87 Washington St. 
 
 CHICAGO. 
 
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 THE LIBRARY 
 
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 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 GIFT OF 
 
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 A TREATISE 
 
 ON THB 
 
 LAW OF REAL ESTATE, 
 
 AND OF THB 
 
 MODE OF ALIENATION THEREOF; 
 
 WITH AN APPENDIX OF 
 
 rOEMS OF CONVEYANCING, AND 'NOTES: 
 
 gtuiptcBf to tjc 3lato of ti)e State of Ncto Yorb. _ 
 
 BY JOHN WILLAED, LL.D., 
 
 LATB ONE OP THE JUSTICES OP THE SUPREME COURT OP THB STATE OP NEW YORK, 
 
 AND AUTHOR OP A TREATISE ON BaOITr JURISPRUDENCE, AND A TREATISE 
 
 ON THB LAW OF EXECUTORS, ADMINISTRATORS AND OUARDIAMS. 
 
 ALBANY : 
 WILLIAM GOULD, LAW BOOKSELLER, 
 
 No. 60, STATE STREET. 
 
 18 6 9.
 
 EsTEBED according to act of Congress, in the year one thousand eight huodred and sixtj'-ane, 
 
 By WILLIAM GOULD, 
 
 in the e/erk's office of the district court of the northern district of New York. 
 
 \jdUlt> ^ 
 
 Chables Van Bknthtjysen & Sons, 
 Printers and Binders.
 
 PREFACE. 
 
 THE object of this treatise is to give a general view of the exist- 
 ing law of real property in this state, and of the mode of con- 
 veying and charging the same. 
 
 No man can become a good pleader or conveyancer until he has 
 become acquainted with the doctrine of estates. It is indispensable 
 that he should know, when called upon to advise as to the form of 
 a deed, lease or mortgage, what interest the grantor possesses, and 
 what he proposes to convey to another ; how that interest may be 
 affected by charges and incumbrances ; and how these latter may 
 be ascertained and removed. The whole law of title to things real, 
 whether derived by descent or purchase, is, therefore, an essential 
 part of the education of a lawyer ; and especially, of a conveyancer. 
 
 There are few subjects of English jurisprudence which have 
 been more fully discussed than those which relate to real estate, 
 and its mode of alienation. From the time when Littleton wrote 
 his treatise on Tenures, more than four hundred years ago, to the 
 present day, the subject has, in various forms, enlisted the best tal- 
 ents of the English juridical writers. Although most of their works 
 contaiu matter of great value to an American student, they are 
 encumbered with much that is useless to him, and which, indeed, 
 may in many instances, mislead him. 
 
 Our jurisprudence, though based upon the common law, under- 
 went many changes in adapting itself to the condition of the country.
 
 jr 
 
 PREFACE. 
 
 It -was besides modified from time to time by the usages and leg- 
 islation in colonial times. It was radically changed, in some of its 
 features, at the close of the revolution. But the greatest and most 
 thorough revision and reforms were made by our revised statutes, 
 which went into operation in 1830. That year maybe taken as the 
 era, at which our law of real property was made to assume a regu- 
 lar and consistent shape. The statutes as thus revised, together 
 with the judicial decisions and subsequent enactments, and such 
 portions of the common law as have been retained, constitute, at 
 this day, the law of New York. 
 
 Although the revision was accomplished by gentlemen of great 
 talents and extensive acquirements, and the work was executed 
 with an ability which will forever entitle its authors to our rever- 
 ence and gratitude, it was ob\aous from the very nature of all 
 human institutions, that there would still remain doubts and diffi- 
 culties which could only be solved by judicial expositions, or by 
 the legislature. Until the system, therefore, had been in operation 
 for years, and its various provisions subjected to the test of actual 
 experience, the full effect of the various changes which were made, 
 could not be known. A treatise written immediately after the re- 
 vision could only give the changes in connection with the former 
 law ; but could not with safety anticipate the views which the 
 courts might adopt, after the searching criticisms of learned counsel. 
 It was the opinion of some eminent jurists that a century would 
 elapse before the law of trusts and of powers, for example, as mod- 
 ified by the revised statutes, would be as well understood as they 
 were before the revision. Men are governed more by usage than by 
 written law; and hence it requires time to mature any system, 
 however wisely it may be devised. 
 
 Most of the changes introduced into our law of real estate have 
 been in operation over thirty years; some indeed for more than 
 twice that period, and a few others for a shorter time. The re- 
 ported decisions of our higher courts, since 1830, embrace near a 
 hundred volumes; in addition to which many volumes of opinions
 
 PREFACE. 
 
 of subordinate tribunals of great learning and respectability, have 
 also been published. Various questions in the law of real property 
 have been elaborately discussed and examined, in these volumes. 
 Many doubtful questions have become settled; and the people have 
 become accustomed to the system. It would seem that it is not 
 too early, at this time, to bring these decisions into harmonious 
 connection with our former law, and our existing statutes. 
 
 In the Appendix are collected a number of forms of such convey- 
 ances as most usually occur in practice, together with such forms 
 of acknowledgments and proofs of their execution as are essential to 
 entitle them to be recorded. Great pains have been taken to insert 
 none but such as may be relied on by the practitioner ; and sub- 
 joined to the precedents are references to adjudged cases in which 
 their accuracy has been recognized. The number of these forms 
 might have been indefinitely increased. It is impossible, and per- 
 haps not desirable to anticipate every case that may occur. An 
 attempt to do so would swell the book to an inconvenient size. 
 
 In preparing this work it has been the anxious endeavor of the 
 author to state the law as it now exists. In doing so, he has oc- 
 casionally had to show how the law formerly was, and the reasons 
 for the change. He has in general referred to enough of the ad- 
 judged cases and approved works of authority to enable the counsellor 
 to test the accuracy of his conclusions, and to pursue the sub- 
 ject for himself more at large. He has rarely pointed out defects, 
 conceiving it to be his business to state the law as he found it; and 
 to leave it for statesmen and legislators to propose the changes, if 
 any be required. Some changes have indeed been made by the 
 legislature while this work was in progress. He has devoted much 
 time and labor to the treatise, and hopes it may be of use to the 
 profession, whose kindness and indulgence to his other works are 
 
 most gratefully appreciated. 
 
 JOHN WILLARD. 
 Saratoga Springs, March, 1861.
 
 TABLE OF CONTENTS. 
 
 PAST riRST. 
 OF THE LAW OF REAL ESTATE. 
 
 CHAPTEK I. 
 
 Of tenuek; and op the persons capable op holding and con- 
 veying LANDS ^1 
 
 SECTION L 
 Of tenure, • • ^^ 
 
 SECTION IL 
 
 Or THK PERSONS CAPABLE OF HOLDING AND CONVEYING LANDS, . . * 44 
 
 CHAPTER II. 
 
 Op beal estate, its nature, quality and quantity op interest, 46 
 
 SECTION L 
 Of freeholds of rsTHERiTANOE, absolute, 49 
 
 SECTION IL 
 Of freeholds of inheritance defeasible, or conditional, ... 51 
 
 SECTION IIL ' 
 
 Of freeholds not of inheritance, ....... 55 
 
 Estates for life conventional, . . . . . . . , . 55 
 
 Estate p«r auter vie, • . . 56 
 
 Estate by the curtesy, . 57 
 
 Dower, 61 
 
 Jointure, 67
 
 « 
 
 X TABLE OF CONTENTS. 
 
 CHAPTER VII. 
 
 Of estates with respect to a several and joint ownership, 176 
 
 SECTION I. 
 Of estates of oofaroenary, • * . 177 
 
 SECTION IL 
 
 Or ESTATES IN JOIKT TENANCY, 177 
 
 Incidents of the estate, 177 
 
 SECTION III. 
 
 Or ESTATES IN COMMON, 182 
 
 1. Of real estates, , . . 184 
 
 2. Of chattel interests, 184 
 
 Incidents of the estate, ' 185 
 
 Partition, 185 
 
 Account, 187 
 
 Repairs, 188 
 
 CHAPTER VIII. 
 
 Or INCORPOREAL HEREDITAMENTS, 189 
 
 SECTION I. 
 
 Of coMMova, 190 
 
 Different kinds, 190 
 
 How extinguished, . . . 193 
 
 SECTION IL 
 
 Of watb, 193 
 
 By grant, • . 194 
 
 Prescription, 194 
 
 Reservation, 194 
 
 Of necessity, 195 
 
 How devested, 196 
 
 Private roads, or ways, 197 
 
 How extinguished, 199 
 
 SECTION III. 
 
 Of FRANCHISES, ; . 200 
 
 SECTION IV. 
 
 Of ANNTTmES AND RENTS, . 203 
 
 Different kinds of rent, 204 
 
 May be reserved in a lease or grant in fee, « • « . . 204
 
 TABLE OF CONTENTS. xi 
 
 Eviction by landlord, ^^^ 
 
 May be apportioned, • • ^'■^ 
 
 As to interest on rent, 214 
 
 914. 
 
 Use and occupation, ^^^ 
 
 Summary proceedings to regain the possession, . , . . 217 
 
 Suspension and extinguishment, 217 
 
 Of the right to hght and air, • 218 
 
 Running water, , . . -i^v^ 
 
 990 
 
 Riparian owner, ^^^ 
 
 Subterranean stream, ; 222 
 
 Dedication of streets, etc. ......•• 223 
 
 PABT SECOND. 
 OF EQUITABLE ESTATES. 
 
 CHAPTER I. 
 
 Op uses and trusts, 228 
 
 Resulting trusts, 234 
 
 Active trusts, 237 
 
 Receiver, 239 
 
 Religious societies, • • 240 
 
 Trusts in personal property, 242 
 
 Death of a sole trustee, 245 
 
 Resignation of trustee, . 246 
 
 Removal of trustee, 246 
 
 When trust ceases, 247 
 
 Limitation of actions, ...,.'.*»• 248 
 
 CHAPTER II. 
 Op powers, 248 
 
 SECTION L 
 Op powers under the statute, • • • 249 
 
 SECTION IL 
 Op powers op attorney to convey lands, 268
 
 zu 
 
 TABLE OF CONTENTS. 
 
 CHAPTER III. 
 
 Of mabbiage settlements, • 272 
 
 SECTION I 
 Of the origtk, policy and effect of marriage settlements, . . 272 
 
 SECTION It 
 
 Of ANTE-NUPTUL. agreements, and settlements .made before MARRL4.GE, 286 
 
 SECTION III. 
 
 Of POST-NUPTIAI. agreements, and settlements made after MARRIAGE, . 292 
 
 CHAPTER IV. 
 Of merger, ......*... 296 
 
 SECTION I. 
 Of the difference between merger and certain acts of law analogous 
 
 TO IT, 
 
 297 
 
 SECTION II. 
 Of the ORicni op "merger, and of the effect of intention tJPON it, . 299 
 
 SECTION III. 
 Of the extinguishment of the equitable in the legal estate, and of a 
 
 SlilPLE contract in A SPECIALTY OR JUDGMENT, FREQUENTLY DENOMI- 
 NATED MERGER, . . . 300 
 
 SECTION IV. 
 
 Or THE circumstances indispensable TO MERGER, . . • . . 306 
 •-•-• 
 
 PABT THIRD. 
 OF THE MODE OF ALIENATION OF REAL PROPERTY. 
 
 CHAPTER I. 
 
 Or TITLE TO THINGS REAL, . . . , . . . 312
 
 TABLE OF CONTENTS. xiii 
 
 CHAPTER II. 
 
 Of title by descent, 
 
 316 
 
 CHAPTER III. 
 
 Op the rules of descent, , 322 
 
 1st Canon, . 326 
 
 2d Canon, ' . ' 328 
 
 Sd Canon, 330 
 
 4th Canon, 332 
 
 5th Canon, - .• .• • • • 333 
 
 ethCanon, 33i 
 
 CHAPTER IV. 
 
 Of title by purchase, ' 343 
 
 SECTION I. 
 
 Or ESCHEAT AND FORFEITURE, 344 
 
 SECTION IL 
 
 Of title bt prescription; by adverse enjoyment, and bt oocupanoy, . 347 
 
 1. Prescription, . . . 347 
 
 2. Adverse enjoyment, 351 
 
 3. Occupancy, • . . 362 
 
 SECTION III. 
 Of title by election; and by estoppel, . . . . . . .363 
 
 1. Election, 363 
 
 2. Estoppel, 364 
 
 (1) By re<?ord, . . . . . . . . • 364 
 
 (2) By writing, wills, deeds, ... * * . . 366 
 
 (3) Estoppels in pais, . . . . . . * . 368 
 
 SECTION IV. 
 
 Of title by alienation, . 369 
 
 CHAPTER V. 
 
 Of the alienation of eeal estate by the voluntaey act op * 
 
 THE f ARTIES IJfTEa VIVOS, 372
 
 xiv TABLE OF CONTENTS. 
 
 SECTION I. 
 Of alienation by deed, 372 
 
 SECTION II. 
 Of the eequirements esseiotal to a deed, .... • . . • 376 
 
 SECTION IIL 
 Of avoiding a deed by matter ex post facto, . . . . , 399 
 
 SECTION IV. 
 Of the construction op deeds, . . , 401 
 
 SECTION V. 
 By what words different estates are created, 407 
 
 SECTION VL 
 Of the covenants in deeds, 411 
 
 CHAPTER VI. 
 
 Of the several kinds of deeds known to the law, , , 419 
 
 SECTION I, 
 
 Of feoffment, gift and grant, . . . . . . , , 420 
 
 SECTION II. 
 
 Of lease, 423 
 
 SECTION III. 
 
 Of exchange and partition, 433 
 
 1. Exchange, 433 
 
 2. Partition, 435 
 
 SECTION IV. 
 
 Of the derivative conveyances, release, confirmation, surrender, as- 
 signment AND defeasance, 436 
 
 1. Release, 436 
 
 2. Confirmation, 437 
 
 3. Surrender, 437 
 
 4. Assignment, 439 
 
 5. Defeasance, 440
 
 TABLE OF CONTENTS. XV 
 
 SECTION V. 
 
 Of the conveyances which owe their oRiam to the statute of uses, . 440 
 
 1. Covenant to stand seised, . 440 
 
 2. Bargain and sale, 441 
 
 3. Lease and release, 443 
 
 4. Deeds to lead to uses, . 444 
 
 5. Deeds of revocation of uses, 444 
 
 CHAPTER VII. 
 
 Or ALIENATION OF REAL ESTATE BY THE ORDER, OR PERMISSION OP 
 
 SOME TRIBUNAL OB PUBLIC OFFICER, .... 445 
 
 1. Religious corporations, 445. 
 
 2. Infants, ^ 446 
 
 3. Idiots, lunatics, &c., 448 
 
 4. Sale by order of the surrogate, 449 
 
 5. Married women, 451 
 
 6. On mortgage foreclosure, 454 
 
 7. Under judgment and execution by sheriff, .... 454 
 
 8. Tax sales, , . . 463 
 
 CHAPTER VIII. 
 
 Of ALIENATION OF REAL PROPERTY THROUGH THE EXERCISE OF 
 
 THE BIGHT OF EMINENT DOMAIN, 464 
 
 CHAPTER IX. 
 
 Of THE ALIENATION OF REAL ESTATE, BY DEVISE, , . . 470 
 
 SECTION I. 
 Of THE NATURE OF A DEVISE, 470 
 
 SECTION II. 
 
 Op THE PARTIES TO A DEVISE, 472 
 
 / 
 
 SECTION III. 
 Of the proper subject, op a devise, 478 
 
 SECTION IV, 
 Op the formalities necessary to a valid devise, . , . , 481
 
 XVI 
 
 TABLE OF CONTENXS. 
 
 SECTION V. 
 
 Or THE REVOCATXOH 01' DEVISES, AXD OF EBPDBLIOATION, 
 
 SECTION VI. 
 
 Of void devises "and 'the efteot theeeof, . 
 
 492 
 
 500 
 
 CHAPTEE X. 
 Of the constbuction op devises, 504 
 
 SECTION I. 
 Of the obnebal maxims in the oonstruction of wins, s . . 504 
 
 SECTION 11. 
 Of the constettotion with beference to the estate, and the PBOP- 
 
 epty devised, ajid the peeson of the devisee, . . 506 
 
 1. Of the estate, 506 
 
 2. Of the property devised, 509 
 
 3. Of the person of the devisee, .....♦■.. 511 
 
 SECTION III. 
 
 Of devises void fob mfOEETAIKTV, AND OF THE EEMEDY WHEN THB 
 WILL IS OF DOUBTFUL CONSTEUCTION, 
 
 514 
 
 SECTION IV. 
 
 Bt WHAT WOEDS PAETICULAE ESTATES AND CONDITIONS AEE OBEATED, 
 
 AND BY WHAT WOEDS LANDS AltE OHAEGED, .... 519 
 
 SECTION V. 
 
 Of EXEOUTOEY devises, and of the EESIDUAEY clause in A WILL, . 623 
 
 CHAPTER XL 
 
 Of abstracts ; examination thereof ; searching fob incum- 
 brances AND preparing THE CONVEYANCE, AND AT WHOSE 
 
 expense, 527 
 
 SECTION I. 
 
 Of tub NATITEE OF AN ABSTRACT, ..«.»•• 527 
 
 SECTION II. 
 Of seabchino fob inoumbeanoeb against the vendob, • • • . 529
 
 TABLE OF CONTENTS. xvii 
 
 SECTION III. 
 
 Of the BXAMINATION of a title derived by descent OB DEVISE, . 539 
 
 SECTION IV. 
 
 Of the examination of a title AOQUIBED UNDER A JTJDIOIAL SALE, OE 
 
 SALE UNDEE A POWEE, 539 
 
 SECTION V. 
 Of the right which a purohasee has to the original deeds, and of 
 
 covenants foe their production, 546 
 
 , SECTION VI. 
 
 Of THE FORM, ARRANGEMENT AND SUBSTANCE OF THE ABSTEAOT, . . 551 
 
 SECTION VII. 
 
 Of THE PARTY BY WHOM THE DEED OE MORTGAGE IS TO BE PREPARED, 
 
 AND AT WHOSE EXPENSE 558 
 
 Appendix of forms, 563 
 
 Will.— 2
 
 TABLE OF CASES. 
 
 Abbott V. Allen, 412, 414, 649. 
 
 " V. Massie, 516. 
 Abeel v. Radcliff, 99, 216. 
 Abel V, Radcliff, 95. 
 Acker v. Phoenix, 379. 
 Adair \. Lott, 58. 
 Adams v. Emerson, 199. 
 
 " V. Rockwell, 406. 
 
 " V. Saratoga and W. R. R. 147, 470. 
 
 " V. Winne, 496, 498. 
 Addy V. Grix, 485. 
 Alcock V. Sparhawk, 522. 
 Albany Ins. Co. v. Bay, 55, 263, 294, 392. 
 Aldeck V. Reynolds, 90. 
 Allen V. Blanchard, 179. 
 " V. Bryan, 422. 
 " V. Culver, 415, 428, 429. 
 " V. DeWitt, 265. 
 Altham's case, 403. 
 Amory v. Lord, 165, 525. 
 Arden v. Arden, 248. 
 Arnold v. Foot, 223. 
 
 " V. Patrick, 114. 
 
 " V. Stevens, 196. 
 Arnot V. M'Clure, 137. 
 
 " V. Post, 130. 
 Arthur v. Arthur, 497. 
 
 " V. Case, 221. 
 Astor V. Hoyt, 115, 125. 
 " V. Miller, 115, 125. 
 Atherton v. Robins, 500. 
 Atkins V. Boardman, 198. 
 Auburn and Cato Plank R. Co. v. Dou<Tlass 
 201, 202. ° ' 
 
 Austin V. Croome, 547. 
 Averill v. Loucks, 537. 
 Aymar v. Bill, 125. 
 
 B 
 
 Babcock v. Montgomery Mat. Ins. Co. 210. 
 Badgley v. Bruce, 74. 
 
 Bagley v. Greenleaf, 114. 
 Bainbridge v. Owen, 127. 
 Baker v. Thrasher, 109, 111. 
 
 " V. Dunning, 484. 
 Balmain v. Shore, 184. 
 Baldwin v. Calkins, 222. 
 Bancroft v. Wardwell, 99, 216. 
 Bank of Augusta v. Ijank of U. S. 200. 
 
 " of Columbia v. Patterson's Adm's. 
 304. 
 
 " of Niagara v. Johnson, 102. 
 
 " of Utica V. Finch, 118, 535. 
 Banks v. Walker, 319, 321. 
 
 " V. Phelan, 518. 
 
 " V. Am. Tract Society, 219. 
 Barheydt v. Barlieydt, 508" 
 Barry v. Merch. Ex. Co. 118, 121. 
 Barber v. Cary, 256, 264. 
 Bartless v. Harlow, 183. 
 Bartlett v. Gale, 461. 
 Barron v. Mayor of Baltimore, 465. 
 Barton v. Croxall, 498. 
 Barnes v. Crowe, 500. 
 Bayard v. Hoffman, 292. 
 Bayeux v. Bayeux, 526. 
 Bayles v. Attorney General, 516. 
 Bear v. Snyder, 63. 
 Beardslee v. Beardslee, 66. 
 Beach v. Gray, 215, 216. 
 
 " V. Driscoll, 220. 
 Beaty v. Kurtz, 226. 
 Beebe v. Griffin, 335. 
 Beddoe's Ex'rs v. Wadsworth, 413 414 
 
 417,423,437. 
 Beekman v. The People, 502. 
 
 " V. Saratoga and Schen. R. R. 174. 
 
 468. ' 
 
 Belknap v. Trimble, 222. 
 Belmont v. O'Brien, 284. 
 Bempde v. Johnstone, 472. 
 Benedict v. Gilman, 138, 141. 
 
 " V. Seymour, 60. 
 Bell V. The Mayor of N. Y. 141. 
 Bench v. Biles, 522, 523. 
 Bennett v. Jackson, 413.
 
 XX 
 
 TABLE OF CASES. 
 
 Bennett v. Smith, 66, 533. 
 
 " V. Irvin, 436. 
 Berrv v. Mut. Ins. Co. 115, 120, 122. 
 Bergen v. Bennett, 252 267. 
 Berger v. Duff", 645. 
 Bingham v. Weiderwax, 412, 413. 
 Bilhngs V. Baker, 60. 
 Bishop V. Jones, 85. 
 
 " V. Bishop, 498, 502. 
 Bigelow V. Finch. 115, 158. 
 Bissell V. TheN. Y. Central R. R. 225. 
 Blake's case, 107, 418. 
 Blanchard v. Blood, 279. 
 " V. Nestle, 377. 
 
 Bleaker v. Bingham, 294. 
 
 V. Ballou, 430. 
 Bliss V. Collins, 210. 
 Blood V. Goodrich, 268. 
 
 " V. Hmnphrey, 258, 391. 
 Bloom V. Burdick, 131, 450. 
 Bloomer v. Waldron, 254. 
 Blois V. Lady Hertford, 288. 
 Bloodgood V. The Mohawk and Hudson 
 
 R. R. 406, 468, 469. 
 Bodlne v. Edwards, 235. 
 Bogardus v. Trinity Church, 207. 
 
 V. Clark, 471. 
 Bogart V. Backhatter, 305. 
 Botler V. DePeyster, 264. 
 Boraston's case, 162. 
 Boughton V. .lewell, 547. 
 
 " V. The Bank of Orleans, 457. 
 Bowers v. Smith, 503. 
 Bowman v. Millbanke, 514. 
 Bowie's case, 93. 
 Bottsford V. Burr, 113, 234. 
 Bool V. Mix, 140, 291, 435, 446. 
 Boyer v. Park, 147. 
 Boyce v. Brown, 195. 
 Boyd V. M'Lean, 113, 234. 
 
 " V. Hoyt, 462. 
 Boynton v. Hoyt, 280. 
 Bradish v. Schenck, 90, 424. 
 Bradley v. Covill, 96. 
 Braddick v. Thompson, 107. 
 Bradbury v. Wright, 207. 
 Bradstreet v. Clarke, 356, 390, 439, 505. 
 Bradhurst v. Bradhurst, 504, 505. 
 Bradley v. Amidon, 505. 
 Braker v. Devereux, 186. 
 Brant v. Gelston, 166. 
 
 " V. Wilson, 496. 
 Brewster v. Kidgell, 205. 
 
 " V. Powers, 235, 467, 532. 
 " V. Striker, 366. 
 
 Brings V. Dorr, 439. 
 Briukerhotr V. Marvin, 118. 
 
 V. Ransom, 486, 490. 
 " V. Thalimer, 146. 
 
 " V. Wimi)le, 184. 
 
 Brockway v. Wells, 112. 
 Bront V. Becker, 199. 
 Brown v. Dean, 111, 398, 
 
 ♦' V. Huff, 543. 
 
 Brownell v. Brownell, 181, 509. 
 Brown v. Wilber, 242. 
 
 " V. Betts, 217. 
 
 " V. Brown, 376, 496. 
 
 " V. Sprague, 320. 
 
 " V. Burlingham, 333, 335. 
 Broome v. Monck, 863. 
 Brudeuell v. Boughton, 522, 523. 
 Brumsnell v. M'Plierson, 107. 
 Bruen v. Hone, 364. 
 Bryan v. Knickerbacker, 440. 
 Buchan v. Sumner, 152, 531. 
 Buell V. The Trustees of Lockport, 470. 
 Buffalo et al. R. R. Co. v, Brainard et al, 
 
 467. 
 Bull V. Church, 68. 
 Buncev. Reid, 134, 135, 137, 
 Bunter v. Coke, 478. 
 Burch V. Wilkins, 493, 494. 
 Burden v. Thayer, 175. 
 Burhans v. Burhans, 360. 
 Burt V. Sternberg, 364. 
 Butt's case, 82. 
 Bush V. Davison, 464, 540. 
 Butts V. Genung, 340. 
 Burnet v. Denniston, 132, 139. 
 Butcher v. Butcher, 267. 
 Butler V. Butler, 505. 
 
 " V. Remsen, 485, 489. 
 Byrne v. Hoesen, 433. 
 
 c 
 
 Calkins v. Long, 243. 
 Cameron v. Ervin, 139. 
 Campbell v. Macomb, 145. 
 V. Logan, 489. 
 " V. Lewis, 416. 
 Canfield v. Munger, 439. 
 Canal Com. v. The People, 207, 220. 
 Carborne v. Scarfe, 144. 
 Carhart v. The Auburn Gas Light Co. 220. 
 Carpenter v. Schermerhorn, 359, 360. 
 
 " V. Brown, 560. 561. 
 Carson v. Murray, 64. 
 Carver v. Jackson. 367, 384, 444. 
 Casev. Haight, 221. 
 Callin V. Jackson, 457. 
 Caswell V. Districh, 90, 184, 424. 
 Caulkins v. Harris, 413. 
 Chaffee v. The Baptist Miss. Soc, 485. 
 Chautauque Co. Bank, v. Risley, 366. 
 Chalker v. Chalker, 108. 
 Champion v. Brown, 115, 
 Chapman v. Brown, 513. 
 Champliu v. Baldwin, 334. 
 " V. Lay ton, 557. 
 V. Parish, 268. 
 Charles River Bridge v. Warren Bridge, 
 
 201,464. 
 Chester v. Bank of Kingston, 113. 
 Child V. Chappel, 368. 
 
 " V. Starr, 220, 221.
 
 TABLE OF CASES. 
 
 XS.I 
 
 Childs V. Clark, 431. 
 
 Chipraan v. Martin, 218. 
 
 Cholmonrleley v. Clinton, 361. 
 
 Chudleio;h's case, 164, 230. 
 
 Chrystie v. Phyfe, 502. 
 
 Church V. Bull, 69. 
 
 City of Cincinnati v. Lessees of White, 224, 
 
 227. 
 Clark V. Clark, 60. 
 
 " V. Dakiu, 153. 
 
 " V. Graham, 472. 
 
 " V. Hall, 114. 
 
 " V. Henry, 112. 
 
 " V. Jones, 431, 
 
 " V. Nixon, 389, 397, 548. 
 
 " v. Rowling, 304. 
 
 " V. Underwood, 448. 
 Capp V. Bramaghan, 357. 
 Classen v. Bailey, 380. 
 Clavering v. Clavering, 78. * 
 
 Clayton v. Lord Nugent, 516. 
 Clements v. The Village of West Troy, 225. 
 Cleves V. Willoughby, 100, 216, 216, 217, 
 
 427. 
 Clift V. White, 247. 
 Clowes V. Dickinson, 146. 
 Clute V. Robinson, 543. 
 Coates V. Cheever, 63, 73, 74, 78. 
 Codington v. Bay, 122. 
 Coe V. Irvine, 360. 
 Coffin V. Coojjer, 543. 
 Cohen v. Dupont, 200. 
 Cohoes Co. V. Goss, 137. 
 Cole V. Moffit, 184. 
 
 " V. Patterson, 211. 
 ColegVove v. Cantos, 86. 
 Coleman v. Wade, 304. 
 Coles V. Coles, 64, 116, 125, 144, 184, 537. 
 Colvin V. Baker, 456. 
 
 " V. Burnett, 350. 
 Collins V. Torry, 64, 144. 
 Commercial Bank v. Cunningham, 118. 
 Com'rs V. Cliase, 132. 
 Conkey v. Hart, 91. 
 Connelly v. Pierce, 560. 
 Conolly V. Pardon, 517. 
 Conklin v. Edgerton, 645. 
 Conway v. Starkweather, 97. 
 Cook V. Champlain Tr. Co. 84. 
 
 " V. Derchenfleld, 268. 
 
 " V. Easton, 112. 
 Coolidge V. Learned, 35. 
 Cooper V. Emery, 375. 
 V. Hill, 111. 
 
 " V. Whitney, 65, 74, 109, 308. 
 Cornell v. Lamb, 204, 218. 
 Corning v. Gould, 349, 350. 
 Corporation of N. Y. v. Cushmaa, 430. 
 Corwin v. Merrill, 450. 
 Cowes V. Hawley. 184. 
 Cowie V. Goodwin, 217. 
 Cox V. AVheeler, 1.35. 
 Crafts V. Aspinwall, 116. 
 Craig V. Craig, 254. 
 
 Craig V. Leslie, 287. 
 
 Crary v. Goodman, 118. 
 
 Cregier, matter of 58, 63. 
 
 Cresson v. Stout, 88, 317. 
 
 Crippin v. Hudson, 153. 
 
 Croswell v. Craine, 100, 215. , 
 
 Col ton V. Ross, 471. 
 
 Coster V. Lorillard, 281, 282, 508, 525. 
 
 Cotten V. Lyer, 495. 
 
 Coltrel V. Watkins, 550. 
 
 Coutant V. Servoss, 254, 263. 
 
 Covenhoven v. Shuler, 504, 605. 
 
 Cromer v. Pickney, 504, 505, 512. 
 
 Crowderv. Hopkins, 390. 
 
 Crozier v. Arer, 154. • 
 
 Crosby v. Wendell, 504. 
 
 Cruger v. Cruger, 294. 
 
 " V. Halliday, 246. 
 Culver V. Haslam, 388. 
 Cunningham v. Freeborn, 375, 378. 
 V. Knight, 124. 
 " V. Smith, 64. 
 
 Curtiss v.Leavitt, 200. 
 Cushney v. Henry, 233. 
 
 D 
 
 Dakin v. Hudson, 450. 
 
 V. Livingston, 184, 218. 
 
 " V. Williams, 107. 
 Dan V. Brown, 492. 
 Darling v. Rogers, 243, 526. 
 Dartmouth College v. Woodward, 200. 
 Davis V. Earl of Strattsmore, 152. 
 
 " V. Darrow, 367. 
 
 " V. Shield, 380, 483. 
 
 " V. Tyler, 369. 
 Day V. Betts, 242, 
 " V. Dunham, 398, 
 " V. Roth, 285. 
 Dean, ex parte, 81. 
 De Baranto v. Gott, 287. 
 De Couche v. Savitier, 248, 286. 
 De Graw v. Classon, 243. 
 De Kay v. Irvin, 526. 
 De Lancey v. Ganong, 427. 
 Delaplain v. Hitchcock, 142. 
 Demarest v. Willard, 175, 416, 422, 439, 
 481. 
 " V. Wynkoop, 139. 
 Demott V. Haaaman, 184. 
 Dempsey v. Tvlee, 389. 
 
 V. Tyler, 251, 265. 
 Dennis v. Tarfjenny, 390. 
 Dennisou v. Ely, 366. 
 Denton v. Jackson, 378. 
 De Peyster v. Ferris, 245. 
 
 V. Michael, 43, 51, 55, 103, 
 
 165, 173, 207, 208, 370, 431. 
 Derby Canal Co. v. Wilmot, 384. 
 Devisees of Van Rensselaer v. Executors 
 
 of Platner, 205. 
 DeWitt V. Bailey, 388. 
 Dezell V. Odell, 368.
 
 XXll 
 
 TABLE OF CASES. 
 
 Dezeng v. Beekraan, 384. 
 Dey V. Dunham, 112. 
 Dickinson V. Dickinson, 483, 
 " V. Gilliland, 460. 
 " V. Jackson, 126. 
 " V. Smith, 153. 
 Dickersonv. Tillinghast, 122. 
 Dimmick v. Lockwood, 413, 549. 
 Dispard v. Walbridge, 113, 368. 
 Dobson V. Pearce, 113. 
 Doe V. Archbishop of York, 400. 
 
 " V. Banks, 108. 
 
 " V. Bell, 216. 
 
 " V. Carter, 104. 
 
 " v..Fleminff, 541. 
 
 '• V. Hiscocks, 517. 
 
 " V. Howland, 182. 
 
 " V. Jesson, 360. 
 
 " V. Morgan, 523. 
 
 " V. Nichols, 245. 
 
 " V. Over, 513. 
 
 " V. Parrott, 180. 
 
 " V. Pratt, 522. 
 
 " V. Purdett, 488. 
 
 " V. Robertson, 478. 
 
 " V. Roe, 485, 490, 509. 
 
 " V. Sandham, 427. 
 
 " v. Simpson, 245. 
 
 " V. Staples, 494. 
 
 " V, Thompson 358, 405. 
 
 " v. Wilder, 196. 
 Dolf V. Basset. 73. 
 Doltish V. White, 416. 
 Dominick v. Sayre, 260. 
 Donaldson v. O'Connor, 151. 
 Doolittle V. Lewis, 252, 268. 
 Dorland v. Dorland, 253. 
 Dover v. Gregory, 522. 
 Drurv's case. 401. 
 Dumfrey v. Tyler, 251, 548. 
 Dunipor's case, 107. 
 Dyckman v. Mayor of N. Y. 470. 
 Dyett v. Pendleton, 209. 
 Dygert v. Pletts, 404. 
 
 E 
 
 East V. Wilson, 473. 
 Eaton v. Green, 440. 
 Eckford's Exts v. De Kay, 111. 
 Edwards v. Farmers' Fire Ins. Co. 127. 
 " V. Farmers' L. and T. Co., 130. 
 Egerton v. Conklin, 203. 
 Elliott v. Pele, 112. 
 Ellis V. Duncan, 220. 
 
 " V. Messerole, 113. 
 
 " V. Touseley, 151. 
 Ellison V. Miller, 479, 497. 
 Elsey V. Metcalf, 384. 
 Elwes V. Maw, 83, 84, 86, 88, 317. 
 Ehvood V. Klock, 392. 
 Emerson v. Wiley, 196. 
 Enfield Toll Bridge Co. v. The Hartford and 
 
 N. H. R. R. 202. 
 
 Ennis v. Smith, 472. 
 Ensign v. Colburn, 127. 
 Enthovens v. Hoyle, 203. 
 Erwin v. Olmstead, 188. 
 Evans v. Ellis, 113. 
 Evertson v. Evertson, 113. 
 " V. Sawyer, 95. 
 
 V. Sutton, 217. • 
 Every v. Merwin, 400. 
 Eyles V. Cary, 522. 
 
 F 
 
 Fairbanks v. Williamson, 416. 
 
 V. Wood, 247. 
 Fairfax v. Hunter, 478. 
 Falkner v. Butler, 512. 
 Farley v. Craig, 211. 
 
 Farmers' Loan and T. Co. v. Hendrickson, 
 148. 
 " and Mechanics Bank y. Haight, 
 
 383. 
 " and M. Bank of Kent Co., v. 
 Butchers and Drovers Bank, 244. 
 Faure v. Winans, 128. 
 Fay v. Brewer, 79. 
 
 Featherstonhaugh v. Bradshaw, 100, 216, 
 Ferguson v. Broom, 341. 
 
 " V. Ferguson, 136, 141, 143. 
 V. Kimball, 136, 141. 
 Ferris v. Brown, 347. 
 Field V. Shieffelin, 433. 
 Fish V. Hubbard's Adm'rs. 402. 
 Fisher V. Fields, 231, 244. 
 Fitch V. Baldwin, 415. 
 Flagg V. Jlann, 440. 
 Foote V. Colvin, 234. 
 Ford V. Stewart, 439. 
 Fort V. Burch, 121. 
 Fowler v. Botts, 83. 
 
 " V. Poling, 413. 
 Franklin v, Osgood, 270. 
 Frazerv. Western, 289. 
 V. Weston, 255. 
 Freelandv. Southworth, 87. 
 Freeman street, matter of, 224. 
 Fremont v. United States, 106, 408. 
 French v. Carhart, 403. 
 Frier v. Van Allen, 404. 
 Frost V. Beekman, 385, 399. 
 
 " V. Raymond, 411. 
 Fuller V. Hubbard, 561. 
 
 a 
 
 Gage V. Acton, 808. 
 " V. Gage, 486. 
 Gales V. Henry, 118. 
 Gardner v. Adams, 302. 
 " V. Buckbee, 364. 
 " V. Dering, 76. 
 V. Heartt, 126. 
 " V. Heyer, 475, 611.
 
 TABLE OF CASES. 
 
 xxui 
 
 Gardner v. Trustees of Newbiirgh, 220. 
 Garfield v. Hatmaker, 236, 632. 
 Garlick v. Strong, 293. 
 Garlock v. Class, 417. 
 Garret v. Scouter, 431. 
 Garson v. Green, 114. 
 Gates V. Green, 216. 
 Gayetta v. Bethune, 350. 
 Gedney v. Earl, 192. 
 Gere v. Clark, 419. * 
 Germond v. Jones, 65, 244. 
 Getman v. Getman, 236. 
 Gibbs V. Tart, 515, 
 Gibson v. Cold, 270. 
 Gififord V. Livingston, 200. 
 Gilchrist v. Cunningham, 112. 
 Gillet V. Balcolra, 90. 
 " V. Moody, 200. 
 
 " V. Stanley, 182, 277, 291, 446, 540, 
 565. 
 Gillis V. Brown, '62. 
 Globe Ins. Co. v. Lansing, 141. 
 Godfrey v. Watson, 128. 
 Goodeli V. Jackson, 44. 
 Goodrich v. Jones, 85. 
 
 " V. Pendleton. 248. 
 
 «' V. Walker, 385. 
 Gordon v. Graham. 117. 
 Gott V. Cook, 282, 28 i, 287, 525. 
 Gould V. Glass, 225. 
 Gowld V. Tancred, 128. 
 Graff V. Kipp, 529. 
 Graves v. Bo. den, 210. 
 Green v. Miller, 270. 
 
 " V. Putnam, 62, 73, 127, 188, 386. 
 " V. Skii)worth; 483. 
 Greenly v. Wilcox, 412, 413, 549. 
 Greenleaf v. Francis, 220. 
 Griffin v. Martin, 192, 193. 
 
 " V. Spencer, 115, 457, 532. 
 Griffith V. Griffith, 557. 
 Groff V. Jones, 458. 
 Grosvenor v. Allen, 115. 
 
 " V. Lynch, 146. 
 
 Grout V. Townsend, 76. 
 Grover v. Wilson, 100. 
 Guild V. Peck, 294. 
 Guion V. Knapp, 146. 
 
 H 
 
 Hackett v. Hudson, 561. 
 Hadley v. Chapin, 307. 
 Hall V. Ballentine, 95. 
 Hall V. Dunch, 495. 
 " V. Fisher, 460. 
 Hallady v. March, 192. ' 
 Hallet, matter of, 504. 
 Hallett v. Thompson, 244. 
 Hallet v. Wylie, 83, 411, 424, 427. 
 HallenbackV. Garver, 217. 
 Hallock V. Smith, 114. 
 Halsey v. Reed, 146. 
 
 Hamilton v. Wliite, 194. 
 
 V. Wilson, 412, 413. 
 Hanna v. Osborn, 184, 333. 
 Hardacre v. Ntish, 511. 
 Hardenburgh v. Lockwood, 192. 
 Harrington v. Budd, 498. 
 Harris v. Clark, 280. 
 " V. Fly, 522. 
 " V. Ingledew, 522. 
 " V. Norton, 122. 
 Harrison v. Elwin, 489. 
 Hart v. Chalker, 118. 
 " v. Ten Evck, 143. 
 " V. Vose, 350. 
 Hasbrouck v. Weaver, 291. 
 Hassel v. Hassel, 522. 
 Hatch V. White, 141. 
 Havens v. Foster, 500. 
 
 " V. Vanderburgh, 494. 
 Hawkins v. Kemp, 253. 
 Hawley v. Bradford, 64. 
 
 " V. James, 69, 71, 281, 282, 366, 
 
 525, 526. 
 " V. Ross, 245, 480. 
 Hays V. Hall, 544. 
 Haywood v. Judson, 181. 
 '< V. Miller, 424. 
 
 Heard v. Horton, 513. 
 Henderson v. Eason, 188. 
 Henry v. Bishop, 387, 490. 
 Henvell v. Whitaker, 522. 
 Herlakender's case, 84. 
 Herrick v. Mallin, 401. 
 " V. Stover, 199. 
 Heyer v. Pruyn, 145. 
 Hevward v. Mayor of N. Y. 468, 469. ^ 
 Hill V. The Board of Supervisors of Liv'n 
 
 Co., 378. 
 Hitchcock V. Carpenter, 867. 
 
 V. Harrington, 64, 116, 125, 537, 
 367. 
 Hodges V. The Tennessee M. and T. Ins. 
 
 Co., 113. 
 Hodgson V. Ambrose, 505. 
 Hoey V. Renney, 260. 
 Hoffman v. Savage, 196, 
 Holden v. Gilbert, 135. 
 Hollenbeck v. Fleming, 387, 388, 490. 
 Holliday v. Marshall, 430. 
 Holmes v. Grant, 111. 
 " V. Remsen, 471. 
 " V. Seeley, 433, 194, 195. 
 " V. Tremper, 84, 317. 
 Hone V. Fisher, 412. 
 
 " T. Van Schaick, 281, 512, 504. 
 Hooper ex parte, 119. 
 House V. House, 87, 89, 481. 
 Howe, matter of, 531. 
 Howard v. The Union Theo. Sem., 491. 
 How land V. " " 626. 
 
 Hoxie V. Hoxie, 233. 
 Hoyt V. Carter, 349. 
 Hubbard v. Elmer, 254. 
 " V. Savage, 118.
 
 X21V 
 
 TABLE OF CASES. 
 
 Hudson V. Jewett, 561. 
 Hughs V. Edward, 142. 
 
 V. Winne, 542. 
 Humbert v. Trinity Church, 248, 355, 357, 
 
 361. 
 Humphry v. Phinney, 72. 
 Hunter v. Trustees of Sandy Hill, 226. 
 Huntington v. Havens, 367, 404. 
 Hyatt V. Wood, 313. 
 
 Ingersoll v. Sargeant, 211. 
 Ingrahamv. Hutchinson, 350. 
 
 V. Baldwin, 368. 
 Irving V. De Kay, 524. 
 Ives V, Davenpoft, 254. 
 Izoa V. Gorton, 210. 
 
 Jackson 
 
 V. Aldrich, 94, 95. 
 
 ti 
 
 V. Alexander, 442. 
 
 (( 
 
 v. Allen, 101, 108,425. 
 
 (( 
 
 V. Anderson, 458. 
 
 i( 
 
 V. Andrews, 356. 
 
 iC 
 
 V, Ashton. 544. 
 
 II 
 
 V. Austin, 124. 
 
 l< 
 
 V. Babcock, 506. 
 
 II 
 
 V. Bard, 388. 
 
 II 
 
 V. Bartlett, 461, 462. 
 
 II 
 
 V. Beach, 401. 
 
 <( 
 
 V. Blodgett, 401. 
 
 11 
 
 V. Budle, 375. 
 
 II 
 
 V. Bradt, 94, 95, 96, 435. 
 
 It 
 
 V. Britton, 357. 
 
 l( 
 
 V. Brortson, 125. 
 
 (I 
 
 V. Brown, 513. 
 
 II 
 
 V. Brownell, 90. 
 
 II 
 
 V. Brownson, 77, 104, 431. 
 
 II 
 
 V. Bryan, 94. 
 
 II 
 
 V. Cairns, 392. 
 
 II 
 
 V. Caldwell, 441. 
 
 11 
 
 V. Camp, 354, 383, 405, 
 
 II 
 
 V. Cary, 442. 
 
 II 
 
 V. Chapin, 151, 
 
 II 
 
 V. Churchill, 600. 
 
 II 
 
 V. Clark, 404. 
 
 II 
 
 V. Colden, 120. 
 
 II 
 
 V. Collins, 208. •* 
 
 II 
 
 V. Corey, 382. 
 
 II 
 
 V. Corless, 104, 
 
 II 
 
 V. Corry, 377. 
 
 II 
 
 V. Croy, 357. 
 
 (1 
 
 V. Crysler, 107, 108. 
 
 (1 
 
 V. Davenport, 407. 
 
 II 
 
 V. Davis, 129, 357. 
 
 (1 
 
 V. Deifendorff, 405, 406. 
 
 II 
 
 V. Delany, 264, 441. 
 
 1. 
 
 V. De Lancey, 404, 462, 506 
 
 II 
 
 v. Demont, JBfiO. 
 
 <l 
 
 V. De Watts, 357, 433. 
 
 fl 
 
 V. De Witt, 62. 
 
 Jackson v. Dickerson, 90, 460. 
 
 " V. Dubois, 124. 
 
 " V. Dunsbagh, 403. 
 
 " V. Edwards, 255, 258, 259, 289 
 
 V. Estv, 464. 
 
 " V. Felier, 234. 
 
 " V. Fish, 423, 437, 442. 
 
 " V. Fitzsimmons, 319. . 
 
 " V. Fleet, 231.. 
 
 " V. Florence, 441. 
 
 " V. Frost, 356, 405. 
 
 " V. Gilchrist, 58, 59. 
 
 " V, Gould, 123, 394. 
 
 " V, Graham, 116, 456. 
 
 " V. Halloway. 493. 
 
 " V. Halstead, 222, 355, 405. 
 
 " V. Harden, 435. 
 
 " V. Harrison, 104. 
 
 " V. Harrow, 394. 
 
 " V. Harsen, 357. 
 
 " V. Hart, 43. 
 
 " V. Hathaway, 192, 221, 405. 
 
 " V. Hendricks, 324. 
 
 " V, Hile, 356. 
 
 " V. Hilton, 324. 
 
 " V. Hopkins, 90. 
 
 " V. Howard, 507. 
 
 " V. Howe, 439. 
 
 " V. Hudson, 403. ■ 
 
 " V. Ireland, 366. ' 
 
 " V. Ives, 405. 
 
 " V, Jackson, 345. 
 
 " V. Johnson, 58, 356, 360, 439, 
 
 " V. King, 377. 
 
 " V. Kipp, 105. 
 
 " V. Livingston, 404, 435. 
 
 " V. Louw, 405. 
 
 " V. Luquere, 435. 
 
 " V. Mancius, 58, 76. 
 
 " V. McCall, 406. 
 
 " V. McChesney, 121. 
 
 " V. McConnell, 405. 
 
 " V. McKinney, 442. 
 
 " V. McLeod, 96. 
 
 " V. Merrill, 506. , 
 
 V. Mills, 234. 
 
 " V. Moore, 184. 
 
 " V. Morse, 234, 546. 
 
 " V. Motsford, 234. 
 
 " V. Myers, 401, 407, 442. 
 
 " V. Newton. 356. 
 
 " V. O'Donaghy, 183. 
 
 V. Oltz, 360. 
 
 V. Osborn. 123, 394, 401. 
 
 " V. Page, 461. 
 
 " V. Parker, 115, 466. 
 
 " V. Parkhurst, 98, 114, 366, 404 
 
 " V. Peck, 379. 
 
 " V. Phillips, 387. 
 
 " V. Phipps, 114, 376. 
 
 " V. Pike, 441. 
 
 '• V. Post, 379. 
 
 " V. Potter, 499. 
 
 " T. Ramsay, 460.
 
 TABLE OF CASES. 
 
 XXT 
 
 Jackson v. Reynolds, 357. 
 
 " V. Rhodes, 131. 
 
 •• V. Richards, 354, 
 
 y. Robinson, 312, 343. 
 
 " V. Rogers, 94. 
 
 " V. Root, 442. 
 
 " V. Rosevelt, 404. 
 
 " V. Rowland, 368, 385, 386. 
 
 " V. Rumsey, 550. 
 
 " V. Salmon, 96. 
 
 " V. Scissaui, 357. 
 
 " • V. Schoonmaker, 358, 360, 387, 
 389. 
 
 " V. Sebring, 441. , 
 
 " V. Sellick, 58, 59, 489. 
 
 " V. Sharp, 352. 
 
 •' V. Shepard, 464. 
 
 " V. Shultz, 207. 
 
 " V. Sill, 609. 
 
 " V, Silvernail, 104, 105. 
 
 " V. Sternbergh, 234. 
 
 " V. Stevens, 180, 182, 392. 
 
 •' V. Stewart, 357. 
 
 " V. Streeter, 461. 
 
 " V. Tibbits, 402. 
 
 " V. Timmerraan, 379. 
 
 " V. Thomas, 352. 
 
 " V. Thompson. 366. 
 
 " V. Thurman, 333. 
 
 " V. Topping, 103. 
 
 " V. Turner," 136. 
 
 " V. Vanderheyden, 277. 
 
 " V. Van Dusen, 484, 485, 489. 
 
 " V. Van Valkenburgh, 121, 398. 
 
 " V. Verden, 253. 
 
 " V. Vickory, 394. 
 
 " V. Vosburgh, 357, 435. 
 
 " V. Warford, 356. 
 
 " V. Wells, 507. 
 
 " V. Wendell, 405. 
 
 " V. West, 395, 548. 
 
 " V. Wheat, 356. 
 
 " V. Whitford, 357. 
 
 "' V. Widger, 406. 
 
 " V. Wilkison, 405. 
 
 " V. Wilson, 367. 
 
 " V. Wood, 406. 
 
 " Woodruff, 354, 389. 
 James v. Johnson, 112, 118, 247. 
 
 " V. Mowrey, 113, 247, 301, 302, 803, 
 
 308, 309, 398. 
 " V. Stull, 134. 
 Jaques v. Meth. Epis. Church, 273, 282. 
 Jauncey v. Thorn, 491. 
 Jenkins v. Van Schaick, 301. 
 Jenks V. Alexander, 135. 
 Jennings, ex parte, 221, 405. 
 Jerome v. Ross, 469. 
 Johnson v. Bush, 393. 
 
 " V. Corbett, 481. 
 
 " V. Fitzhugh, 153. 
 
 " V. Fleet, 232. 
 
 " V. Mcintosh, 43. 
 
 " V. Stagg, 120. I 
 
 Jones V. Butler, 291, 
 Jones, matter of. 447. 
 
 " V. Phelps, 129. ♦• 
 
 Jubber v. Jubber, 502, 515. 
 Jumel V. Jumel, 146. 
 
 K 
 
 Kane v. Gott, 285. 
 
 " V. Sanger, 417. 
 Kay V. Irving, 505. 
 
 " V. Waghorn, 418. » 
 
 Kearney v. Post, 431. 
 Keeney v. Whitmarsh, 485. 
 Kelleran v. Brown, 440. 
 Kellogg V. Slauson, 266. 
 
 " V. Wood, 461. 
 Kelly V. The Dutch Church, 413, 414 
 Kennedy v. Gardner, 861. 
 
 " V. Greene, 559. 
 
 " V. Mills, 69. 
 
 " V.Wood, 319. 
 Kentish v. Kentish, 522. 
 Kerr v. Devisees of Moon, 472. 
 Kersted v. Avery, 531. 
 Kidd V. Dennison, 78. 
 Kidney v. Cousmaker, 523. 
 King v. Rundle, 475. 
 " V. Stow, 132. 
 " V. Strong, 518. 
 Kingsland v. Rapelye, 513. 
 
 " V. Spalding, 364. 
 
 Kinnev, v. Watts, 412, 430. 
 Kleek v. The Reformed Dutch Church, 503, 
 Klock V. Cronkhite, 135. 
 Knapp V. Alvord, 252, 267. 
 Knight v. Weatherwax, 233, 497. 
 Knowles v. McCamley, 392. 
 Kouts v. Carpenter, 414, 
 
 Lady Superior v, McNamara, 385, 
 
 Lake v. King, 90, 
 
 L'Amoreux v. Van Rensselaer, 243, 283, 
 
 Lamerson v. Marvin, 137. 
 
 Laurette v. Anderson, 429. 
 
 Langdon v. Astor's Executors, 495, 500. 
 
 Langford v. Pitt, 543. 
 
 Lansing v. Godlet, 141, 
 
 " V. matter of, 448. 
 
 " V, Montgomery, 369. 
 
 " V. Paine, 301, 309. 
 
 " V. Price, 92. 
 
 " V. Rattoon, 214. 
 
 V. Russell, 112, 382, 388. 
 
 " V. Vischer, 154. 
 
 " V. Wiswall, 194. 
 
 " V. Woodward, 118. 
 Lansingburgh, Bank of, v. Crary, 90. 
 Larker v. Larker, 69, 
 Larkin v. Mann, 187. 
 Lathrop v. Ferguson, 459,
 
 ZXYl 
 
 TABLE OF CASES. 
 
 Lawrence v. Hunt, 365. 
 
 " V. Taylor, 268. 
 
 " V. The Farmers' L. and T. Co., 
 136. 
 Lawton v. Salmon, 85. 
 Layman v. Abiel, 189, 325, 
 Leavitt v. Blatchford, 200. 
 
 " V. Pell, 290. 
 Le Breton v. Miles, 286. 
 Ledyard v. Butler, 124. 
 Leeds v. Cameron, 118. 
 Leggett V. Perkins, 229, 244, 282. 
 Leland v. Bennett, 464, 646. 
 Leonard v. Morris, 135, 143. 
 
 V. Steele, 69. 
 Le Hay DeChaumont v. Forsythe, 416. 
 Le Roy v. Piatt, 89. 
 Levick v. Sears, 369. 
 Lewis V. Darling, 523. 
 " V. Lewis, 485, 486. 
 " V. Payn, 209, 218, 400, 425. 
 Lewis street, matter of, 224. 
 Livingston v. Dean, 113. 
 
 " V. Ketchum, 191. 
 
 " V. Livingston, 234. 
 
 " V. Mclniav, 117. 
 
 " V. Potter, 91. 
 
 " V, Proseus, 861. 
 
 ^' V. Reynolds, 78, 79. 
 
 " V. Tanner, 95, 96, 98, 99. 
 
 " V. Tenbrook, 191, 403. 
 
 " V. Tbe Mayor of N. Y. 224, 466. 
 
 " V. The Peru Iron Co., 356. 
 Little V. Harvey, 154, 529. 
 London and Greenwich Railway Co., mat- 
 ter of, 558. 
 Loonie v. Hagan, 150. 
 Loomis V. Wilber, 79. 
 Lord Compton v. Oxenden, 303. 
 Lord Cromwell's case, 101. 
 Lord Stafford's case, 158. 
 Lorillard v. Coster, 526. 
 
 " V. The Town of Mbnroe, 378. 
 Loundsbury v, Purdy, 234. 
 Lovet V. The Steam Saw Mill Ass. 393. 
 Lowns V. Remsen, 534. 
 Luce V. Carley, 221, 405. 
 Lupton v. Lupton, 521, 622, 526. 
 Lyle V. Discomb, 118. 
 Lynch v. Mut. Ins. Co. 115. 
 Lynch v. Livingston, 399, 437. 
 Lyon V. Smith, 489. 
 
 M 
 
 Mackay v. Bloodgood, 383. 
 Mahan v. Brown, 218, 219. 
 Manhattan Co. v. Evertson, 154, 530. 
 Maun V. Mann, 234. 
 
 " V. Pearson, 405. 
 Mancey v. Harris, 364. 
 Marks V. Pell, 112. 
 Markland y. Crump, 416, 
 
 Marsellis v. Thalhimer, 59. 
 Marshall v. Peters, 222. 
 Martin v. Gage, 341. 
 
 v. Waddell, 43. 
 Marvin v. Vedder, 533. 
 Mary Partington's case, 102. ■ 
 Mason v. Jones. 505. 
 
 " v. Robinson, 514. 
 Matter of Stevenson, 245. 
 
 " of The Mechanic's Bank, 247. 
 
 " of Van Schoonhoven, 245. 
 " of Van Wyck, 245, 246. 
 Maybee v. Avery, 364. 
 Mayor v. Corliss, 427. 
 Mayor of Troy v. The Mutual Bank, 464. 
 McCartee v. Teller, 66, 288. 
 McCarthy v. Hudson, 209. 
 McCarthy v. Marsh, 319. 
 McConnel v. The Trustees of Lexington. 
 
 226. 
 McCormic v. Sullivan, 471. ' 
 McCrese, lessee, v. Somerville, 319. 
 McDermot v. Palmer, 150. 
 McGregor v. Comstock, 326, 333. 
 McKercher v. Hawley 90. 
 McKinstry v. Mervin, 144. ' 
 McLean v. McDonald, 506. 
 
 " V. Swanton, 319. 
 McMahon v. Burchell, 188. 
 McRae v. McRae, 338. 
 McWhorter v. McMahon, 268, 276. 
 Mead v. Gregg, 115, 236. 
 Meakings v. Cromwell, 261. 
 Melvin v. Whiting, 350. 
 Merest v. James, 513. 
 Merriam v. Harsen, 391. 
 Merrill v. Emery, 109. 
 Merritt v. Brinkerhoff, 222. 
 
 " V. Classon, 380. 
 Merry v. Hallet 456. 
 Mersereau v. Norton, 185. 
 
 " V. Pearsall, 865. 
 Meserole v. Mayor of Brooklyn, 466. 
 Meth. Epis. Church v. Jaques, 291. 
 Mickles v. The Rochester City Bank, 149. 
 Middlebrook v. Corwin, 83, 85. 
 Miles v. Bovden, 500. 
 Miller v. Hull, 136. 
 
 " v. Parsons, 417. 
 
 " v. Plumb, 83. 
 
 " V. Travis, 516. 
 Mills V. Dennis. 141. 
 
 " V. Hall, 347. 
 Millspaugh v. McBride, 304. 
 Minturn v. Seymour, 879. 
 Mitchell V. Blair, 474, 498. 
 " matter of, 492. 
 V. Walker, 350. 
 " V. Warner. 414. 
 Mitler v. Mainwaring, 400. 
 Moffat V. Smith, 422. 
 Mohawk Bridge Co. v. The Utica and S. 
 
 R. R. Co. 201, 202. 
 Mohun V. Mohun, 615.
 
 TABLE OF CASES. 
 
 MoUan v. Griffiths, 481. 
 Morrell v. Smith, 118. 
 Moodie v. Reid, 488. 
 Mooers v. Waite, 85. 
 
 V.White, 341, 342, 343, 499. 
 Moore v. Cahle, 128. 
 " V. Jackson, 360. 
 " V. Rawson, 1'.'6. 
 Morgan, matter of, 448. 
 
 " V. Plumb, 142. 
 Morris v. Keves, 397, 549, 550. 
 V. Miller, 541. 
 V. Mowatt, 117, 125, 339. 
 " V. Wadsworth, 549. 
 " V. Whitcher, 306. 
 Moseley v. Praaiiall, 220. 
 Moss V. Rossie Lead M. Co. 46. 
 Mott V. Palmer, 47, 84. 
 Mowatt V. Carrow, 512. 
 Mowry v. Bishop, 147. 
 Mover V. Hinman, 115. 
 Muir V. Leitch, 153, 529, 532. 
 
 " V. The Trustees of Orphan As. 471. 
 Mumford v. Brower, 184, 217. 
 " V. Brown, 188, 427. 
 Munroe v. Alair, 403. 
 
 " V. Douglass, 472. 
 Munson v. Hungerford, 226, 348, 349. 
 Murray v. Ballou, 244. 
 
 " V. Livingston, 113. 
 Myers v. Eddy, 505, 511, 523. 
 
 N 
 
 Neilson v. Neilson, 458, 510. 
 Nellis V. Lathrop, 218. 
 Nelson v. McEffert, 491, 492, 498. 
 Newcomb v. Agan, 185. 
 Newburgh Turnpike v. Miller, 201. 
 Newkirk v. Newkirk, 506. 
 Newman v. .Johnson, 522. 
 New York Fireman's Ins. Co. v. Ely, 101. 
 " Life and Trust Co. v. Milnor, 
 
 147, 194, 195. 
 " " " " V. Smith, 
 
 122, 538. 
 Nichols V. Bailev, 175. 
 " V. Chapman, 532. 
 " V. Williams. 96. 
 Nicholson v. llallet, 301. 
 
 V. Halsey, 247, 400. 
 NicoU V. The N. Y'. and E. R. R. Co. 46, 
 102, 105, 106. 205, 469, 520. 
 " V. Walworth, 245. 
 Nipper V. Groesbeck, 486. 
 Nixon V. Hvserott, 254, 270, 271, 423. 
 Norman v. Wells, 416, 417, 431. 
 Norris T. Beyoa, 168. 
 North River Bank v. Ayman, 244. 
 Northrop v. Wright, 357. 
 Nostrand v. Dunham, 222. 
 Nowlen v. Colt, 185. 
 Noyes v. Blaknian, 243, 284, 
 
 
 
 Odell V. Buck, 377. 
 Ogden V. Smith, 265 262. 
 Ogilvie V. Hull, 210. 
 Olmstead v. Elder, 131. 
 Osgood V. Dewey, 99. 
 
 V. Franklin, 252, 253, 440. 
 Osterhout v. Shoemaker. 367. 
 Oswald v. Gilfert, 430. 
 Osweoo V. The Oswego Land Appraisers, 
 225. 
 
 Falls Bridge Co. v. Fish, 202. 
 Overbagh v. Patrie, 165. 
 
 Palmer v. Guernsey, 112. 
 Parker v. Bogardus, 479. 
 v. Foote, 219. 349. 
 Parks V. Parks, 244, 505, 626. 
 Parmelee v. Oswego and S. R. R. Co. 105. 
 Parsons v. Miller, 403. 
 
 " V. Parsons 517. 
 Patridge v. Havens, 293. 
 Payn v. Beal. 175, 'Jll, 456. 
 Peabody v. Fenton, 113, 262. 
 Peck v. Halsey, 502, 515. 
 
 " V. Young, 321. 
 Pendleton v. Fay, 113, 262. 
 Penny v. Cortwithe, 400. 
 People V. Arnold, 528. 
 
 " V. Barnes, 450. 
 
 " V. Bristol and Rens. Turnpike Co. 
 368. 
 
 " V. Canal Appraisers, 220. 
 V. Conklin, 321, 345. 
 
 " V. Cunningham, 347. 
 ■ " V. Cutting, 346. 
 
 " V. Dennison, 346. . 
 V. Gilbert, 247. 
 V. Haskins, 211, 456. 
 
 " V. Hillsdale Chatham T. R. 101. 
 
 " V. Irvin, 319. 
 
 " V. Kingston &c. Turnpike, Co. 101. 
 
 " V. Luther,460. 
 
 " V. Manhattan Co. 101, 102. 
 
 " V. Manning, 109. 
 
 " V. Mauran, 149, 469. 
 
 " V. Norton, 246. 
 
 " V. Rickert, 426. 
 
 " V. Rathbun, 460. 
 
 " V. Sevmour, 405. 
 
 V. Utlca Ins. Co. 46, 101, 200. 
 
 " V. Van Rensselaer, 346, 351, 528. 
 V. Wendell, 405. 
 Pepper v. Haight, 371. 
 Peru Iron Co. ex parte, 460. 
 Peterson v. Clarke, 111, 112. 
 Petit, matter of, 449. 
 Phillips V. Covert, 95. 
 Pierce v. Alsop, 531. 
 
 " V. Nichols, 543.
 
 XXVIU 
 
 TABLE OF CASES. 
 
 Pierrepont v. Barnard, 368. 
 Piggot V. Mason, 415, 430. 
 
 V. Waller, 500. 
 Pigot's case, 399, 400. 
 Pitman v. Stevens, 511. 
 Pinero v. Judson, 215. 
 Pitcher v. Livingston, 413. 
 Piatt V. Johnson, 221. 
 Pollv V. Saratoga and W. R. R. 147. 
 Pond V. Bergh,'61, 329, 407, 479, 480, 497, 
 
 505, 509. 
 Poole's case, 86. 
 Poor V. Horton, 422. 
 Porter v. Hill, 183. 
 Post V. Hover, 508. 
 
 " V. Kearney, 430. 
 
 " V. Pearsall, 349. 
 
 " V. Post, 94, 95, 96, 158. 
 Potter V. Chapin, 226. 
 Powell V. Tuttle, 132. 
 Prescott V. Hull, 439. 
 Preston v. Christmas, 418. 
 Price v. Page, 616. 
 Priest V. Cummings, 64. 
 Prouty V. Prouty. 96. 
 Pugsley V. Aikin, 95. 
 Putnam v. Ritchie, 183. 
 » V. Wise, 184, 185. 
 
 Q 
 
 Quackenboss, ex parte, 447. 
 Quincy, ex parte, 86. 
 
 R 
 
 Radcliff's case, 324. 
 
 Rathbone v. Dyckman, 168, 504, 505, 507. 
 Rathbun v. Rathbun, 236, 385. 
 Rawson v. Lampraan, 232. 
 Raymond v. White, 84. 
 Raynor v. Wilson, 396, 400. 
 Read v. Snell, 505. 
 Reade v. Livingston, 236, 292. 
 Reed v. Marble, 144. 
 Reid V. Fitch, 234. 
 " V. Pratt, 368. 
 Rees V. Overbaugh, 400. 
 Renisen v. Brinkerhoof, 482; 490. 
 Ronwick v. Renvvick, 341. 
 Reynolds v. Reynolds, 63, 70, 522, 523. 
 V. Shuler, 317. 
 
 " V. Streeter, 83. 
 Rhodes v. Canfield, 130. 
 Rich v. Baker, 462. 
 Richardson v. Evans, 108. 
 
 " V. Spragg, 505. 
 
 Rickert v. Snyder, 416. 
 Rider v. Smith, 190. 
 Ridgley v. Johnson, 182. 
 Rieben v. Hicks, 487. 
 Rigden v. Vallier, 179. 
 Right V. Smith, 237. 
 
 Right V. Thomas, 253. 
 Risley v. Baltinglass, 498. 
 Ritchie v. Putnam, 321. 
 Rives v. Watson, 211. 
 Roach V. Cosene, 217. 
 Roberts v. Jackson, 51, 301. 
 
 V. Walker, 523. 
 Robinson v. Cropsey, 111. 
 
 " V. Gumming, 128. 
 
 Rockwell v. Adams, 406. 
 Roe v. Harrison, 107, 108. 
 
 " V. Read, 510. 
 Rogers v. Bradshaw, 468. 
 
 " V. Dill, 447, 448. 
 
 " V. Eagle Fire Ins. Co. 442. 
 
 " V. Murray. 236. 
 
 " V. Ross, 518. 
 Rollin V. Pickett, 404. 
 Rose V. Rose, 496. 
 Roseboom v. Maker, 265, 266. 
 
 " V. Van Vechten, 57, 58, 365. 
 Rosse's case, 306, 307. 
 Rowan v. Lytle. 96. 
 Ruckman v. A.ston, 141. 
 Ruddon v. McDonald, 489. 
 Ruggles V, Lawson, 385. 
 Runyan v. Messereau, 113, 115, 125, 537. 
 
 V. Stewart, 62, 434. 
 Russell V. Allen, 533, 
 
 " V, Austin, 247. 
 Rutgers v. Hunter, 415, 430. 
 Rutherford v. Rutherford, 490. 
 Ryers v. Wheeler, 435, 510, 511. 
 Rymer v. Clarkson, 483, 485. 
 
 s 
 
 Sackrider v. Beers, 221. 
 Saffery v. Alderson, 82. 
 Safford v. Safford, 63, 73. 
 Sa^e v. Cartwrlght, 55. 
 Salisbury v. Marshall, 217. 
 Sands v. Gelston, 361. 
 Sanford v. Handy, 244, 271. 
 
 " V. Jackson, 69. 
 
 " V. McLean, 64, 392. 
 Salt V. Chattaway, 523. 
 Sayre v. Wisner, 74, 
 Schalcross v. Finden, 522. 
 Schenck v. McKie, 134. 
 Schermerhorn v. Barhydt, 340. 
 
 V. Miller, 58, 456. 
 Schieffelin v. Carpenter, 429. 
 Schryver v. Teller, 146. 
 Scliutt V. Large, 396, 400. 
 Scott V, Howard, 529, 530. 
 
 " V. Sanford, 44. 
 Seaman v. Vawdrey, 50. 
 Sedgwick v. Hallenbeck, 117, 151 415. 
 Selden v. Hitchcock, 185, 
 
 " V. Vermilyea, 251, 259, 545. 
 Seguine v. Seguine, 485, 
 Seymour v. Delancy, 543.
 
 TABLE OF CASES. 
 
 XXIX 
 
 Sevmour v. The Canandaigua and N. R. 
 ^ R. 148. 
 
 V. Van Wyck, 486, 491. 
 Sharp V. Brandow, 354. 
 Shaw V. Crawford, 226, 
 " V. Johnson, 131. 
 " V. Hearsey, 180. 
 " V. White, 73. 
 Shelley's case, 166. 
 Sbepavd v. Merrill, 218. 
 '' V. Philbrick, 90. 
 " V. Shepard, 118, 292. 
 Shepherd v. McEvers, 244. 
 Sherman v. Garfield, 140. 
 Sherwood v. Reade, 131. 
 
 " V. Vandenburgh, 357. 
 Shewen v. Vanderhorst, 341. 
 Shirras V. Craig, 118. 
 Siglar V. Van Riper, 73, cat. 
 Simpson v. Hart, 364. 
 Sims V. Humphrey, 217. 
 Sinclair v. Jackson, 110,^70. 
 Skeel V. Spraker, 147, 304. 
 Skidmore v. Romaine, 340, .i41. 
 Slee V. Manhattan Co. 112, 137. 
 Small V. Mott, 371. 
 Smiles v. Hastings, 196. 
 Smith V. Adams, 222. 
 " V. Benson, 89. 
 " V. Burtis, 354. 
 " V. Kerr, 419. 
 «' V. Marrable, 216, 427. 
 " V. McGowan, 400, 461. 
 " V Sanser, 546. 
 .< v'. Smith, 181, 185, 186, 511, 518. 
 
