unless it contains a clause of warranty; and 
 then it operates by way of estoppel, and not otherwise." The cove- 
 nant of non-claim asserts nothing respecting the past or the pres- 
 ent. It is only an engagement respecting future conduct. 
 
 One who acquires no title by a release without covenants respect- 
 ing the title cannot recover back the purchase money which he paid 
 for it. Emerson v. The County of Washington, 9 Greenl. 88. To per- 
 mit him to acquire a title subsequently purchased by his releasor 
 would often enable him to obtain in another and less direct mode 
 property of more value than the purchase money. 
 
 The conclusion is that the doctrine asserted in the case of Fair- 
 banks v. Williamson cannot, upon sound principles, be admitted, and 
 that the decided cases in this and other States are opposed to it. 
 
 When Jellison made his deed of release to the demandant, he was 
 in possession in submission to the title of Ward, and was but a ten- 
 ant at will to him. Not being seised of a fee simple, he could not 
 convey it. The demandant must have known, when he received 
 that deed, that Jellison had no title and could convey none, for he 
 at the same time took an assignment of Jellison's contract to pur- 
 chase that land of Ward. He subsequently acted as an appraiser to 
 make a levy and to pass the title to a part of that land from a grantee 
 of Jellison to a creditor of that grantee. There is no allegation in 
 the deed of Jellison to the demandant respecting the title which it 
 would be necessary for Jellison or his grantee to deny or contradict 
 by setting up a title subsequently acquired. 
 
 Demandant nonsuit. 
 
 2. Estoppel tn r.irs — Equitablf, Estoppel. 
 BLAKESLEE v. SINCKPAUGH. 
 71 Hun, 412. — 1893. 
 \< ii'>\- to recover real estate. 
 
 Mi iwiN', J. — Upon the trial of this action it was shown on the 
 part of the plaintiff that Ilavilla D. I'.lakcslee, by deeds dated Sep- 
 tember 25, 1834, and September 22, 1838, became the owner of a
 
 VI. i.] TITLE BY ESTOPPEL. IO65 
 
 quantity of land, and thereafter, by deed dated December 3, 1880, 
 and duly recorded December 4, 1880, he, with his wife, conveyed 
 the same to the plaintiff, excepting sixteen acres theretofore 
 conveyed to the plaintiff. The premises in dispute are a part of 
 the lands described in these deeds. The consideration of the 
 deed of December 3, 1880, as stated in the deed is the sum of 
 one dollar and the maintenance and support of the parties of the 
 first part during their natural lives. It was then shown on the part 
 of the defendant, that Havilla D. Blakeslee and wife, by warranty 
 deed dated December 1, 1882, and recorded December 5, 1882, con- 
 veyed the premises in dispute to the defendant for the consideration 
 therein named of $680, which defendant at the time paid to the 
 grantor or the person acting for him. Havilla D. Blakeslee was the 
 grandfather of plaintiff, and evidence was given tending to show 
 that plaintiff at this time lived with his grandparents, on the farm 
 of which the premises in question were a part; that he knew of the 
 negotiations for the purchase by defendant of the grandfather; that 
 during these negotiations the defendant saw the plaintiff, told him 
 he was talking about buying a piece of land of his grandfather, and 
 had heard that he, the plaintiff, had an interest in it, and asked him 
 whether that was so, and whether he had any deed or mortgage 
 against it; and he, the plaintiff, replied that he had no deed or 
 mortgage against it, and had no interest in his grandfather's prem- 
 ises; that the plaintiff at the time knew that he was the legal owner 
 of the property, and made the statement to defendant with intent to 
 deceive him and induce him to buy of his grandfather; that the 
 defendant thereupon, in reliance upon the truth of the plaintiff's 
 statement, and in ignorance of the true state of the title, made the 
 purchase of the grandfather. 
 
 The plaintiff denied making the representations or that he knew 
 that his deed covered the property conveyed to defendant. It was 
 also shown that plaintiff was then a minor, having been born March 
 6, 1862. 
 
 At the close of the evidence the counsel for plaintiff asked the 
 court to direct a verdict for the plaintiff upon several gounds, chiefly 
 that the evidence upon the part of the defendant was not sufficient 
 to constitute an estoppel; that at the time of the alleged statements 
 the plaintiff was an infant, and that if he made the statements he 
 did not know at the time whether or not he owned the land, and that 
 no fraud was shown upon his part, and that the defendant was guilty 
 of negligence in not causing the records to be searched. The court 
 denied the motion and stated that in its opinion the better way to 
 dispose of the case was to submit it to the jury on four questions:
 
 1066 TITLE BY ORIGINAL ACQUISITION. [PT. VI. CH. I. 
 
 " First, whether these statements were made by the plaintiff to the 
 defendant; second, whether the plaintiff had knowledge at the time 
 he made them that he was the legal owner of this land; third, 
 whether they were made by the plaintiff with the intention that they 
 should be acted upon by the defendant in the purchase of the land; 
 fourth, whether they were acted upon, and relied upon by the 
 defendant when the land was purchased by him." The plaintiff's 
 counsel duly excepted to such ruling and to the denial of the motion. 
 The case was thereupon submitted to the jury upon the line sug- 
 gested by the court, and a general verdict rendered for the defend- 
 ant. There was no exception to the charge and no request that any 
 other question should be submitted to the jury. 
 
 i. The first proposition now presented by the plaintiff is, that the 
 plaintiff, being an infant at the time of making the alleged state- 
 ments, was not estopped thereby. 
 
 Assuming, as we must, that the facts, so far as warranted by the 
 evidence, were found against the plaintiff, we have here a case of 
 intentional fraud. In Spencer v. Carr, 45 N. Y. 406, where, as here, 
 it was claimed that an infant was barred of her title by an equitable 
 estoppei, it was held that in the absence of intentional fraud upon 
 her part she would not be estopped, and that as that was not found 
 she would not be deprived of her legal rights. The inference is, 
 that if there was intentional fraud, the doctrine of equitable estoppel 
 would apply notwithstanding infancy The opinion of the court 
 in the case strongly supports this inference, in cases where the infants 
 are of sufficient age to appreciate their rights and duties. We are 
 referred to no case in this State where the views suggested in Spencer 
 v. Carr are criticised. In Brumfield v. Boutall, 24 Hun, 457, the 
 question of fraud on the part of the infant was not up, nor was it in 
 Sherman v. Wright, 49 N. Y. 231. The same may be said as to Ackley 
 v. Dygert, 33 Barb. 176. In Brown v. McCune, 5 Sandf. 224, decided 
 in 1851, it was held that fraudulent representations as to his age 
 did not bind an infant. This case was critcised, and the opposite 
 held in Eckstein v. /''rank, 1 Daly, 334. In Green v. Green, 69 
 N. Y. 553, a father had taken a deed from his minor son and paid 
 him the consideration, and the question was whether the son, on 
 be< oming of age, could repudiate the deed without restoring the 
 consideration. It was held that he could, it appearing that the 
 money was spent and he had no other property with which to replace 
 it. There was no question of fraud in the case. 
 
 In 1 Story's Equity, ii 385, it is said in reference to cases like the 
 pre •'■nt, that " cases of this sort are viewed with so much disfavor 
 by 1 ourtsof equity, thai neither infancy nor 1 -overture will constitute
 
 VI. I.] TITLE BY ESTOPPEL. I067 
 
 any excuse for the party guilty of the concealment or misrepresenta- 
 tion; for neither infants nor femes covert are privileged to practice 
 deceptions or cheats on other innocent persons." In 2 Sugden on 
 Vendors (8th Am. ed.), 507, chap. 23, § 1, pi. 17, it is said: " If a 
 person having a right to an estate permit or encourage a purchaser 
 to buy it of another, the purchaser shall hold it against the person 
 who has the right, although covert, or under age." In 2 Pomeroy's 
 Equity, § 815, it is said: " An equitable estoppel arising from his, 
 the infant's conduct may be interposed, with the same effect as 
 though he were adult, to prevent him from affirmatively asserting a 
 right of property or of contract in contravention of his conduct 
 upon which the other party has relied and been induced to act." 
 Numerous cases are cited to each of the quoted propositions. The 
 same rule is stated in Bigelow on Estoppel, 448. See, also, note in 
 44 Am. Dec. 386; Bispham's Eq. § 293. There is no doubt in the 
 present case that the infant was of sufficient age to appreciate his 
 rights and duties. He lacked only a few months of being of age. 
 The rule to be inferred from the Spencer Case, as to the application 
 of the doctrine of equitable estoppel to infants, while it may not be 
 entirely consistent with the supposed disability and need of protec- 
 tion of infants, has, I think, the weight of authority in its favor, and 
 it should be followed by us in this case. The court below, therefore, 
 properly held that the fact that plaintiff was an infant did not of 
 itself relieve him. 
 
 2. The plaintiff further claims that he should not be estopped 
 because he had no knowledge that he owned the land in dispute. 
 This, however, upon the evidence was a question of fact and was 
 found adversely to plaintiff. 
 
 3. It is further claimed that the burden of proof is on the defend- 
 ant, and that the testimony being evenly balanced defendant must 
 fail. It is true that the burden of proof was on the defendant, and 
 that statements testified to by the defendant were denied by the 
 plaintiff. It was, however, for the jury to determine where the 
 truth was, and there were many surrounding circumstances that bore 
 upon the question. 
 
 4. It is further claimed that the defendant was guilty of laches in 
 neglecting to consult the records in the clerk's office, and the case of 
 Trenton Banking Co. v. Duncan, 86 N. Y. 221, is cited in support 
 of the proposition. In that case the plaintiff, who sought the benefit 
 of an estoppel, neither looked at the record nor made any inquiry of 
 anybody as to the ownership of the property, and it was held that it 
 failure to examine the record and make inquiry prevented its 
 recovery. The present case is materially different. So in McCul-
 
 I068 TITLE BY ORIGINAL ACQUISITION. [l'T. VI. CH. I. 
 
 loch v. Wellington, 21 Hun, 5, there were no representations by the 
 owner, but, as said in the opinion at page 14, it was the case of a 
 purchaser who, from his confidence in the vendor, or from other cir- 
 cumstances, not imputable to the claimant, has purchased property 
 and omitted to make the necessary and ordinary examination of title. 
 In Lyon v. Morgan, 19 N. Y. Supp. 201, the effect of failure to 
 examine the record was not determined, and the case was decided 
 upon other grounds. 
 
 If the present case was one where the owner was simply silent, it 
 may be that the constructive notice from the record would prevent 
 the defendant from receiving any benefit from the doctrine of 
 estoppel. But assuming that there were false representations and 
 intentional fraud, the rule would be different. Brinckerhoff v. Lan- 
 sing, 4 Johns. Ch. 65; Fisher v. Mossman, 11 Ohio St. 47. As said 
 by Judge Strong in Hill v. Eplcy, 31 Penn. St. 334: " It should 
 never be forgotten that there is a wide difference between silence 
 and encouragement." 
 
 " A party setting up an equitable estoppel is himself bound to the 
 exercise of good faith and due diligence to ascertain the truth." 
 2 Story Eq. (12th ed.) § 1553b. Whether the defendant in that 
 respect was negligent under the circumstances of the present case 
 was a question of fact. Moore v. Botvman, 47 N. H. 494. The court 
 below was, therefore, correct in holding that it should not be said, 
 as a matter of law, that the defendant was guilty of negligence. 
 
 5. The appellant claims that incompetent testimony was admitted 
 to his prejudice, but we find no ruling that supports this contention. 
 
 No other question is presented. It follows that the judgment 
 should be affirmed.
 
 CHAPTER II. 
 Title by Derivative Acquisition. 
 
 I. From the state. 
 
 Lewis, C. J., in THE MAYOR v. THE OHIO AND PENNSYL- 
 VANIA RAILROAD COMPANY. 
 
 26 Pennsylvania State, 355. 
 
 It must be remembered that the ground was public ground, 
 owned and in charge of the public municipal authorities, for public 
 uses. It may also be inferred that the grant was made on the appli- 
 cation of the railroad company, and on their own representation of 
 the quantity of ground which they deemed it necessary to occupy. 
 In the construction of a grant it is important to have respect to the 
 estate of the grantor, to the consideration which leads the estate, 
 and to the recompense and loss which is sustained. Gough v. 
 Howard^ 3 Bulst. 125. Where a grant is made by the king at the 
 suit of the grantee, it is to be taken most beneficially for the king 
 and against the grantee. 2 Bl. Com. 347; Hob. 243; Hard. 309. 
 A grant made by the commonwealth, or by a municipal corporation 
 under authority derived from the commonwealth, at the instance 
 and for the convenience of a railroad company, is governed by the 
 same rule of construction, and nothing is to be taken by implication 
 against the public, except what necessarily flows from the nature and 
 terms of the grant. 
 
 II. From individuals by involuntary alienation. 
 
 1. Title by Eminent Domain. 1 
 
 EATON v. B. C. & M. RAILROAD. 
 
 51 New Hampshire, 504. — 1872. 
 [Reported herein at p. 1.] 
 
 1 The cases illustrate the exercise of the power by corporations under the 
 authority of the state. See also pp. 141 and 120, note. The matter is largely 
 regulated by statute. For the New York Law, see Code Civ. Proc, §§ 3357— 
 3384. — Ed. 
 
 [1069]
 
 I070 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 WHEELER v. KIRTLAXD. 
 27 New Jersey Equity, 534. — 1875. 
 [Reported herein at p. 698.] 
 
 2. Title by Marriage. 1 
 RILEY'S ADMINISTRATORS v. RILEY. 
 
 19 New Jersey Equity, 229. — 1868. 
 [Reported herein at p. 26.] 
 
 BABB v. PERLEY. 
 
 1 Maine, 6. — 1820. 
 [Reported herein at p. 2S.] 
 
 HOUGHTON v. HAPGOOD. 
 
 13 Pickering (Mass.), 154. — 1832. 
 
 [Reported herein at p. 24.] 
 
 FEARS v. BROOKS. 
 
 12 Georgia, 195. — 1852. 
 [Reported herein at p. 571.] 
 
 3. Title by Bankruptcy. 5 
 JOHNSON v. GEISRITER. 
 
 26 Arkansas, 44. — 1870. 
 
 McClure, J. — On the 3d of September, 1867, Geisriter executed 
 and delivered his note to W. W. Johnson, for $600, payable one year 
 
 1 Dower inchoate is rather a lien or charge than a title. Curtesy inchoate is an 
 except in those States where the wife can, by her separate deed, convey the 
 land free and clear of her husband's claim. Dower assigned and curtesy con- 
 ■ intimate are of 1 ourse estates. — Ed, 
 
 5 This is governed by Btatutory regulations in the various States except when 
 thrrc is a general bankruptcy act in force, in which case the federal courts may
 
 II. 3-] FROM INDIVIDUALS BY INVOLUNTARY ALIENATION. IO7I 
 
 after date. W. W. Johnson assigned said note to one Ben S. John- 
 son, the plaintiff in this action, who brought suit on the same. 
 
 Geisriter answered, setting up that W. W. Johnson had filed his 
 petition in bankruptcy; that, at the time of filing said petition, said 
 Johnson was the owner of the note sued on; that said note was not 
 included in Johnson's schedule of assets, and that he had no right 
 or authority to assign the same; that said W. W. Johnson, long after 
 the filing of said petition in bankruptcy, was the owner of said note; 
 that the assignment to Ben S. Johnson, the plaintiff, was and is null 
 and void, and that said plaintiff acquired no legal title by reason of 
 said assignment. 
 
 To this answer the plaintiff demurred on the ground that " the 
 answer does not state facts sufficient to constitute a defense." 
 
 The court overruled the demurrer, the plaintiff rested, and judg- 
 ment was for the defendant. The plaintiff appealed. 
 
 The question presented is whether a bankrupt can assign prop- 
 erty that ought to have been scheduled, after having filed a petition. 
 
 The demurrer admits the filing of the petition of bankruptcy, by 
 W. W. Johnson, the ownership by him of the note at the time o 
 filing the petition, that it was not included in the schedule of assets 
 of said Johnson, and that long after the filing of the petition in bank- 
 ruptcy, Johnson was the owner of the note. 
 
 The appellant urges that a bankrupt's assets do not pass to the 
 assignee until the assignee has been appointed and qualified. 
 
 The bankrupt act requires the petitioner to make a schedule of his 
 assets and liabilities. It also declares that, upon the appointment 
 of the assignee and his qualification, the judge, or, where there is no 
 opposing interest, the register shall, by an instrument under his 
 hand, assign and convey to the assignee all the interest, real and 
 personal, of the bankrupt, and that such assignment shall relate back 
 to the commencement of said proceedings in bankruptcy; and there- 
 fore, by operation of law, the title to all such property and estate, 
 both real and personal, shall vest in said assignee, * * * and 
 shall dissolve any attachment made within four months next preced- 
 ing the commencement of said proceedings. The nth section of 
 the act declares: " The filing of such petition shall be an act of 
 bankruptcy, and such petitioner shall be adjudged a bankrupt." 
 
 The appellant urges that the answer does not disclose that the 
 petitioner had been adjudged a bankrupt, or that an assignee had 
 
 restrain the state courts from proceeding in such cases. In re Miller, 6 Biss. 
 30, Fed. Cases No. 9551. See the National Bankruptcy Act of 1898, for the 
 present law. The provisions of the New York statute are to be found in the 
 Code Civ. Proc, §§ 2149-221S. — En.
 
 IO72 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 been appointed and qualified. The language of the nth section is, 
 that " the filing of the petition shall be an act of bankruptcy, and 
 such petitioner shall be adjudged a bankrupt." We construe this 
 language to mean that a petitioner shall be deemed a bankrupt from 
 the day on which he files his petition. 
 
 The moment the petition is filed the bankrupt is civilly dead. 
 During the interval existing between the filing of the petition and 
 the appointment of the assignee, a condition of things exists not unlike 
 that in the case of a person dying intestate, and before the appoint- 
 ment of an administrator. On the death of a person intestate, no one 
 is authorized to dispose of or assign his assets. A bankrupt is 
 civiliter mortuus, from the day on which he files his petition, and 
 during the interval, between the filing of the petition and the 
 appointment of the assignee, no assignment of his assets can be 
 made. A judgment rendered against a bankrupt, after the filing of 
 the petition, and before the appointment of an assignee, is as much 
 a nullity as a judgment rendered against a deceased person, who has 
 no legal representative. If no valid judgment can be rendered 
 against a bankrupt at such a time, it is not at all probable that the 
 law gives him the power to make a valid assignment of assets that 
 should, and which the appellant admits, ought to have been placed 
 in the schedule. 
 
 The judgment of the Jefferson County Court is affirmed with costs. 
 
 4. Title by Sale Under an Execution. 1 
 
 NORTHERN BANK OF KENTUCKY v. ROOSA. 
 
 13 Ohio, 335. — 1S44. 
 [Reported herein at p. 10.] 
 
 WEBSTER v. PARKER. 
 
 42 Mississippi, 465. — 1869. 
 
 [Reported herein at p. 42.] 
 
 1 Th are regulated by statute. Usually a period of some months is 
 
 allowed foi redemption before tin- sheriff gives the deed. For the New York 
 
 Statute see Code Civ. Proc, .'.' 1430 1478, Homestead rights are exempt from 
 execution sale, id., ,';' 1 197 1 \Ql. — ED.
 
 III. i.] FROM INDIVIDUALS BY INVOLUNTARY ALIENATION. IO73 
 
 5. Sales by Guardians, Executors, Administrators, Etc. 1 
 
 HOUGHTON v. HAPGOOD. 
 
 13 Pickering (Mass.), 154. — 1832. 
 
 [Reported herein at p. 24.] 
 
 MARCH v. BERRIER. 
 
 6 Iredell's Equity (N. C), 524. — 1350. 
 
 [Reported herein at p. 70.] 
 
 6. Sales by Judicial Decree. 
 LANE v. KING. 
 
 8 Wendell (N. Y.), 584. — 1832. 
 [Reported herein at p. 197 ,] s 
 
 7. Tax Sales. 3 
 
 III. From individuals by voluntary alienation inter vivos. 
 1. Common L^v Conveyances. 
 
 a. Primary.* 
 
 b. Secondary. 5 
 
 1 Executors may be empowered by the will to sell. In all oLher cases they 
 can sell only when duly authorized by the proper court. New York Code Civ. 
 Proc, §§ 2749-2801. For the N. Y. statutory proceeding for the disposition of 
 the reai property of an infant, lunatic, idiot or habitual drunkard, see Code Civ. 
 Pro., §§ 2345-2364. — Ed. 
 
 2 In many States a sale on foreclosure does not cut off the equity of redemp- 
 tion until the expiration of a certain time (fixed by statute) after the sale has 
 taken place. — Ed. 
 
 3 These are regulated wholly by statute. See for New York the "Tax Law " 
 of 1896. — Ed. 
 
 4 These are feoffment, gift, grant, lease, exchange and partition. — Ed. 
 
 5 These are release, confirmation, surrender, assignment and defeasance. 
 Examples of many of the forms of common law conveyances will be found in 
 the cases already reported. — Ed. 
 
 LAW OF PROP. IN LAND — 6S
 
 IO/4 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 2. Conveyances Operating Under the Statute of Uses, 1 
 VERDIN v. SLOCUM. 
 
 71 New York, 345. — 1877. 
 
 Earl, J. — The appellant Thompson, the purchaser, at a mort- 
 gage foreclosure sale, seeks to be released from his purchase upon 
 the claim that the proceedings in the foreclosure action above 
 entitled, are so defective as not to give him a good title. He insists 
 upon several defects, but one of which it will be necessary to con- 
 
 isider, and that is, that a judgment-creditor of William B. Slocum 
 should have been made a party to the action. H iram Slo cum died 
 seised of the mortgaged premises subject to the mortgage. He left 
 a will in which he devised his estate, including these premises, to his 
 executors upon trust that they should divide the same into three 
 parts; and, as to one-third part, he provided as follows: " I direct 
 my said trustees to permit and suffer my son William B. Slocum to 
 have, receive and take the rents, issues and profits thereof for the 
 term of his natural life; and after his decease, I give, devise and 
 bequeath the same part or share to the heirs-at-law of my said son." 
 It is claimed on the part of the plaintiff, that these provisions created 
 a valid, express trust, and hence that the legal title was vested in 
 the trustees, and that the judgment did not become a lien upon the 
 one-third thus devised, and hence that the judgment-creditor was 
 not a necessary party, and this was the view taken in the court 
 below. On the part of Thompson it is claimed that the trust was 
 invalid, and hence that William B. Slocum took a life estate in the 
 land upon which the lien of the judgment attached, and hence that 
 the judgment-creditor should have been made a party, and this 
 claim we believe to be well founded. The trust attempted to be 
 created is a passive one, and condemned by the statute. The trus- 
 tees had no active duties to discharge. They were not " to receive 
 the rents and profits of lands, and apply them to the use " of Wil- 
 liam B. Slocum, or to pay them over to him. 1 R. S. 729, § 55. 
 But they were directed " to permit and suffer " him " to have, 
 receive, and take the rents " and profits. They had no discretion 
 to exercise. They could not refuse the permission, and they could 
 in no way exercise any control over the rents and profits. That 
 h a trust is condemned by the statute has never been doubted. 
 Parki v. Parks, 9 Paige, 107; /arris v. Babeock, 5 Barb. 139; Beek- 
 man v . Bonsor, 23 N. Y. 298, 314, 316. William B. Slocum was 
 entitled to the possession of the land and to the rents and profits 
 
 1 For the origin of these, see j>. 854 supra. — Ed.
 
 III. 4] DEEDS. IO75 
 
 thereof, during his life, and hence the statute vests the legal title in 
 him for the same term. 1 R. S. 727, §§ 47, 49; Craig v. Craig, 3 
 Barb. Chy. 77. It follows, therefore, that the judgment was a lien, 
 and that the life estate was affected thereby, and for this defect the 
 motion should have been granted. 1 
 
 WYMAN v. BROWN. 
 
 59 Maine, 137. — 1863. 
 [Reported herein at p. 909.] 
 
 3. Grants. 3 
 
 4. Modern Transfers. 3 
 
 a. By deed or by parol ?* 
 
 b. Requisites for (and of) a deed of conveyance. 
 
 (1.) Competent Parties. 6 
 
 THOMAS v. WYATT. 
 
 31 Missouri, 188. — i860. 
 
 Ejectment. — Plaintiff claims under the " Samuel Johnson" certi- 
 ficate which appears to have been assigned to him the same day it 
 
 1 The above case illustrates the direct form of a conveyance operating under 
 the statute of uses. The practical conveyances of this sort, however, are the 
 covenant to stand seised, the deed of bargain and sale, and the deed of lease 
 and release. Most of these forms of conveyances are now construed as 
 "grants." § 211, N. Y. R. P. L. — Ed. 
 
 -Originally the common-law method of conveying interests not lying in 
 livery, grants are now by statute in England and most States, the customary 
 form of conveyance of corporeals in possession. — Ed. 
 
 3 The case of Wyman v. Brown, reported supra, p. 909 contains on pp. 
 916-917 a discussion of the nature of transfers by virtue of our modern 
 statutes. — Ed. 
 
 4 See N. Y. R. P. L., §§ 207, 208. The express requirement for a seal to a 
 grant, contained in 1 R. S. 738, § 137, is omitted here, and, as will be seen from 
 the report of the commissioners, purposely. It would seem, however, from the 
 forms in § 223, R. P. L., that grants are still to be made by deed. See for old 
 rule, Jackson v. Wood, 12 Johns. 73. An instrument without seal will carry the 
 equitable title, at least. Todd v. Eighmie, 4 App. Div. (N. Y. Supreme 
 Ct.) 9. — Ed. 
 
 5 No special cases are here given to illustrate the subject of signing, acknowl- 
 edging, witnessing or registering a deed. — Ed. 
 
 6 See under part V. supra. — Ed.
 
 IO76 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 was issued — Aug. 19, 1829. The patent was issued on this certi- 
 ficate in 1843. Thomas thereafter brought a suit in equity against 
 " Samuel Johnson " and obtained a decree vesting Johnson's legal 
 title in him. Service of process in this suit was by order of publi- 
 cation. 
 
 In 1845 another patent was issued for the same premises and on 
 the same certificate to one Samuel M. Coleman as assignee of 
 " Samuel Johnson." Coleman conveyed part of the tract to defend- 
 ant who is in possession. Judgment for plaintiff. Defendant 
 appeals. 
 