 " V. Stewart, 99. 
 " V Wait, 3G6, 493. 
 «' V. Wyckoff, 363. -. 
 Snyder V. Sponable, 269. 
 '• V. Stafford, 146. 
 " V Warren, 460. 
 Souverbie v. Arden, 385. 
 Southworth v. Van Pelt, 126, 1^7, 
 Southy V. Hutt, 543. 
 Souzer V. De Meyer, 248 
 Spaldins v. Hallenbeck, 103, 441, 442. 
 Sparrow v. Hardcastle, 495. 
 " V. Kingsman, 367. 
 Spencer v. Harford, 142. 
 
 " V. Noyes, 416. 
 Spencer's case, 416. 
 
 Spraker v. Cook, 217. „, ni q aoq 
 
 Springstein v. Sehermerhorn, 91, 218, 43» 
 Squire v. Handy, 236. 
 Staats V. Ten Eyck, 413. 
 Stafford v. Van Rensselaer, 130. 
 Stalker v. McDonald, 122. 
 Stanard v. Eldridge, 415. 
 St Andrews v. Tompkms, 118. 
 Stanton v. Cline, 134. 
 Starr v. Ellis, 303. 
 State V. Trask, 226. 
 State of Connecticut v. Jackson, 14/. 
 Stead's Ex's v. Course, 464. 
 
 Stedfast v. NichoU, 171. 
 Steniker v. Dickinson, 247. 
 Stevens, ex parte, 461. 
 Stewart v. Doughty, 77, 90, 94. 
 " V. Hutchins, 110. 
 " V. Nichols, 613. 
 Stewart's Ex'rs v. Lisponard, 377. 
 Stiles V. Hooker, 349. 
 St John V. Bumpstead, 134. 
 " V. Northup, 335. 
 " V. Stensdring, 185. 
 Storrs V. Baker, 368. 
 Stoughton V. Pasco, 118. 
 Stow V. Tiffl, 62, 124, 151. 
 Strong V. Skinner, 292 
 
 '< V. Trustees of Mitchell, IIZ. 
 1 " V. Wilkins, 255. 
 Stuart V. Kissam, 294. 
 ' Stuyvesant v. Davis, 105. 
 
 ^. V. Hall, 147, 395, 535. 
 
 V. The Mayor of N.Y. 223 
 Supervisors of Niagara v. The People, 200. 
 Surman v. Surman, 515. 
 Suydam v. Jones, 415^,^418. 
 Swaim v. Paine, 74, 77. 
 Sweet v. Van Wyck, 113. 
 " V. Green, 461. 
 
 T 
 
 Talbot V. Chamberlin, 115, 456, 462, 532. 
 Tallman v. White, 463. 
 Talmadge v. Pell, 200. 
 Taylor v. Bullen, 106. 
 " V. Gould, 525. 
 " V. Horde, 53. 
 " V. Morris, 255, 262. 
 " V. Porter, 197, 466. 
 " V. Thompson, 154. 
 " V. Thompson's lessees, 630. 
 " V. Wendell, 481. 
 '< V. Whitehead, 196. 
 Teal v. Woodworth, 277. 
 Thatcher v. Powell, 131. 
 Theological Sem. of Auburn v. Child, 475. 
 Thirty-ninth street, matter of, 2-4. 
 " second " " ^*''** 
 
 Thomas v. Phelps, 511. 
 
 » v. Stevens, 517. , tt t> 
 
 Thompson v. The New Haven and U. K. 
 
 '^- 202. 
 Thornton v. Payn, 424. 
 Thurman v. Cameron, 395. 
 Tice V. Anin, 135, 145. 
 Timmins v. Rowlinson, 94. 
 Tinney v. Tinney, 67, 
 Titus V. Lewis, 459. 
 
 " V. Neilson, 64. 
 Toll V, Hiller, 147. 
 Tone v. Brace, 412, 430. 
 Tonnelle v, HaU, 484. 
 Tompkins v. Tompkins, 522. 
 Tousey v. Tousey, 98. 
 Town V. Needham, 187, 367, doo.
 
 TABLE OF CASES. 
 
 Townsend v. Corning, 271. 
 
 V. Hubbard, 271, 876, 383. 
 Trott V. Vernon, 522. 
 Troup V. "Wood, 533. 
 Truax v. Thorn, 361, 371. 
 Truscott V. King, 117, 118, 119, 535. 
 Trustees of Watertown v. Cowen, 224. 
 Tucker v. Tucker, 250. 
 Tuffts V. Tuttls, 154. 
 Tufts' Adm. V. Tufts, 529. 
 Tunison v. Tunison, 487. 
 Tuttle V. Hill, 361, 
 
 " V. Jackson, 371. 
 Twenty-ninth street, matter of, 224. 
 Twisden v. Lock, 410. 
 
 u 
 
 United States v. Arredondo, 107. 
 " V. Crosby, 472. 
 
 " T. Devereux, 46. 
 
 " V. Fisher, 155. 
 
 " V. Hoe, 118. 
 
 •' V. Reading. 106. 
 
 Vail T. Vail, 287, 338, 364. 
 Vallance v. Bausch, 60. 
 Van Benschoten v. Lawson, 147. 
 Van Bergen v. Van Bergen, 221. 
 Van Bracklin v. Fonda, 216. 
 Van Buren v. Olmstead, 112, 127. 
 Van Cortland v. Tozer, 389. 
 
 " V. Kip, 499. 
 
 Van Dayne v. Thayre, 164, 144. 
 Vauderbeyden v. Crandall, 54, 167, 172, 
 325, 336. 
 " V. Mallory, 294. 
 
 Vandarkan v. Vandarkan, 411. 
 Vanderkemp v. Skelton, 122, 143, 145. 
 Vanderpool v. Vanvalkenburgh, 471. 
 Van Derzee v. Van Dei'zee, 508. 
 Vanhorne v. Dorrance, 106. 
 Vankleeck v. Dutch Church, 477. 
 Van Orden v. Van Orden. 69. 
 Van Rensselaer v. Ball, 204, 207, 213, 431. 
 . " V. Chadwick, 211, 212. 
 
 " V. Gallup, 431. 
 
 " T. Hays, 43, 54, 204, 205, 
 
 207, 208,213,370,416, 
 426, 431. 
 " V. Jewett, 208, 211, 213, 
 
 214. 
 " V.Jones, 203,208, 211, 212, 
 
 214. 
 " V. Penniman, 91, 429. 
 
 " V. Boucher, 47, 48, 54, 167, 
 
 " V. Radcliff, 190, 348. 
 
 " V. Smith, 208, 
 
 V. Snyder, 208, 213. 
 Van Schoonhoven, matter of, 480. 
 Van Vechten v. Van Vechten, 525. 
 
 Van Vranklin v. Fonda, 427. 
 Van Wort v. Benedict, 255, 259, 473. 
 Van Wyck, matter of, 256. 
 V. Wright, 407. 
 Varick v. Jackson, 371, 480. 
 
 " V. Tallman. 462. 
 Varrick v. Smith, 221. 
 Vaughn v. Ely, 461. 
 Vecbte v. Brownell, 127. 
 Vergne, De La v. Evertson, 533. 
 Verplank v. Sterry, 380. 
 Voorhees v. Presbyterian Ch. Amsterdam, 
 
 124, 373, 388. 
 Vredeuburgh v. Morris, 456. 
 Vroom V. Ditmas, 138. 
 Vrooman v. Shepherd, 422. 
 
 w 
 
 AVadham v. Am. H. M. S. 140. 
 
 Wadsworth v. Wadsworth, 478. 
 Wait V. Dav, 235, 457. 
 
 " V. Wa'it, 66, 70. 
 Waite V. Templer, 502. 
 Waldron v. Comb, 254. 
 Walker v. Schuyler, 73. 
 
 " V. Sherman, 85, 88, 89. 
 " V. Snediker, 118. 
 Waller v. Harris, 138. 
 AValtermire v. Westover, 153. 
 Walton V. Tefifl, 220. 
 
 " V. Walton, 496. 
 Ward V. Kitts, 74. 
 Waring v. Smith, 116, 125, 128, 386. 
 
 " V. Smyth, 128, 400. 401. 
 Warner v. Beers, 200. 
 
 " V. Hitchins, 430. 
 Warren v. Davies, 522. 
 " V. Leland, 90. 
 " V. Lynch, .383. 
 Warwick v. Warwick, 271. 
 Waters v. Cullen, 473. 
 Watertown v. Cowen, 416. 
 Watson V. Le Row, 115, 457. 
 Watts V. Coffin, 209. 
 Webb V. Alexander, 413, 414. 
 " V. Bindon, 371, 422. 
 " V. Rice, 112, 113. 
 Welland Canal v. Hathaway, 368. 
 Wendell v. Crandall, 161, 162, 325. 
 V. The People, 346. 
 " V. Van Rensselaer, 368. 
 West V. West, 321. 
 Westcott V. Cady, 504. 
 Western Ins. Co. v. The Eagle Ins. Co. 143. 
 Westervelt v. Gregg, 258. 
 Westlake v. De Graw, 100, 217. 
 Wheeler v. The Rochester and S. R. R. 469. 
 Whelaa v. Whelan, 380. 
 Whitacre v. Whitacre, 272. 
 Whitbeck v. Cook, 277, 414. 
 " V. Kane, 112. 
 " V. Patterson, 487. 
 White V. Carpenter, 531.
 
 TABLE OF CASES. 
 
 XXXI 
 
 White V. Colt, 185. 
 " V. Knapp, 114. 
 " V. McMaine, 203. 
 " V. Moore, 120, 216, 398. 
 " V. Scott, 192. 
 " V. Skinner, 271. 
 " V. Vermont and M. R. R. Co. 203, 
 208. 
 Wbitmarsh v. Cutting, 83. 
 Whitney v. Spencer, 107. 
 Wickham v. Coukiin, 352. 
 Wiggins V. Tahnadee, 225. 
 Wilcox V. Fitch, 247. 
 
 " V. Randall, 65, 434. 
 " V. Smith, 341, 342. 
 '• V. Wood, 81, 424. 
 Wilde V. Jenkins, 149, 186, 383. 
 Wilder v. Winne, 535. 
 Wilkes V. Ferris, 403. 
 Willard v. Tillman, 82, 422. 
 Williams v. Chitty, 522. 
 
 " V. Payton's Lessee, 464. 
 " V. Saffbrd, 194, 195, 196. 
 " V. The Bank U. S. 108. 
 " V. Thorn, 399. 
 " V. Woodard, 254, 425. 
 Willoughby v. Jenks, 225. 
 Wilson V. Martin, 425. 
 " matter of, 448. 
 " V. Reed, 185. 
 " V. Smith, 201. 
 " V. Troup, 139, 253. 
 " V. Wilson, 240, 340. 
 
 Winne v. Reynolds, 543. 
 
 Wiswall V. Hall, 200. 
 
 Witbeck v. Waine, 305. 
 
 Withy V. Mumford, 416, 417. 
 
 Wodever v. Knapp, 188. 
 
 Wolfe V. Van Nostrand, 160, 172, 505, 506, 
 
 523. 
 Wood V. Chapin, 124, 373. 
 
 " V. Colvin, 458. 
 
 " V. Jackson, 365, 379, 461. 
 
 " V. Wilcox, 100, 215. 
 
 " V. Wood, 280, 440. 
 Woodcock V. Bennett, 461. 
 Wooley V. Constant, 400, 418. 
 Worrall v. Munn, 886, 418. 
 Wright V. Butler, 365. 
 " V. Douglass, 460. 
 " V. Tallmadge, 255, 259, 289. 
 Wyman v. Bland, 416. 
 
 " Mayor of N. Y. 224, <i25. 
 Wyncoop v. Burger, 196. 
 
 Yale V. Dederer, 140. 
 Yarborough v. Newell, 112. 
 Yea V. Field, 647, 548. 
 Youle V. Richards, 127. 
 Young V. Black, 365. 
 
 De Zeng v. Beekman, 384. 
 
 CASES 
 
 CITED IN THE APPENDIX OF FORMS. 
 
 Adams v. Saratoga and Washington R. R. 
 616. 
 
 Bank of Rochester v. Gray, 604. 
 Barney v. Griffin, 582. 
 Beck V. Burdett, 582. 
 Belmont v. O'Brien, 676. 
 Benedict v. Gllman, 604. 
 Bergen v. Bennet, 613. 
 Berkley v. Hardy, 674. 
 Blanchard v. Blood, 631. 
 Boardman v. Halliday, 582, 697. 
 Bogert V. Haight, 582. 
 Bool V. Mix, 567. 
 Bradish v. Gibbs, 631. 
 Bull V. Follett, 614. 
 Butts V. Genung, 614. 
 
 Carpenter v. Herrington, 582. 
 " V. Schermerhorn, 591. 
 
 Carver v. Jackson, 601. 
 Champion v. Brown, 571. 
 Coster V. Lorillard. 636. 
 Cox V. Wheeler, 604. 
 Croswell v. Crane, 621. 
 
 Demarest v. Willard, 578. 
 Dibble v. Rogers, 564, 665. 
 Doolittle V. Lewis, 604. 
 Dow V. Platner, 582. 
 Duvall V. Covenhoven, 563. 
 
 Earl V. Camp, 582. 
 Edgerton v. Peckham, 571. 
 
 Frazer v. Western, 637. 
 
 Germond v. Jones, 635. 
 Gillet V. Stanley, 565, 567. 
 Gott V. Cook, 638. 
 Grout V. Townsend, 591.
 
 yxxu 
 
 TABLE OF CASES. 
 
 Hall V. Penny, 582. 
 Hallet V. Wylie, 614. 
 Harris v. Clark, 636. 
 Hawley v. James, 636. 
 Haxtun v. Corse, 637, 639. 
 Holmes v. Seeley, 619. 
 Hone V. Fisher, 614. 
 Howard v. Doolittle, 621. 
 Hunter v. Hunter, 639. 
 
 Ingraham v. Baldwin, 604. 
 
 Jackson v. Allen, 619. 
 
 " V. Bush, 567, 597. 
 
 " V. Colden, 613. 
 
 " V. Collins, 597. 
 
 " V. Davis, 567, 597. 
 
 " V. Edwards, 637. 
 
 " V. Guraaer, 563. 
 
 " V. Harrow, 565. 
 
 " V. Lock wood, 604. 
 
 " V. Tuttle, 597. 
 
 " V. Vanderheyden, 591. 
 
 " V. Vickory, 565. 
 Johnson v. Bush, 568. 
 
 Kidd V. Dennison, 571. 
 Kilpatrick v. Johnson. 640. 
 Kinney v. Watts, 614. 
 Knapp V. Alvord, 613. 
 
 Lawrence v. Kemp, 621. 
 Leavitt v. The Steam Saw Mill Ass. 
 Le Britton v. Miles, 639. 
 Leggett V. Perkins, 638, 639. 
 Livingston v. Newkirk, 571. 
 Lyon V. Clark, 604. 
 
 Mason v. Jones, 638. 
 Meacham v. Sternes, 582. 
 Mickles v. Touseley, 582. 
 McWhorter v. McMahan, 564. 
 
 New York Trust. Co. v. Milnor, 619. 
 Nicholson v. Leavitt, 582. 
 
 568. 
 
 Nicoll V. N. Y. and Erie R. R. 587, 
 Norman v. Wells, 564. 
 Noyes v. Blakeman, 676, 632. 
 
 Osgood V. Franklip, 613. 
 
 Paine v. Miller, 671, 
 Porter v. Clark, 582. 
 
 Runyan v. Mersereau, 577. 
 
 Savage v. Burnham, 637. 
 
 Selden v. Vermilyea, 638. 
 
 Schermerhom v. Barhydt, 614, 
 
 Shinas v. Caig, 603. 
 
 Slee V. Manhattan Co. 613. 
 
 Smith V. Wyckoff, 638. * 
 
 Statutes as to proof of deeds, 640 et seq. 
 
 Strong V. Skinner, 631. • 
 
 " V, White, 637. 
 Swartout v. Burr, 571. 
 
 Taggard v. Roosevelt. 621. 
 
 Teal V. Woodworth, 591. 
 
 Townsend v. Hubbard, 569, 574, 
 
 Trust Co. V. Smith, 577. 
 
 Trustees of Auburn Th. Sem. v. Kellogg, 
 
 640. 
 Tucker v. Tucker, 635. 
 
 Vail V. Vail, 639. 
 Van Allen v. Humphrey, 631. 
 Van Der Kempt v. Shelton, 577. 
 Van Rensselaer v. Snyder, 621. 
 Van Wyck v. Alliger, 671. 
 
 Wambaugh v. Gates, 614. 
 Wells V. Smith, 571, 572, 573. 
 Whitbeck v. Cook, 591. 
 Wilks V. Back, 574. 
 Williams v. Porter, 621. 
 
 " V. Williams, 640. 
 Wright V. Tallmadge, 640. 
 
 Young V. Dake, 621.
 
 LAW OF ESTATES. 
 
 PART I. 
 
 OF THE LAW OF EEAL ESTATE. 
 
 CHAPTER I. 
 
 OF TENURE ; AND OF THE PERSONS CAPABLE OF HOLDING AND 
 CONVEYING LAND. 
 
 Section I. 
 
 Of Tenure. 
 
 A PRELIMINARY dissertation on tenures, has been deemed in 
 Enj^land a necessary introduction to the law of real property. 
 Much of ihis branch of the law has its origin in the feudal system. 
 (1 Cruise, Greenleaf's cd. p. 1.) This system, as it was established 
 in Normandy, is said to have been first introduced into England by 
 William the Conqueror. One of the principal fruits of that event 
 was the adoption of the maxim, or fiction of English law, that all 
 the lands in the kingdom were originally granted out by the king ; 
 and held mediately or immediately of the crown, in consideration of 
 certain services to be rendered by the tenant. The thing holden 
 was called a tenement, the possessors thereof tenants, and the manner 
 of their possession a tenure. {Ibid. 23.) Lord Coke, in his Com- 
 mentary upon Littleton, after showing the origin of the word tenant, 
 says, " We have not properly in the law of England, allodium, that 
 is, any subject's land that is not holden." {Co. Litt. 1 &.) 
 
 The distinctive difference between feudal and allodial tenure is
 
 42 OF TENURE. 
 
 that tlie former denotes a holding of some superior hy service ot 
 some kind, and the latter a holding free from any rent or service. 
 They are the opposites of each other. 
 
 On the settlement of this country by emigrants from England, 
 such parts of the common law, and statute law of that country, as 
 were applicable to our circumstances, were in general adopted by the 
 colonies. But the feudal system was never adopted ; though many 
 of the terms and phrases, having their origin in that system, were 
 incorporated into our laws, and were frequently so used in our con- 
 veyances. They are still used, though generally in a different or 
 modified sense, from their original meaning. A brief sketch of the 
 feudal system, and of the ancient and modern English tenures, will 
 be found in the first title of Cruise's Digest, in Blackstone's Com- 
 mentaries, and in Kent's Commentaries ; but it is not deemed neces- 
 sary, for the purposes of this treatise, to enlarge upon the subject. 
 
 Tenure, in its appropriate sense, denotes the mode or principle of 
 holding of a superior by service ; and is the fundamental principle 
 of the feudal system. Though in this country all title is derived 
 from the government, it is not so derived in a feudal sense. 
 
 In this state, at an early day after the revolution, the act con- 
 cerning tenures was enacted. (1 R. L. 70.) It has remained a part 
 of our system ever since, and will be^ considered hereafter more at 
 large in its proper place. At present it is only necessary to mention 
 that it is expressly enacted that the people of this state, in their 
 right of sovereignty, are deemed to possess the original and ultimate 
 property in and to all the lands within the jurisdiction of the state. 
 It is further provided that all lands, the title to which shall fail 
 from a defect of heirs, shall revert or escheat to the people. (1 R. L. 
 380, § 2. \ R. S. 718. 3 id. 2, 5tli ed.) By the same statute all 
 lands within the state are declared to be allodial, so that, subject 
 only to the liability to escheat, the entire and absolute property is 
 vested in the owners according to the nature of their respective 
 estates ; and all feudal tenures of every description with all their 
 incidents are abolished. (3 R. S. 2, 5th ed.) This statute has sev- 
 eral times been the subject of judicial interpretation. It has been 
 generally treated as putting an end to all feudal tenures between 
 one citizen and another. It has been held to be retro-active, and 
 that after its passage all restraints upon alienation contained in con- 
 veyances in fee, whether executed before or after its date, are void.
 
 OF TENURK • 43 
 
 {De Peyster v. 3Iichael, 2 Seld 467. Vaji Rensselaer v. Hays, 19 
 N. Y. Rep. 68. Jackson v. Hart, 12 e/o/wi. 81.) 
 
 But the act provided that the abolition of tenures should not take 
 away or discharge any rents or services certain, which at any time 
 theretofore had been or thereafter might be created or reserved ; nor 
 should it be construed to affect or change the powers or jurisdiction 
 of any court of justice in the state. (3 R. S. 2, § 4, 6th ed.) 
 
 The principles of the act of 1787, enunciating the original and 
 ultimate property of the people of this state, in their right of sove- 
 reignty, in and to all lands within their jurisdiction ; and declaring 
 that all lands the title to which shall fail from a defect of heirs, 
 shall revert or escheat to the people ; and abolishing all feudal ten- 
 ures of every description, with all their incidents, saving however all 
 rents and services certain which at any time theretofore had been 
 lawfully created or reserved ; and declaring all lands within this 
 state to be allodial, subject only to the liability to escheat ; are 
 contained in the organic law, and form a part of the present consti- 
 tution. (Const, of 1846, art. 1, §§ 11-13.) 
 
 The early settlers of this country did not claim the right of soil by 
 virtue of discovery and settlement except as against other nations, and 
 conceded the right of occupancy to the aborigines. The settlers 
 merely claimed the right of pre-emption, admitting that it belonged 
 to the government to extinguish the Indian title by purchase, which 
 has in every instance been done. (Johnson v. Mcintosh, 8 Wheaton, 
 543, 574. 3Iao'tin v. WaddeU, 16 Peters, 367.) The title of indi- 
 viduals was derived from their own governments. (Jackson v. Hart, 
 12 John. 81.) 
 
 The oppressive features of the feudal system were never adopted 
 in this country. They were abolished, even in England, by the act 
 of 12 Charles 2. But the idea and language of tenure have been 
 retained to a certain extent to the present day ; and much of the 
 language of conveyances had its origin under institutions which have 
 long since passed away. There is no practical inconvenience in these 
 changes, since the rights which the language represents are in all 
 cases, either recognized by statute or by local usage. The doctrine 
 of escheat and of waste, and many of the doctrines in relation to 
 rents, are of feudal origin.
 
 44 WHO MAT HOLD. 
 
 Section II, 
 Of the persons capable of holding and conveying lands. 
 
 It is in this state declared by statute, (1 B. S. 719,) that every 
 citizen of the United States is capable of holding lands within this 
 state, and of taking the same by descent, devise or purchase. The 
 same statute further declares that every person capable of holding 
 lands (except idiots, persons of unsound mind and infants) seised 
 of or entitled to any estate or interest in lands, may alien such estate 
 or interest at his pleasure, with the effect and subject to the restric- 
 tions and regulations provided by law. (Id. § 10.) This is merely 
 declaratory of the common law. 
 
 In the case of Scott v. Sanford, (19 Howard, 393,) the supreme 
 court of the United States decided that a free negro of the African 
 race, whose ancestors were brought to this country and sold as slaves, 
 is not a citizen within the meaning of the constitution of the United 
 States. That case does not affect the question whether such negro, 
 if born in this country and no longer a slave, is capable of holding 
 and aliening lands within the state of New York, The constitution 
 of 1777 makes no distinction of color with regard to inhabitants 
 entitled to vote, or to hold real estate, and by a strong implication 
 admits the capacity of colored persons who labor under no other 
 incapacity, to hold and of course to convey real estate. This feature 
 has been retained in both the subsequent constitutions, so far as 
 relates to negroes. 
 
 But a different rule prevailed in relation to Indians. They were 
 not treated as citizens, but as distinct tribes or nations, being under 
 the protection of the government. No person was allowed to pur- 
 chase any right or title to land from any Indian, without the author- 
 ity or consent of the legislature. {Goodell v. Jackson, 20 John. 
 693. 1 B. S. 719, § 12.) Many statutes wer-e enacted on the sub- 
 ject with a view to protect the Indians against fraud and imposition, 
 which will be found collected and reviewed by Chancellor Kent, 
 in his elaborate opinion in the last mentioned case. These statutes 
 were founded on wise and considerate principles of justice and policy. 
 The necessity for them has in a great measure ceased, with the 
 diminished number, and the improvement of the tribes. Accord- 
 ingly our legislation on the subject has undergone corresponding
 
 INDIAN— ALIEN. 45 
 
 changes. By the act of 1843, {ch. 87, § 4, 3 i?. S. 3, § 13, 5th ed.) 
 any native Indian is permitted, after the passage of that act, to 
 purchase, take, hold and convey lands and real estate in this state, 
 in the same manner as a citizen ; and whenever he shall become a 
 freeholder to the value of one hundred dollars, he is made liable on 
 contracts and subject to taxation and to the civil jurisdiction of the 
 courts of law and equity of this state, in the same manner and to 
 the same extent as a citizen thereof. By a subsequent statute, all 
 nations, tribes or bands of Indians who own and occupy Indian reser- 
 vations within this state, and hold lands therein as the common 
 property of such nations, tribes or bands, are permitted by the acts 
 of their respective Indian governments to divide such common lands 
 into tracts or lots, and distribute and partition the same or parts 
 thereof, quantity and quality relatively considered, to and amongst 
 the individuals or families of such nations, tribes and bands respect- 
 ively, so that the same may be held in severalty and in fee simple 
 according to the laws of this state ; but such lands are not to be set 
 off to any person other than the occupant or his or her family. 
 (Laws 0/1849, ck 420, § 7. 3 B. S. 4, § 18, 5th ed.) 
 
 The disability of alienage is somewhat modified by our statutes. 
 At common law, though an alien might purchase land, or take by 
 devise, he could only hold until an inquest of office was found. He 
 was thus in constant danger of having his lands taken from him by 
 the paramount authority of the state. But it is now provided that 
 any alien who has come, or may hereafter come into the United 
 States, may make a deposition in writing, that he is a resident of 
 and intends always to reside in the United States, and to become a 
 citizen thereof as soon as he can be naturalized, and that he has 
 taken such incipient measures as the laws of the United States 
 require to enable him to obtain naturalization ; and on having the 
 same recorded in the office of the secretary of state, he is authorized 
 and enabled* to take and hold lands and real estate of any kind 
 whatever, to him and his heirs and assigns for ever ; and may, durino- 
 six years thereafter, sell, assign, mortgage, devise and dispose of the 
 same in any manner as he might and could do if he were a native 
 citizen of this state or of the United States, except that he shall 
 have no power to demise any real estate which he may take or hold by 
 virtue of this provision, until he becomes naturalized. (1 li. S. 720 
 § 15, as amended in 1834, ch. 272. 3 E. S. 5, §§ 24, 25, 5th ed.) 
 This statute holds out inducements to an alien seeking his fortune
 
 46 CORPORATIONS. 
 
 amongst us, to perfect his naturalization as rapidly as possible ; for 
 •when once naturalized, he is entitled to all the privileges and im- 
 munities of a natural born subject. By pursuing the course pointed 
 out in the statute he can anticipate some of the benefits intended to 
 be conferred by naturalization. 
 
 Although in some respects a corporation aggregate is not a citizen 
 within the meaning of the constitution of the United States, (Bank 
 of United States v. Devereux, 5 Cranch, 61,) yet it is quite obvious 
 that in the statute of this state relative to the persons capable of 
 holding and conveying lands, (1 R. S. 719 ; 3 id. 3, 5th ed.) the use 
 of the term citizen of the United States, to designate the persons 
 capable of holding and aliening lands within this state, was not 
 intended to exclude corporations from these privileges. A corpora- 
 tion has been held to be embraced under a statute imposing taxes 
 on inhabitants of a town. (2 Institutes, 703.) It has been held to 
 be comprised under terms denoting persons, residents, &c. {The 
 People V. Utica Ins. Co. 15 John. 382. Conroe v. Nat. Protection 
 Ins. Co. 10 How. Pr, Rep. 403.) The statute defining the general 
 powers, privileges and liabilities of corporations, forming a part of the 
 same revision of 1830, declares that every corporation as such has 
 power amongst other things to hold, purchase and convey such real 
 or personal estate, as the purposes of the corporation shall require, 
 not exceeding the amount limited in its charter. (1 R. S. 599. 
 3 id. 596, 5th ed.) And this is probably the same power which is 
 incident, at common law, to all corporations, not expressly forbidden 
 to deal in real estate. {Angell & Ames on Corporations, 83 etseq. 
 Moss v. The Rossie Lead Mining Co. 5 Hill, 137.) 
 
 A corporation, although created but for a limited period, may 
 acquire a title in fee to lands necessary for its use. Even if the 
 deed lacks words of perpetuity, it takes a fee unless it is in terms 
 restricted to some less estate. {Nicoll v. The New York and Erie 
 Rail Road Co. 2 Kern. 121.)
 
 NATURE OF REAL ESTATE. 47 
 
 CHAPTER 11. 
 
 OF REAL ESTATE, ITS NATUEE, QUALITY AND QUANTITY OF INTEREST. 
 
 The most camprehensive definition of real property is into lands, 
 tenements and hereditaments. Land, according to Coke, (1 Inst. 
 4 «,) in its legal signification, comprehends any ground, soil, or 
 earth whatsoever, and all buildings erected thereon. {31ott v. 
 Palmer, 1 Comst. 569, 570.) It extends indefinitely upwards as 
 well as downwards ; the maxim being cujus est sohcm ejus est usque 
 ad caelum. Tenement signifies that which may be holden. It is a 
 word of a larger signification than land, and by it not only land 
 and other inheritances which are holden will pass, but also offices, 
 rents, commons, profits apprender out of lands and the like wherein 
 a man hath a frank-tenement and whereof he is seised ut de lihero 
 tenemento. (1 Inst. 6 a.) 
 
 Hereditament is a term of still larger import, for it comprehends 
 whatsoever may be inherited, be it corporeal or incorporeal, real, 
 personal or mixt. (Id.) 
 
 Real property is thus either corporeal or incorporeal The first 
 consisting wholly of substantial permanent subjects, all which might, 
 at common law, be comprehended under the name of land; the last 
 such as are not the subject of the senses, but exist in the mind only, 
 as rents, commons, ways and the like, being rights issuing out of 
 the realty. Indeed, the New York revised statutes expressly pro- 
 vide that the term "real estate," and "lands," as used in the chapters 
 relative to real estates and to title by descents, shall be construed 
 as coextensive in meaning with lujids, tenements and hereditaments. 
 (1 B. S. 750, § 10. Id. 755, § 27.) 
 
 It must be remembered that the legal meaning of the word estate 
 is difi"erent from its popular acceptation. In the latter sense it is 
 often, and perhaps generally, used to denote the land itself But 
 in the appropriate legal signification, it is used to denote the partic- 
 ular right which the owner may exercise in a certain piece of land. 
 An estate in land, therefore, is the interest which the owner has 
 therein. ( Van Rensselaer v. Poucher, 5 Den. 40. 1 Prest. on Es- 
 tates, 7, 20. 1 Cruise's Dig. ch. 3, tit. 1, § 11.) Such estate may
 
 48 NATURE OF KEAL ESTATE. 
 
 greatly vary in quantity or duration, as it may also in respect to the 
 time of enjoyment, the number and connection of the tenants, and 
 the provisoes, conditions and limitations under which it is held. A 
 seisin of land should never be pleaded, but of an estate in land. This 
 is conclusively shown by the authorities. {Van Rensselaer v. 
 Foucher, supra.) The quantity of an estate signifies the time of 
 continuance or degree of interest, and the quality of an estate has ref- 
 erence to the manner of its enjoyment, as whether it be absolutely, 
 solely, in common, in coparcenary, or in joint tenancy. (1 Prest. on 
 Est. 21.) In some cases it is said that there is so near a relation 
 between the quantity and quality of an estate, that the quality of 
 the estate is the measure of its quantity. The determinable quality 
 of the estate is marked by the clause, if the grantee should so long 
 live ; and this phrase also forms part of the quantity or measure of 
 the estate. {Id. p. 22.) Mr. Preston illustrates it more fully by 
 putting the case of a grant to a man and his heirs, so long as a tree 
 shall stand. In this instance, he observes, that the words which 
 relate to the tree form an essential part of the measure of the estate, 
 and at the same time, render the estate a determinable fee, (being 
 its quality,) instead of being an absolute fee. {Id.) 
 
 The foregoing observations are sufficient by way of introduction 
 to the distribution of estates under the provisions of the revised stat- 
 utes of 1830. (1 R. S. 722, et seq. 3 id. 10, et seq. 5th ed.) The 
 statute recognizes the distinctions between the quantity and tho 
 quality of estates ; and M-ith a view to simplify the subject and to 
 incorporate the improvements, in their proper place, it adopts from 
 writers of approved authority the classification existing in the com- 
 mon law, with such modifications as their experience and wisdom 
 had pointed out. 
 
 The first six sections of the statute relate mainly to estates with 
 reference to their quantity of interest. Thus, (§ 1,) estates in lands 
 are divided into estates of inheritance, estates for life, estates for 
 years, and estates at will and by sufferance. (§ 2.) Every estate of 
 inheritance, notwithstanding the abolition of tenures, shall continue 
 to be termed a fee simple, or fee ; and every such estate, when not 
 defeasible or conditional, shall be termed a fee simple absolute, or 
 an absolute fee, (§ 3.) All estates tail are abolished ; and every 
 estate which would be adjudged a fee tail, according to the law of 
 this state, as it existed previous to the 12th day of July, one thou-
 
 FREEHOLDS OF INHERITANCE, ABSOLUTE. 49 
 
 sand seven hundred and eighty- two, shall hereafter be adjudged a 
 fee simple ; and if no valid remainder be limited thereon, shall be a 
 fee simple absolute. (§ 4.) Where a remainder in fee shall be lim- 
 ited upon any estate, which would be adjudged a fee tail, according 
 to tile law of this state, as it existed previous to the time mentioned 
 in the last section, such remainder shall be valid as a contingent 
 limitation, upon a fee, and shall vest in possession on the death of 
 the first taker, without issue living, at the time of such death. 
 (§ 5.) Estates of inheritance and for life shall continue to be denom- 
 inated estates of freehold ; estates for years shall be chattels real ; 
 and estates at will or by sufferance shall be chattel interests, but 
 shall not be liable as such to sale on executions. (§ 6.) An estate 
 during the life of a third person, whether limited to heirs or other- 
 wise, shall be deemed a freehold during the life of the grantee or 
 devisee, but after his death it shall be deemed a chattel real. 
 
 The essential characteristics of a freehold estate are 1. Immohil- 
 ity, the subject matter must be either in the land, or some interest 
 issuing out of or annexed to land. 2. A sufficient legal indeterm- 
 inate duration, for if the utmost period of time to which an estate 
 can last is fixed and determined, it is not an estate of freehold. 
 (2 Bl. Com. 386. 1 Cruise, tit. I, p. 45.) 
 
 Hence, the primary division of freehold estates is into freehold 
 estates of inheritance, and into freehold estates not of inheritance. 
 
 Section I. 
 Of freeholds of inheritance — absolute. 
 
 Under the New York revised statutes, every freehold of inherit- 
 ance must either be an estate in fee simple absolute, or a defeasible 
 or conditional fee. Tenant in fee simple is {according to Littleton, 
 § 1,) he which hath lands or tenements to hold to him and his heirs 
 forever. An estate in fee simple is the entire and absolute interest 
 and property in the land ; from which it follows that no one can 
 have a greater estate. (1 Cruise's Dig. p. 59.) It was essential at 
 common law that the word heirs should be inserted in the convey- 
 ance in order to create an estate in fee simple. For if, says Little- 
 ton, a man purchase by these words, to have and to hold to him 
 forever; or by these words, to have and to hold to him and his 
 assigns forever ; in these two cases he hath but an estate for term 
 
 Will.— 4
 
 50 ESTATE IN FEE SIMPLE. 
 
 of life, for the lack of these words, Ms heirs, which words only make 
 an estate of inheritance. This strictness of the common law has 
 been abrogated in this state. The term heirs, or other words of inher- 
 itance have not, since 1830, been requisite to create an estate in fee. 
 On the contrary, every grant or devise of real estate, or any interest 
 therein, executed after the first of January, 1830, is made adequate 
 to pass all the estate or interest of the grantor or testator, unless 
 the intent to pass a less estate or interest appears by express terms, 
 or is necessarily implied in the terms of the grant. And it is made 
 the duty of the courts, in the construction of every instrument cre- 
 ating or conveying, or authorizing the creation or conveyance, of any 
 estate or interest in lands, to carry into eiFect the intent of the part- 
 ies, so far as such intent can be collected from the whole instrument 
 and is consistent with the rules of law. (1 B. S. 748. 3 id. 38, 
 §§ 1, 2, 5th ed.) 
 
 The great nicety of the common law with respect to the insertion 
 of the word heirs, in order to vest a fee, is said to have been a relic 
 of the feudal strictness. (2 Black. Com. 107.) It was never re- 
 quired in the transfer of personal property, and the rigor of the rule 
 had been greatly relaxed in the constructions of wills ; the courts 
 accejiting in lieu of those words, any equivalent expressions, plainly 
 denoting an intention to pass a fee. The statute places deeds, in 
 this respect, upon the same footing as wills, and allows the intention 
 of the parties to be gathered from other language. The change thus 
 introduced into our conveyances had previously been adopted in other 
 states, and it is now a part of the jurisprudenc(5 of more than half 
 the states of the union. It is the rule which hp-s always prevailed 
 in the civil law. 
 
 An estate in fee simple is the entire and absolute interest and 
 property in the land. Hence it follows that no one can have a 
 greater estate. And he who has granted an estate in fee simple has 
 no farther interest remaining in him. Such an estate, however, may 
 be granted upon condition, and in numerous instances a fee simple 
 may be rendered defeasible on the happening of some future event. 
 
 The owner of the fee simple has the entire control, as such, of all 
 houses and other buildings erected on the premises, and of all tim- 
 ber and other trees growing thereon. He is entitled to all mines of 
 metal, except gold and silver, and to dig up and dispose of all min- 
 erals and fossils which are under the land. (1 Cruise's Dig. 60.) 
 
 The right to mines of gold and silver belonged, at common law, to
 
 ESTATES IN FEE SIMPLE. 5I 
 
 the sovereign, and in this state, by statute, it is reserved to the peo- 
 ple in their right of sovereignty. {Plowden, 336. Seaman v. Vaw- 
 drey, 16 Vesey, 393. 1 Black. Com. 307. 1 R. S. 281, 684, 5th 
 ed.) Numerous questions with respect to the right to mines of the 
 precious metals, have arisen in those states in which those mines are 
 found, but the consideration of them does not seem appropriate to 
 the present treatise. All inferior estates and interests in land are 
 derived out of the fee simple. It is on this ground that when a 
 limited estate vests in the same person who has the fee simple of the 
 same land, the particular estate is merged in the fee, upon the prin- 
 ciple that omne majus continet in se m inus. The doctrine of merger, 
 which will hereafter be considered, has its origin in this principle! 
 (1 Cruise's Dig. 61. Roberts v. Jackson, 1 Wend. 478.) 
 
 Thepoioer of alienation is an inseparable incident to an estate in 
 . fee simple. Hence, any general restriction of this power annexed to 
 the creation of such an estate is absolutely void, and of no effect. 
 (1 Cruise's Dig. 63.) In DePeyster v. Michael, (2 Seld. 467,) 
 the court of appeals held that a reservation, in a conveyance in fee, 
 of a pre-emptive right of purchase by the grantor, his heirs, &c., in 
 every case of sale by the grantee, his heirs or assigns, and the reserv- 
 ation, by the grantor, of a right or portion of the sale money or cash 
 sale by the grantee &c. are void as being repugnant to the estate 
 granted, and illegal restraints upon the power of alienation. By the 
 common law, restraint upon the alienation of lands could only be 
 imposed by persons having the reversion, or at least Si possibility of 
 reversion. {Id.) 
 
 The power of alienation necessarily implies the existence of infe- 
 rior powers. As the owner may convey the whole, so he may grant out 
 ot it, while he is the absolute owner, smaller interests, retainino- in 
 himself the reversion. He may thus lease, for a term of years, the 
 whole or any portion of it ; he may charge it with debts or legacies, 
 or both ; and he may dispose of it by will if he continues the owner 
 till his death. If he fails to make a testamentary disposition of it 
 by a will executed in conformity to law, it descends to his heirs. 
 
 A freehold of inheritance is subject to the dower of the wife, and 
 the curtesy of the husband. These estates will be noticed in their 
 proper places. 
 
 This estate also is liable to the debts of the owner on his death 
 and it may be charged in his will with the payment of debts and 
 legacies, or of either.
 
 52 FREEHOLD OF INHERITANCE DEFEASIBLii. 
 
 It will be more convenient to postpone until we come to treat of 
 deeds and leases, the consideration of the terms by which a fee will 
 pass, and the constitutional restraint imposed upon the granting of 
 farm leases for a longer j)eriod than twelve years. 
 
 Section II. 
 Of freeholds of inheritance defeasible or conditional. 
 
 The revised statutes evidently recognize defeasible or condi- 
 tional fees as existing estates. 
 
 At common law, estates of inheritance which were not absolute, 
 were of two sorts : 1, Qualified or base fees ; and 2d. Fees condi- 
 tional, so called; and afterwards fees tail in consequence of the 
 statute de donis. {Stat, of Weston. 2. 13 Ediv. 1.) 
 
 At an early day it became customary to make donations of land, 
 restraining them to some particular heirs of the donee, exclusive of 
 others ; as to the heirs of a man's body, in exclusion of collateral 
 kindred ; or to the heirs male of his body, in exclusion both of collat- 
 eral heirs, and of lineal female heirs. The strong tendency of the 
 courts to favor the alienation of the estate led them to construe lim- 
 itations of this kind into estates upon condition, and to apply to 
 them the maxim of the common law that when a condition is once 
 performed, it is thenceforth entirely gone ; and the estate to which it 
 was annexed as absolute and unconditional. Upon this mode of 
 reasoning the judges held that these estates were conditional fees, 
 depending upon the leaving heirs of the particular class named in 
 the grant. Hence, it followed that upon the leaving issue born, the 
 estate became absolute, at least so far that the owner could alien the 
 land and thus bar his issue and the donor of his right of reverter, 
 subject the estate to forfeiture for treason, and enable him to charge 
 it with rents and other incumbrances, which would be available 
 against his issue. 
 
 This mode of construing conditional fees defeated the object 
 which they were intended to accomplish. This induced the nobility, 
 who were desirous of perpetuating their possession in their own 
 families to procure the enactment of the Statute of West. 2, ISEdio. 1, 
 before adverted to, and which is usually called the statute de donis, 
 requiring " the will of the giver, according to the form of the deed 
 of gift manifestly expressed, to be observed, so that they to whom a 
 tenement was so given under a condition should not have power to
 
 ESTATE TAIL. 53 
 
 alien the same tenement, whereby it should not remain after the 
 death of the donees, to their issue, or to the donor or his heirs if 
 issue failed." This statute, as was observed by Lord Mansfield, in 
 his elaborate opinion in Taylor v. Horde, (1 Burr. 60, 115,) only 
 repeated what the law of tenure said before, that "the tenor 
 of the grant should be observed." It rejected the erroneous opinion 
 which had been expressed by the judges that a donation of this kind 
 created a conditional fee ; and declared that it vested an estate of 
 inheritance in the donee, and some particular heirs of his, to whom 
 it must descend notwithstanding any act of the ancestor, and that 
 the estate of the donor is a reversion expectant on the determination 
 of that estate. (Id.) 
 
 An estate tail may be described to be an estate of inheritance, 
 deriving its existence from the statute de donis, which is descendible 
 to some particular heir only of the person to whom it is granted, 
 and not to his heirs general. It was of two kinds ; tenant in tail 
 general and tenant in tail special. The first was when lands were 
 given, to a man and the heirs of his body, without any further 
 restriction ; and the second when the gift was restrained to certain 
 heirs of the donee's body, exclusive of others, as when lands are 
 given to a man and the heirs of his body, on Elizabeth his present 
 wife, to be begotten. Thus also, the estate might be limited to the 
 heirs male of the body of the donee, which was called an estate in 
 tail male, or to the heirs female of his body, called an estate in tail 
 female. 
 
 In all cases of entailment limiting the lands to a particular class 
 of heirs, no descendant of the donee could inherit unless he could 
 deduce his title through that particular class of heirs to which the 
 succession of the land was limited. 
 
 This species of estate was only predicable of what partook of the 
 'nature of real 'property , whether corporeal or incorporeal. It was sub- 
 ject to many of the incidents of estates in fee simple absolute. The 
 tenant had a right to commit every kind of waste. The estate was 
 subject to the curtesy of the husband, and the dower of the wife. 
 The estate might, at common law, be discontinued by five different 
 modes of conveyance ; and it might be barred by a common recovery. 
 
 This species of estate was not uncommon in this state before and 
 after the revolution until it was abolished in 1782. The act of 
 1786, (1 Greenl. 205,) while it abolished that estate, enacted " that 
 when any person now is or are, or would but for the act of 1732
 
 54 DEFEASIBLE ESTATES. 
 
 therein repealed, be now seised in fee tail of any lands, tenements or 
 hereditaments, such person shall be now deemed to be seised of the 
 same in fee simple absolute." These two statutes, to wit, of 1782 
 and 1786, operated as well upon vested remainders in tail as upon 
 estates tail which had taken effect in possession. ( Vanderheyden 
 V. Crandall, 2 Denio, 9, affirmed 1 Comst. 491. Van Rensselaer v. 
 Poucher, 5 Den. 35.) The provision in the revised statutes (1 B. S. 
 722, § 3) which declares that every estate which would be adjudged 
 a fee tail before the statutes abolishing entails, shall hereafter be ad- 
 judged a fee simple, is not more comprehensive in its effects than 
 the former statutes, but is simply declaratory of the then existing 
 law. ( Van Rensselaer v. Poucher, supra.") 
 
 But estates in fee tail having been so long abolished, are of little 
 interest to the reader. In this state and probably in others, they 
 are converted into estates in fee simple absolute, and the learning 
 concerning them is of little practical value. In some states, they 
 never formed a part of their jurisprudence. The prevailing opinion 
 iu this country is adverse to the policy which entailments are calcu- 
 lated to cherish. The free and unrestricted alienation of property 
 is, on the whole, more conducive to the advancement of society, 
 than the accumulation of large masses in the hands of a favored few. 
 
 There are some defeasible and conditional estates in fee, which 
 have not been abrogated by the revised statutes. A limitation to a 
 man and his heirs so long as he shall have issue of his body ; or till 
 a person at Rome shall return from Rome, or till a person shall go 
 to Rome : or during the time while a particular tree shall stand, or 
 till default shall be made in the payment of his debts, or so long as 
 St. Paul's Church shall stand, are instances of this species of estate. 
 (1 Preston on Estates, 432 et seq.) Even in wills it is said that a 
 devise to a man and his heirs, till debts are paid, passes the fee, and 
 not a chattel interest, except under special circumstances. 
 
 These estates are of rare occurrence, except in the case of securi- 
 ties by way of mortgage, which will be treated of in a subsequent 
 part of this essay. 
 
 As no one can transfer to another a greater estate than he him- 
 self posseses in the subject of the grant, the owner of a determinable 
 fee cannot, by a conveyance thereof to a man and his heirs generally, 
 without restriction, enlarge the determinable fee into a fee simple. 
 The grantee would take only such estate as the grantor, at the time
 
 FREEHOLDS NOT OF INHERIT^iNCE. 55 
 
 of the conveyance, enjoyed. (1 E. S. 739, § 143. Sage v. Cart- 
 wright, 5 Seld. 52.) 
 
 A determinable fee may become absolute and simple without any 
 further conveyance. Should an estate be limited to A. and his heirs 
 until the marriage of B., and B. should die unmarried, the estate in 
 A. would become an estate in fee simple absolute. The event on 
 which the determination of the estate depended, having become im- 
 possible by the act of God, viz., the death of B. before marriage, the 
 period for the determination of the estate can never arise. For that 
 reason the estate will last forever, in the same manner, as if no col- 
 lateral limitation had given to it a determinable quality. 
 
 The foregoing observation is referable only to a class of cases in 
 which the event on which the estate is limited, may become impossi- 
 ble, and therefore can never happen. It does not apply to those 
 cases where, as in the case of an estate until a tree shall fall, an 
 event is fixed as the termination of the estate, which must happen 
 some time or other in the course of nature. In this latter case, the 
 reversion or remainder expectant on the estate, or the possibility of 
 reversion which is left in the grantor, may, by a release or other 
 proper assurance, be conveyed to the owner of the determinable fee, 
 and thus make him the owner of a fee simple absolute. 
 
 The conditional fees at the common law, as they existed prior to 
 the statute de donis, have in general shared the fate of estates in 
 fee tail, and are scarcely known in our jurisprudence. They have 
 been succeeded by executory limitations which will hereafter be no- 
 ticed. The revised statutes have enacted that every person holding 
 lands (except idiots, persons of unsound mind and infants) seised of 
 or entitled to any interest in lands, may alien such estate or interest 
 at his pleasure, with the effect and subject to the restriction and 
 regulations provided by law. (1 B. S. 719, § 10. DePeyster v. 
 Michael, 2 Seld. 467. The Albany Ins. Co. v. Bay, 4 Comst. 9. 
 1 B. L. 70, § 1. Id. 74, § 5.) 
 
 Section III. 
 
 Of freeholds not of inheritance. 
 
 Under the definition of the term freehold estate, in a preceding 
 page, {p. 115,) an estate for life in lands is a freehold interest. It 
 is of two sorts, 1, such as is created expressly by deed or other legal 
 assurance, and 2, such as is derived from the operation of law.. Ua-
 
 56 ESTATES FOR LIFE. 
 
 der the first head are Ist, an estate for the life of the tenant, and 
 2d, an estate for the life of another person, or persons. Under the 
 second general head are embraced, 1st, an estate by the curtesy of 
 England, and 2d, an estate in dower. 
 
 We shall treat of these different estates in the present section. 
 
 1. Of on estate for the life of the tenant created hj the act of the 
 parties. This estate is created when a deed of land is given to a 
 man in express terms for the term of his life. At common law a 
 grant of land to a man forever, conveyed only a life interest, if the 
 word "heirs" was omitted. {Litt. lib. 1, § 1.) But since the re- 
 vised statutes have dispensed with the term " heirs " and permitted 
 the intention to pass a fee to be gathered from the language of the 
 instrument, (1 B. S. 748,) it is necessary, in order to create an estate 
 for the life of the grantee, that the intention to create such estate 
 should be expressed in the conveyance. 
 
 Formerly, such an estate might be created whenever the grantor 
 ■was the owner of the fee simple. But now, by the constitution of 
 1846, article 1, § 14, it is provided that no lease or grant of agricul- 
 tural land for a longer period than twelve years thereafter made, in 
 which shall be reserved any rent or service of any kind, shall be 
 valid. This provision owed its origin to the antirent excitement 
 which at that period prevailed to a great extent in certain parts of 
 the state, and the object was to prevent long terms of farm leases, 
 reserving rent, from being made. The prohibition does not apply 
 to urban property, but to that which is strictly agricultural ; and 
 it does not apply to the latter, if no rent or other service is reserved 
 in the conveyance. 
 
 In general, this species of estate for life will endure as long as the 
 life or lives for which it was granted. There are some exceptions 
 to this rule. Thus it may be determinable upon an event which 
 happens before the death of tenant for life. Thus an e^state to a 
 ■woman so long as she remains unmarried, or to a man and woman 
 during coverture, or so long as the grantee shall dwell in a particu- 
 lar house, are estates for the life of the grantee, but are determina- 
 ble on the happening of these events. (1 Inst. 42.) Hence, in the 
 above cases, if the woman marries, or the coverture ceases by death 
 or otherwise, or the grantee ceases to dwell in the particular house, 
 the life estate of the grantee terminates before his death. {Id.) 
 
 An estate for one's own life is of more value than an estate for tlu>
 
 ESTATE PUR AUTER VIE. 57 
 
 life of another. A tenant for life may alien liis estate, but his 
 grantee then becomes a tenant for the life of his grantor. This re- 
 sults from the principle that no man can grant a greater estate than 
 he possesses ; and as he has an estate only for his own life, his 
 grantee becomes the tenant pur auter vie. 
 
 As the incidents of a tenancy for life are substantially the same in 
 all cases, we shall postpone an enumeration of them to the close of 
 this section. 
 
 2. Of the estate for the life of another, usually denominated an 
 estate pur autcr vie. This estate is at common law an estate of 
 freehold. It may be created by express words of limitation, or by 
 the alienation by a tenant for his own life. The incidents cf this 
 estate are the same as those of other life estates, and will be here- 
 after noticed. By the revised statutes, in the chapter in relation to 
 wills and testaments, and of the distribution of the estates cf de- 
 ceased persons, and of the rights, powers and duties of executors and 
 administrators, estates held by the deceased for the life of another 
 person are declared to be assets, and directed to go to the executors 
 or administrators to be applied and distributed as part of the per- 
 sonal estate of the testator or intestate, and to be included in the 
 inventory thereof (2 B. S. 82.) An estate during the life of a 
 third person, whether limited to heirs or not, is deemed a freehold 
 only during the life of the grantee or devisee, but after his death, a 
 chattel real. (1 B. S. 722, § 5. Eosehoom v. Van Vechten, 5 De~ 
 nio, 414.) 
 
 A lease granted by the tenant pur auter vie, will cease on the 
 death of the cestui que vie, and not on his own death. 
 
 At common law, where lands were given to A. for the life of B., 
 if A. or his assignee happened to die in B.'s lifetime, the estate be- 
 longed to the first person who took possession, whoever he might 
 be ; and such person was called an occupant. But if the gift were 
 to A. and his heirs for the life of B., or if A. in the former case had 
 assigned his estate to another person and his heirs, this title by oc- 
 cupancy was precluded. The heir indeed who succeeded to such an 
 estate was commonly called a special occupant. The statute 29 
 Charles 2, ch. 3, § 12, declares those estates pur auter vie to which 
 the heir does not succeed as special occupant to be assets. If the 
 heir took as special occupant then they became assets in his hands. 
 Our former statute concerning wills (1 R. L. 365, § 4) made no such
 
 58 ESTATE BY THE CURTESY. 
 
 exception, but allowed the estate to be devisable by last will and 
 testament ; and if no such devise thereof ivas made, the same or so 
 much thereof as was not devised was directed to go to the executor 
 or administrator, of the party who had the estate, to be applied and 
 distributed as part of the personal estate. Such was the law prior 
 to the revised statutes of 1830 ; and by the latter, the estate was 
 made assets in the hands of the executor or administrator, whether 
 devised by the testator or not. (2 R. 8. 82, § 6, suhd. 1. Rose- 
 hooni V. Van Vechten, supra.) 
 
 3. ITie third species of estate for life is an estate by the curtesy. 
 It is thus described by Littleton, § 35 : " When a man taketh a 
 wife seised in fee simple, or in fee tail general, or seised as heir in spe- 
 cial tail and hath issue by the same wife, male or female born alive ; 
 albeit the issue after dieth or liveth, yet if the wife dies, the husband 
 shall hold the land during his life by the law of England." The 
 conversion in this state of estates in fee tail into estates in fee sim- 
 ple, modifies, but does not impair, the above definition. Although 
 this estate has not been, like the estate in dower, declared by stat- 
 ute, it has been repeatedly recognized by the courts of this state as 
 an existing estate. (Jackson v, Johnson, 5 Coiuen, 74-95. Duns- 
 comb V. Dunscomb's Executors, 1 John. Ch. R. 508. Jackson v. 
 JSellick, 8 Joh7i. Rep. 262. Jackson v. Gilchrist, 15 id. 89. Adair 
 V. Lott, 3 Hill, 182. Ellsivorth v. Cook, 8 Paige, 643. Matter of 
 Cregier, 1 Barb. Ch. R. 598. Schermerhorn v. Miller, 2 Coioen, 
 439. Jackson v. Mancius, 2 Wend, 357. 1 R. S. 754, § 20.) 
 
 The supreme court at an early day recognized Littleton's descrip- 
 tion of the estate, by which it appears that four things belong to 
 the estate, viz. marriage, seisin of the wife, issue and death of the 
 wife. They admit that it is not necessary that all these should 
 concur together at one and the same time ; and therefore if a man 
 taketh a woman seised of lands in fee and is disseised, and then 
 havo issue, and the wife die, he shall enter and hold by the curtesy. 
 So if he hath issue which dieth before the descent. {Jackson v. 
 Johnson, 5 Cowen, 95.) 
 
 T'he marriage must be a legal, valid marriage, between parties 
 able to enter into the contract. The seisin required by the English 
 V'Ocks, must be a seisin in deed. (1 Inst. 29 a.) But the courts of 
 this state have held that when a feme covert is the owner of wild and 
 Untoultivated land, she is considered in law, as in fact, possessed so
 
 ESTATE BY THE CURTESY. 59 
 
 as to enable her husband to become a tenant by the curtesy. An 
 actual entry or pedis possessio by the wife or husband during the 
 coverture, is not requisite to the completion of a tenancy by the 
 curtesy. (Jackson v. Sellick, 8 John. 262. So.me v. Gilchrist^ 15 
 id. 89.) The time when the seisin commences, whether upon or 
 after issue had, is immaterial ; for if a man marries a woman seised 
 in fee, is disseised, and then has issue, and the wife dies, he shall 
 enter and hold by the curtesy. So if he has issue which dies before 
 the descent of the lands on the wife, (1 Inst. 30 a.) The issue 
 must be born alive in the lifetime of the wife ; and therefore if she 
 dies in childbed, and the issue is taken out of the womb by the 
 C^esarean operation, the husband will not be entitled to curtesy. 
 {Per Walworth, Ch., Marsellis v, Thalhimer, 2 Paige, 35. 
 1 Cruise Dig. 152, Greenl. ed.) The last circumstance required to 
 give a title to curtesy is the death of the wife, by which the estate 
 of the husband becomes consummate, (1 Inst. 30, a.) 
 
 With regard to the persons capable of acquiring this estate, it is 
 sufficient to observe that all persons capable of taking a freehold 
 estate may be tenants by the curtesy. 
 
 There is some conflict in the decisions of our courts with regard 
 to the eflFect which the statutes relative to the estates of married 
 women have on the curtesy of the husband, and therefore a few re- 
 marks will be added. The act of 1848, ch. 200, p, 307, enacts that 
 "the real and personal pro})erty of any female who may hereafter 
 marry, and which she shall own at the time of marriage, and the 
 rents, issues and profits thereof shall not be subject to the disposal 
 of her husband nor l)e liable for his debts, and shall continue her 
 sole and separate property as if she were a single woman." The 
 second section applies the same principle to females "who were 
 married at the time of the ])assing of the act. The third section 
 as amended by the law of 1849, ch. 375, p, 528, enacts that any 
 married female may take by inheritance or by gift, grant, devise ot 
 bequest, from any person other than her husband, and hold to her 
 sole and separate use and convey and devise real and personal prop- 
 erty, and any interest or estate therein, and the rents, issues and 
 profits thereof, in the same manner and with the like effect as if 
 she were unmarried ; and the same shall not be subject to the dis- 
 posal of the husband nor be liable for his debts, 
 
 A learned judge of the supreme court of the first district, in 
 1854, intimated at special term that the efi'ect of the foregoing
 
 60 ESTATE BY THE CURTESY. 
 
 statutes was to deprive the husband of curtesy in the land of the 
 ■wife. {Benedict v. Seymour, 11 Hoiv. 179.) This intimation is 
 elaborately reasoned out by another learned judge (Potter) in Bil- 
 lings V. Baker, (28 Barb. 343,) decided at general term in the 4th 
 district in 1859, and a majority of that court held that the effect 
 of those statutes was entirely to abrogate the existence of prospective 
 tenancy by the curtesy ; and in short that every quality and incident 
 that are necessary to constitute a tenancy by the curtesy are destroyed 
 by the provisions of these acts. {S. C. 15 Hoio. 525.) But the doc- 
 trine of this case was strongly questioned by the learned judge 
 (Sutherland) who delivered the opinion of the general term of the su- 
 preme court in the 1st district, in the same year, in VaUan'ce v. Bausch, 
 (28 Barb. 633, 642.) And the supreme court in special term in the 
 6th district in 1850, held expressly that the husband's estate by the 
 curtesy was not taken away by those statutes in the lands of which 
 the wife died seised ; and this doctrine was concurred in by a learned 
 justice in the 8th district at special term, in 1857, in Clao-k v. Clark, 
 (24 Barb. 581.) The court, speaking of cases where the wife took 
 the estate during coverture, thought that if she failed to convey or 
 devise the land, and thus died seised, the husband would be entitled 
 to curtesy as before the passage of those laws. If the wife was 
 seised of the land before coverture, the statutes afford no ground 
 to suppose that the husband's right to curtesy is impaired. It is 
 only with respect to lands which she acquires during coverture by 
 inheritance, gift, grant or devise, that there is any color for suppos- 
 ing that the husband's right to curtesy is taken away. The weight 
 of authority at present is against the position that curtesy is taken 
 away by those statutes. We cannot speak decisively upon the sub- 
 ject until the question shall have been definitively settled by the 
 court of appeals. The protection of the rights of married women 
 does not require that the right of the husband to curtesy — an es- 
 tate which is only consummated by the death of the wife — should 
 be abrogated. Had the legislature intended a change so radical, 
 they would have, doubtless, expressed it in unequivocal lan- 
 guage. The claim to curtesy, like the claim to dower by the wife, 
 springs out of the positive institutions of society, which may, in- 
 deed, be changed or destroyed in both cases according to the dictates 
 of justice and public policy. The legislature might well secure the 
 real estate of the wife during her lifetime, Avhether owned by her 
 before marriage, or derived by her afterwards by inheritance, gift or
 
 ESTATE BY THE CURTESY— DOWER. 61 
 
 devise, from the control of her husband during her life. They 
 have done it only in a qualified manner, in regard to property ac- 
 quired after the marriage, but have been silent as to its effect .U])on 
 the common law rights of the husband, on her death. Those rights 
 remain in full vigor. 
 
 The statute relative to titles to real property by descent directs 
 the mode of its disposition on the death intestate of the ovs^ner, and 
 but for the 20th section would abrogate both the estates of dower 
 and curtesy. (1 R. S. 744.) But the acts of 1848 and 1849, rela- 
 tive to the estates of married women, have reference to her property 
 dicing her life. They unquestionably lessen the common law mari- 
 tal rights of the husband, during the existence of the marriage, but 
 they do not impair his rights upon her death, if she fails to exercise 
 the powers with which she is clothed. 
 
 It is the seisin of the wife, in her lifetime, and not that of the 
 husband, that gives the right to curtesy. {Pond v. Bergh, 10 Paige, 
 140.) The foregoing decisions were made before the act of 1860, 
 chap, 90, the effect of which upon dower and curtesy has not yet 
 been adjudicated. 
 
 4. The remaining life esta.te of ivhich ive shall treat in this section 
 is doiver. This estate is derived from the law, and is that which a 
 widow acquires in a certain portion of her husband's real property, 
 after his death, for her support and maintenance. In this state the 
 general principles, with respect to this right, are set forth in the 
 revised statutes. It is there enacted that a widow shall be endawed 
 of the third part of all the lands whereof her husband was seised of 
 an estate of inheritance, at any time during the marriage. (1 R. 8. 
 740, § 1.) This is substantially as the estate is described by Littleton, 
 § 36. In most of the United States the right of the wife to dower 
 is the same in substance as stated by Littleton. In some of the 
 states, the right to dower is restricted to those lands of which the 
 husband died seised. Under such a limitation of the right it is un- 
 necessary for the wife to join in the conveyance of her husband on 
 sales of his real estate in order to extinguish her claim. The incho- 
 ate right to dower is, in this state, an incumbrance upon the estate 
 of her husband, which is usually removed by her uniting with him 
 in the deed, and acknowledging the execution thereof, on a private 
 examination before a proper officer. 
 
 With regard to the person entitled to dower, it has been seen that
 
 62 DOWER. 
 
 it is the widow only of the party seised during the coverture of an 
 estate of inheritance. It is no objection that her husband was an alien, 
 if at the time of his death he was by law entitled to hold real estate, 
 provided she be an inhabitant of this state at the time of such death. 
 {Latvs of 1845, ch. 115, § 2. Z R. 8. 7, 6th ed. Id. 31, § 2.) Nor 
 is her own alienage a bar, provided her husband is a citizen of the 
 United States at the time of her marriage. {Laws of 1845, ch. 115, 
 § 3. ZR. S. 7, 5th ed.) 
 
 The circumstances requisite to create dower are marriage, seisin 
 of the husband and death of the husband. 
 
 The marriage must be a legal one. If it be merely voidable, yet 
 if it be not avoided in the lifetime of the parties, it cannot be an- 
 nulled afterwards. The husband must be seised during the coverture 
 of a present freehold estate of inheritance. A seisin of a vested 
 remainder is not sufficient where the husband dies or aliens his in- 
 terest in the premises during the continuance of the particular 
 estate. {Dunham v. Oshorn, 1 Paige, 634. Green v. Pictnam, 
 1 Barb. S. 0. R. 500.) A seisin in law, will be as effectual as an 
 actual seisin. (2 Bl. Com. 131. Clancy's Rights of Women, 198.) 
 
 But when the seisin is instantaneous or passes from him the in- 
 stant it is acquired ; as when he delivers a mortgage for the pur- 
 chase money on the receipt of a conveyance, his widow is not enti- 
 tled to dower as against the mortgagee or those claiming under 
 him, although she shall not have united with him in the mortgage ; 
 but she is entitled to her dower as against all other persons. (1 R. S. 
 740, §§ 4, 5. Stoio V. Tifft, 15 John. 458. Jackson v. De Witt, 
 6 Cowen, 316.) But the mortgage so given by the husband or by 
 him and his wife, to secure the purchase money of the mortgaged 
 premises, cannot, after having been satisfied and discharged of rec- 
 ord, be set up by the assignee of the husband as a bar to his widow's 
 right of dower. {Runyan v. Steiuart, 12 Barb. 537.) 
 
 The widow is not dowable of her husband's estate for the life of 
 another. {Gillis v. Brown, 5 Coiven, 388.) 
 
 So if a husband be seised of a conditional estate, and the 
 grantor enters for condition broken, the wife is devested of all claim 
 of dower. {Beardslee v. Beardslee, 5 Barb. 324.) 
 
 As to mines in general, including beds of iron ore, if they are 
 unopened at the owner's death, his widow must take her dower in 
 other land merely. The newly opening of a mine is waste, and the 
 widow, being tenant for life can legally do no act which injures the
 
 DOWER. 
 
 inheritance. But if mines be opened during the husband's life, dov^ 
 in them is properly assignable ; but she cannot profit by any exten- 
 sion of that opening. The admeasurer, it seems, should take into 
 consideration the value of the mine, so far as it was opened, during 
 the husband's life, and assign the dower, either by measuring off 
 one third in value, or specifically assigning a reasonable share of the 
 profits at short periods. {Coates v. Cheever, 1 Cowen, 460.) 
 
 The maxim dos de dote peti non debet is not of universal appli- 
 cation. Thus, if the father die, and the land descends to his son and 
 heir, subject to the dower of the mother, and dower is assigned 
 to her in the premises, and the son dies during the continuance of 
 her estate, the widow of the son will be entitled to dower in the re- 
 maining two thirds ; but will not be entitled to dower in the rever- 
 sion of that part which was assigned to the mother as tenant in 
 dower. Here the maxim applies. As to that part, the moment the 
 mother is endowed, her seisin relates back to the death of the hus- 
 band, and is considered a continuance of his seisin, so that there 
 never was any seisin in the son. But the case is difiPerent where the 
 father conveys to his son. By the conveyance, the son becomes 
 seised of the whole premises subject to the dower right of his mother 
 if she survives the grantor ; and the wife of the grantee is entitled 
 to dower in the whole subject to the same right. {Dunham v. Os- 
 horn, 1 Paige, 634.) 
 
 Two widows cannot be endowed of the whole estate at the same 
 time. If the land descends to the son, subject to his mother's dower, 
 he is not seised of the third assigned to her during her life ; and if 
 he die, living the mother, his widow can be endowed only of the two- 
 thirds, and not of the third assigned to the mother, nor of the rever- 
 sion thereof. {Safford v. Safford, 7 Paige, 259. Reynolds v. Bey- 
 nolds, 5 id. 161. Matter of Cregier, 1 Barb. Ch. 599.) In Bear 
 V. Snyder, (11 Wend. 592,) the chief justice overlooked the distinc- 
 tion between an estate which comes to the husband by purchase sub- 
 ject to the contingent right of dower of the wife of the grantor in 
 case she survives him, and an estate by descent which the heir takes 
 at law subject to the present right of dower of the widow of the de- 
 ceased. {Per Walworth, In the ^natter of Cregier, supra.) 
 
 The wife of the mortgagor is entitled to dower out of the lands 
 mortgaged against all but the mortgagee. This is not only the lan- 
 guage of the statute, but results from the principle adopted by our
 
 64 DOWER, IN CASE OF EXCHANGE OF LANDS. 
 
 courts, that the mortgage before foreclosure is not regarded as the 
 legal title which a stranger can set up. The legal estate is still in 
 the mortgagor, and can be sold on execution against him. {Collins 
 V. Torry, 7 John. 278. Coles v. Coles, 15 id. 319. Hitchcock v. 
 Harrington, 6 id. 290. Van Duyne v. Thayre, 14 Wend. 233. 19 
 id. 162, 168.) 
 
 Courts of equity follow the law in cases of this kind, and hold 
 that the widow of the mortgagor, who dies in posi^ession and before 
 foreclosure, is entitled to dower in the mortgaged premises, and will 
 allow her dower out of the proceeds of the sale of the mortgaged 
 premises on a bill for a foreclosure and sale. {Titus v. Neilson, 
 5 John. Ch. R. 452.) 
 