 Scott, J. * * * The ground, on which the defendant repelled 
 the plaintiff's right to a recovery, was that Johnson was a fictitious 
 person; that there was no such man in being, and therefore the 
 patent was void, and the plaintiff could not derive any title from it 
 or the patentee. There is no doubt that a patent issued to a person 
 not in existence is void. This was the view taken of this case when 
 it was formerly here. But now we have more light upon it, and 
 although we adhere to the opinion then expressed, we doubt whether 
 it is applicable to the case as it is now presented. The only theory 
 that will solve the question involved in this litigation (and we think 
 there is sufficient evidence to put it to a jury) is, that Samuel John- 
 son is an assumed name of James Coleman, and not a fictitious per- 
 son. If we regard Coleman as usurping the name of Johnson when 
 it suited his purposes, we have a clue by which we may be guided 
 to the justice of this case. We have no doubt that this was the light 
 in which this matter was viewed in the court below, but as the case 
 was tried by a jury we do not conceive that the language of the 
 instruction was sufficiently pointed to direct their attention to the 
 matter really in issue. If James Coleman used the name of Samuel 
 Johnson to designate himself, when he thought proper, and made 
 the entry in the name of Samuel Johnson for himself, merely using 
 that name as he would the one by which he was usually known, and 
 endorsed it in the name of Samuel Johnson with the same view, then 
 the transaction is to be regarded as though James Coleman had 
 used instead of the name " Samuel Johnson " the name of " James 
 Coleman." So the patent to Samuel Johnson is to be regarded as 
 to James Coleman and not to a fictitious person. 1 knew an indi- 
 vidual once, who was sued in an action in which heavy damages were 
 < laimed, and during its pendency he entered a great quantity of land 
 in his name reversed or spelt backwards. Now no one supposed 
 that, if a judgment had gone against him, that the title had not 
 passed from 1 he I ' nited States so that the land would have been sub- 
 jei t to tin claim of the creditor, So we suppose it is competent to
 
 III. 4.] DEEDS. IO77 
 
 the party here to prove that James Coleman was Samuel Johnson or 
 James Coleman, just as it suited his purposes; that he was a man 
 who used two names; that to effect his ends he endeavored to make 
 it appear that he was two different persons. It matters not whether 
 it was generally known that hcwent by two names or not. The law 
 is the same, though he was known by one name only, as though he 
 was known by both. If a man signs a bond by a name by which he 
 was never called or known, or which he had never used before, he 
 would be bound by it. Carpenter v. Williams^ 2S Mo. 460. * * * 
 This case, then, depends on facts to be determined by a jury. 
 These facts are whether James Coleman and Samuel Johnson were 
 not the same identical person, and the name Samuel Johnson was 
 assumed by Coleman to carry out his fraudulent designs. If these 
 facts are found, the plaintiff will be entitled to recover If, on the 
 other hand, the jury believe from the evidence that the government, 
 in issuing the patent, intended it for another person distinct and 
 separate from James Coleman, and that there was no such person 
 ever in existence, then, in the nature of things, no title could pass 
 by the patent. 
 
 Reversed and remanded. 
 
 (2.) Real Property to be Conveyed. 
 
 DART v. DART. 
 
 7 Connecticut, 250. — 1828. 
 
 Ejectment to recover an undivided fifth-part of certain land. 
 Roger Dart devised the demanded premises to his sons William and 
 Soiomon, their heirs and assigns forever, upon certain conditions 
 and with the following limitation : ' ' My will further is that my sons 
 shall not either of them sell or dispose of the lands, which I have 
 herein given to each of them, from their lawful male issue; and in 
 case either of my sons should die without lawful male issue, in such 
 case, his land hereby given shall revert, and become the estate of 
 my surviving sons or their male issue." Solomon entered on the 
 land and in 1794, together with his son Solomon, Jr., quitclaimed to 
 defendants. Later by a separate deed his other son, Caleb (the 
 plaintiff), quitclaimed to the same parties. Solomon, Senior, died 
 in 1825. 
 
 The judge charged the jury that Solomon, Senior, took an estate 
 in tail male and not a life-estate. That title did not vest in Caleb 
 till his father's death, and that plaintiff is not estopped by his deed.
 
 IO78 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CM. II. 
 
 Peters, J. — This case presents three questions. 1. What estate 
 did Solomon Dart the elder take under this devise? 2. What estate 
 passed from the plaintiff to the releasees? 3. Is the plaintiff estopped 
 by his deed to them? 
 
 To answer the first question, we must ascertain the intention of 
 the devisor; and this can be learned only from his will. His first 
 object seems to have been, to provide for his sons, during their 
 lives; the second, to perpetuate his estate in his name and family. 
 This, according to the notions of those days, could be effected only 
 by an entailment. He therefore used expressions, which have 
 always been understood to create an estate tail. In the first place, 
 he created an estate of inheritance in his sons. He then forbade 
 their selling it away from their lawful male issue. And lastly, he 
 provided, that if either of his sons should die without such issue, his 
 land should revert, and become the estate of his surviving sons, or 
 their male issue. This completed the entailment in perpetuity, 
 according to his views; though not according to the modern decis- 
 ions. Chappel v. Brewster, Kirby, 175; Hamilton v. Hempstead, 3 
 Day, 332. 
 
 But the defendants claim, that Solomon, the devisee, took an estate 
 in fee simple conditional or in remainder. I am satisfied, upon the 
 authority of many adjudged cases, both English and American, that 
 he took an estate in tail male general. * * * 
 
 2. What estate passed from the plaintiff, by his deed to the 
 releasees? By the common law, a release is a secondary conveyance, 
 and is a discharge of a man's right in land or tenements to another, 
 who hath some former estate in possession. Shep. Touch. 318; 2 
 Bl. Com. 328. But in this State, a release is considered as a primary 
 conveyance, and passes all the right of the releasor to the releasee, 
 provided no other person be in possession adversely; and operates 
 as a conveyance without warranty. 1 Sw. Dig. 133. But if he have 
 no right, nothing passes, not even a chose in action. What estate, 
 then, had the issue of the first donee in tail, during his life? My 
 answer is, none. The plaintiff could, therefore, convey none. Such 
 issue is only an heir apparent or presumptive. His title is the bare 
 possibility, a mere chance, of becoming eventually the heir in tail; 
 for the maxim is, " nemo est hares viventis." And it is a well-settled 
 rule, that a mere possibility cannot be released or conveyed ; and 
 tin- reason thereof is, that a release supposes a right in being. Shep. 
 Touch. 319; Bac. A.br. tit. Release, H. Hence, it is holden, that ah 
 heir-al law cannol release to his father's disseisor, in the lifetime of 
 the father; inv the heirship of the heir is a contingent thing; for he 
 may die in the lifetime of his father. Ibid. This question was inde-
 
 III. 4.] DEEDS. IO79 
 
 feasibly answered, by our great master Littleton, nearly four centu- 
 ries ago. " If there be father and son, and the father be disseised, 
 and the son (living the father) releaseth by his deed to the disseisor, 
 the right which he hath, or may have, in the tenements, without 
 clause of warranty, and after the father dieth, this son may lawfully 
 enter upon the possession of the disseisor; for that he hath no right 
 in the land in his father's life-time, but the right descended to him 
 after the release made, by the death of his father; for no right 
 passeth by a release, but the right which the releasor hath, at the 
 time of the release made; and if he hath no right, the release is 
 void." Littleton, § 446; Lampef s Case, 10 Rep. 51 a. "And in 
 some cases, saith Sheppard (Touch. 321), "a release, like a con- 
 firmation, doth enure by way of abridgment. But a man canrfot bar 
 himself of a right that shall come to him hereafter; and therefore it 
 is held, that these words used in releases, quce quoins modo in futuro 
 habere potero, are to no purpose." This is a mere quotation from the 
 text of Littleton (ubi supra) which is there sanctioned, by the com- 
 mentary of Sir Edward Coke. " But here, in the case which Little- 
 ton puts, where the son releases in the lifetime of his father, this 
 release is void, because he hath no right at all, at the time of the 
 release made, but all the right was at that time in the father; but 
 after the decease of the father, the son shall enter into the land 
 against his own release. 1 Inst. 265 a. And we are informed, by 
 Lord Chief Justice Trevor, in delivering his opinion in Arthur v. 
 Bokenham, Fitzgib. 234, that this text of Littleton had never been 
 contradicted. Hargrave's Notes on Co. Litt. 265, a. n. 212. The 
 same doctrine was recognized, by the Supreme Court of New York, 
 in McCrakin v. Wright, 14 Johns. Rep. 193, wherein it was decided, 
 that no title, not in esse, would pass by a deed of bargain and sale 
 and quitclaim, unless it contain a warranty, in which last case, it 
 will operate as an estoppel. And in Davis v. Hayden et a/., 9 Mass. 
 Rep. 514, it was decided, that nothing passes by a conveyance of 
 land, of which the grantor is only heir apparent. 
 
 3. Is the plaintiff estopped to claim against his own deed? This 
 question is already answered, by the citations from Littleton, § 446, 
 and the case in 14 Johns. Rep. 193. " If there be a warrantie," saith 
 Lord Coke (1 Inst, ubi supra) " annexed to the release, then the 
 sonne shall be barred; for albeit the release cannot barre the right, 
 for the cause aforesaid, yet the warrantie may rebut and barre him 
 and his heirs of a future right." But the deed in question is a mere 
 release or quit-claim, and contains no warranty, express or implied. 
 
 New trial not to be Granted.
 
 I08o TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 (3.) Words of Conveyance. 
 McKINNEY v. SETTLES. 
 
 31 Missouri, 541. — 1S62. 
 
 Ejectment. — The case was by agreement made to depend upon 
 the question whether an instrument executed and delivered to plain- 
 tiff amounted to a conveyance in presenti. The court below held it 
 did not. 
 
 Bates, J., delivered the opinion of the court. — It is difficult to 
 determine what was intended by the maker of the instrument under 
 which the plaintiff claimed title. In the memorandum attached 
 to the* instrument, and signed by John McKinney, it is called a codi- 
 cil or supplement to his last will and testament, whilst in the certifi- 
 cate of acknowledgment the whole are called " the foregoing deeds 
 of gift." It may not be necessary to define what is the character 
 of the instrument, for if it be not a deed of conveyance in presenti, 
 the plaintiff cannot recover upon it. In order to determine whether 
 it be such a deed, the whole instrument must be taken together, and 
 effect given, if possible, to every part of it. It does not contain the 
 usual operative words of conveyance, and it contains an obligation 
 to make (in the future) " a good, sufficient right and title to the said 
 described tract of land, clear from me or any of the rest of my heirs, 
 to the whole, sole right and property of my said son, James H. Mc- 
 Kinney, and his heirs, forever." It appears to be reasonable, upon 
 consideration of the whole instrument, to suppose that John Mc- 
 Kinney believed that he had no power then to convey, and, there- 
 fore, he, in order to make a sort of partition of lands among his 
 children, bound himself under a penalty to convey to each one a par- 
 ticularly described tract of land, so soon as he should have power 
 to do so. Taking this to be the view and intention of John Mc- 
 Kinney, we must see that he used words apt for that purpose. The 
 only words which might by any construction be deemed operative 
 words of present conveyance are the words " sign over." We can- 
 not, however, think that they import more than an assignment of 
 John McKinney's interest in the land, the title to which was then 
 imperfect and inchoate, and, therefore, not operating as a present 
 conveyance of the land itself sufficient to maintain an action of eject- 
 ment in the name of James H, McKinney. 
 
 In the maimer in which this case comes up no question arises 
 whether an after-acquired title by James McKinney would inure to 
 th<- benefil of James II. McKinney. 
 
 'I he judgment below is affirmed.
 
 III. 4-] DEEDS. I08l 
 
 (4.) A Description of the Premises Sufficient to Identify Them. 
 (a) The sufficiency of the description. 
 
 HOBAN v. CABLE. 
 102 Michigan, 206. — 1894. 
 
 Ejectment. — Judgment for plaintiff. Defendant brings error. 
 
 Montgomery, J. — * * * 2. As the deed to Laurie McLeod 
 was first recorded, and as defendant claims it in fact read when exe- 
 cuted, the description of the land was as follows: 
 
 " Beginning on Market street, between the lot hereby intended to 
 be conveyed and a lot confirmed by the Government of the United 
 States to Ambrose R. Davenport; thence north, 62 degrees 15 min- 
 utes west, 158.96 feet; thence south, 31 degrees west, 60 feet; thence 
 south, 62 degrees 15 minutes west, 158.96 feet, to Market street; 
 thence along said street north, 27 degrees 55 minutes east, to the 
 place of beginning." 
 
 Was this a sufficient description, or must the deed be treated as a 
 nullity? The starting point is definite. The first line, to point b, 
 is also certain, as is the line between points b and c. But if the 
 direction of the next line is followed as given in the instrument, the 
 terminus is at e, and the line named in the succeeding portion of 
 the description would end at f. 1 But the course given after reach- 
 ing point c is not the only means of identification adopted. That 
 line is described as terminating at Market street. If we exclude 
 the words indicative of the direction of the line, and carry the line 
 in the most direct course to Market street, we have not only a line 
 answering to the other terms of the deed, but one which, with its 
 extension, incloses something, which is, by the terms of the deed, 
 "a lot intended to be conveyed," and which, to answer the terms 
 of the portion of the description relating to the starting point, must 
 lie next to " a lot confirmed by the Government of the United States 
 to Ambrose R. Davenport." To make this clearer, the deed con- 
 tains the statement that from the terminus of the third line named 
 in the description the boundary shall extend along Market street to 
 the place of beginning. We think the intent of the grantor is clear, 
 and that the deed is not a nullity for want of a sufficient description. 
 See Anderson v. Baughman, 7 Mich. 69; Cooper v. Bigly, 13 Id. 463; 
 Dwightx. Tyler, 49 Id. 614. 
 
 1 The case in the official report is accompanied by a map. If the student will 
 draw a rough design, he will easily identify the points, a, b, c, and will see 
 that the courses and distances as given do not make an enclosure. — Ed.
 
 1082 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 A number of defendant's points depend upon this, and it becomes 
 unnecessary to treat in detail some of his assignments of error. 
 The deed being valid to convey the land, the record was notice to 
 subsequent purchasers. 
 
 3. One of the conveyances under which plaintiff claims contained 
 a description as follows: 
 
 " A lot 60 feet wide on Market street and 128.90 feet deep, being 
 the north end of lot 293 in the village of Mackinac." 
 
 This is claimed to be insufficient, but we think there is no mistak- 
 ing the land intended to be conveyed. 
 
 b. What will pass as appurtenant to the lands described. 
 
 OGDEN v. JENNINGS. 
 
 62 New York, 526. — 1S75. 
 
 Trespass. — Defendant pleaded title to the locus in quo in the 
 trustees of the school district, and that defendant entered thereupon 
 by order of one of the trustees. Judgment for plaintiff. Defendant 
 appeals. 
 
 Allen, J. — The effect and extent of the grant from Rufus Jen- 
 nings to the school district was, by the charge of the judge at the 
 Circuit, made to depend upon the solution of the question of fact, 
 whether the use of the locus in quo was necessary to the district in 
 order to a reasonable enjoyment of the granted premises for school 
 purposes, rather than the terms of the grant and the description 
 therein of the lands granted. The defendants prevailed at the 
 Circuit, and had judgment, from which the present appeal is 
 brought, upon the finding of the jury that the disputed parcel of 
 land was a necessary adjunct of the schoolhouse as a playground for 
 the children attending the school and essential to a reasonable 
 enjoyment of the property conveyed. If this playground was not 
 included within the description of the premises granted, the grant 
 I not be enlarged by the necessities, actual or supposed, of the 
 grantee. It is urged Lint if the reasonable necessity of these 
 grounds was established, the case would be within the familiar rule, 
 that by the grant or demise of a house or messuage, without further 
 ription, the curtilage and garden belonging to it passes with it as 
 part and parcel of it, and as embraced within the more worthy name 
 of the principal thing granted or demised. But only the garden, 
 tilage, and < lose, ad joining to the house and on which the house is 
 built, passes under the general description. Other lands, although
 
 III. 4] DEEDS. IO83 
 
 occupied with the house, will not pass except particularly described. 
 Smith v. Martin, 2 Saund. 400, and n. 2. A devise of a house, with 
 its appurtenances or lands appertaining thereto, may have a more 
 extensive effect and carry other land, depending upon the intent of 
 the testator as manifested by the entire will. Blackburn v. Edgley, 
 1 P. Win. 600; Doe v. Collins, 2 T. R. 498; Buck v. Neiolon, 1 B. & 
 P. 53; Bodenham v. Pritchard, 1 B. & C. 350. 
 
 In a grant or demise, the addition of the word " appurtenances " 
 will not vary the effect of the grant or extend it so as to include 
 other lands not parcel of the house and close mentioned. Bcttis- 
 worth's Case, 2 Coke, 516. The rule stated does not result from the 
 necessity of a garden or curtilage to the reasonable occupation and 
 enjoyment of the house, but from the fact that they are regarded as 
 in fact and in law parcel of it, and as technically within the grant 
 and the description of the thing granted. If a grant is made of a 
 house, and there is no garden, curtilage or close annexed to and a 
 part of it, the grantee cannot claim, as incident to the grant, a gar- 
 den and curtilage such as twelve men may say is reasonably necessary 
 to the proper occupation and enjoyment of the house as a dwelling. 
 Whether a garden is or is not necessary to a dwelling is wholly 
 immaterial in interpreting and giving effect to a grant of the 
 messuage and determining what lands pass by the conveyance. So 
 here, whether any or what extent of playground was convenient or 
 necessary in connection with a schoolhouse, was entirely immaterial 
 in construing and determining the boundaries of the grant. 
 
 It is also urged that, by reason of the reasonable necessity for 
 these lands as a playground for the pupils, the title passed as 
 "appurtenant," and under the clause " cum pertinantes " in the 
 deed; and the case in which easements " of necessity " have been 
 sustained, are referred to by the court below, and the learned coun- 
 sel for the respondents. 
 
 The principle was carried in this case beyond the creation of a 
 mere easement, and was made to effect a change of title to lands 
 other than those included within the grant. It is well settled that, 
 in a deed, the word appurtenances will not pass any corporeal real 
 property, title to lands, but merely incorporeal easements or rights 
 and privileges. It cannot include a strip of land adjacent to that 
 granted. A title to land will not pass by implication. Jackson v. 
 Striker, 1 J. Ch. 284; Jackson v. Hathaway ', 15 J. R. 447; Buzzard 
 v. Capel, SB. & C. 141; s. c. in Ex. Ch. 6 Bing. 150. 
 
 Easements exist as appurtenant to a grant of lands, and as arising 
 by implication, only by reason of a necessity to the full enjoyment 
 of the property granted. Nothing passes by implication, or as inci-
 
 IO84 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 dent or appurtenant to the lands granted, except such rights, priv- 
 ileges and easements as are directly necessary to the proper 
 enjoyment of the granted estate. Upon the grant of a mill every 
 right necessary to the full and free enjoyment of the mill passes as 
 incident to the grant; and the necessity measures the extent and 
 duration of the right. When the necessity ceases, the rights result- 
 ing from it cease. It must be an actual and a direct necessity. A 
 mere convenience is not sufficient to create or convey a right or 
 easement, or impose burdens on lands other than those granted, as 
 incident to the grant. In all cases the question of necessity con- 
 trols. Holmes v. Seely, 19 Wend. 507; Nicholas v. Chamberlain, Cro. 
 Jac. 121; Oakley x. Stanley, 5 Wend. 523; Tabor v. Bradley, 18 N. Y. 
 109; Le Roy ,v . Piatt, 4 Paige, 77; French v. Carhart, 1 Comst. 96; 
 Voorhees v. Burchard, 55 N. Y. 98; N. Y. L. Ins. and T. Co. v. 
 Milnor, 1 Barb. Ch. 353; Warren v. Blake, 54 Maine, 276; Pierce v. 
 Sellick, 18 Com. 321. The necessity of a proper head of water for 
 the profitable operation of a mill, a mill-yard to a saw-mill, of a way 
 of access in order to the occupation of any granted premises, is 
 palpable, but the necessity of a playground or an open court, except 
 for light and air, about a schoolhouse is not apparent. There was 
 no evidence that appurtenances of that character were either usual 
 or necessary for any purpose connected with the proper conduct of 
 the school, or to the health or welfare of the children. That such 
 appendages are not a universal necessity is very evident. Indeed, 
 there was no evidence that a space for a playground was even a 
 convenience for any proper school purpose. It, doubtless, may be 
 a source cf pleasure to the children, but that will not suffice to 
 create an easement by implication, or as appurtenant to the granted 
 lands. The law will not imply that a space of ground set apart for 
 the exercise and diversion of the children, is a necessity for a coun- 
 try schoolhouse, or that for all recognized school purposes the dis- 
 trict may not have and enjoy the schoolhouse and premises fully 
 without such an adjunct, and it would require very cogent evidence 
 to establish a right to such grounds as passing by implication and 
 as an incident to a conveyance of a schoolhouse. Here there was 
 no evidence to warrant the submission of the necessity of such an 
 im idem to the jury. 
 
 It was error for the judge to submit it as the pivotal question of 
 fact in tin- art ion, for two reasons: 1st. It was, under the circum- 
 stances, an immaterial question, and neither the cause of action or 
 defense properly depended upon its determination. And 2d. There 
 was no evidence that am- necessity existed (<>r the possession by the 
 district of this or any other parcel of ground as a playground. This
 
 III. 4-] DEEDS. IO85 
 
 would lead to a reversal of the judgment unless on examination of 
 the grant, in connection with the evidence and the plaintiff's title, 
 it is evident that the action cannot be maintained. 1 
 
 (5.) Delivery and Acceptance of the Deed, 
 MILLER v. MEERS. 
 155 Illinois, 284.. — 1895. 
 
 Plaintiffs bring this action to get possession of the deed 
 described in the opinion, and to establish and confirm their title to 
 the property described in the deed. 
 
 Carter, J. — * * * But the question still arises whether or 
 not, after considering all proper evidence and rejecting all held to 
 be improper, the decree of the trial court can be sustained. " No 
 particular form or ceremony is necessary to constitute a delivery " 
 of a deed. " It may be by acts without words, or by words without 
 acts, or by both. 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, that the grantor 
 loses all control over it, and that by it the grantee is to become 
 possessed of the estate, constitutes a sufficient delivery. The very 
 essence of the delivery is the intention of the party." Bryan v. 
 Wash, 2 Oilman, 557; Cline v. Jones, in 111. 563, and cases there 
 cited. It is well settled that the law makes stronger presumptions 
 in favor of the delivery of deeds in cases of voluntary settlements, 
 especially in favor of infants, than in ordinary cases of bargain and 
 sale. The acceptance by the infant will be presumed. And it is 
 even held that an instrument may be good as a voluntary settlement, 
 though it be retained by the grantor in his possession until his 
 death, provided the attending circumstances do not denote an 
 intention contrary to that appearing upon the face of the deed. 
 Bryan v. Wash, and Cline v. Jones, supra; Reed v. Douthit, 62 111. 
 348; Walker v. Walker, 42 111. 311; Otis v. Beckwith, 49 111. 121; 
 Masterson v. Cheek, 23 111. 72; Soaverbye v. Arden, 1 Johns. Ch. 242; 
 Bnnn v. Winthrop, Id. 329; Scrugham v. Wood, 15 Wend. 545; Perry 
 on Trusts, § 103; Urann v. Coates, 109 Mass. 581; Thompkins v. 
 Wheeler, 16 Pet. 114. And it was said in Weber v. Christen, 121 
 111. 91, that " the crucial test, in all cases, is the intent with which 
 
 'The transfer of land carries with it all easements appurtenant thereto. Kuhl- 
 mau v. Hechl, supra, p. S19. — Ed.
 
 1086 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CM. II. 
 
 the act or acts relied on as the equivalent or substitute for actual 
 delivery were done." The deed in question must have taken effect 
 at once upon its acknowledgment and delivery to Grinton, or not at 
 all, and the real question is, with what intention was the deed placed 
 in the hands of Grinton? Blackman v . Preston, 123 111. 381; Hayes 
 x.Bov/an, 141 111. 400; Bovee v.Hinde, 135 111. 137; and cases supra. 
 Nothing was said by the grantor at the time to indicate an intention 
 that the deed should not take effect. His instructions were to take 
 the deed, and take care of it — whether for himself or the grantees, 
 he did not say. The grantees were his nephews and nieces, seven 
 in number, the adults living in different places, and the minors with 
 their father, his brother, on the premises conveyed. Under the cir- 
 cumstances it may have been a question of some difficulty, in his 
 mind, to determine to whom the deed should be delivered. Instead 
 of delivering it to either of the grantees he could lawfully deliver it 
 to a third person for their benefit. He did deliver it to a third per- 
 son, and whether for their benefit or only as custodian for himself, 
 is a question of fact to be determined from the evidence. Defend- 
 ants insist that Grinton was the grantor's clerk, and that his posses- 
 sion was the possession of the grantor. It is not clear from the 
 evidence what the business relations were between Grinton and Mar- 
 tin C. Bissel. Grinton testified that he was not employed by the 
 day, week, month, or year; that he always had a partnership con- 
 tract with Bissel in the profits, and that that was the case when 
 these papers were executed; that the " partnership papers," as wit- 
 ness called them, as well as his individual papers and those of Martin 
 C. Bissel, were all kept in the safe. Whether he was responsible 
 for the losses and expenses of the business is not disclosed by the 
 evidence. From the evidence given he may have been a partner 
 in business with Bissel, or merely an employee receiving a share of 
 the profits as a measure of his pay for his services. In Lock-wood v. 
 Doane, 107 111. 235, this court held that: "Where parties agree to 
 share in the profits of business, the law will infer a partnership 
 between them in the business to which the agreement refers; but 
 this presumption may be disproved. It is prima facie evidence, and 
 will control until rebutted." Nichoff v . Dudley, 40 111. 406. Under 
 the evidence and these authorities, it would seem that the relation 
 between Grinton and Martin C. bissel, at the time of the transac- 
 tion in question, must be treated as that of a partnership. If so, 
 the transaction not pertaining t<> their partnership affairs, posses- 
 sion of the deed by Grinton was not, by virtue of their relation, the 
 >-ssii»n of the grantor, but was the possession of a third person. 
 Grinton took this deed, and placed it in an envelope, and put it in
 
 III. 4.] DEEDS. IO87 
 
 the safe, and kept it in his possession for 15 years thereafter, until 
 the trial in the Circuit Court. Had Martin intended to retain con- 
 trol of it, he could as well have placed it with his own papers in the 
 safe. This he did not do, nor did he ever assume or assert any con- 
 trol over the deed afterwards. Grinton was a notary public, and as 
 such took the acknowledgment. By this acknowledgment the 
 grantors acknowledged that they signed, sealed, and delivered the 
 instrument as their free and voluntary act, for the uses and pur- 
 poses expressed in it. Whether, on an issue as to the delivery of a 
 deed, otherwise left in doubt by the proofs, such an acknowledg- 
 ment would be sufficient evidence of a delivery, it is not necessary 
 in this case to decide for, as we conceive, the intention of the 
 grantor is otherwise disclosed by the evidence with sufficient clear- 
 ness, and this, too, whether Grinton was a partner or a mere 
 employee of Martin C. Bissel. We find nothing in the attending 
 circumstances denoting an intention on the part of the grantor that 
 the deed should not take effect; but, on the contrary, there is suffi- 
 cient evidence that he intended the deed to become presently 
 effective. He at the same time executed and delivered to his 
 brother, the father of plaintiffs in error, and to his brother's wife, 
 who were already in possession of the property, a life lease therefor. 
 The deed was, on its face, made subject to the lease. By the lease 
 the lessees were required to insure the property for the benefit, in 
 part, of themselves and in part of the grantees. The lease recog- 
 nized the grantees as the owners of the property, and for breach of 
 any of the covenants in the lease they were authorized to declare 
 the term ended, and to enter and expel the lessees. The lease and 
 deed were executed together, and were parts of the same transac- 
 tion whereby Martin C. Bissel disposed of all his interest in the pos- 
 session of and title to the property. He reserved nothing in either 
 the lease or deed. The delivery of the lease to, and the possession 
 of the property by, William, are not disputed. The right to declare 
 a forfeiture and to re-enter was not reserved to the lessor, but to 
 plaintiffs in error, the grantees in the deed. It would seem, from 
 this provision that, at the time of the transaction Martin C. Bissel 
 intended that the title should vest in appellants, and that he under- 
 stood it did so vest. Then, again, it was clearly proved that after 
 William had left the property, and Martin had taken possession and 
 made repairs, he leased it, paid the taxes, and, to all outward appear- 
 ances, acted as the owner, he told two witnesses that the prop- 
 erty belonged to his brother's children, and that he could not, for 
 that reason, sell or dispose of it, but would attend to it — evidently 
 meaning that he was taking care of it for his brother and his
 
 1088 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. I. 
 
 brother's children. It may be that after the lapse of years he con- 
 cluded that he was entitled to and would retain the property as his 
 own. In other words, he may have changed his mind in reference 
 to making a gift of the property to these beneficiaries, honestly con- 
 cluding that under the circumstances he had a right to do so; but if 
 he did so conclude he was simply mistaken as to the legal effect of 
 what had been done. The facts are somewhat similar to those in 
 Douglas v. West, 140 111. 461, 31 N. E. 403. See also Winterbottom 
 v. Pattison, 152 111. 334, 38 N. E. 1050. We are satisfied from the 
 evidence that Martin C. Bissel intended that the deed should take 
 effect when he executed and acknowledged it and delivered it to 
 Grinton, and it must be so held. The decree of the Circuit Court is 
 reversed, and the cause remanded, with directions to dismiss the 
 cross-bill, and to enter a decree in accordance with the prayer of the 
 bill of plaintiffs in error. Reversed and remanded. 
 