 The object of uniting the wife with the husband in his conveyance 
 of land to a third person, is to extinguish her inchoate right of dower, 
 and thus render the title perfect. Her uniting with him in a mort- 
 gage has the same effect as between her and the mortgagor. It is 
 equitable that she should take dower in the equity of redemption, 
 if the land was of more value than the sum charged upon it by the 
 mortgage. If, therefore, the land be sold on foreclosure, she is not 
 entitled to be endowed of the whole proceeds, but only of what re- 
 mains after paying the mortgage debt and costs of foreclosure ; but 
 her third of such surplus is not chargeable with any part of the costs 
 of the reference to ascertain her rights, {Hawley v. Bradford, 
 9 Paige, 200. Titus v. Neilson, supra.) 
 
 It was held by the chancellor, in Carson v. 3Iurray, (3 Paige, 
 483,) that the wife cannot execute a valid release of dower, in any 
 other way than by joining with her husband in a conveyance to a 
 third person. A release of dower, therefore, contained in a deed of 
 separation, by which a provision was made for her, was held not to 
 be a legal bar. 
 
 But if the wife be an infant she is not barred of her dower by 
 uniting in the conveyance with her husband. {Priest v. Cummings, 
 16 Wend. 617 ; S. C 20 id. 338. Sanford v. IT Lean, 3 Paige, 
 117. Cunninglarii v. Smith, 1 Barb. 399.) 
 
 In the case of the exchange of lands by the husband for other 
 lands, the widow cannot have dower in both, though her husband 
 was seised of both, but she must make her election to be endowed 
 of the lands given, or of those taken in exchange ; and if such elec- 
 tion be not evinced by the commencement of proceedings to recover
 
 DOWER— DIVORCE. . 65 
 
 her dower of the lands given in exchange, within one year after the 
 death of the husband, she shall be deemed to have elected to take 
 her dower of the lands received in exchange. (1 B. S. 740, § 3.) 
 
 The term exchange in the statute, has been held by the su^Dreme 
 court to have been used in its legal meaning, which is understood to 
 be " a mutual grant of equal interests, the one in consideration of 
 the other." The estates exchanged must be equal in quantity; not 
 of value, for that is immaterial ; but of interest, as fee simple for 
 fee simple, a lease for twenty years for a lease for twenty years. 
 (2 Bl. Com. 323. Wilcox v. Bandall, 7 Barb. 638. 1 Hill. Ahr. 
 77, § 8. 1 Cruise, 179, § 12, Greenl. ed. Clancy, 198.) The stat- 
 ute above referred to is not introductory of any new rule except as 
 to the limitation of the time within which the widow must elect in 
 which lands to claim her dower, and on failure so to elect, restrict- 
 ing her claim to be endowed only in the lands received in exchange. 
 
 A widow of a trustee is not dowable of the trust estate. {Cooper 
 V. Whitney, 3 Hill, 95. Germand v. Jones, 2 id. 573.) Nor of a 
 power in trust. {Id.) Nor is she entitled to dower of an estate 
 held by her husband in joint tenancy, since in such estate the inher- 
 itance is not executed in possession, on account of the right of sur- 
 vivorship. {Wharton's Convey a7icing,5Q. Clancy, 1^^.) 
 
 As a legal marriage is essential to dower, it follows that if a di- 
 vorce a vinculo matrimonii be granted for a cause rendering the 
 marriage void ah initio, there can be no dower. In this state the 
 supreme court is authorized, by a sentence of nullity, to declare void 
 the marriage contract, for either of the following causes, existing at 
 the time of the marriage : (1.) That the parties, or one of them, had 
 not attained the age of legal consent, (12 in females and 14 in males ;) 
 (2.) That the former husband or wife of one of the parties was liv- 
 ing, and that the marriage with such former husband or wife was 
 then in force ; (3.) That one of the parties was an idiot or lunatic ; 
 (4.) That the consent of one of the parties was obtained by force or 
 fraud ; (5.) That one of the parties was physically incapable of en- 
 tering into the married state. (2 B. S. 142, § 20.) 
 
 By a subsequent statute {L. of 1841, ch. 257) the court is likewise 
 empowered, by a sentence of nullity, to declare void any marriage 
 contract, upon evidence, (1) that the female was at the time of the 
 alleged marriage under the age of fourteen years, and that such mar- 
 
 WlLL.— 5
 
 ee DOWER— HOW BAERED— JOINTURE. 
 
 riage was without the consent of her father, mother, guardian or 
 other person having the legal charge of her person, and was an offense 
 on the part of the husband, under the statute, and punishable ac- 
 cording to law ; (2) that the marriage was not followed by consum- 
 mation or cohabitation, and not ratified by any mutual assent of the 
 parties after the female had attained the age of fourteen years. 
 
 A decree of nullity would doubtless be a good bar to a claim for 
 dower. {Bennett v. Smith, 21 Barh. 440. Wait v. Wait, 4 Comst. 
 95 ; S.C.4 Barb. 192-210.) 
 
 But when the divorce is obtained by the wife for the adultery of 
 the husband, she being the innocent and he the guilty party, she is 
 still entitled to dower in lands of which he was seised prior to the 
 divorce. A divorce or separation, a mensa et thoro, does not defeat 
 the right to dower in lands of the husband whereof he was seised 
 before the granting of the decree. ( Wait v. Wait, supra.) 
 
 There are several modes in which the right to dower may be barred. 
 The joining of the wife in the conveyance of her husband of his 
 lands is not strictly a bar, but prevents the estate in dower from 
 attaching in the wife. It operates as a release of her inchoate right 
 of dower which the statute authorizes her to execute. 
 
 Dower may be barred by a jointure. In this state it is enacted 
 that whenever an estate in lands shall be conveyed to a person and 
 his intended wife, or to such intended wife alone, or to any person 
 in trust, for such person and his intended wife, or in trust for such 
 •wife alone, for the purpose of creating a jointure for such intended 
 wife, and with her assent, such jointure shall be a bar to any 
 right or claim of dower of such wife, in any lands of the husband. 
 (1 R. S. 741, § 9.) The assent of the wife to such jointure must be 
 evidenced, if she be of full age, by her becoming a party to the 
 conveyance by which it shall be settled ; if she be an infant, by her 
 joining with her father or guardian in such conveyance. {Id. § 10. 
 McCartee v. Teller, 2 Paige, 559.) 
 
 Under the two maxims of the common law, namely, that no right 
 could be barred until it had accrued, and that no title to a freehold 
 estate could be barred by a collateral satisfaction, it was found im- 
 possible to bar a woman of dower by any assurance of lands either 
 before or during the marriage. This led to the insertion in the 
 statutes of uses of a suitable provision for this purpose and which 
 is the origin of the modern jointure, which Lord Coke defines to 
 be a competent livelihood of freehold for the wife, of lands or ten-
 
 DOWER— JOINTURE. 67 
 
 ements, &c. to take effect presently in possession, after the decease 
 of her husband, for the life of the wife at the least, if she herself be 
 not the cause of its determination or forfeiture. (1 Inst. 37 a. 
 1 Cruise's Dig. 213, Greenl. ed.) 
 
 In the case of Tinney v. Tinney, (3 Atldns, 8,) a sum of money 
 secured by bond to the intended wife, before the marriage, was held 
 to be a bar to dower. And in a case published by Mr. Cox, where 
 the intended husband gave a bond to the mother of the intended 
 wife, conditioned that he or his heirs would settle £500 a year in 
 land on her, in satisfaction of dower ; Sir T. Clarke, M. R. held it a 
 good jointure. From which it appears that the courts of equity now 
 consider any provision which a woman accepts before marriage in 
 satisfaction of dower, to be a good jointure. (1 Cruise's Dig. 216, 
 Ch'eetil. ed.) 
 
 The statute being in contradiction to the common law, was always 
 contsrued strictly, and Lord Coke laid it down that the estate lim- 
 ited to the woman would not be deemed a good jointure and a bar 
 to dower, unless it was made to commence and take effect immedi- 
 ately on the death of the husband ; that it be for the life of the wife 
 at the least ; that it be limited to the wife herself, and not to any 
 other in trust for her ; that it be made in satisftiction of the wife's 
 whole dower ; that it be expressed or averred to be in satisftiction of 
 her whole dower ; and that it be made before marriage. There were 
 other estates limited to a wife which were good jointures within the 
 statute, provided she accepted them after the death of the husband. 
 (1 Cruise's Dig. 215, 217, Greenl. ed.) 
 
 The New York statute is an improvement of the statute of uses 
 in pointing out the mode in which the assent of the intended wife 
 is to be manifested, and in providing suitable guards for the protec- 
 tion of infants. It also allows it to be made to another in trust for 
 the intended wife. 
 
 The sections already quoted refer to a jointure in an estate in 
 lands. The 11th and 12tli sections of the same act declare that any 
 pecuniary provision that shall be made for the benefit of the intend- 
 ed wife and in lieu of dower, shall if assented to by such intended 
 wife, as above provided, be a bar to any right or claim of dower of 
 such wife in all the lands of her husband. 
 
 Also, if before her coverture, but without her assent, or if, after 
 her coverture, lands shall be given or assured for the jointure of a
 
 68 DOWER— HOW BARRED. 
 
 wife, or a pecuniary provision be made for her in lieu of dower, she 
 shall make her election whether she will take such jointure or pe- 
 cuniary provision, or whether she will be endowed of the lands of 
 her husband, but she shall not be entitled to both. (1 B. S. 741^ 
 §§ 11, 12.) [See Appendix.] 
 
 Our statute on this subject was derived from the 27th Henry 8th, 
 ch. 10, § 6, with some modifications. Under the English statutes 
 there were said to be two kinds of jointures within its provisions. 
 One which prevented the dower from accruing; another, which 
 when accepted but not before, becomes a bar to dower. (1 Cruise, 
 218, Greenl. ed.) 
 
 The question how far a testamentary provisiou in favor of the 
 wife will bar her claim to dower, has often been the subject of ju- 
 dicial exposition. In Bull and wife v. Cliurch, (5 Hill, 206,) the 
 testator, by his will, devised all his property, real and personal, to 
 his wife during her natural life, or as long as she should remain his 
 widoio. After her death, or if she should marry again, he gave all 
 his property, real and personal, to his three sons. On the death of 
 the husband the wife took possession and occupied the property for 
 several years and then married the plaintiff. The question was wheth- 
 er her acceptance was a collateral satisfaction of her dower. The 
 court held that it was not. Dower, it was said, is a legal right over 
 which the husband has no direct control. It was admitted that he 
 might offer something else in lieu of it, which if accepted, would 
 be a bar. 
 
 The general principle was stated to be that a testamentary pro- 
 vision for the wife is deemed a gratuity or a benevolence, which 
 she may take in addition to her dower, unless the testator has 
 plainly manifested a different intention, as by saying that the gift 
 is in lieu or bar of dower. Express words will not, however, be 
 necessary, if the claim of dower is so utterly inconsistent with the 
 terras of the will, that the widow cannot have both gift and dower 
 without breaking up the testator's plan of disposing of his estate. 
 In such a case she may be put to her election. This case was af- 
 firmed by the court of errors. The chancellor in delivering their 
 judgment said that the right of dower being a legal right, and fa- 
 vored by the courts, cannot be barred by a testamentary provision 
 in her favor, in the nature of a jointure, so as to put her to her elec- 
 tion, unless the testator declares the same to be in lieu of dower,
 
 DOWER— ELECTION. 69 
 
 either in express words or by necessary implication. After referring 
 to Fuller v. Yates, (8 Paige, 325,) and Sandford v. Jackson, (10 
 id. 266,) he stated the settled rule of law to be, that to compel 
 . the widow to elect between the dower and a provision made for her 
 in the will, where the testator had not in terms declared his inten- 
 tion on the subject, it was not sufficient that the will rendered it 
 doubtful whether he intended that she should have her dower in 
 addition to that provision ; but that to deprive her of dower the 
 terms and provisions of the will must be totally inconsistent with 
 her claim of dower in the property in which it is claimed ; so that 
 the intention of the testator in relation to some part of the property 
 devised to others would be defeated if such claim was allowed. 
 {Church V. Bull and toife, 2 Denio, 430.) 
 
 The intention of the testator in such cases is to be gathered 
 from the will itself, and not from his oral declarations, or other 
 extrinsic acts. 
 
 When the testamentary provision in favor of the widow is not 
 stated to be in lieu of dower, and is not inconsistent with her claim, 
 and is of shorter continuance than her estate of dower and is 
 charged with a burden, indefinite in its nature and extent, no im- 
 plication can be raised against the validity of her claim. (Lasher 
 V. Lasher, 13 Barb. 106. Leonard v. Steele, 4 id. 20.) 
 
 Courts of law as well as courts of equity hold the widow to elect 
 between her dower and a legacy given in lieu of it. ( Van Orden v. 
 Van Orden, 10 John. 30. Kennedy v. dlills, 13 Wend. 553.) 
 But to constitute a case for election under the statute, the provision 
 in lieu of dower must be one in which she is to have some beneficial 
 interest. A mere power in trust for the benefit of others is not suffi- 
 cient, though the interest of the cestui que trust may be made de- 
 pendent upon her election to take a provision in lieu of dower. 
 {Eaioley v. James, 5 Paige, 318.) 
 
 The interest of a mortgagee before foreclosure, though the mort- 
 gage be in fee, is not such a seisin as to entitle the wife of the mort- 
 gagee to dower therein, unless he acquires an absolute estate therein 
 during the marriage. (1 R. S. 741, § 7.) 
 
 In cases where the wife is entitled to an election under the 12tli 
 and 13th sections of the statute before cited, (1 B. S. 741,) it is de- 
 clared that she shall be deemed to have elected to take her jointure, 
 devise or pecuniary provision, unless within one year after the death 
 of her husband she shall enter on the lands to be assigned to her for 
 
 /
 
 70 DOWER, WHEN FORFEITED BY DIVORCE. 
 
 her dower, or commence proceedings for the recovery or assignment 
 thereof. {Id. § 14.) 
 
 With regard to the forfeiture of dower it is enacted that, in case 
 of a divorce, dissolving the marriage contract, for the misconduct of 
 the wife, she shall not be endowed. (1 R. S. 745, § 8.) The stat- 
 ute is indefinite as to the nature of the misconduct that shall work 
 out that consequence. If we construe it with the provision relative 
 to divorces, it probably means the adultery of the wife, established 
 and declared in an action by the husband for a divorce for such adul- 
 tery. Such a divorce, it has been seen, does not avoid the marriage 
 from the beginning, and therefore, but for this statute, would not im- 
 pair her claim to dower. (2 R. S. 146, § 48. Wait v. Wait, 4 
 Coinst. 95.) It is perhaps unfortunate that the particular miscon- 
 duct has not been designated. 
 
 In Reynolds v. Reynolds, (24 Wend. 193,) the supreme court de- 
 cided in 1840, that since the revision of 1830, when a husband dies, 
 his widow is entitled to dower in the lands whereof he was seised, 
 notwithstanding that previous to 1830, for many years she lived in 
 open adultery away from him, if a divorce was not obtained. Had 
 the husband died previous to 1830, she would have been barred un- 
 der the former act concerning dower, (1 R. L. 5^,) passed in 1787, 
 notwithstanding a divorce had not been obtained ; but that act 
 having been repealed, the widow, by the revised statutes, is not bar- 
 red, unless the marriage contract has been dissolved by a divorce. 
 Previous to the death of the husband, the wife had no right, inter- 
 est or estate in the lands of her husband which could be forfeited by 
 the adultery, and therefore the act of 1787 had no operation in bar- 
 ring her dower. 
 
 As to elopement, this was no bar of dower at the common law, 
 though a divorce were sued and obtained for the adultery ; but the 
 statute of Westminster, 2d ch. 34, re-enacted in this state in 1787, 
 (1 R. L. 58, § 7,) expressly provides that in such a case the wife 
 shall lose her dower ; and though she did not go away voluntarily, 
 but was taken against her will, yet, if after she consented and re- 
 mained with the adultei'er, she lost her dower ; for the remaining 
 with him without reconciliation was the bar of dower, and not the 
 manner of going away. {Bacon's Ahr. tit. Dower, F. 2 Inst. 435.) 
 The present law places the bar on the ground of adultery on the di- 
 vorce obtained for that cause.
 
 DOWER IN EQUITY. 71 
 
 If the wife forfeits her dower on a conviction for adultery in an 
 action brought by the husband for a divorce, it would seem just that 
 the same consequences should follow with respect to her jointure, or 
 any testamentary provision made in her favor in lieu of dower. It 
 is accordingly enacted that every jointure, devise, and every pecun- 
 iary provision in lieu of dower shall be forfeited by the woman for 
 whose benefit it shall be made, in the. same cases in which she would 
 forfeit her dower ; and upon such forfeiture, any estate so conveyed 
 for jointure, and every pecuniary provision so made, shall immedi- 
 ately vest in the person or his legal representatives, in whom they 
 would have vested on the determination of her interest therein, by 
 the death of such woman. (1 R. S. 742, § 15.) 
 
 We have hitherto been considering cases in which the husband 
 was seised of an estate in fee simple absolute. But the wife is enti- 
 tled to dower where the husband was seised of a defeasible or condi- 
 tional estate of freehold of inheritance. If land be granted to a man 
 and his heirs until the happening of a future event, the widow is en- 
 titled to dower therein on surviving her husband, but her dower will 
 be defeated on the happening of the event upon which the estate is 
 limited. Her dower is likewise liable to be defeated by any claim 
 or incumbrance overreaching his title, and by which his estate might 
 be destroyed. 
 
 There is also another class of cases in which courts of equity will 
 uphold the claim to dower, which could not be reached by the strict 
 rules of the common law. It is a maxim of equity that money 
 agreed to be turned into land is to be considered as land. What 
 has been lawfully agreed to be done is, in that court, treated as 
 done. Hence in cases of that nature the widow would be entitled, 
 in a court of equity, to the same interest in the money, that would 
 belong to her in the land, if the conversion of the fund had actually 
 taken place. The widow is now dowable of land which the husband 
 had fully paid for, but of which he had received no conveyance. 
 {Haidey v. James, 5 Paige, 318, 453.) So she is dowable of land 
 for which he had paid, and the deed of which had been taken in the 
 name of another. {Id; S. C. 16 Wend 61.) 
 
 We have seen by the definition of the estate in dower, that the 
 wife is entitled to be endowed of all the lands whereof the husband 
 was seised of a freehold estate of inheritance at any time during the
 
 72 DOWER— AFTER ALIEX^.TION BY HUSBAND. 
 
 coverture. It is not essential that his seisin should have continued 
 till his death, although it is necessary that the marriage should 
 have remained undissolved until that time. 
 
 To protect the rights of the wife in this respect, which have always 
 been favored in law, it is wisely declared that no act, deed or convey- 
 ance, executed or performed by the husband without the assent of 
 his wife, evidenced by her acknowledgment thereof, in the manner 
 required by law to pass the estates of married women, and no judg- 
 ment or decree confessed or recovered against him, and no laches, 
 default, covin or crime of the husband shall prejudice the right of 
 his wife to her dower or jointure, or preclude her from the recovery 
 thereof, if otherwise entitled thereto. (1 B. S. 742, § 16.) 
 
 It would, however, be manifestly unjust in case of the alienation 
 of the lands by the husband during the coverture to allow the wife, 
 after the death of her husband, to recover dower upon the same prin- 
 ciples as if her husband had died seised. The effect of such recov- 
 ery would be to give her the avails of the labors of the alienee of her 
 husband, who may have been a purchaser in good faith, and whose 
 equity is stronger than her's. The policy of such claim would be of 
 injurious tendency, as it would repress the spirit of improvement. 
 Accordingly the ancient common law required the widow to take 
 her dower in the land according to the value at the time of the 
 alienation. {Hum^jhrey v. Phinney, 2 John. 484.) The act of 1806, 
 {vol. 4, 616,) the principles of which are incorporated into the re- 
 vised statutes of 1830, (2 R. S. 490, § 13 ; 1 id. 743, § 25,) was 
 not introductory of any new rule, but was declaratory only of the 
 former law. 
 
 The same rule prevails whether the proceedings to obtain the 
 assignment of dower be conducted in a court of equity or a court of 
 law, or in the court of the surrogate of the county. Chancellor Kent 
 examined the subject on several occasions, and the result of his in- 
 quiries was, that where the land was aliened by the husband, the 
 widow's dower was to be taken according to the value of the land 
 at the time of alienation. If the husband mortgages the land, 
 but continues in possession, and afterwards releases the equity of 
 redemption to the mortgagee, the time of the release of the equity 
 of redemption is to be deemed the period of alienation, at which the 
 value is to be taken, and which is to be estimated, without regard 
 to the subsequent improvements made by the purchaser. (Hale v. 
 James, 6 John. Oh. 258. Humphrey v. Phinney, supra. Dorchester
 
 DOWER— BEFOEE ASSIGNMENT. 73 
 
 V. Coventry, 11 John. 510. Shaiu v. White, 13 id. 179. Do?/ v. 
 Basset, 15 id. 21. ' Walker v. Schuyler, 10 Wend. 480. Coates v. 
 Cheever, 1 Cowen, 460.) 
 
 The statute is sufficiently clear to exclude the widow from the per- 
 manent improvements placed on the land by the heirs or the alienee 
 of the husband. (1 R. S. 743.) But whether she is entitled to the 
 enhanced value arising from the general advancement of the coun- 
 try, or from collateral circumstances, is not distinctly declared. Her 
 claim to the benefit arising from such increased value, not occasioned 
 by the labors or expenditures of the partj', is as strong as the cor- 
 responding principle which would cast upon her the risk of a dimi- 
 nution of that value by any cause. But this question seems to have 
 been settled otherwise by the courts in this state. {Dorchester v. 
 Coventry, supra. Shaw v. White, stqn-a.) They confine the widow 
 strictly to the value at the time of alienation by the husband, thus 
 giving the alienee the benefit resulting from the general increase 
 of value of the land. 
 
 With regard to the rights of the widow on the death of her hus- 
 band, the law provides that she may tarry in the chief house of her 
 husband forty days after his death, whether her dower be sooner as- 
 signed to her or not, without being liable to any rent for the same, 
 and in the mean time she is to have her reasonable sustenance out 
 of the estate of her husband. (1 B. S. 742, § 17.) This is called 
 the widow's quarantine, and was first given by magna charta. {Mag- 
 na Charta, ch. 7.) It is necessarily implied that she is not liable 
 to pay rent, but is to be supported gratuitously during that period. 
 
 Before the assignment of her dower the widow has a mere right, 
 and she can convey no interest in the land until assignment. {Sig- 
 lar V. Van Riper, 10 Wend. 414. Green v. Putnam, 1 Barh. 500.) 
 The law casts the freehold on the heir upon the death of the ancestor, 
 and it is his duty to make the assignment. The moment the widow 
 is endowed her seisin relates back to the death of the husband, and 
 is considered a continuance of his seisin, so that there never was any 
 seisin in the heir. {Per Walioorth, Ch. Dunham v. Oshorn, 1 Paige, 
 636. Safford v. Safford, 7 id. 260.) Eegularly, no person can 
 assign dower who has not a freehold estate in the land. (1 Cruise's 
 Dig. 190, Greenl. ed.) And the assignment by an infant is good, 
 subject only to be corrected, if excessive, by a subsequent admeas- 
 urement. {Id.) 
 
 It has been doubted whether by the law prior to the revised stat-
 
 74 DOWER— REMEDIES FOR. 
 
 utes of 1830, tliere was any limitation to the action of dower, 
 and whether the widow might not at any time, however remote, 
 assert her right by an action. {Sayre v. Wisner, 8 Wend. 661.) 
 But the existing law requires that she shall demand her dower with- 
 in twenty years after the death of her husband ; but if at the time 
 of such death she be under the age of twenty-one years, or insane, 
 or imprisoned on a criminal charge or conviction, the time during 
 which such disability continues shall not form any part of the said 
 term of twenty years. (1 B. S. 742, § 18. Sayre v. Wisner, 
 supra. Ward v. Kitts, 12 Wend. 139.) 
 
 The mode of assigning dower when the nature of the estate will 
 admit of it, is by metes and bounds ; but when no division can be 
 made, the widow must be endowed in a special, certain manner. 
 Of a mill, she cannot be endowed by metes and bounds, nor in 
 common with the heir, but she may be endowed of the third toll 
 dish, or of the entire mill for a certain time, (1 Cruise's Dig. 
 Greenl. ed. 190. Coates v. Gheever, 1 Cowen, 476, per Savage, Ch. 
 J. Co. Lit. 32 a.) 
 
 The remedies which the law gives to the widow for her dower are 
 more comprehensive and efficacious than the old form of writ of dower 
 unde nihil hahet. Since the code abolishing all former remedies, 
 and substituting a civil action in lieu thereof, and conferring upon the 
 court jurisdiction as well in equity as at law, the widow can bring 
 her action according to the nature of the case for equitable or legal 
 relief It was well settled «nder the former practice, that though 
 the widow's remedy for dower was prima facie at law, yet when 
 the title was admitted, but impediments were thrown in the way of 
 her proceedings, a court of equity would sustain her action for 
 dower. (Stvaine v. Ferine, 5 JoJm. Ch. 482.) There were cases, in- 
 deed, where her remedy was confined to courts of equity. Thus 
 though she was entitled to dower in an equity of redemption, she 
 could not maintain ejectment for it against the mortgagee or his 
 assigns in possession, if the moitgage be forfeited, but must resort 
 to a court of equity. {Coop)er v. Whittiey, 3 Hill, 95.). 
 
 So also, when the premises were in the possession of a termor 
 whose term had nut expired, aa action of dower at law could not 
 be maintained, as it could only be brought against the owner of the 
 freehold. But the remedy in equity was undoubted. {Badgley v. 
 Bruce, 4 Paige, 98.)
 
 DOWER— DAMAGES. 75 
 
 Under the existing practice, the widow, whose dower has not 
 been assigned to her within forty days after the decease of her hus- 
 band, may apply by petition for the admeasurement of her dower, 
 to the supreme court, or to the county court of the county in which 
 the lands subject to dower lie ; or to the surrogate of the said coun- 
 ty; specifying therein the lands in which she claims dower. A 
 copy of the petition must be served upon the owners who claim a 
 freehold estate in the lands in which dower is claimed, whether tliey 
 be the heirs of the husband, or otherwise, or upon their guardians, 
 if the heirs or owners be minors. The statute points out the mode 
 of seisin, and the proceedings to be taken, and they will be found 
 described in the books treating of the practice of the respective 
 courts. {See Willard's Eq. Jur. 693 et seq. WiUard's Ex'rs, 
 464 et seq. Crary's Special Proceedings, 1.) 
 
 In an action to recover dower in lands of which the husband died 
 seised the widow is entitled to damages for the Avithholding of her 
 dower. (1 R S. 142, § 19.) The rule of damages prescribed by 
 the statute is one third part of the annual value of the mesne profits 
 of the lands in which her dower is secured, to be estimated in a 
 suit against the heirs of her husband, from the time of his death ; 
 and in suits against other persons from the time of her demanding 
 her dower of such persons ; and in all cases to be estimated to th'3 
 time of the recovering judgment for such damages, but not to ex- 
 ceed six years in the whole in any one case. (1 R. S. *14Q, § 20.) 
 
 Such damages shall not be estimated -for the use of any perma- 
 nent improvements made after the death of her husband, by his 
 heirs or by any other person claiming title to such lands. (1 B. S. 
 743, § 21.) 
 
 In case the heir of the husband shall have aliened the lands, and 
 the widow shall recover her dower therein, she is entitled to recover 
 of such heir, her damages for withholding such dower from the time 
 of the death of the husband to the time of the alienation by the 
 heir, not exceeding six years in the whole. And the amount recov- 
 ered from such heirs shall be deducted from the amount she would 
 otherwise be entitled to recover from such grantee, and also any 
 amount recovered as damages from such grantee shall be deducted 
 from the sum she would otherwise be entitled to recover from such 
 heir. {Id. § 22.)
 
 76 INCIDENTS OF LIFE ESTATES. 
 
 Section IV. 
 Of the incidents of estates for life. 
 
 We shall now treat, in a separate section, of certain incidents of 
 estates for life, the consideration of which we have, for the sake of 
 brevity, postponed until this time. These are, for the most part, 
 the same, whether the estate for life be conventional or created by 
 the law. 
 
 (1.) An estate for life is subject to merge in the inheritance. 
 Therefore, if the tenant for life surrender to him in reversion, or if 
 the former acquires the absolute property, the life estate in either 
 case becomes merged in the fee simple. (1 Inst. 338 h. 1 Cruise's 
 Dig. 101, Greenl. ed.) 
 
 (2.) Tenant for life may make leases of a less estate than his own ; 
 or may assign his entire estate ; nor does he forfeit his estate by 
 leasing in fee. {Jackson v. Mancius, 2 Wend. 357. Grout v. Town- 
 send, 2 Hill, 558.) At common law a tenant for life forfeited his 
 estate when he conveyed a fee by feoffment with livery of seisin, or 
 by a fine and recovery. But these conveyances are now abolished in 
 this state, and by statute no person can convey a greater estate than 
 he has, and a grant or conveyance of a greater estate operates only 
 to pass all the estate which the grantor had in the lands, and which 
 he could lawfully convey. (1 R. S. 739, §§ 143, 145.) 
 
 (3.) A tenant for life is entitled to estovers. This is the allow- 
 ance for necessary wood for fuel, and for fencing and repairing build- 
 ings, where it can be done without injury to the inheritance, and 
 where the tenant is not restrained by covenants. It is not abso- 
 lutely necessary that the wood should be burned on the premises. 
 {Gardiner v. Bering, 1 Paige, 573.) He has no right to cut down 
 timber which serves for ornament or shelter, or which is not fit to be 
 felled. For the purpose of fuel he is bound to take the dry, perish- 
 ing or fallen wood. He must do as little injury to the inheritance 
 as possible, consistent with his right of enjoyment. If, however, the 
 premises demised be wild and uncultivated land, wholly covered 
 with wood and timber, the lessee may fell part of the wood and tim- 
 ber, so as to fit the land for cultivation, without being liable to 
 waste ; but he cannot cut down all the wood and timber so as per- 
 manently to injure the inheritance. And to what extent the wood
 
 EMBLEMENTS. 77 
 
 and timber on such land may be cut down, without waste, is, it 
 seems, a question of fact for the jury to decide, under the direction 
 of the court, {Jackson v. Brownson, 7 John. 227.) 
 
 It is usual and proper in conventional estates for life, to guard by 
 proper covenants the rights of the reversioner, and to prescribe the 
 duties of the tenant. 
 
 (4.) Tenant for life is entitled to emblements. By this is under- 
 stood those growing crops to which the executors of tenant for life 
 are entitled in preference to the reversioner. It extends only to such 
 crops as yield an annual profit. It does not extend to grass or fruits 
 which are the natural growth of the soil. Upon this principle the 
 enactment is based that the widow may bequeath the crop in the 
 ground of the land held by her in dower. (1 R. S. 743, § 25.) If 
 she fails to bequeath them, they go to her executors or administra- 
 tors, to be distributed with her personal estate. 
 
 The doctrine of emblements is founded on the clearest equity. 
 {Stewart v. Doughty, 9 John. 112.) As the termination of the 
 estate depends on the act of God, or the law, public policy requires 
 that the inducement of the tenant to cultivate the soil should not be 
 weakened by the fear of losing the fruits of his labor. It is not 
 applicable where the estate is determined by the act of the tenant 
 himself, or where the termination of the estate is fixed and made 
 certain by the contract of the parties. In leases for years the rights 
 of the parties are generally, and always should be, regulated by proper 
 stipulations or covenants. In such a case the tenant knows before- 
 hand to whom the outgoing crop belongs. 
 
 The rule with respect to emblements extends to other things besides 
 grain or corn. It applies to roots, as when a man plants hops of old 
 roots, for they are such things as grow by annual manurance and in- 
 dustry of the owner. (2 Crahb's Laio of Real Estate, 52, § 1047.) 
 But it does not apply to those things which proceed annually of 
 themselves without the labor of man. Therefore grass and trees do 
 not fall within the principle. [See lease, in Appendix.] 
 
 (5.) If the estate be charged with an incumbrance, tenant for life 
 is bound to keep down the interest, and a widow being tenant for 
 life of one third of the premises is to contribute one third of the 
 interest. {Sioaine v. Ferine, 5 John. 482.) Such tenant is not 
 bound to pay off the incumbrance, and if compelled to do so, is en-
 
 78 RIGHTS OF TENANT FOR LIFE. 
 
 titled to be reimbursed out of the estate chargeable with it. The 
 rule is intended to divide the burden ratably among all the owners 
 of the estate in proportion to their interest therein. 
 
 (6.) The tenant for life has a 'prima facie right to the custody of 
 the title deeds of the estate, in order the more perfectly to enjoy his 
 right to the possession of the estate. (1 Wharton on Convetj. 45.) 
 
 (7.) A tenant for life cannot dig for gravel, lime, clay, brick, earth, 
 stone, or the like, unless for the reparation of buildings or manuring 
 of the land. Nor can he open a new mine ; but he may dig and 
 take the profits of mines that are open. (1 Cruise's Dig. 119, Greenl. 
 ed. 1 Inst 53 h. Coates v. Cheever, 1 Cotven, 474, per Wood- 
 worth, J.) In Clavering v. Clavering, (2 P. Wms. 388,) Lord 
 Chancellor King held that tenant for life of coal mines, already 
 worked, might open new pits or shafts to follow the same vein ; and 
 he observed that otherwise the working in the same mines. would be 
 impracticable, because the miners would be choaked for want of air, 
 if new holes should hot be continually opened to let in the air to 
 them. 
 
 Nor can a tenant for life cut wood on the premises to burn bricks 
 and use the soil for making them. {Livingston v. Reijnolds, 26 
 Wend. 115. S. a 2 Hill, 157.) 
 
 Though the doctrine of waste, as understood in England, is not 
 applicable to a new and unsettled country ; and though when the 
 whole of a farm, when leased, is in a wild and uncultivated state, 
 and for the use of it the lessee agrees to pay rent, still the parties 
 will be held to haye intended that the lessee should be at liberty to 
 fell part of the timber in order to fit the land for cultivation. But 
 this right will not authorize the lessee to destroy all the timber, and 
 thereby irreparably injure the premises, or permanently diminish their 
 value. (Kidd v. Dennison, 6 Barb. 9.) 
 
 In England the conversion of one kind of land into another, as 
 the changing of meadow to arable, is waste ; because it not only 
 changes the course of husbandry, but also the evidence of the estate. 
 So, also, the plowing up, burning and sowing of clover land is waste. 
 (1 Cruise, Greenl. ed. 120.) But it is believed a different rule pre- 
 vails here, and that such acts will not be treated as waste unless they 
 are clear departures from the course of good husbandry in the par-
 
 RIGHTS OF TENANT AS TO WASTE. 79 
 
 ticular region of country where they occur, {Livingston v. i?e?/- 
 nolds, 26 Wend. 122, per Bradish, President of the Senate.) 
 
 Permissive loaste is when the tenant suffers buildings on an estate 
 to decay. But if a house be ruinous when it comes into the pos- 
 session of the tenant for life, he is not punishable for suffering it to 
 fall down ; for in that case he is not bound by law to repair it. But 
 as the law favors the maintenance of houses, if he cuts down timber 
 and therewith repairs it, he can justify. (1 Inst. 539, 54 h.) 
 
 But it is not absolutely indispensable that the tenant for life 
 should use the same timber which he cuts down on the estate for the 
 purpose of making repairs. If he sells the timber so cut down and 
 purchases boards with the proceeds for such repairs, it is a substan- 
 tial compliance with the law, provided it be proved to be the most 
 economical mode of making the repairs. (Loomis v. Wilbur, 5 Ma- 
 son, 13.) 
 
 In Massachusetts it has been held that a tenant for life is amena- 
 ble for waste committed by a trespasser. This is upon the principle 
 that the law gives him an action of trespass, and therefore he is 
 bound so see that trespassers do not injure the estate. {Fay v. Brew- 
 er, 3 Pick. 203, 205.) 
 
 Under this head oi permissive waste, the tenant for life, at com- 
 mon law, was held answerable, if the house or other building was 
 destroyed by fire through his carelessness or negligence. The tenant, 
 in such case, was required to rebuild, at his own expense, and within 
 a convenient time. {Go. Litt. 53 h.) 
 
 No person was entitled, at common law, to an action of waste 
 asrainst a tenant for life, but he who had the immediate estate of' 
 inheritance, expectant on the determination of the life estate. But 
 the revised statutes have provided that a person seised of an estate 
 in remainder or reversion, may maintain an action of waste or tres- 
 pass for any injury done to the inheritance, notwithstanding any 
 intervening estate for life or years. (1 R. S. 750, § 8.) 
 
 In like manner, if one joint tenant or tenant in common shall 
 commit waste on the land held in joint tenancy or in common, he is 
 made subject to an action of waste at the suit of his co-tenant or 
 co-tenants. (2 B. S. 334, § 3.) And an heir, whether within age 
 or of full age, may maintain an action for waste done in the time of 
 his ancestor, as well as in his own time. (Id. 334, § 4.)
 
 80 ESTATES LESS THAN FREEHOLD. 
 
 CHAPTEE III. 
 
 OF ESTATES LESS THAN FKEEHOLD. 
 
 We have hitherto treated of estates in fee simple, and of estates 
 of freehold. We now prgceed to another class, that of estates less 
 than freehold. These are, 1. Estates for years ; 2. Estates at will ; 
 3. Tenancies from year to year ; 4. Estates at sufferance. All tho 
 estates less than freehold may be arranged under one or the other of 
 these heads. 
 
 Section I. 
 Of estates for years. 
 
 The description of an estate for years, given by Littleton, 400 
 years ago, is applicable to that estate at the present day. " Tenant 
 for term of years," says he in § 58, " is where a man letteth lands 
 or tenements to another for term of certain years, after the number 
 of years that is accorded between the lessor and lessee. And when 
 the lessee entereth by force of the lease, then is he tenant for term 
 of years." It is not essential to the estate that its duration should 
 be limited to one or more years. An agreement for the possession 
 of lands for half a year, a quarter of a year, a month or a week or 
 any less time, is treated as an estate for years, that being the short- 
 est period that the law takes notice of. {Litt. % 58, 67.) 
 
 This estate is frequently called a term; and the party who holds it a 
 termor. The expression term signifies not merely the period of time 
 during which the estate is to continue, but also the estate or interest 
 which passes from that period. The estate must have a certain be- 
 ginning and a certain end, which must be certain when the estate 
 takes effect in interest or possession. (1 Inst. 45 b.) At common 
 law there was a tenure between the lessor and lessee to which fealty 
 was incident ; and there was also a privity of estate between them. 
 (Litt. § 132.) 
 
 This estate is created by act of the parties and not by the act of 
 the law. It is usually created by a written lease, though not always 
 so. A parol lease for one year, or a less period, is valid ; if it be for 
 a longer term than one year, it must be created by a deed or instru- 
 ment in writing subscribed by the party creating it, or by his lawful
 
 ESTATES FOR YEARS. 81 
 
 agent thereunto authorized by writing. (2 R. S. 134, § 6. 3 id. 
 220, 5th ed.) [See various forms of Lease, in the Appendix.] 
 
 The computation of time is regulated in this state by statute, and 
 is according to the Gregorian or new style. (2 R. S. 605.) To pre- 
 serve a uniformity in business transactions it is provided, that when- 
 ever the term "year" or "years" is used in any statute, deed, 
 verbal or written contract, or any public or private instrument what- 
 ever, the year intended shall be taken to consist of three hundred 
 and sixty-five days ; a half a year of one hundred and eighty-two 
 days ; and a quarter of a year of ninety-one days ; and the added 
 day of leap year, and the day immediately preceding, if they shall 
 occur in any period so to be computed, are to be reckoned together 
 as one day. Whenever the term " month" or " months" is used in 
 any statute, act, deed, verbal or written contract, or any public or 
 private instrument whatever, it shall be construed to mean a calen- 
 dar and not a lunar month, unless otherwise expressed. (2R. S. 606, 
 §§ 3, 4.) 
 
 If a lease he from a particular day, that day is excluded from the 
 term. ( Wilcox v. Wood, 9 Wend. 346.) The legislature has adopt- 
 ed the same rule of excluding the first, and including the last day, 
 when the time within which an act is to be done is prescribed. 
 {Code of Procedure, 407. Ex parte Dean, 2 Cowen, 605, and note.) 
 The courts have adopted the same rules in regulating their practice, 
 as in the construction of statutes and contracts ; thus excluding in 
 all cases the first day, and including the last, unless the form of ex- 
 pression indicates a different meaning. 
 
 The term " seisin" is not applicable to an estate for years, for the 
 reason that livery of seisin was not required on the creating of such 
 an estate. At common law the delivery of the lease for years did 
 not vest an estate in the lessee, but merely gave him a right to en- 
 ter on the land ; and until such entry, he was not possessed of the 
 term for years. He had merely what is called an inter esse termini, 
 which he might reduce to possession at any time by an actual entry. 
 By the operation of the statute of uses, a lease under seal expressing 
 a consideration, creates an estate without an actual entry. 
 
 An estate for years may be created to commence at a future day ; 
 
 though a freehold estate could not be so created independently of 
 
 the statute, which will hereafter bo considered. An estate for years 
 
 is denominated a chattel real. Having the quality of immobility it 
 
 Will.— 6
 
 82 INCIDENTS OP ESTATES FOR YEARS. 
 
 savors of tlie realty ; and not being indeterminate in its duration, 
 it ranks with chattels. The estate goes to the executors or admin- 
 istrators of its owner on his death, and not to his heirs at law. 
 (2 li. S. 82, 83.) This legal succession cannot be controlled by any 
 words of limitation in the conveyance. An estate for years limited 
 in the lease to the heirs, &c. will nevertheless go to the executors or 
 administrators. 
 
 An estate of freeliold cannot be created out of an estate for years. 
 If a life estate be granted out of a long term for years, it is a legal 
 charge so long as the term lasts ; but it is repugnant to have a free- 
 hold out of a term for years. {Butts' case, 7 Gohe, 23 a, 24 6. 
 Saffery v. Alder son, 1 Adol. & Ellis, 191.) 
 
 A lease may be assigned either by the lessor or the lessee. The 
 lessee may, before entry, while his estate is a mere inter esse termini, 
 assign it over. (1 Cruise's Dig. 245, Greenl. ed.) No greater es- 
 tate can be passed by the grantor than he himself possessed at the 
 time of the grant, but every grant is conclusive against the grantor 
 or his heirs claiming from him by descent. (1 H. S. 739, § 143.) 
 Should the tenant assume to convey a greater estate than he had in 
 the premises, it will not work a forfeiture of his estate, but will pass 
 to the grantee of the estate all the title, estate, or interest, which 
 such tenant could lawfully convey. (Id. § 145.) 
 
 The attornment of the tenant to a stranger is absolutely void. 
 (1 B. S. 744, § 3.) But when the reversioner assigns, the attorn- 
 ment of the tenant to his assignee is unnecessary. (1 id. 739, § 146.) 
 The landlord may sever the rent from the reversion and assign that 
 alone, or reserving to himself the rent, he may assign the reversion. 
 (Deinarest v. Willard, 8 Coiven, 206. Willard v, Tillman, 2 Hill, 
 274.) In general, it is well settled that the assignment of the re- 
 version, without restriction or exception, will carry to the assignee 
 the rent and all the covenants running with the land, the rent being 
 an incident of the reversion. ( Willard v. Tillman, supra.) 
 
 The incidents of an estate for years, where the tenant is unre- 
 strained by special covenants, are analogous to those of tenants for 
 life, which have already been considered. He is entitled to estovers, 
 like tenants for life. {See ante, p. 76.) He is punishable for waste. 
 He cannot, therefore, lawfully cut down timber trees, and is bound 
 to keep the houses and other buildings or fences in tenantable repair. 
 If the lease be of a farm for agricultural purposes, he is bound to
 
 EMBLEMENTS— FIXTURES. 83 
 
 cultivate the farm in a good husbandlike manner. {Middlebrooh v. 
 Corivin, 15 Wend. 170, 171.) But the lease almost invariably con- 
 tains covenants and stipulations which regulate the conduct of both 
 the parties, and specify the rights vi^hich the tenant shall enjoy, as 
 well as the obligations which he shall assume. 
 
 If the lease contain no provisions to the contrary, and there be a 
 covenant to pay rent, the tenant must still pay rent though the prem- 
 ises be destroyed by fire. {Foivler v. Botts, 6 Mass. R. 63. Bel- 
 four V. Weston, 1 D. &. E.-^ll.) Hallett v. Wylie, 3 John.^U.) 
 Every prudent conveyancer should insert in the lease a suitable pro- 
 vision against this contingency. [See Appendix.] 
 
 The right to emblements, we have seen, depends on the uncertain 
 termination of the estate. If the lease be for a certain number 'of 
 years, and it contains no covenants or stipulations on the subject, 
 the tenant is not entitled to emblements. The court, in Whitmarsh 
 V. Cutting, 10 John. 360, say that it w^as the folly of the tenant 
 to sow where he knew he could not reap. But where the determ- 
 ination of the estate depends on an uncertain event ; as where a 
 tenant for life lets the estate for a term of years, or where b term for 
 years is made determinable on the life of a particular person, the 
 tenant for years is entitled to emblements, in the same manner as a 
 tenant for life. A lease for years frequently contains a provision as 
 to the outgoing crop ; and should always do so, to avoid disputes 
 and to insure the continued cultivation of the soil. [See Ap- 
 pendix.] 
 
 The right to fixtures placed on the land by the tenant often be- 
 comes a subject of controversy at the close of the \erm. As between 
 landlord and tenant, the rule for considering the annexations of the 
 tenant as part of his personalty is more liberal than between grantor 
 and grantee. The subject was elaborately examined by Lord Ellen- 
 borough in Elwes v. 3Iaw, (3 East, 38.) The principle has been 
 adopted in this state and applied in numerous cases. Thus, it has 
 been held that the tenant may at any time remove from the premises 
 things affixed by him to the building, for the convenience of his trade, 
 as coppers &c. for distilling. (Eeynolds^v. Streeter, 5 Cowen, 323.) 
 So also, a cider mill and press, erected at his own expense, and for 
 his own use, by tenant from year to year, though fixed to the soil, 
 were held to be his personal property, and to be removable by him 
 at the end of his term ; and even though not taken till after the
 
 84 FIXTURE— RIGHT TO THE MANURE. 
 
 term, and though he was a trespasser for the entry, they were his. 
 (Holmes v. Tremper, 20 John, 29. Mott v. Palmer, 1 Comst. 570.) 
 So property, affixed to the freehold by the tenant for manufacturing 
 purposes, is held to belong to the tenant, and does not pass to the 
 grantee of the landlord. {Raymond v. White, 7 Cowen, 319.) 
 
 So engines and machinery, firmly affixed to a building by a tenant 
 for years for the carrying on of a business of a personal nature, are 
 the personal property of the tenant and removable at his will. If 
 destroyed by a third person by negligence, the tenant and not the 
 owner of the freehold can maintain an action for the damages. 
 {Cook V. The Champlain Ti^ansportation Co. 1 Denio, 91.) And 
 it seems that whether personal property is so annexed to the free- 
 hold, for the purposes of trade or manufactures, as to become realty 
 and go to the heir, rather than the executor, is a question of fact. 
 {Eovey v. Smith, 1 Barb. 372.) 
 
 Some kinds of fixtures and annexations are treated by the law, 
 independently of any covenant or agreement, as personal property 
 removable by the tenant. Those alluded to in the foregoing cases 
 are of that description. Others depend on the conventional arrange- 
 ments of the parties. Thus fences and trees are, in their own na- 
 ture, real estate to the same extent as houses and other structures 
 on the land. But they may, by the agreement between the parties, 
 be treated as the personal property of the tenant, and not as part 
 of the soil, the property of the reversioner. {3Iott v. Palmer, 
 1 Comst. 564. Herlakenden' s case, 4 Coke, 63 h.) 
 
 In Penton v. Rohart, (2 East, 90,) Lord Kenyon intimated that 
 gardeners and nurserymen may remove trees in the necessary course 
 of their trade, and he was disposed to extend the same rule to green- 
 houses, hot-houses &c. erected on the demised premises. But Lord 
 Ellenborough, in Ehoes v. 3Iaw, (3 East, 5Q,) while admitting the 
 rule as to gardeners and nurserymen, questioned it as to the owners 
 of green-houses and hot-houses. It is doubtless competent, by agree- 
 ment between the parties, to sever such erections from the freehold, 
 and thus allow the tenant to remove them like other fixtures for the 
 purposes of trade. Though it is believed that the suggestion of 
 Lord Kenyon would be generally concurred in, it is desirable to re- 
 move all doubts on the subject by a provision in the lease. 
 
 When a farm is let for agricultural purposes, and the lease con- 
 tains no stipulation on the subject, and there is no special custom 
 to the contrary, the manure made upon the farm does not belong to
 
 MAXURE— TEADE FIXTURES. 85 
 
 the tenant but to the farm. The tenant has, therefore, 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. {3Iiddlehrook 
 V. Corioin, 15 Wend. 171. Goodrich v. Jones, 2 Hill, 142.) 
 
 With regard to fencing materials on a farm which are temporarily 
 detached, without an intent to divert them to other uses, in the 
 absence of any agreement to the contrary, they are to be treated as 
 a part of the realty, in the same manner as if they had been left 
 standing. {Goodrich v. Jones, siqwa.) The same rule applies to 
 hop-poles, used necessarily in cultivating hops which were takea 
 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, 
 {Bishop V. Bishop, 1 Kern. 123.) Even as between grantor and 
 grantee, it seems that an article to be treated as a fixture need not 
 be constantly fastened to the realty. {Walker v. Sherman, 20 
 Wend. 655, per Coiven, J.) 
 
 The fixtures heretofore considered have been such as were erected 
 by the tenant himself for agricultural and mechanical purposes, or 
 for the benefit of trade. The right of the tenant to remove them 
 depends on the fact that they were placed on the premises by him- 
 self, for his own convenience, and with no intention to make them 
 a part of the freehold. The reasons on which the decisions are based 
 do not authorize a tenant to remove fixtures belonging to the prem- 
 ises at the time he received his lease. The moment such fixtures 
 are severed, the title to them vests in the landlord, and the tenant, 
 by his wrongful act forfeits all future interest in them. The removal 
 of such fixtures is as much waste as the cutting of timber by the 
 tenant, who has no special authority for the purpose. Such timber, 
 the moment it is cut, vests in the owner of the land, who may main- 
 tain an action to recover its value against any one in possession, 
 though a bona fide purchaser from the occupant. {Blooers v. Waite, 
 3 Wend. 104.) 
 
 There is still another class of fixtures not connected with trade 
 or for agricultural or mechanical purposes ; but which are afiixed to 
 the demised premises by the tenant for the purpose of ornament or 
 convenience. The question with regard to the right of the tenant 
 to remove these has been more favorably considered by the courts in 
 modern times than in the time of Lord Coke. " Many things," said 
 Lord Mansfield, in Laioton v. Salmon. (1 H. Black. 260, in notis,)
 
 86 FIXTURES— RIGHTS OF HEIRS— EXECUTORS. 
 
 " may now be taken away which could not be formerly, such as erec- 
 tions for carrying on any trade, marble chimney-pieces and the like, 
 when put up by the tenant." And Lord Ellenborough, in Elives v. 
 Menu, (3 East, 53,) after speaking of trade fixtures, says the indul- 
 gence in favor of the tenant for year during the term has been since 
 carried still further ; and he has been allowed to carry away any 
 matters of ornament, as ornamental marble, chimney pieces, pier 
 glasses, hangings, wainscot fixed only by screws, and the like. In 
 Lee V. Risden, (7 Taunt. 188-191,) Chief Justice Gibbs mentions 
 wainscots screwed to the wall, trees in a nursery ground, which when 
 severed are chattels, but standing are part of the freehold, certain 
 grates and the like, as fixtures which tenant for years may sever 
 during his term. 
 
 It has also been held that stoves, cooUng-co2opers, mash-tubs, 
 luater-tubs and blinds were removable as between landlord and tenant. 
 (Colegrove v. Bias Cantos, 1 Barn. & Ores. 77.) Some of these 
 articles were not merely matters of ornament but of general utility. 
 
 It can hardly be supposed that the mode of annexation, whether 
 with screws or otherwise, can be further material than as affordincr 
 some evidence of the intention with which the tenant made the an- 
 nexation at the time. 
 
 It has always been considered, from the earliest time, that the 
 tenant should make the removal, if he makes it at all, du7^ing the 
 continuance of the term. The omission to do so would afford strong 
 evidence of his intention, to relinquish to the reversioner his claim 
 to the annexed article. Moreover, after the expiration of the term 
 and the relinquishing of the possession, he could not enter to make 
 the removal, without being a trespasser. {Poole's case, 1 Salk. 368. 
 Ex parte Quincy, 1 AtJc. 477.) 
 
 This principle applies to every species of fixture, whether for trade, 
 manufacturing purposes, or for ornament or convenience. 
 
 The revised statutes of New York attempted to define with accu- 
 racy the relative rights of the heir and executor with respect to 
 fixtures, but they do not provide for the claims of other parties. 
 As between the heir and the executor it is enacted that things an- 
 nexed 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, go to the latter and must be inserted in the 
 inventory. (2 it. S. 82, § 6.) The mode of annexation, as w^hether 
 it is done by a screw or a nail, is not made the criterion. The arti-
 
 FIXTURES— STOVES PUT UP FOR USE. 87 
 
 cles to be treated as going to the executor in preference to the heir, 
 must he fixed into the wall so as to be essential to its support. It 
 was said by the chancellor, in House v. House, (10 Paige, 163,) that 
 it was the intention of the legislature, by the provision there inserted, 
 to put the executor or administrator upon the same footing as a 
 tenant with respect to the right to fixtures. But the chancellor 
 thought it was impossible to define, in a short sentence of three lines, 
 what was to be considered a part of the freehold itself, or what were 
 mere fixtures, or things annexed to the freehold for the purpose of 
 trade or manufactures. He thoufjht we must still so back to the 
 common law and the adjudged cases for the purpose of ascertaining 
 which is a substantial part of the freehold, and what is a mere fixture 
 or thing annexed to the freehold. In that case, he held that the 
 water wheels, mill stones, running gear and bolting apparatus of a 
 grist and flouring mill, and other fixtures of the same character, are 
 constituent parts of the mill, and descend to the heirs at law as real 
 property; and do not pass to the executors or administrators of the 
 deceased owner of the mill as a part of his personal estate. 
 
 It is quite obvious that those articles, though essential to the op- 
 eration of the mill luere not essential to its support. They might all 
 be taken out and the mill would stand, though it would cease to be 
 of any value for the purposes of a mill 
 
 Under the head of articles annexed by the tenant for his con- 
 venience may be included, as has already been suggested, stoves put 
 up for use. The stove is an article of prime necessity in a north- 
 ern climate, and of essential utility at all seasons in the year. It is 
 necessary for safety that it should communicate with a chimney and 
 be attached at least by temporary fastenings. This is an absolutely 
 indispensable article in a house destitute of a fireplace. 'Still it is 
 not a fixture which the tenant cannot remove, nor is it so treated 
 between grantor and grantee. {Freeland v. Southworth, 24 Wend. 
 191.) Such a stove is indeed a part of the furniture of the house, 
 which can be removed and replaced by similar articles at pleasure. 
 It forms no substantial part of the building, and is not essential to 
 its support. 
 
 The legislature, moreover, have evidently treated stoves put up 
 for use, or kept in use by a family, as a part of pesonalty and as 
 exempt from the claims of creditors, either by way of administration 
 or execution. Hence they are inserted in the inventory of the personal 
 estate, but not treated as assets for the payment of deb%.but ar-
 
 S8 FIXTURES— BETWEEN VENDOR AND VENDEE. 
 
 tides of indispensable family use. (2 li. S. 83, § 9.) And hence 
 too they are exempt from execution against the tenant. (Id. 367, 
 § 22.) If such annexations were part of the freehold, these provis- 
 ions would not have been made. 
 
 The question with respect to the right to remove such annexations 
 as are usually classed with fixtures, is not confined to controversies 
 between the landlord and his tenant ; but grows out of various 
 other relations in life. It sometimes arises between the mortgagor 
 and mortgagee, and sometimes between the landlord and the execution 
 creditor of the tenant. In both respects its was noticed in Ci^esson 
 V. Stout, (17 John. 116.) In that case it was held, in substance, 
 that, as between mortgagor and mortgagee, spinning frames and 
 carding machines in a mill, the former fastened to the upper floor 
 by upright pieces, and having cleats nailed to the floor round the 
 feet, and the latter fastened to the floor by wooden pins, were per- . 
 fional property. The same articles were also held to be liable to an 
 execution against the tenant by whom they were put up. The doc- 
 rtrine of the courts in Cresson v. Stout, supra, met the approbation 
 of the revisers, and formed a portion of the authority for some of the 
 -enactments of the legislature. (3 B. S. 727, 2cZ ed. Revisers' Notes.) 
 
 In Walker v, Sherman, (20 Wend. 636,) the question arose in 
 partition, in which machinery used in, but not attached to a mill, 
 was treated as personal property. The whole doctrine with respect 
 to fixtures was elaborately discussed by the court, and the cases in 
 the neighboring states examined. 
 
 In other cases the question has been examined as between vendor 
 and vendee. {Miller v. Plumh, 6 Coioen, QQ5.) In this case 
 Wood worth, J. approves the classification made by Lord Ellenbo- 
 rough in Ehoes v. 3Iaw, (3 East, 38.) of the parties between whom 
 the question usually arises ; 1st, between heir and executor ; 2d, be- 
 tween the executors of tenant for life and the remainderman and 
 reversioner ; and 3d, between landlord and tenant ; and cited with 
 approbation the remarks of his lordship, that in the case between 
 the heir and the executor the rule obtained with the most rigor, in 
 favor of the inheritance and against the right to disannex there- 
 from. The other two cases he considered as belonging to the same 
 principle ; thus putting the tenant for life and for years on the like 
 footing. But he thought the case between heir and executor and 
 vendor and vendee was widely different. The ancestor, said the 
 learned judge, or vendor, has the absolute control, not only of the
 
 FIXTURES— CHARTER AND DEEDS. 89 
 
 land, but of the improvements. The heir and executor are both 
 representatives of the ancestor ; the vendor has an election to sell 
 or not to sell the inheritance. If he does sell, the fixtures pass. 
 This case was decided in 1827, and before the revised statutes were 
 enacted, and before the decision of the chancellor in House v. House, 
 su2?ra. 
 
 Although the legal eifect of putting a building upon another's 
 land is to make it a part of the freehold of the latter, yet the legal 
 effect may be controlled by an express agreement. If the parties 
 agree, in terms, that a dwelling house shall, as between them, be 
 considered strictly a personal chattel, it takes that character. [Smith 
 V. Benson, 1 Hill, 178, per Coiven, J.) 
 
 It is not absolutely necessary that there should be at all times a 
 pJiysical aniiexation of the article, to constitute it a part of the 
 realty. There may be a temporary suspension of such annexation, 
 without the depriving the article of its privilege as part of the 
 realty. This depends on the nature of the transaction, and the in- 
 tention of the parties. The cases already referred to, namelj^, of 
 fencing materials and hop poles, temporarily detached from the soil, 
 are instances in point. It has been settled, says Cowen, J. in Walk- 
 er V. Sherman, supra, ever since the year books, 14 Henry 8th, 25, 
 that the stones of a grist mill, though moved for the purpose of be- 
 ing picked, are still a part of the freehold, and will pass by a sale 
 of the land. 
 
 So also, by the grant of land with the mill thereon, the waters, 
 flood gates, &c. which are necessary for the use of the mill, pass as 
 incident to the principal subject of the grant. (Le Roy v. Piatt, 
 4 Paige, 77.) So doors, windows, locks, keys, window blinds, light- 
 ning rods, and the like, are treated as constructively annexed, 
 though occasionally removed for repairs or otherwise. {Walker y. 
 Sherman, 20 Wend. 646, 7.) 
 
 In like manner deer in a park, fish in a pond, doves in a dove- 
 house, charters or deeds of an estate, and the chest containing them, 
 though never strictly annexed to the land, pass to the vendee with 
 the deed of the land. {Idem.) They are exceptions to the gen- 
 eral rule, and are by some authors treated as heii'-looms rather than 
 fixtures. If the vendor intends to reserve them, the deed of convey- 
 ance should contain an appropriate exception. 
 
 With respect to growing crops, in addition to what has been said 
 under the head of emblements, (supra,) it is proper to remark, that
 
 90 FIXTURES— LETTING LAND ON SHARES. 
 
 growing grass, fruit and trees, are parcel of the land, and go to the 
 heir, rather than the executor. {Bank of Lansingburgh v. Crary, 
 1 Barb. 542. Warren v. Leland, 2 id. 613.) On the foreclosure 
 of a mortgage, they pass to the purchaser as against the lessee of 
 ■the mortgagor, whose lease was subsequent to the mortgage. {Lake 
 V. King, 8 Wend. 584.) This is upon the principle that as between 
 mortgagor and mortgagee, the former has no right to lease the prem- 
 ises, and that on the foreclosure, the mortgagee or those succeeding 
 to him is in by title paramount, thus vesting in him not only the 
 estate mortgaged but also the emblements. (McKercJier v. Haw- 
 ley, 16 John. 292. Jackson v. Hojjkins, 18 id. 487. Jackson 
 V. Dickerson, 6 Coioen, 147. Aldeck v. Reynolds, 1 Barb. Cli. 613. 
 Shejxird v. Fhilbrick, 2 Den. 174. Gillet v. Balcolm, 6 Barb. 370.) 
 The question with respect to fixtures sometimes arises between 
 the executors of tenant for life and the remainderman or reversioner. 
 We have already anticipated all that need be said on that subject. 
 The same principles of public policy which encourage the indus- 
 try of the tenant for years, have their application to the tenant 
 for life. 
 
 There is sometimes a question in regard to estates for years, 
 whether the tenant have an interest in the estate or be only a serv- 
 ant or laborer. In Jackson v. BroivneU, (1 John. 207,) it was 
 held that letting land for one year, to cultivate upon shares, creates 
 the relation of landlord and tenant, and raises the lessee from the 
 rank of a laborer or servant to that of a tenant,- But if land be let 
 upon shares for a single crop, it does not amount to a lease, and the 
 owner of the land alone can bring an action for injury to the crop. 
 {Bradish v. Schenck, 8 John. 151.) 
 
 The letting of land on shares is not technically a lease. In such 
 a case the parties are tenants in common ot the crops. (Casivell v. 
 Dietrich, 15 Wend. 379.) But where in the letting for a number 
 of years, the tenant rendering and paying one half the crops as rent, 
 the interest in the soil passes to the tenant. In such a case the in- 
 terest in the crops until an actual division is made, is in the tenant, 
 and the crops belong exclusively to him. (Stewart v. Doughty, 
 9 Joh7i. 108. Caswell v. Dietrich, supra.) 
 
 It is proper to add, in this connection, that the present constitu- 
 tion of New York provides that no lease or grant of agricultural 
 land for a longer period than twelve years, thereafter made, in which
 
 SURRENDER. 91 
 
 shall be reserved any rent or service of any kind, shall he valid. 
 {Constitution of 1846, art. 1, § 14.) 
 
 There are two other incidents of estates for years, or for life, which 
 will be briefly noticed in this place, viz. a surrender and a merger. 
 
 A surrender is defined by Coke to be a yielding up of an estate 
 for life or years to him that hath an immediate estate in reversion 
 or remainder. (Co. Litt. 338 a.) It can only be to the person who 
 has the reversion or remainder. {Springstein v. Schermerliorn, 12 
 John. 357.) Where the land is leased in fee there can be no 
 technical surrender, because there is no j^arty having the reversion 
 or remainder who can take it. (Id.) 
 
 If, however, the lessee, during the term in such a case, accepts 
 a new lease of the same premises from the lessor, the first is deemed 
 virtually surrendered or released, because the acceptance admits the 
 power of the lessor to lease, which power he could not legally have 
 without a surrender or release ; but this presumption, it is said, 
 cannot be indulged against common sense. {Id. Van Rensselaer 
 V. Penniman, 6 Wend. 569.) The acceptance by the tenant of a 
 new lease of the same premises from the same lessor, has been said 
 by the court to be a virtual surrender in law of the first lease. 
 {Livingston v. Potter^ 16 John. 28.) 
 
 The statute provides for the case of tenants who have under 
 leases from a tenant surrendering to the chief landlord, for the pur- 
 pose of having a renewed lease, and prevents their rights from 
 being infringed by such surrender. It provides that the new lease 
 to be made by the chief landlord shall be good and valid, without a 
 surrender of the under leases derived out of the one surrendered. 
 It provides that the chief landlord, his lessee and the holders of such 
 under leases, shall enjoy all their rights and interests in the same 
 manner and to the same extent as if the original lease had been 
 continued ; and it gives to the chief landlord the same remedy by 
 entry upon the demised premises for the rents and duties secured by 
 such new lease, so far as the same do not exceed the rents and duties 
 reserved in the original lease so surrendered. (1 R. S. 744, as mod- 
 ified by ch. 274 of L. of 1846. 3 R. 8. 34, § 2, 5th ed. Conkey v. 
 Hart, 4 Kernan, 22.) The subtenants are not injured, because as 
 to them their rights continue as if the original lease, out of which 
 their estate is derived, had remained unaltered and in force. It is 
 also a virtual recognition of the right of the tenant to surrender to 
 the landlord, whatever may have been the nature of his lease.
 
 92 MERGER. 
 
 The doctrine of merger does not, in all its bearings, belong to the 
 present section. It is an important branch of the law of real estate, 
 which we have treated in a separate chapter. [See part 2, chap. 4.] 
 Its connection with the law of life estates and of estates less than 
 freehold, renders it proper briefly to notice it in this connection. 
 
 The definition of merger is not easily framed. It is thus defined 
 by an eminent author : Whenever a greater estate and a less coincide 
 and meet in one and the same person, without any intermediate 
 estate, the less is immediately annihilated, or is said to be merged, 
 that is, sunk or drowned in the greater. (2 Bl. Com. 177. Preston 
 on Merger, 6.) 
 
 With regard to the merger of terms in each other, the object is to 
 accelerate the possession, or at least the estate in which the merger 
 takes place. {Preston on 31erger, 6, 7.) 
 
 There is a strong analogy between surrender and merger. It is 
 said by a learned writer on this subject, that there is not any case 
 in which merger will take place, unless the right of making and ac- 
 cepting a surrender resides in the several persons between whom the 
 transaction which causes the determination of one of these estates 
 takes place. {Preston on Ilerger, 23.) 
 
 An example of merger of the life estate in the reversion may be 
 thus stated : If A., tenant for life with reversion to B. in fee, sur- 
 renders his life estate to B., or if B. releases to A. in fee, the life 
 estate of A. is in either case absorbed in the inheritance. The neces- 
 sary effect of this operation is to accelerate the estate in reversion. 
 The reversionary estate is not enlarged by this union of the life 
 estate — it is still a fee simple — but it is brought sooner into pos- 
 session and enjoyment. 
 
 The above is as simple a case as can be put. If there were an 
 intermediate estate between the tenant for life and the reversioner 
 in fee, the merger would not take place. Nor would there be a 
 merger if the one estate was held in auter droit, and the other in 
 the party's own 7'ight. {Preston on Merger, 50.) 
 
 A merger sometimes has a partial operation. Thus, where a lessee 
 of land became a purchaser of an undivided moiety of the rent or 
 reversion, the lease and rent are merged and extinguished as to that 
 portion of the premises. {Lansing v. Price, 4 Paige, 639.) 
 
 It is an essential requisite to merger, that the estate in immediate 
 remainder or reversion must be as large in quantity of interest as the 
 preceding estate, o\ larger than that estate. If the lessee for years
 
 ESTATES AT WILL. 93 
 
 afterwards takes a conveyance from the reversioner of an estate for 
 life to take effect immediately, the estate for years is merged and 
 extinguished, because the life estate is larger than the estate for 
 years. But if there be a grant to A. for life, and subsequently a 
 grant of the reversion for twenty years, in that case A. has both 
 estates without a merger of the one in the other. The reason is 
 that the estate in the reversion is limited to twenty years, which is 
 less than the preceding estate which was for life. If, therefore, A. 
 should die within the twenty years, though his life estate would 
 thus be determined, the residue of the term for years would vest in 
 his executors or administrators, and be assets in their hands. 
 
 The rule may be further illustrated by other cases. Suppose A. is 
 tenant for life, remainder to B. for life, and A. surrender to B., A.'s 
 estate merges in that of B. The reason is that B.'s estate for his own 
 life is to him greater than A.'s estate, which to B is an estsiie pur auter 
 vie. In this case the less estate merges in the greater. But if the case 
 be reversed, and B. conveys his estate in reversion to A., no merger 
 ■will ensue — for the reason that B.'s estate is to A. less than A.'s own 
 estate, and therefore A.'s ownership will embrace the duration of 
 both estates. {Boivles' case, 11 Bep. 73, 4th resolution.) 
 
 It has sometimes been made a question whether a term for years 
 would merge in another term in remainder or reversion. If the ten- 
 ant for one hundred years underlets a part of the demised premises 
 to B. for ten years, it is obvious that the tenant for one hundred 
 years is, with respect to B.'s tenancy, a reversioner, and capable of 
 accepting a surrender. Should such surrender be made, no reason 
 is perceived why the under lease would not be merged in the estate 
 for one hundred years. After the surrender, the original term will 
 be in the same state in point of duration of title, and right of enjoy- 
 ment, except by reason of mesne incumbrances, as if no under lease 
 had been created. (Preston on 3Ierger, 182, 200.) 
 
 The doctrine of merger will be considered more at large in a sub- 
 sequent chapter. [See post, Part II, ch. 4.1 
 
 Section II. 
 
 Of estates at will, and tenancy from year to year. 
 
 The connection between these two estates is so intimate that they 
 may both be treated together in the same section. 
 
 " Tenant at will," says Littleton, (§ 68,) " is when lands or tene-
 
 94 ESTATES AT WILL, AND FROM YEAR TO YEAR. 
 
 ments arc let Ly one man to another, to liave antl to hold to 
 him at the will of the lessor, by force of which the lessee is in pos- 
 session. In this case the lessee is called tenant at will, because he 
 hath no certain or sure estate; for the lessor may put him out at 
 what time it pleaseth hiui." But according to Coke (1 Inst. 55 a) 
 every such estate is at the will of both j)arties. Th()U«;h the estate 
 be stated to be at the will of the lessor, the law implies that it is at 
 the will of the lessee also. In like manner should it be stated to be 
 at the will of the lessee, the law would imply that it was at the will 
 of the lessor also. A person who occupies land, when no terms are 
 prescribed, and without a reservation or the i>ayment of rent, is a 
 tenant at will. (Jackson v. Bradt, 2 Caines, 169.) 
 
 Estates at will are not usually created by lease in express words. 
 They have been found to be inconvenient, and exist only notionally. 
 {Timmins v. Bowlinson, 3 Bur. 16*09. Co. Litt. 55 a, note 3 of Mr. 
 Har grave. Jackson v. Bnjan, 1 John. 324, per Tliompson, J. 
 Same v. Aldrich, 13 id. 110.) It has been said that a parol gift 
 of lands creates a tenancy at will. {Jackson v. Uogers, 1 John. Ch. 
 33. 2 Caines, 6, 314.) When no express term is agreed upon these 
 estates are considered as estates from year to year, and each- party is 
 bound to give the other a reasonable notice to quit. 
 
 A tenant at will has no such estate that he can convey to a third 
 person. If he assigns to another, the latter, on entering, becomes a 
 trespasser, and may be so treated by the landlord. 
 ■ If the estate be determined by the landlord, the tenant is entitled 
 to the emblements. But this is otherwise when it is determined by 
 his own act. {Sfetvart v. Doughty, 9 John. 108.) 
 
 The most obvious way of putting an end to a tenancy at will is 
 by an express declaration to that eiFect by either party. The stat- 
 ute provides that the tenancy may be determined by the landlord's 
 giving one month's notice in writing to the tenant, requiring him 
 to remove therefrom. (1 it. S. 745, § 7.) At the expiration of 
 the month from the service of such notice, the landlord may re-enter, 
 or proceed in the manner prescribed by law, to remove such tenant, 
 without any further or other notice to quit. {Id. § 9. Post v. Post, 
 14 Barh. 253.) If the tenant siiall give notice of his intention to 
 quit, and shall not accordingly deliver up the possession thereof at 
 the time specified in the notice, he or his executors or administrators 
 are made liable to pay thenceforth to. the landlord, his heirs or 
 assigns, double the rent which he should otherwise have paid, at the
 
 ESTATE FROM YEAR TO YEAR. 95 
 
 Bame time and the same manner as the single rent. And such 
 double rent shall be continued to be paid during all the time such 
 tenant shall continue in possession as aforesaid. (1 B. S. 745, § 10. 
 Hall V. Ballentine, 7 John. 376.) 
 
 There are other modes of determining the tenancy. It will be de- 
 termined by the landlord's selling the premises. {Jackson v. Al- 
 drich, 13 John. 106.) 
 
 Any act of ownership of the landlord hostile to that of the tenant, 
 and any act of desertion of the tenant, is in either case a determin- 
 ation of the estate. So is an act of waste by the tenant. (Post v. 
 Post, 14 Barh. 254. Phillips v. Covert, 7 John. A.) 
 
 The leaning of the courts in modern times has been against con- 
 sidering demises when no limitation for the termination of the estate is 
 fixed into estates at will, but they have held them to be estates from 
 year to year. This latter species of estate has nearly superseded 
 estates at will. When there was a lease at a certain annual rent, 
 and the tenant holds over, after the expiration of the lease, without 
 any new agreement as to the rent, the law implies that he holds 
 from year to year at the original rent. {Ahel v. Baddiff, 15 John. 
 505. Evertsen v. Sawyer, 2 Wend. 507. Pugsley v. Aikin, 
 1 Kern. 496.) 
 
 It was said by the court, in Post v. Post, (supra,) that the reserva- 
 tion of an annual rent is the leading circumstance that turns leases 
 for uncertain terms into leases from year to year. {Jackson v. 
 Bradt, 2 Caines, 174.) The difference between a tenancy at will, 
 and from year to year, with respect to the termination thereof by 
 notice from the landlord, is that in the former case a month's notice 
 to quit from the landlord requiring the tenant to remove from the 
 premises, without reference to the time of the commencement of the 
 tenancy is only required ; (1 B. S. 745, § 7 ;) whereas, in the other 
 case, the notice must be to determine the tenancy at the end of the 
 year. {Post v. Post, 14 Barb. 257.) 
 
 The estate of a tenant from year to year is less frail than that of 
 a tenancy at will. In the latter case, any entry by the landlord, or 
 act done inconsistent with the continuance of the tenancy, puts' an 
 end to it at common law ; but in the case of an estate from year to 
 year, the landlord cannot enter until the year closes. It was held 
 by the court of appeals, in Livingston v. Tanner, (4 Kern. 67,) that 
 the purpose and design of the various provisions of the revised stat- 
 utes, (1 B. S. 745, §§ 7 to 9,) were to regulate and protect the rights
 
 96 ESTATE FROM YEAR TO YEAR. 
 
 of tenants at will and at sufferance, however created, by a definite 
 and uniform rule, applying alike to each class of tenants specified ; 
 and to prescribe the conditions upon which the landlord should ex- 
 ercise his right of re-entry, and the prerequisites to his bringing an 
 action of ejectment, or instituting proceedings to recover possession 
 of the lands thus held. The statute applies to all cases where the 
 tenancy at will or sufferance exists in law, however created. The 
 court thought that although the language of the statute was^^er- 
 missive, it was obviously intended by the legislature to impose a 
 positive and absolute duty upon the landlord of giving notice, before 
 the tenancy should be determined. 
 
 The learned judge who delivered the judgment in that case, 
 thought that since the statute, the landlord could in no case, when 
 a tenancy at will or at sufferance exists, either re-enter or bring 
 ejectment until the expiration of one month from the service of the 
 notice. {Id. 67.) This is giving to the tenant an advantage not 
 enjoyed by him at common law. Originally neither a tenant at will 
 or a tenant at sufferance was entitled to notice to quit. (JacJcson 
 V. McLeod, 12 John. 182. Jackson v. Bradt, 2 Caines, 169.) 
 
 The statute above referred to, does not name tenants from year to 
 year. The estate of the latter is different from that of an estate at 
 will. Though in ejectment under the former practice such tenant 
 was entitled to six months' notice, yet in the summary proceedings 
 to remove the tenant under the act of April 23, 1820, (43 Sess. ch. 
 194, p. 176 ; 1 B. S. 745 ; 3 id. 35, 5th ed.,) a notice to the tenant 
 was only required in the case of a tenancy at will or sufferance, orig- 
 inally of three months, but reduced to one month by the revised 
 statutes, and no notice was required in the case of a tenancy from 
 year to year. (Nichols v. Williams, 8 Coiuen, 13. Rowan v. Lyt- 
 tle, 11 Wend. 616. Post v. Post, 14 Barh. 253. Livingston v. 
 Tanner, 12 id. 481 ; S. C. on appeal, 4 Kern. 64. Contra, Prouty 
 V. Prouty, 5 Eoiv 81.) 
 
 Except for the purpose of a notice to quit, to enable the party to 
 bring an action, the estate at will retains its true character. It is 
 sometimes held an estate from year to year for the purpose of a no- 
 tice to quit. (Bradly v. Covill, 4 Coiven, 350. Nichols v. Will- 
 iams, 8 id. 15.) The notice required preparatory to an ejectment 
 was a notice of six months, which must terminate at the end of the 
 year. A party who comes in under such tenant stands in the same 
 relation to the landlord. (JacJcson v. Salmon, 4 Wend. 324.)
 
 ESTATE AT SUFFERANCE. 97 
 
 In case a tenant for a year or more holds over after the end of his 
 term, without any new agreement with his landlord, he may he 
 treated, at the election of his landlord, as a trespasser or as a tenant 
 from year to year, and holding in all other respects upon the terms 
 of the original lease. Distraining for the rent, by the landlord, 
 while that remedy existed, was held to be an unequivocal affirma- 
 tion of the tenancy. The tenant has no such election ; and if he 
 holds over, though for a very short period, without any unequivocal 
 act at the time, to'give his holding the character of a trespass, he 
 cannot deny that he is in as tenant, if the landlord elects to treat 
 him as such ; and the fact that before his terra ended, he refused to 
 keep the premises another year, even at a reduced rent, does not re- 
 but the presumption of his holding over as tenant. (Conioay v. 
 Starhweather, 1 Denio, 113.) 
 
 The termination of an estate from year to year is at the period 
 when the year expires from the first commencement of the term. In 
 the rural districts this is of but little consequence, though it may 
 lead to a want of uniformity in the termination of this class of es- 
 tates. But it would be attended with some inconvenience in a large 
 commercial city. It has been guarded against in the city of New 
 York by the revised statutes. Thus, it is enacted that agreements 
 for the occupation of lands or, tenements in the city of New York, 
 which shall not particularly specify the duration of such occupation, 
 shall be deemed valid until the first day of May next after the pos- 
 session under such agreement shall commence, and the rent under 
 such agreement shall be payable at the usual quarter days for the 
 payment of rent in the said city, unless otherwise expressed in the 
 agreement. (1 li. S. 744, § 1.) 
 
 Section III. 
 
 0/ estates at sufferance, and herein of the action for use and occu- 
 
 2mtion. 
 
 The estate at sufferance is of unfrequent occurrence. It was thus 
 described by Lord Coke. (1 Inst. 57 h.) Tenant at sufferance is 
 he that at the first came in by lawful demise, and after his estate 
 ended continues in possession ; and wrongfully holdeth over. The 
 primary diversity between a tenancy at will and a tenancy by suffer- 
 ance is that the former is always by right, and the latter, though 
 the entry may be by right, the holding over is by wrong. (Id.)
 
 98 ESTATE AT SUFFERANCR 
 
 Whoro the U'nant ]mr auter vie continues in possession after the 
 decease of cestui que vie, or a tenant for years holds over after the 
 ex])iration of his term : in hoth these cases the orifrinal entry was 
 hiNvtul : but the suhstMiui-nt h«»Ming over unlawful, thus crfatiii*; an 
 estate at sutferance. The original entry was by the act of th»< jiarty 
 and not bv the act of the law. Such tenant was oris^inally held as 
 a mtre niiktd j)08se8sor, standing in no privity to the landlord, and 
 not entitled to notice to quit. {Jackson v. Farkhvrst, 5 John. 128. 
 Same v. McLcod, 12 id. 182.) It is to estates of this d.-scrii.tion 
 that the statute referred to in the preceding section (1 li. S. 745, 
 § 7.) f"»p^"^^'^*^^l^' »M'1*^'*'*> "^ was expounded by the court of appeals 
 m Livingston v. 2\tnner, (4 Kernan, 67.) Though general in its 
 terins, it should \)C construed with reference to its subject matter, 
 and other enactments in the same chapter. It thus gives to tho 
 tenant at sufferance who has come in by act of the parties, a right 
 to a notice of one month to remove from the premises before insti- 
 tuting judicial j>roceeding8 for his removal. This abridges the 
 common law right of the landlord in such cases, who could form- 
 erly enter upon his tenant without Ix'ing treated as a trespasser, for 
 such entry. 
 
 But there is another class of cases where the tenant comes into 
 possession by the act of the law, and holds over, in which cases no 
 notice is recpiired to be given ; and the tenant is treated as a tres- 
 passer and hable in that character to all the damages the rightful 
 owner has sustained. Thus, where a person as guardian or trustee 
 of an infant, or a husband seised in right of his wife only, and every 
 other person having an estate determinable upon any life or lives, 
 who after the determination of t^ueh j)articular estate, without the 
 express consent of the juirty immediately entitled after such deter- 
 mination, holds over and continues in possession of any lands, tene- 
 ments or hereditaments is required to be adjudged a trespasser. 
 And the party entitled to such lands, tenements or hereditaments, 
 upon the determination of such particular estate, or his executors 
 or administrators, is allowed to recover in damages against every 
 such person so holding over, and against his, her or their executors 
 or administrators, the full value of the profits received during such 
 wrongful possession. (1 i?. S. 749. § 7. Livingston v. Tanner^ 
 4 Kern. 64. Tousey v. Tousey, Id. 430.) A person holding in 
 such a case, is not entitled to notice to quit, and is not within 
 the provision of the revised statutes, requiring one month's notice
 
 ACTION FOR USE AND OCCUPATION. 99 
 
 in writing to the tenant. (1 R, S. 745, § 7.) He is treated as a 
 trespasser. {Livingston v. Tanner, supra.) 
 
 Where the i)erson upon whose life any estate in lands or tene- 
 ments shall depend, remains beyond sea, or absents himself in this 
 state or elsewhere, for seven years together, the statute provides that 
 such person shall be accounted as naturally dead, in any action con- 
 cerning such lands or tenements in which his death shall come in 
 question, unless sufficient proof be made in such case of the life of 
 such person. {IRS. 749, § 6.) This is a salutary and necessary 
 provision in a country whose population is so ambulatory as oars. 
 
 At common law no action of assumpsit for rent would lie, ex- 
 cept upon an express promise made at the time of the demise. 
 {Synith v. Steivart, 6 JoJui. 48.) This led to the statute of 11 
 George 2, ch. 19, § 14, which was adopted in this state at an early 
 day. {See act of 1788, 1 A', cfe K 14G, § 31, and which is incorpo- 
 rated into the revised statutes, 1 U. S. 748, § 2G ; and as modified 
 by other legislation, 3 li. S. 37, § 20, 5th ed.) The statute applies 
 only to cases where the relation of landlord and tenant had subsisted 
 by some agreement not under seal. If therefore a person enters on 
 land under a contract to purchase, that relation does not exist, and 
 on his refusing to perform the contract he becomes a trespasser, and 
 is liable only in that character. (6'/?i?7A v. Stewart, supra.) But 
 an action for use and occupation lies, when the holding is upon an 
 implied, as well as when it k U])on an express permission of the 
 landlord. {Osgood v. Dewey, 13 John. 240.) If, therefore, the 
 tenant after the expiration of a parol deniiMe, and j)ayment of rent 
 tinder it, continues in ])ossession without any new agreement, he can- 
 not in an action against him for the use and occupation of the prem- 
 ises subsequent to the expiration of the former demise, dispute the 
 title of the landlord, and his subsequent holding will be deemed to 
 have been with the implied permission of the original lessor. {Os- 
 good V. Dewey, supra.) The same consequence follows on hold- 
 ing over after the exj)iration of a lease under seal, though the lease 
 contains a covenant for a renewal. {Abeel v. liadcliff, 13 John. 297.) 
 
 But this action cannot be sustained when the relation of landlord 
 and tenant does not exist between the parties. Nor will it lie against 
 a third person who has come in under a purchase from the supposed 
 tenant. {Bancroft v. War dwell, 13 John. 489.) Nor will it lie 
 against a tenant against whom summary proceedings have been
 
 100 ESTATE UPON CONDITION. 
 
 forthwith commenced by the landlord, on the expiration of the term, 
 and the tenant has been ejected. Such proceedings are founded 
 upon the allegation of the landlord upon oath that the holding over 
 is without his assent or jj^rmission. There cannot be, therefore, 
 in such a case, an exjjress or implied assent to the holding over, or 
 the relation of landlord aiul tenant. {Featherstonhauijh v. Brad- 
 shma, 1 Wend. 134.) 
 
 Nor will it lie wherd there is an outstanding subsisting lease, un- 
 less against an occupier who went in under a new and distinct agree- 
 ment with the landlord. {Grover v. Wilson, 2 Barb. 264.) Nor 
 will it lie when there has been no occujiation of the premises of any 
 descri])tion, by or under the defendant, during any part of the term 
 for which they were leased. ( Wood v. Wilcox, 1 Dcnio, 37.) 
 
 As the action for use and occupation is founded on contract, ex- 
 press or implied, and lies only wliere the relation of landlord and 
 tenant exists, it cannot be maintained when the tenant has not en- 
 tered into the possession at all, under the lease or agreement, either 
 in person or by an under tenant or agent. And it seems it can only 
 be sustained for the time the tenant actually occupied the premises, 
 either by himself or by his subtenant or agent. {Croswcllv. Craine, 
 7 Barb. 191.) But if the contract remains in force, the landlord 
 may recover thereon though the tenant has deserted the premises. 
 ( Westlake v. De Graio, 25 Wend. 669.) This principle is question- 
 ed by Beardsley, J. in Cleves v. WilloiKjhby, (7 Uill, 88,) who seems 
 to think that under the statute a recovery can only be had for an 
 actual occupancy. 
 
 CHAPTER IV. 
 
 OF ESTATES UPON CONDITION. 
 
 A condition is some quality annexed to real estate, (of which we 
 are treating,) by virtue of which it may be created, enlarged, or de- 
 feated, upon an uncertain event. (1 Inst. 201 a.) 
 
 It may be created by express words, which is called a condition in 
 deed; or it may arise by implication of law, which is called a condi- 
 tion in law. 
 
 A condition in deed is most properly created by the very word 
 condition, but it may be accomplished by other words. The con-
 
 OF ESTATES UPON CONDITION-. 101 
 
 veyancer, intending to create an estate in the grantee, subject to a 
 condition, should insert appropriate words in the grant. In Jack- 
 son V. Allen, (3 Cowcn, 220.) an alley was granted to the defendant 
 in fee, reserving an annual rent forever to the grantor and his heira 
 and assigns, excepting a right of way over the alley, and the estate 
 was declared to be upon this express condition, that the grantee, his 
 heirs, &c. shall and do at all times forever hereafter, permit and suf- 
 fer the grantor, his heirs, &c. to have, use and enjoy the right of 
 way, &c. This was held to be sufficient to make the estate granted 
 a conditional estate, without any clause of re-entry, and to entitle 
 the grantor to bring ejectment in case the alley was obstructed. 
 The word "proviso" is also said to be siifficient to create a condition 
 in deed. But the word must not depend upon another sentence, 
 and must be the words of the grantor, and be comjmlsory to enforce 
 the bargainer, &c. to do an act. [Ld. Cromwell's case, 2 Coke, 70, 
 71.) Conditions are frequently annexed to the grant of an estate in 
 order to insure the payment of a sum of money at a future day. 
 Estates by way of mortgage owe their origin to this principle. 
 
 An estate upon condition implied in law, is where the condition 
 results from the nature and constitution of the grant, without being 
 expressed in words. The most frequent cases of implied conditions 
 arise in the grant by government of franchises to a corporation. It 
 is now well settled that it is a tacit condition of a grant of incorpo- 
 ration, that the grantees shall act up to the end or design for which 
 they were incorporati^d. [A. & A. on Corp. 742. Tlie People v. 
 Utica Ins. Co. 15 John. 382, per Thompson, Ch. J. The New 
 York Fireman's Ins. Co. v. Elij, 2 Cowcn, 709, per Savage, Ch. J. 
 The People v. Manhattan Co. 9 Wend. 384, per Sutherland, J.) 
 
 The mere omission by a corporation to exercise its powers does 
 not of itself, disconnected from any acts, work a forfeiture of its char- 
 ter. There must be something lorong, arising from willful abuse, or 
 improper neglect ; something more than accidental negligence, ex- 
 cess of power, or mistake in the mode of exercising an acknowledged 
 power. {The People v. Tlie Kingston die. Turnpike Co. 23 Wend. 
 103. Same v. Hillsdale and Chatham T. R. Id. 254.) 
 
 Nor does the failure of the corporation to perform the implied 
 condition of its existence produce a dissolution, or a destruction of 
 its corporate existence. To work out that consequence there must 
 be the judgment of the appropriate tribunal in a regular judicial 
 proceeding in which the people are a party. {Id. 257.) A forfeit-
 
 102 CONDITION— LIMITATION COVENANT. 
 
 ure cannot be iaken advantage of or enforced against a corporation 
 collaterally or incidentally, or in any other mode than by a direct 
 proceeding for that jiurpose against the corporation, so that it may 
 have an opportnnity to answer. And the government creating the 
 corporation can alone institute the proceeding. {A. d: A. on Corp. 
 746, 747. Bank of Niarjara v. Johnson, 9 Wvyid. 645. The Peo- 
 ple V. Manhattan Co. 9 id. 351. Nicoll v. The N. Y. and Erie 
 R. R. 2 Kernan, 121.) 
 
 It was on this principle of implied conditions that the doctrine 
 of forfeiture was extended to tenants for life and others, for acts done 
 by them inconsistent with the nature of their estate. The doctrine 
 itself was of feudal origin, and has been subverted in this state by 
 the revised statutes. (1 R. S. 739, § 145.) The rights of all i)ar- 
 ties are sufficiently protected, when the tenant assumes to convey a 
 larger estate than he has, by making the conveyance effectual to 
 transfer to the grantee whatever is expressed in the grant, to the 
 extent of the tenant's interest in the subject matter, and void for the 
 excess. 
 
 There is s distinction between a condition and a limitation. A 
 limitation is when the duration of the estate is prescribed in the 
 grant ; as where land is granted to a man so long as he remains in 
 a particular place, or while he remains unmarried, and the like. In 
 such cases the estate determines when the contingency happens. 
 {Mary Partington's case, 10 Co. 41 a.) Coke, in the case last cited, 
 (at pages 41 and 42,) gives the words usually employed in creating a 
 limitation, viz. quamdiu, dum modo,dum,qitosqne, durante; and for 
 creating a condition, viz. sub conditione, ita quod, si contingat,p)'i'0- 
 viso, &c. 
 
 There is also a material difference between a condition and a 
 covenant, notwithstanding they are both frequently created by the 
 same form of words. The distinction between them is illustrated by 
 the case put by Coke, (1 Inst. 203 h.) When the proviso comes 
 alone it is a condition ; but he says if a man by indenture lets lands 
 for years, " provided always and it is covenanted and agreed between 
 the said parties, that the lessee should not alien ;" this is a condi- 
 tion by force of the proviso, and a covenant by force of the other 
 words. In case the condition is broken, the grantor may elect to 
 which he will resort, for he cannot have both, as they are incompat- 
 ible remedies. In Nicoll v. The Neio York and Erie Rail Road
 
 CONDITIONS WHEN VOID. 103 
 
 Co. {supra,) Gardiner, speaking of the distinction between a limit- 
 ation and a condition, says, the first determines the estate when the 
 period of limitation arrives, without entry or claim ; the last does 
 not defeat the estate until entry by the grantor or his heirs, and 
 upon entry the grantor is in as of his former estate. 
 
 Conditions can only be reserved to the grantor or lessor, or their 
 heirs, but not to a stranger. (1 Inst 214.) They must be created 
 and annexed to the estate at the time of the making of the deed. 
 {Jackson V. Topping, 1 Wend. 388. 2 Cruise's Dig. tit. Condition, 
 § 15. Spalding v. Halhnheck, 30 Barb. 292.) 
 
 Conditions are sometimes void in their creation. This is the case 
 when they are— 1, impossible; or 2, require the performance of 
 what is contrary to the divine or municipal law ; or 3, repugnant 
 to the nature of the estate. 
 
 ^ In the case of impossible conditions, if they be precedent condi- 
 tions and an estate be gi-anted to take efiect on their performance, it 
 is quite clear that no estate can arise. A feoffment to A. upon con- 
 dition that he goes to Kome on a day, is absolute, for the condition 
 is repugnant to the feoffment. {Bac. Abr. tit. Condition.) 
 
 Conditions which require the performance of what is contrary to 
 the divine or municipal law, whether the thing be rtialum in se or 
 malum prohibitum, or which require the party to omit something 
 that is a duty, or to encourage such crimes or omissions, will al- 
 ways be defeated by the law. Questions of this kind more frequently 
 arise upon bonds than upon deeds or leases ; but the principle is the 
 same in all cases. 
 
 Conditions repugnant to the estate to which they are annexed, are 
 void in their creation. Thus a condition ui)on a feoffment in fee 
 that the feoffee should not alien, is void because it is repugnant to 
 ■the estate granted. In like manner, on a grant of a fee that the 
 wife of the grantee should not be endowed, or the husband be tenant 
 by the curtesy, is void for the like reason. (6 Co. 41 a.) Restraints 
 upon alienation can, at common law, only be imposed by persons 
 having at least a reversion, or a possibility of reversion therein. As 
 a consequence of this doctrine, the court of appeals of New York 
 held that where lands were leased in fee, the grantor could not annex 
 a condition in restraint of the right of alienation by the lessee 
 {Dc Peyster v. Michael, 2 Selden, 467.) This was one of the cases 
 in which the reservation of quarter sales and the condition and 
 right of re-entry, upon default of their payment, were held to be void,
 
 104 COURTS LEAN AGAINST FORFKITURES. 
 
 iiml the grouml of tluir invalidity was stated to be their reptij^anoe 
 to tlio cstatt? «;rantKl — viz. an t-Htato in tW* simphv It wan coik • Id 
 that in estates tor lite or years, conditii'rt'* in nstraint of ulit-imti. u 
 were lawful.*^ 
 
 The courts lean against forft-itures. In Jackson v. Harrison, (17 
 John. GG,) the h'ase contained the x^ondition that if the lessee, his 
 executors, &c. should assign over, or otherwise part with, the lease 
 or the premises demised, or any jmrt thereof, without the consent in 
 writing of the lessor, cVc. it shouhl 1h» lawful for the lessor, A'c. to re- 
 enter, and it contained u further clause of forfeiture at the election 
 of the lessor, on the lessee's violating that and other covenants. Tho 
 lease was for the term t)f seven years. The lessee underlet a j)art 
 cff the j)reniise8 for a portion of the time the lease had to run, and 
 this WHS claimed by the landlord to be a cause of forfeiture of the 
 whole lease. But the court held tliat no forfeiture was incurred by 
 fucli underletting, as no assignment or parting with any portion of 
 the jiremises for a less j)eriod than the wliole ttnn would work a for- 
 feiture of the estate. 
 
 So in the case of a lease for lives, with a condition that the lesstns 
 should not sell or dispose of, or assign their estate in the demised 
 premiseH, without the permission in writing of the lessor or his heirs, 
 and if they did the estate should be void, it was held that a lease by 
 the lessees of a part of the premises for twenty years was no breach 
 of the condition. {Jackson v. Sih'crnail, 15 John. 278. Same v. 
 Brownson, 7 id. i^27.) 
 
 The alienation of the tenant to work a forfeiture must in general 
 be the voluntary act of the tenant. Where in a lease of twenty-ono 
 years the landlord reserved a right of pre-em])tion and the quarter 
 sales, which were protected by a condition and forfeiture of the es- 
 tate in case the tenant failed to jjcrform the covenants on his }>art,- 
 it was held that a sale of the j)remise8 under a judgment coni'essed 
 by the tenant was no forfeiture of the lease, unless the judgment was 
 fraudulently confessed, with a view to defeat the lessor's reservation. 
 (Jackson v. Corlcss, 7 John. 531. Doe v. Cai-ter, 8 Tervi Jicj). 57, 
 
 ♦The word lease, in the English books, is always for a less time than the lessor hath 
 in the premises. (2 Bl. Co»i.317.) In this state grants in fee reserving rent have long 
 been and are recognized by our statutes. They are usually denominated durable 
 leases. We have in this, as in some other instances, given an enlarged meaning to a 
 term well known to the common law. I have generally spoken of these conveyances 
 aa leases.
 
 CONDITION, PRECEDENT AND SUBSEQUENT. 105 
 
 300. Jackson v. Kij>p, 3 Wend. 230. Same v. SUvernail, 15 
 John. 278.) 
 
 But while the case of a landlord seeking to enforce a forfeiture 
 against his tenant is strict i Juris, the tenant cannot avoid the effect 
 of his own contract by fraud. If, therefore, he colludes v;ith a stran- 
 ger, desirous of obtaining possession of the lease, and confesses a 
 judgment for the express j)urpose of enabling him to sell the prem- 
 ises through the medium of an execution, the purchaser with notice 
 cannot retain the property against the landlord. {Doe v. Carter^ 
 8 T. It. 300.) 
 
 Conditions are also precedent or subsequent. A condition prece- 
 dent must be performed before the estate 'can vest. A condition 
 subsequent does not prevent the vesting of an estate, but may en- 
 large or defeat it after it has been created. {Litt. § 325.) 
 
 No precise technical words are required in a deed to make a stip- 
 ulation a condition juecedent or subsequent ; neither does it depend 
 on the circumstance whether the clause is placed j)rior or posterior 
 in the deed, so that it oj)erates as a provi.so or a covenant ; for the 
 same words have been construed to operate as either the one or the 
 other, according to the nature of the transaction, and tiie intention 
 of the parties. {Per Paiije, J. in rarmdee v. The Oswego and 
 Syracuse It. li. Co., 2 Seld. 80.) The precedency of the conditions 
 must depend on the order of time in which the intent of the trans- 
 action requires their performance. The rules for finding the intent 
 of the parties are the same as those in regard to covenants. {Id. 
 Nicoll V. N. Y. and Erie li. It. Co. 2 Kernan, 121.) 
 
 There is, at common law, a difference in the effect between the 
 breach of a condition annexed to an estate of freehold, and the like 
 breach of a condition in an estate for years. As a freehold estate 
 could not l>e created without livery, so it could not be defeated 
 ■without entry. But where a condition annexed to an estate for 
 years is broken, the estate ipso facto ceases as soon as the condition 
 is broken, without an entry ; except where the lease provides ex- 
 pressly, that the landlord shall re-enter in case of a breach of the 
 condition. In the first case the lease is absolutely void on the breach 
 of the condition ; and in the last, voidable only at the election of 
 the landlord. {Stuyvesant v. Davis, 9 Paige, 431.) 
 
 Conditions subsequent are not favored in the law and are con- 
 strued strictly, because they tend to destroy estates. They can only 
 be .reserved for the benefit of the grantor or his heirs^ and no others
 
 100 CONDITION SUBSEQUENT. 
 
 can take atlvantaj;e of a breach of them. A mere faihire to perform 
 a condition subsequent does not devest the estate. The <^rnntor or 
 his heirs may not choose to take advantage of the breach, and until 
 they do so, by entry, or what is now made by statute itsecjuivahnt, 
 there is no forfeiture of the estate. This was the common hiw, and 
 it has not been altt-red by statute so as to pjive a ri<,'ht (if entry t«> an 
 assi<;nee in any instance not coui)led witli a reversionary interest as 
 in the cases of estates for years and for life, e.xcept in cases of leases, 
 or rather {grants in fee reservin<^ rent. (Per J^irker, J. In NicoH v. 
 The Niio York and Eric Hail lioad Co. 2 Kern. 131. 1 R. S. 
 748, §§ 23, 24, 25.) 
 
 These principles were applied by the court of appeals in the last 
 cited case, where, by a conveyance to a rail road corporation, land 
 was ''ranted uj)i>n the condition that it should construct its road 
 thereon within a limited time. The company having failed to per- 
 form, it was held that such failure did not devest the title ; that 
 the condition was subsequent ; that the title vested in the corpora- 
 tion in fee on the execution of the deed, and could not be devested 
 but by entry, or what is made equivalent to it by the statute, by 
 the grantor or his heirs for breach of the condition to ]>erfect the 
 estate. This ri^ht of entry, it was said, is not a reversion, or an 
 estate in land, and will not pass by assignment or conveyance of the 
 premises held subject to the condition. {NicoU v. The N. Y. and 
 Erie li. II Co. 2 Kernan, 121.) 
 
 The principle that failing to perform a condition subsequent does 
 not x>^^' se devest an estate, or perfect a right, was recognized by 
 the supreme court of the United States in the claims growing out 
 of the acquisition of California. This was one of the questions in 
 Fremont's case. {Fremont v. United States, 17 Hoiv. 542.) And 
 the same j)rincii)le was applied in various other cases. {United 
 States V. Heading, 18 id. 1.) 
 
 With regard to the performance of conditions, and what, if any 
 thing, will excuse from performance, there is a manifest diversity be- 
 tween conditions precedent and conditions subsequent. A prece- 
 dent condition must be peiformed before the estate will vest. Even 
 though the performance of it becomes impossible by the act of God, 
 no estate can vest. ( Vanhorne v. Dorrance, 2 Dall. 317. 19 John. 
 71, 72, per Spencer, Ch. J. Taylor v. Bullen, 6 Coiven, 627, p>er 
 Savage, Oh. J.) *
 
 LICENSE IN DISCHARGE OF CONDITION. 107 
 
 AVith respect to conditions subsequent a less rigorous rule pre- 
 vails. If such condition be impossible at the time it was made, or 
 becomes so afterwards, or it be defeated by the other party, the es- 
 tate is absolute. (1 Inst. 206 a, 208 h.) 
 
 If it becomes impossible by. the act of the grantor, the grant be- 
 comes single. {Tlie United States v. Arredondo, 6 Peters, 745, jjtr 
 Marshall, Cli. J. Whitney v. Spencer, 4 Cowen, 39.) 
 
 If tliere be a condition in a lease against the right of the leasee or 
 his assigns to alien during the term, without the consent in writing 
 of the lessor, it has been held that a license by the lessor to the les- 
 see to alien, operated not merely as a dispensation in respect to such 
 lessee, but determined the whole condition. {Dumpor's case, 4 Coke, 
 119 Z/.) Though this case has sometimes been spoken ot in terms 
 of disfavor, it has been uniformly followed, and is still the law. 
 {Brummell v' 3Iacp?ierson, 14 Ves. 173, 175. Lakin v. Williams, 
 17 Wend. 457.) The reasons given for it, as abridged by the chan- 
 cellor in the last cited case, are that the license gave to the lessee 
 the power to convey an absolute interest, free from the restraint of 
 the condition, and the assignee taking that interest, held absolute 
 and discharged from the restraint ; that the lessors could not dis- 
 pense with an alienation at one time, and the estate be subject to 
 the condition afterwards ; and that as a dispensation of one aliena- 
 tion it operated as a dispensation to all others ; and the same as to 
 the persons ; for if the lessors dispense with one, all others were at 
 liberty, and therefore the word assi(/7is being mentioned in the con- 
 dition made no difference. 
 
 In order that the license or consent may entirely discharge the 
 condition or proviso, it must be paramount to the terms of the pro- 
 viso ; if the consent be required to be in writing, a parol license will 
 not be either a present or future dispensation of the condition. (lioe 
 V. Harrison, 2 T. li. 425.) 
 
 If the condition be that the " lessee or his executors or administra- 
 tors shall not set, let or assign over the whole or part of the prem- 
 ises," the condition applies to them as well as to the lessee, and 
 therefore on the death of the latter, if his administrator underlets 
 a part of the premises without a consent in writing from the lessor, 
 he incurs a forfeiture. A parol license will not be sufficient. (Id. 
 Braddick v. TJiompson, 8 East, 346. Blake's case, 6 Co. 43 h. 
 3 Taunton, 73. Jackson v. Crysler, I John. Cas. 125.) 
 
 And this is the same in equity as well as at law. But if a parol
 
 108 IMPLIED CONSENT. 
 
 license bo used as a snare, ami under circumstances which amount 
 to a fraud, erjuity will j^rant relief. {Richardson v. Evana, 3 Madd, 
 It. 218.) And no man can take advanta«,'e of a condition, who has 
 himself prevented or disjxnsed witli its performance. {Williams \. 
 The Dank of the United States, 2 Peters, 102, per Washington, J.) 
 
 Independently of an express consent in writing, according to the 
 terms of the condition, there are other acts of the lessor or his 
 ht'irs, which operate as a waiver of tlie forfeiture after a breach has 
 been incurred. This may be done by the acceptance of rent which 
 accrued after the forfeiture, witli a knowledge on the part of the 
 landlord that the condition had U'en previously broken. {lioe v. 
 Harrison, supra. Jacksun v. Allen, 3 Cowen, 230. Doe v. liltsBf 
 4 Taunton, 735. Due v. Banks, 4 li. d- A. 401.) It j)roceeds upon 
 the princij)le that the lessor by receiving the rent, assumes tlie lease 
 to have continuance, as Lord Coke expresses it. {Co. Litt. 211 h.) 
 So also if the landlord brings an action, to recover the rent, and 
 while distresses were lawful, if he distraini*vl for tlie rent, he could 
 not enter fi)r the condition broken prior to the accruing of that 
 rent. He may, however, receive the rent due before the forfeiture, 
 and if it be received after the forfeiture it is no waiver of it. But 
 receiving rent which accrued after the forfeiture, with a knowledge 
 thereof, is a waiver of it. {Jackson v. Allen, supra, and the other 
 cases there cited.) 
 
 If the forfeiture be once waived, it cannot afterwards be claimed. 
 {Chalkcr v. Chalker, 1 Conn. 79.) 
 
 With regard to the mode of the landlord's taking advantage of a 
 breach of a condition sulisequent, the former rule required that the 
 landlord must enter if he could ; if he could not enter he was re- 
 quired to make claim ; for a freehold, whether it lie in grant or livery, 
 could not cease by condition, without entry or claim. {Co. Litt. 218.) 
 But in this state it was held, at an early day, that an actual entry 
 in an action of ejectment was not necessary in any case, except to 
 avoid a fine. {Jackson v. Cryshr, 1 John. Cas. 125, decided in 
 1799.) Fines and recoveries have since been abolished, (2 R. S. 
 343, § 24 ;) and the civil action provided by the code of procedure 
 has become the substitute for the action of ejectment. There does 
 not seem to be any case in which an actual entrj'' according to the 
 ancient sense of that term, is now necessary. The bringing of an 
 action, with or without previous demand, or notice, as the case may
 
 MORTGAGES. 109 
 
 require, is a sufficient assertion of the landlord's intention to enforce 
 his right for the condition broken. 
 
 The consequence of a recovery for a condition broken is to reinvest 
 the grantor or lessor with his former estate as he enjoyed it before. 
 He thus avoids all mesne charges and incumbrances imposed upon 
 the estate by the tenant or those claiming under him. (1 Inst. 202 a.) 
 
 There are some acts, it is said, which may excuse the non-performance 
 of a condition subsequent. If it was possible at the time of mak- 
 ing it, and it becomes impossible by the act of God afterwards, the 
 performance is excused and the estate remains unaffected by it. 
 {Merrill v. Emery, 10 Pich 507.) In The People v. Manning^ 
 (8 Coiuen, 297,) the princii)le was applied to recognizance, the per- 
 formance of the condition of which had become impossible by the 
 sickness and death of the cognizor. (Co. Lift. 206 a.) 
 
 In like manner, if it becomes impossible by the act of the law or 
 of the other party, performance of it is excused. {Same cases.) 
 
 CHAPTER V. 
 
 OF THE LAW OF MORTGAGES. 
 
 Section I. 
 
 0/ the nature of Mortgages. 
 
 A mortgage may be well described to be a conveyance of lands 
 by a debtor to his creditor, as a security ibr the repayment of a 
 sum of money ; with a proviso that such conveyance shall be void 
 on payment of the money secured by it, with interest, on a day 
 therein expressed. In this state the most usual form of a mort- 
 gage is a conveyance in fee of the lands intended to be charged with 
 the debt or obligation of the debtor, who is called the mortgagor, 
 to the creditor, who is called the mortgagee, with a proviso or con- 
 dition that the estate shall be void on the payment of the sum of 
 money therein expressed with interest, or doing some other act accord- 
 ing to the terms of a bond or other instrument executed by the mort- 
 gagor to the mortgagee and therein described. {Cooper v. Whitney, 
 3 Hill, 95. Baker v. Thrasher, 4 Denio, 495.) It usually con- 
 tains a power authorizing the mortgagee, his executors, administra- 
 tors or assigns, in case of any default in paying the money secured
 
 110 MORTGAGE. 
 
 by it, or of any part tlu'reof, to siU tlie preruiseB described, with 
 their appurtenances, in the manner ])reseribed by hiw, and out of 
 the money arising' on such Htile, to retain tlie ])rincipal, interest and 
 costs, and to render the overplus to the mortgagor, his hi-irs or 
 assigns. 
 
 The power of sale, when given in a mortgage, or other conveyance 
 intended to secure the payment of money, is deemed a part of Uie 
 security, and vests in, and may be executed by any person who, by, 
 assignment or otherwise, becomes entitled to the money so secured 
 to be paid. (1 B. S. 737, § 133.) 
 
 A mortgage may be made either of an estate in fee or for years. 
 In this state it is usually granted in fee. If, however, the mortga- 
 gor has only a less estate, as an estate for life, the mortgage will be 
 effectual for the life of the mortgagor, though void for the excess. 
 {Si)iclmr V. Jackson, 8 Cowcn, 543. 1 li. S. 739, § 143.) 
 
 It is also enacted that no mortgage shall be construed as imphjiny 
 a covenant iox the payment of the sum intended to be secured. {Id. 
 738,. § 139.) 
 
 Hence it follows, that if there be no express covenant in the mort- 
 gage, and no bond or other instrument to secure such payment shall 
 have been given, the remedies of the mortgagee are confined to the 
 lands mentioned in the mortgage. (Id) 
 
 Nor is it material in wluit form the agreement is expressed. 
 Where the mortgagor acknoivlcd'jed his i7idchtedness to another in 
 a certain 6W>«, and declared that for the purj^ose of securing the 
 payment thereof, he transferred the property mentioned, it was held 
 that the creditor, on default of payment, was not bound to resort, 
 in the first instance, to the proi)erty, but might bring an action for 
 the sum acknowledged to be due. Such language was held equiva- 
 lent to an express covenant. {Elder v. Bouse, 15 Wend. 218.) 
 
 It is not essential to a mortgage that it should contain a covenant 
 to pay money, or to do any other act, or that it should embrace ia 
 it a powetof sale. A deed in fee, with a condition annexed that if 
 the grantor should pay certain legacies charged upon the lands, sold^ 
 and conveyed by the grantor to the grantee, then the deed to be 
 void, was held to be a mortgage. {Steioard v.^ Hutchins, 13 Wend. 
 485 ; affirmed 6 EiU, 143.) 
 
 In such a case, under the statute of New York, the mortgagee has 
 no remedy by ejectment in a court of law, but is confined to his rem- 
 edy in equity. (2 B. S. 312, § 57.) Indeed, the statute has w^isely
 
 MORTGAGES. HI 
 
 taken away the remedy by ejectment from the mortgagor or his as- 
 signs or representatives, in all cases. 
 
 It is usual to insert the defeasance in the same instrument, and 
 such is the most advisable practice. But it is not indispensable to 
 the validity of the instrument. Where land was conveyed abso- 
 lutely, and the grantee, by a separate instrument or defeasance, cov- 
 enanted to reconvey to the grantor, on his paying a sum of money, 
 the transaction was held to amount only to a mortgage. [Peterson 
 V. Clarke, 15 John. 205. Broivn v. Dean, 3 Wend. 208. Dunham, 
 V. Da7j, 2 John. Ch. 182. 15 John. 555.) 
 
 There is a distinction between a conditional sale and a mortcase. 
 If the debt remains it is a mortgage ; but if it be extinguished by 
 mutual agreement, express or fairly implied, the instrument is not 
 a mortgage. (Eckford's Ex'r v. De Kay, 8 Paige, 89 ; affirmed 
 2G Wend. 37. Hobinson v. Cropsey, 2 Ed. V. Ch. Rep. 138.) 
 
 Though conditional sales between debtor and creditor are to be 
 scanned with jealousy, they may still be ujjheld if fairly made. Such 
 contracts are lawful in themselves, and it is only when an oppressive 
 use is made of the advantage which a creditor has over his debtor 
 that the courts are inclined to treat the transaction as a morto-ajre. 
 In one case where a creditor, whose debt was about equal to the value 
 of the land, received a conveyance of it from the debtor in discharge 
 of the debt, and gave the grantor a stipulation that if he would find 
 a purchaser in a year he should have all the purchase money beyond 
 the debt and interest, the transaction Avas held not to be a mortgage. 
 {Holmes v. Grant, 8 Paige, 243. Cooper v. Hill, 3 Hill, 95.) 
 
 So, also, in a later case, where the grantor conveyed lands to the 
 grantee by an absolute deed, and the grantee on the same day exe- 
 cuted a covenant to the grantor, reciting that the conveyance was 
 made for the purpose of paying a sum of money which was specified, 
 and covenanting that he would not convey the premises within one 
 year without the assent of the grantor ; and if the grantor, within 
 that time, should find a purchaser, the grantee would convey to such 
 purchaser, on receiving the amount with interest, for which the land 
 had been conveyed to him ; and that in case such sale should not 
 be made within the year, it should then be submitted to certain per- 
 sons named to determine what additional sum the grantee should 
 pay for the land, which sum the grantee covenanted to pay ; it was 
 held by the supreme court that this transaction did not amount to a 
 mortgage. {Baker v. Thrasher, 4 Denio, 493.) The relation of
 
 112 MORTGAGEvS. 
 
 debtor and creditor did not exist in this case, and the conveyance 
 was not made to secure the payment of a ])rior indebtedness, but in 
 payment of the debt, {Id. And see remarks of Branson, J. dis- 
 a2yp7'Ovi7ig of Palmer v. GurnscT/, 7 Wend. 248.) 
 
 The assignment of a hind contract fur the security of a debt due 
 to the assignee, upon the condition, that if the debt was paid at the 
 time stipuLated, the assignee would reassign the interest, was held 
 to be, in equity, a mortgage, and that the assignor had the right of 
 redemption, {Brochway v. Wells, 1 Paige, 617,) 
 
 So also, in another case, where A. assigned the mortgage of a third 
 person to B, as security for a less sum than the amount due thereon, 
 with power to collect such sum, covenanting that it was due, and 
 that such third person would pay it by a certain day, it was held to 
 be a mortgage only, {Slee v, Manhattan Co. 1 Paige, 48.) 
 
 So when a sealed instrument, executed in 1809, granting land for 
 the term of one year on rent, and conditioned to be void on payment 
 of a certain sum, and with a covenant on the part of the grantor to 
 pay it at the end of the year, it was held to be valid as a mortgage. 
 IeIUoU V, Pell, 1 Paige, 2G3.) 
 
 How tar a deed absolute in its terms may be shown by parol evi- 
 dence to have been intended as a mortgage, has led to contradictory 
 decisions. In this state such evidence has been uniformly held ad- 
 missible in^courts of equity. In Webb v. Rice, (6 Hill, 219,) revers- 
 ing the same case in 1 Hill, 606, the question arose in an action of 
 ejectment, and it was held by the court of errors that such evidence 
 was inadmissible in a court of law to show that a deed, absolute on 
 its face, was intended as a mortgage. Whether such evidence was 
 admissible in a court of equity, under any circumstances, did not be- 
 come a question. 
 
 That decision, so far as it could be construed as affecting the ad- 
 missibility of such evidence in a court of equity, was in conflict 
 with the uniform course of the decisions in this state, and of some 
 elsewhere. {Strong v. Trustees of Mitchell, 4 John. Ch. 167. Marks 
 V. Pell, 1 id. 594, Clark v, Henry, 2 Coiven, 234, Dey v. Dun- 
 Tiam, 2 John. Ch. 189. Peterson v. Clark, 15 John. 205. Gilchrist 
 V. Cunningham, 8 Wend. 641. Yarborough v. Neivell, 10 Yerger, 
 376. Whitheck v. Kane, 1 Paige, 202. Slee v. Manhattan Com- 
 pany, 1 id. 48. Van Buren v. Olmstead, 5 id. 9. Lansing v. Pm- 
 sell, 3 Barb. Ch. 325. James v. Johison, 6 John. Ch. 417. ^ Atk. 
 389. 2 id. 99. But see Cook v. Eaton, 16 Barb, 439, contra.)
 
 MORTGAGES. 113 
 
 The case of Wehb v. Rice was decided in 1843. Since that time the 
 jurisdiction in law and equity has been consolidated, and the former 
 court of chancery abolished. But the court of appeals has steadily 
 adhered to the well settled rule that a deed absolute upon its face 
 may be shown by parol evidence to be a mortgage, notwithstanding 
 the case of Webb v. Bice, {supra.) {Hodges v. The Tennessee M. 
 and T. Ins. Co. 4 Selden, 416. Dobson v. Pearce, 2 Kernan, 156. 
 Crary v. Goodman, Id. 266. Dcspard v. Walbridge, 1 Smith, 15 
 N. Y. Rep. 374. Chester v. Bank of Kingston, 2 id. 343.) All 
 these latter cases arose since the case of Webb v. Bice, and since the 
 adoption of the code of procedure. It is quite clear upon authority 
 in this state, that the evidence is admissible, whether the action be 
 such as was formerly called an action at law or an equitable action. 
 There are a few other cases where the same principle prevails. Thus, 
 a resulting trust may be proved by parol ; {Bottsford v. Burr, 2 
 Johyi. 409 ; Boyd v. McLean, 1 id. 582 ;) the fact that a joint 
 maker of a bond or note was a surety ; {Chester v. Bank of Kings- 
 ton, supra;) that a deed or mortgage was given as a collateral se- 
 curity. {Id.) 
 
 With regard to the assignment of mortgages, it has been repeat- 
 edly held that as such assignment is not a conveyance of land within 
 the meaning of the statute of frauds, it is equally effectual by a 
 mere delivery, as by a written assignment under seal. {Bunyan v. 
 Messereau, 11 John. 534.) The debt is considered the principal, 
 and the land as a mere incident. The assignment of the debt by 
 parol, draws the land after it as a consequence. 
 
 But the assignee of a bond and mortgage takes them subject to 
 all the equities of the original mortgagor, but not to the latent equity 
 of a third person. {Murray v. Livingston, 2 John. Ch. 441. Liv- 
 ingston v. Dean, 2 id. 479. James v. Mowrey, 2 Coiu'en, 246. Pen- 
 dleton V. Fay, 2 Paige, 202. Evertson v. Evertson, 5 id. 644. 
 L'Amoreaux v. Vandenburgh, 7 id. 316. Evans v. Ellis, 5 Denio, 
 640; affirmed, Ellis v. Messerole, 11 Paige, 467.) 
 
 He cannot be protected in equity as a bona fide purchaser with- 
 out notice, unless he has acquired the legal as well as the equitable 
 title ; and if he purchased from a fraudulent holder, he can be pro- 
 tected only to the value of the property, or the amount of the money 
 paid for it. {Peabody v. Fenton, 3 Barb. Ch. 451.) The assignee 
 of the assignee of a mortgage takes only the title of his assignor, 
 whatever it may be. {Sweet v. Van Wyck, Id. 647.) 
 
 Will.— 8
 
 114 LIEN OF VENDOR. 
 
 The courts will protect the rip;hts of a party who has made ad- 
 vances in good fiiith upon the credit of a security to be assigned to 
 him. Where a mortgagor applied to a third person for an advance 
 of money to enable him to take up his mortgage, promising to give 
 him the same security for such money as the mortgagee then held, 
 and upon receiving the money, paid it to the mortgagee and took an 
 assignment of the mortgage from him to such third person, it was 
 held that the mortgage was not discharged, and that the assignee 
 was entitled to hold the same as a security for the money thus ad- 
 vanced. (White V. Knapp, 8 Paige, 173.) 
 
 The deposit of title deeds by way of security for money advanced 
 gives to the party an equitable lien in the premises by way of mort- 
 gage. (Per Sutherland, J., Jackson v. Parkhurst, 4 Wend. 369.) 
 Such lien cannot, however, be set up at law as a legal estate. (Jack- 
 son V. Dunlap, 1 John. Cas. 114. Sa7ne v. Phipps, 12 John, 418.) 
 
 Tlie lien of the vendor for the purchase money is analogous to an 
 equitable mortgage. When the vendor delivers possession of an 
 estate to a purchaser, without receiving the purchase money, equity, 
 whether the estate be or be not conveyed, and although there was no 
 special agreement for that purpose, ^gives the vendor a lien on the 
 land for the money. (Sugden on Vend. 857. Garson v. Giren, 
 1 Joh7i. Ch. 308. Clark v. HaU, 7 Paige, 382.) The purchase 
 money is prima facie a lien, and it lies on the vendee, or his heirs, 
 to show that the vendee agreed to rest on other security. It is not 
 devested by taking the vendee's negotiable note for the same. 
 (Garson v. Green, supra.) Taking the note of a third person, no^ 
 as security but as payment of a part of the purchase money, docs 
 not affect the lien for the residue. (Uallock v. Smith, 3 Barh. 267.) 
 It exists against subsequent purchasers and incumbrancers, when 
 they advance no new consideration, or have notice. (Id.) It is su- 
 perior to the lien of a prior judgment against the vendee. (Arnold 
 V. Patrick, 6 Paige, 310.) 
 
 The principles of equity do not require that this lien for the pur- 
 chase money should be upheld further than as against the vendee 
 and his heirs, or volunteers, or purchasers with notice of the lien. 
 It should be defeated by an alienation to a bona fide purchaser 
 without notice. (Bagley v, Greenleaf, 7 Wheaton, 46.) 
 
 The principle on which the doctrine rests is, that the vendee on 
 the sale of real estate becomes the trustee of the vendor for the pur- 
 chase money, or of such portion of it as remains unpaid, and the
 
 MORTGAGES. 1X5 
 
 vendor is the trustee of the purchaser for the land. ( Watson v. Le 
 How, 6 Barb. 484. Swartout v. Bzirr, 1 ib. 495, 499. Champion 
 V. Brown, 6 Jolm. Ch. 402, 3.) But a subsequent purchaser from 
 the vendor in possession, advancing a full consideration, and having 
 no notice of the equitable lien of the first vendee, has a better equity 
 than the latter, who by neglecting to consummate his purchase by 
 an actual change of possession, has enabled his vendor to perpetrate 
 a fraud. 
 
 ^ Formerly, if a judgment debtor was in possession of land at the 
 time of the sale thereof on an execution against him, he was estop- 
 ped from denying that he had any interest in the land. The bare 
 possession was an interest which might be sold on execution, and the 
 purchaser acquired the same interest which fhe defendant in the 
 execution had, and no more. If the latter was a mere tenant at 
 will, or by sufferance, or even was in possession without color of 
 right, the purchaser, as against him and those claiming under him, 
 had a right to be substituted in his place, so far as respected the 
 possession and any legal rights of the defendant connected there- 
 with.^ {Talbor v. ChamberUn, 3 Paige, 220. Jachson v. Graham, 
 3 Caines, 188. Same v. Parker, 9 Cowen, 84. Grosvenor v. AUe7i, 
 9 Paige, 76. G^i^n v. Spe7icer, 6 Hill, 525. Watson v. Le Roio, 
 6 Barb. 484.) But the revised statutes (1 R. 8. 744, § 4) have so 
 far changed the rule in this respect, that the interest of a party 
 holding a contract for the purchase of land cannot be barred by the 
 docketing of a judgment or decree, nor be sold by execution upon 
 such judgment or decree. This interest, whatever it is, can now 
 be only reached by a bill in equity, and can thus be sold and trans- 
 ferred to the purchaser upon such terms as the court shall deem most 
 conducive to the interest of the parties. (1 R. S. 744, §§ 4, 5.) 
 Neither an estate at will or by sufferance, or the interest in a con- 
 tract for the purchase of land, can be sold on execution. (1 R. S. 
 723 ; 744, §§ 4, 5. Moyer v. Hinman, 17 Barb. 137. Bigelow 
 V. Finch, Id. 394. Mead v. Gregg, 12 id. 653.) 
 ^ When several equities affect the same estate, it is a familiar prin- 
 ciple in equity jurisprudence, if they be otherwise equal, they will 
 attach upon the estate according to the periods at which they com- 
 menced ; for it is a maxim of equity as well as of law, qui prior est 
 tempore, potior est Jure. {Berry v. Mut. Ins. Co. 2 John. Ch 608. 
 Watson V. Le Roio, 6 Barb. 485. Lynch v. Mut. Ins. Co. 18 Wend. 
 253. Grosvenor v. Allen^ 9 Paige, 76, 77.)
 
 116 MORTGAGES. 
 
 Where lands are contracted to be sold, and the purchaser ccntracts 
 to sell a part of such lands, the residue is the primary fund fur the 
 payment of the original purchase money ; and if the original pur- 
 chaser transfers different parcels, they are chargeable in the inverse 
 order of sale. {Crafts v. AspimoaU^ 2 Comst. 289.) 
 
 AVe have hitherto spoken of mortgages in fee, which are of the 
 most frequent occurrence in this state. But a mortgage may be 
 given of an estate for years, and thus convey to the mortgagee only 
 an interest in a chattel real. In the English books it is said that 
 in the case of mortgages for terms for years, if the money is not paid 
 on the day appointed, the estate becomes ahsolictely vested at law ia 
 the mortgagee for the residue of the terra. And though a court of 
 equity allows the m(3rtgagor to redeem, within a reasonable time, by 
 paying the principal, interest and costs, yet such payment only gives 
 the mortgagor an equitable right to the term. {Cruise's Big. title 
 15, Mortgages, ch. 1, § 16 to 19.) It was also supposed that mort- 
 gages/or years were attended with this advantage, that on the death 
 of the mortgagee, the term and the right to receive the mortgage 
 debt vested in the same person ; whereas in the case of a mortgage 
 in fee, the estate, on the death of the mortgagee went to the heir or 
 devisee ; and the money was payable to his executor or administra- 
 tor. (7c?.) In this state, these consequences do not follow. 
 
 The statute with regard to the recording of mortgages and the 
 power of sale and foreclosure makes no distinction between mortgages 
 in fee and mortgages for term of years. In both cases the money 
 received by the mortgagee goes to the executors or administrators 
 and not to the heir. {See as to recording, &c. 1 B. S. 756 ; as to 
 assets, 2 id. 83.) With us, too, the mortgagor is deemed seised, 
 and is the legal owner of the land as to all persons except the mort- 
 gagee. Indeed, he may maintain trespass against the mortgagee, or 
 a person acting under his license. {Runyan v. Mersereau, 11 John. 
 534. Hitchcock v. Harrington, 6 id. 290. Coles v. Coles, 15 id. 
 313.) The mortgagor is, for every substantial purpose, the real owner 
 of the land, and the mortgagee has merely a lien upon it. {Astor 
 V. 3nUer, 2 Paige, Q^. Astor v. Hoyt, 5 Wend. 602.) The mortgage 
 is a mere security for the debt ; and the only right the mortgagee now 
 has in the land itself, is to take possession thereof, with the assent of 
 the mortgagor, after the debt has become due and payable, and to 
 retain such possession until the debt is paid, ( Waring v. Smyth, 
 2 Barl). Ch. 119.) An outstanding mortgage is not a breach of the
 
 FUTURE ADVANCES. 117 
 
 covenant of seisin. {Sedgivich v. HallenhacJc, 7 John. 376.) The 
 mortgagor has no such estate in the land before foreclosure as can 
 be sold on execution. (3£orris v. 3Ioivatt, 2 Paige, 586.) 
 
 In general, a mortgage is only given to secure the repayment of 
 money borrowed at the time, according to the terms of the contract, 
 or for a pre-existing debt, or as a security for some obligation incur- 
 red by the mortgagee for the mortgagor, as where the former has 
 become bail for the latter, or the like. But this form of contract 
 sometimes takes a far wider scope. It often becomes necessary to 
 provide for future advances and responsibilities, and it is desirable 
 to do so without the trouble and expense of a new mortgage on ev- 
 ery successive advance. The parties may, by their original agree- 
 ment, provide for such a case. The mortgage'should be for a sum 
 large enough to cover the contemplated advances, and should express 
 on its face its purpose and object. The futui-e advances will be cov- 
 ered by the mortgage, or by a judgment, if that security is adopted, 
 in preference to the claim under a junior intervening incumbrance, 
 with notice of the agreement. {Truscott v. King, 2 Seld. 157.) 
 
 The principle is that subsequent advances cannot be tacked to a 
 prior security, to the prejudice of a honafide junior incumbrancer ; 
 but a mortgage, or a judgment, is always good, to secure future 
 loans when there is no intervening equity, (/d) 
 
 The case of Gordon v. Graham, decided by Lord Cowper a hun- 
 dred and forty years ago, and which is cited by Jewett, J. in Trus- 
 cott V. King, {supra,) with approbation, is an illustration of the 
 principle on which the doctrine rests. In that case, A. morto-ao-ed 
 his estate to B. for a term of years, to secure a sum of money already 
 lent to A., and also all other sums which should thereafter be lent, 
 or advanced to him. A. made a second mortgage to C. for a certain 
 sum, with notice of the first mortgage, and then the first mortgagee 
 having notice of the second mortgage, lent a further sum. His lord- 
 ship decreed that the second mortgagee should not redeem the first 
 mortgage, without paying as well the money lent after, as that lent 
 before, the second mortgage was made ; for, he added, it was the 
 folly of the second mortgagee with notice to take such security. 
 
 The supreme court, in Livingston v. Mclnlay, (16 John. 165,) 
 applied this doctrine to a judgment entered up by confession, and 
 held that where it was part of the original agreement at the time 
 the judgment was entered, that it should be a security for future 
 advances, beyond the amount then actually due to the plaintiff, they
 
 118 FUTURE advancp:s. 
 
 saw no valid objection to it more than to a mortgage Ix'ing held as 
 security for future advances ; so far, at least, as the amount of the 
 condition of the bond. The same doctrine has been repeatedly held 
 in this state, and in the supreme coiirt of the United States, and in 
 the courts of our sister states, and no distinction has been ttiken in 
 this respect between a security by judgment and a security by mort- 
 gage, {Brinkcrlioff v. Marvin, 5 John. Ch. li. 320. James v. 
 Johnson, 6 id. 417 ; aS'. C. reversed in error, hut not impairing it as 
 to this question, 2 Coiven, 24G. United States v. Hoe, 3 Cranch, 73. 
 Shin-as v. Craig, 7 id. 34. Conrad v. The Atlantic Ins. Co. 1 Pe- 
 ters, 386, 447. Leeds v, Cameron, 3 Sumner, 488. Hubbard v. 
 Savage, 8 Conn. B. 215. Walker v. Snediker, 1 Hof. Ch. U. 145. 
 Commercial Bank v. Cunningham, 24 Pick. 270. Monell v. Smith, 
 5 Cowen, 441. Lyle v. Discomh, 5 Bin. 585. Lansing v. Wood- 
 worth, 1 Sandf. Ch. B. 43. Barry v. Merchants' Ex. Co. Id. 
 280, 314.) 
 
 It was well remarked by Jewett, J. in Truscott v. King, (supra,) 
 that in order to secure good faith, and prevent error and imposition 
 in dealing, it is necessary that tlie agreement as contained in the 
 record of the lien, whether by mortgage or judgment, should give all 
 the requisite information as to the extent and certainty of the con- 
 tract, so that a junior creditor may, by inspection of the record and 
 by common prudence and ordinary diligence, ascertain the extent of 
 the incumbrance. {St. Andreiv's Church v. Tompkins, 7 John. Cli. 
 14. Pettibone v. GriswoJd, 4 Conn. B. 158. Stoughton v. Pasco, 
 5 id. 442. Shepard v. Shepard, 6 id. 37. Hubbard v. Savage, 8 
 id. 215. Gales v. Henry, 6 Watts, 57. Walker v. Snediker, supra. 
 Hart V. Chalker, 14 Co7in. B. 77.) 
 
 Where a bond and mortgage are actually given to secure a particu- 
 lar debt therein mentioned, the mortgagee cannot, as against subse- 
 quent purchasers or incumbrancers, hold it as a lien for an entirely 
 distinct and different debt, upon jiarol proof that it was intended to 
 cover that debt also. (The Bank of Utica v. Finch, 3 Barb. Ch. 
 302.) But he does not lose his security by extending the time of 
 payment, although such extension is in the form of a renewal of the 
 note which was held as collateral security for the payment of the 
 same debt ; when it was not the intention of either party to dis- 
 charge the mortgage security. {Id.) 
 
 A mortgage given for a present debt, and to secure future advan- 
 ces, should either be taken for a specific sum of money, sufficiently
 
 . RECORDING AND PRIORITY. 119 
 
 large to cover the amount of the floating debt intended to be secured, 
 or should specifically mention the sums thereafter to be advanced. 
 It is presumed that either course would be free from objection. {Id. 
 Truscott V. King, 2 Seld. 161.) The purpose and intent for which 
 the security was executed may be shown by parol evidence. Such 
 evidence does not contradict the written instrument. 
 
 But neither a mortgage or judgment can be rendered available to 
 secure the party taking them, for future advances or responsibilities, 
 by any subsequent parol agreement, in preference to the lien of a 
 junior incumbrancer. {Id. Ex parte Hooper, 19 Ves. 477.) 
 
 Section IL 
 Of recording, and priority of mortgages and assignments. 
 
 The early statutes of this state required the registry of mortgages 
 and of the defeasance thereof, but did not require them to be record- 
 ed in full length, (2 Greenl. 100.) At a later period mortgages 
 were placed upon the same footing as other deeds with respect to 
 the mode of their being recorded, and for nearly forty years there 
 has been no essential difference between them. The older cases 
 speak of mortgages being registered or unregistered; a language 
 •which is equally .appropriate to the present practice. 
 
 By the existing law, every conveyance of real estate within this 
 state, made after the passing of that act, is required to be recorded 
 in the office of the clerk of the county where such real estate is situ- 
 ated ; and every such conveyance not so recorded is declared to be 
 void as against any subsequent purchaser, in good faith and for a 
 valuable consideration, of the same real estate, or any portion there- 
 of, whose conveyance shall be first duly recorded. (1 R. S. 756, § 1.) 
 
 By the 2d section of the act, the clerks of the several counties are 
 required to provide difierent sets of books for the recording of deeds 
 and mortgages ; in one of which sets all conveyances, absolute in 
 their terms, and not intended as mortgages, or as securities in the 
 nature of mortgages, are to be recorded ; and in the other set, such 
 mortgages and securities are to be recorded. 
 
 The 3d section provides that every deed conveying real estate, 
 which by any other instrument in writing, shall appear to have been 
 intended only as a security in the nature of a mortgage, though it 
 be an absolute conveyance in terms, shall be considered as a mort- 
 gage • and the person for whose benefit such deed shall be made,
 
 120 OBJECT OF REGISTRY. 
 
 shall not derive any advantage from the recording thereof, unless 
 every writing operating as a defeasance of the s.ame, or explanatory 
 of its being designed to have the effect of a mortgage, or conditional 
 deed, be also recorded therewith, and at the same time. 
 
 If a conveyance was intended only as a mortgage, there can be no 
 good reason why the terras on which it is to be defeasible should not 
 aj^pear on its face. If, through inadvertence, it is taken as an abso- 
 lute deed, the holder may comply with the terms of the statute, by 
 making a written defeasance specifying the conditions on which it 
 was intended to be given, and recording both together in the book 
 of mortgages. If this be done before the rights of any third party 
 have intervened, he will not be molested, and if he neglects it, he 
 will only be in the same situation of every other mortgagee who neg- 
 lects to have his security recorded. {White v. Moon, 1 Paige, 554.) 
 
 The statute concerning registry applies to mortgages of leasehold 
 as well as of freehold estates. (Johnson v. Stagg, 2 John. 510. 
 Berry v. The Mut. Ins. Co. 2 John. Ch. 603.) The registry under 
 the former law, and of course the recording under the existing law, 
 without due proof or acknowledgment, is not notice to a subsequent 
 purchaser. (Frost v. Beehman, 1 id. 288.) 
 
 The statute does not make the registry of a mortgage indispensa- 
 ble. The omission only exposes the mortgagee to the hazard of los- 
 ing his lien, in case of a subsequent bona fide purchaser, or to the 
 postponement of it to a subsequent mortgage first recorded. As be- 
 tween the original parties, the acknowledgment and recording are 
 not necessary to its validity ; nor would the entire omission to re- 
 cord the power affect the sale as between them. (Berry v. The Mut. 
 Ins. Co. 2 John. Ch. 603. Jackson v. Golden, 8 Coiven, 266.) Nor 
 is priority of registry of any avail against actual previous notice of 
 an unrecorded mortgage. (Id.) 
 
 The decisions in this state, referred to in the preceding section, 
 permitting a deed absolute in terms, to be converted into a mort- 
 gage by parol evidence, are apparently adverse to the policy of the 
 recording laws. Such security will not operate to the prejudice of 
 subsequent bona fide purchasers or incumbrancers without notice. 
 The decisions must be understood as applying only to the parties to 
 the deed, and their representatives, and to those who become subse- 
 quent purchasers or mortgagees, with full notice that the deed abso- 
 lute in terms was intended as a mortgage. Notice to the agent or 
 attorney is, in such cases, notice to the principal. But the notice,
 
 VALUABLE CONSIDERATION^. 121 
 
 to supply the place of a recording of the mortgage, must be full and 
 clear ; must be more than barely sufficient- to put the party on in- 
 quiry. (JacJcson v. Van Vallcenburgh, 8 Cowen, 260. Willard's 
 Eq. Juris. 250, 251, 608. Fort v. Burch, 6 Barb. 60.) A junior 
 mortgagee with notice of a prior unrecorded mortgage, cannot gain 
 priority by recording his mortgage. Nor can a hona fide assignee 
 of such a mortgage, without notice, unless his assignment be record- 
 ed before the prior mortgage. {Fort v. Burch, 5 Denio, 187.) 
 
 A second mortgagee who has neglected to have his mortgage reg- 
 istered, will not be relieved against a prior unregistered mortgage, 
 unless he shows from non-delivery of possession, or other circum- 
 stances, that imposition has been or might be practiced upon him 
 by or with the concurrence of the first mortgagee which could not be 
 detected or guarded against by the exercise of ordinary diligence. 
 The mere circumstance of leaving the title deeds with the mortgagor, 
 is not of itself sufficient evidence of fraud so as to postpone the first 
 morta;agee to a second mortgagee who has taken the title deeds with- 
 out notice of the prior mortgage. There must be fraud, or gross 
 negligence equivalent to fraud, on the part of the first mortgagee. 
 The recording of a mortgage is with us a substitute for the deposit 
 of the title deeds. {Berry v. Mutual Ins. Co. 2 John. Ch. 603.) 
 
 A hona fide purchaser of land, without notice of a prior unrecord- 
 ed mortgage, holds the land discharged of its lien ; and a subsequent 
 fecording of the mortgage cannot affect his title, nor the title of his 
 grantees with notice of the mortgage. {Jacksoji v. McChesny, 7 Coiv- 
 en, 360.) If a mortgagee receive his mortgage with notice of a former 
 one, and with the understanding that it is to have priority, the re- 
 cording of his own first cannot give it preference. {JacJcson v. Van 
 Vallcenburgh, 8 Cowen. 260.) 
 
 As the statute protects subsequent purchasers in good faith, and 
 for a valuable consideration, it becomes important to understand 
 the meaning of those terms. Something more is required than a 
 mere valid consideration, sufficient to uphold the transaction be- 
 tween the parties. These words have received, in the courts of this 
 state, a definite judicial construction. They import that the pur- 
 chaser, before he had notice of the prior equity of the holder of an 
 unrecorded mortgage, must have advanced a new consideration for 
 the estate conveyed, or have relinquished some security for a pre- 
 existing debt due to him. The mere receiving of a conveyance in
 
 122 BEFORE WHOM ACKNOWLEDGED. 
 
 payment of a pre-existing debt is not sufficient. (Dickerson v. Til' 
 linghastj 4 Paige, 215.). The analogous cases of the assignee of 
 negotiable jj.iprr for valuable consideration, without nt)tice of ii j)ri(»r 
 equity, throw light on the subject. In t\u)ne cases it has unifonnly 
 been held that there must be a parting with a new consideration, by 
 Buch assignee or purchaser, a giving up of some other security, or 
 devesting himself of some right, or placing himself in a worse situation 
 than he would been in if he had received notice of the prior equita- 
 ble title or lien, previous to his purchase, in order to constitute him 
 a bona fide purchaser for a valuable consideration, within the mean- 
 ing of the rule. The leading cases on the subject in our higher 
 courts are Coddinyton v. Bay, (20 John. 637 ;) Stalker v. McDon- 
 ald, (6 Hill, 93;) Harris v. Norton, (16 Barb. 264.) 
 