 Coke, J., in TUTTLE v. TURNER. 
 28 Texas, 759. — 1866. 
 
 A deed takes effect only from the date of its delivery, which may 
 be either actual or constructive. It is essential to the operative 
 force and validity of a deed, if not actually delivered to the grantee 
 or his agent authorized to receive it, to prove notice to him of its 
 execution, and such additional circumstances as will afford a reason- 
 able presumption of his acceptance of it. The presumption that a 
 party will accept a deed because it is beneficial to him, it is said, will 
 never be carried so far as to consider him as having accepted it. 4 
 Kent Com. § 454; Hulick v. Scovill, 4 Gilm. 159. But possession of a 
 deed by the grantee raises a presumption of its due delivery. 
 Chandler v. Temple, 4 Cush. 285; Trust Co. v. Cole, 4 Fla. 359. This 
 presumption may be rebutted by proof to the contrary. 
 
 The Chancellor in ARNOLD v. PATRICK. 
 
 (>. Paige's Chancery, 310. — 1837. 
 
 FROM the facts Stated in the answer of Arnold, in connection with 
 those stated in the further answer as having been derived from the 
 information of J. Ricketson subsequent to the assignment of the 
 mortgage, which under the stipulation in this case must be taken to 
 b< ■ orrect, 1 am inclined t<> think that there was such a delivery of 
 tin- deed oi August, 1829, as was sufficient at law to pass the legal
 
 III. 4] DEEDS. IO89 
 
 title to the premises in question; subject, however, in equity, to the 
 payment of the unpaid purchase money. It is evident from the 
 facts stated that it must have been the intention of both parties that 
 if the purchase money was paid the deed should take effect without 
 any new delivery; as the grantee had, under the agreement of 1825 
 an unquestionable right to a conveyance of the premises upon pay- 
 ment of the amount due. Had this deed been intrusted to the clerk 
 merely as an escrow to be delivered to George upon condition that 
 the purchase money was actually paid to the grantor within a certain 
 prescribed time, but not otherwise, the legal title would still have 
 remained in the grantor, although the deed might have gotten into 
 the hands of the grantee, without a performance of the condition 
 upon which it was to take effect. That does not appear to have 
 been the case here; but the parties acted upon the erroneous suppo- 
 sition that the deed might be delivered to the grantee himself, upon 
 the condition that it should not be proved and recorded if the pur- 
 chase money was not paid, and that the legal title would not pass 
 by such a delivery. The legal rule, however, is, as was insisted upon 
 by the counsel for Patrick, that a deed or any other sealed instru- 
 ment cannot be delivered to the grantee or obligee himself as an 
 escrow, to take effect upon a condition not appearing upon the face 
 of such deed or instrument; but that if so delivered it becomes 
 absolute at law. Coke Litt. 36, a; Touchstone, 59; Thoroughgood 1 s 
 Case, 9 Coke's Rep. 137, a. 
 
 PRICE v. PITTSBURGH, FORT WAYNE AND CHICAGO 
 RAILROAD CO. 
 
 34 Illinois, 13. — 1864. 
 
 Breese, J. — The principal point, however, which is made in the 
 case is as to the right of the plaintiffs below to recover at all for use 
 and occupation. Of this we think there can be no doubt. By 
 express agreement, when the plaintiffs purchased the lots of the 
 former owner, under whom the defendant held as tenant by the 
 year, it was agreed and understood, if the plaintiffs consummated 
 the trade by delivering the bonds and mortgages by the fall of i860, 
 the deeds they had executed on and prior to the first day of May, 
 i860, and placed in the hands of the attorney and solicitor of the 
 plaintiffs, were to take effect and be in force on the first day of May, 
 i860. The defendant insists that the delivery of these deeds to the 
 solicitor of the company, was, in effect, the same as a delivery to 
 
 LAW OF PROP. IN LAND — 69
 
 IO9O TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 any third person not connected with the company; that they were 
 delivered to a stranger, and were, therefore, escrows; and being so, 
 the title to the lots remained with the grantors, subject to be trans- 
 ferred on the delivery of the bonds and mortgages. It is generally 
 true, and is the old doctrine of the books, that if a deed is delivered 
 'to a stranger to be delivered to the grantee, on the performance by 
 him of certain conditions, and they are fully performed, and the 
 deed delivered, that the deed takes effect from the second delivery, 
 and to be considered the deed of the party from that time. 
 
 This rule, it is said, does not apply where justice requires a resort 
 to fiction. 4 Kent's Com. 454. 
 
 The instances usually put are when the grantor, after the deposit 
 of the deed as an escrow, dies, or becomes insane, or, if a feme sole, 
 marries before the grantee has performed the conditions. In such 
 cases the law will make the second delivery relate back to the time 
 of the deposit of the escrow. 1 Shep. Touch. 123. What effect the 
 agreement of the parties should have upon the time of the delivery 
 is not there discussed, nor is it said these are the only instances in 
 which there shall be this relation back. 
 
 The case of Lessee of Shirley v. Ayres, 14 Ohio, 307, was an eject- 
 ment, where it was held a deed delivered as an escrow should take 
 effect on its first delivery, on the performance of the condition, if it 
 was necessary to protect the grantee or those claiming under him 
 against intervening rights. 
 
 The case of Beekman v. Frost, 18 Johns. 543, in the Court of 
 Errors, holds the same doctrine. A very strong case is to be found 
 in 9 Mass. 307, Hatch et al. v. Hatch et a/., where the court held that 
 a writing delivered to a stranger for the use and benefit of the 
 grantee, to have effect after a certain event, or the performance of 
 some condition, may be delivered either as a deed or as an escrow. 
 The distinction, however, the court say, being almost entirely 
 nominal when we consider the rules of decision which have been 
 resorted to for the purpose of effectuating the intentions of the 
 grantor or obligor in some cases of necessity. If delivered as an 
 escrow, and not in name as a deed, it will, nevertheless, be regarded 
 and construed as a deed from the first delivery, as soon as the event 
 happens, or the consideration is performed upon which the effect 
 had been suspended, if this construction should be then necessary 
 in furtherance <>f tin- lawful intentions of the parties. 
 
 The 1 is'- of //,/// v. //arris, 5 [red. Eq. R. 303, is to the same 
 effect. 
 
 The question in this <;isc was, whether a deed took effect on the 
 se< -mkI day "f March, the date of its execution, or on the tenth, the
 
 III. 4-] DEEDS. IO9I 
 
 day on which full payment for the land was paid. The trade was 
 made on the second of March, on which day part of the price was 
 paid, and the vendor was to make a deed and hand it to one Mor- 
 gan, to be by him handed to the vendee when he paid the price. 
 On that day the vendor made the deed and handed it to Morgan, 
 Afterwards, on the tenth of March, the vendee paid Morgan the 
 balance due and received the deed. The purpose, the courts say, 
 for which the deed was delivered to a third party instead of being 
 delivered directly to the plaintiff, was merely to secure the payment 
 of the price. When that was paid the plaintiff had a right to the 
 deed. The purpose for which it was put into the hands of a third 
 person being accomplished, the plaintiff then held the deed in the 
 same manner he would have held it if it had been delivered to him 
 in the first instance. This was the intention, and we can see no 
 good reason why the parties should not be allowed to effect their 
 end in this way. Though the plaintiff might have avoided the pur- 
 chase, his rights cannot be affected by that fact. 
 
 The court remarks if the vendor had died after the delivery to the 
 third person, and before the payment, the vendee, upon making the 
 payment, would have been entitled to the deed, and it must have 
 taken effect from the first delivery, or it could not have taken effect 
 at all. The intention was, it should be the deed of the vendor from 
 the time it was delivered to the third person, provided the condition 
 was complied with. If this intention is bona fide, and not a contriv- 
 ance to interfere with the right of creditors, the deed must be 
 allowed to take effect. The court conclude by saying, we are satis- 
 fied from principle and from a consideration of the authorities, that 
 when a paper is signed and sealed and handed to a third person to 
 be handed to another, upon a condition which is afterwards com- 
 plied with, the paper becomes a deed by the act of parting with the 
 possession, and takes effect presently, without reference to the pre- 
 cise words used, unless it clearly appears to be the intention that it 
 should not then become a deed. 
 
 In the case before us the proof was that the deeds were delivered, 
 as deeds, to the solicitor of the company, with the understanding, 
 when the bonds and mortgages of the railroad company to be given 
 in payment of the lots, and which had to be executed in a distant 
 state, were returned from there, the deeds were to take effect as of 
 May 1, i860; and if the bonds were not returned, the deeds were 
 not to take effect at all; that the bonds were not returned until the 
 fall of i860, and that he, the witness, should not have delivered or 
 recorded the deeds until the bonds came; that the bonds and mort-
 
 IO92 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 gages are dated and bear interest from May 1, i860, and interest has 
 been paid on them from that date. 
 
 It is a case quite like the case of Hatch v. Hatch, decided by the 
 Supreme Court of Massachusetts, and the case in Iredell decided by 
 the Supreme Court of North Carolina. 
 
 In all such cases the intention of the parties is to be considered, 
 and it seems quite manifest these parties intended those deeds 
 should have effect from the day of their execution, if the conditions 
 were performed; and they were fully performed. 
 
 But were these deeds delivered to a stranger, so as to constitute 
 an escrow? The proof is, they were delivered to the solicitor of the 
 company. Now, since a corporation can only act through its officers 
 and agents, a delivery of a deed to one of its officers would be a 
 delivery to the company, and therefore would take effect immedi- 
 ately. Foley v. Cogwill, 5 Blackf. 20; War rail v. Munn ct al., 1 Seld. 
 N. Y. 229. 
 
 The case cited by appellant from 4 Fla. 359, Southern Life Ins. and 
 Trust Co. v. Cole, holds, that a delivery to an officer or servant of a 
 corporation, is delivery to the corporation, with the addition that 
 such delivery is for the use and benefit of the corporation, and with 
 an intent to pass an absolute property or interest in the deed 
 delivered. That court did not think there was such a personal 
 identity between the corporation and its officers, that a deed may 
 not be placed in the hands of the latter as an escrow until the per- 
 formance of some condition. The court, however, in that case 
 refused to permit the deed to take effect in favor of the company 
 from its date, because it would do wrong and injustice to the rights 
 of other parties. 
 
 The question of intention in the case before us was left to the 
 jury, and they have found the deeds, by agreement of the parties, 
 were to take effect on the first day of May, i860, and it is not pre- 
 tended any rights or interests have intervened to be injuriously 
 affected by such an agreement. Justice is done by it, because the 
 plaintiffs have paid the interest on these bonds and mortgages from 
 the first dav of May, i860, at which date, all claim and interest of 
 their vendors ceased, and so ceasing the plaintiffs became entitled to 
 tin- rents and profits of the tenancy then existing and theretofore 
 created. \ suit brought by these vendors, for the rent of these 
 premises, could not, under the facts proved, be maintained. They 
 sold the premises on a condition which has been fully performed 
 with an express agreement, when performed, their deed should take 
 effeel "ii the first day of May. They could not afterwards retract
 
 III. 4-] DEEDS. IO93 
 
 this, nor could any other person, except, perhaps, creditors, gainsay 
 the validity of such an agreement in the absence of fraud. We are 
 inclined to think the delivery of these deeds, under the circum- 
 stances, was absolute in the first instance. 1 
 
 1 The following quotations appear in the argument of counsel at p. 28 of the 
 official report: 
 
 " The fifth thing required in every well-made deed is, that there be a delivery 
 of it. And for this it must be known that the delivery is either actual, i. e., by 
 doing something and saying nothing or else verbal i. e., by saying something or 
 doing nothing, or it may be by both; and either of these may make a good 
 delivery and a perfect deed. 
 
 * * * "And a deed may be delivered by the party himself that doth make 
 it, or by any other by his appointment or authority, precedent, or assent, or 
 agreement subsequent, for omnis ratihabitio mandata cquipar.Uur. And so also a 
 deed may be delivered to the party himself to whom it is made, or to any 
 other by sufficient authority from him; or it may be delivered to any stranger 
 for and in the behalf and to the use of him to whom it is made, without 
 authority. * * * 
 
 " The delivery of a deed as an escrow is said to be when one doth make and 
 seal a deed and deliver it unto a stranger, until certain conditions be performed, 
 and then to be delivered to him to whom the deed is made, to take effect as his 
 deed. But in this case two conditions must be heeded: 1. That the form of 
 words used in the delivery of a deed in this manner be apt and proper. 2. That 
 the deed be delivered to one that is a stranger to it, and not to the party himself 
 to whom it is made." * * * 
 
 " But when the conditions are performed and the deed is delivered over, then 
 the deed shall take as much effect as if it were delivered immediately to the 
 party to whom it is made, and no act of God or man can hinder or prevent this 
 effect then, if the party that doth make it be not at the time of making thereof 
 disabled to make it. He, therefore, that is intrusted with the keeping and 
 delivery of such a writing, ought not to deliver it before the conditions be per 
 formed; and when the conditions be performed he ought not to keep it, but 
 deliver it to the party. For it may be made a question whether the deed be per- 
 fect before he hath delivered it over to the party according to the authority 
 given him. Howbeit it seems that the delivery is good, for it is said in this 
 case that if either party to the deed die before the conditions be performed, and 
 the conditions be after performed, that the deed is good; for there was traditio 
 inchoata in the lifetime of the parties; and postea consuiiimata existens by the 
 performance of the conditions it taketh its effect by the first delivery, without 
 any new or second delivery; and the second delivery is but the execution and 
 consummation of the first delivery." — Ed.
 
 1094 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 c. Covenants in conveyances. 1 
 
 (i.) Covenants for Title. 
 
 (<:.) Covenant of seisin. 
 
 MOTT v. PALMER, 
 i New York, 564. — 1848. 
 \_Reported herein at p. 286.] 
 
 MITCHELL v. WARNER. 
 
 5 Connecticut, 497. — 1825. 
 
 Hosmer, Ch. J. — The case made by this motion presents two 
 questions for determination. 
 
 The first is, whether the plaintiff, claiming to be the assignee of 
 the covenant of seisin can maintain an action on that covenant. 
 
 This covenant, from its nature, is broken instantaneously on the 
 delivery of the deed, or it is never broken. It runs in the words of 
 the present tense, and asserts, that the grantor is well seised. Now, 
 if he is well seised according to his covenant, the agreement is ful- 
 filled; and if he is not well seised, the covenant is false, and 
 immediately broken. It follows from this, that it is a personal 
 covenant, which, most clearly, never runs with the land, and that 
 the grantee, in whose time the breach existed, can alone sue upon 
 it; for, after a breach the cause of action can never be assigned. It 
 would be the assignment of a chose in action, which the common 
 law will not permit. That the covenant of seisin, if false, is broken 
 as soon as it is made, appears from Shep. Touch. 170; from Bick- 
 fordv. Page, 2 Mass. Rep. 460; from Marston v. Hobbs, 2 Mass. 
 Ri 11. 437; from Bennett x. Irwin, 3 Johns. Rep. 365: from Abbotts. 
 Allen, 14 Johns. Rep. 253; from Greenby et al. v. Wilcocks, 2 Johns. 
 Rep. 1 ; from Pollard et al. v Dwight et al., 4 Cranch. 430; from 1 
 Swift's Dig. 370; and from Mitchell v. //trie//, 4 Conn. Rep. 495. 
 From its nature, it docs not run with the land, as none but real 
 covenants do; and these are always suspended on some act posterior 
 to the delivery of the (\<^t(\. Hence, as I have said before, having 
 been broken, the covenant has become a chose in action, and there- 
 fore cannot be assigned. 1 Swift's Dig. 370. In Bickford \ . Page, 
 2 Mass. Rep. 455, it was said by the court: " This covenant being 
 
 I 11 th( old forms of covenants, with short statutory equivalents, see N. Y. 
 K. P. I ; 223. Ed.
 
 III. 4.] COVENANTS. IO95 
 
 broken before the release was, at that time, a mere chose in action, 
 and unassignable." The court, in the case of Greenby et al. v. Wil- 
 cocks, 2 Johns. Rep. 1, determined that the assignee of a covenant 
 of seisin could not recover. The opinion was delivered by Spencer, 
 J., in which he says: " Choses in action are incapable of assign- 
 ment at the common law; and what distinguishes these covenants, 
 broken the instant they were made, from an ordinary chose in action? 
 The covenants, it is true, are such as run with the land; but here 
 the substratum fails, for there was no land whereof the defendant 
 was seised, and of a consequence, none that he could alien; the cove- 
 nants are, therefore, naked ones, uncoupled with a right to the soil." 
 The same point was adjudged as far back as the reign of Queen Eliza- 
 beth, in Lewes v. -Ridge, Cro. Eliz. 863; and the case, so far as I can 
 find, has never been overruled. The principle settled in that case, was 
 this; that an assignee shall not have an action upon a breach of 
 covenant before his own time. The same principle was recognized 
 in Marston v. Hobbs, 2 Mass. Rep. 439; in the determination of 
 which case, it was said by Parsons, Ch. J., when delivering the 
 opinion of the court; that " no estate passed, to which these cove- 
 nants (1. e., of seisin and right to convey) could be annexed, because 
 in fact broken before any assignment could be made, they were 
 choses in action, and not assignable." In Com. Dig. tit. Covenant, 
 B. 3, it is asserted, that " covenant does not lie by an assignee, for 
 a breach done before his time." It cannot run with the land; for 
 nothing having been conveyed, what land is there for it to run with? 
 To the same effect is Lucy v. Levington, 2 Lev. 26, s. c. 1 Vent. 175, 
 in which it was decided, that for a breach of the covenant of quiet 
 enjoyment in the testator's time, the executor was authorized to 
 recover; and of his opinion was that eminent judge Sir Matthew 
 Hale. Similar doctrine is to be found in the Digest of Baron 
 Corny ns, tit. Covenant, B. 1. 
 
 In relation to principles so well established, one or two modern 
 decisions in Westminster Hall in opposition to them, however they 
 might there be regarded, ought not here to be considered as of any 
 authority. Such decisions have been cited. The first of them is the 
 case of Kingdon exr. v. Nottle, 1 Mau. & Selw. 355. The defendant 
 had conveyed to Richard Kingdon, the testator, certain property, 
 and covenanted that he was seised of it, and had good right to con- 
 vey. It was averred as a breach, that he was not seised of the 
 premises; and the court adjudged, that the executor could not sue 
 on the covenant, without showing special damage to the testator, but 
 that the heir might. It was said by Lord Ellenborough, that " the 
 covenant, it was true, was broken, but that there was no damage
 
 IO96 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 sustained in the testator's life-time." To this observation of that 
 learned and able judge I cannot subscribe. The covenant being 
 broken the instant it was made, the damage, most obviously, was 
 the whole consideration paid; and I am at a loss to conceive what 
 other or further damage could arise. In the surrounding States, as 
 well as in our own, it is unquestionably established, that the damage 
 is the consideration paid; and that this is immediate on the delivery 
 of the deed. This, then, is the first objection to the determination, 
 that whatever may be the law of AVestminster Hall, the damage, in 
 the case alluded to, is justly considered as not nominal, but real, 
 and indeed all that the party can experience. It is the whole con- 
 sideration paid. This principle alone shows, that the determination 
 in Kingdon v. Nottle, is inapplicable to us; and it likewise authorizes 
 the assertion that Lord Ellenborough and his associates, had they 
 resided in Connecticut, and there pronounced their opinion, would 
 have decided the case before them differently from what they have. 
 To the determination in Kingdon v. Nottle there is a sound objec- 
 tion. It is oppQsed to principles, uniformly, and for centuries, 
 established in Westminster Hall. It was said by Lord Ellenborough, 
 in the case alluded to, that " if the executor could recover nominal 
 damages, it would preclude the heir, who is the party actually dam- 
 nified, from recovering at all!" The force of this reasoning depends 
 entirely on the assertion that the heir is " the party actually damni- 
 fied; " and if this is an incorrect position, the argument wholly fails. 
 Now, it is not true, that the heir is the party damnified. The dam- 
 ages arise entirely by the breach of the covenant in the lifetime of 
 the testator; and the testator is the only person who receives dam- 
 age. Thus were all the determinations before the last mentioned 
 decision. To this effect was Lewis v. Ridge, Lucy v. Levington, and 
 the law was laid down in Comyn's Digest; and not a case or dictum 
 was there to the contrary. Indeed, the admission of Lord Ellen- 
 borough, that the covenant was broken in the lifetime of the testator, 
 most conclusively shows that the heir was not damnified. His own 
 damage must result from his title to the land, and not from the 
 covenant broken, to which he was no party. Now, as to the land, 
 the heir never had title; nor had his ancestor. The complaint is, 
 that the grantor was not seised, and had conveyed no title. How, 
 then, is it possible, that the heir should inherit land, to which his 
 ancestor had no title? If, then, he had no title to the estate sup- 
 posed to be conveyed, and he was no party to the covenant, and 
 the breach happened before his ancestor's death, what is the ground 
 Of his claim? In my opinion, none. On the other hand, as the 
 1 nant was broken in the testator's lifetime, and the damage
 
 III. 4-] COVENANTS. IO97 
 
 resulting from the breach was due to him; after his death, his execu- 
 tor, standing in his place, had the right of suit. For the principle is 
 incontrovertible, that where the testator can maintain covenant in 
 his lifetime, on a cause of action then existing, his executor may 
 support the same action after his death. 1 Swift's Dig. 371; Toll, 
 Ex. 158, 432. 
 
 Another writ of covenant was brought by Kingdon, as devisee, 
 against Nottle (4 Mau. & Selw. 53) upon the covenant of seisin 
 before mentioned, on the ground that the covenant ran with the 
 land, and that the breach happened to the devisee. Consistently 
 with the former determination, the court decided in favor of the 
 plaintiff. It required some ingenuity to sustain an action on a cove- 
 nant, for a breach happening in the time of the testator, before the 
 devisee (the plaintiff), could have any interest in the covenant; and 
 more especially, as no special damages were laid. For it was not 
 stated in the case, that the plaintiff was, at any time interrupted, or 
 disturbed in the enjoyment of the premises; or that he sustained any 
 damages, by the breach of covenant, in the testator's lifetime. 
 Accordingly, this point was met, by Lord Ellenborough, who said: 
 " The covenant passes with the land to the devisee, and has been 
 broken in the time of the devisee; for so long as the defendant has 
 not a good title, there is a continuing breach, and it is not like a 
 covenant to do an act of solitary performance, but it is in the nature 
 of a covenant to do a thing toties quoties, as the exigency of the case 
 may require." From this opinion I am compelled to dissent in 
 omnibus. First, I affirm, that the novel idea attending the breach in 
 the testator's lifetime, by calling it " a continuing breach," and 
 therefore a breach to the heir or devisee at a subsequent time, is an 
 ingenious suggestion, but of no substantial import. Every breach 
 of a contract is a continuing breach, until it is in some manner 
 healed; but the great question is, to whom does it continue as a 
 breach? The only answer is, to the person who had title to the 
 contract when it was broken. It remains, as it was, a breach to the 
 same person, who first had a cause of action upon it. If it be any- 
 thing more, it is not a continuing breach, but a new existence. In 
 the next place, I assert, that it is like a covenant to do an act of 
 solitary performance; and for this plain reason, that it is, in its 
 nature, a covenant for a solitary act, and not a successive one. If 
 the covenant is broken, that is, if the grantor was not seised, it is 
 infracted to the core; and a second supposed breach is as futile as 
 the imaginary unbroken existence of a thing dashed in pieces. It has 
 no analogy to a covenant to do a future act, at different times, which 
 may undergo repeated breaches. It has no futurition; and cannot
 
 IO98 TITLE BY DERIVATIVE ACQUISITION. [l'T. VI. CH. II. 
 
 be partly broken and partly sound; but the grantor is seised or not 
 seised; and therefore, the covenant is inviolate, or violated wholly. 
 Not further to pursue the subject, I remark, that, in my judgment, 
 the case of Kingdon v. Nottle may justly be said to authorize the 
 assignment of a chose in action by devise ; a supposition as unfounded 
 as it is novel. 
 
 1, therefore, conclude, that the determinations in the above men- 
 tioned cases of Kingdon v. Nottle, are against the ancient, uniform 
 and established law of Westminster Hall; against well settled 
 principles and decided cases in the surrounding States; and that the 
 judges pronouncing them would have been of an opinion different 
 from the one expressed had they recognized the principle here well 
 established, that the breach of the covenant of seisin is, in its nature, 
 total, and the measure of damages the whole consideration money 
 paid for the land. As a consequence, I am of opinion that the 
 plaintiff cannot sustain his action on the covenant of seisin. 
 
 2. The next question relates to the covenant of freedom from 
 incumbrances. 
 
 The deed of the defendant to George Welton contains a covenant 
 of this description; and the plaintiff claims title to the covenant, 
 and a right to recover for a breach of it, by virtue of a deed of 
 quitclaim from the defendant and Welton. Without a further state- 
 ment of fact, it is sufficient to remark that the plaintiff has no right 
 to recover for the breach of this covenant; and if he had, no breach 
 of it is assigned. 
 
 First, he has no title to the covenant of freedom from incumbances, 
 nor right to recover for the breach of it. His only claim is founded 
 on the principle that this covenant runs with the land. In oppo- 
 sition to this claim, I observe, that the covenant above mentioned 
 was personal, and not a real covenant; that it was broken in the 
 testator's lifetime, and could not run with the land, — a peculiarity 
 attending real covenants only; and of consequence, that George 
 Welton is the only person who can sue on this unassignable contract. 
 