 The term ^^ purchaser," as used in the statute, embraces every 
 person to whom any estate or interest in real estate shall be con- 
 veyed for a valuable consideration, and also every assignee of a mort- 
 gage or lease, or other conditional estate. (1 B. S. 762, §§ 37 and 
 38.) Hence a mortgagee is brought within the term, contrary to 
 the decisions under the former law. {Berry v. Mutual Ins. Co. 
 2 John. Ch. 603.) 
 
 Under the former law the recording acts did not apply to the as- 
 signment of a mortgage ; and no notice of the assignment, actual or 
 constructive, was necessary to protect the jissignee of the mortgage 
 against a subsequent assignee or against other persons claiming un- 
 der the assignee. The rights of the parties in this respect depended 
 upon the rule existing before the. recording acts. That rule was 
 that the first grantee or assignee of an interest in real estate was 
 entitled to a preference, whether the subsequent assignee or purchaser 
 had or had not notice of the prior assignment or grant. The revised 
 statutes, above refeiTed to, have extended the benefit of the recording 
 acts, by embracing under the iQXTO. jyurchasers parties not formerly in- 
 cluded in it. {Vanderkemp v. Skelton, 11 Paige, 37. Tlie N. Y. 
 Life Ins. and Trust Co. v. Smith, 2 Barh. Ch. 82.) 
 
 The statute requires that to entitle conveyances to be recorded 
 they should be acknowledged by the parties executing the same, 
 or be proved by a subscribing witness thereto. [See Appendix for 
 act, 3 R. S. 46, § 4, 5th ed. et seq. for the list of persons before whom 
 a deed or mortgage can be proved or acknowledged.] The officer tak- 
 ing the acknowledgment is required to know or to have satisfactory 
 evidence that the person making such acknowledgment is the indi
 
 ACKNOWLEDGMENT. 123 
 
 vidual described in and who executed such conveyance. (1 R. S. 758, 
 § 9.) The acknoAvledgment of a married woman residing within this 
 state, to a conveyance purporting to be executed by her. cannot be 
 taken unless in addition to the requisites above, she acknowledge on a 
 private examination apart from her husband, that she executed such 
 conveyance freely and without any fear or compulsion of her husband ; 
 and no estate of any such married woman can pass by any conveyance 
 not so acknowledged, {Id. § 10.) But when a married woman, not 
 residing in this state, joins with her husband in any conveyance of 
 any real estate situated within this state, the conveyance has the 
 same effect as if she were sole ; and the acknowledgment or proof of 
 the execution of such conveyance by her may be the same as if she 
 were sole. {Id. § 11.) 
 
 When the proof of the execution of a conveyance is made by a 
 subscribing witness, such witness is required to state not only his 
 own residence, but also that he knew the person described in and 
 who executed the conveyance. This proof cannot be taken unless 
 the officer by whom it is taken is personally acquainted with such 
 subscribing witness, or has satisfactory evidence that he is the same 
 person, who was a subscribing witness to such instrument. {Id. § 12. 
 Jachson v. Osborn, 2 Wend. 555. Same v. Goidd, 7 id. 364.) The 
 object of these provisions is to prevent, as far as practicable, the 
 fraudulent personation of one person for another, [For form of 
 certificate of proof and acknowledgment, see Appendix.] 
 
 It would seem to follow from the foregoing that a mortgage must 
 be either acknowledged by the mortgagor, before a proper officer, or 
 be attested at the time of its execution, by one or more subscribing 
 witnesses, by whom it can be proved, in order to its being recorded. 
 But the statute concerning the alienation by deed, which will be 
 noticed more at large elsewhere, while abolishing the mode of con- 
 veying lands by feoffment with livery of seisin, enacts that every 
 grant in fee, or of a freehold estate, shall be subscribed and sealed 
 by the person from whom the estate or interest conveyed is intended 
 to pass, or his lawful agent ; if not duly acknowledged previous to 
 its delivery according to the provisions of the act we have been con- 
 sidering, its execution and delivery shall be attested by at least one 
 witness ; or if not so attested, it shall not take effect as against a 
 purchaser or incumbrancer until so acknowledged. (1 B. S. 738, 
 §§ 136, 137.) The purchasers here referred to, are such as are sub- 
 sequent to the execution of the unacknowledged conveyance. It is
 
 124 MORTGAGE FOR PURCHASE MONEY. 
 
 valid between the parties, and as to prior purchasers or incumhran- 
 cers, though it be neither acknowledired before the proper officer, or 
 attested by a subscribing witness. {Wood v. C'hapin, 3 Kcrii. 509. 
 Voorhes v. Fresh. Ch. Amsterdam, 17 Barb. 103.) 
 
 A mortgage not registered has a j>reference over a subsequent judg- 
 ment docketed ; but should the land be sold by the sheriiF under tho 
 judgment prior to the registry of the mortgage, a honajide pur- 
 chaser at the sheriff's sale would be protected against the mortgage. 
 (Jackson v. Dubois, 4 John. 216.) 
 
 The bonafide mortgagor of a fraudulent grantee, whose mortgage 
 is recorded before a sherift''s deed obtained by a creditor of the 
 grantor, on a judgment rendered after the recording of the fraudulent 
 deed, is entitled to a preference. {Ledyard v. Butler, 9 Pairje, 132.) 
 
 There is a controlling equity in favor of the claim of the vendor 
 of lands for the purchase money, over that of any creditor of the 
 vendee. This equity is recognized and enforced by the statute which 
 provides that whenever lands are sold and conveyed, and a mortgage 
 is given by the purchaser at the same time, to secure the payment 
 of the purchase money or any part thereof, such mortgage shall bo 
 preferred to any previous judgment which may have been obtained 
 against the purchaser. (1 R. S. 749, § 5.) Literally, this applies 
 only to a mortgage given by the })urchaser to the vendor. But 
 should a third person, by agreement between the parties, advance the 
 money, and the mortgage be given directly to him, it comes within 
 the equity of the statute, and such mortgagor is entitled to the same 
 preference over a prior judgment as the vendor of the land would 
 have had, had the mortgage been executed to him, {Jackson v. 
 Austin, 15 John. 477.) 
 
 It is on this principle of an instantaneous seisin of the vendee, in 
 cases where a mortgage is given back for the purchase money, that 
 the widow of the vendee is not, in such cases, entitled to dower. 
 {Stoiv V. Tifft, 15 John. 458.) 
 
 On this subject it has been held as a rule of presumption, that 
 where upon the purchase of land, a deed is executed by the 
 vendor, and a mortgage upon the land purchased is executed by the 
 purchaser, and both conveyances are acknowledged and recorded at 
 the same time, the presumption is that they were executed simulta- 
 neously, and that the mortgage was intended to secure the purchase 
 money, although given to a third person instead of the vendor, by the 
 direction of the latter. {Cunningham v. Knight,! Barb. S. C. R. 399.)
 
 INCIDENTS. 
 
 Section III. 
 
 125 
 
 Of the rights and interest of the parties at laiv and in equity, and 
 of certain incidents of the estate. 
 
 The English doctrine with respect to mortgages has been very 
 greatly departed from in this state. In England it is laid down by 
 Mr. Cruise that upon the execution of the conveyance by which a 
 mortgage is created, the legal estate of freehold and inheritance, or 
 the legal estate of the term of years created by the mortgage, be- 
 comes immediately vested in the mortgagee. A clause, it i^ said, 
 IS usually inserted in the mortgage deed, that until default is made 
 in payment of the mortgage money and the interest, the mortgagor 
 shall retain the possession and receive the rents. He thus beconies, 
 in some respects, a tenant at will of the mortgagee; and when the 
 proviso is that the mortgagor shall continue in possession, for the 
 number of years given for the repayment of the mortgage money, 
 he will be tenant for years of the mortgagee. 
 
 A different doctrine has long prevailed in this state. With us it 
 has been well settled from an early day, that the mortgagee has a 
 mere chattel interest; and that the mortgagor is considered as the 
 proprietor of the freehold. The mortgage is deemed a mere inci- 
 dent to the bond or personal security for the debt ; and the assign- 
 ment of the interest of the mortgagee in the land, without an As- 
 signment of the debt, is considered in law as a nullity. {Jackson 
 V. Bronson, 19 John. 325.) This doctrine was carried out to its 
 consequences in Rumjan v. Mersereau, (11 John. 534,) where it was 
 decided that the mortgagor or a purchaser of the equity of redemp- 
 tion may maintain trespass against the mortgagee, or a person act- 
 ing under his license. These cases do not rest upon any stipulation 
 m the mortgage deed reserving the possession to the mortgagor until 
 •default, as no such stipulation is usually inserted in our mortgages 
 The doctrine rests upon the general principle which has already 
 been elsewhere adverted to, that a mortgage is merely a security 
 for the debt, and that the mortgagee has no interest in the land 
 but only a lien upon it; the mortgagor being the legal owner' 
 {Hitchcock V. Harrington, 6 John. 290. Coles v. Coles 15 id 319* 
 Aymar v. Bill, 5 John. Ch. 570. Morris v. Mowatt, 2 Paige 586
 
 126 REMEDY OF MORTGAGEES. 
 
 Astor V. JUiller, Id. 68. Same v. Iloyt, 5 Wend. C02. Waring v. 
 Smyth, 2 Barb. Ch. 119. Dickinson v. Jackson, 6 Cowen, 147.) 
 
 With us, to(i, it is unneccssjiry that the in()rt<;a;.^e should contain 
 a sti})ulation fur the i)08sessiou by the uiortj^agor of the lands uiort;- 
 gaged until default ; and no reconveyance is required to be given 
 by the mortgagee on receiving payment of the money due, though 
 such payment be not made at the day. (^Waring v. Smijih, S7i]trn.) 
 
 The mortgagee, or hi.s assigns or representatives, can no longer 
 bring ejectment for the recovery of the possession of the mortgaged 
 premises. (2 7?. S. 312, § 57.) He may indeed take ])ossession of 
 the land with the a.ssent of the mortgagor, after the debt has be- 
 come due and payable, and retain such possession until the debt is 
 paid. ( Wariny v. Siinjth, supra.) 
 
 Whether the mortgagee could maintain an action of waste against 
 the mortgagor in possession, under any circumstances, has been 
 litigated in our courts. In Pctcrsoji v. Clark, (15 John. 205,) it 
 was held that such action could not be maintained, at least until 
 after a forfeiture of the mort<;a{re. Thev considered his interest as 
 contingent until breach of the condition, and in case timber was cut 
 down by the mortgagor, without special authority, the mortgagee 
 had no such interest as to enable him to bring trover for the trees. 
 
 This case does not settle the right to the action for waste com- 
 mitted after the forfeiture of the mortgage. That question arose in 
 Southivorth v. Van J\-lt, (3 Barb. S. C. B. 347,) under circum- 
 stances favorable to the plaintiff. The premises had become forfeited 
 and a decree obtained for a foreclosure, and the mortgaged })remi8e8 
 were a slender security for the debt. The action was upheld. 
 
 The nature of the estate of the mortgagee is such that his reme- 
 dies at law for injury to the security are circumscribed. The mort- 
 gagee has neither y?fs in re, nor ad rem, but a mere security for his 
 debt. The title to the land is still in the mortgagor. Nevertheless 
 the law will, in some cases, give redress by an action, to a party 
 ■whose lien by mortgage or judgment has been destroyed or impaired 
 in value. It will do so when the injury was done frandidcjifly, but 
 not when it results from mere nei;lifrence and want of due care and 
 attention. {Gardner v. Heartt, 3 Denio, 234.) 
 
 The remedy in equity, both on the part of mortgagor and mort- 
 gagee, is in general the most appropriate and effective. When the 
 mortgagee takes possession of the mortgaged premises before forcclos-
 
 ACCOUNTS BETWEEN MORTGAGOR AND MORTGAGEE. 127 
 
 ure, and occupies them himself, he must account for the rents and 
 profits, at the rate of rent which the premises by ordinary care would 
 have produced, exclusive of taxes or repairs. ( Van Buren v. Olm- 
 steacl, 5 Paige, 9.) The questions in cases of this kind, usually 
 arise on a bill to redeem, brought by the mortgagor or those who 
 have succeeded to his rights, against the mortgagee or his representa- 
 tives. By the payment of the debt, whether at the day or subse- 
 quently, the estate of the mortgagee is annihilated. (Southivorthv. 
 Van Pelt, supra. Edwards v. Farmers' Fire Ins. and Loan Co. 
 21 Wend. 467 ; S. G. in -error, 26 id. 541.) The only difference 
 between a payment at the day, and a payment subsequently, is that 
 in the latter case, the party seeking to redeem may be compelled to 
 pay costs, and in the former, not. Equity requires that the mort- 
 gagee in possession should do no act to the prejudice of the estate. 
 He is not authorized to cut down timber and commit waste uj)Oii 
 the premises, even though the proceeds be applied to the satisfaction 
 of his debt. ( Yoide v. Richards, Sax. Cli. R. 534.) He is bound 
 to keep the premises in such repair as to preserve them, and is re- 
 sponsible for waste. {Bainhridcje v. Owen, 2 J. J. Marsh. P. 465. 
 Fden on Inj. 204 and notes.) 
 
 It is most usual, however, that the mortgagor, or some one claim- 
 ing the equity of redemption, is left in possession. Though the 
 mortgagor is for most purposes treated as the legal owner, yet as the 
 whole estate in the aggregate constitutes the security for the debt, 
 equity will not permit the mortgagor to reduce it, or render it less 
 valuable. 
 
 In one case where, by the terms of the mortgage, the mortgagor 
 was p.uthorized to cut the timber for the purpose of having the pro- 
 ceeds thereof applied to the payment of the mortgage debt, yet, be- 
 cause the mortgagor was proceeding to strip the mortgaged })rem- 
 ises of the timber, which constituted the principal value of the 
 mortgage security, he was restrained by injunction on the applica- 
 tion of the mortgagee. {Ensign v. Colhurn, 11 Paige, 503.) 
 
 But the mortgagor in possession may cut underwood, and culti- 
 vate the premises in a good husband-like manner, and take the or- 
 dinary fruits of the laud. {Eden on Inj. 205.) 
 
 4- mortgagee who seeks to sell the premises under the power of 
 sale for more than is actually due, will be restrained on the applica- 
 tion of the mortgagor, provided he offers to pay the amount equita- 
 bly due, {Vechte v, Brownell, 8 Paige, 212.)
 
 128 ACCOUNTS BETWEEN MORTGAGOR AND MORTGAGEE. 
 
 A mortgagee in possession will be entitled to such expenses as he 
 is put to in keeping the estate in necessary repair, which he may 
 add to the principal of his debt, with interest ; and if a mortgagee 
 has expended any sum of money in sui)porting the right of the mort- 
 gagor to the estate, when his title has been impeached, the mort- 
 gagee may add this to the principal of the debt, and it shall carry 
 interest. {Godfrey v. Watson, 3 ^^^•. 518.) He is not to be al- 
 lowed for his improvements in clearing wild land, but only for 
 necessary reparations, and must account for the rents and profits re- 
 ceived by him. {Moore v. Cahlc, 1 John. Cli. 385.) Taxes are a 
 regular charge, and if paid by him they are to be allowed, but the 
 expense of insurance against fire is not a charge upon mortgaged 
 premises unless l)y express agreement of the mortgagor or the owner 
 of the estate. {Faure v. Winans, Hopkins, 283.) 
 
 It is the general practice of courts of equity in directing an ac- 
 count between a mortgagor and mortgagee, that whenever the gross 
 sum received exceeds the interest, it shall be api)lied to sink the 
 principal, {Bohinson v. Cumming, 2 Ath. 410.) This rule, said 
 Lord Hardwicke, sometimes acts with hardship and has occasionally 
 been mitigated. Where the sum is large and the mortgagee is 
 forced to enter on the estate, he subjects himself to an account. 
 But as he could only satisfy his debt by parcels, and was a bailiff to 
 the mortgagor without a salary, subject to account, it was, he 
 thought, well observed by the master, that he was not obliged, for 
 every trifling excess of interest, to apply it to sink the principal. 
 And his lordship further said that he did not know that the court 
 had ever laid it down for an invariable rule, that the master must 
 always, in taking such trccount, make annual rests. {Gould v. Tan- 
 cred, 2 Atk. 534 ) But this subject will be more fully noticed in a 
 subsequent section. 
 
 In England it has been already remarked, that in the case of a 
 morto-age in fee, a proviso is contained in the deed that upon the 
 payment of the money at the time specified the mortgagor shall re- 
 couvey the estate. When the mortgage is made by a demise for 
 years, the proviso is that if the money be paid at the time specified, 
 the term shall cease. When the money in such a case is not paid 
 at the day, the terra becomes absolute, and must be surrendered or 
 assigned. Our practice in this respect we have seen is different. No 
 reconveyance is necessary on the payment of the mortgage money, 
 whether it be paid at the day or subsequently. ( Waring v. Smyth,
 
 DISCHARGE OF MORTGAGES. 129 
 
 2 Barh. C7i. 119. Jackson v. Davis, 18 John. 7.) This results 
 from our considering the mortgage as a mere lien for the security of 
 the debt, and the mortgagor substantially as the owner of the estate. 
 The statute, instead of a reconveyance, has provided a simple and 
 convenient mode of acknowledging satisfaction when the money is 
 paid, and for a legal discharge of the mortgage of record. It is thus 
 enacted, that any mortgage that has been registered or recorded, or 
 that may be hereafter recorded, shall be discharged upon the record 
 thereof by the officer in whose custody it shall be, whenever there shall 
 be presented to him a certificate signed by the mortgagee, his personal 
 representatives or assigns, acknowledged or proved and certified as 
 is required to entitle conveyances to be recorded, specifying that such 
 mortgage has been paid, or otherwise satisfied or discharged. (1 R. S. 
 761, § 28.) This certificate and the proof or acknowledgment of 
 it are required to be recorded at full length ; and a reference is then 
 made to the book and page containing such record, in the minute, of 
 the discharge of such mortgage, made by the officer upon the record 
 thereof {Id. § 29.) The original act of Ai)ril, 1801, and which 
 was in force until 1830, required the certificate to be attested by 
 two or more subscribing witnesses, but did not require the registry 
 or recording of the certificate. (1 K. & R. 481, § 4.) At the re- 
 vision in 1830, the attestation of witnesses was dis})ensed with, and 
 the certificate of discharge was required to be proved or acknowledg- 
 ed, as in the case of deeds, and to be recorded at full length, and 
 such is the existing law of this state. A mortgage properly dis- 
 charged ceases to be a lien upon the estate, and the parties are re- 
 mitted to their respective rights as they existed antecedently to the 
 giving of the mortgage. 
 
 It may sometimes be a question, when two or more mortgages are 
 given at the same time upon the same estate, and acknowledged and 
 recorded at the same time, as to which is to have priority. If in 
 Buch a case each mortgagee was cognizant of the giving of the other 
 mortgage, the recording acts have no application to the transaction, 
 in respect to the question of priority. A court of equity, however, 
 will in such a case give efiect to the agreement and intention of the 
 parties, and for this purpose will presume that the one intended to 
 be preferred was delivered first. {Jones v. Phelps, 2 Barb Ch. 440.) 
 The contemporaneous recording of two or more mortgages does not ex- 
 clude the operation of any facts or circumstances which go to show 
 
 Will.— 9
 
 130 EFFECT OF TENDER. 
 
 that one ought equitably to be preferred to the other. (Staff'ord v. 
 Va7i Rensselaer, 9 Coiven, 316" ; S. C. affirmed, 1 HopTc. 5G9.) 
 
 But suppose a trustee has two sums of money belonging to differ- 
 ent cestui que trusts, and loans both sums to one person at the same 
 time, and takes separate mortgages upon the same premises, to se- 
 cure the payment of the moneys loaned, and without intending to 
 give a priority to either mortgage, in such a case there is no doubt 
 that the two mortgages must be paid ratably, if the fund is not 
 sufficient to pay both ; nor would it make any difference that one of 
 the mortgages happened to be received by the clerk and to be recorded 
 a short time previous to the other. {lihodes v. Canjield, 8 Paige, 
 545.) But should the mortgage first recorded be foreclosed under 
 the statute, and the premises be sold to a bona fide purchaser who 
 had no notice that the two mortgages were given simultaneously, it 
 would raise a different question. The bono, fide purchaser would 
 probably gain a priority. {Id.) 
 
 It was at one time supposed that a tender of the money due on a 
 mortgage, in order to discharge the Ipnd from the effect of the mort- 
 gage lien, must be at the day it becomes due by the condition. 
 {Merritt v. Lambert, 7 Paige, 344.) Such seems to have been the 
 ancient law upon this subject. {Arnot v. Post, 6 Hill, 68 ; S. G. 
 2 Denio, 344.) But the weight of authority in this state seqjns to be 
 that if the mortgagor tenders the money to tho mortgagee, and he 
 refuses it, whether it be on the law day, or at any time before actual 
 foreclosure, the land is freed forever from the condition, although 
 the debt is not thereby extinguished. It becomes thenceforth the 
 merely personal debt of the party. {Edwards v. Tlie Farmers' L. 
 and T. Co. 21 Wend. 467; S. C. in error, 26 id. 541.) This doc- 
 trine results from disregarding our notions as derived from the strict 
 law of real property, and applying to the case the more reasonable 
 principles of a court of equity in relation to this form of security. 
 
 The mortgages given to the commissioners under the act of April 
 5, 1837, {Laws of 1837, p. 121,) authorizing a loan of certain moneys 
 belonging to the United States, deposited with the state of New 
 York for safe keeping, vest an absolute and indefeasible estate in fee 
 in the lands mortgaged, free from all equity of redemption, on the 
 borrower's neglect to pay yearly and every year, on the first Tuesday
 
 AUTHORITY TO SELL MUST BE STRICTLY PURSUED. 131 
 
 of October, or within twenty-three days thereafter, the yearly interest 
 and the principal when it becomes due. The statute also requires 
 that on the payment of the entire sura due, the commissioners shall, 
 if required, give to the mortgagor a release of the mortgage, and 
 tear from the same the seal of the mortgagor, and make an entry in 
 the record of the time when such release was given. 
 
 Under this statute it has been held that though on default of pay- 
 ment the commissioners of the county where the mortgaged lands are 
 situated, became seised of an absolute and indefeasible estate in fee, 
 in the said lands, yet the right of redemption is not thereby barred, 
 but exists in full force, until the premises are disposed of at a legal 
 public sale in conformity to the statute. (Sherivood v. Heade, 7 Rill, 
 433. Jackson v. liJiodes, 8 Coiv. 47. Ohnstead v. Elder, 2 Sand. 325.) 
 This results from the peculiar language of the 30th and 31st sections 
 of the act of 1837, p.l21. Though the introductory clause of the 30th 
 section utterly forecloses the mortgagor of all equity of redemption 
 on his failure to pay the money as directed, the subsequent clause 
 allows him, his heirs or assigns, after such default, to retain possess- 
 ion of the mortgaged premises until the first Tuesday of February 
 thereafter, and to redeem the same as thereinafter provided. The 
 31st section directs the commissioners to advertise the premises for 
 sale at the court house in said county, on the first Tuesday of Feb- 
 ruary, and on such sale directs that the purchaser thereof shall hold 
 and enjoy such estate in the said lands as was conveyed to the said 
 commissioners by the said mortgage, clearly and absolutely discharged 
 of and from all benefit and equity of redemption, and all other in- 
 cumbrances made or sufiered after the execution of the said mort- 
 gage by the mortgagor, his or her heirs or assigns. 
 
 In the case of Sherwood v. Heads, (supra,) it was said by Beards- 
 ley, J. in delivering the judgment of the court of errors, that the 
 authority to sell as conferred by the statute is special in its nature, 
 and must be strictly pursued, or the sale will be invalid. It is 
 the language of all the cases in this state on the subject, that a 
 statute authority by which a man may be deprived of his estate 
 must be strictly pursued. Every requisite of the statute havino- 
 the semblance of benefit to the owner must be strictly complied 
 with. {Bloom v. Burdick, 1 Hill, 141. Thatcher v. Powell, 
 6 Wheat. 119. Sharp v. Johnson, 4 Hill, 99.) 
 
 A sale by one of the commissioners under the act of 1837, is 
 void. Both must be present and participate in the sale. The sub-
 
 132 STATUTORY FORECLOSURE. 
 
 sequent execution of a deed by the two cannot aid such sale. [Pow 
 ell V Tuttle, 3 Comst. 36, ovtrruUny Kinrj v. Stow, G John. Cli. 323.) 
 
 If the mortgagor becomes the purchaser under a regular sale of 
 the commissioners and gives. a new mortgage, for the original j)rin- 
 cii)al, it is a mortgage for the j)urchase money, and upon a subse- 
 quent default, and a failure of any one to bid on the sale, the com- 
 missioners are entitled to the possession as against one who has 
 acquired title under a judgment against the mortgagor, docketed 
 intermediate the two mortgages. (Com'rs v. Chase, G Barb. 37.) 
 
 The various loan acts of this state of 1792, 1808 and 1837, con- 
 tained the same features with respect to tlie absolute vesting of the 
 estate, and foreclosure, but it is not deemed of sufficient importance 
 to notice them more at large. {Powell v. Tuttle, 3 Comst. 403.) In 
 1850, an act was ])assed for the final settlement of the loans of 
 1792 and 1808, by a transfer to the United States' deposit fund, 
 and to abolish the office of loan commissioner. (Laws of 1850, ch. 
 337, i>. 732.) 
 
 Section IV. * 
 
 Of the poiver of sale and statutory foreclosure. 
 
 It has long been usual in this state to insert in the mortgage a 
 power of sale, to the effect that in case default should be made in 
 the payment of the principal or interest, as provided in the mort- 
 gage, then the mortgagee, his executors, administrators and assigns 
 are empowered to sell the mortgaged premises, with the appurte- 
 nances, or any part thereof, in the manner prescribed by law ; and 
 out of the money arising from such sale, to retain the said princi- 
 pal and interest, together with the costs and charges of making such 
 sale ; and rendering the overplus, if any there be, on demand, to the 
 mortgagor, his heirs or assigns. 
 
 Previous to 1830, to entitle the party to execute a power of sale, he 
 must have been at the time, at least twenty-five years old, and that 
 rule applied to all powers executed since the 19th day of March, 
 1775. {Laios of 1813, 2^. 375, § 5.) At the revision of the laws 
 in 1830, while the old rule was recognized for all past transactions, the 
 age of twenty-one years was taken as the age of majority in all 
 future cases. (2 R. S. 545.) A power of sale in a mortgage exe- 
 cuted in 1792 by a person under the age of twenty-five years was 
 void. {Burnet v. Denniston, 5 John. Ch. 35.) A power of sale in
 
 STATUTORY FORECLOSURE. 133 
 
 a mortgage is of no importance except to give the party the right 
 to the statutory foreclosure ; if there be no power of sale in the mort- 
 gage, the foreclosure can only be conducted in a court of equity, 
 according to the course and practice of such court. 
 
 The proceedings under the statute to foreclose by advertisement, 
 are pointed out in the act. To entitle the holder of the mortgage 
 to give the notice prescribed by law, and to make such foreclosure, 
 it is requisite (1.) That some default in a condition of such mort- 
 gage shall have occurred, by which the power to sell became opera- 
 tive. (2.) That no proceeding shall have been instituted at law, to 
 recover the debt then remaining secured by such mortgage, or any 
 part thereof ; or if any suit or proceeding has been instituted, that 
 the same has been discontinued, or that an execution upon the judg- 
 ment rendered thereon has been returned unsatisfied in whole or in 
 part. (3.) That such power of sale has been duly registered, or the 
 mortgage containing the same has been duly recorded. (2 E. S. 
 545, §2.) 
 
 Notice that such mortgage will be foreclosed by a sale of the mort- 
 gaged premises, or some part of them, shall be given as follows : 
 1. By publishing the same for twelve weeks successively at least 
 once in each week, in a newspaper printed in the county where the 
 premises intended to be sold shall be situated, or if such premises 
 shall be situated in two or more counties, in a newspaper printed in 
 either of them. 2. By affixing a copy of such notice, at least twelve 
 weeks prior to the time therein specified for the sale, on the outward 
 door of the building where the county courts are directed to be held, 
 in the county where the premises are situated ; or if there be two or 
 more such buildings, then on the outward door of that which shall 
 be nearest the premises ; and by delivering a copy of such notice at 
 least twelve weeks prior to the time therein specified for the sale, to 
 the clerk of the county in which the mortgaged premises are situa- 
 ted, who shall immediately affix the same in a book prepared and 
 kept by him for that purpose ; and -who shall also enter in said book, 
 at the bottom of such notice, the time of receiving and affixing the 
 same, duly subscribed by said clerk, and shall index such notice to 
 the name of the mortgagor ; for which service the clerk shall be en- 
 titled to a fee of twenty-five cents. (2 E. S. 545, § 3, as amended 
 1842, ch. 277, § 5 ; and 1857, ch. 308, § 1. 3 R. S. 859, 860, 5th ed.) 
 3. By serving a copy of such notice, at least fourteen days prior 
 to the time therein specified for the sale, upon the mortgagor or his
 
 134 STATUTORY FORECLOSURE. 
 
 personal representatives, and uj)on the subsequent grantees and 
 mortgagees of the premises whose conveyance and mortgage shall bo 
 upon record at the time of the first jiublicatinn of tlie notice, and 
 upon all persons having a lien by or undt-r a judgment or decree up- 
 on the mortgaged premises, subsequent to such mortgage, personally, 
 or by leaving the same at their dwelling house in charge of some ]>er- 
 son of suitable age, or by serving a cojty of such notice upon said 
 persons at least twenty-eight days prior to the time therein specified 
 for the sale, by depositing the same in the post office, properly folded 
 and directed to the said persons at their respective jdaces of resi- 
 dence. (2 li. S. 54C, as amended 1844, ch 34G, § L 3 7?. S. SCO, 
 5th ed.) 
 
 Previous to the act of 1842, a notice of twenty-four weeks was 
 necessary. In James v. StuU, (9 Barb. 482,) it became a question 
 whether the change from twenty-four weeks to twelve weeks was not 
 unconstitutional and void, so far as o|)erated upon mortgages in ex- 
 istence at the time of its passage, and it was held to be a valid exer- 
 cise of the power of the legislature over the remedy, and did not 
 affect the obligation of the contract. 
 
 With regard to the time of the publication of notice, it has been 
 held that the first publication of a twelve weeks' notice must be at 
 least eighty-four days, or 12 full weeks before the sale, one day be- 
 ing included and one excluded ; and the publication must be in each 
 intervening week until the expiration of the time required by the 
 statute. {Bicnce v. Jiced, 16 Barb. 347.) 
 
 With regard to the notice forwarded through the post office, it 
 has been held that the statute does not require that it should be 
 deposited in any particular post office ; the rule applicable to attor- 
 neys requiring the notice to be deposited in the post office at the 
 residence of the attorney making the service, (Schenck v, McKee, 
 4 How. 246,) not applying to a foreclosure of mortgages under the 
 statute. The judge however intimated that it should be mailed in 
 this state, as it is a proceeding here. [Bunce v. Reed, supra. Stan- 
 ton V. Cline, 1 Kernan, 196.) 
 
 A copy of the notice must be served on the mortgagor if he is 
 living, and in case of his death, on his personal representatives. 
 This must be complied with, or the foreclosure will be void. {Cole 
 V. Moffit, 20 Barb. 18. St. John v. Bumpstead, 17 Barb. 100.) 
 
 The statute prescribes with great particularity what shall be con- 
 tained in the notice. It must specify, 1. The names of the mort-
 
 STATUTORY FORECLOSURE. 13g 
 
 gagor and of the mortgagee, and the assignee of the mortgage, if any ; 
 2. The date of the mortgage and where recorded, or where the power 
 of sale is registered; 3. The amount claimed to be due thereon at 
 the time of the first pubh-cation of such notice ; and 4. A description 
 of the mortgaged premises, conforming substantially with that con- 
 tamed m the mortgage. (2 R. S. 546, § 4; Id 830, 5th ed.) 
 
 The statute, requiring tlie amount claimed to be due at the time 
 of the first publication, is directory only, and no penalty is prescribed 
 for an error m this respect. An erroneous claim as to the amount 
 will not ordmarily vitiate the sale, unless it be fraudulently done 
 ^^v7*^no°'''i''^' ^' calculated to mislead. {Klock v. Cronkhite, 1 
 Mill, 108. Bunce v. Reed, sup. Jencksv. Alexander, 11 Paige 626 ) 
 In case the bond and mortgage are payable by installments, the 
 mortgagee or his assignees, under the ordinary power of sale, must 
 sell for the whole sum secured by the mortgage, whether it be actu- 
 ally due or not. By failure to pay the first installment the whole 
 bond at law becomes due. The mortgagee should therefore state in 
 his notice and claim the whole amount secured by the mortgage to 
 be due and payal^le on the first default. (Ilolden v. Gilbert, 7 Paige, 
 208 Cox V. Wheckr, Id. 248.) Should the mortgagee sell the 
 whole premises on a mortgage payable by installments, subject to 
 the future installments, the land would become, in equity, the pri- 
 mary fund for the payment of such residue, and the mortgagor 
 would be entitled to any surplus proceeds of the sale. Should the 
 mortgagee himself become the purchaser, the whole mortgage debt 
 would be extinguished. (Cox v. Wheeler, 7 Paige, 248 Tice v 
 Am,^ 2 John. Ch. 125.) The mortgagee has no doubt the ri^^ht 
 to sell the premises under the power discharged from the lien of fu- 
 ture installments, and to retain their amount out of the surplus 
 proceeds of the sale. {Holden v. Gilhert, supra.) In efi-ect the 
 whole debt becomes due on the happening of the first default. 
 Hand, J m Bunce v. Peed, (supra,) says that it is most regular to 
 sell for the whole amount, on a statute foreclosure, though a sin^^le 
 installment be due ; but he intimates that a power may be so drawn 
 as to make more than one sale. 
 
 In view of the embarrassments attending a statutory foreclosure 
 
 at law, when the mortgage is payable by installments, the better 
 
 remedy would seem to be a foreclosure in a court of equity in cases 
 
 of that kind. (2 P. S. 191. Leonard v. Morris, 9 Paije, 90 
 
 It IS notmuispensable to aright to the statutory foreclosure/that
 
 13G STATUTORY FORECLOSURE. 
 
 the mortgnge should be payable in money alone. When it was giv- 
 en to secure the payment of a debt in specific articles, and the value 
 of the articles was liquidated by the mortgage in case of default, it 
 was held to be equivalent to a mortgage to secure the payment of 
 money. {Jacks v. Turner, 7 Wend. 458.) 
 
 But when the condition of the mortgage is for the performance 
 of covenants, and the damages are unliqtiidated, it is quite clear that 
 there can be no foreclosure under the statute, and that the remedy 
 is either by an action at law on the bond, or by bill in equity to 
 foreclose the mortgage. {Ferguson v. Kimball, 3 Barh. C7i. 619. 
 Ferguson v. Ferguson, 2 Comst. 364.) 
 
 The statute has wisely provided that a sale under a statute fore- 
 closure may be postponed from time to time, by inserting a notice 
 of such postponement, as soon as practicable, in the newspaper in 
 which the original advertisement was published, and continuing such 
 publication until the time to which the sale shall be postponed. 
 (2 R. S. 546, § 5.) But the notice of such postponement as published in 
 the paper must conform to the adjournment as previously announced. 
 A postponement may indeed be made before the day appointed for 
 the sale, by inserting a notice thereof in the newspaper in which the 
 original advertisement was published, {Miller v. Hull, 4 Denio, 107,) 
 as well as on the day at which had been originally appointed in the 
 notice. (Td.) 
 
 The sale under a power is required to be at public auction, in the 
 daytime, in the county where the mortgaged premises, or some part 
 of them, are situated ; except in sale on mortgages to the people of 
 this state, in which cases the sale may be made at the capitol. If 
 the premises consist of distinct farms, tracts or lots, they must be 
 sold separately ; and no more farms, tracts or lots may be sold than 
 are necessary to satisfy the amount due on such mortgage, at the 
 time of the first publication of notice of sale, with interest, and the 
 costs and expenses allowed by law. (3 B. S. 860, § 6, 5th ed.) 
 "Under this statute it has been held that the sale to make an efiect- 
 ual foreclosure must be at public auction, notwithstanding the power 
 contained in the mortgage authorizes the mortgagee on default to 
 sell the premises at private sale to satisfy the debt. {Lawrence v. 
 The Farmers' Loan and Trust Co. 3 Kern. 200.) 
 
 The statute requiring mortgaged premises to be sold in parcels 
 was designed to provide for a sale of premises consisting, at the time 
 the mortgage was given, of distinct tracts, farms or lots, and mort-
 
 STATUTORY FORECLOSURE. I37 
 
 gaged and described as such; and not for the sale of premises 
 mortgaged as one farm, tract or lot, and being in fact but one farm, 
 tract or lot at that time, although subsequently subdivided. {Lam- 
 er son V. Marvin, 8 Barh. 9.) 
 
 At the common law, the power of sale contained in a mortgage of 
 real estate could only be executed by giving a deed. {Arnot v. 
 McClure, 4 Demo, 44.) It may still be executed in that way when 
 a party other than the mortgagee or his assigns is the purchaser. 
 In 1808 the mortgagee or his assignee or legal representatives were 
 authorized by statute to purchase for his, her or their benefit or ac- 
 count, (5 Web. 341, ^5;1RL. 375, § 10 ;) and such is the exist- 
 ing law. (3 B. S. 861, § 7, 5th ed.) As the mortgagee could not 
 convey to himself, it was very justly concluded that the legislature 
 mtended that the foreclosure should be complete without a deed 
 {Jackson V. Colden, 4 Coioen, 266, 276. She v. Manhattan Co 
 1 Paige, 48.) 
 
 The affidavits of sale and of publication are required to be record- 
 ed by the county clerk in a book kept for the record of mortgages ; 
 and the original affidavits, the record thereof, and certified copies of 
 such record are made presumptive evidence of the facts therein con- 
 tained. (2 R. S. 547, § 10, as amended in 1844. cA. 346 § 2 and 
 1857,c7i.308,§2. 3 B. S. 86, 5th ed. Buncev.Beed,16Barb.U7.) 
 In 1838 the act was so amended by ch. 266, § 8, that when the 
 mortgaged premises, or any part thereof, shall have been purchased 
 at such sale by the mortgagee, his legal representatives, or his or 
 then- assigns, or by any other person or persons whatsoever, the affi- 
 davits of the publication and affixing notice of sale, and of the cir- 
 cumstances of such sale, shall be evidence of the sale and of the fore- 
 closure of the equity of redemption, without any conveyance being 
 executed, in the same manner and with the like effect as a convey- 
 ance executed by a mortgagee, upon such sale to a third person, has 
 heretofore been. (Bunce v. Beed, supra. Cohoes Co v Goss 13 
 Barh. 137. 3 B. S. 862, 5th ed.) 
 
 The revised statutes, as amended in 1844, ch. 346, § 4, (3 B. S. 
 861, 5th ed.) have declared the effect of the statute foreclosure, when 
 conducted in the manner prescribed by law, and when the purchase 
 is made in good faith. When these circumstances concur, it is de- 
 clared to be equivalent to a foreclosure and sale under the decree of 
 a court of equity, so far only as to be an entire bar of all claim or 
 equity of redemption of the mortgagor, his heirs and representatives,
 
 138 STATUTORY FORECLOSURE. 
 
 and of all persons claiming under him or them, by virtue of any title 
 8ul)sc(|uent to such mortgaj^e, and also of any jierson having a lien, 
 by any judgment or decree upon the land or any part thereof con- 
 tained in such mortgage, subsequent to such mortgage, and of every 
 person having any lien or claim by or under such subsequent judg- 
 ment or decree, who shall have been served with notice of said sale 
 as required by law. 
 
 The revised statutes, as originally framed, gave less effect to a stat- 
 ute foreclosure than the existing law. A party whose mortgage of 
 the same premisss, or any part thereof, or whose title accrued prior 
 to such sale, and a creditor to whom the mortgaged premises or any 
 part thereof was bound before such sale, by any judgment at law or 
 decree in equity, was not prejudiced by such sale, nor were his rights 
 or interests in any way alfeoted thereby. (2 11. S. 546, § 8.) Un- 
 der the former law, the purchaser at a statute foreclosure, if there 
 were judgments subsequent to the mortgage, remaining a lien upon 
 the property at the time of the sale under the statute, took the 
 whole legal and equitable interest in the property as against the 
 mortgagor and all persons claiming under him ; subject, liowever, 
 to the equitable right of the judgment creditor to redeem, in the 
 same manner as if such foreclosure had not taken place. {Benedict 
 V. Gi'hnan, 4 Paige, Gl.) The effect of the statute foreclosure un- 
 der that act was to transfer to the purchaser the rights of the mort- 
 gagee, so far as he had any in the mortgaged j)remises as a security 
 for his debt ; and also so much of the equity of redemption as was not 
 bound by the lien of a junior mortgage or judgment. {Vroom v. 
 Ditinos, 5 id. 526.) As a necessary consequence, a subsequent in- 
 cumbrancer had no claim to the surplus produced by a sale on a 
 statute foreclosure, as his lien was not affected by the proceeding. 
 ( Waller v. Harris, 7 id. 167.) 
 
 The amendment introduced in 1844, and already adverted to, re- 
 quires a notice of the proceedings to be served on the subsequent 
 grantees and mortgagees of the premises whose conveyance and mort- 
 gage shall be upon record at the time of the first publication of the 
 notice, and upon all persons having a lien by or under a judgment 
 or decree upon the mortgaged premises, subsequent to such mort- 
 gage, personally, or by leaving the same at their dwelling house in 
 charge of some person of suitable age, or by serving a notice through 
 the post 'oflfice. [See ante, 51, 52.) 
 
 These requirements of the statute certainly make those persons,
 
 NOIT -RESIDENT MARRIED WCMAK 130 
 
 in a qualified sense, parties to the proceeding, and justify the legis- 
 lature in giving the effect to the foreclosure mentioned in the 8th 
 section. But the statute fails to make any suitable provision for 
 the rights of infants or other persons laboring under disability. 
 {Demarest v. WynJcoop, 3 John. Ch. 146.) Nor does it make any 
 provision where the mortgagor claims that the security is invalid for 
 usury or any other cause. If there be any just legal or equitable 
 defense to the mortgage, it must be asserted in an appropriate action 
 in the common law courts. It is true, indeed, that a statute fore- 
 closure of a paid mortgage conveys no title, though the sal-3 is to a 
 honajide purchaser. {Cameron v. Eriohi, 5 Hill, 272.) 
 
 In general, a power created by a feme covert is ineffectual on the 
 ground of the disability of coverture. It has been shown that a 
 power of sale in a mortgage executed in 1792, by a person under 
 twenty-five years, is void. {Burnet v. Denniston, 5 John. Ch. 35.) 
 But as a feme covert is authorized to join with her husband in a 
 mortgage of her own land, it is conceived that she may execute a 
 valid power of sale. She can convey her land by joining with her 
 husband, and acknowledging the deed before a proper officer on a 
 private examination apart from her husband. (1 Ji. S. 758, § 10. 
 3 id. 53, 5fh ed.) 
 
 A power to mortgage includes in it a power to authorize the mort- 
 gagee to sell, in defoult of payment. It is an incident to the power 
 to mortgage, and is included in that power. ( Wilson v. Troup, 
 7 John. Ch. 25, 32.) 
 
 With respect to non-resident parties, the revised statutes pro- 
 vide that when any married woman, not residing in this state, shall 
 join with her husband in any conveyance of any real estate situated 
 within this state, the conveyance shall have the same effect as if she 
 were sole ; and the acknowledgment or proof of the execution of 
 such conveyance, made by her, may be the same as if she were sole. 
 This provision was adopted at an early day, and the effect was to 
 treat a non-resident /e?ne covert, with respect to conveyances of her 
 land, as if she were sole ; and to dispense with a private examination 
 apart from her husband. (1 K. & R. 478, § 2. 1 R. S. 738, § 11.) 
 Her title to dower in the lands of her husband situated in this state, 
 as well as her title to lands of which she was seised in her own rio-ht, 
 was thus extinguished in the one case, and transferred in the other 
 in a manner different from that applicable to resident femes covert. 
 
 But the statute only extended to actual conveyances ofrecbl estate
 
 140 WHEN WIFE IS AN INFANT. 
 
 situated within this state. It did not embrace powers of attorney 
 for the conveyance of real estate situated in this state, the necessity 
 for which led to the act of 1835, ch. 275. By that statute it is 
 enacted that when any married woman residing out of this state 
 shall have joined with her husband in executing any power of attor- 
 ney for the conveyance of real estate situated in this state, the cou- 
 veyance executed by virtue of such power shall have the same forco 
 and effect as if executed by such married woman in her own i)ropcr 
 person ; provided that the execution of such i)ower of attorney, by 
 such married woman, shall first have been duly proved or acknowl- 
 edged, according to the provisions of the revised statutes in rela- 
 tion to conveyances executed by married women residing out of this 
 state. (3 R. S. 59, § 73, 5tU ed.) 
 
 If the wife be an infant under the age of twenty-one years, tho 
 deed as to her, if the conveyance be of her property, is voidable 
 only and not void : but if, in &uch case, she join with her husband 
 in order to extinguish her dow*n-, it is absolutely void. {Sherman 
 v. Garfidd, 1 Bcnio, 329.) The common law doctrine that a woman 
 during coverture cannot alien her lands by deed, never prevailed in 
 this state. A deed therefore of real estate, executed by her in con- 
 junction with her husband, acknowledged by her in the form pre- 
 scribed by law, is valid. But when she is an infant as well as a feme 
 covert, the disability arising from infancy remains, although she ex- 
 ecute and acknowledge a deed in the form prescribed by statute. 
 (Bool V. Mix, 17 Wend. 119.) 
 
 How for the acts of 1848 and 1849, for the more effectual protec- 
 tion of the property of married women, (L. of 1848, p. 307; L. of 
 1849, j9. 528,) have enabled married women to mortgage their sepa- 
 rate estate, and thus incidentally to dispose of it through the power 
 of sale, is not perhaps yet fully settled. The original act of 1848 
 does not confer power upon the feme covert to devise or bequeath 
 her property by last will and testament. This defect was reme- 
 died by the act of 1849. ( Wadkams v. The Am. Home Miss. Soci- 
 ety, 2 Kern. 425.) And it would seem that by the act of 1849, in 
 respect to estates acquired and held under the protection of the stat- 
 ute, the disabilities of coverture are in fact removed. ( Tale v. Ded- 
 erer, 4 Smith, [18 N. Y. Rep^ 271.) It would seem, therefore, to 
 follow, that a married woman may create an express charge on her 
 separate estate, in the same manner as if she were a, feme sole. (Id.) 
 The act of 1860, ch. 90, while in some respects it enlarges the power
 
 FORECLOSURE IN" EQUITY. I4I 
 
 of mairied women, interposes checks to their alienation of their real 
 property. 
 
 Section V. 
 
 Of foreclosure in equity; and herein of the liens on real estate. 
 
 The jurisdiction of the supreme court, under the constitution of 
 184G,^ is ample over the subject of foreclosure, whether the mortgage 
 contain a power of sale or not, or whether the deed be absolute in 
 terms, and the defeasance as a mortgage be only made out by oral 
 evidence. If the mortgage be to secure unliquidated damages, or if 
 there be no power of sale in the mortgage, it can only be foreclosed 
 m a court of equity. {Ferguson v. Kimball, 3 Barb. Ch. R. 616. 
 Same v. Ferguson, 2 Conist. 360.) 
 
 There are two modes of foreclosure ; 1, a strict foreclosure; 2, a 
 foreclosure and sale under a decree of the court. 
 
 1. A strict foreclosure is not of frequent recun-ence. It usually 
 happens when the mortgagee is in possession and he wishes the 
 equity of redemption of the mortgagor to be barred. {Bell v Tlie 
 Mayor of New York, 10 Paige, 49.) On a decree for a strict fore- 
 closure, the mortgagor has no riglit to redeem after the day fixed for 
 that purpose in the decree, and the lands become the absolute prop- 
 erty of the mortgagee. It is said there can be no valid strict fore- 
 closure against an infant heir of the mortgagor, {llins v. Den7iis, 
 3 John. Ch. 367.) A purchaser under a statute foreclosure may file 
 a bill for a strict foreclosure, against junior incumbrancers having a 
 right to redeem. {Benedict v. Gilman, 4 Paige, 58.) 
 
 On a strict foreclosure, if the mortgagor redeem, the mortgao-ee 
 must account for the rents and profits received subsequent to the 
 decree. {Ruekman v. Astor, 9 Paige, 517.) 
 
 At law it is well settled that a foreclosure of the mortgage is no 
 bar to an action on the attendant bond. {Hatch v. White, 2 GaUi- 
 
 S }f^ ^° '^' '"'' '^ ^^'' ^^'^' ^^^- ^^- ^- ^"^^'^^9, (5 Cowen, 
 6W,) the question was whether a foreclosure of the mortgage and a 
 sale under it, operated as an extinguishment of the debt, and it was 
 there he d that it was an extinguishment no further than the amount 
 produced by such sale. The same point was so decided in the court 
 for the correction of errors, in the case of Lansing v Godlet 
 0(^.e.,346 403.) At the October term of the supreme court; 
 1829, It was held that the foreclosure of the mortgaged premises with-
 
 142 FORECLOSURE AND SALE. 
 
 out a sale did not operate as an extinguishment of the debt, unless 
 it was averred and proved that the mortgaged premises were of suf- 
 ficient value to i)ay the debt. (Spencer v. Uarford, 4 Wend. 384. 
 Morgan v. Plumb, 9 Wend. 287.) 
 
 2. The other mode is by foreclosure and sale under the decree. 
 This is the usual and preferable mode for all jtarties. The object 
 in all cases of this kind is, or should be, to make the fund set apart 
 for the payment of the debt available for that purpose, and to re- 
 turn the surplus, if there be any, to the mortgagor, or those who 
 have succeeded to his rights. For this purpose, not only the parties 
 to the mortgage are made parties to the action, but all persons hav- 
 ing liens on the mortgaged premises, by mortgage or judgment, at 
 the time of commencing the suit. No one can be bound by the de- 
 cree who has not been made a party to the action. A junior in- 
 cumbrancer may desire to redeem, and he should have the opportu- 
 nity. And there are various reasons why prior incumbrancers should 
 also be included. The ])urchaser can thus be enabled to acquire a 
 title good against all the world ; and a multiplicity of suits is 
 avoided by bringing all before the court at once. 
 
 Prior to 1830, the mortgagee might pursue his remedy at law by 
 action on the bond or other security, by action of ejectment to be 
 let into possession of the mortgaged premises, and by bill in equity 
 to foreclose. {Dunhly v. Van Bttre7i, 3 John. Ch. 330. Hughes v. 
 Edward, 9 Wheat. 489.) 
 
 This was often oppressive, and always attended with great ex- 
 pense. But now, by the revised statutes, the action of ejectment 
 upon a mortgage is abolished. (2 R. S. 312, § 57.) If the credit- 
 or proceeds at law to recover the debt secured by the mortgage, he 
 is forbidden to sell under his execution the equity of redemption 
 in the mortgaged premises. And in order to guide the sheriflf in 
 this respect the plaintiff's attorney is required to make an endorse- 
 ment on the execution, giving a brief description of the mortgaged 
 premises, and directing the sheriff not to sell them. (2 B. S. 368, 
 §§ 31, 32. Delaplaine v. Hitchcock, 6 Hill, 14.) If the mortgagee 
 proceeds in equity to foreclose, no proceedings are thereafter to be 
 had at law, without leave of the court. The court of equity has 
 power to decree a sale of the mortgaged premises, or of so much 
 thereof as may be necessary to discharge the amount due on the 
 mortgage and the costs of the suit. It has power not only to com- 
 pel the delivery of the possession of the mortgaged premises to the
 
 WHERE MORTGAGE HAS NO POWER OF SALE. 143 
 
 purchaser, but to direct the payment by the mortgagor of any bal- 
 ance of the mortgage debt that may remain unsatisfied after a sale 
 of the premises in the cases in which such balance is recoverable at 
 law ; and for that purpose to issue the necessary executions, as in 
 other cases, against other property of the mortgagor, or against his 
 person. (2 R. S. 191, §§ 151, 152.) If the mortgage debt be se- 
 cured by the obligation or other evidence of debt executed by any 
 other person besides the mortgagor, such person may be made a 
 party to the action, and payment of any balance remaining after 
 sale of the mortgaged premises may be decreed as well against such 
 other person as the mortgagor. {Id. § 154. Leonard v. Morris, 
 9 Faige, 90.) 
 
 There are numerous cases where a court of equity affords the 
 only remedy for the mortgage creditor. That is the case when the 
 instrument contains no power of sale, or when the deed is absolute iu 
 terms and is shown by parol proof to have been intended as a mort- 
 o-ao-e. The mortgaged premises cannot be sold in any such case on 
 default of the mortgagor, without a decree in a foreclosure suit. 
 {Hart V. Ten Eyclc, 2 John. Ch. G2.) So also, when the mortgage is 
 o-iven to secure the performance of covenants or other thing than the 
 payment of money. {Ferguson v. Ferguson, 2 Comst. 360.) 
 
 Cases often arise where there are successive mortgages on the same 
 premises. They may become due at different times ; and may each 
 cover some premises not common to the other. But a court of equity 
 can so mould the remedy as to do justice to all, and to prevent any 
 one from squandering the fund intended for the benefit of the 
 others also. 
 
 A subsequent mortgagee may file a bill to redeem a prior mort- 
 gage, and for a foreclosure and sale on both ; or if the prior one be 
 not due, for a sale subject to it. {Tlie Western Ins. Co. v. The 
 Eagle Ins. Co. 1 Paige, 284.) 
 
 But it is not always necessary that the junior mortgagee should 
 offer to redeem the prior mortgage. He may, without such offer, 
 file a bill of foreclosure and sale, and for payment of all incumbrances 
 thereon out of the proceeds. ( Vanderkempt v. Shelton, 11 Paige, 28.) 
 
 An equity of redemption is in some respects similar to a trust 
 estate. The legal seisin is in its owner. He may alien it, devise 
 it by Mali, and it is descendible to his heirs at law. It may be mort- 
 gaged. But a mortgage of this kind, usually called a second mort- 
 gage, is seldom recommended by English conveyancers, for two reasons :
 
 144 EQUITY OF REDEMPTION. 
 
 1. Because a third mortgagee, loithout notice, may, by paying off tho 
 first mortgage, acquire a preference over the second. 2. Because 
 great difficulties may arise in calHng in the money ; for as a second 
 mortgagee has no legal remedy, he is driven to a bill in equity to re- 
 cover even his interest. These reasons are not a])plicable in this 
 state. The first arises out of the doctrine of tacking which is super- 
 seded in this state by our recording laws. {Crabhe's Laiu of Heal 
 Property, § 2256.) Each security is to be paid off according to its 
 priority. {McKinstry v. Mervin, 3 JoJm. Ch. 466.) The recording 
 of the security is notice to all the world ; and hence a third mort- 
 gagee cannot, by purchasing the fii'st mortgage, squeeze out the 
 second. The other objection to a second mortgage, that the holder 
 of it is driven into equity for redress, applies in this state to all 
 mortgages ; it being the evident policy of our law to adjust the rights 
 of the parties in all cases in a court of equity. The principal objec- 
 tion to a second mortgage is that unless the security is abundantly 
 ample, the mortgagee may be compelled to take the premises and 
 pay off the first mortgage, or hunt up a purchaser who will take the 
 premises and pay off both. 
 
 The owner of the equity of redemption in the mortgaged premises 
 is a necessary party to an action for the foreclosure of the mortgage. 
 Where, therefore, the mortgagor has conveyed his equity of redemp- 
 tion to another, no suit in equity can be instituted against the mort- 
 gagor for the payment of the mortgage debt, without making the 
 grantee of the equity of redemption a party. (Eeed v. Marble, 10 
 Faige, 409.) 
 
 An equity of redemption is subject to the curtesy of the husband. 
 {Casborne v. Scai/c, 1 Atk. 603, a7id see ante.) It is also sub- 
 ject to the dower of the wife against all but the mortgagee or those 
 claiming under him. {Collins v. Torry, 7 John. 278. Coles v. 
 Coles, 15 id. 319. Van Dayne v. ThaTjre, 14 Wend. 233, 19 
 id. 162.) 
 
 As the whole of a man's estate, whether it be real or personal, is, on 
 his death, liable to the payment of his debts, the equity of redemp- 
 tion may be sold for that purpose, under appropriate proceedings, 
 and the purchaser become the owner of it subject to the mortgage. 
 {Willard on Ex'rs, 323.) 
 
 Any subsequent incumbrancer, whether by judgment or mortgage, 
 has a right to redeem. In case premises are sold under a junior in- 
 cumbrance, the purchaser of the mere equity of redemption is pre-
 
 WHEN PROPERTY CANNOT BE SOLD IN PARCELS. 145 
 
 sumed only to bid to the value of such equity of redemption beyond 
 the amount of the previous specific liens upon the premises. He 
 takes the property, therefore, subject to those liens ; and the prop- 
 erty becomes the primary fund for the discharge of those liens. 
 Equity will not permit such purchaser to keep the land, at the price 
 thus bid, and resort to the personal liability of the mortgagor to satisfy 
 the amount of such specific lien. If, in such a case, the mortgagor 
 is compelled to pay the prior mortgage, he will, in equity, be sub- 
 rogated to the rights of the first mortgagee, and will have the right 
 to an assignment of such prior bond and mortgage, to enable him 
 to leimburse himself from the fund in the hands of such purchaser 
 of the mortgaged premises. ( Vanderkem}) v. Shelton, 11 Paige, 28. 
 Tice v. Annin, 2 John. Ch. 128. Heyer v. Pruyn, 7 Paige, 470.) 
 
 The New York statute, we have seen, authorizes the court to de- 
 cree a sale of the mortgaged premises, whether the mortgage contains 
 a power of sale or not, and to direct the payment of the unsatisfied 
 balance, when such balance would be recoverable at law. It thus 
 accomplishes the whole in one action. Various questions arise in 
 the exercise of the powers of the court in these cases, which have 
 generally been settled upon wise and comprehensive principles of 
 natural equity. "Thus, where the ruortgaged premises are incapable 
 of being sold in parcels, or of being divided without injury, the whole 
 may be sold, though the whole debt is not due ; and the proceeds 
 applied to pay the interest and costs, and the surplus to the princi- 
 pal of the debt. {Campbell v. Macomb, 4 John. Ch. 534.) 
 
 Sometimes it is not necessary to anticipate the whole debt on the 
 sale for an installment, in which case a provision should be made to 
 render further litigation unnecessary. Thus, when the interest on 
 a mortgage is payable annually, and the principal at a future period, 
 on a bill for a foreclosure and sale for the non-payment of the inter- 
 est, the whole subject is usually brought before the court on the re- 
 port of a master under the former practice, or of a referee under the 
 present mode, as to the situation of the premises, and whether they 
 can be sold in parcels or not, and stating such other facts as may be 
 essential to aid the court in its determination of the matter ; when 
 the whole or a part of the mortgaged premises will be sold, as the 
 court may deem just and necessary. In case it be unnecessary to 
 sell the whole, the decree of sale and foreclosure will stand as further 
 security for the payment of future installments of principal and in- 
 terest, as they become due. An order will be obtained, from time 
 
 Will.— 10.
 
 14C ORDER OF SALES. 
 
 to time, for future sales, on the foot of the decree, and obtaininpf a 
 further report of the amount due. {^Brinkcrhoff v. 21iall/iimcrj 
 2 John. Ch. 486. Lyman v. Sale, 2 id. 487.) 
 
 We have already alluded to cases where the land becomes the 
 primary fund for the payment of the debt secured by mortgage. 
 Though, in general, the debt is the principal and the mortgage the 
 incident, or the security, the parties may by their dealings reverse 
 this order; in which cases equity compels the parties to their agree- 
 ment. This is sometimes by express agreement. Where land is 
 expressly conveyed, subject to a mortgage thereon, the land is the 
 primary fund, as between the grantor and grantee, and those deriv- 
 ing title from the grantor, for the ])ayment of the mortgage debt. 
 (Jumel V. Jumelj 7 Paige, 591.) On the same principle, where a 
 mortgagor sells part of the land subject to the whole mortgage, the 
 part sold is liable primarily for the mortgage debt, and the personal 
 estate of the deceased grantee is liable only for the deficiency. {liai- 
 se i/ V. Heed, 9 id. 446.) 
 
 It is often an important in({uiry to ascertain the order in which 
 successive inurtgagcs shall be j)aid off, where the j)remises chargetl 
 by the mortgage have been sold at different times and to different 
 parties. The general rule is that the different })arct*l8 should bo 
 charged with the incumbrance in the inverse order of their aliena- 
 tion. {Cloioes V. Dickinson, 5 John. Ch. 235. Schrjjver v. Teller, 
 9 Paige, 173.) The principle is the same where there are general 
 liens upon the whole land, and subsequent mortgages on the parcels, 
 the general liens are primarily chargeable on the parcels in the in- 
 verse order of their being mortgaged. {Schryvcr v. Teller, supra.) 
 
 So when lands belonging to several persons are covered by a mort- 
 gage given by one from whom they all derive their title, the several 
 parcels must be sold in the inverse order of their alienation. And 
 where the purchase money has been paid in good faith, the first pur- 
 chaser has the prior equity, although the consideration was not ac- 
 tually paid until other portions had been actually purchased and 
 paid for. {Grosevenor v. Lynch, 2 Paige, 300.) 
 
 The same doctrine applies where mortgaged premises are sold sub- 
 sequent to the date of the mortgage to different purchasers ; such 
 parcels, upon a foreclosure of the mortgage, are to be sold in the 
 inverse order of their alienation, according to the equitable rights 
 of the different purchasers, as between themselves. (Guion v. Knajjp, 
 6 Paige, 35. Snyder v. Stafford, 11 id. 71. The New York Life
 
 MODE OF COMPUTING INTEREST. 147 
 
 Ins. and Trust Co. v. Milnor, 1 Barh. Ch. 353. Stuyvesant v. Hallj 
 2 id. 151. Skeel v. Spraker, 8 Paige, 182.) 
 
 Under this head o^ foreclosure and sale, the question often arises 
 as to the mode of computing interest on the security, and which must 
 necessarily be settled by the court, when it pronounces the decree. 
 It is a general rule that interest upon interest, or compound interest, 
 is never allowed; except in special cases, or when there is a settle- 
 ment of accounts between the parties after interest has become due, 
 or there has been an agreement for that purpose subsequent to the 
 original contract, or a master's report, computing the amount of prin- 
 cipal and interest has been confirmed. {The State of Connecticut v. 
 Jackson, 1 John. Ch. 13. Van Benschoten v. Laioson, 6 id. 313. 
 Toll V. Hiller, 11 Paige, 328.) Though an agreement in advance, 
 to pay interest upon interest, is not usurious, still it cannot be en- 
 forced. An agreement to pay interest on interest which has accrued, 
 is valid. {Moiory v. Bishox), 5 Paige, 98.) If com[)Ound interest 
 is voluntarily paid, it cannot be recovered back. {Id.) But other- 
 wise when paid ignorantly, upon the faith of a calculation made by 
 a third person. {Boyer v. Park, 2 Dcnio, 107.) 
 
 The improvements of modern times have given rise to modes of 
 acquiring and transferring propert v, and of securing debts by mort- 
 gages thereon, not contem})Iated in the early stages of the common 
 law. Rail roads could never have been constructed, upon an exten- 
 sive scale, but by an aggregation of capital in corporate hands ; and 
 the necessary real estate could never have been acquired without the 
 aid afforded by government by the qualified assignment of its right 
 of eminent domain. {Beekman v. Saratoga and Schenectady Rail 
 Boad Co. 3 Paige, 45. Polly v. Saratoga and Washington Rail 
 Road Co. 9 Barh. 449. Adams v. Same, 11 id. 414. 4 Seld. 5S, 
 remarks in do.) Nor could the requisite funds have been borrowed 
 but by occasionally mortgaging the real estate and franchises of the 
 corporation. In this state, the mode of acquiring the real estate 
 essential for the purposes of the corporation, when the parties fail 
 to agree, is pointed out in the general act relative to rail road cor- 
 porations, and the acts amending the same. {Act of 1850, ch. 140; 
 1851, ch. 19 ; 1853, ch. 53 ; 1854, ch. 282.) Among the powers 
 of the corporation formed for this purpose, is that of borrowing 
 such sums of money as may be necessary for completing and finish- 
 ing, or operating their rail road, and to issue and dispose of their
 
 148 RIGHT OF RAIL ROAD TO MORTGAGE FRANCHISE. 
 
 bonds for any amount so borrowed, and to mortgage their corporate 
 property and franchises to secure the payment of any debt contracted 
 by the company, for the purposes aforesaid. {Laws of 1850, § 28, 
 sub. 10, p. 225.) 
 
 The usual mode is for the corporation, after determining upon the 
 terms of the proposed loan, to execute a mortgage of its real estate 
 and track, by a description sufficiently definite to identify it, together 
 with its franchises, to one or more gentlemen in trust for the bond- 
 holders, by whom the money is advanced. The mortgage must be 
 proved or acknowledged in due form, and recorded in the several 
 counties through which the road is laid. It prescribes the time and 
 manner of payment. [Seymour v. TJie Canandaigua and Niagara 
 B.R. 25 Barb. 284.) 
 
 The franchise of the corporation thus allowed to be mortgaged is 
 the attribute of continual succession, derived from the charter ; the 
 right to have a name and common seal ; to sue and be sued ; to 
 make by-laws ; to have capacity to transact business, &c. (1 B. S. 
 599.) These are the common law attributes of a corporation ; and 
 are expressly declared by statute to be applicable to the corpora- 
 tions in this state. By authorizing the corporation to mortgage this 
 franchise, the statute, in effect, authorizes a transfer of it to the 
 purchasers, on the sale under the foreclosure of the mortgage. The 
 latter thus become the owners of the property, with all its corporate 
 privileges. 
 
 It is competent for a rail road to mortgage its real estate, track 
 and fixtures, without its franchises. (Farmers' Loan and Trust 
 Co. V. Hendrickson, 25 Barb. 484, ivhere the rolling stock was held 
 to be fixtures of the road.) In such a case the purchaser, on a fore- 
 closure sale, could acquire nothing not embraced in the mortgage. 
 Brima facie, the real estate and franchises would, in such a case, 
 be separated from each other, and be of little value to any one. 
 The act of 1854, amending the general act, provides for such a case, 
 and authorizes the purchaser or purchasers and their associates to 
 make and acknowledge and file articles of association, as prescribed 
 by the general act, and thereupon to be a corporation, with all the 
 powers, privileges and franchises, and be subject to all the provisions 
 of the act. {Laios of 1854, § 5, p. 608.) There are some advan- 
 tages in forming a new corporation with the property acquired by 
 such purchase ; a new name can be taken. It is presumed that this 
 course can be adopted, even if the franchise be mortgaged with the
 
 CORPORATION^ NOT DISSOLVED BY SALE. I49 
 
 track and other property ; and it is the only remedy where the fran- 
 chise was not included in the mortirao-e 
 
 A corporation is not ipso facto dissolved by the sale of its*prop- 
 erty, effects and charter. ( Wilde v. JenJcins, 4 Paige, 481. Mick- 
 les V. The Rochester Citij Bank, 11 id. 118. The People v. 3Iau- 
 ran, 5 Benio, 389.) Some action of the courts, decreeing a dissolu- 
 tion, is required for that purpose. But the title of the purchaser 
 in good faith, under the foreclosure and sale, will not be affected by 
 the subsequent action of the courts against the original corporation. 
 The decree of foreclosure of a mortgage of a rail road and its fran- 
 chises usually makes provision for the purchase by some one in trust 
 for the bondholders, in case other purchasers should not bid a larger 
 sura. The sale in such a case does not take place under a power of 
 sale, but by virtue of the decree of the court. 
 
 The effect of a foreclosure sale is to cut off all liens, whether by 
 judgment, mortgage or otherwise, which accrued subsequent to the 
 mortgage under which the sale is made. The creditors at large of 
 the company have no remedy against the purchaser under the fore- 
 closure sale, or against the new company to be formed. Their rem- 
 edy exists against the old company, which they may pursue tojudo-- 
 ment. ^ The incumbrances on the road must b^ paid off according 
 to their priorities. 
 
 The legislature in this state has provided for the taking the lands 
 of mdividuals for the purpose of constructing plank roads and turn- 
 pike roads. {L. of 1847, ch. 210.) The general act does not author- 
 ize those companies to mortgage their roads or their franchises for 
 the security of their creditors. But the legislature have repeatedly, 
 by special acts, authorized such companies to borrow money, on the 
 bond of their officers, and in some instances have created a lien 
 upon the road as a security, for such indebtedness. {L. of 1851, c?i. 
 IS, p. 15.) They have in other instances authorized the officers of 
 the road to mortgage their corporate rights and franchises for a lim- 
 ited amount, and provided that on a sale by virtue of a foreclosure 
 of the mortgage, the corporate rights and franchises of the road 
 should vest in the purchasers, and that the corporation should not 
 be deemed thereby dissolved. {L. of 1851, p. 165.) 
 
 As these different roads are usually provided for by separate and 
 often conflicting legislation, it is not deemed expedient to collect 
 and arrange the several acts. We have only attempted to state the 
 general usage in the case of foreclosures and sale.
 
 150 MECHANICS LIENS. 
 
 There is another class of liens, which have been created by the 
 legislature in favor of certain mechanics, at first in some, but now 
 in all -of the counties of the state, for which the conveyancer must 
 make search if he wishes to secure for his client an unincumbered 
 title. These various acts are collected in the third volume of the 
 revised statutes, 5th edition, from i)age 802 to 828. It will be seen 
 that the provisions of the act of April 17, 1854, page 1086, are ex- 
 tended and declared to be applicable to all the counties of this state, 
 except the counties of New York and Erie, [L. of 1858, p. 324,) 
 for which provision had already been made. 
 
 These lien laws have been confined to the subjects named in the 
 act, and therefore, when the provisions of the act authorizing a lien 
 in favor of mechanics for work performed towards the erection, con- 
 struction or finishing of buildings, it was held that they did not 
 apply to the flagging of side walks, yards, and areas of buildings, iu 
 the process of erection. {McDermott v. Palmer j 4 Selden, 383.) 
 
 These statutes have given rise to numerous questions, and still 
 more will constantly arise. It is not possible for any legislation so 
 novel in its character, to be perfect at once, or to attain the objects 
 which its framers had in view. One object of these laws is to enable 
 the mechanic doin^ labor on a building erected under a contract 
 with the owner, to reach the fund due from the owner to the con- 
 tractor. The remedy, say the court, which the statute gives, is 
 against money due to the principal contractor for the work which he 
 agreed to do, but which the subcontractor or mechanic has actually 
 performed for him. It does not extend to money payable to the 
 contractor on any other account. It is quite reasonable that the 
 party meritoriously entitled to be paid for the work should be allowed 
 to intervene between the owner for whom a house was built and the 
 person who had contracted to build it, and to divert the course of 
 the payments, which would have passed into' the hands of such con- 
 tractor, to his own. It is a form of equitable subrogation, regulated 
 by statute, but it is limited to the plain case of money due upon a 
 contract for performing the work. (Loonie v. Hogan, 5 Seld. 440, 
 per Denio, J.) 
 
 Hence, when the owner of a lot in the city of New York contracted 
 with a purchaser to convey the lot to him for a certain sum, and to 
 loan him money in installments for the erection of a building thereon, 
 the price of the money lent to be secured by bond and mortgage 
 upon the premises at the completion of the building, at which time
 
 LIEN OF JUDGMENTS. 151 
 
 the lot was to be conveyed, it was held that the seller of the lot was 
 not "the owner of the building," within the meaning of the me- 
 chanics' lien act, although it was erected on lands of which he had 
 the legal title. The persons furnishing materials for such building 
 could not, under that statute, compel payment for those materials 
 out of the money agreed to be advanced by the seller to the pur- 
 chaser. (Id.) 
 
 Under the act of July, 1851, ch. 513, which relates to the city 
 and county of New York, and which superseded the prior laws on 
 the subject, the notice of the claim must be filed within six months 
 after the performance of the labor or the furnishing of the materials 
 by the contractor, subcontractor, laborer, or person furnishing the 
 materials. (Id, § 6.) The filing of this notice in the proper office 
 is the commencement of the lien, and it cannot be created in any 
 other way. {Donaldson v. O'Connor, 1 Smith's N. York C.P. 695.) 
 
 The lien thus created does not continue after one year has elapsed 
 from the filing of the claim, unless in the mean time proceedings are 
 instituted for its enforcement ; in which latter case it continues un- 
 til judgment. [Laios o/* 1851, §§ 11, 12, p. 956.) 
 
 A variety of questions have arisen under the above act, many of 
 them have been ably discussed and decided in tlje New York com- 
 mon pleas, but they do not appertain to the subject of this treatise. 
 (See Smith's Reports, N. Y. Common Pleas.) 
 
 There are, in several of the other states, similar laws giving a lien 
 to certain mechanics and material men for work and labor and for 
 materials found in the construction and repairing of buildings. 
 These statutes have led to some litigation, but the questions involved 
 do not fall within the scope of this work. 
 
 There is another species of lien on real estate more general in its 
 nature, arising from the judgment of the court, and it is regulated 
 in this state by statute. It does not of itself transfer the title of the 
 lands bound by it, or destroy the seisin of the defendant. {Sedg- 
 wich V. Hallenhech, 7 John. 376.) It will attach on lands of which 
 the judgment debtor becomes seised at any time after the judgment, 
 unless his seisin was instantaneous, or departed from him, eo in- 
 stanti that he acquired it. {Per Spencer J. in Stow v. Tiffit, 15 
 John. 459, 464.) At law a judgment cannot attach upon a mere 
 equity, {Jackson v. Chapin, 5 Cowen, 485,) nor in equity upon a 
 mere legal title, when the purchaser under it has notice of the equi- 
 table title. {Ells V. Tousley, 1 Paige, 280.)
 
 152 l-IEN BY JUDGMENT. 
 
 The suLject of judgments and their effect as liens was very fully 
 considered by the chancellor, in Buclian v. Sumner, (2 Barb. Ch. 
 193 et seq.) Previous to the revised statutes of 1830, he observes, 
 a judgment in a court of record in this state was a lien upon the 
 lands of the judgment debtor from the time of the entry of such 
 judgment, whether docketed or not. But by the statute then in 
 force, if the judgment was not properly docketed, it did not affect 
 the lands of the judgment debtor, as against subsequent purchasers 
 or mortgagees. (1 B. L. of 1813, p. 501, § 13.) Even as to them, 
 however, the undocketed judgment was entitled to priority in equity, 
 if the purchaser or mortgagee had notice of its existence at the time 
 of his purchase, or when he took his mortgage. {Davis v. The Earl 
 of Stratfstnore, 16 Ves. 420.) That statute made no provision for 
 priority in favor of the lien of subsequent judgment creditors. The 
 first judgment, although not docketed, was therefore entitled to a 
 preference over the lien of a junior judgment, which had been dock- 
 eted as directed by the statute. But if the land of the debtor had 
 been sold by the sheriff, under an execution upon the junior judg- 
 ment, to a purchaser who was ignorant of the existence of the prior 
 docketed judgment, such purchaser took the land discharged of the 
 lien of the undocketed judgment. 
 
 The revised statutes of 1830 made a very material alteration in 
 the law relative to the lien of judgments. The 12th section of the 
 title in relation to judgments (2 B. S. 360) declares that no judg- 
 ment shall affect any lands, tenements, real estate or chattels real, 
 or have any preference as against other judgment creditors, until 
 the record thereof shall l)e filed and docketed, as therein directed. 
 The effect of this provision appears to be to prevent the common 
 law lien of the judgment from attaching at all upon the real estate 
 of the judgment debtor until the judgment has been docketed ; and 
 not merely to protect bona fide purchasers and incumbrancers, who 
 had no notice of the existence of the judgment when their interests 
 in, or liens upon, the real estate of the judgment debtor accrued. 
 The same policy was carried out in the act of the 14th May, 1840, 
 {Laws of 1840, ch. 386, § 25, p. 334,) the 25th section of which de- 
 clares that no judgment or decree, which should be entered after 
 that act took effect, should be a lien upon real estate, unless the 
 same should be docketed in books provided for that purpose by the 
 county clerk of the county where the lands are situate. The exist- 
 ing law, as prescribed by the code of 1851, § 28, (5 B. S. 545, 5th ed.)
 
 LIEN BY JUDGMENT. I53 
 
 is substantially the same. It provides that on filing a judgment 
 roll, directing in whole or in part the payment of money, it may 
 be docketed with the clerk of the county where it was rendered, 
 and in any other county, upon filing with the clerk thereof a tran- 
 script of the original docket, and it is made a lien on the real prop- 
 erty in the county where the same is docketed, of every person 
 against whom any such judgment shall be rendered, and which he 
 may have at the time of docketing thereof, in the county in which 
 such real estate is situated, or which he shall acquire at any time 
 thereafter, for ten years from the time of docketing the same in the 
 county where it vras rendered. 
 
 The code of procedure, (§ 63,) also provides for do'hketing the 
 judgment rendered by a justice of the peace, when the amount of 
 the judgment exceeds twenty-five dollars, by filing and docketing a 
 transcript of the judgment in the office of the clerk of the county where 
 the judgment was rendered. From the time of the receipt of the 
 transcript the judgment is treated as a judgment of the county 
 court. A certified copy of this transcript may be filed in the clerk's 
 office of any other county, and with the like effect, in every respect, 
 as in the county where the judgment was rendered ; except that it 
 shall be a lien, only from the time of filing and docketing the tran- 
 script. The lien of such a judgment on real estate is coextensive 
 with that of a judgment of the county court. ( Waltermirc v. 
 Westover, 4 Kern. 16. Crippen v. Hudson, 3 id. 161. Dickin- 
 son V. Smith, 25 Barb. 102.) 
 
 A judgment does not lose its lien upon real estate by the suffering 
 of an execution issued thereon to lie dormant in the sheriff"'s hands. 
 The doctrine on the subject of dormant executions does not apply 
 to real estate ; the lien upon which depends upon the docketing of 
 the judgment, and not upon the execution or levy. And suciriien 
 does not become dormant until the expiration of the statutory lim- 
 itation of ten years. (Bluir v. Leitch, 7 Barb. 341.) 
 
 Since 'the act of 1840, judgments are liens upon real estate only 
 when docketed in the offices of the clerks of the counties where 
 the premises are situated. (Johnson v. Fitzhugh, 3 Barb. Ch. 360.) 
 Judgments of the supreme court prior to the act of 1840 are not 
 aff'ected by it, and such judgments continue a lien upon lands 
 throughout the state, though they have been revived by scire facias 
 since that act took effect, {aarh v. DaUn, 2 Barb. Ch. 36.) 
 The lien of a judgment ceases absolutely, after the lapse of ten
 
 154 JUDGMENTS OF U. S. COURTS. 
 
 years from its docketing, as against subsequent mortgages, judg- 
 ments or other incumbrances ; and as to them, the question of notice, 
 actual or constructive, cannot arise. {Little v. Harvey, 9 Wend. 157.) 
 And it seems that all purchasers are to be considered purchasers in 
 good faith within the meaning of the act on this subject, except those 
 who purchase with an actual fraudulent intent. And it does not alter 
 the case that they purchased during the ten years, and with knowl- 
 edge of the judgment. {Titffts v. Tuffts, 18 Wend. 621. Lansing v. 
 Fischer, 1 Coiuen, 431. Crosier v. Arer, 7 Paige, 137.) 
 
 The judgments of which we have been speaking are judgments of 
 the courts of this state. As there is no act of congress making a 
 judgment i*i a court of the United States a lien upon lands, either 
 within the general territorial juridiction of the court or elsewhere, 
 the existence of such a lien must depend upon the local law of the 
 state where the land is situated upon which such a lien is claimed. 
 (Taylor v Thompson's Lessee, 5 Peters, 358, Manhattan Co. v. 
 Fvertson, 6 Paige, 467.) A judgment recovered in the district 
 or circuit court of the United States for the northern or southern 
 district of the state of New York is a lien upon lands throughout 
 the state, for the term of ten years from the time of docketing such 
 judgment, in conformity to the local law of the state. {The Manhat- 
 tan Co. V. Fvertson, supra.) But it seems that a judgment in favor 
 of the United States, recovered in one of the federal courts out of 
 the state of New York, is not a lien upon lands within that state 
 from the docketing of the judgment ; although by the law of the 
 United States, an execution on such judgment may be issued against 
 the defendant's property in any state of the Union. 
 
 If the lien of the judgment was coextensive with the right to is- 
 sue execution, the recovery of a judgment in favor of the United 
 States in the district of Louisiana, if duly docketed, would create a 
 lien upon the lands of the debtor heir ; so that no purchaser could 
 consider himself safe in purchasing lands within the state until he 
 had searched the records of every federal court throughout the whole 
 extent of the Union. But a different rule prevails. The judgment 
 of the federal court, to be a lien on the lands of the debtor in this 
 state, must be a judgment of one of the federal courts within this • 
 state. (Id.) 
 
 There are other securities which become a lien on real estate. 
 Thus, every person chosen or appointed to the office of collector, be- 
 fore he enters on the duties of his office, and within eight days after
 
 WHEN TAXES ON LANDS ARE LIENS. 155 
 
 he receives notice of the amount of the taxes to he collected by him, 
 is required to execute to the supervisor of the town and to lodge 
 with him, a bond, with one or more sureties to be approved by such 
 supervisor, in double the amount of such taxes, conditioned for the 
 faithful execution of his duties as such collector. (1 R. 8. 346, 
 § 19.) The supervisor is required to file such bond, with his appro- 
 bation indorsed thereon, in the office of the county clerk, who is re- 
 quired to make an entry thereof in a book to be provided for that 
 purpose, in the same manner in which judgments are entered of re- 
 cord. Every such bond is declared to be a lien on all the real estate 
 held jointly or severally by the collector or his sureties within the 
 county, at the time of the filing thereof, and to continue such lien 
 till its condition, together with all costs and charges which may ac- 
 crue by the prosecution thereof, shall be fully satisfied. {Id. § 20.) 
 
 In the general act relative to villages, all taxes levied by virtue 
 of the act are made a lien upon the real estate upon which they shall 
 be assessed. (2 id. 712, 5th ed.) 
 
 Taxes charged on lands returned to the comptroller, and the inter- 
 est thereon, are a lien upon such lands, and after remaining unpaid 
 for two years from the first day of May following the year in w^hich 
 they were assessed, that officer is authorized to proceed to advertise 
 and sell the land in the manner pointed out by law. (1 B. JS. 930, 
 5th ed.) It is on this principle that taxes assessed on the estates 
 of deceased persons previous to their death are entitled to priority 
 of payment over debts due to individuals. (2 id. 87.) 
 
 Taxes imposed by the United States are a lien upon the real es- 
 tate, and these, together with debts due to the government, are enti- 
 tled to priority of payment in administering the estates of deceased 
 persons ; (2 R. S. 87 ;) but in the case of debts due to the govern- 
 ment no lien is created, which will overreach a bona fide transfer of 
 property in the ordinary course of business. It is a mere priority of 
 payment, as among the creditors of a common debtor. {United 
 States v. Fisher, 2 Cranch, 358.)
 
 156 ESTATES IN EXPECTANCY. 
 
 CHAPTER VI. 
 
 OF ESTATES IN EXPECTANCY. 
 
 Section I. 
 Of remainder, generally. 
 
 Estates, when considered with respect to the time of their enjoy- 
 ment, arc divided into estates in possession, and estates in expect- 
 ancy. (1 R. S. 722.) 
 
 An estate in possession is when the owner has an immediate right 
 to the possession of the land. It is sometimes spoken of as an estate 
 executed, when there is a present and immediate right of j)re8ent or 
 future enjoyment. (1 Prest. on Est. 62.) In tliis sense it applies 
 to vested estates as distinguished from such as are contingent. 
 
 An estate in expectancy is when the right to the jjossession is post- 
 poned to a future period. (1 li. S. 723.) And in the revised stat- 
 utes it is divided into 1. Estates commencing at a future day, de- 
 nominated future estates ; and 2. Reversions. (/(/.) Tlie first arc 
 created by the act of the parties ; and the second by the act of 
 the law. 
 
 Previous to 1830, the law on this abstruse branch of our juris- 
 prudence was formed U])on tlie model of the English law. We were 
 governed by the common law. The revisers, as they tell us in their 
 notes, (3 R. S. 570, 571, 2d ed.) with a view to extricate this 
 branch of the law, from the perplexity and obscurity in which it was 
 then involved, and render a system simple, uniform and intelligible, 
 ■which, in its then present state, was various, complicated and ab- 
 struse, proposed certain alterations which were substantially adopted 
 by the legislature. After pointing out some of the refinements and 
 subtleties of the English law in this respect, they suggested that the 
 obvious and effectual remedy was to abolish all technical rules and 
 distinctions, having no relation to the essential nature of property, 
 and the means of its beneficial enjoyment, but which, derived from 
 the feudal system, rested solely upon feudal reasons ; to define with 
 precision the limits within which the power of alienation might be 
 suspended by the creation of contingent estates, and to reduce all
 
 FUTURE ESTATES. 157 
 
 expectant estates substantially to the same class, and to apply to 
 them the same rules whether created by deed or devise. 
 
 By the term a future estate, the legislature intended not only to 
 embrace remainders, properly so called, but also springing and sec- 
 ondary uses, and executory devises, and to bring them all under the 
 same rule. 
 
 In considering these provisions of the revised statutes it is neces- 
 sary to understand the law as it stood antecedent to these enact- 
 ments. We cannot otherwise comprehend the nature and import- 
 ance of the changes. 
 
 At common law an estate in remainder was defined to be an estate 
 to take effect and be enjoyed after another estate was determined. 
 As if a man seised in fee simple, grants lands to A. for a term of 
 years, or for life, and after the determination of the said term, then 
 to B. and his heirs forever ; these two interests, for many purposes, 
 constitute but one estate. By uniting in a conveyance to a third 
 person in fee, the estate of A. and B. become consolidated into 
 one estate in their grantee. (2 Black. Com. 164. Crahhe on Real 
 Estate, § 2323.) 
 
 ' In the words of Lord Coke, a remainder is a residue of an estate 
 in land depending upon a particular estate, and created together with 
 the same at one time. (1 Inst. 49 a.) The validity of a remainder 
 depended, at common law, upon a few general rules: Ist, there 
 must be a particular estate, precedent to the estate in remainder ; 
 2d, it must commence or pass out of the grantor at the same time 
 of the creation of the particular estate ; and 3d, it must vest in the 
 grantee during the continuance of the particular estate, or eo instanti 
 that it determined. These were elementary principles in the law of 
 remainder. In addition to which it may be said that a remainder 
 in fee could not be created after another estate in fee, and be valid 
 as a remainder. 
 
 The revised statutes so changed the law that a future estate could 
 be limited to take effect without the intervention of a precedent es- 
 tate. They define a future estate, to be an estate limited to com- 
 mence in possession at a future day, either without the intervention 
 of a precedent estate, or on the determination, by lapse of time or 
 otherwise, of a precedent estate, created at the same time. (1 R. S. 
 723, § 10.) The subsequent section states, that where a future es- 
 tate is dependent on a precedent estate, it may be termed a remainder, 
 and may be created and transferred by that name.
 
 158 FUTURE ESTATES. 
 
 In a case contemplated by the 11th section, it is presumed that 
 the term remainder has its common law meaning, and that it is not 
 valid as such remainder, unless the precedent estate by which it is 
 upheld is something more than a mere estate at will. {Lord Staf- 
 ford's case, 8 Co. 75 a.) An estate at will is of too frail a nature 
 to uphold an estate in remainder. Such estate cannot be sold on 
 execution. {Bigeloio v. Finch, 11 Barh. 498. S. C. 17 id. 394. 
 Post V. Post, 14 id. 257, per Hand, J.) A remainder upheld only 
 by an estate at will, would be void in its creation. 
 
 It was a principle of the common law, that when the particular 
 estate was defeated, the remainder was thereby defeated also. There 
 were some exceptions to this rule. When the particular estate and 
 the remainder depended upon one title, the defeating of the particu- 
 lar estate would be a defeating of the remainder. But when tho 
 particular estate was defeasible, and the remainder by good title, 
 then, though the particular estate be defeated, the remainder was 
 good. {Go. Litt. 298 a.) 
 
 Though an estate may not be good as a remainder, when the 
 particular estate is void or is defeated, it is believed that it may be 
 good as Q. future estate, within the meaning of the tenth section. If 
 such an estate could be created without the intervention of a par- 
 ticular estate, no reason is perceived why it should be defeated by 
 the failure of such estate. 
 
 Upon the rules which have been stated as to the validity of re- 
 mainders, the doctrine of contingent remainders sprung up. The 
 policy of the revised statutes was to apply to future estates gener- 
 ally, the doctrines which, at common law, were applicable to remain- 
 ders. As remainders were vested and contingent, so it was proper to 
 declare i\isX future estates should be either vested or contingent. 
 They are vested where 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. They are contingent whilst 
 the person to whom, or the event upon which they are limited to 
 take effect, remains uncertain. (1 P. S. 723, § 13.) This defini- 
 tion seems to have been taken from the systematic writers on the 
 subject of remainders. Mr. Cruise, whose work was before the re- 
 visers when they framed the statute we are considering, speaks of 
 vested remainders, or remainders executed, as he calls them, as those 
 by which a present interest passes to the party, though to be en- 
 joyed in future, and by which the estate is invariably fixed to re-
 
 VESTED AND CONTINGENT REMAINDERS. I59 
 
 loain to a determinate person after the particular estate is spent. 
 Mr. Fearne, whose valuable treatise on this subject is often cited by 
 the revisers, says, an estate is vested when there is an immediate 
 fixed right of present or future enjoyment. An estate is vested in 
 possession when there exists a right of present enjoyment. An 
 estate is vested in interest when there is a present fixed right of 
 future enjoyment. An estate is contingent when a right of enjoy- 
 ment is to accrue on an event which is dubious and uncertain. 
 {Cruise's Dig. title 16, Remainder, ch. 1, § 8 and notes, Greenleafs 
 ed.) To the same effect is Mr. Preston : An estate executed, is, says 
 he, when there is a present and immediate right of present or future 
 enjoyment. Every estate which is executed, necessarily gives a 
 vested interest. Whether the estate be executed in possession or 
 merely in interest, and not in possession, will depend on the circum- 
 stances of its conferring a right of present or future enjoyment. 
 When the right of enjoyment in possession is to arise at a future 
 period, the estate is executed only ; that is, vested only in point of 
 interest ; and when the right of immediate enjoyment is annexed to 
 the estate, then only is the estate executed in possession. (1 Pres- 
 ton on Estates, 62.) 
 
 The term vested is used by all these writers, as it is also by the 
 statute, in opposition to contingent. 
 
 The statute we have seen states that estates are contingent whilst 
 the person to whom, or the event upon which they are limited to 
 take efi'ect, remains uncertain. A remainder, says Mr. Cruise, is 
 contingent when it is limited to take eff"ect on an event or condition 
 which may never happen or be performed, or which may not happen or 
 be performed till after the determination of the preceding particular 
 estate, in which latter case, at common law, such remainder could 
 never take efi'ect. Mr. Fearne reduces the various contingent re- 
 mainders to four kinds : 1st. When the remainder depends entirely 
 on a contingent determination of the preceding estate itself. The 
 second is when some uncertain event, unconnected with and collat- 
 eral to the determination of the preceding estate, is by the nature 
 of the limitation to precede the remainder. The third is when it is 
 limited to take efi'ect upon an event which, though it certainly 
 must happen some time or other, yet may not happen till after 
 the determination of the particular estate, in which latter case the 
 remainder becomes void at common law. And fourth, when it is
 
 160 CONTINGENT REMAINDERS. 
 
 limited to a person not ascertained, or not in being at the time such 
 limitation is made. 
 
 Section II. 
 Of Contingent Remainders. 
 
 Having stated, in the preceding section, some general views with 
 respect to future estates, and especially as to vested and contingent 
 remainders, it is proposed, in the present section, to enlarge upon 
 the subject and to give some illustration of the rules which have 
 been proposed by authors on this interesting subject. The case put 
 by Mr. Fearne, by way of illustration of the first case, is, if A. makes 
 a feoffment to the use of B. till C. returns from Rome, and after 
 such return of C, then to remain over in fee ; where the particular 
 estate is limited to determine on the return of C, and only on that 
 determination of it is the remainder to take effect ; but that is an 
 effect which possibly may never happen ; therefore the remainder, 
 which depends entirely upon the determination of the preceding 
 estate by it, is contingent. [Cruise, title 16, ch. 1, § 11.) 
 
 A testator by his will made in 1792, after giving all his personal 
 estate to his wife, gave to her all his real estate in fee, except two 
 lots of land in the city of New York. Those parcels he devised to 
 his wife for life, and after her death, in case her daughter, an only 
 child, should die without having married, or without having any 
 child or children, one parcel to his nephew William, and the other 
 to his nephew Henry. The daughter survived the mother, but after- 
 wards died without issue. It was held by the court of appeals that 
 by the will the nephews took contingent remainders in fee, which 
 would take effect only in case the daughter died childless, during 
 the life of the loidow ; that the daughter, in the meantime, took the 
 fee by descent ; and, on her surviving the widow, the remainder fell, 
 and she became entitled to the premises absolutely. ( Wolfe v. Vo.n 
 Nostrand, 2 Comst. 436.) 
 
 In this case it was contended, by the counsel for the nephews, 
 that they took a contingent estate by way of executory devise. But 
 the court held otherwise ; adopting the inflexible rule of law, that a 
 future interest capable of taking effect as a contingent remainder, 
 shall never take effect as an executory devise. The remainder to the 
 nephews was supported by the life estate to the widow. It was to 
 take effect in interest upon the death of the daughter without chil-
 
 CONTINGENT REMAINDERS. 161 
 
 dren during the life of her mother ; and in possession on the death 
 of the latter. The fee in the mean time descended to the daughter, 
 as heir at law to her father. She having survived her mother, the 
 remainder fell with the freehold estate upon which it was dependent, 
 to wit, the life estate of the mother, and she thus became untitled to 
 the premises absolutely. The remainder to the nephews was con- 
 tingent on the determination of the preceding estate, the life estate 
 to the widow. 
 
 The second proposition of Mr. Fearne is taken from the case put 
 by Coke. (1 Inst. 378 a.) If a man make a lease for life to A., B. 
 and C, and if B. survive C. then the remainder to B. and his heirs. 
 Here the want of B.'s surviving C. does not affect the determination 
 of the particular estate ; but it must precede and give effect to B.'s 
 remainder ; and as such an event is dubious, the remainder is con- 
 tingent. It is a common possibility that one man may die before 
 another, and it is therefore an event upon which a remainder may 
 commence upon limitation of time. 
 
 Where a remainder in fee was limited by the will to the eldest 
 son of the first taker to whom an intermediate life estate was given, 
 the remainder was held to be contingent until the birth of such son ; 
 but on the happening of that event before the termination of the life 
 estate, it became a vested estate in remainder. And where an estate 
 tail in remainder was so limited, and became vested by the birth of a 
 son prior to the act of 1786, abolishing entails, it was held that by the 
 operation of that act the estate tail in remainder was converted into 
 a fee simple in remainder, which on the death of the remainderman 
 without issue in 1809, and before the determination of the interme- 
 diate life estate, descended to his father as his heir at law. A party 
 who has a vested remainder in fee simple, expectant on the determi- 
 nation of a present freehold estate, has such a seisin in law where 
 the estate was acquired by purchase, as will constitute him a stirpes, 
 or stock of descent. (Wendell v. Crandall, 1 Comst. 491; S. 0. 
 2 Denio, 9.) 
 
 In the foregoing case the testatoj devised certain real estate to 
 trustees in fee for and during the life of his grandson Mathias, the 
 eldest son of the testator's son Dick, to support contingent remain- 
 ders in his will, so that they might not be destroyed, but in trust 
 nevertheless to permit and suffer him to receive the rents and profits 
 thereof to and for his own use during his natural life, and from and 
 
 after his decease, he devised the same to the first son of the bodv 
 Will.— 11 ^
 
 152 ' CONTINGENT REMAINDERS. 
 
 of the said Mathias, lawfully issuing, born or unborn, and to the 
 heirs male of the body of such first son, lawfully issuing ; and for 
 the defeult of such issue, then likewise to the second, third, and 
 every other son of the said Mathias successively, &c. Dick, the eldest 
 son of Mathias, the grandson of the testator, was born in 1783, and 
 died in 1809 ; both events having happened while the life estate was 
 running which did not terminate until 1825. On the birth of Dick, 
 his remainder, which was before contingent, became vested in inter- 
 est, and he was seised of an estate tail in remainder. Although he 
 neither had possession, nor the right to immediate possession, he had 
 a fixed right of future enjoyment the moment the life estate should 
 come to an end. Such was the state of the case at the time the act 
 of 1786 was passed, the effect of which was to turn the estate tail 
 into an estate in fee simple. The tenant in tail thus becoming, by 
 force of the statute, a tenant in fee simple, and having acquired the 
 estate by purchase, constituted a new stock of descent, from whona 
 the lands might go according to the law of descents, instead of fol- 
 lowing the form of the gift in tail. ( Wendell v. Crandall, supraj 
 per Bronson, J.) 
 
 The uncertain event in the above case was the birth of Dick, a 
 matter unconnected with and collateral to the determination of the 
 preceding estate. 
 
 The third kind of contingent remainder, mentioned in the pre- 
 ceding section, is when the remainder is limited to take effect upon 
 an event which, though it certainly must happen some time or other, 
 yet may not happen till after the determination of the particular 
 estate, in which latter case the remainder becomes void at common 
 law ; because, at common law, the remainder must vest either 
 during the continuance of the particular estate or at the very in- 
 stant of its determination. This kind of remainder was thus illus- 
 trated by Coke : If, says he, a lease be made to J. S. for his life, and 
 after the death of J. D. to remain to another in fee, this remainder 
 is contingent ; for though J. D. must die some time or other, yet 
 he may survive J. S. by whose death the particular estate will de- 
 termine, and the remainder become void. {Boraston's case, 3 Coke, 
 20 a.) 
 
 This class of remainders seems to be included in the provisions of 
 the revised statutes to prevent the defeat of contingent remainders 
 in certain cases. It is there enacted that no remainder, valid in its 
 creation, shall be defeated by the determination of the precedent
 
 CONTINGENT EEMAINDERS. 163 
 
 estate, before the happening of the contingency on which the re- 
 mainder is limited to take effect ; but should such contingency af- 
 terwards happen, the remainder shall take effect in the same manner 
 and to the same extent as if the precedent estate had continued to 
 the same period. (1 R. S. 725, § 34.) 
 
 The fourth kind of contingent remainders, alluded to in the pre- 
 ceding section, is when it is limited to a person not ascertained, or 
 not in being at the time such limitation is made. Thus, according 
 to Coke, if a lease be made to one for life, remainder to the right 
 heirs of J. S. ; now there can be no such person as the right heir of 
 J. S. till his death, for nemo est iLceres viventis; and J. S. may not 
 die till after the determination of the particular estate ; therefore 
 such remainder is contingent. (1 Inst. 378 a.) So when an estate 
 is limited to two persons during their joint lives, remainder to the 
 survivor of them in fee, such remainder is contingent, because it is 
 uncertain which of them will survive. {Cruise's Dig. Remainder, 
 ch. 1, § 21.) _ 
 
 The foregoing classification, derived from Mr. Fearne, is followed 
 by Mr, Cruise, and by other writers. But it is too refined for prac- 
 tical use. The division of the subject, by Blackstone, is more in 
 harmony with the truth, and sufficiently minute for all purposes. 
 He embraces all under two classes, namely, such as are limited to 
 take effect to a dubious and uncertain person, or upon a dubious 
 and uncertain event. (2 Bl. Com. 169.) It is manifest that the 
 legislature had this classification in view, in framing their definition 
 of a contingent remainder. After declaring that an estate 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, they enact that remainders are contingent whilst 
 the person to whom, or the event upon which they are limited to 
 take effect, remains uncertain. (1 R. S. 723, § 13.) They obvi- 
 ously designe-d to bring all contingent remainders under one or the 
 other condition, as depending upon the uncertainty of the person 
 or of the event; and this seems to be the more natural and philo- 
 sophical di%asion of the subject. 
 
 It was a principle of the common law that no contingent remain- 
 der, amounting to a freehold, could be limited on an estate for years, 
 or on any other particular estate less than a freehold. The reason 
 was, that unless the freehold passed out of the grantor at the time 
 when the remainder was created, such freehold remainder was void.
 
 164 WHEN POWER OF ALIENATION SUSPENDED. 
 
 Hence, if land be granted to A. for ten years, with remainder in fee 
 to the right heirs of B., this remainder was void. But if granted to 
 A. for life, with a like remainder, it was good. {Chtcdlevjh's case, 
 1 Coke, 130 a.) In the first case the freehold could not vest in the 
 particular tenant as he had only an estate for years ; in the second 
 case, as the particular tenant has an estate of freehold, the remain- 
 der in fee, as it passes out of the grantor, can vest in the particular 
 estate, which is one of freehold. 
 
 These rules are modified by the revised statutes. A contingent 
 remainder may now be created on a term of years, if the nature of 
 the contingency on which it is limited be such that the remainder 
 must vest in interest during the continuance of not more than two 
 lives in being at the creation of such remainder, or upon the term- 
 ination thereof (1 B. S. 724, § 20.) And an estate for life may 
 be limited as a remainder on a term of years, if made to a person in 
 being at the creation of such estate, and not otherwise. (Id. § 21.) 
 
 The power of alienation of an estate is suspended when there are 
 no persons in being by whom an absolute fee in possession can be 
 conveyed. It is the policy of the law, and it is thus enacted, that 
 every future estate shall be void in its creation which shall suspend 
 the absolute power of alienation for a longer period than that pre- 
 scribed in that article. (1 R. S. 723, § 14.) The following section 
 enacts that the absolute power of alienation shall not be suspended 
 by any limitation or condition whatever for a longer period than 
 during the continuance of not more than two lives in being, at the 
 creation of the estate, except in the single case mentioned in the 16th 
 section. That section permits a contingent remainder in fee to be 
 created on a prior remainder in fee, to take effect in the event that the 
 persons to whom the first remainder is limited shall die under the age 
 of twenty-one years, or upon any other contingency by which the estate 
 of such persons may be determined before they attain the full age. 
 
 The power of alienation has sometimes been attempted to be sus- 
 pended or destroyed as well by conditions as by limitation ; and the 
 principle is the same whether the condition be inserted in a lease in 
 fee reserving rent, or in an absolute conveyance. Thus, where the 
 lessor, in a lease of lands in fee executed in 1785, reserved to him- 
 self, his heirs and assigns, in addition to the annual rent, the right 
 to purchase the premises in case the lessee, his heirs &c. should 
 choose to sell, on paying three quarters of the price demanded, the
 
 ILLEGAL RESTRAINT OF POWER OF ALIENATION. 165 
 
 lessee covenanting to make the first offer to the lessor, his heirs &c. 
 upon those terms, and in case the offer should be declined, then the 
 lessor reserved to himself, his heirs &c., one fourth part of all mon- 
 eys which should arise from the selling, renting or disposing of the 
 lands by the lessee, his heirs and assigns, when and so often as the 
 same should be sold, rented or disposed of; with the condition that 
 in case of a sale or other transfer, without the payment of such one 
 fourth to the lessor, his heirs or assigns, the sale or transfer should 
 be void, and the premises should revert to the lessor, his heirs and 
 assigns, who might then re-enter upon the premises and repossess. 
 and enjoy the same as of his former estate, it was held by the court 
 of appeals of New York that the reservation of the quarter sales, 
 and the condition and right of re-entry, upon defliult of their pay- 
 ment were void. {DePeyster v. 3Iichael, 2 Seld. 467.) The inva- 
 lidity of the pre-emptive right of purchase by the grantor, and tho 
 reservation of a part of the purchase money, the quarter sales, were 
 deemed repugnant to an estate in fee, as an illegal restraint upon 
 the power of alienation. This doctrine has been repeatedly applied 
 with reference to estates in» fee, though similar conditions are not in- 
 compatible with estates for years or for life. {Overbagh v. Patrie, 
 8 Barb. 28.) 
 
 But the question has been more frequently agitated in other 
 classes of cases, and perhaps oftener under wills than under other 
 modes of conveyance. There is a strong propensity in the human 
 mind to exercise an unlimited control over property by the owner 
 during his life, and to clog and fetter the alienation of it after his 
 death. To restrict this last propensity within reasonable limits has 
 been the object of the legislature and the courts. 
 
 In Amory v. Lord, (5 Sehl. 403,) the testator died, leaving a 
 wife, children and grandchildren, having previously devised his real 
 estate to his wife and two other persons, in trust, to receive the net 
 income thereof, and apply it to the use of his wife during her life, 
 or widowhood, and at her death or marriage to divide the same into 
 as many shares as he should have children surviving him, the net 
 income of one share to be received by each child during his or her 
 life, and afterwards by his or her husband or wife during life or until 
 marriage, and then the fee of each share to vest, absolutely, in the 
 children of each child, if any, and if none, then in the right heirs of 
 the testator ; it was held by the New York court of appeals that the 
 entire devise was void, for the reason that it suspended the absolute
 
 IQQ RULE IN SHELLEY'S CASE. 
 
 power of alienation beyond the continuance of two lives in being at 
 the time when the devise was to take effect. The court thought 
 that by this devise the widow and children of the testator and their 
 surviving wives and husbands did not take successive legal estates, 
 in which case the two first would be valid and the others void, but 
 mere equities, all dependent upon the trust, which being void, the 
 equitable interests all foiled. In this case, notwithstanding a qual- 
 ified power was given to the trustees to lease the estate for terms not 
 exceeding ten years, and to sell such portions thereof as might be 
 necessary to discharge liens and pay for improvements upon the res- 
 idue, the absolute power of alienation was suspended, and hence it 
 was void. 
 
 There is no subject which has created more intense litigation than 
 that which arose on the construction of an instrument in which a 
 remainder was limited to the heirs, or heirs of the body of a person 
 to whom a life estate in the same premises were given, wherein the 
 question was whether the persons who, on the determination of tho 
 life estate should be the heirs of the body of such tenant for life, 
 should be entitled to take as purchasers by virtue of the remainder 
 so limited to them, or whether the whole estate should vest in the first 
 taker ; or in other words, whether the word heirs were words of lim- 
 itation or words of purchase. 
 
 This question was settled in England in the reign of Elizabeth, 
 by what is termed the rule in Shelley's case, and the rule itself is 
 explained with more or less fullness by the English writers on es- 
 tates. It is not intended in this work to go into an elaborate exam- 
 ination of that rule or of the reasons for it. Mr. Preston gives sev- 
 eral descriptions of the rule, the most brief and comprehensive of 
 which is, that where the ancestor takes an estate of freehold, by any 
 gift or conveyance, and in the same gift or conveyance there is a 
 limitation, either mediate or immediate, to his heirs, or heirs of his 
 body, the word heirs is a word of limitation of the estate, and not 
 of purchase. The consequence of this rule is, that the first taker 
 takes the whole estate, in fee simple, according to the former law of 
 this state. [Shelley's case, 1 Rep. 94, 104. 1 Preston on Estates^ 
 264.) This rule was adopted by the supreme court of this state 
 about the year 1801, as appears by the first reported case on the 
 subject. [Brant v. Gelston, 2 John. Cas. 384.) The judges who de- 
 livered the opinion of the court assume that the doctrine of Shel-
 
 ENTAILS ABOLISHED. 167 
 
 le/s case was a part of the common law, and as such binding upon 
 our courts. It continued to he the hiw of this state until the rule 
 was abrogated by the legislature at the revision of the laws in 1830. 
 The abrogation of the rule is thus expressed : " Whenever a remain- 
 der shall be limited to the heirs of the body of a person to whom a 
 life estate in the same premises shall be given, the persons who, on 
 the determination of the life estate, shall be the heir or heirs of the 
 body of such tenant for life, shall be entitled to take as purchasers 
 by virtue of the remainder limited to them." (1 R. S. 725, § 28.) 
 The abrogation of the rule applies to wills as well as deeds. Its 
 effect is, in cases where the former rule applied, to turn estates in fee 
 into contingent remainders ; and this probably, in most cases, was 
 what the creator 'of the estate desired. 
 
 At common law, where an estate is conveyed or devised to A., and 
 if he die without issue, or without heirs of his body, or without heirs 
 when the limitation over is to an heir, then to B. in fee, A. takes an 
 estate tail, on which the limitation to B. is valid as a remainder ; 
 and if the entail be not barred, the fee will vest in B. or his heirs in 
 case of the failure of the issue of A. at any distance of time. By the 
 operation of our statute abolishing entails, the estate of A. is con- 
 verted into a fee simple absolute, and thus the remainder to B. and 
 his heirs is entirely defeated. 
 
 The revisers conceived that it was possible, notwithstanding the 
 abolition of entailments, to preserve this remainder, and they did so 
 by the provision declaring that when a remainder in fee should be 
 limited upon any estate, which would be adjudged a fee tail, accord- 
 ing to the law of this state as it existed previous to the 12th July, 
 1782, such remainder should be valid as a contingent limitation 
 apon a fee, and should vest in possession on the death of the first 
 taker, without issue living at the time of such death. (1 B. S. 722, 
 § 4. IB. L. 52, § 1 Van Bensselaer v. Boucher, 5 Denio, 35. 
 Vanderlieyden v. Crandall, 2 id. 9.) 
 
 With respect to estates tail by implication, the foregoing provision 
 was sufficient ; but it was deemed necessary to embrace limitations 
 of chattel interests, and those cases in which the remainder was lim- 
 ited on the death of a person to whom no estate was given. {Bev. 
 Notes, 3 B. S. 573, 2d ed.) This was sought to be accomplished 
 by the 22d and 23d sections, (1 B. S. 724,) by enacting that when 
 a remainder shall be limited to take effect on the death of any per-
 
 168 CONTINGENT REMAINDERS. 
 
 Bon, without heirs, or heirs of his body, or without issue, the words 
 "heirs" or "issue" should be construed to mean heirs or issue living 
 at the death of the person named as ancestor, and by dechiring that 
 all the provisions contained in that article relative to future estates 
 should be construed to apply to limitations of chattels real as well 
 as of freehold estates, so that the absolute ownership of a terra of 
 years should not be suspended for a longer period than the absolute 
 power of alienation can be suspended in respect to a fee. The eifect 
 of the former law upon the words " without leaving any issue," are 
 explained in Rathhone v. Dyckman, (3 Paige, 30,) as meaning one 
 thing when applied to personal estate, and an entirely different thing 
 when applied to real property. The legislature intended to give to 
 those words the natural and the same meaning, whether they were 
 used with reference to real or personal property. (1 R. S. 724, §§ 22, 
 23 ; and 773, §§ 1, 2. Norris v. Beyea, 3 Kern. 273.) 
 
 Subject to the rules established in the various sections in the article 
 we are considering, and the most of which we have cited, a freehold 
 estate, as well as a chattel real, may be created as well by deed as by 
 will, to commence at a future day ; an estate for life may be created 
 in a term of j^ears, and a remainder limited thereon ; a remainder of 
 a freehold or chattel real, either contingent or vested, may be created 
 expectant on the determination of a term of years ; and a fee may 
 be limited on a fee upon a contingency, which if it should occur 
 must happen within the period prescribed in the same article. 
 (1 R. S. 724, § 24.) 
 
 It was a principle of the common law, with respect to contingent 
 remainders limited to a person not in being, that they must be lim- 
 ited to a person who by a common possibility, might be in esse at or 
 before the determination of the particular estate. This rule was 
 thus illustrated : if an estate be made to A. for life, remainder to the 
 heirs of B. ; now if A. dies before B. the remainder is at an end ; 
 for during B.'s life he has no heir, neono est Jiceres viventis. But if 
 B. dies first, the remainder then immediately vests in his heir, who 
 will be entitled to the land on the death of A. This was a good 
 contingent remainder, for the possibility of B.'s dying before A. is 
 jpotentia prophiqua, and therefore allowed in law. (2 BI. Com. 170. 
 Co. Litt. 378. Crahbe's Law of Real Prop. § 238.) But a remain- 
 der to the right heirs of B., if there be no such person as B. in esse, 
 was void : for the reason that two contingencies must happen ; first, 
 that such a person as B. should be born, and secondly, that he should
 
 ALTERNATE ESTATES. 169 
 
 die during the continuance of the particular estate ; which made it 
 potentia remotissima, a most improbable possibility. (2 Bl. Com. 
 supra. Cruise's Dig. tit. 16, cli. 2.) On this principle it was held 
 that a remainder to a corporation not in being at the time of the 
 limitation was void although such be erected during the particular 
 estate. (2 Co. 51 h.) So if a man giveth lands, says Coke, to two 
 men and one woman, and the heirs of their three bodies begotten, ia 
 this case they have several inheritances ; for albeit it may be said 
 that the woman may by possibility marry both the men, one after 
 another ; yet Jirst, she cannot marry thfem both in preseiiti; and 
 the law will never intend Si possibility on a possibility, as first to 
 marry the one, and then to marry the other. (Co. Litt. 184 a, 25 b. 
 Cholmley's case, 2 Co. 51 b.) This rule forbidding a remainder to be 
 limited upon a remote contingency, or upon a possibility upon a possi- 
 bility, or in the language of Mr. Fearne, rendering it void when it 
 required the concurrence of two several contingencies, not independent 
 and collateral, but the one requiring the previous existence of the 
 other, and yet not necessarily arising out of it, was abolished by 
 the revised statutes in 1830. This apjolies not to remainders alone, 
 but to all future estates. The language of the section is general, 
 that no future estate, otherwise valid, shall be void on the ground of 
 the probability or improbability of the contingency on which it is 
 limited to take effect. (1 R. S. 724, § 26.) 
 
 The common law allowed of estates depending on contingencies 
 with a double aspect. Thus an estate might be given to A. for life, 
 and if he have any issue living at the time of his death, then to such 
 issue in fee ; but if he die without issue, then to B. in fee. Here 
 the remainders to the issue and to B. are both contingent, but one 
 only can take effect. The moment one vests all the others are de- 
 feated. These are in truth alternate estates, as they are well denom- 
 inated by the revisers. The estate is not rendered unalienable for a 
 longer period than if a single limitation only had been created. 
 They are expressly provided for by the 25th section, (1 R. S. 724,) 
 thus : "Two or more future estates may be created to take effect in 
 the alternative, so that if the first in order shall fail to vest, the next 
 in succession shall be substituted for it and take efiect accordingly." 
 This applies as well to estates created by grant as by devise. 
 
 At common law the event or contingency on which a remainder is 
 limited must not have operated so as to abridge, defeat or determ- 
 ine the particular estate. This was supposed to be a necessary con-
 
 170 CONDITIONAL LIMITATION. 
 
 sequence of the nature of a remainder, as defined by Coke ; it being 
 of the essence of a remainder that it should only take effect in pos- 
 session on the natural expiration or determination of the first estate. 
 In fewer words, a remainder could not be limited on a condition sub- 
 sequent. The reason of this rule was, that no one could take ad- 
 vantage of a condition but the party from whom it moved, namely, 
 the grantor or his heirs : for if he or his heirs took advantage of a 
 condition by entry or claim, the livery made upon the creation of 
 the estate was defeated, and of course every estate thus created was 
 thereby annulled and gone. By the terms of the definition, as a re- 
 mainder must vest at the instant of the expiration of the preceding 
 estate, and as a remainder was defeated by the entry of the grantor, 
 therefore such remainder was void. It hence followed that a remain- 
 der, properly so called, could not be limited to take effect upon a 
 condition, which was to defeat the particular estate; whether such 
 condition be repugnant to the nature of the estate to which it was 
 annexed or not. {Cruise's Dig. tit. 16, ch. 2, §§ 16, 17.) 
 
 This rule, however, that a remainder limited on a condition sub- 
 sequent was void, was not applicable to devises ; for in a devise, al- 
 though strict words of condition are used, yet if there was a remain- 
 der over they were always construed as creating not a condition, but 
 a conditional limitation, so that when the condition was broken, or 
 performed, as the case might be, the remainder commenced in pos- 
 session, and the pei'son entitled under it had an immediate right to 
 the estate, whether an heir or stranger. By thus doing, the inten- 
 tion of the testator was supposed to be effectuated by substantiating 
 the subsequent estate, though limited to a stranger, and enforcing 
 the performance of the condition by the determination of the pre- 
 ceding estate upon the breach of it, notwithstanding that preceding 
 estate be limited to the heir himself Limitations of this kind 
 were called conditional lijnitations. {Cruise's Dig. § 33. Revi- 
 sers' notes, 3 B. S. 574.) The revisers admitted the soundness of 
 these reasons, and therefore recommended that the same principle 
 should apply to deeds as had formerly been confined only to wills. 
 This was done (1 id. 725, § 27) by enacting that a remainder might 
 be limited on a contingency which in case it should happen would 
 operate to abridge or determine the precedent estate ; and that every 
 Buch remainder should be construed as a conditional limitation, and 
 should have the same effect as such a limitation would have at law. 
 There is a manifest distinction between conditions and limitations.
 
 POSTHUMOUS CHILDREN. 171 
 
 The condition is for the benefit of the grantor and his heirs ; a lim- 
 itation is conclusive of the time of the continuance, and of the extent, 
 of the estate granted. The first renders the estate voidable hy entry, 
 the second renders it void without entry. 
 
 It is remarked by Mr. Preston, that it depends on the intention 
 whether words shall be construed as creating a condition precedent 
 or condition subsequent. A contingent remainder is an interest to 
 commence on a condition precedent; it is a conditional limitation; 
 and an estate to be defeated by a condition, is a condition subse- 
 quent. {Frest. on Est. 41.) 
 
 It was a principle of the common law that no remainder could be 
 limifed on a condition, 1. Because such condition would operate so 
 as to abridge the particular estate ; and 2. Because the entry of 
 the donor, for the condition broken, would defeat the remainder. 
 
 It is required that where a remainder in an estate for life or years 
 shall not be limited on a contingency defeating or avoiding such 
 precedent estate, it shall be construed as intended to take effect only 
 on the death of the first taker, or the expiration by lapse of time of 
 such term for years. (1 R S. 725, § 29.) 
 
 Previous to the revised statutes of 1830, our statute relative to 
 posthumous children applied only to them in the character of heirs. 
 They were permitted to inherit as if born in the lifetime of their 
 respective fathers. (1 R. L. 54, § 4.) It was according to the 
 strict rules of the common law that a remainder to the first son of 
 A. being a contingent remainder, must take efiect during the par- 
 ticular estate of A., or eo instanti that it determined ; and that if A. 
 had no son in esse at the time of his death the next remainder over 
 took effect as if A. had died without issue. This led to the statute of 
 10 and 11 Wm. 3, ch. 16, by which posthumous children were al- 
 lowed to take by virtue of deeds of settlement in the same manner 
 as if born in the lifetime of their father. {Stedfast v. NicJiol, 
 3 John. Cas. 26, 27.) Though this statute was re-enacted in the 
 colony, it was repealed in 1788, and the case left to depend on the 
 principles of the common law. The supreme court in Stedfast v. 
 NicJiol, {supra,) held that the posthumous child took an estate in 
 remainder in the same manner as if he had been born in the life- 
 time of his father. The principle of that decision was carried into 
 the revision, and it was expressly enacted that when a future estate, 
 and this includes a remainder, shall be limited to heirs, or issue, or 
 children, posthumous children shall be entitled to take, in the same
 
 172 EXPECTANT ESTATES. 
 
 manner as if living at the death of their parent. (1 B. S. 725, § 30.) 
 On the same principle, a future estate depending on the contingency 
 of the death of a person without heirs or issue, shall be defeated by 
 the birth of a posthtimous child of such person capable of taking 
 by descent. (Id. § 31.) Thus, for these purposes, and there are 
 other cases where the same rule applies, an infant in ventre sa mere, 
 is considered as in actual existence. 
 
 It was a well settled principle of the common law that a remain- 
 der might be defeated by destroying or determining the particular 
 estate upon which it depended before the happening of the contin- 
 gency whereby it became vested. A different rule prevailed with 
 regard to an executory devise. A limitation thus created by will 
 received the full protection of law, and could not be prevented from 
 taking effect by any means whatever. It was the policy of the le- 
 gislature at the revision to i)ut all expectant estates upon the same 
 footing ; and thus give the same stability to a contingent remainder, 
 as to an executory devise or to a secondary use. It was a principle 
 of the common law that a future interest capable of taking effect 
 as a contingent remainder, should never take' effect as an executory 
 devise. ( Wolf v. Van Nostrand, 2 Cotnst. 442.) By reducing all 
 expectant estates to the same class, it was supposed that litigation 
 ■would be diminished, and it would no longer become necessary to 
 determine whether a particular disposition of property was a con- 
 tingent remainder, an executory devise or a secondary use. [See 
 Bevisers' Notes, 3 R. S. 577, 2d ed.) 
 
 These objects were sought to be accomplished by declaring that 
 no expectant est^ate can be defeated or barred by any alienation or 
 other act of the owner of the intermediate or precedent estate, nor 
 by any destruction of such precedent estate by disseisin, forfeiture, 
 surrender, merger or otherwise. (1 R. 8. 725, § 32.) It was sup- 
 posed that this provision would render unnecessary the machinery 
 by which the skillful conveyancer could preserve the contingent re- 
 mainders from being defeated by the destruction of the particular 
 estate, by any means, either accidental or designed. ( Vanderhey- 
 den V. Grandall, 2 Denio, 16.) It in effect put all expectant estates 
 upon the same footing. But it was necessary to provide that that 
 section should not be construed to prevent an expectant estate from 
 being defeated in any manner or by any means which the party cre- 
 ating the estate should, in the creation of it, have provided for or
 
 CROSS REMAINDERS. 173 
 
 authorized ; nor should it be adjudged void in its creation because 
 thus liable to be defeated. {Id. § 33.) 
 
 It has been before said that a remainder at common law was liable 
 to be defeated by the determination of the precedent estate, before 
 the happening of the contingency on which it was limited to take 
 eflfect. This rule is abolished. But if the contingency afterwards 
 happens, the remainder is allowed to take effect in the same manner 
 and to the same extent as if the precedent estate had continued to 
 the same period. (1 R. S. 725, § 34.) Formerly, if an estate were 
 given to A. for life, with the remainder to the heirs of B., if A. died 
 during the life of B. the remainder was destroyed. This was obvi- 
 ated by vesting the estate in trustees to preserve the contingent 
 remainders. Under the rule established by the revised statutes, it 
 will be unnecessary to create a trust, but the object of the party cre- 
 ating the estate is accomplished by direct means. Indeed such a 
 trust cannot now be created. 
 
 The right of alienation is incident to the absolute ownership of 
 estates in possession. It it on this principle that conditions in re- 
 straint of alienation are void as repugnant to the estate granted. 
 {De Peyster v. 31ichael, 2 Scld. 497. 1 Inst. 223 a. Co. Litt. Id.) 
 The same principle is applicable to expectant estates, embracing 
 vested and contingent remainders as well as reversions. As they are 
 the subject of ownership, so they should be of the various modes of 
 transfer by which property is made to circulate. They are de- 
 scendible, devisable and alienable, in the same manner as estates in 
 possession. (1 R. S. 725," § 35.) 
 
 There was, at common law, a class of remainders hitherto unno- 
 ticed, namely, cross remainders. They were of a complex character 
 and grounded upon a tenancy in common. They might be raised 
 under deeds at common law, limitations of use, and limitations by 
 devise. They could not arise without express limitations in deeds, 
 for the reason that words of inheritance could not be implied in 
 deeds. In wills and marriage articles they frequently arose by im- 
 plicatiom The estate implied must always be an estate tail, and 
 therefore if the words would not admit of the implication of that 
 estate, cross remainders could not arise. ( Whart. Conv. 115.) They 
 seem not adapted to our system, in which that species of estate does 
 not exist. They are not mentioned in our statute relative to the 
 creation and division of estates, and the same statute enacts that all 
 expectant estates, except such as are enumerated and defined in that
 
 174 FUTURE ESTATE. 
 
 article, are abolished. (1 B. S. 726, § 42.) They probably form no 
 part of our jurisprudence by that name. 
 
 Analogous to a contingent remainder, and supplementary to it, 
 the law recognized a future estate by the name of an executory de- 
 mise. This was defined to be strictly such a limitation of a future 
 estate or interest in lands or chattels as the law admitted in the 
 case of wills, though contrary to the rules of limitation in convey- 
 ances at common law. It differed from a remainder in three mate- 
 rial particulars. 1. It did not need the support of a particular estate. 
 2. A fee simple or other less estate might be limited after a fee sim- 
 ple. 3. A remainder might be limited of a chattel interest after a 
 particular estate for life created in the same. (2 Black. Com. 173.) 
 We have already anticipated all that need be said upon this subject. 
 We have seen that the revised statutes enable the party to create 
 the same future estate by deed or grant, that could be before created 
 only by will. In short, they have placed all the various kinds of 
 future estates upon the same footing ; thus placing, in a great meas- 
 ure, contingent remainders in the same category with executory de- 
 vises. {See 2^ost, part 3, ch. 9, § 6.) 
 
 Section III. 
 
 0/ Reversions. 
 
 The estates in expectancy hitherto considered in this chapter, are 
 such as are created by the act of the parties. They owe their origin 
 either to some form of conveyance irder vivos, or to a devise con- 
 tained in a last will and testament. We come now to an estate 
 ■which cannot be created by deed or other assurance, but arises from 
 construction of law. From a collation of the definition of this estate 
 in the elementary books, the revised statutes have adopted the follow- 
 ing, as a brief and accurate description of the estate, viz : It 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 
 particular estate granted or devised. (1 R. S. 743, § 12.) It is 
 founded on the principle that when a person has not parted with his 
 whole estate and interest in a piece of land, all that which he has 
 not given away remains in him ; and the possession of it reverts or 
 returns to him upon the determination of the preceding estate. In 
 such a case the residue of the estate always continues in him who 
 made the particular estate, or those who succeed to his rights. And
 
 ESTATE IN REVERSION. 175 
 
 Coke says the law termeth a reversion to be expectant upon the 
 particular estate ; because the donor or lessor, or their heirs, after 
 every determination of any particular estate doth expect or look for, 
 to enjoy the lands or tenements again. (Co. Litt. 183 h. Payn v. 
 Seal, 4 Denio, 411.) 
 
 A person is said to be entitled to, not seised of an estate in reversion. 
 Yet an estate in reversion is a vested interest. The party entitled 
 to it has a fixed right of future enjoyment. It is vested in presenti, 
 though to take effect in possession and enjoyment in futuro. It 
 may be aliened or changed. {Cruise's Dig. tit. 17, § 13.) Like all 
 other expectant estates, it is descendible, devisable and alienable, in 
 the same manner as estates in possession. (1 R. 8. 725, § 35.) The 
 conveyance of a reversion did not require livery of seisin. It would 
 pass by a grant ; though it is said that in England the most usual 
 mode of conveyance of an estate in reversion is by lease and release, 
 and bargain and sale. (2 Preston on Abstracts, Q5.) Both these 
 modes of conveyance are valid in this state, being deemed grants ; 
 which latter is the mode of conveyance adopted by the revised stat- 
 utes for the assurance of the titles of estates in fee and freehold in- 
 terests. (1 R. S. 738, § 157; Id. 739, § 162.) 
 
 An estate in reversion may lose its denomination and qualities by 
 becoming an estate in possession ; which may be accomplished by 
 the surrender, merger, forfeiture or actual determination of the prior 
 estate. (2 Preston on Abst. 84) The surrender of an estate for 
 years will not extinguish the rent previously due, whatever effect it 
 may have upon the remedy to collect what had previously accrued. 
 While rent was distrainable, it was held that a surrender of the 
 demised premises after a distress made for rent due, would not ren- 
 der the distress unlawful. (Nichols v. Bailey, 2 Comst. 283.) 
 
 The usual incidents to an estate of reversion are said to he fealty 
 and rent. In this state fealty no longer exists, and rent when it has 
 been reserved out of the particular estate is so far an incident of the 
 reversion, whether absolutely or by way of mortgage, as entitles the 
 grantee to the rents which subsequently accrue. (Demarest v. Wil- 
 lard, 8 Cowen, 206. Burden v. Thayer, 3 3Ietc. 76.) 
 
 Although the rent is incident to the reversion, it is not insepara- 
 bly incident. A grant of the reversion excepting the rent will pass 
 the reversion alone, and leave to the grantor the rent. So the rent 
 may be assigned without the reversion. (Demarest v. Willard, 
 supra. Co. Litt. 143 a.) But the assignment or grant of the rever-
 
 176 JOIM' AND SEVERAL ESTATES. 
 
 sion without qualifying words, will carry with it the rent also. (Jd. 
 Co. Litt. 151.) 
 
 An estate in reversion expectant on ?ifree1iold, is neither subject 
 to dower or curtesy ; but it is said by Lord Coke that a reversion 
 expectant in an estate for j'ears is subject to both. (Co. Litt. 29 a, 
 32 a. Cruise's Dig. tit. 5, § 23 ; tit. 6, § 8.) The seisin of the re- 
 versioner is not so affected by an estate for years as to prevent the 
 existence of curtesy or dower. 
 
 A reversioner has such an interest in the estate that he can main- 
 tain an action for an injury to the inheritance. By statute the per- 
 son seised of an estate in remainder or reversion, may maintain an 
 action of waste or trespass for any injury done to the inheritance, not- 
 withstanding any intervening estate for life or years. (1 R. S. 750, 
 § 8.) A reversioner or remainderman may also be admitted to de- 
 fend as a party to suits against the tenant of the particular estate. 
 (2 id. 339, §§ 1, 2.) And no recovery unduly had against the ten- 
 ant of the particular estate can bar the right of the reversioner or 
 remainderman to restitution. {Id. 340, §§ 6, 7.) 
 
 CHAPTER yil. 
 
 OF ESTATES WITH KESPECT TO A SEVERAL AND JOINT OWNERSHIP. 
 
 An estate which is owned by a single individual, whether male or 
 female, and whether a natural person or a corporation, is said to be 
 held in severalty. This applies to estates of any quantity of inter- 
 est or length of duration, and whether the estate be in possession or 
 expectancy. This is the usual way of holding real property ; and, 
 therefore, the general rules with respect to estates, when nothing ap- 
 pears to the contrary, is supposed to have reference to estates in sev- 
 eralty. But it often happens that the title to real property is vested 
 either by descent or purchase in more individuals than one ; and 
 this gives rise to the doctrine of joint estates. At common law tliere 
 were three kinds of joint estates, namely, coparcenary, joint tenancy 
 and tenancy in common.
 
 COPAKCENARY— JOINT TENANCY. I77 
 
 Section I. 
 
 Of Estates in Coparcenary. 
 
 The estate in coparcenary arose, at common law, when lands de • 
 scended to two or more persons, as when a person seised in fee sim- 
 ple died and his next heirs were two or more females, his daughters 
 sisters, aunts, cousins, or their representatives. In Eno-land by 
 special custom, as in gavelkind, the same estate was created by a 
 descent to all the males in equal degree, as sons, brothers, uncles, 
 &c. In both these cases, all the parceners put together made but 
 one heir, and had but one estate among them. (2 Black Com 187 ) 
 This species of estate arose only by descent. They were called 
 .parceners because they could be compelled to make partition 
 Though they had a unity of interest, they had not an entirety of 
 interest. They were each entitled to the whole of his or her 
 share, and there were several inheritances on the death of either 
 There was no survivorship, ov jus accrescendi as in joint tenancy 
 Ihe estate was liable to curtesy and dower: {Litt §§ 263 264 ) 
 
 There is much curious learning in the old books as to this estate : 
 but It IS of no value in this state, since our statute has long ao-o T3ro- 
 vided that wherever an inheritance shall descend to several persons 
 they shall take, as tenants in common, in proportion to their respect- 
 ive rights.^ (1 R. S. 753, § 17. La^os of 1786, 1 Greenlf 205, 206 ) 
 And this IS applicable alike to both sexes. This kind of estate has 
 not been created since the year 1786, and it probably does not exist 
 m any of the states at this day. 
 
 Section II. 
 Of Estates 'in Joint Tenancy. 
 
 The estate in joint tenancy is invariably created by purchase, and 
 does not arise by descent. It occurred, at common law, when lands 
 or enements were granted or devised to two or more persons, to 
 hokl in fee simple, fee tail, for life, for years, or at will (Litt S 277 )" 
 
 Before proceeding to notice the incidents of this estate it is proper 
 to remark that by the law of this state, originally passed in 1786 and 
 revised in 1830, every estate granted or devised to two or more persons 
 
 '° Will''' 12 '' ' ''""'"'^ '"'' "'"""^"''' ^^^^'^ '^^'''''^^ ^''^^''^
 
 178 ^OTNT TENANCY. 
 
 to be in joint tenancy; but every estate vested in executors or 
 trustees as such, is required to be held by them in joint tenancy. 
 (1 R. S. 727, § 44.) This section of the law applies as well to 
 estates already created or vested, as to estates thereafter to be granted 
 or devised. The estate in joint tenancy is rarely created in this 
 state, except in devises or grants to persons in a fiduciary capacity ; 
 as to executors or trustees. The incidents of the estate hereafter 
 noticed have reference to the estate when legally created. At com- 
 mon law a devise or grant to two or more, in fee, or for life, without 
 further words, made them joint tenants. If the grantor desired only 
 to create a tenancy in common, he must so express it in the grant 
 or devise. Our statute, it will be perceived, has reversed the com- 
 mon law rule, and made the estate a tenancy in common, unless the 
 instrument creating the estate expressly declares otherwise, except 
 in the case of executors and trustees. ' 
 
 With respect to the properties and incidents of an estate in joint 
 tenancy, it is to be observed that they are derived from its unity, 
 which is fourfold, namely : unity of interest, unity of title, unity of 
 time, and unity of possession. (2 Black. Com. 180. Crahbe's Law 
 of Beal Property, § 2033.) Therefore, joint tenants have one and 
 the same interest, accruing by the same conveyance, commencing at 
 the same time, and held by one and the same undivided possession. 
 (Id) 
 
 1. The quantity of interest of each joint tenant must be the same. 
 One cannot be tenant for years and the other for life ; one cannot 
 be seised of a freehold in possession and the other of a reversion upon 
 a freehold. {Co. Litt. 188.) 
 
 2. Joint tenants must have a unity of title. It must be created 
 by the same act. One cannot derive his title by descent and the 
 other by devise. One cannot derive his title by grant from A. and 
 the other by grant from B. For one title might prove good and 
 the other bad. 
 
 3. There must be a unity of time. Each estate must be vested 
 at the same time as well as by the same title. The case put by Coke 
 to illustrate this is, if lands be demised for life, the remainder to the 
 right heirs of J. S. and of J. N. ; J. S. has issue and dies, and J. IT. 
 has issue and dies. The issue in this case are not joint tenants, be- 
 cause the one moiety vested at one time, and the other moiety vested 
 at another time. (Co. Litt. 188.) 
 
 4. And lastly, there must be unity of possession. Joint tenants
 
 JOINT TENANCY. I79 
 
 are said to be seised per my et per tout, by the half or moiety, and 
 by all : that is, they each of them have the entire possession, as well 
 of every parcel as of the whole. They have not, one of them a seisin 
 of one half or moiety, and the other of the other moiety ; neither 
 can one be exclusively seised of one acre and his companion of an- 
 other ; but each has an undivided moiety of the whole, and not the 
 "whole of an undivided moiety. (2 Bl. Com. 182.) 
 
 The principal incident of an estate in joint tenancy is i\iQ jus ac- 
 crescendi, or right of survivorship. Upon the death of one joint 
 tenant, whether the estate was in fee, for a term of years, or in trust, 
 his interest passed not to his heirs or other representatives, but to 
 the surviving co-tenant or co-tenants. Hence a joint tenant could 
 not devise his interest, because, as a will takes effect only at the 
 death of the testator, the estate would pass to the survivor, and thus 
 overreach the will. 
 
 The English common law, before the abolition of tenures, favored 
 title by joint tenancy, because it prevented a severance of estates. 
 But since that time, the reason having ceased, the courts have lean- 
 ed against that estate. In Eigden v. ValUer, (3 Atk. 731,) Lord 
 Hardwicke held that the words " to hold to them and their heirs 
 equally to be divided betwixt them," created a tenancy in common, 
 whether the instrument of conveyance be a deed or a will. 
 
 In the same case the same learned chancellor held that courts of 
 equity took great latitude upon the foot of intention, and therefore 
 if two persons advance money upon a mortgage, though the convey- 
 ance be made to them jointly, it shall be a tenancy in common. 
 
 Partners are joint tenants of all the partnership property during 
 their lives, and on the death of one the remedy to recover debts due 
 to the firm, survives to the survivor or survivors. Littleton says that 
 if an obligation be made to many for one debt, he which survives 
 shall have the whole debt or duty. And so it I's of other covenants 
 and contracts, &c. {Litt. § 282.) Lord Coke, in his commentary 
 upon this, says, an exception is to be made of two joint merchants 
 with respect to whom, by the law merchant, there is no survivorship, 
 l)ut the share of the deceased shall not survive, but go to his execu- 
 tors or administrators. This, he says, is for the advancement of 
 trade and commerce, which is for the public good ; for the rule is 
 that/ws accrescendi inter mercafores pro heneficio commercii locum 
 non habet. This rule is applicable to all traders, and has been ex- 
 tended to partners in the practice of physic, {Allen v. Blanchard, 9
 
 180 JODTT TENANCY— HOW DESTROYED. 
 
 Coiven, 631,) and by parity of reason, it applies to all partnerships. 
 The action survives but the interest does not. (Collyer on Part- 
 nership, &5.) 
 
 The statute already referred to, (1 R. 8. 727, § 44,) declaring that 
 a grant or devise to two or more persons in their own right, shall be 
 a tenancy in common, unless expressly declared to be in joint tenancy, 
 is not applicable to an estate granted or devised to husband and 
 wife. They take by entireties. They have not either a joint estate, 
 a sole or several estate, nor even an estate in common. From the 
 unity of their persons by marriage, they have the estate entirely as 
 one individual, and on the death of one of them, the entire tene- 
 ments will belong to the survivor, without the power of alienation 
 or forfeiture of either alone, to the prejudice of the other. (1 Prest. 
 on Estates, 131. Jackson v, Stevens, 16 John. 110. Shaw v. Hear- 
 sey, 5 Mass. R. 521. Per Lord Kenyon, in Doe v. Parrott, 5 D. 
 & E. 654.) 
 
 It is said by Littleton, (§ 291,) that if a joint estate be made of 
 land to a husband and wife and to a third person, the husband and 
 wife have in law in their right but the moiety, and the other person 
 the other moiety. The reason assigned for it is, that the husband 
 and wife are but one person in law, and are in the like case as if an 
 estate be made to two joint tenants, when one has by force of the 
 jointure the one moiety in law, and the other the other moiety. 
 The same rule applies to a larger number of grantees. The husband 
 and wife take but one share, and are treated but as one person. {Id. 
 1 Prest. on Estates, 132.) And suppose the other joint owners all 
 die leaving the husband and wife survivors, the whole then becomes 
 their property, and the husband and wife are tenants by entireties. 
 
 But though husband and wife are, for certain purposes, treated 
 as one person, they are nevertheless distinct individual persons. If 
 a grant of land be made to them, as tenants in common, without 
 regard to their social union, they will hold by moieties, as other dis- 
 tinct and individual persons would do. (1 Preston on Estates, 
 132. 2 Preston on Abstracts, 41.) 
 
 There are several modes by which an estate in joint tenancy may 
 be destroyed. A destruction of the unity of title, the unity of in- 
 terest, or the unity of possession, will work out this consequence. 
 If one joint tenant release to his companion, the latter becomes 
 seised in severalty. So if all the joint tenants unite in a conveyance 
 to an individual, the same result follows. If joint tenants unite in a
 
 PARTITION. 181 
 
 conveyance to second persons, the latter are tenants in common un- 
 less the instrument of conveyance expressly mentions, that an estate 
 in joint tenancy is intended to be created. So if there be three joint 
 tenants and one releases to one of his companions all his right which 
 he has in the land, the releasee, with respect to the land released, 
 will be tenant in common with the other two, and the latter two 
 joint tenants of the remainder. {Littleton, § 304.) For the purpose 
 of tenure and survivorship, joint tenants have the whole estate, 
 while for the purpose of immediate alienation each has only a par- 
 ticular part. 
 