 This covenant is classed, by the late Chief Justice Swift (in the 
 
 first volume of his Digest, p. 370), with the covenant of sesin and of 
 
 i right to convey; and in relation to them all, he correctly says: 
 
 ' These covenants must be all broken at the time of executing the 
 
 deed, or they never can be; for if at that time, the grantor is not 
 
 well seised >>( the premises, as an indefeasible estate, or if he had no 
 
 right 10 sell, or if any incumbrance existed, then the covenants 
 
 an- broken. Mm if the grantor is seised, has a right to sell, or there 
 
 are no in' umbrances at the time <>f making the deed, then these 
 
 hi never be brok< n ; for no subsequent act can be done,
 
 III. 4.] COVENANTS. IO99 
 
 by the grantor, which will amount to a breach of them; as he can 
 do no act, that will affect or incumber the estate. These covenants, 
 of course, cannot be real covenants; for being broken at the instant 
 of their creation, they are choses in action, and cannot be assigned. 
 The distinguishing feature of the real covenant is, that it may be 
 broken at a future time; and it is this quality which renders it 
 assignable; but it must be assigned before it is broken; for when 
 once broken, the right to recover damages, is a chcse in action, 
 which cannot be assigned." With these observations, I entirely 
 concur. The fundamental question, on which the whole doctrine 
 depends, is, when is the covenant of freedom from incumbrances 
 broken? It is a covenant for a fact, existing, or said to exist, not 
 infuturo, but in presenti; at the moment when the deed is delivered. 
 The phraseology of the covenant is, that the premises are free from 
 incumbrances; not that they shall in future be free; just like the 
 expression the grantor is seised, and has good right to convey. If 
 the covenant be true, it can never be broken; if it be false, it is 
 broken immediately, in which event it is a chose in action, and can- 
 not be assigned. The doctrine contended for was adjudged by the 
 supreme judiciary of Massachusetts, in Prescott v. Trueman, 4 Mass. 
 Rep. 627, and by the Supreme Court of New York, in Delavergne v. 
 Norn's, 7 Johns. Rep. 358. 
 
 Secondly, no breach of the covenant in question has, by the plain- 
 tiff, been assigned. The averment is merely this — that the estate 
 " is not free from all incumbrances." It is sufficient to say, that 
 the law requires the incumbrance to be specially named and set 
 forth; or the defendant will always be taken by surprise. Incum- 
 brances, in their nature, are numerous. A mortgage, a way, a right 
 to dig turf, to pasture cattle, or to have dower assigned, and in 
 short, an easement of any kind, is an incumbrance, because it is a 
 load or weight on the land, and must lessen its value. Prescott v. 
 Trueman, 4 Mass. Rep. 630. It is opposed to the fundamental 
 principles of pleading (which are to inform the court, the jury, and, 
 above all, the party, by the altercations in writing), to authorize a 
 general allegation that there are incumbrances, without declaring 
 what they are. The point is settled, by first principles, and is 
 too clear for controversy. In Marston v. Hobbs, 2 Mass. Rep. 433, 
 it was said, by Chief Justice Parsons, that the breach of the covenant 
 against incumbrances, like that for quiet enjoyment, must be 
 specially assigned, showing its nature, and the interruption com- 
 plained of. The same point was adjudged, by the same court, Bick- 
 fordv. Page, 2 Mass. Rep. 455; and in De Forest v . Lete, 16 Johns. 
 Rep. 122, it was said, by the Supreme Court of New York, that under
 
 IIOO TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 a general assignment of a breach of the covenant against incum- 
 brances, the plaintiff cannot give evidence of his having bought in 
 an incumbrance, because it was not specifically alleged in the decla- 
 ration; and for the admission of such evidence, a new trial was 
 granted. 
 
 The charge of the judge to the jury, in this case, is free from 
 exception. The covenant in question, as was said by him, is broken 
 instantaneously, if ever; and under the negative averment of not free 
 from incumbrances, the jury were correctly instructed, that proof of 
 a particular incumbrance was inadmissible, because it should have 
 been set forth specifically, to apprise the defendant of its nature, 
 and give him the means of preparation for his defense. 
 
 (d.) Covenant against incumbrances. 
 
 MITCHELL v. WARNER. 
 
 5 Connecticut, 497. — 1825. 
 [Reported herein at p. 1094.] 
 
 STEWART v. DRAKE. 
 
 9 New Jersey Law, 139 — 1S27 
 
 [Reported herein at p. rroo.] 
 
 (c.) Covenants of warranty and of quiet enjoyment. 
 
 STEWART v. DRAKE. 
 
 9 New Jersey Law, 139. — 1827. 
 
 The Chief Justice delivered the opinion of the court: 
 John Sharps, Jr., of the county of Sussex, being the owner of two 
 farms in that county, mortgaged them to secure the payment of a 
 large sum of money. Afterwards, on the first of April, 1818, he 
 sold one of those farms to Imla Drake, for $7,287 87, and conveyed 
 it to him, by deed of bargain and sale, containing covenants of 
 seisin, of freedom from incumbrances, for quiet enioyment. and of 
 general warranty. Drake entered into possession. In the year 
 1823, upon a bill filed in the Court of Chancery, on the mortgage, 
 against Drake and others, a decree was made for the sale of the two 
 farms, to satisfy the mortgage debt, then amounting to $9,569.96. 
 On this decree an execution was issued, and the other farm being
 
 III. 4-] COVENANTS. I IOI 
 
 first sold by the sheriff, produced $5,300, leaving a balance of 
 $4,269.96. On the 7th July, 1823, in order to raise the balance, 
 Drake's farm was sold, and conveyed by the sheriff, for $2,800, to 
 Joseph Drake, the son-in-law of Imla Drake, and at the time in pos- 
 session of the farm, as his tenant. Joseph Drake, in September fol- 
 lowing, sold and conveyed the farm, for $3,200, to John Howell, 
 who immediately went into possession. On the 13th of February, 
 1823, Sharps made an assignment for the benefit of his creditors, 
 and within the time prescribed by the statute, Imla Drake exhibited 
 his claim for the purchase money of the farm, $7,287.87. Upon 
 exceptions, and a hearing in the Court of Common Pleas, the claim 
 was admitted to a dividend. And this decision is brought here by 
 certiorari. 
 
 It is admitted on all hands, that if Drake is entitled to exhibit a 
 claim under this assignment, which will in the sequel be examined, 
 the amount on which he is to be admitted to a dividend is the same 
 as he would be entitled to recover in an action against Sharps. 
 
 On the part of the exceptants below, the plaintiffs in certiorari, it 
 is insisted that Drake could not recover on the covenant of seisin, 
 because the existence of a mortgage is no breach of that covenant; 
 that on the covenants of quiet enjoyment and warranty he could not 
 recover, because there had been no ouster or eviction, which is 
 indispensable; and that on the covenant against incumbrances, he 
 should be admitted to claim, at the utmost, not more than the 
 balance, $4,269.96, unsatisfied by the first sale. 
 
 In the first place, as to the right of Drake to recover on the cove- 
 nants contained in the deed. If a breach of any one of the covenants 
 is shown, the right of recovery is established, and it will remain only 
 to ascertain the amount. One of the covenants is, that the farm, 
 at the execution of the deed, was free from incumbrances. There 
 was, however, upon it a subsisting incumbrance, the mortgage made 
 by Sharps. This covenant, therefore, was broken as soon as it was 
 made, in the same manner as the covenant of seisin is said to be 
 broken as soon as made, if the grantor is not then seised. Hale v- 
 Dean, 13 John. 105; Prescott v. True/nan, 4 Mass. 627; Wyman v. 
 Ballard, 12 Mass. 304; Funk v. Voneida, 11 Serg. & Rawle, 109. 
 Moreover, the facts in this case establish a breach of the covenants 
 for quiet enjoyment and of warranty. The rule in respect to these 
 covenants was correctly stated by the plaintiff's counsel. To consti- 
 tute a breach, there must be a lawful eviction, or a disturbance of 
 the possession. By the effect, and usually by the terms, of the 
 decree of the Court of Chancery, the parties defendants therein are 
 forever barred and foreclosed of all equity of redemption, of so much
 
 I 102 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 of the mortgaged premises, as may be sold by virtue of the decree.. 
 In this case, a sale under the decree, and a conveyance by the sheriff, 
 was made. The purchaser was actually in possession From the 
 time of the conveyance by the sheriff he held, and rightfully held, 
 the possession as his own, and shortly afterwards sold to another 
 person, whom he placed in possession. Joseph Drake, the purchaser, 
 had previously been the tenant of Imla Drake. But from the 
 sheriff's conveyance the tenancy ceased. Imla Drake could legally 
 claim neither rent nor possession against Joseph Drake. Both his 
 title and possession ceased, and by legal means. A more complete 
 disturbance of his possession, a more thorough eviction, could not 
 readily be devised. The cases cited by the plaintiff's counsel, from 
 Johnson's Reports, do not impugn, but accord with, this conclusion. 
 The principle which pervades the whole is, that there be a disturb- 
 ance in, or deprivation or cessation of, the possession, by the prose- 
 cution and operation of legal measures. * * * 
 
 We find no cause of reversal in the proceedings of the Court of 
 Common Pleas. 
 
 (</.) Covenants for further assurance. 
 
 Deady. J., in LAMB v. BURBANK. 
 
 i Sawyer (U. S. Cir. Ct.) 227; No. 8012 Federal Cases. — 1870. 
 
 Upon the amended bill, the legal title is in the heirs of Daniel 
 H. as tenants in common. If the writing of March 8 was executed 
 by authority of Daniel H., and bound him and his heirs, still the 
 legal title is in these heirs, and Burbank only has a right in equity 
 to have a conveyance of such legal title. At the date of the writing 
 of March 8, 1850, none of the parties had any interest in the land, 
 except the bare possession — the legal title was in the United States. 
 The first covenant in the writing is a special or limited covenant of 
 warranty, " against the claims of all persons claiming by, through, 
 or under the grantors," and only operates upon the estate which 
 Daniel H. then had in the premises. It is well settled that such a 
 covenant only refers to the existing title or interest granted, and 
 does not bar the covenantor from claiming the same premises against 
 his own covenantee or grantee by title acquired subsequent to the 
 making of his own deed. 2 Washb. Real Prop., p. 665. 
 
 So in this case Daniel H. acquired the title to this property from 
 the United States long after the date of the writing which contains 
 this covenant, and he or his heirs hold it unaffected by it. The sec- 
 ond covenant that if " the grantors obtain title from the United
 
 III. 4] COVENANTS. HO3 
 
 States they will convey the same to the grantees by deed of general 
 warranty " is a covenant for further assurance, and was intended to 
 meet the contingency which afterwards happened — that the United 
 States should grant the premises to Daniel H. Assuming, then, for 
 the present, that it should be determined upon the final hearing of 
 the cause that the writings and conveyances under which Burbank 
 claims are valid and sufficient for the purposes and intent expressed 
 therein, the heirs would have the title, and Burbank would be 
 entitled in equity to a conveyance of the same. But in the mean- 
 time it is charged in the bill that these writings are fraudulent, 
 informal and void, and are only a cloud upon the title of the plain- 
 tiffs. The inquiry involves the question of whether Burbank is 
 entitled in equity to have a conveyance of the land from the heirs 
 of Daniel H. — whether by virtue of the second covenant he has an 
 equitable estate in the premises or not. To determine this question 
 is the proper province of a court of equity. 
 
 COLBY v. OSGOOD. 
 29 Barbour (N. Y. Supr. Ct.) 339. — 1859. 
 
 By the Court, Roosevelt, J. — In 1853 — after the code went into 
 operation — Osgood, the defendant, in consideration of $30,000, 
 conveyed a certain house and lot, with the furniture, in Seventeenth 
 street, to one Smith, with full covenants of seisin, warranty, right 
 to convey free from incumbrances, and for further assurance. The 
 covenants, as usual, were made in terms, not only with Smith, but 
 with " his heirs and assigns." In the following year, to wit, in 
 May, 1854, Smith, the grantee, for the same consideration and with 
 the same covenants, conveyed the premises to Colby, the plaintiff in 
 this suit. Osgood, it appears, before his sale to Smith, had mort- 
 gaged the lot to one Snyder, for $10,000, who, in December, 1854, 
 commenced a foreclosure against Colby, and compelled him to pay 
 the $10,000, besides a large amount in addition for interest and 
 costs, which Colby now seeks to compel Osgood to refund. Colby, 
 it is conceded, has a remedy against Smith, and Smith against 
 Osgood, for reimbursement. The question is, can Colby, passing 
 by Smith, sue Osgood, Smith's grantor; or must he sue Smith, and 
 let Smith sue Osgood? 
 
 The referee held that Osgood's covenant was broken the moment 
 it was made; and that it was competent, under the code, to assign a 
 broken covenant; but that in this case no such assignment had been 
 made. In these views the referee, we think, partially erred.
 
 II04 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 First. The answer itself alleges that, simultaneously with the exe- 
 cution of the first deed a sealed agreement was entered into, which 
 recognized the mortgage, and qualified the effect of its existence as 
 an immediate incumbrance by allowing it to remain, by consent, 
 unpaid till the ist of November, 1854. There was therefore no 
 breach in that respect of the covenants, or either of them, until after 
 Smith's conveyance to Colby. 
 
 Second. The complaint sets forth the whole deed of the defendant, 
 verbatim, including the covenant for further assurance. It there- 
 fore lays the foundation of a claim for a release of the mortgage, or 
 payment of its equivalent in damages. A. release of a mortgage is a 
 " further assurance;" and the right to further assurance, when stip- 
 ulated for, passes to the successive grantees. In other words, it is 
 a covenant that " runs with the land," and as a consequence is 
 assigned by a conveyance of the land. It may be that in this view 
 of the cause of action a demand should first have been made. No 
 objection, however, was taken in the answer or on the argument for 
 the want of such demand. The defense was placed on the single 
 position that the plaintiff had no right to make any demand, whether 
 before suit or by suit; that the cause of action had never been 
 assigned to him, but belonged still to the original covenantee; that 
 the conveyance to him, by the covenantee of the lands, did not pass 
 the right of action on the covenants, which, it was assumed, had 
 been previously broken. The covenant for further assurance 
 appears to have been overlooked. That clearly had not been broken 
 before the conveyance. In its nature it was prospective; and 
 although in its legal effect it might, in the present case, give to the 
 party injured the same amount of damages as the covenant against 
 incumbrances, it still was not the same covenant. 4 Kent, 473. It 
 ran with the land, even if the other covenant did not; and it carried 
 the other covenant with it. 
 
 On both grounds, the dismissal of the complaint was erroneous, 
 and the judgment should be reversed, and a new trial ordered ; costs 
 to abide the event. 
 
 Ordered accordingly. 
 
 (c.) Special covenants as to title. 
 
 I .A MM v. H URBAN K. 
 
 1 Sawyer, 2-J7; No. 8012 Federal Cases. — 1870. 
 
 I Reported herein at p. 1 102.]
 
 III. 5-] MORTGAGES. 1105 
 
 (2.) Special Covenants. 
 
 (a.) Restrictive covenants. 
 
 BLAKEMORE v. STANLEY. 
 
 159 Massachusetts, 6. — 1893, 
 \_Reported herein at p. 387.] 
 
 ROWLAND v. MILLER. 
 139 New York, 93. — 1893. 
 [Reported herein at p. 38S.] ' 
 
 5. Transfer by Way of Security: Mortgage.* 
 a. Nature of a mortgage: at law; in equity. 
 TRYON v. MUNSON. 
 77 Pennsylvania State, 250. — 1874. 
 
 [Reported herein at p. 538.] 
 
 LANE v. KING. 
 
 8 Wendell (N. Y.), 584. — 1832. 
 [Reported herein at p. 197. ] 3 
 
 WILLIS v. MOORE. 
 
 59 Texas, 628. — 1S83. 
 [Reported herein at p. 201.] 
 
 b. What constitutes a mortgage: at law ; in equity. 
 
 TYRON v. MUNSON. 
 
 77 Pennsylvania State, 250. — 1874. 
 
 [Reported herein at p. 538.] 
 
 1 There are naturally a great variety of special covenants; the above are 
 given merely as illustrations. — Ed. 
 
 2 See N. Y. R. P. L. £§ 205-235, for New York statutory rules as to mort- 
 gages. — Ed. 
 
 3 For the modern New York doctrine, both at law and in equity, see Howell v. 
 Leavitt, supra, p. 1043. — Ed. 
 
 LAW OF PROP. IN LAND — 70
 
 II06 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 J&W4^ 
 
 :teltas. 
 
 46 New York, 605. — 1871. 
 
 Allen, J. — The action is for equitable relief, and especially for 
 an accounting by the defendant for the rents and profits and the 
 avails of the sale of lands in Brooklyn, conveyed by the plaintiff to 
 the defendant by deed absolute upon its face, but which, the plaintiff 
 claims, was intended as a mortgage, to secure a loan of money. In 
 1S59 the plaintiff applied to the defendant for a loan of $10,000, upon 
 the security of the property named, and after some negotiation, the 
 sum required was advanced to the plaintiff, upon the delivery of an 
 absolute deed of the property; the defendant, by an agreement, 
 executed and delivered simultaneously with the deed, but bearing 
 date a day or two later, covenanting to sell and convey the same 
 property to Mr. Pelton, upon the payment by him, within one year, 
 of $12,500 and interest thereon, together with all taxes and assess- 
 ments upon the premises, which the defendant should have paid. 
 
 The premises greatly exceeded in value the consideration paid for 
 the deed; the grantor, Horn, was embarrassed and straitened for 
 money. Mr. Pelton, the covenantee in the defendant's agreement, 
 was counsel for the plaintiff in the transaction, aiding him in procur- 
 ing the loan; and his testimony, as well as that of the plaintiff, was 
 that the agreement was taken by him for the use and benefit and as 
 the agent of the plaintiff, and to avoid the question of usury which, 
 "ft was supposed, Horn could make, if the agreement to reconvey 
 was directly to him; and the judge has found, that the transaction 
 took that form for that reason and no other, which is one circum- 
 stance tending strongly to show that the parties regarded the 
 advance of the money as a loan, and the conveyance a mortgage. 
 
 The judge has found, upon testimony somewhat conflicting, but 
 greatly preponderating, in connection with surrounding circum- 
 stances, in favor of the findings, that the advance of money was a 
 loan, to be repaid at the end of one year; that the deed was delivered 
 to and accepted by the defendant as a security f or the repayment 
 of the loan, with an additional sum agreed upon, and not as an 
 absolute sale and conveyance of the property; and that the agree- 
 1 1 1 « • n t for a conveyan ce to Pelton was for the benefit of the plain- 
 tiff, and in place of an agreement to reconvey directly to him, and 
 for the reasons before stated, and that the papers were delivered 
 Simultaneously, and as parts of one transaction; and as a conclusion 
 of law, it was adjudged that the plaintiff was entitled to the account 
 demanded, the property having been sold, and a redemption impos- 
 sible. It is now too late to controvert the proposition that a deed,
 
 III. 5-] MORTGAGES. II07 
 
 absolute upon its face, may, in equity, be shown, by parol or other 
 extrinsic evidence, to have been intended as a mortgage; and fraud 
 or mistake in the preparation or as to the form of the instrument is 
 not an essential element in an action for relief, and to give effect to 
 the intention of the parties. The courts of this State are fully com- 
 mitted to the doctrine, and, whatever may be the rule in other 
 States, here in passing upon the question, we have only to stand 
 upon the safe maxim of stare decisis. It is not enough, in view of 
 the fact, that the adjudications have entered into and controlled 
 business transactions, and become a rule of property, to authorize a 
 reconsideration of the questions, that the rule has been authorita- 
 tively adjudged otherwise as a rule of evidence in common-law courts, 
 and that eminent judges have contended earnestly against its 
 adoption as a rule in courts of equity. Notwithstanding their pro- 
 tests the rule has been, upon the fullest consideration, deliberately 
 established, and cannot now be lightly departed from. The principle 
 was recognized by the chancellor in Holmes v. Grant, 8 Paige, 243, 
 although it was not applied in that case, and had been before 
 asserted under like circumstances in Robinson v. Cropsey, 2 Edw. Chy. 
 R. 138; affirmed 6 Paige, 480. 
 
 It was expressly adjudged in Strong v. Stewart, 4 J. C. R. 167, that 
 parol evidence was admissible, to show that a mortgage only was 
 intended by an assignment absolute in terms; and to the same effect 
 is Clark v. Henry, 2 Cow. 324, which was followed by this court in 
 Murrey v. Walker, 31 N. Y. 399. In Hodges v. Tennessee Marine 
 and Fire Insurance Co., 4 Seld. 416, the court says, that " from an 
 early day in this State the rule that parol evidence is admissible for 
 the purpose named, has been established as the law of our courts of 
 equity, and it is not fitting that the question should be re-examined, 
 and the cases in which it has been so adjudged are cited with 
 approval." In Sturtevant v. Sturtevant, 20 N. Y. 39, the same judge 
 pronouncing the opinion as in the case last cited, distinguishes 
 between the case of a mortgage and trust, and it was decided, that 
 while a deed absolute, jr^terms. could be sho wn to be a mortgage. 
 a trust in favor of the grantee could no t be established by pa rol. 
 And see Despard v. Walbridge, 15 N. Y. 374. The rule does not con- 
 flict with that other rule, which forbids that a deed or other written .' 
 instrument shall be contradicted or varied by parol evidence. The ' 
 instrument is equally valid whether intended as an absolute convey- - 
 ance or a mortgage. Effect is only given to it according to the 
 intent of the parties, and courts of equity will always look through 
 the forms of a transaction and give effect to it, so as to carry out 
 the substantial intent of the parties. 
 
 ^J^WA WiA a 1
 
 II08 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 It is not objected that the agency of Pelton for the plaintiff in the 
 transaction could not be shown by parol; and that fact being estab- 
 lished the only question was, whether the agreement with Pelton, 
 which was, in truth, with the plaintiff, was intended simply as an 
 agreement to resell the premises at an advanced price, or a defeas- 
 ance giving a right of redemption. The fact being established by 
 competent evidence that the money advanced by the defendant was 
 advanced as a loan, and not on the purchase of the lands, the rela- 
 tion of debtor and creditor was established, and that relation being 
 established, it necessarily followed that the conveyance in connec- 
 tion with the agreement to re-convey, was intended by the parties 
 as, and was a security for the debt, and the maxim, " once a mort- 
 gage, always a mortgage," secured the debtor a right of redemption 
 until his equity was foreclosed by the judgment of a court of com- 
 petent jurisdiction. Newcomb v. Borham, i Vern. 7; Clark v. Henry, 
 supra. 
 
 That there was no agreement in the defeasance for the payment 
 of the debt, is a circumstance entitled to considerable weight, as 
 tending to show that the conveyance was not intended as a mortgage, 
 and that the relation of debtor and creditor did not exist. But it is 
 only one of several circumstances to be considered, and is not con- 
 clusive; and the judgment of the court below upon the question of 
 fact, the decision of which involved the consideration of this and 
 the other circumstances, and the whole evidence, is conclusive. In 
 Conway's Exr's v. Alexander, 7 Cranch, 218, Ch. J. Marshall says: 
 " The want of a covenant to repay the money is not complete evi- 
 dence that a conditional sale was intended, but is a circumstance of 
 no inconsiderable importance." And see per Putnam, J., Flagg 
 v. Mann, 14 Pick. 467. The question in this as in every case 
 was, whether the contract was a security for the repayment of 
 the money, or an actual sale, and the evidence fully sustains the 
 judgment of the court below that it was a mere security. The judg- 
 ment is favorable to the defendant. The security might properly 
 have been invalidated for usury, and the plaintiff had judgment for 
 the proceeds of the sale of the lands without deducting the money 
 lent. But equity has been done. The defendant has been repaid 
 tin- money loaned, with interest, and the plaintiff has judgment for 
 the residue, of the purchase-money for which the mortgaged premises 
 were sold, and the plaintiff does not complain. 
 
 Judgment affirmed.
 
 III. 5.] MORTGAGES. IIO9 
 
 M AC AULEY v. SM 1XH, 
 
 132 New York, 524. — 1892 
 
 Landon, J. — The agreement, which antedated the deeds by one 
 day and expressed their intent and purpose, should be read in con- 
 nection with them. Thus read, the deeds are shown to have been 
 given by Lucilia Tracy to Howland, Smith and Tracy " for the pur- 
 pose of securing and in consideration of said loan of $8,240 " made 
 by the grantees to the grantor, and " that the said deed ... is 
 a security for the said loan for a term not exceeding one year from 
 the date of said deed, . . . and that upon the payment of said 
 sum of $8,240, with interest, within or at the expiration of one year , 
 
 by the said Lucilia . . . the said Howland, Smith and Tracy t 
 are to reconvey said premises to said Lucilia, . . . and in case 
 said sum of $8,240 shall not be repaid during or at the expiration 
 of one year as aforesaid, then it is understood and agreed that the 
 said deed . . . is to become and be a deed absolute, and the 
 said Howland, Smith and Tracy are to become and be the owners 
 in fee simple absolute." 
 
 The deeds are thus clearly shown to have been intended as mort- 
 gages. This conclusion is also inferable from the facts. The 
 premises at the date of the deeds were worth $30,000. The judg- 
 ments against the premises were by the terms of the agreements toV 
 be paid from the money loaned, and presumably were either paid or v 
 their amount retained by the grantees from the $8,240. The amount 
 of the outstanding mortgages against the premises was $7,000. It is 
 not presumable that Lucilia Tracy intended to sell property worth ( t 
 $30,000 for $15,240. The grantor remained in possession of the 
 premises for about two years after the delivery of the deeds. She 
 was embarrassed and straitened for money. Stress is laid by the 
 defendants upon the fact that the grantor did not expressly covenant 
 to repay the money. The cases are to the effect that this is one of L 
 several circumstances to be considered; Horn v. Ketcltas 46 N. Y.U >" 1 
 605; Morris v. Budlong, 78 Id. 552; Brown v. Dewey, 1 Sand. Ch. 
 57; and here it is to be considered in connection with the repeated 
 statement that the money to be advanced by the grantees is a loan 
 and that " said deed is a security for said loan for a term of not 
 exceeding one year," and that upon repayment the grantors should 
 reconvey to the grantor. It is plain that repayment of the loan was 
 contemplated; nothing is said of the repayment of purchase-money, 
 and there is nothing in the agreement indicating that the money 
 advanced by the grantees was purchase-money, except that in case 
 said sum of $8,240, previously termed a loan, should not be repaid •
 
 I IIO TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CII. II. 
 
 at the expiration of one year, " then it is understood and agreed 
 that the said deed is to become and be a deed absolute," thus 
 clearly indicating that at the date of the transaction said sum was 
 not purchase-money and said deed was not a deed absolute, but was 
 to become so in case of nonpayment of the loan. Clearly upon the 
 undisputed facts the deeds were a mortgage to secure the money 
 loaned, and the trial court erred in refusing the plaintiff's request to 
 so find. The agreement that the nonpayment of the loan within 
 the time specified should convert the mortgage into an absolute deed 
 did not have that effect. The agreement to turn a mortgage into an 
 absolute deed in case of default is one that finds no favor in equity. 
 The maxim " once a mortgage always a mortgage " governs the case. 
 Horn v ■. Keteltas, supra; At array v. Walker, 31 N. Y. 400; Carrv. 
 Carr, 52 Id. 251; Remsen v. Hay, 2 Edw. Ch. 535; Clark v. Henry, 
 2 Cow. 324; Morris v. Nixon, 1 How. (U. S.) 118; Villa v. Rod- 
 riguez, 12 Wall. 323, 4 Kent's Com. 143. Since the deeds were a 
 mortgage the title did not pass to the grantees, but remained in 
 Lucilia Tracy. Barry v. Hamburg B. Fire Ins. Co., no N. Y. 1; 
 Thorn v: Sutherland, 123 Id. 236; Shattuck v. Bascom, 105 Id. 39. 
 
 The levy under the plaintiff's attachment was, therefore, upon 
 Mrs. Tracy's land, to which she had the legal title. It was not 
 merely an attempted levy upon her equitable right to obtain title. 
 As against Howland, Smith and Tracy the levy was valid and the 
 judgment and execution which followed the attachment became a 
 _> specific lien upon the land itself, and the land could be sold upon 
 execution. 
 
 Howland, Smith and Tracy conveyed the premises before the 
 attachment was issued to the defendant, the New York Baptist Union 
 for Ministerial Education. This defendant by its answer admits 
 that $3,000 of the purchase-money, with interest from January 1, 
 1883, remains unpaid, and that $1,550 of the principal of one of the 
 mortgages upon the premises given by Mrs. Tracy also remains 
 unpaid. This defendant in order to maintain the defense that it is 
 a bona fide purchaser without notice of plaintiff's rights, must have 
 paid all the purchase-money. Sargent v. Eureka S A. Co., 46 Hun, 
 [9; Harris v. Norton, 16 Barb. 264; Jewett v. Palmer, 7 Johns. Ch. 
 61 ; Jackson ex dem v. Cadwell, 1 Cow. 622; Boone v. Chiles, 10 Peters, 
 179; Patton v. Moore, 32 N. H. 382. 
 
 In equity it has not completed its purchase, but to the extent of 
 its payments, innocently made before notice of plaintiff's claim, is 
 entitled to protection. It may, therefore, retire from the transac- 
 tion without actual loss and without further impairing the rights of 
 the plaint ill .
 
 III. 5-1 
 
 MORTGAGES. 
 
 mi 
 
 The action is in aid of plaintiff's execution. Its object is not to 
 reach any equitable assets of Mrs. Tracy, but to strip from her 
 legal title to the premises in question the obstructions created by 
 the deed by which such title, apparently but not in fact passed from 
 her to Howland, Smith and Tracy, and from them to the Baptist 
 Union, and thus to show that the lien acquired by plaintiff's attach- 
 ment of the premises and perfected by her judgment and execution 
 was valid, and, therefore, may now be enforced free from the obstruc- 
 tions which seemed to defeat it. Such an action is within the 
 equitable jurisdiction of the court. Beck v. Burdett, i Paige, 305; 
 Haye v. Bolles, 2>S How. Pr. 266; Rincheyx. Stryker, 28 N. Y. 45; 
 Frost v. Mott, 34 Id. 253. Thurber v. Blanck, 50 N Y. 80, does not 
 hold otherwise, but does hold that the attachment to be effective 
 must operate upon legal rights; the precise position of the plaintiff 
 here. 
 
 The judgment should be reversed and a new trial granted, costs 
 to abide event. 
 
 Judgment reversed. 
 
 1 c. Assignment of mortgage. Subrogat, 
 TOHNSON v. ZINK. 
 
 51 New York, 333. — 1S73. 
 
 action 
 
 Action to restrain the prosecution by the defer 
 upon a bond given by the plaintiff, which was secured by a mortgage 
 on real estate, and for the subrogation of the plaintiff, or some 
 person nominated by him, to the right of the defendant, on his being 
 paid the amount due him. 
 
 Lott, Ch. C. — The conveyance by the mortgagor of the mort- 
 gaged premises, " subject to " the mortgage in question, to Corn- 
 stock conveyed to him the equity of redemption only, and 
 consequently the mortgage was to be discharged and satisfied out of 
 those premises, before any right or interest therein was acquired 
 by the grantee, and as between those parties it is clearly equitable 
 that such discharge and satisfaction should be made out of the said 
 premises, and that the obligor and mortgagor should not in exonera- 
 tion thereof, personally be called upon to pay the same out of his 
 individual property. The effect of the transaction was in equity to 
 make the land the primary fund for the payment of the debt, and 
 to place the plaintiff in the situation or relation of surety therefor 
 only. This principle is clearly established. See Jumel\. Jamel,
 
 
 III2 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 7 Paige, 591-594; Halsey v. Reed, 9 Id. 446-453, etc. ; Marsh v. Pike, 
 10 Id. 595; Cherry v. Monroe, 2 Barb. Ch. 618; Ferris v. Crawford, 
 2 Denio, 595; Stebbins v. Hall, 29 Barb. 524, 529, 538. 
 
 This relation between the mortagor and his grantee does not 
 deprive the obligee from enforcing the bond against the obligor. 
 He is entitled to his debt, and has a right to avail himself of all his 
 securities. Equity, however, requires that the obligor, on the pay- 
 ment of the debt out of his own funds, should be subrogated to the 
 rights of the obligee, so that he can reimburse himself by a recourse to 
 the mortgaged premises for that purpose. This cannot prejudice the 
 creditor, and it is clearly equitable as between the creditor and the 
 owner of the land. He clearly has no right or color of right, justice 
 or equity to claim that he, notwithstanding the conveyance of the 
 property subject to the mortgage, and thus entitling him only to its 
 value over and above it, should in fact enjoy and hold it discharged 
 of the encumbrance, without any contribution, toward its discharge 
 and satisfaction, from the land. This equitable principle is fully 
 recognized in most of the cases above cited. Indeed, it is so con- 
 sistent with right and justice as to require no authorities to sustain it. 
 
 Upon the application of it to this case, the plaintiff was entitled to 
 protection and indemnity out of the mortgaged premises for what he 
 was called upon to pay for the land, and it was reasonable and 
 proper to have an assignment of the bond and mortgage made to an 
 appointee of his nomination, for his benefit, so as to save any legal 
 technical question that might arise out of the transfer of the security 
 to the debtor and obligor himself, or as to its operation to satisfy 
 the debt. Whether it was made to the plaintiff himself, or another 
 person to hold for him, was wholly immaterial to the defendant. 
 
 The decision of the referee was, therefore, right on the merits, 
 nor is there any ground for the reversal of the judgment on the 
 admissibility of evidence. Assuming, as claimed by the appellant, 
 that it was irrelevant and immaterial whether at the time of the 
 execution of the deed from the plaintiff to Comstock there was an 
 allowance made for the mortgage in question, the evidence could 
 not prejudice the defendant. The presumption is, where premises 
 are conveyed subject to a mortgage and the equity of redemption 
 only is sold and conveyed, that the amount thereof is not paid to 
 the vendor, but is deducted from the full value of the property. 
 
 There was some evidence given, against the exception of the 
 
 ndant, of conversations with him, and on one occasion with his 
 
 also, tending to show that he had actual knowledge and notice 
 
 of the existence of the mortgage in question as a lien at the time of 
 
 the pin-' base by his wife and the execution of the deed to her. The
 
 III. 5.] MORTGAGES. I I 13 
 
 objection made to its introduction also was that it was immaterial 
 and irrelevant. In the view I have taken of the case, I think it may- 
 be so considered and was entirely harmless. The plaintiff was 
 entitled to the relief given him, irrespective of such knowledge and 
 notice; but I may add, that the defendant cannot complain of the 
 equities resulting from the transaction in favor of the plaintiff, when 
 he was fully advised of the facts on which they were based. 
 
 It is unnecessary to inquire whether any personal obligation was 
 assumed by either Comstock or Mrs. Zink to pay off the mortgage. 
 That question is immaterial to the issue involved in this case, and 
 its examination would be entirely irrelevant. 
 
 It is proper to notice an objection raised by the appellant's counsel 
 on the ground of the omission of Mrs. Zink as a party; and it is 
 sufficient to say, in reference to it, that no such question was raised 
 by demurrer or by the answer, nor, so far as appears by the case, on 
 the trial. It is, therefore, unavailable on the present appeal. 
 
 It follows, from the views above expressed, that the judgment 
 
 must be affirmed, with costs. 
 
 Judgment affirmed 
 
 MERRITT v. BARTHOLICK. 
 
 
 36 New York, 44. — 1S67. 
 
 Parker, J. — If the delivery of the mortgage, without the bond 
 to Wentworth, as collateral security for the debt which such 
 delivery was intended to secure, operated as a valid assignment of 
 the mortgage to Wentworth, the judgment below is wrong and can- 
 not be sustained. On the other hand, if it conveyed no interest in 
 the mortgage to Wentworth, then the defendant, who claims his 
 title through Wentworth's foreclosure of that mortgage, has no 
 defense to the plaintiff's action to foreclose, and no interest in 
 respect to it which, under the facts found by the referee,, can avail 
 him upon this appeal. 
 
 The single question for consideration then, is, did the delivery of 
 the mortgage by Merritt, the mortgagee, to Wentworth, under the 
 circumstances stated in the referee's report, operate to invest Went- 
 worth with any interest in the mortgage? 
 
 The referee finds that, " On the 16th of July, 1853, or shortly 
 thereafter, the bond and mortgage were assigned by the obligee and 
 mortgagee therein named, to John Campbell, by assignment in 
 writing, which was duly acknowledged and recorded on the 16th day 
 of May, 1853. That prior to the assignment of said bond and mort-
 
 1 1 14 TITLE BY DERIVATIVE ACQUISITION'. [PT. VI. CH. II. 
 
 gage to said Campbell, the mortgagee was indebted to Henry T. 
 Wentworth in the sum of $200, borrowed money; that Wentworth 
 desired that said mortgage should be left with him as collateral 
 security for said debt, and that the said Merritt delivered the said 
 mortgage to said Wentworth, according to such request, and as col- 
 lateral security for said debt of $200; that the said mortgage was so 
 delivered to the said Wentworth before the same was assigned to 
 said Campbell, but that the bond accompanying the same was not 
 delivered to the said Wentworth at the time, nor was anything said 
 about the same, nor is there any evidence that the same was ever 
 delivered to said Wentworth, nor was there any writing executed in 
 reference to such transfer." 
 
 As a mortgage is but an incident to the debt which it is intended 
 to secure [Martin v. Nowlin, 2 Burr. 969; Green v. Hart, 1 Johns. 
 580; Jackson v. B lodge t, 5 Cow. 202; Jackson v. Bronson, 19 Johns. 
 32^; Wilson v. Troup, 2 Cow. 231; Cooper v. King, 17 Abb. 342), the 
 logical conclusion is, that a transfer of the mortgage without the 
 debt is a nullity, and no interest is acquired by it. The security 
 cannot be separated from the debt and exist independently of it. 
 This is the necessary legal conclusion, and recognized as the rule by 
 a long course of judicial decisions. See cases above cited; also, 
 4 Johns. 41; 5 Johns. Ch. 570; 9 Wend. So. 
 
 Unless then, the bond was, in effect, assigned with the mortgage, 
 Wentworth obtained no interest in the mortgage. Did the bond or 
 the debt which it evidenced pass to Wentworth? In the first place, 
 the transfer of the mortgage did not of itself operate to transfer the 
 bond, for the legal maxim is the incident shall pass by the grant of 
 the principal, but not the principal by the grant of the incident. So 
 that unless we are authorized to say that such was the intent of the 
 parties, we cannot hold that it did. This is a question of fact, which 
 the counsel for the appellant argues in his points, but unless the 
 referee has found it, as a fact, or found facts from which we are 
 bound to infer its existence, it is a question not in the province of 
 ttiis < :ourt to determine. The act done by Merritt, the mortgagee, 
 was the delivery of the mortgage to Wentworth, and the purpose of 
 tin; delivery was to secure the payment of the debts of the mort- 
 gagee to Wentworth. Does it necessarily follow that the intention 
 of the parties was to transfer the bond? The referee has not found 
 either way upon this question of intent, and, therefore, unless the 
 ii in question is to be inferred, as a matter of legal necessity 
 from what he docs find, it must now be held not to have existed. 
 
 If the transfer had been by a written assignment, describing the 
 mortgage alone, and expressing the object to be to secure the debt
 
 III. 5.] MORTGAGES. 1 1 1 5 
 
 of the assignor to the assignee, nothing being said about the bond 
 or tne debt which it represents and delivery of the mortgage made? 
 it would be impossible, I think, to hold that the intention was to 
 assign the bond. There would be no opportunity for an implication 
 to that effect. The circumstance that the assignment would be 
 inoperative, unless the bond is held to pass, would not give the 
 assignment that effect. The result of such holding would be to 
 reverse the maxim, and make the principal follow the incident. To 
 make the circumstance of its inefficacy a reason for giving it the 
 effect desired, would, manifestly, uproot the maxim, and establish 
 the contrary rule. 
 
 The fact that here the transfer was by manual delivery, merely, 
 nothing being said as to the bond, or the indebtedness secured by it, 
 does not afford any stronger evidence of intent to transfer the bond 
 than the case supposed. There is no circumstance in the case not 
 considered in the supposed case, and, as I think, nothing to compel 
 the inference of intent to transfer the bond. I am unable to see, 
 therefore, any escape from the conclusion that, upon this appeal, 
 the judgment of the Supreme Court must be held correct, and 
 affirmed. 
 
 ARNOLD v. GREEN. 
 
 116 New York, 566. — 1889. 
 
 Action to compel the specific performance of a contract to convey 
 land. By the contract the land was to be conveyed " subject to all 
 existing liens now on said property." There were two liens, at the 
 time, in this order: (1) The Wadsworth mortgage, given by a prior 
 owner, still unpaid when the action was begun. (2) A decree of the 
 Surrogate's Court for the payment of the debts of Ashbel Arnold, a 
 former owner of the land. Both of these liens were prior to defend- 
 ant's right; an appeal from the decree was pending at the time of 
 the trust herein. Plaintiffs are in possession of the land. Defend- 
 ant, prior to the commencement of this action, paid off the Wads- 
 worth mortgage, having first been refused an assignment of it. 
 Defendant now asks that the Wadsworth mortgage be declared to 
 be an equitable lien in his favor on the premises. The court below 
 sustained his position. 
 
 Vann, J. — This appeal presents the single question whether, 
 under all the circumstances of the case, the defendant should have 
 been substituted in the place of Mr. Wadsworth as the owner of the 
 mortgage in question. Did he by the fact of payment become the
 
 1 1 16 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CII. II. 
 
 equitable assignee of the security and entitled to enforce it for his 
 own reimbursement and the protection of his interest in the land? 
 Under some circumstances the payment of a mortgage does not 
 satisfy it or destroy its lien because equity regards the person mak- 
 ing the payment as the owner thereof for certain definite purposes 
 and keeps it alive and preserves its lien for his benefit and security. 
 According to the well-established principles upon which the doctrine 
 of equitable assignment by subrogation rests, if the person paying 
 stands in such a relation to the premises that his interest, whether 
 legal or equitable, cannot otherwise be adequately protected, the 
 transaction will be treated in equity as an assignment. Sheldon on 
 Subrogation, §§ i, 3, 14, 16; 3 Pomeroy's Equity Jur. § 1211; Jones 
 on Mortgages, § S74. The remedy of subrogation is no longer 
 limited to sureties and quasi sureties, but includes so wide a range 
 of subjects that it has been called the " mode which equity adopts to 
 compel the ultimate payment of a debt by one who in justice, equity 
 and good conscience ought to pay it." Harris on Subrogation, § 1; 
 Barnes v. Mott, 64 N. Y. 397, 401; Stevens v. Goodenough, 26 Vt. 676; 
 Harusberger v. Yancey, $$ Gratt. 527; Smith v. Cosan, 42 Conn. 244. 
 While a mere volunteer, with no obligation to pay or interest to 
 protect, is not entitled to its aid, it is frequently applied in favor of a 
 vendee of encumbered real estate, who, although not personally 
 liable, has paid the debt of another which is a charge upon the land, 
 and which, if not paid, might cause him to lose his interest therein. 
 Under such circumstances the debt, although paid and satisfied in 
 form, is regarded in equity as neither paid nor satisfied in fact, but by 
 operation of law the former holder ceases to be the creditor, while 
 the person paying takes his place as owner of the debt and security 
 unimpaired. Where, within the limitations suggested, benefit may 
 result to the person paying without injury to the person who should 
 pay, equity casts the burden upon the latter, who ought in fairness 
 to bear it, provided it will not work injustice or disturb the rights 
 of other creditors of a common debtor. Id.; JoJuison v. Zink, 51 
 N. Y. 333; Cole v. Malcolm, 66 Id. 363; Twombly v. Cassidy, S2 Id. 
 155; Gans v. T//ieme, 93 Id. 225, 232; Averillv. Taylor, 8 Id. 44, 51. 
 These principles, when applied to the facts of this case, sustain 
 the judgment as modified by the General Term. The defendant was 
 the purchaser of land subject to two incumbrances, the earlier of 
 which was a mortgag e for a large sum past due, and the other a 
 de< m- in Surrogate's Court, the subject of which was still in litiga- 
 tion. He was the vendor of the same land, subject to the same 
 incumbrances, but no part of the principal of the purchase-price 
 had been paid, and interest thereon was past due and unpaid. The
 
 III. 5-] MORTGAGES III/ 
 
 land itself was the primary fund for the payment of .said incum- 
 brances, neither of which was the personal debt of the defendant, 
 but either of which, if enforced, would require him to raise the money 
 and pay it, or else lose his interest in the premises. He held the 
 legal title to the land as security for the payment of the purchase- 
 price, and as trustee for the plaintiffs, the equitable owners. It did 
 not appear that the land was adequate security for the amount there/ 
 was against it, including the demand of the defendant. It is clear; 
 therefore, that he was not a mere volunteer or stranger, because 
 he had an actual interest to protect against two prior liens, either of 
 which might be enforced at any time, involving trouble, expense and 
 the possible loss of his claim. The danger of interference may have 
 been remote, but there was nothing to protect him against a change 
 of mind on the part of the holder of the mortgage or on the part of 
 the plaintiffs. Freedom from interference depended upon moral 
 assurance, not upon legal right. How can he be called a stranger 
 to a debt whose land is the primary fund for the payment of such 
 debt? A stranger or volunteer, as those terms are used with refer- 
 ence to the subject of subrogation, is one who, in no event resulting 
 from the existing state of affairs, can become liable for the debt, 
 and whose property is not charged with the payment thereof and 
 cannot be sold therefor. A payment made by one who was liable to 
 be compelled to make it, or lose his property, will not be regarded 
 as made by a stranger. Where the person paying has an interest 
 to protect he is not a stranger. Even if he holds the title to land 
 merely as security, still he has an interest that is insecure, in a legal 
 sense, as long as the prior lien is past due and held by another. 
 Harris on Subrogation, §§ 795-798; Sheldon on Subrogation, §§ 245, 
 246; Jones on Mortgages, § 877. 
 
 It is insisted, however, that the payment made by the defendant 
 was not a fair effort to protect his property, but that his method was 
 underhanded and his object uncertain. This is doubtless true, and 
 it gave the court jurisdiction to require the defendant to so handle 
 his security as not to injure the plaintiffs, and to place them as 
 nearly as possible in the same position as if he had not paid the 
 mortgage. Owing to his misconduct he was properly compelled 
 not only to defer the enforcement of his security until the plaintiffs 
 had had a reasonable time to find another holder for the mortgage, 
 but also to pay the entire costs of the litigation. The plaintiffs can- 
 not, with propriety, complain of the decree as modified, because 
 they lose nothing by it. They are substantially situated as they were 
 before the payment was made. They should not, therefore, be per- 
 mitted to take advantage of the defendant by insisting that an effect
 
 II IS TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 be given to the payment which was not intended and which would be 
 inequitable. They come into a court of equity seeking, among 
 other things, relief from their own default in not paying the interest 
 upon the law day. Stevenson v. Maxwell, 2 N. Y. 408. As they seek 
 equity from the defendant, they must do equity toward him; and 
 when they receive all that they contracted for, it would not be 
 equitable for them to avoid paying for it as they agreed. Equity 
 will not permit them to receive the equivalent of $6,000 for nothing 
 and at the same time to demand its aid for further relief against the 
 person who parted with that sum for their benefit, even if his 
 methods were indirect and his object questionable. On the other 
 hand, it will give to each party his own; to the plaintiffs the land, 
 and to the defendant the money and security, but, under the circum- 
 stances, will require him to so use the latter as not to take any 
 advantage of his vendees. 
 
 If the plaintiffs had made a tender before the defendant made the 
 payment, or if they could not have been placed in the same situation, 
 substantially, that they were in before the payment was made, 
 different questions would have arisen for consideration in relation 
 to which we express no opinion. 
 
 We think that the judgment should be affirmed, but, under the 
 circumstances, without costs. 
 
 d. Foreclosure. 
 
 (1.) Strict forclosure. 
 
 ROSS v. BOARDMAN 
 
 .), 527, — 1880. 
 
 22 Hun (N. Y. Supr. Ct 
 
 Daniels, J. — The mortgages were executed by the defendant 
 and her husband, upon property owned by him, to secure, together, 
 the sum of $15,000. One was given on or about June 27, i860, and 
 the other on January 29, 1862. After they became due, the mort- 
 gagee and holder of both mortgages commenced an action for their 
 foreclosure. 
 
 This action proceeded to judgment, under which a sale was made 
 of the mortgaged property to a person named Powell. He con- 
 ed to own the property from the time of this purchase in 1863 
 until 1869, when he conveyed it to the plaintiff in this action. 
 
 |'li«- defendant in this suit was not made a party to that action, 
 and for thai reason it lias been brought to obtain a strict foreclosure 
 of her interest. At the sale made under the judgment the property 
 
 y 
 
 of t 
 
 tinu 

 
 III. 5.] MORTGAGES. IH9 
 
 brought the sum of $17,775, which was more than was required to 
 pay the amount due upon the two mortgages, together with the 
 expenses of the proceedings. The effe ct of the omission to make 
 the defendant a party to the first foreclosure suit, was to lea^ 
 contingent right of dower still a substantial incumbrance upon the 
 property] It was a subsisting and valuable interest, which could 
 only be" discharged or extinguished by a release of it under the 
 statute, or a proper judgment, and no such judgment could have '- 
 been or was recovered in the foreclosure suit, as she was not made 
 a party to it. The effect of the omission was to leave her interest 
 in the property substantially the same as though no action had been , 
 prosecuted for the foreclosure of the mortgages. This was held to 
 be the law applicable to such a state of facts in Smith v. Gardner, 42 Ifo t 
 Barb. 356; Peabody v. Roberts, 47 Id. 92; Mills v. Van Voorhies, 20 
 N. Y. 412; Simar v. Canaday, 53 Id. 298-303; where in general 
 terms it was held, that a wife who executes a mortgage jointly with 
 her husband is nevertheless entitled to dower in the equity of 
 redemption of which her husband is seised, notwithstanding the mort- 
 gage, which right is not affected in equity unless she is made a party 
 to the foreclosure. If omitted, she can at any time redeem, not- 
 withstanding a decree and sale in the foreclosure suit. It is for the 
 purpose of extinguishing this right of the defendant in the property IfV 
 that the present action, for a strict foreclosure of the mortgages in 
 favor of the plaintiff, has been instituted, and the fact that a larger 
 amount was realized upon the sale of the property than was neces- 
 sary to pay what was then due upon the mortgages, will not prevent 
 him from maintaining the action. For, by the terms of the statute 
 declaring the effect of a foreclosure by action, the deed given upon 
 the sale was attended with the effect of a conveyance executed by 
 both the mortgagor and mortgagee of the property. 3 R. S. 5th ed. 
 273, § 88. The result of this provision was to render the deed, 
 given to the purchaser at the sale, a conveyance of the interest of 
 the husband in the property released from a third mortgage given 
 by the same parties, and also to transfer so much of the two mort- 
 gages as remained unforeclosed by the judgment under which the 
 sale was made, to the purchaser at that sale. 
 
 Substantially he acquired the title to the property, incumbered by 
 this contingent dower interest, and an assignment of the mortgages 
 so far as they remained unforeclosed, upon this outstanding interest. 
 That such was the effect of the judgment and sale was substantially 
 what was held in Robinso7i v. Ryan, 25 N. Y. 320. It is true, that 
 was a foreclosure by advertisement; but, under the terms of the 
 statute already referred to there seems to be no good reason on
 
 I 120 MORTGAGES. [PT. VI. CH. II. 
 
 which this case, in that respect, can be distinguished from that one. 
 When the purchaser at the foreclosure sale afterwards conveyed the 
 property to the plaintiff in this case, he by that conveyance trans- 
 ferred to him his title, together with this interest in the unextinguished 
 mortgages, and for that reason he had such a title to the incum- 
 brances as entitled him to maintain an action for their strict fore- 
 closure, and he was not precluded from doing so, because the amount 
 realized from the sale under the judgment exceeded that which was 
 due upon the mortgages. For that amount was paid not only for 
 the title itself, but in part also it formed a consideration for the 
 transfer of these two mortgages so far as they had not been at that 
 time foreclosed. Under such circumstances the settled rule seems 
 to be that the purchaser, or his subsequent grantee, may maintain 
 an action of this description, for the purpose of completing his title 
 by securing a strict foreclosure of the incumbrances, or their 
 redemption by the person whose interest still subsists in the prop- 
 erty. Benedict v. Gilman, 4 Paige, 58. This subject was considered 
 in Bolles v. Duff, 43 N. Y. 469, 474. In that case it was stated that 
 strict foreclosures are now rarely pursued or allowed in this State, 
 except in cases where a foreclosure has once been had and the 
 premises sold, but some judgment-creditor, or persons similarly 
 situated, not having been made a party, has a right to redeem. As 
 to him a strict foreclosure is proper. The facts shown by the plain- 
 tiff upon the trial of this action brought it plainly within this principle, 
 and for that reason the relief demanded by him should not have been 
 denied, but judgment should have been directed to that extent in 
 his favor, and the effect of that would have been that the defend- 
 ant's interest in the property would be extinguished at the expira- 
 tion of the time designated for the purpose of enabling her to 
 redeem unless the amount required for the protection of her interest 
 should be paid. What that amount might be, did not, and could 
 not, appear in the case, for the reason that the purchaser at the fore- 
 closure sale, and the plaintiff as his grantee, had been for years in 
 the possession and enjoyment of the property and the receipt of its 
 rents and profits. For those they were both legally and equitably 
 liable to account, and the amount received from that source and 
 applicable for that purpose, should be first deducted from the mort- 
 gage debts. The practice upon this subject was indicated in the 
 
 of Benedict v. (HI man, already cited, and the principles upon 
 which the accounting should be had, were then substantially settled. 
 The same subject was considered in the same manner in Ilubbell v. 
 Moulson, 53 N. Y. 225, 228, 229, and the reference ordered in this 
 
 appears to have been properly adapted to that end. The
 
 III. 5-] MORTGAGES. II2I 
 
 defendant could redeem her interest by paying to the plaintiff what- 
 ever should prove to be the proportionate part of the mortgage debts 
 which her interest ought to contribute, but the amount required for 
 that purpose can in no way be ascertained, without such an account- 
 ing as was directed in this case. The judgment, so far as it provided 
 for a hearing of that nature, was in conformity with these authori- 
 ties, and it should for that reason be sustained. As judgment shouldN 
 not have been denied to the plaintiff, but a strict foreclosure in his j 
 favor should have been directed, he could not properly be charged/ 
 with the costs of the action. Who may be entitled to costs in the 
 case, whether the plaintiff, or the defendant, or neither, can only 
 be equitably ascertained when the result of the accounting shall 
 become known and final judgment be directed in the action. In this 
 respect, therefore, the judgment should also be modified and costs 
 should be reserved until the final determination of the action. With 
 these two modifications the direction given in the case appears to q 
 have been proper. It has been claimed, on the part of the plaintiff, ! 
 that proof of the third mortgage should have been received upon the 
 trial, but that mortgage formed no part of the foreclosure proceed- 
 ings in the first action, and certainly no interest in it was transferred 
 to the purchaser under the judgment, or to the plaintiff in this case. 
 It was extinguished as a lien on the property, because the holder 
 was made a party to the first action, but as it formed no part of the 
 title or interest which was sold, the plaintiff acquired no right to rely 
 upon it as a basis of his right to relief in this case. So far as it may 
 not have been fully paid, the holder of it may still be entitled to 
 foreclose it against the defendant's contingent interest in this prop- 
 erty. If its existence and the balance still remaining unpaid on it 
 shall have any pertinency to the inquiry, or the investigation, required 
 to be made by the referee, proof of these facts will undoubtedly be 
 received; but the circumstance that they were rejected upon the 
 trial, and the complaint was not allowed to be amended, so as to 
 include a statement of them, can have nothing to do with the dispo- 
 sition which should be made of this case at the present time. The 
 judgment should so far be modified, as to direct a strict foreclosure 
 of the mortgages against the defendant, unless she shall redeem her 
 contingent interest in the property, by paying the amount which 
 may be found necessary for that purpose on the confirmation of the 
 referee's report, and within such a period of time as may then be 
 designated by the court; and so much of the judgment as provides 
 for the recovery of costs against the plaintiff should be reversed, 
 and as so modified the judgment already in the case should be 
 affirmed. 
 