 At common law one joint tenant could not compel his companion to 
 make partition. By the statute of 31-32 of Henry 8, the writ of 
 partition was given, the first for estates of inheritance, and the last 
 for estates for life or years. These were re-enacted in this state in 
 1788, and revised in 1830, (2 R. S. 315,) by which one or more joint 
 tenants or tenants in common, whether the estate be one of inherit- 
 ance, or for life or years, may compel partition to be made ; and this 
 whether the parties be infants, or of full age, or whether they or any 
 of them labor under the disability of coverture. The statute con- 
 tains numerous provisions on the subject which are adopted by the 
 code of procedure, (§ 448.) Under the revised statutes it has been 
 held that proceedings in partition can only be by a party having an 
 estate entitling him to an immediate possession, though an actual 
 pedis possessio is not indispensable. (Broiunell v. Broivnell, 19 
 Wend. 367.) The remedy under the statute is not confined to 
 actions at law, but may be prosecuted in a court of equity, which has 
 been since the reign of Elizabeth the tribunal most frequently re- 
 sorted to. [Crime's Dig. tit. 18, ch. 2, § 38.) Courts of equity, it 
 has been held, have a general concurrent jurisdiction with courts of 
 law in all cases, as well by statute as at common law. {Smith v. 
 Smith, 10 Paige, 470. Haywood v. Judso7i, 4 Barh. 228.) 
 
 The revised statutes make suitable provision for the case of un- 
 known owners, (2 R. S. 319, § 12,) and respecting the estate of ten- 
 ants in dower or by the curtesy. (Laivs of 1847, ch. 430, § 5. 
 3 R. S. 609, 5th ed.) 
 
 The provisions in relation to partition are not applicable to the 
 joint estate of husband and wife, who hold by entireties, nor to estates 
 held by trustees. 
 
 Husband and wife cannot, at common law, convey to each other. 
 But they can unite in a deed to a third person of land held by the
 
 182 ESTATES IN COMMON. 
 
 husband in right of his wife, or held by them jointly ; and on a re- 
 conveyance, by the grantee, to the husband or the wife, the latter 
 grantee will hold in severalty. {Jackson v. Stevens, 16 John. 110.) 
 The deed of the wife, in these cases, to be available, must be ac- 
 knowledged before a proper officer. {Id. Jackson v. Cairns, 20 
 John. 301. Doe v. Howland, 7 Coiven, 277. GUlet v. Stanley, 
 
 I mil, 121, 125.) 
 
 The act concerning the rights and liabilities of husband and wife, 
 passed on the 20th March, 1860, {Laws of 1860, ch. 90,) does not 
 seem to affect estates conveyed to husband and wife jointly; but 
 leaves unaltered the common law in this respect, whatever effect it 
 may have on the estate of curtesy or dower. 
 
 Trustees who take an estate either of real or personal property in 
 trust, hold by virtue of the statute in joint tenancy. They cannot 
 denude themselves of that character by any arrangement between 
 themselves, nor do they fall within the statute of partition. If, in 
 execution of their trust, it becomes necessary to alien the estate, in 
 whole or in part, they must all unite in the conveyance, and their 
 grantee, in good faith, takes the estate discharged of the trust ; and 
 their grantees, if there be more than one, take as tenants in common, 
 unless it be otherwise expressed in the deed. {Ridgley v. JohnsoUj 
 
 II Barb. 527.) 
 
 Executors and administrators hold the property of the testator or 
 intestate, cast upon them by law, as joint tenants ; but they cannot, 
 by their own act, make partition among themselves. Their author- 
 ity over the trust fund is, in general, regulated by the testamentary 
 law ; and their power over it subject in a great degree to the con- 
 trol of the proper surrogate's court. (2 B. S. 220.) 
 
 Section III. 
 
 Of estates in common. 
 
 The usual title by which a joint ownership of estates is held in 
 this state is by tenancy in common ; and it is invariably so, whether 
 the title be by grant or devise, unless declared to be in joint tenancy, 
 or it be vested in executors or trustees as such. (1 B. S. 727, § 44.) 
 This estate arises where two or more persons hold lands or tene- 
 ments in fee simple, or for term of life or years, by several titles, and 
 occupy the same lands or tenements in common. Since the statute, 
 it may as well arise under a joint title, as a several title. The only
 
 ESTATES IN COMMON. 183 
 
 unity required between the tenants is that of possession. {Little- 
 ton, § 292.) 
 
 This estate may be created by the destruction of an estate in joint 
 tenancy, as well as by an express limitation in a deed, or by a grant 
 or devise to several without expressing that the grant or devise is 
 in joint tenancy. 
 
 There is no survivorship among tenants in common, and there- 
 fore, on the death of one, his interest, if it be an inheritable interest, 
 goes to his heirs, who thus become tenants in common among each 
 other with respect to that share, and tenants in common with the 
 survivors with respect to the whole estate ; their interest being lim- 
 ited to that of their ancestor. 
 
 Tenants in common may have several distinct estates, either of the 
 same or of a different quantity, in any subject of property, real or per- 
 sonal, in equal or unequal shares, and either by the same act or by sev- 
 eral acts. The estate differs from that of joint tenancy, in this among 
 other respects. Joint tenants have one estate in the whole, and no es- 
 tate in any particular part ; they have the power of alienation over their 
 respective aliquot parts, and by exercising that power, may give a sep- 
 arate and distinct right to their particular parts. Tenants in common 
 have several and distinct estates in their respective parts. Each 
 tenant in common has, in contemplation of law, a distinct tenement, 
 a distinct freehold, &c. (1 Preston on Estates, 139.) Unity of 
 tenure in the different portions of the land is not, nor is unity of 
 estate necessary to a tenancy in common. Unity of right of posses- 
 sion merely is all that is required. {Per Wahvorth, Ch. in Putnam 
 V. Ritchie, 6 Paige, 398.) 
 
 The widow, with respect to her dower, before assignment, is not a 
 tenant in common with the heir. Her right rests in action only. 
 {Jackson v. O'Donaghy, 7 John. 249, per Van Ness, J.) After the 
 assignment of her dower, she holds it in severalty by operation of 
 the statute. 
 
 One tenant in common cannot, as against the rights of his asso- 
 ciates, convey a distinct portion of the estate by metes and bounds ; 
 nor can a judgment creditor of one tenant in common, sell by exe- 
 cution a distinct portion of the estate discharged of the right of the 
 other tenants in common. (Bartless v. Harlow, 12 Mass. B. 348. 
 Porter v. Hill, 9 id, 34.) 
 
 Although partners hold their partnership stock in joint tenancy, 
 BO far, at least, as the remedy is concerned, it is otherwise witL re-
 
 184 ESTATES IN COMMON. 
 
 gard to real estate. Such estate, fhough held for the purposes of 
 the partnership, is in general held not as partners but as tenants ia 
 common, and the rules relative to partnership property do not apply 
 to it. Hence one partner can onl}^ sell his individual interest, and 
 when both join in the sale and conveyance, and one only receives 
 the purchase money, the other may maintain an action against him 
 for his proportion. {Coles v. Coles, 15 John. 159. Balmain v. 
 Shore, 9 Ves. 500, 508.) 
 
 A deed of conveyance by one tenant in common to a stranger, of 
 his entire interest in the land, though drawn as though he owned 
 the whole, will be effectual to convey his undivided interest, and 
 works no injury to his companion. 
 
 One tenant in common cannot sue his co-tenant to recover docu- 
 ments relative to their joint estate. (Cozoes v. Hawley, 12 John. 
 484.) Nor can he recover for repairs, from his co-tenant, without a 
 previous request and refusal of the co-tenant to join in making them. 
 {Mumford v. Broiver, 6 Coiven, 475.) Nor is he affected by a loca- 
 tion of the land by his co-tenant unless he acquiesces, and acquies- 
 cence will not be presumed from mere lapse of time. {Jackson v. 
 Moore, 6 Cowen, 706.) This principle does not seem to be affected 
 by the subsequent reversal of the above case. (4 Wend. 58.) 
 
 With respect to the acts which one tenant in common may do, and 
 bind his- co-tenant, it has been held, that before distress and avow- 
 ry, he may receive the whole rent, and discharge the lessee. {Deck- 
 er v, Livingston, 15 John. 479.) When the lands of tenants ia 
 common were taken by the state and appropriated for the canal, and 
 the appraised damages were paid to one, it was held that he was lia- 
 ble to account to the others for their proportion. {Brinkerhoff v. 
 Wemple, 1 Wend. 470.) 
 
 A tenant in common in possession accounting with his co-tenants 
 is chargeable only with the net rents and profits, after deducting for 
 necessary repairs, and taxes, and assessments. {Hanna v. Oshorny 
 4 Paige, 336.) 
 
 There may be a tenancy in common of chattel interests. A let- 
 ting of land upon shares makes the parties tenants in common of the 
 crops raised under the agreement. [Demott v. Hagaman, 8 Coiven, 
 220. Caswell v. Districh, 15 Wend. 379. Putnam v. Wise, 1 Hill, 
 234.) But a person who raises a crop of corn on the land of another, 
 on an agreement to give the owner a certain number of bushels of 
 corn by way of rent, is not a tenant in common of the crop with the
 
 PARTITION". 185 
 
 owner of the land. He owns the crop in severalty, and the owner 
 of the land is entitled only to his rent, the amount of which is as- 
 certained by the value of the corn. (Newcomb v. Agaii, 2 John. 
 421, n.) The owner of the land has no lien upon the specific corn, 
 for the rent may be paid in any corn. {Id.) 
 
 One tenant in common of a chattel cannot maintain trespass or 
 trover against the other, unless the thing held in common be de- 
 stroyed. {Selden v. Hiclcock, 2 Cain. 166. St John v. Standring, 
 2 John. 468. Wilson v. Reed, 3 id. 175. Mersereau v. Norton, 15 
 id. 179.) But he may recover, in a proper action, half of the money 
 received by the other owner in common on the sale of the property. 
 (Id. Cochran v. Carrington, 25 Wend. 409.) 
 
 The mere sale by one tenant in common, of the entir'j chattel, is 
 in itself a conversion, and entitles his co-tenant to an action. ( White 
 v. Osborn, 21 Wend. 72.) When several persons voluntarily mingle 
 their wheat in a common bin, they become tenants in common, and 
 the sale of the entire mass by one of them, subjects him to an ac- 
 tion. [Nowlen v. Colt, 6 Hill, 461.) 
 
 Though the sale of the whole chattel by one tenant in common, 
 without the consent of his co-tenant, is a conversion, yet one tenant 
 in common may sell the whole chattel, for the benefit of all, and 
 they may ratify his act by joining in an action for the price. {Put- 
 nam V. Wise, 1 Hill, 234.) The subsequent ratification is -equiva- 
 lent to an original authority ; and the sale by one thus becomes tho 
 sale by all. 
 
 Many of the incidents of an estate in joint tenancy are applicable 
 to a tenancy in common. They can make partition by their volun- 
 tary act, each conveying to the other by a deed of grant or release, 
 the proportion to which he is entitled. They will thus own their 
 respective shares in severalty. 
 
 But if any one is unwilling voluntarily to sever his interest from 
 that of the others, he can be compelled, as matter of right, to make 
 partition, by the common law, as well as by the statute referred to 
 in the preceding section. (Smith v. Siyiith, 10 Paige, 470. 3 B. S. 
 602, 5th ed. Code of Procedure, § 448.) 
 
 There are cases in which a partition of the lands and tenements, 
 held in common, cannot be made by metes and bounds, without great 
 prejudice to the owners. In such a case the court may order a sale 
 of the premises, at public auction, to the highest bidder, and pay 
 the proceeds, after deducting the costs and charges, to the respective
 
 X86 PARTITION. 
 
 parties, according to their respective interest in the funil. (3 i?. S. 
 611, § 46-54, 5th ed.) This course may be adopted with respect 
 to any distinct lot, tract or portion of the premises of which parti- 
 tion is sought. The sale may be for cash, or upon a credit for por- 
 tions of the purchase money, and upon such security as the court 
 may direct. {Id.) 
 
 Where the real estate, of which partition was sought, consisted 
 of a mill dam, and the lands overflowed by the mill pond, constituting 
 the water power, which was necessary for the use of various mills 
 which belonged, in severalty, to the respective tenants in common 
 of such dam and pond, it has been held that an actual partition of 
 the water power should be made, instead of a sale thereof, if the 
 whole water power in connection with the mill property, held in 
 severalty by either party, would not be worth more than the same 
 water powier equally divided by a proper partition thereof, the one 
 half to be used by the mills of each, in the hands of different pro- 
 prietors. (Smith V. Smith, 10 Paige, 470.) In the same case it 
 was held that the commissioners assigned to make partition might 
 divide the mill dam, and the lands under the same and under the 
 waters of the pond, and might make such provision for kfieping the 
 different portions of the dam and of the water gates and flumes in 
 repair, and such regulations for the use of the water power, which 
 was not capable of actual partition without a destruction of its 
 value, as the parties themselves might make, by a partition deed 
 of the same property. And the Chancellor thought, that in making 
 partition of 'real property, the commissioners might assign a portion 
 of the premises held in common, to one of the parties, charged with 
 a servitude, or easement for the benefit of another party, to whom a 
 distinct portion of the premises was assigned in severalty. (Id.) 
 
 Where any of the defendants in partition are absentees, or in- 
 fants, or unknown, the court, before making the decree, will see that 
 all proper persons are before it, so as to make the decree eff'ectual. 
 {BraJcer v. Devereaux, 8 Paige, 513.) In like manner, proper mea- 
 sures should be adopted by the court, to ascertain general liens or 
 encumbrances on the undivided shares or interests of the parties, 
 before making a decree of sale. (2 P. S. 418, § 43. Wilde v. Jen- 
 kins, 4 Paige, 48.) 
 
 It is not indispensable that all the shares should exactly corres- 
 pond in value ; but one party may be decreed to make compensation 
 to another for equality of partition. {Smith v. Smith, supra. Lar-
 
 PARTITION— ACCOUNT. 187 
 
 hin V. Mann, 2 Paige, 27.) Equity, it has been held, may direct a 
 partition for the purpose of setting off one of the co-tenant's shares, 
 and decree a sale of the residue for the benefit of the other tenants, 
 providing for compensation in case of inequality of partition. 
 (Haywood v. Judson, 4 Barb. 228.) 
 
 Courts of equity exercise a beneficent authority with respect to 
 improvements erected by one in good faith on the common property. 
 Where a tenant in common, believing himself entitled to the whole 
 premises, erected valuable buildings, an equitable partition was di- 
 rected that should give him the benefit of them. {Town v. Need- 
 ham, 3 Paige, 545.) 
 
 On the same principle it was held in Green v. Putnam, (1 Barb. 
 500,) that where one tenant in common makes improvements on the 
 land, a court of equity in making partition will decree an account 
 and compensation, or else assign to him the part of the premises on 
 which the improvements have been made ; and it is not necessary to 
 show the assent of the co-tenants, nor a request and refusal to join 
 in the improvements. It is obvious, however, that in such a case, 
 the improvements should have been made in good faith. A court 
 of equity administers its relief ex e^-wo et bono, according to its own 
 notions of general justice and equity between the parties. It will 
 adjust by its decrees, all the equitable rights of the parties interested 
 in the premises. It is not restrained as a court of law is, to a mere 
 partition of the lands between the parties, according to their interests 
 in the same, and having a regard to the true value thereof {Per 
 Paige, in Green v. Putnam, supra.) 
 
 Though the statute of limitations is applicable to an action at 
 law by one tenant in common against his co-tenant for repairs ; or 
 to an action of account or bill in equity between tenants in common, 
 when one tenant in common has received more than his just propor- 
 tion of the profits, it is not applicable to the equitable rights of a 
 tenant in common to an allowance for improvements made by him, 
 on a partition of the premises in equity. {Per Paige, J. supra.) 
 And as law and equity are now administered by the same tribunal 
 and in the same action, it would seem that these principles have a 
 general application. 
 
 At common law one tenant in common or joint tenant could not 
 even compel his co-tenant to account to him for taking more than 
 his share of the profits, unless he could show he had made him his 
 bailiff or receiver. {Co. Litt. 200 b.) This defect of the common
 
 X88 CONTRIBUTION FOR REPAIRS. 
 
 law has been remedied by statute. An action of account at law can 
 now be maintained, where one tenant in common or joint tenant 
 has received more than his just proportion of the profits. {Green 
 V. Putnam, sujjra. 1 R. S. 750, § 9.) But the statute does not 
 apply to a case where one tenant in common occupies himself the 
 entire premises, without any agreement with the others as to his 
 possession, or any demand on their part to be allowed to enjoy the 
 premises with him. ( Wodever v. Knajjp, 18 Barh. 265. Hender- 
 son V. Eason, 9 Ung. L. and E. 337. McMahon and loife v. Bur- 
 chell, 2 Phil. Pi. 127. 22 Eng. Ch. Rep. 125.) The remedy in such a 
 case is for the co-tenant, if he has been dispossessed, to resort to an 
 appropriate action ; and if not forcibly expelled, he should demand 
 to be admitted into the enjoyment of his share of the premises, and 
 on being refused he should resort to an action for such refusal. 
 (Erivin v. Olmsiead, 7 Cowen, 229.) 
 
 One of the evils inseparable from a joint ownership of an estate, 
 is that the individuals will be apt to feel less interest and solicitude 
 for its preservation, than if each owned the same property in seve- 
 ralty. The common law was extremelj'- deficient in this respect. 
 It favored, indeed, the maintenance of houses for the habitation of 
 mankind, pro bono publico. And therefore, if there be two tenants 
 in common or joint tenants of a house or mill which has fallen to 
 decay, and the one was willing to repair the same and the other not, 
 the common law gave the writ de reparatione facienda, the language 
 of which was, ad reparationem, sustentationem ejusdem domus tene- 
 antur. {Co. Lit. 54 i; Id. 200.) But the writ did not extend to other 
 improvements which might be greatly for the benefit of the estate, 
 such as repairing or renewing the fences, erecting buildings where 
 none before existed, clearing up wild land and preparing it for agri- 
 cultural purposes, and the like. 
 
 In Mumford v. Broion, (6 Coioen, 475,) it was settled in this 
 state, that even for a necessary repair to the land, without the pre- 
 vious request to join in the repairs made, and a refusal so to do, no 
 action could be sustained. The chief justice (Savage) thought that 
 till request to join in the repairs, and a refusal, both tenants were in 
 equal fault, one having as much reason to complain as the other. 
 
 The duty of contribution, where expenses have been necessarily 
 incurred and paid by one tenant in common, for the benefit of the 
 common property, results from the plainest principles of equity. 
 No one should enjoy a benefit -without sharing in the burden by
 
 INCORPOREAL HEREDITAMENTS. 189 
 
 which it is obtained. There is, indeed, some danger in permitting 
 one tenant in common to make improvements without request and 
 without notice. He may thus incur expenses disproportionate to 
 the value of the property. And the character of the improvements 
 may be a just matter of dispute between the parties. A partition, 
 or sale of the property under a decree of the court, is the last and 
 final remedy. 
 
 CHAPTER VIII. 
 
 OF INCORPOKEAL HEREDITAMENTS. 
 
 In the second chapter of this treatise we observed that the most 
 comprehensive definition of real property, was into lands, tenements 
 and hereditaments. After defining lands and tenements, we remark- 
 ed that hereditaments is a term of larger import than lands or ten- 
 ements, as it comprehended whatsoever could be inherited, whether 
 corporeal or incorporeal, real, personal or mixed. We then divided 
 real property into corporeal and incorporeal hereditaments. {Lay- 
 men V. Abiel, 16 John. 32.) We have, in the preceding chapters, 
 treated of corporeal hereditaments, in various aspects, and it is now 
 proposed, in this chapter, to treat of incorporeal hereditaments. 
 
 An incorporeal hereditament is defined to be a right issuing out 
 of a thing corporate, whether real or personal, or concerning, or an- 
 nexed to, or exercisable within the same. (2 Bl Com. 20.) 
 
 This species of property embraces a larger number of particulars, 
 in England, than in this country. The institutions of the former 
 create some rights and duties which are inapplicable to our circum- 
 stances and condition. 
 
 The English books of authority generally divide incorporeal here- 
 ditaments into ten sorts, viz : advowsons, tithes, corodies, ofiices, 
 dignities, commons, ways, franchises, annuities and rents. The three 
 first owe their origin and importance to their church establishment ; 
 the next two, viz : ofiices and dignities, are mainly concerning their 
 nobility ; and none of them have any but an historical interest to 
 an American lawyer. It is not proposed to discuss them in the pres- 
 ent work. The remaining five, viz : commons, ways, franchises, an- 
 nuities and rents, exist in this country, and are governed by the 
 principles of the common law, as modified by our statutes. It is
 
 190 OF COMMONS. 
 
 proposed to treat of them very briefly in this chapter, under separate 
 sections. We shall also add some obervations on the right to air 
 and light, and to some other easements which properly belong to 
 this branch of the law. 
 
 Section I. 
 Of Commons. 
 
 Common imports a right or privilege to take a profit in common 
 with many. It is of three kinds : appendant^ appurtenant, and in 
 gross. 
 
 Common appendant is a right annexed to the owner or possessor 
 of land to feed his beasts, or take wood, &c. (2 Blach. Com. 38. 
 1 Grahhe on Real Property, 268.) Common apjnirtenant does not 
 arise from any connection of tenure, but must be claimed by grant 
 or prescription. Common in gross is a right not annexed to the 
 land, but to the person, and must be claimed by grant or prescrip- 
 tion. {Id. Crime's Big. tit. 23, § 19.) 
 
 The subject has been occasionally discussed in the courts of this 
 state. It was explained by Savage, chief justice, in delivering the 
 opinion of the court in Van Bensselaer v. Badcliff, (10 Wend. 647.) 
 He thus speaks of this branch of the law : " Common or a right of 
 common, is a right or privilege which several persons have to the 
 produce of the lands, or waters of another. Thus, common of pas- 
 ture is a right of feeding the beasts of one person on the lands of 
 another ; co nmon of estovers is the right a tenant has of taking 
 necessary wood and timber, from the woods of the lord, for fuel, 
 fencing, &c. ; 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 in- 
 tended for the benefit of agriculture, and for the support of the fam- 
 ilies and cattle of the cultivators 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 agriculture, subsequent experi- 
 ence, even in England, has shown to be prejudicial. In this country
 
 OF COmiONS. 191 
 
 such rights are uncongenial to the genius of our government, and 
 the spirit of independence which animates our cultivators of the soil. 
 In our state, however, we have the manors of Livingston and of 
 Kensselaerwyck, and some others, in which these rights have existed, 
 and to some extent do exist, and we are obliged to look into the doc- 
 trine of commons to ascertain the rights of parties and do justice 
 between them." 
 
 Cases growing out of rights to common are less frequent now than 
 at the time the chief justice delivered the foregoing remarks. 
 
 Common ot pasture is the principal of these rights, and therefore 
 most of the cases in the books relate to that species of common. 
 This species of common is apportionable. {Id.) 
 
 Common of estovers cannot be apportioned ; and if a person en- 
 titled to common, convey his land to which it is appurtenant, part 
 to one person and part to another, the right is extinguished. {Id. 
 Livingston v. Ketchum, 1 Bark 592.) The principle which runs 
 through the cases is, that the land which gives a right of common 
 to the owner, shall not be so alienated as to increase the charge or 
 burden of the land out of which common is to be taken, and that 
 when the right is extinguished or gone, as to a portion of the land 
 entitled to common, it is extinct as to the whole ; for in such a case, 
 common appurtenant cannot be extinct in part, and be in esse for 
 part, by the act of the parties. {Per Spencer, Ch. J. in Livingston 
 V. Tenbroek, 16 John. 26.) 
 
 The grantee of a right of common in gross, and without number, 
 may alien it, and if he fails to do so, it descends to his heirs ; but 
 he cannot alien it in such a way as to give the entire right to several 
 persons, to be enjoyed by each separately. Where it descends to 
 several persons as tenants in common, it cannot be divided between 
 them, but it must be enjoyed jointly. One of the tenants alone 
 cannot convey it to a stranger, though all, by joining in the convey- 
 ance, may convey the right, {Layman v. Aheel, 16 John. 30.) 
 
 There is a right somewhat analogous to common appendant, 
 claimed by the inhabitants in the rural districts, of permitting their 
 cattle, horses or sheep to go at large on the highways, at certain 
 seasons of the year. 
 
 Pa-ior to 1830 the courts pretty uniformly^ held that the public 
 had simply a right of passage over the highway, and no right to de- 
 pasture it. The owner of the land was treated then as he is now, aa
 
 192 COMMONS ON HIGHWAY. 
 
 the owner of the soil, the timber and the grass ; and it was hence 
 inferred that the towns had no right to make any regulation for the 
 pasturing of the highway by domestic animals. {Hallady v. March^ 
 3 Wend. 147. Jackson v. Hathaioay, 15 John. 453. Gedney v. 
 Earle, 12 Wend. 98. Tonawanda Rail Road Co. v. MungeVy 
 5 Demo, 264.) In some of the cases the right of the towns to make 
 regulations was denied on the ground that the public paid the owner, 
 on laying out a road, only for the easement of a way — a mere right 
 of passage. If we assume that to be the law, it would seem to fol- 
 low, from principle, that the public should not be permitted to en- 
 joy that for which they had made no compensation. 
 
 This question was examined by the supreme court in the fourth 
 district in 1849, in Griffin v. Martin, (7 Barb. 297,) and the ma- 
 jority held that the act which authorized town meetings to determ- 
 ine the times and manner in which cattle, horses, or sheep shall be 
 permitted to go at large on highways, was not in conflict with the 
 constitution, which forbids the taking of private property for public 
 use without just compensation. The court thought the act relative 
 to towns, and that relative to highways, should be construed to- 
 gether as if part of one system ; and, therefore, at least since 1830, 
 when the soil is taken for a highway, the compensation that is made 
 for it is not only for the right of passage, but also for the right of 
 pasturage for cattle, horses and sheep, at such times and in such 
 manner, as the electors of each town, at their annual town meeting, 
 may prescribe. Compare act relative to Mghivays (1 R. S. 513, 
 §§ 54 to 101, with the act relative to toivn meetings, &c. 1 R. S. 340, 
 § 5, sub. 11.) This view of the subject was not suggested to the 
 learned judge who delivered the opinion in White v. Scott, (4 Barb. 
 56,) nor was it material for him to decide the question. His observ- 
 ations on the power of the towns, though entitled to high respect, 
 are not of controlling authority. But the case of Griffin v. 3Iartin 
 ■was approved by the supreme court in the third district, in Hard- 
 enburgh v. Lockioood, (25 Barb. 9-12.) Indeed, the learned judge 
 who delivered the 'opinion in the last case, went further than the 
 court in Griffin v. Martin. He held, upon sound reasoning, that 
 the right to allow cattle, horses and sheep to go at large on high- 
 ways, is one of the easements or servitudes pertaining to the land 
 occupied as a highway. The right, he observes, is supported by 
 usage as old as the history of our country. The owner may well be 
 presumed to have been compensated for this as well as for every
 
 WAYS. 193 
 
 other easement or servitude to which, the land, as a highway, is sub- 
 jected. It was shown, in Griffin v. Martin, that since 1830 there is 
 in fact a compensation paid for both easements. 
 
 This species of common is more like common because of vicinage^ 
 than any other. This latter is said to be where two townships which 
 lie contiguous to each other, have usually intercommoned with one 
 another; the beasts of the one straying mutually into the other's 
 fields without any molestation from the other. It is called b, permis- 
 sive rigid, intended as an excuse from what is, in strictness, a trespass 
 in both. {Cruise's Dig. title 23, § 15.) 
 
 There are various ways by which a right of common may be ex- 
 tinguished. 1. It may be done by a release of it to the owner of the 
 land ; 2. By unity of possession of the land ; and 3, By severance 
 of the right of common. 
 
 With regard to the first mode, by release, it has been said that if 
 the commoner releases any part of the land from the right of common, 
 it will operate as an extinguishment of the right in every other part. 
 This is the consequence of the entirety of the right, throughout the 
 whole land, subject to it. 
 
 2. To constitute a unity of possession that will extinguish a right 
 of common, the person must have an estate in the land to which the 
 common is annexed, and in that where the right of common exists, 
 equal in duration, and all other circumstances of right. 
 
 3. A severance takes place so as to extinguish the right of com- 
 mon, when the common was annexed to a messuage or tenement, 
 and the owner conveys away the messuage or tenement, excepting 
 the common. This creates an extinguishment of the common. 
 {Cruise's Dig. title 23.) 
 
 A right of common, which has been extinguished by unity of pos- 
 session may be revived by a new grant. {Id.) 
 
 The remedy for a disturbance of any right of common is by a civil 
 action, under the code of procedure, according to the nature of the 
 injury and the relief sought. 
 
 Section II. 
 
 Of Ways. 
 
 A right of way is the privilege which one or more persons enjoy 
 of going over another person's land. It is an incorporeal heredita- 
 
 WlLL.— 13
 
 194 WAY OF NECESSITY. 
 
 ment, savoring of the realty, and is entirely distinct from public 
 highways leading from town to town. 
 
 The right of way over another man's soil may be claimed in vari- 
 ous ways. 1. By grant ; as where the owner of a piece of land grants 
 to another the liberty of passing over his lands in a particular direc- 
 tion. The grantee thereby acquires a right of way over these lands. 
 
 2. It may arise from an exception and reservation to the grantor, 
 who parts with his estate in other respects to the grantee. Thus, 
 where B. was seised in fee of an alley in a certain village leading 
 from the public highway to his other lands, granted the same in fee, 
 " excepting and 7'eserving in and out of the said granted lot, &c. to 
 the said B., his heirs and assigns, a right of way, as well a foot way 
 as a horse way, and a way for his and their carts, carriages and ser- 
 vants, in, out and through the granted lot, at all times," and pro- 
 tecting the enjoyment of the way by a condition, it was held that 
 this was a valid exception and reservation, and that the grantor 
 could maintain ejectment for the whole land on a breach of the con- 
 dition by the grantee. (Jackson v. A lien, 3 Cowen, 220.) Although a 
 new trial was granted in that case, it was not upon the ground that the 
 exception or condition was invalid, but for a misdirection of the judge. 
 
 3. The right of way may arise by p)res\^ription and immemorial 
 usage. Parol evidence of twenty years' uninterrupted use, adverse 
 or in hostility to the owner of the land, will authorize the yiference 
 of a grant ; for a right of prescription supposes a grant to have been 
 originally made of the way. {Hamilton v. White, 4 Barb. 61, per 
 McCoun, P. J. delivering opinion of Sup. Court, 2d district. Lan- 
 sing V. Wiswall, 5 Denio, 213. Williams v. Sqfford, 7 Barb. 313* 
 1 Saund. 323, n. 6.) 
 
 4. A right of way over another man's land may arise /row neces- 
 sity. Thus, if a man having a close surrounded by his own land, 
 or by his own land and the land of another, grants the close, the 
 grantee and those claiming under him have a right of way by neces- 
 sity, through the lands of the grantor, as incident to the grant. 
 {The New Yorh Life Ins. and Trust Co. v. Milnor, 1 Barb. Ch. 353. 
 Holmes v. Seeley, 19 Wend. 507.) The grantor in such a case may 
 designate the way in the first instance, and it is then a way by grant. 
 But if he fails to do so, the grantee must select for himself, and the 
 court would no doubt extend a liberal indulgence to the exercise of 
 his discretion. Nothing short of evident abuse ought to invalidate 
 the one thus designated and used, as the grantor or those under him
 
 WAY OF NECESSITY. 195 
 
 would be in fault for not assigning a way themselves. {Hohaes v. 
 Seeley, 19 Wend.bK).) 
 
 A right of way by prescription does not involve the right to travel 
 at random over another's land, nor is such user for twenty years evi- 
 dence of a prescriptive right of way over any particular part of it. (7c?.) 
 
 The right of way of necessity over the lands of the grantor, in a 
 conveyance in favor of the grantee and those claiming under him, is 
 not a perpetual right of way ; but continues only so long as the ne- 
 cessity exists. If the grantee of the dominant tenement, or those 
 claiming the same under him, should afterwards, by purchase or oth- 
 erwise, acquire a convenient way over his own lands to the tenement 
 in favor of which the way of necessity previously existed, the way of 
 necessity over the land of the original grantor of such tenement will 
 cease. So if a convenient way to such tenement is subsequently ob- 
 tained by the owner thereof by the opening of a public highway to, 
 or through such tenement. The case is otherwise where the owner 
 of land has a right, of way to the same over the premises of another, 
 by prescription or by express grant. A way of necessity only arises 
 upon the implication of a grant, and cannot be extended beyond 
 what the existing necessity of the case requires, {N. Y. Life and 
 Trust Co. V. Milnor, 1 Barh. Ch. 362, _^er Walworth, Ch.) 
 
 A right of way can only be used according to the grant, or the 
 occasion from which it arises. If the right be limited to go to a 
 particular place, the party having the right cannot go beyond it. 
 If it be limited to a particular mode of business it cannot be con- 
 verted into another mode, more injurious to the soil. 
 
 The owner of the right of way after it has been designated or se- 
 lected, has a right to build the road so as to make it convenient for 
 the purposes for which it was designed ; and he has a right to make 
 all necessary repairs. 
 
 But he has no right, when it becomes out of repair, from his own 
 fault, to go out of it upon the adjoining close. Nor if it becomes 
 obstructed by the grantor, can he lawfully go out of the way upon 
 the grantor's land, to avoid the obstruction, though he do no unne- 
 cessary damage. His remedy is to remove the obstruction, and he 
 has a right of action against the grantor for placing them there. 
 ( Williams v. Safford, 7 Barh. 309. Boyce v. Brown, 7 id. 80.) It is 
 otherwise with regard to a public highway. A person traveling on 
 a public highway, and finding a place foundrious and impassable,
 
 196 RIGHT OF WAT, HOW EXTINGUISHED. 
 
 has doubtless a right to remove enough of the fences in the adjoin- 
 ing close to enable him to pass around the obstruction, doing no un- 
 necessary injury. ( Williams v. Safford, supra, per Willard, J. 
 Taijlor V. Whitehead, 2 Doug. 748, per Mansfield, Ch. J.) 
 
 When a right of way is granted, without any designation of the 
 place in the deed, it may become located by usage for a length of 
 time ; and being so located it cannot be changed afterwards by the 
 grantor, without the consent of the grantee. But if it be so changed, 
 and the grantee use it in its new form, for a length of time, his con- 
 sent and acquiescence to the alteration will be presumed. ( Wyn- 
 Tcoop V. Burger, 12 John. 222.) 
 
 The grantee of the right of way and not the grantor must keep it 
 in repair, (7c?. Taylor v. Whitehead, supra,) unless there be cove- 
 nants in the grant to the contrary. (Rider v. Smith, 3 T. R. 766. 
 Doane v. Badger, 12 Mass. Rep. Q5. Wynhoop v. Burger, supra.) 
 
 As a right of way is an incorporeal hereditament, it is not devested 
 by any conveyance of the estate out of which it is granted. [Shep. 
 Touch. 23.) 
 
 An easement acquired by deed cannot be lost by nonuser. To be 
 thus lost it must have been acquired by user. The doctrine of ex- 
 tinction by disuse does not apjjly to servitudes or easements created 
 by deed. In the one case the mere disuse is sufficient ; but in the 
 other there must not only be disuse by the owner of the land 
 dominant, but there must be an actual adverse user by the owner 
 of the land servient. {Smiles v. Eastings, 24 Barb. 49. White 
 V. Craioford, 10 Mass. Rep. 182. Arnold v. Stevens, 24 Pick- 
 ering, 106.) 
 
 But when the right of way is acquired by user, the same rule of 
 presumption applies to an unexplained nonuser that confessedly 
 results from a long and uninterrupted user of such right. In the 
 last case a grant is presumed, and so in the former a release may be 
 inferred. {Doe v. Hilder, 2 Barn. & Aid. 791, by Abbott, Ok. J. 
 Moore v. Rawson, 3 Barn. & Ores. 332. Hoffman v. Savage, 15 
 Mass. Rep. 130.) A shorter period of nonuser should not authorize 
 the presumption of a release, than is required to afford evidence of a 
 grant. {Emerson v. Wiley, 10 Pick. 310.) Should a right of way 
 be assigned to a dowager, over land of her husband, with her dower, 
 the easement would cease with the estate in dower. {Hoffman v. 
 Savage, supra.) 
 
 A right of way may be extinguished by a unity of seisin and pos-
 
 PRIVATE ROADS. 197 
 
 session, and revived again by severance. {Cruise's Dig. title 24, 
 Ways.) 
 
 The constitution of 1846 provides that private roads may be 
 opened in the manner to be prescribed by law ; but in every case the 
 necessity of the road, and the amount of all damages to be sustained 
 by the opening thereof, shall be first determined by a jury of free- 
 holders, and such amount, together with the expenses of the proceed- 
 ings, must be paid by the person to be benefited by the proceeding. 
 {Art 1, § 7.) This constitutional provision was made in conse- 
 quence of a doubt cast over the power of the legislature in this re- 
 spect, by the decision of a majority of the supreme court in 
 1843,' in the case of Taylor v. Porter, (4 Hill, 140.) The necessity 
 of some power in the government to enable the owner of land, who 
 cannot acquire a right of way by grant, to connect his freehold to 
 a public road by a way over lands of another, against the consent of 
 the latter, had been felt at an early day ; and provision was made 
 by the colonial authorities, before the revolution, for such relief. 
 The authority of the legislature to authorize the laying out of a pri- 
 vate road through the lands of another, without his consent, was 
 never questioned till the case of Taylor v. Porter, (supra.) The ex- 
 istence of this power in the government, whatever it was before, is 
 now placed beyond the reach of opposition, and is a valuable attri- 
 bute of legislative sovereignty. 
 
 The act of 1801, to regulate highways, contained suitable provis- 
 ions for laying out private roads, limiting their maximum width to 
 three rods, and providing for an inquiry by a jury as to the necessity 
 of the road, and assessing the damages to be paid by the applicant. 
 (1 K. & R. 594. 2 R. L. o/1813, jo. 276, §§ 20-23.) The existing 
 law on the subject was passed in 1853. {Ch. YJ4:, 2 R. S. 400, 5th 
 ed.) It contains minute directions with respect to the application 
 for the road to the commissioners of highways of the town, the selec- 
 tion and summoning of a jury to inquire into the necessity of the 
 road, the notice to the parties interested, the appraisal and payment 
 of the damages. It provides that a record of the proceedings shall 
 be filed in the office of the town clerk of the town, and grants an 
 appeal to the county judges of the county, on the application of any 
 aggrieved party. 
 
 The private road thus laid out can be used only by the applicant, 
 and be converted to no other use than a road ; and the owner or
 
 198 EIGHTS OF OWNER. 
 
 occupant of the land through which it is laid out is not permitted 
 to use it as a road, unless he shall have signified his intention to 
 that efiect to the jury or commissioners who ascertained the damages 
 sustained hy the laying it out^ before the same are ascertained. 
 (2 R. S. 402, 5th ed.) The width of the road is not to exceed three 
 rods, and it is to be kept in repair by the owner of it. It is, how- 
 ever, made the duty of the commissioners of highways of the town, 
 to credit such persons as live on private roads and work the same, 
 so much on their assessments as such commissioners may deem neces- 
 sary to work such private road ; or to annex such private road to 
 some of the highway districts. (2 R. S. 389, 5th ed. § 41.) This 
 provision was copied from the former law. (2 R. L. of 1813, p. 277, 
 § 21.) It applies only to cases where the owner of the road lives on 
 the same, and it is therefore the means by which he connects his res- 
 idence with the public highway. In other cases, the road is exclu- 
 sively his own for travel, and must be built and repaired by him as 
 in the case of private ways by grant, or prescription, or of necessity. 
 
 In Massachusetts, it has been held, that all the owner of a right 
 of way can claim is the use of the surface, for passing and repassing, 
 with a right to enter upon and prepare it for that use, by leveling, 
 graveling, plowing or paving, according to the nature of the way 
 granted or reserved ; that is, for a footway, or a way for all teams 
 and carriages. {Atkins v. Bordman, 2 Met. 467, j:)er Shaiv, Ch. J.) 
 The case in which the foregoing observations were made arose out 
 of a reservation of a way in urban property, and not under a statute 
 like that of New York. 
 
 But it is believed that the same principle is applicable to private 
 roads laid out in pursuance of the New York statute. There is no 
 provision for fencing such road ; and the damages to be assessed are 
 such only as are presumed to be sustained by the owner or occupant 
 of the land by reason of the opening of the road. That damage will 
 be the injury to the soil by constructing the road, and the inconven- 
 ience resulting to the owner or occupant by reason of the easement 
 of a way being laid over the land. In other respects, the rights of 
 the original owner or occupant are undisturbed. He can depasture 
 it, or cultivate the ground in any other manner not inconsistent with 
 the enjoyment by the other party of the easement of a way. The 
 prohibition of the owner or occupant of the land to use it as a road, 
 unless he signified his intention so to do at the time of the appraisal
 
 WAT, HOW EXTINGUISHED. 199 
 
 of damages, contains an implication, that he may use it for all other 
 purposes not inconsistent with the use of it as a road, whether he 
 signifies his intention so to do or not. (1 R. S. 517, § 79. 2 id. 
 402, § 118, 5th ed. Adams v. Emerson, 6 Fick. 57.) 
 
 The usage with respect to fencing private roads laid out under 
 the statute, is not uniform. If a fence he erected by the owner of 
 the land on the line of the road, without the consent of the owner 
 of the way, it mpst give the full width set off by the commissioners, 
 and an action will lie if it encroaches upon it. [Herrick v. Stover, 
 5 Wend. 580.) But whether fenced or not, the owner of the soil 
 through which it passes has no right to use it as a road with his 
 teams, if he disclaims all intention of using it when the damages were 
 assessed. {Lamhert v. Hohe, 14 John. 383.) 
 
 The supreme court, in Bront v. Becker, (17 Wend. 320, 322,) 
 seem to think that the statute with respect to division fences is not 
 confined to the owners of the fee of adjoining lands or of any other 
 particular estate ; but from the generality of the expression, may 
 properly include any person having an interest of any description in 
 the adjoining lot. (1 R. 8. 353, § 30.) In that case one of the own- 
 ers was seised in fee, and the other a mere tenant at will. On that 
 principle it would seem that when a division fence has been erected 
 on the line of the way, any dispute concerning the same may be set- 
 tled by any two of the fence viewers under the statute. 
 
 In conclusion, on this branch of the subject it is to be remarked, 
 that all the preceding observations relate to private ways of the mo&t 
 extensive character. The greater includes the less. There are three 
 kinds of ways, viz : 1, a foot way ; 2d, a foot way and horse way. 
 The 3d embraces the other two, and is called a cart way. This lat- 
 ter is the kind of way contemplated by the statute relative to private 
 ■ways, and is the most extensive that can be granted, against the 
 consent of the owner of the soil. It is believed that a foot way, or 
 a foot and horse way may be granted under the statute. In such a 
 case the owner of the way would be a trespasser if he used it for 
 any other purpose. 
 
 A right of way may be extinguished by unity,, when it is a way 
 of ease or pleasure; but otherwise if it be a way of necessity. 
 (1 Saunders, 326, n. c. 6 Cruise's Dig. tit. 24, § 23 and note.)
 
 200 OF FRANCHISES. 
 
 Section III. 
 .^ Of Franchises. 
 
 A franchise was defined by the supreme court, in a leading case, 
 to be a royal privilege, or a branch of the prerogative, subsisting in 
 the hands of a subject, and may arise from the king's grant, or, ia 
 some cases, may be held by prescription which presupposes a grant. 
 Immunities and privileges in which the public have an interest, as 
 contradistinguished from private rights, and which cannot be exer- 
 cised without authority derived from the sovereign power, are fran- 
 chises. The right of banking, since the restraining act, is a privi- 
 lege or immunity subsisting in the hands of citizens by grant of the 
 legislature, and a franchise. (The People v. Utica Ins. Co. 15 John. 
 358.) The same definition is given by the elementary writers. 
 (2 Black. Com. 37. Cruise's Dig. tit. 27, § 1.) Franchises are, 
 even in this country, extremely numerous, and a few only can be 
 noticed in this treatise. 
 
 The case of banking institutions, mentioned in the case just cited, 
 affords an example. The banks formed under the general law of 
 this state have long since been held to be corporations, and of course 
 are franchises, ( Warner v. Beers, 23 Wend. 103. Supervisors 
 of Niagara v. Tlie People, 7 Hill, 504, Gifford v, Livingston, 2 
 Benio, 380, Gillet v. Moody, 3 Comst. 479, 485, 486, Talmadge 
 V, Pell, 3 Seld. 328. Curtis v. Leavitt, 15 N. Y. Bep. 9, Leavitt 
 V, Blatclford, 5 Barh. 11.) They are recognized as corporations 
 by the constitution of 1846, {Article 8, § 3.) 
 
 The franchise of a corporation consists in its attribute of con- 
 tinued succession, derived from its charter ; the right to have a name 
 and common seal ; to sue and be sued ; to make by-laws ; to have 
 capacity to transact business. (1 R. S. 599, Dartmouth College 
 V, Woodioard, 4 Wheat. 518-636, hy Marshall, Ch. J. Bank of 
 Augusta v. Bank of United States, 13 Pet. 519, 541, 587.) Hence, 
 to be a corporation, is a franchise. 
 
 The right to erect a ivharf on tide water, and take toll for its use, 
 is a franchise, and must flow from a grant from the sovereign power, 
 or be upheld by prescription. {Wiswall v. Hall, 3 Paige, 313.) 
 
 So a right to erect and maintain a dam in a public river is a fran- 
 chise, an incorporeal hereditament, conferred by the legislature ; but
 
 GRANTS CONSTRUED STRICTLY. 201 
 
 the dam is not. For the invasion of the franchise the proper remedy 
 was case, under the former practice, but only trespass for a direct 
 and immediate injury. ( Wilson v. Smith, 14 Wend. 324.) 
 
 On the same principle, the right to erect a bridge and take toll 
 from those who pass over it, is a franchise which the courts will 
 protect. {The Mohaiuk Bridge Co. v. The TJtica and Sch. R. R. Co. 
 6 Paige, 554. Charles River Bridge v. Warren Bridge, 11 P en- 
 ters, 420.) 
 
 But the grants of these exclusive privileges are to be construed 
 strictly, and are not to be extended by implication. The govern- 
 ment, by granting a charter for a bridge, does not diminish its own 
 power to grant a like franchise to others which will accommodate 
 the same line of travel. It does not bind itself by implication to 
 withhold a similar grant, although it may lessen the profits of the 
 franchise first granted. {Charles River Bridge v. Warren Bridge, 
 su23ra. Auburn and Cato Plank Road Co. v. Douglass, 5 Seld. 444.) 
 
 Chancellor Kent, in the Neivhurgh Turnpike Co. v. Miller, (1 John. 
 Ch. 101,) held that when one has the grant of a ferry, bridge or 
 road, with the exclusive right of taking toll, the erection of another 
 ferry, bridge or road, so near it as to create a competition injurious 
 to the franchise, is, in respect to such franchise, a nuisance ; and 
 that the court of chancery would, by perpetual injunction, protect 
 the enjoyment of the statute franchise. It has been supposed that 
 the principle of this case is subverted by the decision of the United 
 States supreme court in the Charles River Bridge case, {supra;) 
 but the cases are not strictly in conflict. In the last case the ques- 
 tion arose whether the legislature was estopped by their grant of a 
 toll bridge from granting another which should be free ; but in the 
 former the question was whether an individual could by his oivn act 
 prevent the operation of a public grant. It must be conceded, how- 
 ever, that though the Charles River Bridge case is not in conflict 
 with the case of the Neiohurgh Turnpike v. Miller, {supra,) the case 
 of the A uburn and Cato Plank Road Co. v. Douglass, {sujjra,) 
 flatly contradicts it. In the latter case, the interference with the 
 franchise proceeded not from the government which granted it, but 
 from an individual, and if that can be law, the case of Neivhurgh 
 Turnp)ike v. Miller, {supra,) was erroneously decided. 
 
 The doctrine that the legislature is not estopped by a prior grant 
 from making another which will interfere with it, though questioned 
 by some, is too firmly established to be shaken. {Charles River
 
 202 FRANCHISE MAY BE MORTGAGED. 
 
 Bridge v. Warren Bridge, supra. Cruise's Dig. tit. 27, § 29, note. 
 Aidjurn and Cato Plank Road Co. v. Douglass, supra. The Oswego 
 Falls Bridge Co. v. Fish, 8 Barh. Ch. 547. TJie 3Iohawk Bridge 
 Co. V. TJie Utica and Sch. Bail Boad Co. 6 Paige, 554. The En- 
 field Toll Bridge Co. v. The Hartford and New Haven B. B. Co. 
 17 Conn. Bep. 454. Thor)ipson v. The Neiv Haven and Harlem 
 B. B. Co. 3 Sand/. Ch. 625.) In the case of the Auburn and Cato 
 Plank Boad Co. v. Douglass, {supra,) Selden, J. in delivering^ the 
 opinion of the court of appeals, assumes that the Charles Biver 
 Bridge case overrules the doctrine of Chancellor Kent in the New- 
 hurgh Turnpike v. Miller, and the note to 3 Kent's Com. 459, takes 
 the same view of the matter. The case of the Charles Biver Bridge 
 V. Warren Bridge does, indeed, overthrow the doctrine of Chancel- 
 lor Kent, that in every grant of a franchise there is an implied obli- 
 gation in the government, not to interfere with it, or materially im- 
 pair its value, by a like grant to others. But that is a different 
 question from the power of a court of equity to restrain an individ- 
 ual, who acts upon his own authority, from injuring the franchise. 
 It was on this ground that the court of appeals, in 1853, on the first 
 argument of the case of the Auburn and Cato Plank Boad Co. v. 
 Douglass, were equally divided ; four being for sustaining the decis- 
 ion of the court below, (12 Barb. 553,) and four for reversal. The 
 decision given on the second argument, reported in 5th Selden, does 
 not notice the point on which the court differed on the first argu- 
 ment ; but decides the case upon the same principle as if the legis- 
 lature had granted to the defendant a like franchise to construct a 
 road upon his own land, and he had constructed it under that author- 
 ity, and not of his own authority as owner of the land. 
 
 The grant of a charter to a rail road company, or to a plank road 
 company, is also a franchise. Indeed, there is probably more money 
 invested in rail roads, on the faith of these grants, than on any other 
 franchises in this country. The general rail road act, which autho- 
 rizes the forming of these associations, and makes them incorpora- 
 tions, confers upon them the power of taking and holding real estate 
 and other property for the purposes of their road, and among other 
 things to borrow such sums of money as may be necessary for com- 
 pleting and finishing or operating their rail road, and to issue and 
 dispose of their bonds for any amount so borrowed, and to mortgage 
 their corporate property and franchises, to secure the payment of
 
 AI^NUITIES AND RENTS. 203 
 
 any debt contracted by the company for the purposes aforesaid. {Act 
 of 1850, pp. 224, 225.) Thus, the franchise of the road is treated as 
 an incorporeal hereditament, savoring of the realty, and the subject 
 of mortgage and sale. The bonds to secure which the mortgage is 
 authorized to be given, are held by the highest authority to be ne- 
 gotiable instruments. {White v. Vermont and Mass. R. Road Co. 
 21 How. U. S. Rep. 575.) A different rule prevails in England. 
 ( White V. McMaine, 6 M. & Welsh. 200. Enthoven v. Hoyle, 9 L. 
 and Eq. Rep. 434. 
 
 The effect of such mortgage and of a foreclosure under it, belongs 
 to a different part of this treatise. [See Mortgages.] 
 
 The special privileges granted to towns, counties or cities, are 
 franchises. Thus, the ferries belonging to the city of New York, the 
 right to wharfage, to keep markets, and various other incidents in 
 their charter, belong to the same class. 
 
 Section IY. 
 
 Of Annuities and Rents. 
 
 The principal difference between an annuity and a rent charge, is 
 that the remedy for the first is against the person alone, and the 
 other is a charge upon the land. An annuity is a yearly sum of 
 money chargeable only on the person of the grantor. If it be grant- 
 ed to a man and his heirs, it is a fee simple personal. {Co. Lift. 2 a, 
 144 b.) If the grant be to a man and his heirs, the heir of the 
 grantor is not bound, unless the grant be for him and his heirs. {Id.) 
 An annuity may be charged on land, and the remedy of the grantee 
 may, at his election, be real or personal. (2 Bl. Com. 40, n.) An 
 annuity is said to be real estate, and descendible to the heirs. 
 
 Rent is defined to be a certain profit issuing yearly out of lands 
 and tenements corporeal. (2 Bl. Com. 41. Co. Lilt. 144.) It is 
 not necessary that it should be in money ; for it may consist of hor- 
 ses, corn or manual services ; as to plough so many acres, or to labor 
 so many days, and the like. The profit thus reserved must be cer- 
 tain, or capable of being reduced to a certainty. ( Van Rensselaer 
 V. Jones, 5 Ben. 449.) It must issue out of the thing granted, and 
 not be part of the thing itself. It must issue out of lands and ten- 
 ements corporeal. It cannot be granted of a franchise or a com- 
 mon for then there is nothing into which the landlord can enter to
 
 204 RENT CHARaE. 
 
 distrain. The agreement to pay for the use of an incorporeal here- 
 ditament, as a common or a way, is a mere personal agreement. It 
 must issue yearly; though it may be payable monthly, or every 
 third year, and the like. But as it issues out of lands, the profits of 
 which arise annually, and as there must be some criterion by which 
 the amount can be ascertained, the year is the proper standard of 
 duration by which it is to be measured. 
 
 At common law there were three kinds of rent, namely, rent ser- 
 vice, rent charge, and rent seek, 
 
 Eent service is when the tenant holds his lands by fealty and cer- 
 tain rent. It was formerly so called because rent consisted of some 
 corporeal service, as ploughing the lord's land. To this kind of rent 
 distress was inseparably incident, whether the lease contained any 
 clause of distress or not. It was required that the landlord should 
 retain the reversion, and that the rent should be certain, otherwise 
 the lessor could not distrain, unless there was a clause in the lease 
 authorizing it, in which case it would be a rent charge. {Littleton, 
 § 217. Van Rensselaer v. Hays, 5 Smith, 68. Same v. Ball, Id. 
 100 ; S. C. 27 Barh. 104. Same v. Chadioick, 24 id. 333. Crahbe's 
 Laiv of Meal Property, vol. 1, 169, § 151. Cruise's Dig. cli. 28. 
 Cornell v. Lamb, 2 Cowen, 652.) 
 
 A rent charge is any rent granted out of lands by deed with a 
 clause of distress, whence it derives its name, because the land is 
 charged with distress by the express provision of the parties, which 
 it would not otherwise be. This may arise as well in a reservation 
 in a grant in fee, as by a direct grant of a rent charge by the owner 
 of thfe estate. It is thus expressed by Littleton, § 217 : if a man, 
 by deed indented at this day, makes a lease for life, the remainder 
 over in fee, or a feofi'ment in fee, and by the same indenture he re- 
 serves to him and his heirs a certain rent, and that if the rent bo 
 behind it shall be lawful for him and his heirs to distrain, &c., such 
 rent is a rent charge. {See same cases.) 
 
 A rent seek was properly a rent reserved by deed without clause 
 of distress. {Litt. § 217.) It might be reserved in a grant in 
 fee. {Id.) 
 
 But the distinction between them has been done away in England, 
 by the 4 Geo. 2, ch. 238, which gives the same remedy for a rent seek 
 as for a rent service, or a rent charge. The revised statutes of New 
 York give the grantees of any demised lands, tenements, rents, or 
 other hereditaments, or of the reversion thereof, the assignee of the
 
 COVENANT RUNS WITH THE LAND. 205 
 
 lessor of any demise, and the heirs and personal representatives of 
 the lessor, grantee or assignee, the same remedies by entry, action or 
 otherwise, for the non-performance of any agreement contained in 
 the lease so assigned, or for the recovery of any rent, as their grantor 
 or lessor had or might have had if such reversion had remained in 
 such lessor or grantor. (3 R. 8. 37, § 17, 5th ed.) They also give 
 the lessees of any lands, their assigns or personal representatives, the 
 same remedy by action or otherwise against the lessor, his grantees, 
 assignees, or his or their representatives, for the breach of any cove- 
 nant or agreement in such lease contained, as such lessee might have 
 had against his immediate lessor, except covenants against incum- 
 brances, or relating to the title or possession of the premises demised. 
 (Id. § 18.) And the provisions of the last two sections are extended 
 as well to grants or leases in fee reserving rents, as to leases for life 
 or years. {Id. § 19. Nicoll v. The Neiu York and Erie Rail Road, 
 12 Barh. 460, affirmed by court of a2jpeals, 2 Kernan, 121.) 
 
 It was held in England, at an early day, that an asssignee of a 
 rent charge in fee could have covenants against the grantor, because 
 it is a covenant annexed to the thing granted. Sir Edward Sugden, 
 afterwards Lord St. Leonards, lord chancellor of England, in his ex- 
 cellent treatise on Vendors, after reviewing the British authorities, 
 says, that the rent charge is an incorporeal hereditament, and issues 
 out of the land, and the land is bound by it ; the covenant may 
 therefore well run with the rent in the hands of the assignee ; the 
 nature of the subject, which savors of the realty, altogether distin- 
 guishes the case from a matter of a personal nature. (2 Sug. Vend. 
 177, Perkins' ed. Brewster v. Kidgell, 12 3Iod. 166. Van Rens- 
 selaer V. Hays, 5 Smith, 80, j9e?' Denio, J. approving the above.) 
 The learned author does not put it upon the construction of the 32 
 Henry 8, ch. 34, which gave the action by and against the assignees 
 of estates for life and years, and which was adopted in this state in 
 1788, but on the theory and legal effect of such covenants. 
 
 A different view of the subject was taken in the supreme court of 
 this state as early as 1800, in Devisees of Van Rensselaer v. Exec- 
 utors of Plainer, 2 John. Cas. 24,) when it was held that the devisee 
 of the grantor in whose favor a rent charge had been reserved in a 
 lease in fee, could not maintain an action in his own name for rent 
 in arrear ; in other words, the covenant did not run with the land, 
 and the case was not aided by the re-enactment, in 1788, of the 
 statute of Henry 8. It is evident that if Sugden be correct, as it is
 
 206 QUI^ EMPTORES. 
 
 "believed he was, the case was erroneously decided ; but it was not 
 taken to the court of errors, but acquiesced in for the time being. 
 This decision, it is supposed, led to the act of 1805, {Laws of 1805, 
 ch. 98, p. 254,) entitled an act to enable grantees of reversions to 
 take advantage of the conditions to be performed by lessees, which, 
 after reciting that it had been doubted whether the provisions con- 
 tained in the act entitled " An act to enable grantees of reversions 
 to take advantage of the condition to be performed by lessees, 
 thereby intended to be amended, extended to any but assignees of 
 reversions dependent on estates for life or years ;" and further recit- 
 ing that leases or grants in fee, reserving rents, had long since been 
 in use in this state, and to remove all doubts respecting the true 
 construction of the aforesaid act, it was enacted that all the provis- 
 ions of said act and the remedies thereby given, should be construed 
 to extend as well to grants or leases in fee reserving rents, as to leases 
 for life or years, any law, usage or custom to the contrary notwith- 
 standing. This act was re-enacted in the revised laws of 1813, {vol. 
 1, j9. 364, § 3,) and in the revised statutes of 1830, before cited. 
 The recital is evidence of the prior usage with respect to rents re- 
 served in leases or grants in fee, and affords some evidence that such 
 leases were common, and that the covenant for the payment of the 
 rent was supposed to run with the land. 
 
 The act of 1805 was evidently a declaratory act. Its repeal in 
 1860 {L. of 1860, p. 675) does not controvert the prior usage, nor 
 take away rights which existed before. 
 
 The statute quia emptores, (18 Ud. 1,) provided that if a person 
 made a feoffment in fee, or gift in tail, with a limitation over in fee, 
 the feoffee or donee will hold of the superior lord by the same ser- 
 vices which the feoffee was bound to perform to him ; from which 
 it followed, that upon a conveyance of this kind, no rent service 
 could be reserved to the feoffer or donor, because he had no rever- 
 sion left in him ; and as the feoffee or donee did not hold of him, he 
 was bound to do him service. But if, upon a conveyance in tail or 
 fee or for life, the donor keeps the reversion and reserves to himself a 
 rent, it will be a rent service, because fealty and a power of distress 
 are incident to such reversion, {Cruise's Dig. tit. 28, ch. 1, § 5.) 
 Before the statute, according to Littleton, (§ 216,) if a man made 
 a feoffment in fee simple, yielding to him and to his heirs a cer- 
 tain rent, this was a rent service, and for this he might distrain of 
 common right, and if there was no reservation of any rent, nor of
 
 DURABLE LEASE. 207 
 
 any seisin, yet the feoffee held of the feoffor by the same service as the 
 feoffor held of his lord next paramount. But since the statute, as 
 appears by Littleton, § 217, cited on a preceding page, (p. 204,) if a 
 rent be reserved in a deed in fee, it is no longer a rent service; but 
 if there be a clause in the deed reserving to the grantor and his 
 heirs a certain rent, with authority to him or his heirs, if the rent 
 be behind, to enter and distrain, it is a rent charge. Hence it is 
 quite clear that in England, after the statute quia emptores, rents 
 charge were reserved or granted in estates in fee simple, with a power 
 of distress. That class of conveyances was frequent in the colony, 
 and was usually denominated a durable lease, or a lease in fee ; thus 
 adopting a term which in England was applicable only to an instru- 
 ment creating a less estate than the lessor had in the premises, which 
 is the true notion of a lease, in the English books of conveyancing. 
 
 It has been doubted whether the statute quia em^otores was ever 
 in force in the colony of New York. {Jackson v. Schutz, 18 John. 
 179. Be Peyster v. Michael, 2 Seld. 502.) If by this is meant that 
 the statute was not re-enacted by the colonial legislature, the asser- 
 tion is probably true ; for it was never enacted here till the substance 
 of it was incorporated into our statute of tenures after the revolu- 
 tion. {Act of Feb. 20, 1787, IK.&R. 64. 1 R. 8. 718.) But it is 
 believed that our ancestors brought with them, in emigrating to this 
 country, such parts of the common law, and such of the English 
 statutes altering or amending the same, as were of a general nature 
 and applicable to their situation, {Van Rensselaer v. Hays, 
 5 Smith, 73. Bogardus v. Trinity Church, 4 Paige, 178, affirmed, 
 15 Wend. 111. Canal Commissioners v. The People, 5 id. 445. 
 Commomuealth v. Leaeli, 1 Mass. Rep. 60. Same v. Knowlton, 
 2 id. 535.) 
 
 The durable lease or grant in fee reserving rent, with a power to 
 distrain, was a common conveyance in this state both before and 
 since the revolution. Such lease creates a valid rent charge, which 
 descends to the heirs, and the covenant runs with the land into 
 whosesoever hands it lawfully passes. ( Van Rensselaer v. Hays, 
 19 N. Y. Rep. 76. Notes 235 to Co. Litt. 143 h, by Mr. Har- 
 grave, and the cases be/ore cited. Van Rensselaer v. Ball, 5 Smith, 
 100 ; S. C. 27 Barb. 104. Bradbury v. Wright, Botiglass, 624, 
 note to do. 627.) 
 
 It has not been unusual, in adopting the law of the parent state, 
 to introduce changes to make it conform to the circumstances, wants
 
 208 RENT RESERVED GENERALLY. 
 
 and conveniences of the country. These changes have sometimes 
 been the result of usage alone, and sometimes of statutory regula- 
 tions and judicial construction. It is upon this principle that the 
 term lease, which, in England, denotes a contract for the possession 
 and profits of land for a determinate period, with a recompense of 
 rent, payable in money or other things ; leaving a reversion in the 
 grantor, with us, is indiscriminately used, whether the estate granted 
 be for life or years, or in fee. {Bac. Ahr. tit. Leases.) Grants in 
 fee, reserving rent, with a clause of distress and re-entry, have long 
 been called leases in fee, or durable leases, in this state, both in 
 statutes and judicial decisions. {Laws of 1805, ch. 98. 1 R. S. 
 748, § 25. 3 id. 37, 5th ed. De Peyster v. Michael, 2 Seld. 467. 
 JacJcson v. Collins, 11 John. 1. Van Rensselaer v. Jeioett, 5 De- 
 nio, 121. Same v. Jones, 2 Barh. S. C. R. 643. Same v. HayeSj 
 5 Denio, 477. Same v. Snyder, 3 Kern. 299. Van Rensselaer v. 
 Smith, 27 Barh. 104.) 
 
 In the foregoing cases an estate in fee reserving rent with a clause 
 of distress and re-entry, is called a lease, and the relation of landlord 
 and tenant is spoken of as subsisting between the parties. The 
 party entitled to the rent is called the landlord, and the party liable 
 to pay it, the tenant. And the cases were held to be within the 
 statute giving a right of re-entry to the landlord for the non-pay- 
 ment of the rent. 
 
 There are numerous other cases in the books in which we have 
 used common law terms in a different sense from that which they bore 
 in the mother country, or in the same sense, with some essential modi- 
 cations. Our courts, for example, have held that rail road bonds 
 are negotiable securities, contrary to the notions of British lawyers. 
 {White V. Vermont and 3Iass. R. R. 21 Hoio. U. S. Reji. 575.) 
 
 Though rents are usually reserved on leases, they may be reserved 
 on a release, a bargain and sale, and lease and release. {Cruise's 
 Dig. tit. 28, ch. 1, § 25.) 
 
 With regard to the person to whom rent may be reserved upon a 
 grant or lease, it is said by Littleton that it can only be to the 
 grantor or lessor, or to his or their heirs, and in no manner can it 
 be reserved to a stranger. {Litt. § 346.) 
 
 A rent reserved generally, without specifying to whom payable, 
 will go to the lessor, and after his death to his heirs. If the reserva- 
 tion be to the lessor and his heirs, the effect will be the same, if the 
 lessor was seised in fee. (1 Co. Litt. 47 a.)
 
 EVICTION. 209 
 
 With respect to the estate which may be had in a rent, it depends 
 on the nature and duration of the estate out of which it issues. A 
 rent charge may be limited to a man and his heirs, which of course 
 gives him an estate in fee simple in the rent. Leases for years, lands 
 held for a term of years, and estates held per outer vie, are treated 
 by the revised statutes as personal assets, and required to be inserted 
 in the inventory of deceased persons. Rent reserved to the deceased, 
 and which had accrued at the time of his death, is also a part of the 
 personalty, whether it arose out of a rent seisin or a rent charge. 
 (2 R. S. 82, 83.) 
 
 A rent charge is subject to dower and curtesy. (Co. Litt. 32 a.) 
 So also is a rent service, if the party entitled to the rent is entitled 
 also to the reversion. {Id. 29 a.) 
 
 The tenant will be discharged from the payment of rent if ho be 
 evicted from the demised premises. 
 
 Such eviction to constitute a bar, must have taken place before 
 the rent claimed fell due. {McCarty v. Hudson, 24 Wend. 291. 
 Watts V. Coffin, 11 John. 495.) 
 
 When the lessor enters wrongfully into part of the demised prem- 
 ises, the tenant is discharged from the payment of the ivhole rent till 
 he is restored to the whole possession. 
 
 When a party, after executing leases of portions of his farm to 
 several tenants, granted the whole farm, with the reversion of the 
 demised premises, to a tenant in fee, reserving an annual rent, and 
 after such grant, entered upon the demised premises and distrained 
 the goods of the original tenants for rent accrued subsequent to the 
 grant of the whole estate, it was held that such entry and distress 
 amounted to an eviction of the principal tenant, and worked a sus- 
 pension of the rent. {Lewis v. Payn^ 5 Wend. 423.) 
 
 A physical eviction by the landlord is not indispensable to relieve 
 the tenant from liability for rent. It is sufficient if the landlord in- 
 tentionally and injuriously disturbs and interferes with the benefi- 
 cial enjoyment of the premises, {Cohen v. Dupont, 1 Sandf. 260.) 
 Where the demised premises were part of a house, and the landlord 
 made the residue a resort of lewd and disorderly men- and women, 
 and a place of prostitution, the court of errors of New York held it 
 to amount to an eviction, and properly proof under the usual plea. 
 {Dyett V, Pendleton, 8 Coiven, 727, reversing the "previoiis case, 4 
 id. 581.) 
 
 But to make out a constructive eviction, there must be an inter- 
 
 WlLL.— 14
 
 210 RENT APPORTIONED. 
 
 ference with the actual use or occupation of the premises, a deliber- 
 ate disturbance of the possession, depriving the tenant of a benefi- 
 cial enjoyment of the premises. And, therefore, when the landlord, 
 a year and more before the expiration of the lease, willfully under- 
 took to let the premises, and posted a bill on the building, but de- 
 sisted before the commencement of the last year, it was held not to 
 be a constructive eviction. {Ocjllvie v. Hull, 5 Hill, 52.) 
 
 The destruction of the building by fire hefore the time fixed for 
 the commencement of the term, absolves the lessee, and entitles him 
 to have the lease canceled. ( Wood v, Huhhell, 5 Barb. 601.) But 
 a destruction of them by fire after the term has commenced, affords 
 no relief, either at law or in equity, against an express covenant to 
 pay rent, unless the tenant has protected himself by a stipulation in 
 the lease, or the landlord has covenanted to rebuild, {Gates v. 
 Green, 4 Paige, 355.) 
 
 But if the tenant merely hires rooms in a building, which is sub- 
 sequently destroyed by fire, his interest ceases with the destruction 
 of the building, and he is not liable for rent, though there be an ex- 
 press covenant to pay. (Kerr v. The Merchants' Exchange, 3 Edio. 
 Ch. R. 315. Graves v. Berden, 29 Barb. 100.) In Izon v. Gorton, 
 (5 Bi7ig. N. C. 501,) the premises were not destroyed, though ren- 
 dered untenantable, until repaired by the landlord ; which repairs 
 were made by him, and notice thereof given to the defendant when 
 they were completed. The tenant was held to be liable. 
 
 The usual and safe course is, to have suitable stipulations in the 
 lease itself, excusing the tenant from the payment of rent, in case 
 the premises are casually destroyed by fire, without his fault. And 
 the covenant should be so framed as to excuse from rent in case th«j 
 premises were destroyed by lightning, or other cause, without being 
 burned, if the destruction were without the fault of the tenant. 
 (Babcoch v. The Montgomery Co. Mut. Ins. Co. 4 Comst. 326.) [Set- 
 several forms of leases with the fire clause, in the Appendix.] 
 