 LAW OF PROP. IN LAND — 71
 
 1 122 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 (2,) Foreclosure by Action, 1 
 HOWELL v. LEAVITT. 
 
 95 New York, 617. — 1884. 
 [Reported herein at p. 1043.] 
 
 (3.) Foreclosure by Advertisement or under the power of sale. 2 
 
 SHERMAN v. WILLETT. 
 
 42 New York, 146. — 1870. 
 [Reported herein at p. 209.] 
 
 IV. Title by devise. 3 
 
 JACKSON ex dem. WELLS v. WELLS. 
 
 9 Johnson (N. Y.), 222. — 1812. 
 
 [Reported herein at p. 513.] 4 
 
 STALL v. WILBUR. 
 
 77 New York, 158. — 1879. 
 [Reported herein at p. 207.] 
 
 MAGOUN v. ILLINOIS TRUST AND SAVINGS BANK. 
 
 18 Supreme Court Reporter (U. S.), 594. — 1898. 
 
 Mr. Justice McKenna, after stating the case, delivered the 
 opinion of the court. — Legacy and inheritance taxes are not new in 
 our laws. They have existed in Pennsylvania for over sixty years, 
 and have been enacted in other States. They are not new in the 
 laws of other countries. In Tennessee v. Alston, 94 Tenn. 674, 30 S. 
 W- 750, Judge Wilkes gave a short history of them, as follows: 
 "Such taxes were recognized by the Roman law. 1 Gibbon's 
 
 1 For the New York statute see §§ 1626-1630, Code Civ. Pro. —Ed. 
 
 1 For the New York statute see §§ 23S7-2409, Code Civ. Pro. — Ed. 
 
 'The law as to" succession to the estates of deceased persons" is the subject 
 of a separate 1 ourse; the law of " devise " and " descent " will not, therefore, 
 be treated al length here. — Ed. 
 
 4 See also 1 1 reported at pp. 53, 514 and 516, supra. — Ed.
 
 IV.] TITLE BY DEVISE. 
 
 I 12' 
 
 Decline and Fall of the Roman Empire, pp. 163, 164. They were 
 adopted in England in 1780, and have been much extended since 
 that date. Dowell's History of Taxation in England, 148; Acts 20 
 Geo. III., c. 28, 45 Geo. III., c. 28, and 16 & 17 Vict., c. 51; Green 
 v. Croft, 2 H. Bl. 30; Hill v. Atkinson, 2 Mer. 45. Such taxes are 
 now in force generally in the countries of Europe. Review of 
 Reviews, Feb., 1893. In the United States they were enacted in 
 Pennsylvania in 1826; Maryland, 1844; Delaware, 1869; West Vir- 
 ginia, 1887, and still more recently in Connecticut, New Jersey, 
 Ohio, Maine, Massachusetts, 1891; Tennessee in 1891 (chapter 25, 
 now repealed by chapter 174, Acts 1893). They were adopted in 
 North Carolina in 1846, but repealed in 1883; were enacted in Vir- 
 ginia in 1844, repealed in 1855, re-enacted in 1863, and repealed in 
 1884." Other States have also enacted them — Minnesota, by con- 
 stitutional provision. 
 
 The constitutionality of the taxes has been declared, and the 
 principles upon which they are based explained in United States v. 
 Perkins, 163 U. S. 625, 628, 16 Sup. Ct. 1073; Strode v. Com., 52 Pa. 
 St. 181; Eyre v. Jacob, 14 Grat. 422; Schoolfield v. Lynchburg, 78 
 Va. 366; Maryland v. Dalrymple, 70 Md. 298, 17 Atl. 82; Clapp v. 
 Mason, 94 U. S. 583; In re At ariam' s Estate, 141 N. Y. 479, 36 N. 
 E. 505; Maine v. Hamlin, 86 Me. 495, 30 Atl. 76; Tennessee v. 
 Alston, 94 Tenn. 674, 30 S. W. 750; /// re Wilmerding 's Estate, 117 
 Cal. 281,49 Pac. 181; Dos P. Colat. Inher. Tax Law, 20; Mi not v. 
 Winthrop 162 Mass. 113, 38 N. E. 512; Gelssthorpe, v. Furnell (Mont.) 
 51 Pac. 267. See also Scholey v.Rew, 23 Wall. 331. 
 
 It is not necessary to review these cases, or state at length the 
 reasoning by which they are supported. They are based on two 
 principles: (1) An inheritance taxis not one on property, but one on 
 the succession; (2) the right to take property by devise or descent 
 is the creature of the law, and not a natural right, — a privilege, and 
 therefore the authority which confers it may impose conditions 
 upon it. From these principles it is deduced that the States may 
 tax the privilege, discriminate between relatives, and between these 
 and strangers, and grant exemptions, and are not precluded from 
 this power by the provisions of the respective State constitutions 
 requiring uniformity and equality of taxation. 
 
 The second principle was given prominence in the arguments 
 at bar. The appellee claimed that the power of the State could be 
 exerted to the extent of making the State the heir to everybody, 
 and the appellant asserted a natural right of children to inherit. Of 
 the former proposition we are not required to express an opinion. 
 Nor, indeed, of the latter, for appellant conceded that testa-
 
 1 124 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 mentary disposition and inheritance were subject to regulation. 
 However, as pertinent to the subject, decisions of this court may- 
 be cited. In United States v. Fox, 94 U. S. 315-321, a law of the 
 State of New York confining devises to natural persons and cor- 
 porations created under its laws was considered, and a devise 
 of land to the United States was held void. The court said: 
 
 " The power of the State to regulate the tenure of real property 
 within her limits, and the modes of its acquisition and transfer, and 
 the rules of its descent, and the extent to which a testamentary dis- 
 position of it may be exercised by its owners, is undoubted. It is 
 an established principle of law, everywhere recognized, arising from 
 the necessity of the case, that the disposition of immovable prop- 
 erty, whether by deed, descent, or by any other mode, is exclusively 
 subject to the government within whose jurisdiction the property is 
 situated. McCormick v. Sullivant, 10 Wheat. 202. 
 
 " Statutes of wills, as is justly observed by the Court of Appeals, 
 •are enabling acts, and prior to the statute of 32 Hen. VIII. there was 
 no general power at common law to devise lands. The power was 
 opposed to the feudal policy of holding lands inalienable without 
 the consent of the lord. The English statute of wills became a part 
 of the law of New York upon the adoption of her constitution in 
 1777, and, with some modifications in its language, remains so at this 
 day. Every person must therefore, devise his lands in that State 
 within the limitations of the statute, or he cannot devise them at all. 
 His power is bounded by its conditions." 
 
 In Mager v. Grt'ma, 8 How. 493, there was considered the validity 
 of a law of Louisiana imposing a tax of 10 per cent, upon legacies, 
 when the legatee was neither a citizen of the United States nor 
 domiciled therein. Mr. Chief Justice Taney considered the legal 
 question of easy solution, and disposed of it summarily. He said: 
 ' This is a plain case, and when the facts are stated the questions of 
 law may be easily disposed of in a few words." After stating the 
 case briefly, he further said: 
 
 " Now, the law in question is nothing more than an exercise of 
 the power which every State and sovereignty possesses, of regulating 
 the manner and terms upon which property, real or personal within 
 its dominion may be transmitted by last will and testament, or by 
 inheritance, and of prescribing who shall and who shall not be 
 1 apable of taking it. Every State or nation may unquestionably 
 refuse to allow an alien to take cither real or personal property situ- 
 ated within its limits, either as heir or legatee, and may, if it think 
 proper, direct thai property so descending or bequeathed shall
 
 IV.] TITLE BY DEVISE. 1125 
 
 belong to the State. In many of the States of this Union at this 
 day, real property devised to an alien is liable to escheat. And if a 
 State may deny the privilege altogether, it follows that when it 
 grants it, it may annex to the grant any conditions which it supposes 
 to be required by its interests or policy. This has been done by 
 Louisiana. The right to take has been given to the alien, subject to 
 a deduction of 10 per cent for the use of the State. 
 
 " In some of the States laws have been passed at different times 
 imposing a tax similar to the one now in question upon its own citi- 
 zens, as well as foreigners, and the constitutionality of these laws 
 has never been questioned. And if a State may impose it upon its 
 own citizens, it will hardly be contended that aliens are entitled to 
 exemption, and that their property in our own country is not liable 
 to the same burdens that may lawfully be imposed upon that of our 
 own citizens. 
 
 " We see no objection to such a tax, whether imposed on citizens 
 and aliens alike, or upon the latter exclusively." 
 
 In United States v. Perkins, 163 U. S. 625-631, 16 Sup. Ct. 1073, 
 the inheritance tax law of the State of New York was involved. 
 Mr. Justice Brown, speaking for this court, said: 
 
 " While the laws of all civilized States recognize in every citizen 
 the absolute right to his own earnings, and the enjoyment of his 
 own property, and the increase thereof during his life, except so far 
 as the State may require him to contribute his share for public 
 expenses, the right to dispose of his property by will has always 
 been considered purely a creature of statute and within legislative 
 control. ' By the common law, as it stood in the reign of Henry 
 II., a man's goods were to be divided into three equal parts, of 
 which one went to his heirs or lineal descendants, another to his 
 wife, and a third was at his own disposal; or, if he died without a 
 wife, he might then dispose of one moiety, and the other went to 
 his children; and so, e converse, if he had no children, the wife was 
 entitled to one moiety, and he might bequeath the other; but if he 
 died without either wife or issue, the whole was at his own disposal.' 
 2 Bl. Com. 492. 
 
 " Prior to the statute of wills enacted in the reign of Henry VIII., 
 the right to a testamentary disposition of the property did not 
 extend to real estate at all, and as to personal estate was limited as 
 above stated. Although these restrictions have long since been 
 abolished in England, and never existed in this country, except in 
 Louisiana, the right of a widow to her dower, and to a share in the 
 personal estate, is ordinarily secured to her by statute.
 
 I 1 26 TITLE BY DERIVATIVE ACQUISITION. [PT. VI. CH. II. 
 
 " By the Code of Napoleon, gifts of property, whether by acts 
 inter vivos or by will, must not exceed one-half the estate if the 
 testator leave but one child, one-third if he leaves two children, and 
 one-fourth if he leaves three or more. If he have no children, but 
 leaves ancestors, both in the paternal and maternal line, he may give 
 away but one-half of his property, and but three-fourths if he have 
 ancestors in but one line. By the law of Italy one-half of a 
 testator's property must be distributed equally among all his chil- 
 dren. The other half he may leave to his eldest son, or to whom- 
 soever he pleases. Similar restrictions upon the power of a dispo- 
 sition by will are found in the codes of other continental countries, 
 as well as in the State of Louisiana. Though the general consent 
 of the most enlightened nations has, from the earliest historical 
 period recognized a natural right in children to inherit the property 
 of the parents, we know of no legal principle to prevent the 
 legislature from taking away or limiting the right of testamentary 
 disposition, or imposing such conditions upon its exercise as it may 
 deem conducive to public good."
 
 CHAPTER III. 
 Title by Descent. 
 
 OVERTURF v. DUGAN. 
 
 29 Ohio State, 230. — 1876. 
 [Reported herein at p. 20.] 
 
 MARCH v. BERRIER. 
 
 6 Iredell's Equity (N. C), 524. — 1850. 
 [Reported herein at p. 70.] 
 
 SHERMAN v. WILLETT. 
 
 42 New York, 146. — 1870. 
 
 {Reported herein at p. 209.] 
 
 BATES v. SHRAEDER. 
 
 13 Johnson (N. Y.), 260. — 1816. 
 [Reported herein at p. 460. ]' 
 
 BATES v. BROWN. 
 
 5 Wallace (U. S.), 710. — 1894. 
 
 Ejectment. — Wolcott devised his real estate to his wife Eleanor 
 and his daughter Mary Ann, and their heirs and assigns forever. 
 Mary Ann died intestate and without issue in 1832. In 1833 Eleanor 
 conveyed the premises to David Hunter. In 1836 Eleanor remar- 
 ried and plaintiff is the only issue of that marriage. 
 
 1 For the New York Statute of Descents, see R. P. L., §§ 280-296. Titles by 
 curtesy and dower consummate are analogous to titles by descent. — Ed. 
 
 [1127]
 
 I I 28 TITLE BY DESCENT. [PART VI. 
 
 Swayne J. — Mary Ann Wolcott, from whom the plaintiff in error 
 claims to have derived his title by inheritance, died nearly four years 
 before his birth. During all the intervening time it is not denied that 
 the title was vested in his mother and her grantee. Such was the 
 effect of the statute. It is clear in its language, and there is no room 
 for controversy upon the subject. Although born after the title 
 became thus vested, he insists that upon his birth it became, to the 
 extent of his claim, divested from the grantee and vested in him. His 
 later birth and relationship to the propositus, he contends, is to be 
 followed by the same results as if he had been living at the time of 
 her death. 
 
 It is alleged that the rule of " shifting inheritances " in the Eng- 
 lish law of descent, is in force in Illinois, and must, govern the 
 decision of this case. 
 
 The operation of this rule is thus tersely illustrated in a note by 
 Chitty, in his Blackstone: "As if an estate is given to an only 
 child, who dies, it may descend to an aunt, who may be stripped of 
 it by an after-born uncle, on whom a subsequent sister of the 
 deceased may enter, and who will again be deprived of the estate 
 by the birth of a brother. It seems to be determined that every one 
 has a right to retain the rents and profits which accrued while he 
 was thus legally possessed of the inheritance. Hargrave's Co. Litt. 
 ii ; Goodtittle v. Newman, 3 Wils. 526." 2 Christ. Bl. Comm. 208, 
 note 9. 
 
 Such is undoubtedly the common law of England. Watk. Des. 
 169. It is said the Ordinance of 1787, which embraced the territory 
 now constituting the State of Illinois, and the acts of the Legislature 
 of that State of the 4th of February, 1819, and of the 3d of March, 
 1X45, are to be considered in this connection. 
 
 The ordinance created a court which it declared " shall have 
 common-law jurisdiction," and it guaranteed to the people of the 
 territory " judicial proceedings according to the course of the com- 
 mon law." There is no allusion in it to the common law but these. 
 The two acts of the Legislature contain substantially the same pro- 
 visions. What is expressed in the second act, and not in the first, 
 is ( learly implied in the former. The latter declared that " the 
 common law of England, so far as the same is applicable and of a 
 general nature," . . " shall be the rule of decision, and 
 
 shall be considered as in full force until repealed by legislative 
 authority." Rev. St. 111. 1 S45, p. 337. Mary Ann Wolcott died, and 
 the plaintiff in error was born before this act became a law, but it 
 may I"- properly referred to as containing an exposition of the legis- 
 lative intenl in the prior act. Although the former act adopts "the
 
 CHAP. III.] TITLE BY DESCENT. 1 1 29 
 
 common law of England " in general terms, it was undoubtedly 
 intended to produce that result only so far as that law was " appli- 
 cable and of a general nature." 
 
 By the common law, actual seisin, or seisin in deed, is indis- 
 pensable to the inheritable quality of estates. If the ancestor were 
 not seised, however clear his right of property, the heir cannot 
 inherit. According to the canons of descent, hereditaments 
 descend lineally, but can never ascend. This rule is applied so 
 rigidly that it is said " the estate shall rather escheat than violate 
 the laws of gravitation." 
 
 The male issue is admitted before the female. When there are 
 two or more males, the eldest only shall inherit, but females 
 altogether. 
 
 Lineal descendants, in infinitum, represent their ancestors standing 
 in the same place the ancestor would have stood, if living. 
 
 On failure of lineal descendants of the ancestor, the inheritance 
 descends to his collateral relations — being of the blood of the first 
 purchaser — subject to the three preceding rules. 
 
 The collateral heir of the intestate must be his collateral kinsman 
 of the whole blood. 
 
 In collateral inheritances the male stock is preferred to the 
 female. Kindred of the blood of the male ancestor, however 
 remote, are admitted before those of the blood of the female, how- 
 ever near, unless where the lands have, in fact, descended from a 
 female. Watk. Des. 95. 
 
 These principles sprang from the martial genius of the feudal sys- 
 tem. When that system lost its vigor, and in effect passed away, 
 they were sustained and cherished by the spirit which controlled the 
 civil polity of the kingdom. The celebrated statute of 12 Car. II., 
 c. 24, which Blackstone pronounces a greater acquisition to private 
 property than Magna Charta, was followed by no change in the 
 canons of descent. The dominant principles in the British consti- 
 tution have always been monarchical and aristocratic. These 
 canons tend to prevent the diffusion of landed property, and to pro- 
 mote its accumulation in the hands of the few. They thus conserve 
 the splendor of the nobility and the influence of the leading families, 
 and rank and wealth are the bulwarks of the throne. The monarch 
 and the aristocracy give to each other reciprocal support. Power 
 is ever eager to enlarge and perpetuate itself, and the privileged 
 classes cling to these rules of descent with a tenacity characteristic 
 of their importance — as means to the end they are intended to help 
 to subserve. 
 
 Before the Revolution, some of the colonies had passed laws reg-
 
 II30 TITLE BY DESCENT. [PART VI. 
 
 ulating the descent of real property upon principles essentially- 
 different from those of the common law. In most of them the 
 common law subsisted until after the close of the Revolution, and 
 the return of peace. It prevailed in Virginia until the act of her 
 Legislature of 1785 took effect, and it was, perhaps, the law upon 
 this subject in " the Northwestern Territory," at the time of its 
 cession in 1784 by Virginia to the United States. With the close of 
 the Revolution came a new state of things. There was no monarch, 
 and no privileged class. The equality of the legal rights of every 
 citizen was a maxim universally recognized and acted upon as funda- 
 mental. The spirit from which it proceeded has founded and shaped 
 our institutions, State and National, and has impressed itself upon 
 the entire jurisprudence of the country. One of its most striking 
 manifestations is to be found in the legislation of the States upon 
 the subject under consideration. Of the results an eminent writer 
 thus speaks: " In the United States the English common law of 
 descents, in its most essential features, has been universally 
 rejected, and each State has established a law of descents for itself." 
 4 Kent Comm. 412. 
 
 Another writer, no less eminent, upon this topic says: " In the 
 law of descents there is an almost total change of the common law. 
 It is radically new in each State, bearing no resemblance to the 
 common law in most of the States, and having great and essential 
 differences in all." Reeve, Des. 11. 
 
 So far as British law was taken as the basis of this legislation in 
 the different States, it was the statutes of Charles II. and James II. 
 respecting the distribution of personal property, and not the canons 
 of descent of the common law. The two systems are radically 
 different in their principles. 
 
 The Ordinance of 1787 contains a complete series of provisions 
 upon the subject. They are the type and reflex of the action of 
 many of the States at that time. The ordinance declared that the 
 estates of persons dying intestate " shall descend to and be dis- 
 tributed among their children, and the descendants of a deceased 
 child in equal parts; the descendants of a deceased child or grand- 
 child to take the share of their deceased parent in equal parts among 
 them; and when there shall be no children or descendants, then in 
 equal parts to the next of kin, in equal degree; and among col- 
 laterals the children of a deceased brother or sister of the intestate 
 shall have, in equal parts among them, their deceased parent s 
 share; and there shall in no case be a distinction between kindred of 
 the whole and half blood." 
 
 We find lure not a trace of the common law. These provisions
 
 CHAP. III.] TITLE BY DESCENT. II3I 
 
 are diametrically opposed to all its leading maxims. We cannot 
 infer from their silence that anything not expressed was intended to 
 be adopted from that source by implication or construction. 
 
 The statute governing the descent of real estate, already referred 
 to, is also a complete code upon the subject of which it treats. It 
 is to be presumed to cover every case for which the legislature 
 deemed it proper to provide. If the same question had come before 
 us under the ordinance, we should have said, with reference to the 
 common law, conflict is abrogation and silence is exclusion. The 
 spirit and aims of the two systems are wholly different. One seeks 
 to promote accumulation — the other diffusion. One recognizes and 
 cherishes the exclusive claim of the eldest son — the other the equal 
 rights of all his brothers and sisters. The latter makes no distinc- 
 tion on account of age, sex, or half blood. We apply to the statute 
 also the remark that silence is exclusion. It speaks in the present 
 tense — of the state of things existing at the time of the death of 
 the intestate, and not of any change or different state of things 
 which might occur thereafter. If the Legislature had designed to 
 provide for this case, according to the rule insisted upon, we cannot 
 doubt that they would have said so in express terms. The statute 
 bears no marks of haste or inattention. We cannot believe it was 
 intended to leave a rule of the common law so well known, and so 
 important, to be deduced and established only by the doubtful 
 results of discussion and inference. The draughtsman of the bill 
 could not have overlooked it, and the silence of the statute is full 
 of meaning. 
 
 One class of posthumous children are provided for. We see no 
 reason to believe that another was intended to be included, 
 especially when the principle involved is so important. The inten- 
 tion of the Legislature constitutes the law. That intention is mani- 
 fested alike by what they have said and by what they have omitted 
 to say. Their language is our guide to their meaning, and under 
 the circumstances we can recognize none other. W T e cannot go 
 farther than they have gone. The plaintiff in error asks us, in 
 effect, to interpolate into the statute a provision which it does not 
 contain. Were we to do so, we should assume the function of the 
 Legislature and forget that of the court. The limit of the law is the 
 boundary of our authority, and we may not pass it. 
 
 The principle contended for was applied in the case of Dunn v. 
 Evans, 7 Ohio, 169. The case is briefly reported, and no arguments 
 of counsel appear. It was also adopted in North Carolina, in Cutlar 
 v. Cutlar, 2 Hawks, 324, and in Caldivell v. Black, 5 Ired. 463. No
 
 I 132 TITLE BY DESCENT. [PART VI. 
 
 recognition of it is to be found, it is believed, in any other Ameri- 
 can adjudication. 
 
 The subject was elaborately examined by the Supreme Court of 
 Ohio, in Drake v. Rogers, 13 Ohio St. 21, and Dunn v. Evans, was 
 overruled. It came before the Supreme Court of Indiana in Cox v. 
 Mathews, 17 Ind. 367, and received there also a thorough examina- 
 tion. The result was the same as in the last case in Ohio. The 
 doctrine was repudiated. 
 
 The court said: " Under the laws of this State it is contemplated 
 that such change of title from one living person to another is to be 
 made by deed duly executed, rather than by our statutes of descent. 
 . . . The feudal policy of tying up estates in the hands of a 
 landed aristocracy, which had much to do with the shifting of 
 descents as recognized by the English canons of descent, is contrary 
 to the spirit of our laws and the genius of our institutions. It has 
 been the policy in this State, and in this country generally, not only 
 to let estates descend to heirs equally, without reference to sex or 
 primogeniture, but also to make titles secure and safe to those who 
 may purchase from heirs upon whom the descent may be cast. Our 
 laws have denned and determined who shall inherit estates upon the 
 death of a person seised of lands. When those thus inheriting make 
 conveyances, the purchasers have a right to rely upon the title thus 
 acquired. If titles thus acquired could be defeated by the birth of 
 nearer heirs, perhaps years afterwards, great injustice might, in 
 many cases, be done, and utter confusion and uncertainty would 
 prevail in reference to titles thus acquired. We are of opinion that 
 the doctrine of shifting descents does not prevail under our laws, 
 any more than the other English rule, that kinsmen of the whole 
 blood only can inherit." 
 
 The rule is sanctioned by no American writer upon the law of 
 descents. Judge Reeve, Reeve, Des., p. 74, Int., speaking of dis- 
 tributees, says: " I am of opinion that such posthumous children 
 who were born at the time of the .distribution were entitled, and 
 none others." 
 
 It is to be regretted that we have not the benefit of an adjudica- 
 tion by the Supreme Court of Illinois upon the subject. 
 
 Their interpretation — the statute being a local one — would of 
 t nurse l,<: followed m this court. We have, however, no doubt of 
 soundness of the conclusion we have reached. 
 
 We find no error in the record, and the judgment of the Circuit 
 1 • is affirmed.
 
 CHAP. III.] TITLE BY DESCENT. 1133 
 
 JOHNSON v. HAINES. 
 4 Dallas (Pa.), 64. — 1799. 
 
 In error from the Supreme Court. 
 
 The question arose upon the following facts, which, by agreement, 
 were to be considered as if found by a special verdict. 
 
 " Ejectment for a house and lot in Germantown, of which Rebecca 
 Vanaken died seised on the 13th of February, 1797, intestate, and 
 leaving no father, mother, child, grandchild, brother, or sister, living. 
 
 " But the intestate had had brothers and sisters, who died under 
 these circumstances: 
 
 " 1st. Richard, who died without issue. 
 
 " 2d. Catharine, who married Casper Wistar, and left issue, Rich- 
 ard, Margaret, Catharine, Rebecca, Sarah, and Casper; of this 
 family Richard, Margaret and Rebecca are dead; but all of them 
 leaving issue. 
 
 " 3d. Anne, who married Lukens, and left issue John, Mary, 
 
 Daniel, Derrick and Rebecca; all of this family died in the life of 
 the intestate, but all of them left issue. 
 
 " 4th. John, who died in the lifetime of the intestate, but left issue 
 Anthony (the plaintiff in error), John Joseph, and Margaret, and 
 Margaret also died in the intestate's lifetime, leaving issue. 
 
 " 5th. Margaret, who intermarried with Reuben Haines, and left 
 issue Casper (the lessor of the plaintiff below), Catharine, Josiah, 
 and Reuben; Josiah is dead, leaving one son, who is now alive, and 
 Reuben is dead without issue. 
 
 " It was agreed that Margaret, the daughter of Catharine, who 
 was the sister of Rebecca, died in thejifetime of the intestate. 
 
 " And the questions submitted to the court are, whether the plain- 
 tiff in error is entitled to the whole of the premises? And, if he is 
 not, how the premises are to be divided ? " 
 
 M'Kean, C. J. — The intestate died, leaving the children of several 
 of her brothers and sisters, and a grandchild of one of her brothers; 
 and it is now made a question, whether her real estate shall be 
 divided among these surviving relations, or descend entirely to her 
 heir-at-law? By the sixth section of the charter granted to William 
 Penn, the laws of England " for regulating and governing of prop- 
 erty, as well for the descent and enjoyment of land as for the enjoy- 
 ment and succession of goods and chatties," were introduced and 
 established in Pennsylvania, to continue till they were altered by 
 the Legislature of the province. The common law being, therefore, 
 the original guide, and the plaintiff in error being the heir at com-
 
 1 1 34 TITLE BY DESCENT. [PART VI. 
 
 mon law, his title must prevail, unless it shall appear, that an alter- 
 ation in the rule has been made by some act of the General 
 Assembly. 
 
 Now, when the intestate died, there was but one law in existence 
 on the subject, the law of the 19th of April, 1794; and though the sixth 
 section of that law provides for the case of a person dying intestate, 
 leaving " neither widow nor lawful issue, but leaving a father, 
 brothers, and sisters," it does not provide, nor does any other of 
 the sections provide, for the case of a person dying intestate, with- 
 out lawful issue, and leaving no father or mother, brothers or sisters. 
 The descent of the real estate, in this specific case, was not, there- 
 fore, altered or regulated by any act of the General Assembly, when 
 the estate was vested in the person entitled to take, at the death of 
 the intestate. 
 
 It is probable, that if the case had been stated to the Legislature, 
 they would have directed the same distribution in the year 1794, that 
 they have since done by the act of the year 1797; and, it is urged, 
 that as there is equal reason for making such a distribution, where no 
 father survives, as where a father does survive, the intestate, the 
 court ought, upon the obvious principle and policy of the law, to 
 supply the deficiency. But, it must be remembered, that the system 
 of distributing real estates in cases of intestacy, is an encroachmert 
 on the common law; and wherever such an encroachment takes away 
 a right which would otherwise be vested in the heir-at-law, the 
 operation of the statute should not be extended further, than it is 
 carried by the very words of the Legislature. 
 
 We are upon the whole, unanimously, of opinion, that the judgment 
 below should be reversed; and that judgment should be given for 
 the plaintiff in error. 
 
 SEARS v. RUSSELL. 
 
 8 Gray (Mass.), 86. — 1857. 
 
 Bill in equity by the infant children of Frederic R. and Mary 
 Ann Sears, his deceased wife, against the trustees under the will of 
 her father and the other heirs of said testator to establish their right 
 to certain real and personal property of testator. 
 
 BiGELOW, J. — * * * We are thus brought to a consideration of 
 the nature and quality of the estate which the plaintiffs will take 
 under the conveyance to be made to them by the trustees. There 
 would have been no room for doubt or question on this point, if the
 
 CHAP. III.] TITLE BY DESCENT. I I 
 
 5 3 
 
 will had contained no provision beyond the direction to the trustees 
 to convey the estates to the testator's grandchildren, if living, or to 
 their issue, or in default of such children or issue, to the heirs-at-law 
 of the testator. The plaintiffs would then very clearly have been 
 entitled to an estate in fee simple. 
 
 If the devise had been to the children of the daughter and their 
 heirs forever, but, if they had died without issue, then to the heirs- 
 at-law of the testator, it would have created an estate-tail by impli- 
 cation. The gift over would then have been on an indefinite failure 
 of issue, and the law, implying an intent in the testator that the 
 issue were to take the estate in succession, as children and heirs of 
 the parent, would cut down the fee to an estate-tail. Nightingale v. 
 Burrell, 15 Pick. 104; Hall v. Priest, 6 Gray, 18. 
 
 But no such implication can be raised under the provisions of this 
 will The gift over is not on an indefinite failure of issue to the 
 daughter, but on such failure in the lifetime of the husband. The 
 intent of the testator is expressly declared to be, not for the benefit 
 of the issue of the children, but to exclude their father from inherit- 
 ing the estate from them. Upon his death, their estates are to 
 become absolute, and if they should die in his lifetime, leaving issue, 
 the estate would descend to such issue in fee. The description of 
 the contingency, therefore, upon which the gift over is to take effect, 
 is such that it must be construed to be an executory devise. The 
 gift to the children was of a fee; it cannot be cut down to an estate- 
 tail by implication; there can be no remainder after the gift of a 
 fee; it is the limitation of a fee on a contingency after a previous 
 estate in fee, and must take effect, if at all, as an executory devise. 
 The heirs-at-law of the testator, to whom the estates are devised upon 
 the happening of the contingency, if they do not take by descent, 
 must claim as executory devisees. 
 
 But it is urged, that the limitation being to the heirs-at-law of the 
 testator, the estate must vest in them by descent, and that they 
 cannot take as purchasers under the will. This argument is founded 
 on the well settled rule of law, that a devise to an heir, of the same 
 estate in nature and quality as that to which he would be entitled by 
 descent, is void. In such cases, the heir takes by descent and not 
 as purchaser. Ellis v. Page, 7 Cush. 161, and cases there cited. • If 
 this rule applies to the present case, then it would follow that the 
 gift over to the heirs-at-law would fail as an executory devise, so 
 that their title would not depend upon the principles of law by which 
 estates of that nature are governed. 
 
 But it is entirely clear that this devise over to the heirs of the 
 testator does not come within the recognized tests by which an heir
 
 1136 TITLE BY DESCENT. [PART VI. 
 
 is held to be in by descent, and not by purchase. It is essential to 
 a title by descent that the heir should take the same estate in 
 quantity and quality, as if no will had been made and the estate had 
 been left to descend to him; and this rule is not affected by carving 
 out of the fee a prior particular or contingent estate, or subjecting 
 it to an executory devise. All that is necessary to the operation of 
 the rule is, that when the estate vests in the heirs, they should hold 
 it by the same tenure and in like manner as if the devise had been 
 omitted. If the nature or quality of the estate is changed when it 
 comes to the heirs, of if they take it in different shares or propor- 
 tions, the descent will be broken, and they must come in as pur- 
 chasers under the will. Ellis v. Page, 7 Cush. 164; Heading v. Hoys- 
 ion, 1 Salk. 242, 2 Ld. Raym. 829, and 1 Com. R. 123; 6 Cruise Dig. 
 tit. 3S c. S, §§ 9, 10. 
 
 Applying this rule to the present case, it is clear that the heirs- 
 at-law of the testator must take as devisees, and not by descent. 
 The limitation over to them is contingent until the prescribed event 
 shall occur. The devise is to those who shall be his heirs when 
 the contingency arises, and not to those who were his heirs at the 
 time of his decease. They must take the estate under and by force 
 of the will, in such proportions as it may vest in them when the 
 event occurs, and not as heirs-at-law in the shares to which they 
 would have been entitled if the devise over to them had been omitted. 
 Such, we think, was clearly the intent of the testator. The rules of 
 construction, that the word " heirs " in a will is usually construed 
 to mean those who are such at the time of the testator's decease; 
 and that estates created by devise are to be held to be vested rather 
 than contingent; must give way to the controlling rule of interpret 
 tation that the intent of the testator is to govern, if it does not con- 
 flict with the rules of law. Cholmondelcy v. Clinton, 2 Jac. & Walk. 
 70, 80, 89; Doe v. Frost, 3 B. & Aid. 546; Richardson v. Wheatland, 
 7 Met. 169; Olney v. Hull, 21 Pick. 314. And if it be found to con- 
 flict, it does not change the rule of construction. The will must fail 
 of effect so far as to violate the rules of law, not because the intent 
 of the testator does not control its construction, but because the 
 1. ,v will not permit his intent to be accomplished. Brattle Square 
 Church v. Grant, 3 Gray, 158; Hall v. Priest, 6 Gray, 22, 23. 
 
 The intent of the testator, in making the limitation to his heirs- 
 at-law in this clause of the will, is not left in any doubt. It is 
 expressly dei lared, to be to prevent his son-in-law from inheriting any 
 portion of the testator's estate, as heir to his children. The devise 
 to tin hi irs was to take effect only upon one contingency. If the 
 Child survived the father, or died in his lifetime, leaving issue, the
 
 CHAP. III.] TITLE BY DESCENT. 1 1 37 
 
 heirs-at-law were to take nothing. The object of the testator was, 
 not to benefit his heirs, but to break the legal course of descent in 
 a certain contingency, so as to exclude his son-in-law from partici- 
 pating in his estate, beyond the specific sum bequeathed to him. 
 
 To carry out this intent, it is necessary to construe the limitation 
 to heirs, as being to those who should hold that relation when the 
 contemplated contingency should happen. If it should be held to 
 mean a devise to the heirs of the testator at the time of his decease, 
 this declared purpose would be defeated. The right or possibility 
 of taking the estate in the prescribed contingency, would then have 
 vested in part in the testator's daughter, at his decease, as one of 
 his heirs; on her death, her share or proportion of this right or pos- 
 sibility would have descended to her children; and, in case of their 
 death, without issue, in the lifetime of their father, it would go by 
 descent to him — the very result which the testator sought most 
 sedulously to prevent by this limitation to his heirs. It cannot be 
 supposed that the testator intended to make a provision, the effect 
 of which would be to admit his son-in-law to a share in that part of 
 his estate, from which he expressly declared it to be his purpose to 
 exclude him. 
 
 But this is not the whole extent to which this intent might be 
 defeated, if the term " heirs-at-law " in this devise should be con- 
 strued to be the heirs general of the testator at the time of his 
 decease. It would then be a vested interest in them; if any of his 
 children should die, leaving issue, this interest would descend to 
 their children; in case of their death, it would go to their surviving 
 parent, the son-in-law, or daughter-in-law, of the testator. To illus- 
 trate by an event which is understood to have already occurred: 
 One of the testator's sons has deceased since the probate of the will, 
 leaving an only daughter, who, as her father's representative, takes 
 his right to this contingent interest, if it was vested at the time of 
 the testator's death. If the daughter should die, this interest 
 would go to her mother, a daughter-in-law of the testator; so that 
 in the event of the death of the plaintiffs, or either of them, that 
 daughter-in-law would take, as heir of her own daughter, a portion 
 of the estates devised to these plaintiffs. The result of such an 
 interpretation of this gift over to the heirs, would therefore be, in 
 the supposed contingency, to give a portion of the testator's estate, 
 not only to his son-in-law, the father of the plaintiffs, but also to a 
 daughter-in-law, the wife of one of his sons, contrary to his dis- 
 tinctly declared intention; and the same result would follow in the 
 like contingency in regard to the estates, devised in similar terms 
 to the testator's other children. 
 
 LAW UF PROP. IN LAND — 72
 
 1 1 38 TITLE BY DESCENT. [PART VI. 
 
 This view of the intent of the testator in the gift over to his heirs- 
 at-law, is greatly strengthened by the use of the same words with a 
 similar meaning in a preceding part of the same clause in the will; 
 by which he directs the trustees, in the event of the death of his 
 daughter, without issue, to convey the estate, which had been held 
 by them in trust for her use, to his heirs-at-law. Here he clearly 
 intended that the conveyance should be made to those who should 
 be his heirs, at the time the contingency should occur, and not to 
 those who were his heirs at the time of his death. If the latter con- 
 struction were adopted, it would follow that his daughter, being one 
 of his heirs at his decease, had an equitable estate for life, and also 
 a vested right to a conveyance in fee of the same estate, upon her 
 own decease — an interpretation manifestly absurd; as it would 
 present the anomaly of the creation of a trust estate for life for the 
 separate use of the daughter, carefully guarded, so as to be beyond 
 her own control and that of her husband, accompanied with a vested 
 right to a conveyance of the whole estate in fee, subject to her abso- 
 lute disposal. The language of the will and the intent of the testa- 
 tor are coincident. The trustees were to convey in esse when the 
 contingency should arise. The conveyance was to be made to per- 
 sons then answering the description of the testator's heirs-at-law, 
 and not to those who were such at his decease, one of whom must 
 necessarily have died before the contingency could arise. This 
 interpretation of the term " heirs-at-law," as used by the testator in 
 directing a conveyance by the trustees, is too clear to admit of 
 doubt. It is reasonable to infer that the same words were used with 
 like meaning in the very next clause of the will, in disposing of the 
 same estates in the event of the occurrence of another contingency. 
 
 Without enlarging further upon this part of the case, the con- 
 siderations already suggested render it certain that the intent of the 
 testator was to devise the estates to those who should be his heirs- 
 at-law, at the time the gift over should take effect. They cannot 
 claim by descent, because the estate on the happening of the pre- 
 scribed contingency would not vest in those who were the heirs of 
 the testator at the time of his decease, and those who would be 
 entitled could not take in the same proportions, as they would have 
 ilnn--, if the devise over had been omitted. They must take, if at 
 all, under the will as purchasers by force of the executory devise. 
 
 The only remaining question is, whether the intent of the testator 
 can be carried out consistently with the rules of law; that is, whether 
 the gift over as an executory devise will certainly take effect within 
 the limits which are essential t«» its validity. The principles appli- 
 cable I" estates of this nature have been fully considered and
 
 CHAP. III.] TITLE BY DESCENT. I 1 39 
 
 explained in a recent case. Brattle Square Church v. Grant, 3 Gray, 
 142. It was there held, that a limitation by way of executory devise, 
 which may possibly not take effect within the term of a life or lives 
 in being at the death of the testator, and twenty-one years after- 
 wards, (adding, in case of gestation, about nine months,) is void for 
 remoteness. In the present case, the limitation over was not to 
 take effect until after the death of the testator's daughter, and after 
 the death of her children, including those born after the death of the 
 testator, or any of them. It was not a limitation upon a life in 
 being, with twenty-one years superadded, but upon a life in being, 
 and after its termination upon a life or lives not in being at the 
 time of the testator's death, and which might continue for fifty years 
 or more after the life of the first taker. Indeed the gift over could 
 not take effect within the prescribed period as to the share of any 
 child born after the testator's death, unless it died within twenty-one 
 years after its mother. Standing by itself, therefore, as a devise to 
 the mother, and, after her death, to her children, born or unborn at 
 the testator's death, and, on their decease, to those who should be 
 then the heirs of the testator, it was clearly too remote, because it 
 was a limitation which possibly might not take effect until after the 
 termination of a life in being at the testator's death, to wit, the 
 life of the testator's daughter, and more than twenty-one years after- 
 wards; that is, until the death of her after-born children, which 
 might not occur within the allotted period. 
 
 But it may be suggested, that as the gift over was limited on the 
 death of a child or children in the lifetime of the father, without 
 issue, and as the father was living at the time of the testator's death, 
 it is in fact a limitation on a life in being, and does not violate the 
 rule of law. It is true that, as events have transpired since the 
 death of the testator — to wit, by the death of his daugher, leaving 
 a husband and children alive — the devise to the heirs would vest, 
 if at all, before the expiration of the prescribed period. But the 
 point of time at which the will is to be construed is at the testator's 
 death. It is then that its language speaks. A devise must be then 
 legal, or it must fail. It is not sufficient that on the happening of 
 certain events the gift over may take effect, and, if originally limited 
 to those events, would have been valid; but it must appear to be 
 legal and valid in all the events which, at the time when the will 
 takes effect, may by possibility occur. A limitation by way of 
 executory devise to be valid must, ex necessitate, take effect within 
 the prescribed period. If the event upon which the estate is limited, 
 may, by possibility, not occur within that time, it is too remote. 
 Brattle Square Church v. Grant, 3 Gray, 153, and cases there cited.
 
 1 140 TITLE BY DESCENT. [PART VI. 
 
 If, in the present case, the devise had been to the daughter for 
 life, and on her death to her children in fee, but if the children or 
 either of them should die without issue, in the lifetime of any hus- 
 band of the daughter, living at the testator's death, then to the heirs 
 of the testator, it would not have been liable to the objection of 
 remoteness; because it would be limited over on an event which 
 must occur within the allowed period, to wit, a life in being at the 
 testator's death. But although, at the time of the death of the 
 testator, his daughter had a husband living, his subsequent decease 
 was neither impossible nor improbable. In the event of his death, 
 she might have contracted a second marriage and had issue by a 
 husband who was not born at the time of the death of the testator. 
 Such an event was certainly improbable, but it was not impossible, 
 and so the devise over might by possibility not have taken effect 
 during a life in being at the testator's death, and more than twenty- 
 one years thereafter. It was therefore void for remoteness. 
 
 Nor does it make any difference in the operation of the rule 
 against perpetuities upon the devise in question, that the gift over 
 might take effect, as being within the proper limits in relation to a 
 portion of the estate devised, although void as to another portion, 
 as being too remote. For instance: It might be contended that as 
 to the portions of the estate whch would go to the grandchildren of 
 the testator, born during his life, or during the lifetime of his son- 
 in-law living at his decease, the gift over was not open to objection 
 on the ground of remoteness, although it might be as to the shares 
 of other grandchildren, the issue of a second marriage of the daughter 
 of the testator, and born after his death. But the difficulty is, that 
 the shares of the grandchildren were contingent till the death of 
 their mother. The trustees were to convey to the children then 
 living. Those who had previously deceased took no vested interest 
 until the event happened. The fee remained in the trustees, who 
 were to convey it to those of her children who survived her. Under 
 this devise, therefore, it was possible that the entire estate would 
 go to children of the daughter, born after the testator's death, and 
 by a husband not then living. Such might be the result, if the 
 Children of the first marriage should die before their mother, and in 
 that event the whole estate would be limited over on a contingency 
 too remote. As the validity of the gift over must be determined on 
 the principle, that it cannot by possibility take effect beyond the 
 period allowed by law, it follows thai this devise must fail, because 
 tin- limitation to the heirs is math' to depend on an event which 
 may noi h ippen until after that period has expired. The possibility, 
 however remote, that the limitation may not take effect within the
 
 CHAP. III.] TITLE BY DESCENT. I 141 
 
 time fixed by the rule, is fatal to its validity. Lewis on Perp. 170; 
 Netvman v. Newman, 10 Sim. 51; Dodd v. Wake, 8 Sim. 615. See, 
 also, Challis v. Doe, 18 Ad. & El. N. R. 231, 247. 
 
 The entire devise over to the heirs must, therefore, fail as being 
 too remote; and as the rule applies to every executory limitation by 
 will, whether of real or personal estate (Lewis on Perp. 169), the 
 whole of the property comprehended in the gift to the heirs of the 
 testator, must vest in the plaintiffs, free from the divesting limita- 
 tion. The fee to be conveyed, and the personal property to be 
 transferred, by the trustees to the plaintiffs, being subject to a gift 
 over, which is void for remoteness, remain in them absolutely, 
 unaffected by the limitation to the heirs of the testator. Brattle 
 Square Church v. Grant, 3 Gray, 156. 
 
 We are inclined to the opinion that the gift over, being an execu- 
 tory devise, is void for another reason. By the will, the testator 
 has given to his grandchildren the power to make a will, and dispose 
 of the estates given over to his heirs, if they shall have arrived at 
 the age of thirty years, at the time when they are to receive the 
 property from the trustees; that is, on the death of their mother. 
 One of the distinguishing features of an executory devise is its 
 indestructibility by the first taker. Here is a power of disposition 
 expressly given to the children, which is inconsistent with the gift 
 to the heirs. See Holmes v. Godson, 35 Eng. Law & Eq. R. 591, 
 and cases cited. But it is unnecessary to determine this point, and 
 we forbear to express an opinion upon it. 
 
 Decree for the plaintiffs.
 
 INDEX 
 
 
 The References 
 
 Abandonment: (See Disclaimer.) 
 after statute has run, 1059. 
 while statute is running, 1060. 
 by a grantee after acceptance, 626. 
 by a devisee, 626. 
 of legal life estate, 626. 
 of easement, 816. 
 
 Abeyance : 
 
 freehold must not be in, 909. 
 reasons for rule against, 909. 
 
 Acceleration of Remainders : 
 
 when prior estate void in its limita- 
 tion, 919. 
 
 after more than two successive life 
 estates, 904. 
 
 none if remainder contingent, 905, 
 906. 
 Accession : (See Accretion; Fixtures; 
 Occupancy.) 
 
 title by, 108, 109, 1002. 
 
 personalty, 353. 
 
 compare title ratione soli, 352. 
 
 compare title by occupancy, no. 
 
 Accounting" : 
 
 by tenant in common, 97C . 
 
 repairs and improvements as offset, 
 
 976. 
 Accretion : (See Accession.) 
 title by, 108, 109, 1002. 
 by imperceptible degrees, 108, 1004, 
 
 1006. 
 alluvion, 108, 1003, 1006. 
 newly-formed islands, 108. 
 dereliction, 1004, 1006. 
 formed by natural or artificial means, 
 
 1006. 
 aerolites, 109. 
 
 Accumulations of Income : 
 
 rule as to, 925. 
 Actions : 
 
 kinds of, abolished, 67. 
 
 what distinctions must remain, 52. 
 
 local and transitory, 66. 
 
 real and personal, 58. 
 
 for temporary or permanent injury 
 
 to land, 28. 
 ejectment, 53-59- io 3- 
 replevin, 86, 109. 
 
 [11 
 
 are to the Pages, 
 
 Administrator's Sales : (See Exec- 
 utors and Administrators.) 
 nature of surplus when owner under 
 
 disability, 70. 
 effect on dower, 653. 
 
 Adverse Possession: 
 
 title by, 1007-1035. 
 
 elements of, 1009, 1030, 1013, 1016, 
 
 1019. 
 facts for jury, 1017, 1018. 
 by mortgagee in possession, 1047. 
 constructive possession, 1030. 
 mere possession, 1007. 
 tacking adverse holdings, 816, 1031. 
 possession of tenant of disseisor, 
 
 1009. 
 interruption of, 1008. 
 claim of title, 1021. 
 color of title, 1023. 
 Alienation : 
 
 restraints on, 
 
 fees, 383, 560, 561, 562. 
 life estates, 581, 5S4, 587. 
 estates for years, 749. 
 spendthrift trusts, 583, 584, 587, 
 
 595, 602, 6o4«. 
 partial. 562, 567, 568, 570. 
 married woman's separate estate, 
 
 93. 571- 
 forfeiture for, 605, 561. 
 
 Aliens : 
 
 capacitv to take lands, 71, 645, 980, 
 
 981. 
 capacitv to hold legal or equitable 
 
 title, 71, 645. 
 curtesy, 645. 
 dower, 692. 
 
 estate by marital right, 981. 
 capacity to transfer or transmit title, 
 
 980. 
 
 Allodial Lands : 
 
 in New York, 86;/., 81. 
 
 Alluvion : (See Accretion.) 
 Alternate Limitations : 
 
 alternate remainders, 878, 882. 
 alternate executory devises, 907. 
 distinguish conditional limitations, 
 934- 
 
 43]
 
 U44 
 
 INDEX. 
 
 The References t 
 
 Alternate Limitations — continued. 
 
 prevented by rule in Shelly's Case, 
 857. 
 
 Animals, etc. : 
 
 bees, 365, 368. 
 fish, 360. 
 
 game, 361, 365, 368, 370. 
 Annexation : {See Fixtures.) 
 of personalty to realty, 21S. 
 replevin for annexations, 52. 
 actual, 234, 237, 239, 242, 245, 248. 
 constructive, 220, 224, 227, 231. 
 
 Annuities : 
 
 nature of, 19. 
 
 Apportionment: {See Rents.) 
 Appurtenants : 
 
 land not app. to land, 10S2. 
 incorporeals as, 1083. 
 
 Assignment : 
 
 of easement in gross, 810. 
 
 of lease by lessor, 746. 
 
 of lease by lessee, 731, 743, 744, 748, 
 
 749- 751- 
 of license, effect, 793. 
 
 Attornment : 
 
 definition, 204. 
 
 to create privity of contract, 751. 
 now unnecessary, 75°- 
 history of law of, 751. 
 Avulsion : {See Accretion.) 
 
 Bankruptcy : 
 
 title by, 1070. 
 Bargain and Sale: {See CoNvrv- 
 
 ANCES. ) 
 
 deed of, 909 
 
 Buildings and Other Structures : 
 {See Fixtures.) 
 
 houses and barns, 101, 257. 280, 283, 
 288, 289, 307, 309, 312, 319, 285. 
 
 cider mill, 320. 
 
 fences, 51, 254, 255, 286, 836/*. 
 
 buildings burned, 437, 726, 733, 735"-. 
 765- 
 Chattel Mortgages : {See Fixtures.) 
 
 on fixtures, real or chattel, 242, 248. 
 
 on personalty about to be affixed, 
 
 203. 2<j7- 
 
 Chattels Real : 
 
 (Mates for years are, 8. 
 
 chattel interests, g 23, N. Y. R. P. L. 
 
 Civil Death : 
 
 meaning and effect, 668«. 
 
 bankrupt) y as, 1072. 
 Color of Title : {See Adverse Po 
 
 1 1 N . ) 
 
 in general, 1021, 1023. 
 two tracts 1I1-' riii. 'i, one oci ii| ied 
 i' 129, 
 
 re to the Pages. 
 
 Common : {See Profits a Prendre.) 
 Community Property : 
 
 nature of, 968;/., 969. 
 compare C. L. rules, 972. 
 Compensation : {See Eminent Do- 
 main.) 
 
 Conditional Limitations : {Compare 
 Alternate Limitations.) 
 examples, etc., 669, 671. 
 
 Conditional Sale : 
 
 chattel bought on, annexed, 290. 
 
 Conditions : 
 
 precedent, 529, 907, 917". 
 
 subsequent, 527, 529, 533. 
 
 impossible, 542, 550. 
 
 void, 542. 
 
 in restraint of alienation, 561 {See 
 
 Alienation). 
 in restraint of marriage, 546. 
 the right of re-entry for condition 
 
 broken, 527, 533. 
 mortgage, 538. 
 Conflict of Laws : 
 
 as to personalty (leaseholds), 44. 
 as to realty, 47. 
 
 Contingent Remainders : 
 
 in general, 868-904, 868«., 930. 
 
 examples, 868, 877, 882. 
 
 under N. Y. statutory def., 890-904. 
 
 creation of, 917 and «., 918, 919. 
 Continual Claim : {See Disseisin.) 
 Contract : 
 
 for a lease, 721. 
 
 oral for sale of land or interest 
 
 therein, 38. 
 enforcement of parol, in equity, 803, 
 
 804, 806. 
 
 Conveyances : {See Deeds.) 
 
 at common law, 1073. 
 
 under statute of uses, 1074, 502, 1073. 
 
 modern statutes, 916. 
 
 not by parol, 1060, 1075. 
 
 abandonment is not a conveyance, 
 
 1060. 
 words of con., ioSo. 
 livery of seisin (and feoffment), 53, 
 
 57, 1032. 
 fines and recoveries, 987, 1050, 1051. 
 patents, 1076. 
 release, 512, 1078. 
 exchange, 31. 
 bargain and sale, 909. 
 covenant to stand seised, 488. 
 grants, 1037, 1069, 1075. 
 from state, 1069. 
 primary and secondary, 1073. 
 mortgage, 1105. 
 
 Coparcenary : 
 
 estates in, 947, 949.
 
 INDEX. 
 
 I 145 
 
 The Referem es 
 
 Coparcenary — continued. 
 
 coparceners constitute one heir, 951. 
 
 Corporations : 
 
 capacity to take realty, 49, 527, 998. 
 capacity to conveyor mortgage, 1000. 
 dissolution owning real estate, 527, 
 
 860, 865 and n. 
 nature of stock, 14. 
 words of limitation in transfer to, 
 
 509. 527. 
 
 Covenants : 
 
 in general, 1094-1105. 
 implied, 152, 75S, 762. 
 for title, 
 
 seisin, 286, 1103, 1094. 
 warranty, 483, 511, 1100. 
 quiet enjoyment, 1100. 
 further assurance, 1102, 1103. 
 non-claim, 1663. 
 for renewals, 704. 
 to rebuild, 765. 
 restrictive, 387, 388. 
 not to enlarge words of limitation, 
 
 484. 
 estoppel by, 1061. 
 rent, 81, 86. 89. 
 
 running with land, 746, 766, 1063, 
 1094. 
 Coverture : (See Husband and Wife.) 
 Croppers : 
 
 usually to be distinguished from 
 
 lessees, 720. 
 but may be lessee, 408. 
 Crops : (See Vegetable Products of 
 
 soil.) 
 
 Curtesy : 
 
 in general, 23, 622-648. 
 
 nature, 622. 
 
 essentials for, 627. 
 
 in what estates, 639. 
 
 in land converted into money, 24. 
 
 how defeated, 645. 
 
 Dedication : 
 
 acceptance necessary for, 812. 
 
 Deeds : 
 
 in general, 1075-1105. 
 words of conveyance, 1080. 
 what passes by, 114. 
 description of land, 1081. 
 habendum, 509. 
 covenants, 1094. 
 delivery, 1085, 1088. 
 escrows, 1089. 
 
 Dereliction : (See Accretion.) 
 Descent : 
 
 in general, 20, 1127-1141. 
 annuities, 19. 
 crops, 209. 
 estates pur autre vie, 13. 
 
 are to the Pages. 
 
 Descent — eon tinned. 
 
 grass, 173. 
 
 land, 20. 
 
 leases, 12. 
 
 manure, 339. 
 
 money as land, 25, 70, 72. 
 
 possibilities of re-entry for condi- 
 tion broken, 533. 
 
 reversions, 460. 
 common-law rules, 460, 889, 1127. 
 to half blood, 889. 
 seisin a faeit stipitem, 57. 
 
 shifting inheritances, 1127. 
 worthier title, 948, 949, 1135. 
 Destruction of Future Estates : 
 forfeiture of precedent estate, 930. 
 merger, 931. 
 " recoveries," 932. 
 
 attempted transfer of possibility of 
 re-entry, 935. 
 
 Determinable Estates : 
 
 in fee, 521, 669, 671. 
 for life, 575. 
 for years, 731. 
 
 Devise : 
 
 in general, 1122-1126. 
 
 nature, 1122. 
 
 of reversion, 930. 
 
 of crop, 207. 
 
 of rent, 86. 
 
 of wife's leasehold, 26. 
 
 real or personal, 24. 
 
 by married woman, 990, 992. 
 
 to corporation, 49. 
 
 Disclaimer : 
 
 not a conveyance, 626. 
 
 of legal life estate, 626. 
 
 by grantee after acceptance, 626. 
 
 by heir, 626. 
 
 by devisee, 627. 
 
 Disseisin (Ouster): 
 
 rights of disseisee, 57. 
 disseisee's deed, 103 1, 1034. 
 what amounts to, 816. 
 of tenant in common, 1053. 
 
 Distress : 
 
 incident usually to reversion, 84, 755. 
 in case of rent-charge, 84, S6. 
 rent-service, 86. 
 
 Divorce : 
 
 effect on dower, 695, 696/2. 
 effect on estate by entireties, 960. 
 Dower : 
 
 in general, 23, 648-710. 
 
 in long term of years, 8, 713;*. 
 
 in wild lands, 709. 
 
 in corporate stock, 14, 15, 19. 
 
 in partnership realty, 18, 20. 
 
 inchoate, 700-703. 
 
 not derived from husband. -« 5 .
 
 1 146 
 
 INDEX. 
 
 The References 
 DOWer — continued. 
 
 testamentary gift in lieu of, 705-8. 
 release, 704, 705. 
 Easements: {See Ways, etc., and 
 
 Table of Contents, p. xv.) 
 in general, 809-846, 472. 
 are property, 1, 6, 
 appurtenant, appendant, or in gross, 
 
 473, 810. 
 continuous and discontinuous, 1, 6, 
 
 S09. 
 creation, 126, 811, S12, 813, 814. 
 attempted parol grant, 76, 77, 801, 
 
 802. 
 implied by necessity, 812, 821. 
 assignment of, 472. 
 running with land, 480. 
 destruction, S14, 816. 
 license to obstruct, 795. 
 prescription, 120. 
 
 Ejectment : 
 
 to recover term, 53. 
 for coal mine, 103. 
 possessory action, 55. 
 history, etc., 56. 
 
 Election : 
 
 in case of provision in lieu ot dower 
 707. 
 
 in equitable conversion, 72. 
 
 effect of death before, 72-75. 
 Emblements : {See Vegetable Prod- 
 ucts.) 
 
 go to adm'r of decedent, 20. 
 
 what constitute, 403. 
 
 on expiration of " term," 406, Pa. 
 rule, 406. 
 
 tenancy at will, 407. 
 
 tenant for life's tenant, 409. 
 
 entry under void parol contract, 769. 
 
 Eminent Domain : 
 
 in general, 1-7. 1056, 1069. 
 
 the mill acts, 120 and n. 
 
 effect of, on dower, 650;/., 698. 
 Entireties : 
 
 estates by, 952. 941. 
 
 effect of special words of limitation, 
 940, 959«. 
 
 effect of divorce, 960. 
 
 a nd control during coverture, 963. 
 Entry : 
 
 when may be made, 57. 
 
 Equity : 
 
 stal 1 1 1 < • of limitations in, 1047. 
 
 estates in, 505, 675, Be \, 857. 
 
 equitable waste, 4 (.2, 391. 
 
 equitable conversion, 20, 24, 71, 706. 
 
 in general, 70, 854. 
 Escheat : 
 
 feudal, - 
 
 of corp irate real proper) v, 860, 
 
 >-e to the Pages. 
 
 "Estate:" 
 
 meanings of term, 511. 
 
 Estates in Common : 
 
 in general, 944. 
 
 in line trees, r6S. 
 
 waste by tenant in common, 396, 398. 
 
 words of limitation in partition 
 
 deeds, 511. 
 arising from tenancy by entireties, 
 
 962. 
 
 Estates Upon Condition : 
 
 fees, 383, 527, 529, 935. 
 
 life-estates, 575. 
 
 estates for years, 731, 733. 
 
 Estates by the Curtesy : {See Cur- 
 tesy.) 
 
 Estates Less Than Freehold : 
 
 in general, 713-787. 
 
 real or personal property, 713. 
 
 cases to be distinguished, 713-721. 
 
 terms, estates for years, 724-764. 
 
 estates at will, 767-772. 
 
 estate from year to year, 773-786. 
 
 tenancy at sufferance, 787. 
 
 Estates in Joint Tenancy : 
 
 nature and creation, 938-943. 
 
 Estate by the Marital Right : 
 
 in general, 23, 621. 
 
 in land converted into money, 24. 
 
 in leaseholds, 26. 
 
 execution sale of, 27. 
 
 Estate pur Autre Vie : 
 
 after death of first taker, 13. 
 
 by marital right, 2S. 
 
 direct and indirect creation, 578. 
 
 general and special occupants, 579. 
 
 modern statutes, 5S0 and n. 
 
 Estates by Sufferance : 
 
 tenant holding over term, 735, 738. 
 in general, 7S7. 
 
 Estates tail : {See Fee tail.) 
 
 Estates in tail After Possibility of 
 Issue Extinct : 
 
 a kind of life interest, 621. 
 Estates at Will : 
 
 in general, 767-772. 
 
 creation, 741, 767-769. 
 
 termination, 771-772. 
 
 mortgagor as tenant at will, 203, 204. 
 
 trespass for waste by tenant at will, 
 463. 
 Estates for Years : 
 
 in general, 724-766. 
 
 essential features, 724-738. 
 
 creation, 741. 
 
 alienation, 743-752. 
 
 rights and duties of landlord and 
 tenant, 753-766. 
 independent of covenants, 753-758.
 
 INDEX. 
 
 1 147 
 
 The References 
 
 Estates for Years— continued. 
 
 implied covenants, 758-763. 
 express covenants, 764. 
 
 Estoppel 
 
 in general, 1061, 1064. 
 
 in deed, 484, 880, 106 1. 
 
 in pais, 1064, 1 123. 
 
 title by, 1061. 
 
 in case of license, 76, 798, 801, 803 
 
 to deny landlord's title, 757- 
 
 dower, 704. 
 
 Estovers : 
 
 in general, 417. 
 see also, 445, 447, 449- 
 Exchange : {See Conveyances.) 
 
 Execution: 
 
 on fructus naturales, 187. 
 
 on crops, 402. 
 
 lien, 10, 19. 
 
 sale, 30, 1072. 
 
 against fixtures, 270, 271. 
 
 Executors and Administrators : 
 
 {See Administrator's Sales.) 
 estates /w autre vie pass to, 13. 
 leaseholds, 12, 20. 
 Executory Limitations : 
 in general, 906 and n. 
 shifting (or conditional) limitations, 
 
 669, 671, 907. 
 springing limitations. 907, 909. 
 executory devises, 391, 395"-. <J \ l - 
 special rules, 919, 921. 
 
 Fealty : 
 
 as an incident to feudal estates, 84, 
 86, 87, 90. 
 
 Fees : 
 
 in general, 483-575- 
 creation, 483-5 T 9- 
 kinds, 520-560. 
 
 fee-farm, 520. 
 
 fee-simple, 521. 
 
 qualified for, 521. 
 
 on condition, 527. 
 
 on limitation, 521. 
 
 fee-conditional of common law, 
 
 55 1 - 
 fee-tail, 5?5- 
 incidents, 560-575. 
 alienability, 560-571- 
 Fees upon Condition : (See Estates 
 upon Condition: Conditions.) 
 
 Fee-farm : 
 
 a socage tenure fee, 520. 
 fee farm rents, 81, 86. 
 
 Fees Upon Limitation : 
 
 special or collateral, 521, 525. 
 
 Fee Simple : 
 
 words of limitation in deed, 513, in 
 will, 514. 
 
 are to the Pages. 
 
 Fee-stail : 
 
 in general, 485, 55?. i"77- 
 
 by implication in will, 931, ir 35- 
 
 Feudal System : 
 
 principles discussed. S2-89, 92, 320, 
 489, 520, 860, 1031. 
 
 Fines and Recoveries: (See Convey- 
 ances.) 
 Fixtures : (See Table of Contents, 
 PT. ii. ch. ii. v.) 
 definition, 218 and n. 
 annexation, 218-254. 
 severance, 254-270. 
 intention of annexor, 271-283. 
 appropriation, 283. 
 relation of annexor to chattel and to 
 
 land, 283-323. 
 questions arise between, 
 executor and heir, 305. 
 execution creditor and vendee of 
 
 annexor, 307. 
 vendor and vendee, mortgagor and 
 
 mortgagee, 307. 
 tenant for life and remainderman, 
 
 310. 
 tenants' fixtures, 312-323. 
 trade fixtures, 312. 
 agricultural fixtures, 322. 
 domestic fixtures, 322. 
 time of removal, 323-337. 
 
 Forcible Entries and Detainers : 
 
 statutes forbidding, 1009, ioi2«. 
 effect, 1009. 
 Foreclosure : (See Mortgage.) 
 strict foreclosure, 1118. 
 by action, 1122, 1044. 
 by advertisement, 210 1122. 
 
 Forfeiture : 
 
 for committing waste, 466. 
 for alienation, 561, 605, 612, 646, 
 feudal forfeitures, 865, 931. 
 by life tenant, 897. 
 Franchises : 
 
 in general, 84S, 849. 
 corporate, 15, 19. 
 
 Freeholds : 
 
 definition of, 8Sg«. 
 must not be in abeyance, 909. 
 of inheritance, 483. 
 not of inheritance, 575. 
 FruetUS Industrials : (See Vege- 
 table Products.) 
 FruetUS Naturales : (See Vegetable 
 
 Products.) 
 Future Estates : (See Reversions; 
 Remainders; Executory Limi- 
 tations; Conditional Limita- 
 tions.) 
 in general, 850-937.
 
 1 148 
 
 INDEX. 
 
 The References a 
 
 Grant : (See Conveyances.) 
 presumption of, 1037. 
 from state, 1069. 
 
 Habendum : (See Deeds.) 
 
 Hereditaments : 
 
 definition 760. 
 
 rent as a hereditament, 85. 
 
 annuities as, 19. 
 
 Highways : 
 
 public easements, S44. 
 
 waters as, 364, 140. 
 
 rights of public, S44. 
 
 rights of owner of fee, S45, 846. 
 
 manure on, 349. 
 
 obstruction of, SiS. 
 
 by prescription, 1036. 
 
 Homestead : 
 
 as a joint estate, 968 and n. 
 as a life interest, 711, 712. 
 
 Husband and Wife : (See Estates by 
 Marital Right ; Dower; Cur- 
 tesy; Married Women.) 
 
 husband's interest in wife's personal 
 property, 24, 26, 70. 
 
 estates by entirety, 952. 
 
 Ice : 
 
 as an incident to land, 136-151. 
 
 Identity : 
 
 tracing identity of chattels annexed, 
 
 240, 307. 
 loss of by annexation, 51, 240, 299, 
 307- 
 Improvements : (See Repairs.) 
 
 Income : 
 
 is personalty, 71. 
 accumulations of, 925. 
 
 Ineorporeals : 
 
 1 orporeal and incorporeal interests, 
 76. 
 
 in genera], 809-854. 
 
 Incumbrances : 
 
 covenants against, 607, 609. 
 
 Infants : 
 
 1 ipacity of for transactions in realty, 
 
 T I 986, 085». 
 
 statute of limitations, exception, 
 
 [045, 1046. 
 mortgage by, 484. 
 
 ippel against, 1064. 
 
 elc< tion by, 70. 
 
 Injunctions : 
 
 1 in pies, 'jo, 42, 62, 64, 99, 124. 
 
 Interesse Termini : 
 
 nal lire of, 722. 
 
 Islands : (Se» A< cretio 
 
 re to the Pages. 
 
 Joint Estates : 
 
 kinds, 
 
 in joint tenancy, 938. 
 
 in common, 944. 
 
 in coparcenary, 947. 
 
 by entireties, 952. 
 
 in homestead, 968. 
 
 communitv property, 968. 
 
 in partnership, 972. 
 incidents, 972-97S. 
 partition, 978. 
 
 Joint Tenancy : 
 
 in general, 685, 686, 938. 
 
 Land: 
 
 definition of, 3, 39, 170. 
 subdivisions for ownership, 97-107. 
 constituents and incidents, 108-381. 
 (see Table of Contents). 
 
 Landlord and Tenant : 
 
 their rights against each other, 753— 
 764. 
 
 Lateral Support : 
 
 easement of, 826, 829, 830, 831. 
 Lease : (See Estates for Years.) 
 
 Leaseholds : (See Estates Less than 
 Freehold.) 
 leases in fee, 713. 
 
 Legitimation : 
 
 statutes authorizing, 637, 638, 63g«. 
 
 Licenses : 
 
 nature, 788. 
 how given, 789. 
 assignability of, 793. 
 revocation, 795-S08. 
 uses of another's land, 480. 
 
 Liens : 
 
 on land, 10, 12. 
 mechanics, 234. 
 
 Life-Estates : 
 
 absolute and defeasible, 575. 
 
 for one's own life and fur autre -vV, 
 
 57S.. 
 conventional and legal, 581, 619, 621. 
 incidents of, 581-61 1. 
 termination, 611-618. 
 creation of, 619. 
 words of limitation, 620. 
 successive, 620. 
 legal, 621-711 
 estate in tail after possibility of issue 
 
 extinct, 621. 
 estate by marital right, 621. 
 estate by curtesy, 622-648. 
 dovvcr, 648-710. 
 homestead, 711. 
 Light and Air : 
 easements of, in general, 837. 
 over public streets, S44 and ;/.
 
 INDEX. 
 
 I 149 
 
 The References < 
 
 Limitations-. {See Statute of Limi- 
 tations.) 
 Livery Of Seisin : {See Conveyances.) 
 
 Lodgings : 
 
 hire of, distinguished from lease, 717. 
 
 Lunatics: {See Persons of Unsound 
 
 Mind.) 
 Machinery : {See Fixtures.) 
 
 as fixtures, 242, 271, 290, 293, 297. 
 
 Manure : 
 
 as an incident to land, 255, 338-350. 
 
 Marital Right: {See Estates by the 
 Marital Right.) 
 
 Marriage : 
 
 conditions and limitations in re- 
 straint of, 542-54.6. 
 marriage settlements, 93. 
 annulment of, 646. 
 
 Married Women : 
 
 powers of in general as to real prop- 
 erty, 9S6-993. 
 her deed, 647, 987. 
 separate estate, 93, 571, 993. 
 
 Merger : 
 
 terminating life-estates, 451, 615. 
 can life-estate merge a contingent 
 remainder, 918. 
 
 Minerals : 
 
 coal, 37, 102. 
 gold, 372, 374. 
 natural gas, 372. 
 stone, 37, m, 114. 
 
 Mines : 
 
 life tenant opening and working, 453. 
 
 Mislaid Goods : 
 
 to whom they belong if loser not 
 found, 359. 
 Mortgages: ( See Foreclosure.) 
 in general, 1105-1122. 
 as to crops, 197, 199, 201, 209, 211. 
 as estate on condition, 538. 
 as to fixtures, 261, 271, 272. 
 as to fructus naturales, 400. 
 injunctions, 176, 400. 
 nursery trees, 164. 
 receiver of rents, 23. 
 redemption, bill for, 1047. 
 
 Movables : 
 
 meaning of term, no, in. 
 Navigable Waters : {See Waters.) 
 
 Nuisance : 
 
 abatement of, 99, 382. 
 
 Occupancy : 
 
 title by. 100, 713, 717, 1002. 
 Ouster: {See Disseisin.) 
 
 re to the Pages. 
 
 Parol Evidence : 
 
 to explain or vary written agreement 
 or transfer, 31, 32, 114, 163, 258 
 
 Partition : 
 
 of joint estates, 97S, 979;/., 218. 
 by deed, 511. 
 Partnership : 
 
 estates in, 6S6, 972. 
 
 Party-walls : 
 
 easements, S34. 
 Patents. {See Conveyances.) 
 Perpetuities : 
 
 rule against, 911, 921. 
 
 examples of application, 525, 913, 
 1138. 
 
 does not apply to possibilities of re- 
 verter, 526. 
 
 other states (conflict of laws), 45. 
 
 Persons of Unsound Mind : 
 
 capacity in dealing with realty, 9~)J, 
 997 and n. 
 Possession: {See Adverse Possession.) 
 Possibilities of Reverter : 
 
 to be distinguished from contingent 
 right of re-entry for condition 
 broken, 526, 866. 
 
 Powers : 
 
 remainders in default of appointment 
 
 under, S89. 
 conferring full dominion, 923. 
 
 Prescription : 
 
 title by, in general, 1036, 1037. 
 see also 120, 840, 1057. 
 
 Profits a Prendre : 
 
 incorporeal hereditaments, 77 78, 
 102, 105, 475, 847, 811. 
 
 Property : 
 
 absolute and special, 80. 
 
 allodial and feudal, 81. 
 
 corporeal and incorporeal, 76. 
 
 definition, 1, 3-6, 514. 
 
 in general, 1-93. 
 
 legal and equitable, 93. 
 
 real, 3-6, 514. 
 
 real and personal, 8-75. 
 
 what is 3-6, 514. 
 
 Purchase : 
 
 title by, 1002 
 
 Quia Emptores : 
 
 statute of, 82, 83, 87, 88. 
 
 Real and Personal Property : 
 
 in land, 8-20, 289, 546 
 differences between, 20-69. 
 changes from one to the other, 70. 
 
 Records : 
 
 necessity for examining, 1067. 
 Redemption : 
 
 from mortgage, bill for, 1047.
 
 ii5o 
 
 INDEX. 
 
 The References 
 
 Release : (See Conveyances.) 
 Remainders : 
 
 in general, 866-916. 
 
 acceleration of, 904. 
 
 alternate, 904. 
 
 to a class, 885. 
 
 in default of appointment under a 
 
 power, 8S9. 
 after estate tail, S89. 
 preferred in construction to executory 
 
 limitation, gogn., 919. 
 successive, 905 and //. 
 under statutory definition, 890. 
 vested and contingent, 866, 868. 
 Rents: (See Landlord and Tenant. 
 
 Estates for Years.) 
 apportionment of, 412. 
 as incorporeal hereditaments, 84S. 
 remedies for, 754. 
 
 Repairs : 
 
 by tenant in common, 973. 
 
 by tenant for life, 419. 
 
 writ de domo reparanda, 100. 
 Replevin : (See Actions.) 
 
 action of, S6, 109. 
 Reservations : 
 
 how to be made, 31. 
 Restraints : (See Alienation.) 
 Reversions : 
 
 in general, S56-866. 
 equitable, 857. 
 
 possibilities analogous to, 860. 
 transfer of, 925. 
 descent of, 460. 
 Right of Entry : 
 
 when it exists, 57, 1031. 
 
 Rolling Stock of Railways : 
 
 real or personal estate, 24S. 
 
 Rule Against Perpetuities: (See 
 Perpetuities.) 
 
 Sea Weed : 
 
 ownership of, 351. 
 Seisin : (See Livery of Seisin.) 
 
 what is sufficient for dower, 658, 661- 
 66? . 
 
 what for curtesy, 628. 629. 
 Severance : (See Fixtures ; Table of 
 
 CONT] ITS FOR, pp. 254-270.) 
 
 Shelly's Case : 
 
 rule in, 487, 519, 520;/., 890, 892. 918. 
 
 Shifting Executory Estates: (See 
 ' niiH in \i. Limitations.) 
 in New Yot k-, 867«. 
 Shore : < t Watei I 
 
 Soil : 
 
 I or personal , to 
 Springing Executory Limitations : 
 
 ■ 1 • ■ el 367»., 007, 914. 
 
 are to the Pages. 
 
 State : 
 
 acquisition of title by, ioo2«. 
 patents from, 505. 
 construction of patents, 1069. 
 
 Statute of Frauds : 
 
 assignment of lease, 747. 
 
 contracts for sale of interests in land, 
 38. 
 
 crops, 31. 
 
 fruit, 160. 
 
 fixtures, 258. 
 
 ice, 149. 
 
 leases, 741. 
 
 minerals, 78. 
 
 trees, 34, 38, 152. 180, 184, 190, 191. 
 Statute of Limitations : (See Ad- 
 verse Possession.) 
 
 title by, 1040-1060. 
 
 essentials for title by, 1040. 
 
 nature of the title, 1053. 
 
 see also 59-61, 640, 841, 882. 
 
 Statute of Quia Emptores : (See Quia 
 
 Emptores.) 
 Statute Of Uses : (See Conveyances.) 
 estates and transfers under, 93, 96, 
 
 502. 
 
 Stranded Property : 
 
 ownership of, 355, 356. 
 
 Subinfeudation : (See Feudal Prin- 
 ciples.) 
 
 Subjacent Support : 
 
 in general, 832. 
 
 Subletting : (Compare ASSIGNMENT.) 
 nature of, 743-745. 
 
 Subrogation : 
 
 in mortgage cases, 1044 
 
 Summary Proceedings : 
 
 removal of tenant by, 740. 
 
 Survivorship: (See Joint Tenancy.) 
 
 Suspension of the Power of Alien- 
 ation : 
 
 meaning of phrase, 921 n. 4. 
 rule against, 921. 
 
 estates subject to condition prece- 
 dent, 921. 
 spendthrift trusts, 922. 
 Tacking: (See Statute of Limita- 
 tions.) 
 disabilities, 1008, 1049. 
 possessions, 1040-1042. 
 
 Taxes : 
 
 title by sale for, 1073. 
 Tenancy: (See Estates for Years, 
 
 Etc.) 
 Tenant: (See Landlord and Tenant.) 
 Tenements : 
 
 definition, 7'-".
 
 INDEX. 
 
 II5I 
 
 The References 
 
 Tenure: {See Feudal Principles.) 
 socage, 83, 87. 
 
 Terms : {See Estates for Years.) 
 Title : 
 
 definition, 1002. 
 
 by purchase and by descent, 1002, 
 
 by original and derivative acquisi- 
 tion, 1002, 1069. 
 by conveyance, 1073. 
 
 primary and secondary, 1073. 
 
 under statute of uses, 1073. 
 
 grants, 1075. 
 
 modern transfers, 1075. 
 from state, 1069 
 kinds of. 
 
 accretion, 1002. 
 
 administrators' sales, 1073. 
 
 adverse possession, 1007. 
 
 bankruptcy, 1070. 
 
 estoppel, 1061. 
 
 execution sale, 1073. 
 
 judicial decree, 1073. 
 
 marriage, 1070. 
 
 prescription, 1036. 
 
 statute of limitations, 1040. 
 
 tax sales, 1073. 
 
 Transfers : 
 
 in general, 918-938. 
 of contingent remainders, 918. 
 of executory devises, 925. 
 of joint interests, 938. 
 mode of, 31 
 
 Trespass : 
 
 quare clausum, 34, 66. 
 
 dc bonis, 66. 
 action on case, 27. 
 
 Trusts : 
 
 spendthrift, 583-604. 
 
 passive, 502, 1074. 
 
 for married women, 93, 95, 855, S58. 
 
 Unincorporated Societies : 
 
 can't take by devise, 48. 
 
 Use and Occupation : 
 
 actions for, 13, 757. 
 by general owner, 382. 
 by life tenant, etc., 401. 
 by way of easement, license, etc. 
 472-4S0. 
 Uses : 
 
 before the statute, 854. 
 under the statute, 854. 
 modern are trusts, 855. 
 see also, 93, 910-914. 
 
 are to the Pages. 
 
 Vegetable Products of Soil : {See Em- 
 blements ; Table of Contents, 
 for pages 151-217.) 
 
 bushes and berries, 171, 172. 
 
 crops, 187-21S. 
 
 fructus industrials , 1S7-218. 
 
 fructus naturales, 151-1S7. 
 
 fruit, 154, 160, 173. 
 
 hops, 36. 
 
 line trees, 168. 
 
 trees, 151-187. 
 
 Vested and Contingent Interests : 
 
 in general, 856, 866-904. 
 
 Vesting : 
 
 New York rule as to, in case of 
 remainders, 924. 
 Warranty : {See Covenants.) 
 Waste : 
 
 nature and kinds, 422-444. 
 
 voluntary, 422. 
 
 permissive, 422. 
 
 equitable, 442. 
 waste of houses, 445. 
 waste of woodlands. 445. 
 good husbandry, 450. 
 mines, 453. 
 remedies, 466. 
 against whom, 460. 
 waste by owner of life interest or 
 
 leasehold, 422-444. 
 waste by general owner, 391-400. 
 by tenantof estate by marital right, 27. 
 
 Waters . 
 
 artificial watercourses, 126. 
 navigable waters 10S, 137, 138. 146. 
 
 147, 361, 1005. 
 on surface, 116. 
 running waters, 116. 
 underground waters, 130, 372. 
 as minerals, 372. 
 
 Ways : 
 
 in general, 817. 
 of necessity, 817. 
 repair of, 822. 
 excessive use of, 823. 
 
 Wild Lands : 
 
 dower in, 680, 683. 
 constructive possession of, 1030. 
 
 Wreck : 
 
 on shore, ownership, 355. 
 
 Writs : 
 
 of assize, 57. 
 
 de reparation,: facienda, IOI. 
 
 of entry, 57 ,ioS. 
 
 of right, 54, 55. 57. 5S. 
 
 Whole Number of Pages 1177.
 
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