 Rent, whether it be a rent service or a rent charge, may be appor- 
 tioned. This may arise either by a grant of a part of the reversion 
 of the land out of which it issues, or by granting a part of the rent 
 to one person and a part to another. (Per Abbott, Ch. J. in Bliss 
 V. Collins, 5 Barn. & Aid. 876.) 
 
 Littleton (§ 222) lays it down that if a man has rent charge to 
 him and his heirs, issuing out of certain land, if he purchase a par- 
 cel of the land, all the rent charge is extinct and the annuity alsOj
 
 APPORTIONMENT. 211 
 
 because the rent charge cannot be so apportioned. But if a man have 
 a rent service, and purchase parcel of the land out of which the 
 rent issued, it shall not extinguish all, but for the parcel. He thus 
 makes a distinction with regard to apportionment, between a rent 
 charge and a rent service ; and Coke adopts the same distinction. 
 (Co. Liu. 148 a.) And it is laid down the same way in Bacon's Abridg- 
 ment, title Rent, M. If a person has a rent charge issuing out of 
 three acres of land, and releases all his right in one acre, the rent is 
 said to be extinct ; because all issues out of every part, and it cannot 
 be apportioned. The owner of a rent charge may however release 
 to the tenant a part of the rent and reserve the residue. {Cruise's 
 Dig. tit. 28, ck 111, § 19.) 
 
 The mode adopted by English conveyances, according to Mr. 
 Cruise, to. obviate the effect of the above doctrine, is for the grantee 
 of the rent charge to join in the conveyance of the land, which ope- 
 rates as a release of the lands conveyed, from the payment of the rent 
 charge ; and to insert a proviso in the deed, that the other lands 
 shall continue subject to the rent charge. This proviso operates, it 
 is said, as a new grant of the rent charge. (Id. § 20.) 
 
 There are, however, many cases in which a rent charge or a o^ent 
 service may be apportioned, as well by the act of the party as by the 
 act of the law. Thus, when the grantee of a rent charge releases 
 part of the rent to the tenant, such release will not extinguish the 
 whole rent, but the part not released will still continue. (Id. § 22.) 
 In Bives v. Watson, (5 3Iees. & Wels. 255,) it was held that a rent 
 charge may be divided by will, or by a deed operating under the 
 statute of uses, so as to make the tenant liable, without attornment 
 to several distresses by the devisees ; and indeed by a conveyance of 
 any kind. 
 
 In this country the distinction between a rent charge and a rent 
 service, with regard to apportionment, does not seem to exist, as it 
 did in the time of Littleton and Coke. Such rent is held to be ap- 
 portionable by the act of the party, as well as by the act of the law. 
 (IngersoU v. Sergeant, 1 Whart. 337. Farley v. Craig, 6 Halstead, 
 263, 273, 279. Cole v. Patterson, 25 Wend. 456. Van Rensselaer 
 T. Chadwick, 24 Barh. 333. The People v. Haskins, 7 Wend. 463. 
 Payn v. Beal, 4 Denio, 407. Van Bensselaer v. Jones, 2 Bat'b. 
 S. C^B. 643. Same v. Jetvett, 2 Comst. 135, 141. 3 Kent, 470.) 
 
 Though in some of these cases other questions arose, yet they were 
 all leases in fee reserving rent, with a clause of distress and re-entry,
 
 212 REMEDIES. 
 
 and in some of them the direct question of apportionment of rent in 
 such leases was considered. No distinction was made between the 
 apportionment of a rent charge and a rent service. Both were placed 
 on the same ground, • 
 
 An apportionment according to the quantity of land \^ prima facie 
 risht, when there is no evidence as to its value. It will be assumed 
 all to be of the same value. ( Van Rensselaer v. Jones, supra.) An 
 apportionment according to the value of the land is undoubtedly 
 the most equitable, {Same v. Chadioick, supra.) 
 
 The common law was defective in not allowing an apportionment 
 of rent as to time. If the tenant for life, after demising lands, should 
 die on or after the day when the rent became due and payable, his 
 executors or administrators might recover from the under tenant 
 the whole rent due ; but if he died before the rent became due, they 
 had no remedy against the tenant for that part of the year. But 
 the statute has obviated this, and given to the executors or admin- 
 istrators the right to recover the proportion of rent which had accrued 
 before the death. (1 R. S. 747, § 22.) 
 
 The rule with respect to apportionment applies only to such ser- 
 vices as are in their nature divisible. If, therefore, the rent be of a 
 horse, a hawk, or the like, the landlord, by purchasing part of the 
 tenancy, cannot throw the whole burden on the remainder ; and 
 therefore, as there can be no apportionment of such a rent, it shall 
 be excited by such purchase. {Litt. 222. Cruise's Digest, tit. 28, 
 ch. Ill, § 28.) 
 
 The remedy in case of the non-payment of rent, underwent a 
 great change in this state in 1846. By an act passed in that year, 
 distresses for rent were abolished. {Laius of 1846, cli. 271, § 1. 3 
 B. S. 829, 5th ed.) A subsequent section enacts that wherever the 
 right of re-entry is reserved and given to a grantor or lessor in any 
 grant or lease, in default of a sufficiency of goods and chattels where- 
 on to distrain for the satisfaction of any rent due, such re-entry may 
 be made at any time after default in the payment of such rent, pro- 
 vided fifteen days' previous notice of such intention to re-enter, in 
 writing, be given by such grantor or lessor, or his heirs or assigns, to 
 the grantee or lessee, his heirs, executors, administrators or assigns, 
 notwithstanding there may be a sufficiency of goods and chattels on 
 the lands granted or demised, for the satisfaction thereof. The no-
 
 EEMEDIES. 213 
 
 tice may be served personally on such grantee or lessee, or by leaving 
 it at his dwelling house or place of abode. 
 
 The principal questions arising under this act have been as to its 
 constitutionality, with reference to past transactions, and with re- 
 spect to its application to grants or leases in fee, reserving a rent 
 with a clause of re-entry. Both these questions have been decisively 
 settled by the highest court of the state, and they are no longer open 
 for discussion. As the statute only affects the remedy, and does not 
 impair the obligation, of the contract, it has been adjudged that the 
 enactment is within the undoubted power of the legislature. Tho 
 right of re-entry, for the non-payment of rent, it was also held, may 
 be reserved upon a conveyance in fee. ( Van Rensselaer v. Ball, 1 
 9 N. Y. Bep. 100.) And where there is this right of re-entry in 
 the lease or conveyance creating the rent, ejectment is the appropri- 
 ate remedy, whether the lease be for life or years, or in fee simple. 
 [Id. Jackson v. Collins, 11 John. 1. Van Rensselaer v. Jewett, 5 
 Deni'o, 121. Same v. Hays, 5 id. 477. Same v. Jeioett, 2 Comst 
 141. 'Same v. Snyder, 3 Kernan, 299. The 3fayor &c. v. Camp-' 
 hell, 18 Barb. 156.) These cases show that no demand of the rent, 
 at the day, is necessary, as at common law, but that the notice pro- 
 vided for in the 3d section of the act of 1846, {supra,) stands in the 
 place of the evidence of a want of goods upon which to distrain. 
 The language as well as the evident intent of the act applies as well 
 to leases in fee, as to leases for life or years. 
 
 The revised statutes contain minute provisions for the proceedings 
 in cases of this kind, which are to some extent modified as to form 
 by the code of procedure. Whenever any half year's rent, or more, 
 shall be in arrear from any tenant to his landlord, and no sufficient 
 distress can he found on thejjremises, to satisfy the rent due, if the 
 landlord has a subsisting right by law to re-enter for the non-pay- 
 ment of such rent, he may bring an ejectment for the recovery of the 
 possession of the demised premises ; and the service of a declaration 
 thereon shall be deemed to stand instead of a demand of the rent in 
 arrear and of a re-entry on the demised premises. The notice, we 
 have seen, under the 3d section of the act of 1846, is a substitute 
 for the proof, formerly required, that no sufficient distress can be 
 found ; which is obviously a superfluous requirement, since the right 
 of distress has been abolished. The service of the declaration under 
 the former practice, has been superseded by the present mode of
 
 214 USE AND OCCUPATIOK 
 
 commencing actions, under the code of procedure. The one is an 
 equivalent for the other. 
 
 The landlord or owner of the rent is not confined to his action of 
 ejectment, for the recovery of his rent. He may bring an ap})ropri- 
 ate action upon the covenant in the lease for the payment of the rent, 
 and which, we have seen, is a covenant running with the land, and 
 thus giving a right of action to the assignee of the rent in his owu 
 name, against the person who is the assignee of the lessee, the party 
 charged with the payment of it. 
 
 The question whether interest is recoverable upon rents in arrear 
 has given rise to much discussion, but has been settled in this state, 
 in ftivor of the right to interest, whether the rent be payable in money 
 or in produce, or any other thing. ( Van Rensselaer v. Jones, supra. 
 Clark V. Barlow, 4 John. 183. Van Rensselaer v. Jewett, 2 Comst. 
 135. Lush V. Druse, 4 Wend. 313.) Though it could not be dis- 
 trained for under the former law. {Lansing v. Rattoone, 6 John. 43.) 
 
 There are various other questions which often arise in the law of 
 landlord and tenant, which we have not room to discuss. At com- 
 mon law the action for use and occupation of premises could not be 
 maintained, if an actual demise were shown. The English statute 
 of 11 Geo. 2, ch. 19, § 14, provides that when the agreement is not 
 by deed, a landlord may recover " a reasonable satisfaction for the 
 lands, tenements or hereditaments, held or occupied by the defend- 
 ant or defendants, in an action on the case for the use and occupa- 
 tion of what was so held or enjoyed;" and if any agreement, not 
 being by deed, shall be proved, " by which a certain rent was reserv- 
 ed, it may be used as an evidence of the quantum of the damages to 
 be recovered." (Comyn^s Land. (& Ten. 435.) The statute of New 
 York on the same subject varies, in some respects, from the above. 
 It is enacted that any landlord may recover in any action on the case, 
 a reasonable satisfaction for the use and occupation of any lands or 
 tenements, by any person under any agreement not made by deed ; and 
 if any parol demise or other agreement not being by deed, by which 
 a certain rent is reserved, shall appear in evidence on the trial of any 
 such action, the plaintiff shall not, on that account, be debarred 
 from a recovery, but may make use thereof as evidence of the amount 
 of the damages to be recovered. (1 R. S. 748, § 26.) The former 
 statute of New York was very similar to that of 11 Geo. 2. (1 R. L. 
 444, § 31.) The words " held or occupied" are to be found in both.
 
 USE AND OCCUPATION. 215 
 
 Under these words it has been adjudged that assumpsit foi use and 
 occupation will lie, although there has not been an actual occupa- 
 tion for the whole of the time in respect of which the action is 
 brought ; a legal possession being sufficient to maintain it, and the 
 defendant being thus liable for constructive, as well as actual occu- 
 pation. {Pincro v. Judson, 6 Bing. 206.) 
 
 The words " held or occupied " are not contained in the revised 
 statutes. The words now are that a recovery may be had of "a rea- 
 sonable satisfaction for the use and occupation of any lands or tene- 
 ments, by any person under any agreement not made by deed." 
 These words would seem to authorize a more restricted construction 
 than the act of 11 George 2d, and to exclude a mere constructive 
 holding. {See per Beardsley, J. in Cleves v. WiUougliby, 7 Hill, 88.) 
 
 In Westlahe v. De Grata, (25 Wend. 669,) the tenant hired the 
 house for a year at a rent of $601 annually, payable quarterly. He 
 paid the rent for the two first quarters and then left the premises, al- 
 leging that they were uninhabitable by reason of intolerable stenches 
 in the basement. There was no fraud on the part of the landlord, 
 and he actually sent a mechanic to ascertain the cause of the stench 
 and to remove it, but the defendant refused to stay. The cause was 
 ascertained to be dead rats under the steps of the house, which, 
 with ordinary skill and attention by the tenant, might have been 
 removed. It was readily removable when discovered, and was, in 
 its own nature, of temporary duration. The court held that the 
 landlord could recover for the remainder of the year, as for use 
 and occupation, if the contract remained in force. The voluntary 
 deserting of the premises by the tenant, for an inadequate cause, was 
 held to be no defense to the action. Although the defendant did 
 not actually occupy for the remainder of the year, he might have 
 done so, and was not prevented by any wrongful act of the landlord. 
 This, in short, was applying the same rule which the English courts 
 would follow under the statute of 11 George 2d, and our courts un- 
 der the former law. [Starkie's Ev. 853. Comyn's Landlord and 
 Tenant, 450.) 
 
 But no action will lie under the statute for use and occupation 
 when the defendant never went into possession of the demised prem- 
 ises under the agreement, either personally or by an agent or under 
 tenant. ( Wood v. Wilcox, 1 Denio, 37. Crosivell v. Crane, 
 7 Barh. 191. Beach v. Gray, 2 Denio, 84.) 
 
 When the defendant enters under a parol demise, and afterwards
 
 216 USE AND OCCUPATION. 
 
 abandons the premises, and the Landlord gives him notice that he 
 will let them to another person, and does so accordingly, he cannot 
 afterwards maintain an action for use and occupation against the 
 original tenant for the period during which the premises were occu- 
 pied by the tenant to whom the landlord has again let the premises, 
 though the latter has proved to be insolvent. Such tenant can, in 
 no sense, be treated as the agent or under tenant of the original ten- 
 ant, and the latter is therefore not responsible to this action. 
 {Beach v. Gray, suj^ra.) 
 
 Nor can the action be maintained when the relation of landlord 
 and tenant, between the parties, does not exist ; and therefore it 
 will not lie against a person who comes in under the plaintiff as a 
 purchaser from him, {Bancroft v. Wardivell, 13 JoJm. 489.) Nor 
 will it lie against a tenant holding over, against whom summary 
 proceedings are forthwith commenced on the expiration of the term 
 by virtue of which he is ejected. {Featherstonaugh ads. BradshaiOj 
 1 Wend. 134.) The remedy in such a case is an action for tho 
 mesne profits, and which is not founded on contract. 
 
 But it will lie against a lessee by deed who holds over after the 
 expiration of his term. The court said that the law in such a case 
 creates a tenancy from year to year, and the tenant cannot be turned 
 off without a previous notice to quit. {Abeel v. Eadcliff, 13 John. 
 297. Doe v. Bell, 5 T. R. 467.) 
 
 It has sometimes been made a question whether the tenant can 
 interpose as a defense the untenantable condition of the premises. 
 The revised -statutes provide that no covenant shall be implied in any 
 conveyance of real estate, whether such conveyance contains special 
 covenants or not. (2 R. S. 738, § 140.) The maxim caveat emptor 
 applies to the transfer of all property, real, personal and mixed ; 
 and the purchaser generally takes the risk of its quality and condi- 
 tion, unless he protects himself by an express agreement on the sub- 
 ject. A sale of provisions for domestic use, ( Van BracUin v. Fon- 
 da, 12 John. 468,) and a demise of ready furnished lodgings, {Smith 
 V. Marrable, \ G. & M. 479,) may be mentioned as exceptions ; for 
 as to them the law implies a warranty that the former are wholesome, 
 and the latter free from nuisance. {Gleves v. Willoughby, per Brad- 
 ley, J. 7 Hill, 86.) 
 
 There are some few English cases which tend to show that the 
 tenant may quit the premises without being liable for use and occu- 
 pation, if the jury find that the premises were unfit for proper and
 
 RENT, WHEN SUSPENDED. 217 
 
 comfortable occupation, and the defendant had quit them honafide 
 for that cause, as soon as he could get others. (Cotvie v. Goodwin, 
 9 Car. & Payne, 378. Salisbury v. Marshall, 4 id. Q5.) And there 
 are several other cases to the like effect. 
 
 When there is no fraud in the landlord, or misdescription of the 
 premises, and no particular agreement to put them in repair is made 
 by the landlord, the tenant takes them for better or for worse, and 
 the former is under no obligation to repair. [Cleves v. Willoughhy, 
 7 Hill, 90, per Beardsley, J. llumford v. Brown, 6 Coiven, 475. 
 Westlake v. Be Grata, 25 Wejid. 669. Comyn's Land, and Tenant, 
 185. Taylor's Land, and Ten. 166.) 
 
 The statute against implying covenants is founded in wise policy, 
 and will cause the tenant to exert his vigilance to detect the incon- 
 veniences before he takes the premises, or guard himself by proper 
 covenants. 
 
 The law has given to the landlord various other remedies, besides 
 those hitherto enumerated. The revised statutes contain suitable 
 and minute provisions to enable the landlord to regain the possession 
 of the demised premises, in case the tenant holds over, being in ar- 
 rear for rent, or deserts the premises leaving them unoccupied and 
 uncultivated. (2 R. S. 519. 3 id. 835, 5th ed.) 
 
 To bring a case within the statute, the conventional relation of 
 landlord and tenant must exist. A grantor in possession after he 
 has parted with his title, though he may be a tenant at suiferance, 
 cannot be dispossessed under the act. Nor can a mortgagee enforce 
 the agreement of the defaulting mortgagor to surrender possession. 
 {Evertson v. Sutton, 5 Wend. 281. Boach v. Cosine, 9 id. 227. 
 Sims V. Humjjhreys, 4 Be7i. 185.) 
 
 The statute, since its enactment in 1820, has been greatly im- 
 proved and extended. It has been made applicable to a holding 
 over after a sale of the premises under a judgment and execution 
 and the forfeiture of the title; and the remedy has been given 
 against a tenant or lessee for three years or more, who obtains a dis- 
 charge under the insolvent act. (3 B. S. 836, § 28, suhd. 3, 4, 5th ed. 
 SpraJcer v. Cook, 2 Smith, 567. Broion v. Belts, 13 JFewd 29. 
 Hallenhack v. Garner, 20 id. 22.) 
 
 Rent may be suspended, or extinguished. The first is, in general, 
 temporary in its operation ; the last, final. 
 
 The entry of the landlord into part of the premises unlawfully,
 
 218 RIGHT TO LIGHT AND AIR. 
 
 works a temporary suspension of the whole rent. The landlonl can- 
 not apportion the rent by his own wrongful act. The suspennidn 
 ■will cease, however, on a restoration of the premises to the tenant. 
 {Lewis V. Payn, 4 Wend. 423. Bac. Ahr. tit. Rent, M. Co. Litt. 
 148 b. 9 Coke, 135 a.) 
 
 An extinguishment is brought about by a union of the right to 
 the land and to the rent issuing out of it, in the same person. This 
 may be effected by a release of the reversion to the tenant, or by the 
 surrender by the latter to the landlord. (Nellis v. Lathrop, 22 Wend. 
 121. Decker v. Livingston, 15 John. 479. Shepard v. Merrill, 
 2 John. Ch. 276. Springstein v. Schermerhorn, 12 John. 357.) 
 
 Kent is not extinguished by a bond being given for it. {Cornell 
 V. Lamb, 20 Joh7i. 407.) Nor by the recovery of a judgment for it, 
 until the later be satisfied. {Chipman' v. Martin, 13 John. 240. 
 Drake v. Mitchell, 3 East, 258.) Neither a bond or a judgment is 
 of a higher nature than the rent, and the latter is therefore not merged. 
 
 We mentioned in the former part of this chapter, that we should, 
 in conclusion, add some observations on such easements as bear an 
 analogy to the topics already discussed. The right to the enjoy- 
 ment of light, air and -water, gives occasion to the application of 
 some of the most interesting and important principles of law. These 
 elements are common to all ; and though they do not admit of an 
 exclusive appropriation in the broadest sense of the term, they are 
 nevertheless so essential to the enjoyment of real estate, that the in- 
 dividual owner may have such a property in them, that the law will 
 protect from infringement. 
 
 The right, with respect to the light, is said to depend on the 
 maxim, ctijus est solum, ejus est usque ad caelum et ad inferos. 
 {Crabbe's Law of Real Property, § 445. Mahan v. Broivn, 13 
 Wend. 263.) A man who erects a house on his own land is enti- 
 tled to all the light and air that will come to him, from above. 
 That which comes to him in a lateral direction, and which he se- 
 cures through his windows, is an easement. It may pass over the 
 land of others, who possess the same right to it, and who, by the 
 erection of fences or buildings, may obstruct its passage. The ques- 
 tion, therefore, often arises, under what limitation the right can be 
 enjoyed. 
 
 In England, it is said that an action may be maintained for the 
 obstruction of the plaintiffs ancient lights, and that evidence of an
 
 RIGHT TO AIR AND LIGHT. 219 
 
 uninterrupted use and enjoyment of the light for the space of twenty- 
 years will raise a iwhna faciQ presumption of a legal title to enjoy it. 
 (2 Starkie's Ev. 538, 938. Mahan v. Brown, 13 Wend. 263.) But 
 in a later case, in this state, this doctrine seems to have been quali- 
 fied. The presumption of a right by grant or otherwise, as applied 
 to the windows of one person overlooking the land of another, so that 
 by an uninterrupted enjoyment for twenty years the owner acquires 
 a right of action against his neighbor for stopping the lights by the 
 erection of a building upon his own land, it was said, forms no part 
 of our law. Such a law. the court thought, was not adapted to the 
 circumstances or existing state of things in this country. The ques- 
 tion of a presumptive right by grant or otherwise, although it may 
 have been enjoyed for twenty years or more, without interruption, 
 must be submitted to the jury ; who should be told that they may 
 presume a grant, if there be no evidence to repel the presumption. 
 The court also held, that to authorize the presumption of a grant, 
 the enjoyment of the easement must not only have been uninterrupt- 
 ed for the period of twenty years, but it nmst have been adverse — 
 not by leave or favor — but under a claim or assertion of right ; and 
 it must be with the knowledge and acquiescence of the owner, 
 (Parker v. Foote, 19 Wend. 309. Banks v. American Tract Soci- 
 ety, 4 Sand. Ch. R. 464.) 
 
 As user affords evidence of a right, so non-user is evidence of a 
 relinquishment. 
 
 If a person builds on his own land, and afterwards sells a lot ad- 
 joining his house, without restriction, to a third person, the latter 
 may build so near as to obstruct the windows of his grantor. The 
 grantor should have protected his own premises by a condition in 
 his grant of the adjoining lot, or by a covenant not to obstruct his 
 lights. Neither light, air or prospect can be the subject of a direct 
 grant. They can only be secured by covenant, agreement or condi- 
 tion. {Parker v. Foote, supra, 316.) 
 
 If a man so constructs his house as to overlook the privacy of his 
 neighbor's grounds, the latter has no remedy but to erect a wall or 
 a fence upon his own land, so as to prevent the consequences. 
 (2 Starkie's Ev, 938. Mahan v Broivn, supra.) 
 
 The same principle is applicable to the enjoyment of pure air. 
 Hence the owner or occupier of a dwelling house has a right of ac- 
 tion against one who shall, on his own land or otherwise, so poison 
 the air as to render it unwholesome. What erections will amount
 
 220 RIGHT TO RUNNING WATER. 
 
 to a nuisance depends, in some manner, upon circumstances. In 
 one case, the erection of a tallow furnace so near an innkeeper that 
 his guests left him, in consequence of the stench, {Mosley v. Prag- 
 nell, Cro. Car. 510,) was held to be a nuisance. In another case 
 the erection of a hog house and putting hogs therein, so that by 
 reason of the fetid smells the plaintiff and his family could not re- 
 main in his house, was in like manner held to be a nuisance. [Al- 
 dred's case, 9 Co. 58.) In both the above cases an action was held 
 to lie. {See note to Aldred's case, supra, loliere most of the cases 
 are collected atid examined.) 
 
 The right to running water on a man's own land is as perfect as 
 his right to the land itself. No one has a right to divert it from its 
 natural course without the consent of the owner of the land, or to 
 corrupt it so as to render it unfit for use. {Gardner v. Triistees of 
 Neivhurgh, 2 John. 162. Carhart v. The Auburn Gas Light Co. 
 22 Barb. 297.) Nor will he be permitted maliciousbj to diminish the 
 water which penetrates through the ground into his neighbor's well ; 
 though he may dig a well on his own land, if it be necessary, and is 
 not responsible to his neighbor, if thereby the quantity of water 
 which would otherwise penetrate into his neighbor's well, be lessened. 
 (G)-ee7ileaf y. Frajicis, 18 Pick 117. Beach v. Driscoll, 20 Conn. 
 Rep. 542.) But a man has a right to the free and absolute use of 
 his own land, so long as he does not directly invade that of his 
 neighbor. {Ellis v. Duncan, 21 Barb. 230.) 
 
 The riparian owners, prima facie, own to the thread of the stream, 
 if it be above the ebb and flow of the tide ; and if it be in fact nav- 
 igable, are entitled to the enjoyment of it subject to the public use 
 of it as a highway, and to compensation for the diversion of its wa- 
 ters to public use to the injury of their mills. {The People v. The 
 Canal Appraisers, 17 Wend. 572, reversing previous cases, 13 id. 
 355. Walton v. Tefft, 14 id. 216.) 
 
 Hence if a grant of land be made as cdong the river, or by the 
 river, or up)on the margin of the river, or to the banks of the river, 
 or along a highivay, or vj^^n a highivay, or to a highway, such 
 grant carries the premises in the one case to the center of the river, 
 and in the other to the center of the highway. ( Walton v. Tefft, 
 supra. Per Waliuorth, in Canal Com. v. TJie People, 5 Wend. 443. 
 Same v. Eempshall, 26 id. 404. Child v. Starr, 4 Hill, 369, 373.
 
 HYDRAULIC WORKS. 221 
 
 Varich v. Smith, 9 Paige, 547. Fx parte Jenings, 6 Cowen, 518. 
 5 Co. Bep. 106.) 
 
 It is competent for the parties, by the terms of the grant, in the 
 one case to exclude the river, and in the other to exclude the high- 
 way; but unless they are in terms, or by necessary implication, ex- 
 cluded, the grantee will take to the center of the stream in the one 
 case, and to the center of the highway in the other. (Xwce v. Car- 
 ley, 24 Wend. 451. Child v. Starr, 4 Hill, 369. S. C. 5 Denio, 
 599. Jackson v. Hathaway, 15 John. 454. Dovaston v. Payne, 
 2 Smith's Lead. Cas. by Hare & Wallace, 192, 193. Angell on 
 Water Courses, 21 ^o 41.) 
 
 When hydraulic works are erected on opposite banks of a stream, 
 if there is not sufficient water for a full supply of all, the owner on 
 each side is entitled to an equal share of the water, or so much of it 
 as is necessary for his mills, if less than a moiety is sufficient. If 
 the owner of the mills, on either side, has been in the quiet enjoy- 
 ment of the water privilege, and the other attempts to deprive him 
 of it, and thus destroy his mills, a preliminary injunction is the 
 proper remedy. {Arthur v. Case, 1 Paige, 447 ; affirmed. Case v. 
 Haight, 3 Wend. 632.) 
 
 The owner of the soil on a public river has a right to erect a mill 
 on his land. But he must construct his dam and use the water so 
 as not to injure his neighbor below, in the enjoyment of the same 
 water, according to its natural course ; and if he so diverts the wa- 
 ter as to injure the mill of another, he is liable to damages to the 
 amount of the injury sustained. (Sackrider v. Beers, 10 John. 241 
 Van Bergen v. Van Bergen, 2 JoJm. Ch. 272.) 
 
 The erection of a dam upon a stream does not confer an exclusive 
 rio-ht to the use of the water, by an occupancy short of the time 
 sufficient to raise the presumption of a grant. A person may there- 
 fore lawfully erect a mill and dam on the stream above, though the 
 water be thereby in part diverted. (Piatt v. Johnson, 15 John. 213.) 
 In case there be several owners of mill seats on a stream, each 
 havino- a common right to its use, neither can maintain an action 
 ao-ainst the other for the reasonable use of it. But if the one above 
 stops the natural flow of the water, so as to destroy the mill below 
 or render it useless ; if he shuts down his gate, and detains the wa- 
 ter for an unreasonable time, or raises his gate and lets out the wa- 
 ter in such a way as to prevent the owner of the mill below from 
 usino- it, or deprives him of a reasonable and fair participation in
 
 222 DIVERSION OF WATER COURSES. 
 
 the benefit of the stream, he is liable to damages to the extent of the 
 loss. {Merritt v. Brinkerhoff, 17 John. 306.) The principle is 
 that each must so use his own right as not unnecessarily to impair 
 the right of his neighbor. 
 
 The exclusive enjoyment of water in a particular way for twenty 
 years, without interruption, is sufficient to raise a presumption of 
 title ; and it is not necessary that the water should have been used 
 in the same precise manner during the twenty years, or that it 
 should have been used to propel the same machinery. {Belknap v. 
 Trimble, 3 Paige, 577. Sonith v. Adams, 6 id. 435. Baldwin v. 
 Calkins, 10 Wend. 167.) 
 
 In case there be a spring of water on a man's land Avhich flows 
 naturally on to the land of another, the owner of the land where the 
 spring is may use as much as is necessary for his family and cattle, 
 but he cannot appropriate the whole of it to his own use for pur- 
 poses of irrigation, if he thereby deprives his neighbor of a reasona- 
 ble use of it. {Arnold v. Foot, 12 Wend. 330.) 
 
 The same principle with respect to a diversion of water courses 
 applies to subterraneous streams, as well as to such as flow upon the 
 surface. {Smith v. Adams, 6 Paige, 435.) The fact with respect 
 to the diversion of a subterranean stream may be more difficult of 
 proof, but when the fact is ascertained the same legal principles 
 apply. {Id.) 
 
 All the property that a man can acquire in flowing water is a 
 right to its use ; the right is no greater though it passes wholly 
 through his land. He may have a certain right of property in it ; 
 but the water itself is not his property. He has a right to its nat- 
 ural flow, and to use it for his cattle, or his household, or upon his 
 water wheels. {Marshall v. Peters, 12 How. Pr. Bep. 222.) Land, 
 says Sir Edward Coke, comprehends any soil, ground or earth, and 
 all buildings upon it, and the water passing over it. An action is 
 never brought to recover water, by that name, but is brought for so 
 much land covered with water. (2 Bl. Com. 18.) The mode of 
 granting the water of a running stream, is to convey so much land 
 covered with water, and not the grant of the stream itself {Nos- 
 trand v. Dunham, 21 Barb, 478. Jackson v. Halstead, 5 Coiven^ 
 216. Co. Litt. 4 a.)
 
 DEDICATION. 223 
 
 The doctrine of dedication extends to streets, highways, public 
 squares, burying grounds, and perhaps to other easements of a public 
 concern. An examination of its principles frequently becomes neces- 
 sary in the investigation of titles to land. Whether, though the fee 
 be in the grantor, the public may not have acquired an easement in 
 the same premises, is often an interesting and difficult question. 
 
 A dedication of land to public or pious uses is a solemn appropri- 
 ation of it by the owner to such uses. It is a devoting of property 
 for some proper object in such a manner as to conclude the owner. 
 {Per Beardsleij, J. 6 Hill, 411.) It may be either by an express 
 grant to a person, or corporation capable of taking in trust for the 
 public, or it may be implied from the acts of the owner. 
 
 In the case of Stuyvesant v. The Mayor &c. of Neio York, (11 
 Paige, 414,) the dedication was by an actual grant by the owner 
 of the land to the corporation of the city, of certain lands for the 
 purposes of a public square, upon condition that such lands should 
 for ever be used and appropriated for the purpose of a public square 
 exclusively, and upon the further condition that the corporation 
 should immediately proceed to regulate the lands granted, and should 
 inclose and improve the same in the manner specified in the con- 
 veyance thereof; and the corporation joined in such deed by execut- 
 ing it under its corporate seal, and covenanted to stand seised of the 
 premises for that purpose exclusively, and that such corporation 
 should abide by, observe and perform the conditions imposed upon 
 it by the acceptance of such agreement and conveyance. This was 
 held to be a valid dedication, obligatory upon the parties, and that 
 the corporation was bound to perform the conditions specified in 
 the conveyance. 
 
 The grant, in the foregoing case, having been upon condition that 
 the grantees would proceed immediately to regulate the lands grant- 
 ed, and to inclose and improve them within a reasonable time, the 
 grantor, it was held, had the right, at his election, either to waive 
 the forfeiture and file his bill in equity to compel a specific perform- 
 ance of the covenants and to compensate him for the damages sus- 
 tained by the neglect, or to insist upon the forfeiture, and repossess 
 himself of the land, for a breach of the condition. 
 
 But a dedication in cases of this kind is more frequently implied, 
 than by an express grant to the public or a corporation, in trust. 
 It usually occurs where the owners of land in a city or village, with
 
 224 DEDICATION. 
 
 a view to their own as well as the public advantage, lay it out into 
 lots with streets and avenues intersecting the same, and sell the lots 
 with reference to such streets and avenues. In cases of this kind 
 the original grantor cannot afterwards deprive his grantee of the 
 benefit of having such streets or avenues kept open. The same prin- 
 ciple is applicable to a similar dedication of urban lands to be used 
 as an open square or public walk. {The Trustee of Watertoion v. 
 Cowen, 4 Paige, 510.) 
 
 The subject was very fully discussed by the supreme court of the 
 United States in the case of the City of Cincinnati v. The Lessee 
 of White, (6 Peters, 431.) In that case the equitable owners of a 
 tract of land, before they had perfected their title by a patent from 
 the government, laid out a part of it into a town which now consti- 
 tutes the site of the city of Cincinnati. Upon the plot of the town 
 they laid out and designated a part of the land as a public common, 
 or open square, for the use of the inhabitants of the town. This was 
 held to be a sufficient dedication of the land to the public, to vest 
 the title to this common or square in the city of Cincinnati ; although 
 the city was not incorporated until many years afterwards. 
 
 The surveying of land into building lots, by the owner, and selling 
 them or any of them for that purpose, with reference to, and bounding 
 them on streets therein designated, amounts to a dedication of the 
 streets, and on their being opened by the public authorities he is en- 
 titled, as owner of the fee, to only a nominal compensation. The 
 purchaser is presumed to pay an enhanced price for the anticipated 
 easement, and, therefore, the original owner has no equitable claim 
 to a remuneration from the public, {flatter of Leiois Street, 
 2 Wend. 4:72, overruling 4 Cowen, 452. Livingston v. 3Ia7jor of 
 New York, 8 Wend. 55. Wyman v. Same, 11 id. 486. Matter of 
 Freeman Street, 17 id. 661. Matter of Thirty-Second Street, 19 id. 
 128. Matter of Tiventy- Ninth Street, 1 Hill, 189. Matter of Thir- 
 ty-Ninth Street, Id. 191.) 
 
 And this is so whether the owner bounds his grantees on the cen- 
 ter of the street, or on the side of it. (Id.) If the grant be bounded 
 on the center of the street, such act alone, without an user by the 
 public, is deemed a dedication of the land over which the street 
 passes to the public use, so far forth that on the opening of the 
 street, the purchaser is entitled only to a nominal sum as compensa- 
 tion for the fee. [flatter of Thirty-Second Street, su;pra.)
 
 DEDICATION. 225 
 
 When a street is thus dedicated to the public, but before it has 
 been accepted or recognized by the proper public officers as a public 
 street, it has been doubted whether the grantee of a lot bounded on 
 such a street may be considered as taking to the center of the street, 
 so as to enable him to maintain an action against another for dig- 
 ging the street opposite to his lot and removing the earth therefrom, 
 or whether he has merely an easement or right of way in the street. 
 ( Willougliby v. Jenks, 20 Wend. 96.) It would seem, on principle, 
 that his title extends to the center of the street in such a case. 
 (2 Smith's Lead. Oas. note 180 to 188, lohere the subject is f idly 
 discussed and many of the cases are ably revieived.) Should the 
 grantee be limited in terms to the exterior line of the street, the fee 
 of the land in the street would remain in the original owner, sub- 
 ject to the easement of a way. In the absence of such express lim- 
 itation, the cases before referred to under this head, carry the grantee 
 to the center of the street. 
 
 After such dedication, if the title to the street remains in the 
 orisrinal grantor, he cannot use it in a manner inconsistent with the 
 dedication, and should he sell it to others, the purchaser would take 
 the fee subject to the dedication. ( Wyman v. Mayor of Neiu Yorh, 
 11 Wend. 486.) 
 
 But where lands are thus dedicated by the original owner to pub- 
 lic use as a street, such street does not become a public highway un- 
 til it is accepted as such by the public authorities. {The City of 
 Osiuego v. The Osivego Canal Property, 2 Seld. 257. Clements v. 
 The Village of West Troy, 16 Barb. 251 ; S. G. 10 Hoio. 199. 
 Bissell V. The Neio York Central Bail Boad Go. 26 Barb. 630.) 
 If, however, the street be opened and used uninterruptedly for a 
 period of twenty years or over, it affords evidence of acceptance, and 
 it becomes a public street, {Wiggins y. Talmadge, 11 Barb. 457. 
 Goidd V. Glass, 19 id. 179, 195. 10 How. 199.) A user of twenty 
 years or upwards is thus made equivalent to a laying out of the road 
 by public authority, or an acceptance by the proper officers. 
 
 The same principle of acquiring a right to a street or a way by 
 usage is extended to rivers. A usage for a period of twenty-five 
 years for rafting boards and timber, though the river be not naviga- 
 ble in the common law sense of the term, and the fee of its bed is 
 in the owners of the adjoining land, becomes a public highway, for 
 
 Will.— 15
 
 226 DEDrOATIOK 
 
 such purposes. The free use of the waters which can be made sub- 
 servient to commerce, has, by the general consent of mankind, been 
 considered as a thing of common right. Individuals who occupy 
 the adjoining banks may use the waters for their own emolument, 
 so far only as it can be done without any material interruption of 
 the public use. {Shata v. Craivford, 10 John. 236. The People v. 
 Piatt 17 id. 195, 212.) But the doctrine of dedication does not 
 extend to a right of landing and depositing manure &c. from a nav- 
 igable stream upon adjoining land. (Pearsall v. Post, 20 Wend. 
 Ill, affirmed, 22 id. 425.) Nor to a private stream which can 
 only be used for a short time in each year. {Munson v. Hunger- 
 ford, 6 Barh. 265.) 
 
 The dedication of property is not confined to streets, public 
 squares, and the like. It may be extended to pious and charitable 
 objects ; to churches, court houses, and other public buildings ; to 
 a spring of water for public use, and for a burying ground. {Mc- 
 Connell v. The Trustees of Lexington, 12 Wheat. 582. Beaty v. 
 Kurtz, 2 Peters, 5QQ. State v. Trask, 6 Vt. R. 351. Hunter v. 
 The Trustees of Sandy Hill, 6 Hill, 407. Potter v. Chapin, 6 
 Paige, 639.) 
 
 " The law which governs such cases is anomalous. Under it 
 rights are parted with and acquired in modes and by means unusual 
 and peculiar. Ordinarily some conveyance or written instrument is 
 required to transmit a right to real property ; but the law applica- 
 ble to dedications is different. A dedication may be made without 
 writing; by act in pais, as well as by deed. It is not at all necCvS- 
 sary that the owner should part with the title which he has ; for 
 dedication has respect to the possession and not the permanent es- 
 tate. Its effect is not to deprive a party of title to his land, but to 
 estop him, while the dedication continues in force, from asserting 
 that right of exclusive possession and enjoyment which the owner of 
 property ordinarily has. The principle upon which the estoppel 
 rests is, that it would be dishonest, immoral, or indecent, and in 
 some instances even sacrilegious, to restrain at pleasure property 
 which has been solemnly devoted to the use of the public, or in fur- 
 therance of some charitable or pious use. The law, therefore, will 
 not permit any one thus to break his own plighted faith ; to disap- 
 point honest expectations thus excited, and upon which reliance lias 
 been placed." (Per Beardsley, J. in Hunter v. Trustees of Sandy
 
 DEDICATION. 227 
 
 Hill, supra, 411, 412. Cincinnati v. Lessee of Wliite, 6 Peters, 
 431, 438.) 
 
 The statute of frauds (2 R. S. 134, § 6,) does not make it neces- 
 sary that a dedication of lands for public or pious uses should be by 
 deed, or by an instrument in writing. It expressly excepts from 
 that requirement such transfers of an interest in land as are made 
 hy operation of lata.
 
 PART 11. 
 
 OF EQUITABLE ESTATES. 
 
 IN this part of our treatise we propose to pass under review the 
 law with respect to uses, trusts, powers, marriage settlements 
 and merger. 
 
 It embraces that branch of the law of real property, which was 
 originally administered almost exclusively by courts of equity, and 
 which, at the present day, requires the frequent interposition of 
 equity to afford relief As the doctrine of uses, trusts and powers, 
 underwent radical changes in this state, at the revision of the stat- 
 utes in 1830, and as these statutes were intended to supersede the 
 former practice and laws of the state, it is deemed advisable that we 
 should retain the same divisions of the subject. 
 
 Marriage settlements owe their origin, in a great measure, to the 
 doctrine of uses and trusts, and derive their efi&cacy from the same 
 source. They may, therefore, appropriately be treated under this 
 head. And the law of merger has such a connection with both legal 
 and equitable estates, that it may with great propriety be discussed 
 in this place. 
 
 We shall treat of uses and trusts together in the first chapter, and 
 the other subjects of this part, in successive chapters. 
 
 CHAPTER I. 
 
 OF USES AND TRUSTS. 
 
 It is impossible fully to comprehend the provisions of the revised 
 statutes on the subject of uses and trusts, without some knowledge 
 of the system which was previously in force, and which the new 
 
 (228.)
 
 USES AND TRUSTS. 229 
 
 system was intended to supplant. The enactment is, that nses and 
 trusts, except as authorized and modified by the same statute, are 
 abolished ; and every estate and interest in lands shall be deemed a 
 legal right, cognizable as such in the courts of law, except when oth- 
 erwise provided in the same chapter. (1 B. S. T21, § 45.) 
 
 It has sometimes been argued that questions growing out of the 
 law of trusts should be treated as if the legislature had, m the first 
 instance, annulled all trusts, and then proceeded to a new creation. 
 This is an erroneous view of the subject. It is more correct, as was 
 observed by Gardiner, J. in Leggett v. Perkins, (2 Comst. 307,) 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. _ 
 
 At common law, an use was neither jws in re, nor ad rew; that 
 is, neither an estate nor a demand. It was a trust reposed by any 
 person in the terretenant, that he may suffer him to take the profits, 
 and that he will perform his intent. It was, in short, an owner- 
 ship in trust. 
 
 Although the cestui que use was generally in possession of the 
 lands, yet he was considered by the courts of law as tenant at suf- 
 ferance. When the court of chancery first assumed a jurisdiction in 
 cases of uses, it went no further than to compel payment of the 
 rents and profits to the cestui que use. In process of time it went 
 a step further ; and established the rule that the cestui que use had 
 a right to call on the feoffees to uses for a conveyance of the legal 
 estate to himself, or to any other person whom he chose to appoint ; 
 and also to defend the title to the land. The legal estate was vested 
 in the feoffee to uses, who performed the feudal services ; who was 
 deemed the tenant of the fee, which was liable to his incumbrance. 
 
 The right in conscience and equity to the rents and profits of the 
 land, was'not issuing out of the land, but was collateral thereto, and 
 only annexed in privity to a particular estate in the land. It was 
 created by a confidence in the original feoffee, and continued to be 
 annexed to the same estate, as long as that confidence subsisted and 
 the estate of the feoffee remained unaltered. So that to the execu- 
 tion of the use two things were necessary, namely, confidence in the 
 person Vi-^di privity of estate. {Crime's Dig. tit. 11, Use, ch. 1.) 
 
 All private persons who were capable of taking lands by feoff- 
 ment might be seised to a use, and were compellable in chancery to
 
 230 USES AND TRUSTS. 
 
 execute it. All corporeal hereditaments and such incorporeal here- 
 ditaments as were in esse, as rents and the like, might be conveyed 
 to a use. But it could not, like a feoffment, be created without a 
 sufficient consideration. It was not an object of tenure. It was 
 not forfeitable for the treason of the cestui que use; nor extendible 
 for his debts. It was neither subject to dower or curtesy. It might 
 be transferred by one to another by any species of deed or writing. 
 A use might be declared to a person who was not a party to the 
 deed by which it was raised, contrary to the rules of the common 
 law, which allowed no one to take under a deed unless he was a party 
 to it. The cestui que use in possession could alien the lands, and 
 none of the technical words required in other conveyances were in- 
 dispensable. He could create a fee simple without the word heirs. 
 It could be created to take effect in futuro. A power of revocation 
 of the use might be annexed to the instrument by which it was cre- 
 ated. It might be so limited as to change from one person to an- 
 other, upon the happening of a future event. It was devisable and 
 descendible in the same manner as legal estates. {Cruise's Dig. su- 
 jpra. Crabbe's Law of Real Proj^ertij, 1065 et seq.) 
 
 The inconvenience which was found to arise from uses, after other 
 ineffectual efforts to remove them, led to the enactment of the 27th 
 Hen. 8, ch. 10, commonly called the statute of uses, the object of 
 which was entirely to abolish uses by destroying the estate of the 
 feoffees to uses, and transferring it from them to the cestui que use, 
 whereby the use would be turned into a legal estate. The conse- 
 quence of which would be the cestui que iise would become the com- 
 plete owner of the estate as well in law as in equity. This statute, 
 frequently spoken of as the statute for transferring uses into pos- 
 session, was re-enacted in this state at an early period, and continued 
 in force until 1830. {Act of Feb. 20, 1787, 1 R. L. 72.) 
 
 There were three things necessary to the execution of a use under 
 the statute : 1. A person seised to the use of some other person ; 
 2. A cestui que use in esse; and 3. A use in esse in possession, re- 
 mainder or reversion. {Ghudleigh's case, 1 Co. 126 a, and notes.) 
 
 The object of the legislature was entirely defeated by the narrow 
 construction of the statute by the common law judges. The statute 
 declared in substance that whenever any person is seised to the use 
 of another, the person so entitled to the use, should also be entitled 
 to the possession and legal estate. The judges decided according to 
 *he letter, overlooking the spirit of the law, and held that where
 
 USES AND TRUSTS. 231 
 
 successive uses are contained in a conveyance, it is the first only, 
 which in technical language is executed by the statute. Thus a 
 grant to A. to the use of B. to the use of C. was held to vest the 
 legal estate by force of the statute in B., while C. retained the ben- 
 eficial ownership, in the same manner as if the statute had never 
 been passed. In such cases, as was said by the revisers in their note 
 to the statute which they proposed, the whole efiect of the law was 
 to change, not the estate but the trustee. Though the statute, un- 
 der the construction given to it, did not accomplish all that was de- 
 sired, it effected important and durable consequences in the law of 
 real property. The statute did not abolish existing uses, nor prohibit 
 the conveyance to uses in future. It only declared that both exist- 
 ing and future uses, as they arose, should become legal estates, and 
 the effects were, among other things, to introduce new forms of con- 
 veyances, by which the title and possession of lands were transferred 
 without livery of seisin, which at common law was indispensable, and 
 new modifications of property, which the increasing wants of society 
 demanded, but which the genius of the feudal system forbade. [See 
 Notes of Revisers, 3 R. S. 582, 2d eel) 
 
 The construction given by the courts of the common law to the 
 statute of uses gave rise to the whole doctrine of trusts. The second 
 use, which the courts held was not executed by the statute, was 
 treated by courts of equity as a trust, and enforced by them as such. 
 A trust, therefore, 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 courts of equity which were formerly applied 
 to uses. (Jackson v. Fleet, 14 Wend. 180, jjer Nelson, J. Fisher 
 V. Fields, 10 JoJm. 495-506.) 
 
 It is needless to go into an examination of the doctrine of uses 
 under the act of Henry 8, re-enacted here in 1787, any further than 
 will be necessary to explain the existing state of the law. It is sup- 
 posed that the legislature, in 1830, intended to accomplish what the 
 British parliament failed to do in the reign of Henry 8, namely, to 
 execute the last use ; or in other words, they intended the entire 
 abolition of uses, while they retained and improved, by new provis- 
 ions, all the benefits which ever flowed from the system ; such, for 
 example, as relate to the simplicity of the conveyances to which the 
 doctrine of uses gave rise, and the better mode of alienation of prop- 
 erty than formerly prevailed.
 
 232 USES AND TRUSTS. 
 
 The legislature retained trusts in a modified form, with various 
 changes which it will be necessary to notice. 
 
 While the statute, already referred to, abolished uses and trusts, 
 except as authorized and modified by it, it very properly declared 
 that every estate then held as an use, executed under any former 
 statute of the state, should be confirmed as a legal estate. (1 R. S. 
 15, §46.) 
 
 By the 47th section it is enacted that every person who, by virtue 
 of any grant, assignment or devise, now is or hereafter shall be enti- 
 tled to the actual possession of lands, and the receipt of the rents 
 and profits thereof, in law or in equity, shall be deemed to have a 
 legal estate therein, of the same quality and duration, and subject to 
 the same conditions as his beneficial interest. Although a subse- 
 quent section (§ 49) requires that every disposition of lands, whether 
 by deed or devise, thereafter made, shall be directly to the person in 
 whom the right to the possession and profits shall be intended to be 
 invested, and not to any other to the use of or in trust for such per- 
 son ; and if made to one or more persons to the use of, or in trust 
 for another, no estate or interest, legal or equitable, shall vest in the 
 trustee ; yet it has been held by the court of appeals, that in such a 
 case, where the conveyance is made in terms to a trustee, who at the 
 time of the conveyance, executed to the grantor a mortgage of the 
 premises conveyed, to secure a part of the purchase money, that the 
 person to whose use the conveyance was made took the legal and 
 equitable title subject to the lien of the mortgage. The deed and 
 mortgage are, in such a case, to be construed together, as though 
 both were incorporated in the same instrument. {Raivson v. Lamp- 
 man^ 1 Selden, 452.) 
 
 The provisions of the revised statutes transmuting certain trusts 
 into legal estates in the beneficiaries, as is done by § 47 above, ap- 
 ply only to express formal trusts, and have no application to con- 
 structive trusts, or such as are not expressly declared to be within 
 the statute of frauds. The latter fall within the class of trusts of 
 which courts of equity had the exclusive cognizance. (Johnson v. 
 Fleet, 14 Wend. 181. 1 Mad. Ch. Pr. 446.) Where a party is con- 
 verted into a trustee for the purpose of the remedy, as in the case 
 of a purchaser of the trust property with notice, he is made liable on 
 the ground of fraud, and can be reached only by an equitable action. 
 
 In all cases of mere passive trusts the revised statutes have vested 
 the legal estate in the lands in the person or persons entitled to the
 
 TRUSTS. 233 
 
 actual possession and to the whole beneficial interest in the lands 
 under the trust. That was the obvious design of the 47th section, 
 just referred to. {Cuslmey v, Henry, 4 Faige, 352.) 
 
 This is the same, whether the attempt to create the trust be by 
 will or by grant. In Knight v. Weatherwax, (7 Paige, 182,) the 
 testatrix devised certain lands to her daughters and their respective 
 heirs, subject to the payment of certain sums of money for debts and 
 legacies ; and further directed that the lands should remain in the 
 hands of her eiecutors for the benefit of her daughters, during their 
 respective lives, and then the remainder to be given up to their 
 heirs ; and made the three daughters her residuary devisees and leg- 
 atees ; it was held that the executors took no estate in the premises 
 under the will ; that estates for life were vested immediately in the 
 three daughters, as tenants in common, subject to the payment of 
 the debts and legacies, with a remainder in fee to such persons as 
 should be the heirs of the several daughters at the time of their re- 
 spective deaths. In this case, by the law as it stood before the re- 
 vised statutes, i^e daughters, according to the rule in Shelley's case, 
 would have taken an absolute estate in fee as tenants in common. 
 But under the existing law, since the abrogation of that rule by the 
 revised statutes, the limitation over of the remainders in fee, to the 
 heirs of the daughters, is valid and vests such remainders in those 
 who may be their heirs at the time of their respective deaths as 
 purchasers. (1 R. S. 325, § 28. Knight v. Weatherwax, supra, 
 page 185.) 
 
 In the case of Roxie v. Eoxie, (5 Paige, 187,) the testator had 
 devised his residuary estate to be equally divided among the children 
 of his two brothers and his sister, when they should severally become 
 of age ; the question was whether the children of the brothers and 
 sister in esse at the death of the testator, took immediate vested es- 
 tates in possession, as tenants in common, or whether they took 
 mere contingent interests by way of executory devise, in the residu- 
 ary estate ; depending upon the contingency of their arriving at the 
 age of twenty-one respectively ; and that in the mean tim« the legal 
 estate descended to the heir at law of the testator. The chancellor 
 held that the infant devisees took a vested estate, which, upon the 
 death of the devisee under age, would have descended to his own 
 children, or heirs at law, and not to the heirs of the testator. The 
 estate, he observed, was not given to them, if they arrive at the age 
 of twenty-one, but it was to be divided among them when they re-
 
 234 RESULTING TRUSTS. 
 
 spectively attain the age of twenty-one. He observed that where, 
 from the will itself, it is evident that the testator meant that the 
 heir at law, or any other person, should take the legal estate for the 
 benefit of the real devisee, the court would consider the estate as de- 
 vised in trust, although no formal words of devise to the trustee are 
 used. But when it is clear that a person in esse and capable of 
 taking the legal estate, at the time of making the will, was intended 
 to have the whole beneficial interest in the estate during his minor- 
 ity, as well as afterwards, and there are no words in the will indi- 
 cating an intention to give the legal estate in trust to another person 
 for his use, he could see no good reason for giving the legal estate to 
 the heir at law, as the trustee for the infant, instead of giving it to 
 the infant himself, to be taken care of in the mean time by his legal 
 guardian. The case was decided, in truth, upon the ground that by 
 the 47th section of the act the devisees took a legal estate in the 
 knd of the same quality and duration as their beneficial interest in 
 the property which the testator intended to give them by his will. 
 
 The sections of the statute we have been considering were not in- 
 tended to extend to trusts arising or resulting by implication of law, 
 nor to prevent or affect the creation of such express trusts as are 
 thereafter authorized and defined, and which we shall soon proceed 
 to examine. (1 B. S. 728, § 50.) 
 
 The doctrine of resulting trusts was well understood before the 
 revised statutes. It occurred when a person purchased land with 
 the money of another, and took the deed in his own name. In such 
 a case a trust resulted in favor of the party to whom the money be- 
 longed. The trust was allowed to be proved by parol, and the evi- 
 dence was admissible, not only against the face of the deed itself, 
 but in opposition to the answer of the trustee denying the trust. If 
 part only of the consideration was paid, the trust resulted pro tanto. 
 (Boyd V. 3IcLean, 1 John. Ch. 582. Botsford v. Burr, 2 id. 405. 
 Livingston v. Livingston, Id. 537. Mann v. Mann, 1 John. Ch. 
 23. Jackson v. Sternberg, 1 John. Cases, 153. Jackson v. Mots- 
 dorf, 11 John. 91. Same v. Mills, 13 id. 463. Same v. J/orse, 16 
 id. 197. Reid v. Fitch, 11 Barb. 399. Lounsbury v. Purdy, 16 
 id. 376.) The trust might be rebutted as well as proved by parol. 
 (Jackson v. Feller, 2 Wend. 465.) And the estate of the cestui que 
 trust could be sold under an execution issued upon a judgment 
 against him. {Foote v. Colvin, 3 John. 216.)
 
 RESULTING TRUSTS. 235 
 
 The revised statutes have, to a considerable extent, changed the 
 rule in these respects. The 51st section forbids that a use or trust 
 shall result in favor of the person by whom the payment shall be 
 made, in cases where a grant for a valuable consideration shall be 
 made to one person, and the consideration thereof shall be paid by 
 another : but it enacts that the title shall vest in the person named 
 as the alienee in such conveyance, subject only to the provisions — 
 1st. That such conveyance shall be presumed fraudulent as against the 
 creditors, at that time, of the person paying the consideration ; and 
 2d. When a fraudulent intent is not disproved, a trust shall result 
 in favor of such creditors, to the extent that may be necessary to 
 satisfy their just demands. (Id. § 52.) ' 3d. That the provisions of 
 the 51st section shall not extend to cases where the alienee named 
 in the conveyance, shall have taken the same as an absolute convey- 
 ance in his own name, without the consent or knowledge of the per- 
 son paying the consideration : or 4th. When such alienee, in viola- 
 tion of some trust, shall have purchased the lands so conveyed, with 
 money belonging to another person. (§ 53.) Nor 5th, shall it 
 be alleged or established to defeat or prejudice the title of a pur- 
 chaser, for a valuable consideration, and without notice of such 
 trust. (§ 54.) 
 
 The foregoing provisions have wrought out extensive changes in 
 the law, with respect to resulting trusts, some of which we will 
 mention. 
 
 1. The revised statutes have put an end to resulting trusts arising 
 from the voluntary payment of the purchase money by one person, 
 and taking the conveyance in the name of another, so far as relates 
 to any trust in favor of the former. [Bodine v. Edwaixls, 10 Paige, 
 504. Norton v. Stone, 8 id. 222.) 
 
 2. Under the present statute we have seen, that no use or trust 
 results in favor of him. who paid the money, and that the title vests 
 in the person named as alienee in the deed. But the conveyance is 
 presumed to be fraudulent as against the creditors, at that time, of 
 the person paying the consideration ; and if a fraudulent intent is 
 not disproved, a trust results in favor of those creditors, to the ex- 
 tent which may be necessary to satisfy their just demands. It has 
 been made a question whether the creditors can sell the land on 
 execution. The supreme court, in Wait y. Day, (4 Den. 439,) 
 thought they could so sell it. The chancellor, m Breiosterv. Poiver, 
 (10 Paige, 563,) thought otherwise. He was of opinion that the cred-
 
 236 EXPRESS TRUSTS. 
 
 itor could only reacli the interest of his debtor by bill in equity after 
 exhausting his remedy at law by issuing an execution, and upon a 
 return thereof unsatisfied obtaining an order to have the defendant's 
 interest sold and applied to the satisfaction of the judgment. He 
 thought the interest of the party was not bound by the docketing of 
 any judgment or decree. ' This doctrine of the chancellor was ap- 
 proved by the court of appeals, in Garfield v. Hatmaker, (15 N. Y. 
 Hep. 476,) and that of the supreme court, in Wait v. Do,y, so far as 
 it holds to the contrary, overruled. 
 
 3. The statute by its own terms, creates the trust only in favor 
 of those who were creditors at the time of paying the consideration 
 of such purchase, and it would seem that subequent creditors can- 
 not avail themselves of it. {Garfield v. Hatmaker, sujjra. Brewster 
 V. Power, 10 Paige, 562.) 
 
 The rule is otherwise with respect to fraudulent sales, not within 
 the 51st and 52d sections. In those cases, subsequent as well as ex- 
 isting creditors may impeach them for fraud. {Mead v. Gregg, 12 
 Barh. 653. Beade v, Livingston, 3 John Cli. 481.) 
 
 To constitute such a resulting trust as may be establishedby parol 
 proof, it is necessary that the consideration money for the purchase 
 should belong to the cestui que trust, or should be advanced as a 
 loan or gift to him. {Getman v. Getman, 1 Barh. Ch. 499.) Such 
 trust must arise, if at all, at the time of the conveyance. It cannot 
 arise from a subsequent application of the funds of a third person to 
 pay the purchase money, or to the improvement of the property. 
 (Eager s v. Murray, 3 Paige, 390.) Nor can it arise where there is an 
 express trust, declared by the parties, and evidenced by a written 
 declaration. {Leggett y. Duhois, 5 Paige, 114.) Nor in opposition 
 to the express terms of the conveyance ; as when, for example, it is 
 absolute and with warranty. {Squire v. Handy, 1 Paige, 494. 
 Eathhun v. Bathhun, 6 Barb. 98.) 
 
 While it was the policy of the revised statutes, as has been seen, 
 to vest the estate at once in the party beneficially interested, there 
 were obviously some cases of express trust, proper to be retained, 
 and which could not be made effectual unless the legal estate should 
 pass to the trustees. An assignment for the benefit of creditors 
 would in general be defeated, if the title were left in the debtor; 
 and a trust to secure the rents and profits of lands, and apply them 
 to the education of a minor, or the separate use of a married woman,
 
 EXPRESS TRUSTS. 237 
 
 or the support of persons laboring under disabilities, requires that 
 the legal estate should be vested in the trustees. The legislature, 
 therefore, accordingly provided that express trusts may be created, 
 1, to sell lands for the benefit of creditors ; 2, to sell, mortgage or 
 lease lands, for the benefit of legatees, or for the purpose of satisfy- 
 ing any charge thereon ; 3, to secure the rents and profits of lands, 
 and apply them to the use of any person during the life of such 
 person, or for any shorter term, subject to the rules prescribed by 
 law. (1 R. S. 728, § 55, as amended in 1830, ch. 320, § 10.) 
 
 As a certain class of express trusts was thus retained, it may be 
 proper to inquire by what words such trust may be raised. Since 
 a trust is now, what a use was formerly, it is believed that words 
 by which a use could formerly be raised, or a trust created, will be 
 sufficient for that purpose. The statute does not prescribe any par- 
 ticular form of words, or mode of expression ; and therefore leaves 
 us to gather the intent from the whole scope of the instrument. 
 In Fisher v. Fields, (10 John. 495,) it was said by the judge deliver- 
 ing the prevailing opinion of the court, that no particular form of. 
 words is necessary to create a trust, the intent only being regarded 
 by courts of equity. The words, "use," "trust," "confidence," 
 were used in the former statute, and therefore if lands were conveyed 
 to A. and his heirs, in trust for B. and his heirs, or in " confidence" 
 that he and they shall take the profits, the legal estate was vested 
 in B. by virtue of the statute. But other language, expressive of 
 this intent, was equally efficacious. The words "to permit a party 
 to take the rents and profits," &c. have been held to create a valid 
 trust. (Right v. Smith, 12 East, 455.) 
 
 A trust estate is defined by Mr. Cruise, (Dig. tit. 12, ch. 1,) to be 
 a right in equity to take the rents and profits of land, whereof the 
 legal estate is vested in some other person ; to compel the person 
 thus seised of the legal estate, who is called the trustee, to execute 
 such conveyances of the land as the person entitled to the profits, 
 who is called the cestui que trust, shall direct ; and to defend the 
 title to the land. This is sufficient as a definition of a trust under 
 ' the revised statutes, with the qualification that when the trust is for 
 the benefit of persons laboring under disability, as infants, lunatics, 
 &c. no direction can be made by the cestui que trust, except through 
 the medium of a proper tribunal, having equity powers.
 
 238 EXPRESS TRUSTS. 
 
 Although the revisers thought, in 1830, that the 55th section 
 ahove quoted comprised all the cases in which it would be necessary 
 that the title and possession should vest in the trustees, it was found, 
 at an early day, that there were numerous cases, where a literal 
 construction of the act would defeat the intention of parties, and 
 work out great injustice to the public. It became necessary, there- 
 fore, by several enactments, in different successive years, to enlarge 
 the power of trustees, and to extend the doctrine of trusts to cases 
 not provided for by the revised statutes. Thus, by the act of May, 
 1840, it was enacted that real and personal property might be granted 
 and conveyed to any incorporated college, or other literary incorpo- 
 rated institution in this state, to be held in trust for either of the 
 following purposes: 1. To establish and maintain an observatory; 
 2. To found and maintain professorships and scholarships ; 3. To 
 provide and keep in repair a place for the burial of the dead ; 4. Or 
 for any other specific purposes comprehended in the general objects 
 authorized by their respective charters. These trusts may be cre- 
 ated, subject to such conditions and visitations as may be prescribed 
 by the grantor or donor, and agreed to by said trustees, and all prop- 
 erty which shall hereafter be granted to any incorporated college, or 
 other literary incorporated institution, in trust for either of the afore- 
 said purposes, may be held by such college or institution, upon such 
 trusts, and subject to such conditions and visitations as may be pre- 
 scribed and agreed to as aforesaid. {Laws of 1840, ch. 318, § 1. 
 3 B. S. 16, 5th ed.) 
 
 By the 2d section of the same statute, real and personal property 
 may be granted to the corporation of any city or village of this state, 
 to be held in trust for any purpose of education, or the diffusion of 
 knowledge, or for the relief of distress, or for parks, gardens, or other 
 ornamental grounds, or grounds for the purpose of military parades 
 and exercise, or health, or recreation, within or near such incorpo- 
 rated city or village, upon such condition as may be prescribed by 
 the grantor or donor, and agreed to by such corporation ; and all 
 real estate so granted or conveyed to such corporation, may be held 
 by the same, subject to such conditions as may be prescribed and 
 agreed to as aforesaid. 
 
 By the 3d section of the same act, real and personal estate may 
 be granted to superintendents of common schools of any town, and 
 to trustees of any school district, in trust for the benefit of the com- 
 mon schools of such town, or for the benefit of the schools of such
 
 EXPRESS TRUSTS— RECEIVERS. 239 
 
 district. These trusts were, by the 4th section of the same statute, 
 allowed to continue for such time as may be necessary to accomplish 
 the purposes for which they may be created. {L. of 1840, ch. 318, 
 § 4. 3 i?. S. 16, 17, 5th ed.) 
 
 The foregoing statute applied only in terms to property " granted 
 and conveyed" thus leaving it doubtful whether the same trusts 
 could be upheld if created by a last will and testament. This doubt 
 was removed the following year, by the act of May 26, which declared 
 that devises and bequests of real and personal property in trust, for 
 any of the purposes for which such trusts are authorized under the 
 act authorizing certain trusts, passed May 14, 1840, the act above 
 mentioned, and to such trustees as are therein authorized, shall be 
 valid in like manner as if such property had been granted and con- 
 veyed according to the provisions of the aforesaid act. (3 B. S. 17, 
 5th ed.) 
 
 ■-By the act of 1846, the income arising from any real or personal 
 property granted or conveyed, decreed or bequeathed in trust to any 
 incorporated literary institution, for any of the purposes specified in 
 the act authorizing certain trusts, passed May 14, 1840, or for the 
 purpose of providing for the support of any teacher in a grammar 
 school, or institute, may be permitted to accumulate till the same 
 shall amount to a sum sufficient, in the opinion of the regents of the 
 university, to carry into effect either of the purposes aforesaid, de- 
 signated in said trust. (3 R. S. 17, 5th ed.) 
 
 In 1855, the act of 1840 was further amended so as to provide, in 
 case of the diminution of the trust fund, by making it good by the 
 accumulation of interest and income ; but in no case is the accumu- 
 lation allowed to increase the trust fund bej^ond the true amount or 
 value thereof, actually received by the trustees, to be estimated after 
 the deduction of all liens and incumbi-ances on such trust fund, and 
 of all expenses incurred or paid by the trustees in the collection or 
 obtaining the possession of the same. (3 B. S. 17, 5th ed.) 
 
 Some doubts had been entertained as to the power of a receiver 
 appointed by order of the court of chancery, and which power is now 
 vested in the supreme court. To remove these doubts, and to pro- 
 vide for a few other cases, it was enacted in 1845, that any receiver 
 appointed by virtue of an order or decree of the court of chancery, 
 might take and hold real estate, upon such trusts and for such pur- 
 poses as the court might direct, subject to its further order. (L. of 
 1845, ch. 112, p. 90.) Under this law, the chancellor held, in Wilson
 
 240 TRUSTS FOR RELIGIOUS SOCIETIES. 
 
 V. Wilson, (1 Barh. Ch. 592,) decided in 1846, that the act was not 
 broad enough to have the effect to transfer the title of real estate to 
 a receiver, by mere order of the court, without an actual conveyance 
 from the party to the suit in which the legal title was vested. But 
 the court of appeals, .in 1853, in the case of Porter v. Williams, (5 
 Selden, 142,) held, that after the adoption of the code of procedure, 
 the language of which is broader than the act of 1845, {supra,) the 
 title of the real as well as personal estate is vested in the receiver, 
 by virtue of the order of the court, and that no conveyance of the 
 debtor is necessary. The case of Chautauque Bank v. Bisley, (19 
 i^. Y. Bep. 370,) though decided in 1853, arose under the law prior 
 to the adoption of the code. 
 
 In addition to the foregoing, there are several acts upholding 
 trusts, to a certain extent, in favor of the United Society of the peo- 
 ple commonly called Shakers, and in favor of the religious society of 
 Friends, and in favor of the community of True Inspiration. {See 
 these acts collected, 3 B. S. 18, 19, 5th ed.) 
 
 It is believed that the revised statutes do not affect the trusts au- 
 thorized by the act to provide for the incorporation of religious soci- 
 eties originally passed in 1784, and revised in 1813. {See same and 
 the amendatory acts, 3 B. S. 292 et seq.) 
 
 Most of the religious denominations in this state availed them- 
 selves of the general law, or applied to the legislature for special acts 
 of incorporation ; and the greatest part of the estate, real and per- 
 sonal, belonging to the different religious societies in this state, is 
 held in trust by such corporations. The Roman Catholic denomi- 
 nation is an exception to this remark. They claimed to have the 
 property belonging to their churches vested in their bishops in trust 
 for the use of their religious societies. This claim was strongly 
 resisted in some quarters, and strenuously urged in others. The 
 controversy led to the act of 1855, commonly known as the church 
 property law. (i. of 1855, ch. 230. -3 B. S. 19, 5th ed.) 
 
 Although the revised statutes do not authorize trusts of that kind, 
 it was deemed expedient to forbid the creation of them in explicit 
 terms. It was, moreover, believed to be for the interest of the pub- 
 lic, that the tenure by which property was held by the various chris- 
 tian denominations for religious and pious uses, should be substan- 
 tially the same. The statute accordingly provides that no grant, 
 conveyance, devise or lease of real or personal estate, nor any trust
 
 EELIGIOUS CORPORATIONS. ' 241 
 
 of such property for the benefit of any person or his successor in any 
 ecclesiastical office, shall vest any estate or interest in such person 
 or his successor. And no such grant, conveyance, devise or lease, to 
 or for any such person, by the designation of any such office, shall 
 vest any estate or interest in any successor of such person. The stat- 
 ute does not recognize the validity of any such grant, conveyance, 
 devise or lease heretofore made. 
 
 The second section forbids the future grant, conveyance, devise or 
 lease of any real estate consecrated, dedicated or appropriated, or 
 intended to be consecrated, dedicated or appropriated, to the pur- 
 pose of religious worship for the use of any congregation or society, 
 unless the same be made to a corporation organized according to the 
 provisions of the laws of this state under the act entitled " An act 
 for the incorporation of religious societies," and the acts amending 
 the same, or under the act entitled " An act for the incorporation 
 of societies to establish free churches," passed April 18, 1854. Such 
 real estate, which has been heretofore granted, devised or demised to 
 any person or persons in any ecclesiastical ofiice or orders, by the 
 designation of such office or orders or other use, is declared to be 
 held in trust for the benefit of the congregation or society using the 
 Bame, and unless previously conveyed to a corporation as provided 
 in the act, shall, upon the death of the person in whom the legal 
 title is vested, vest in the religious corporation formed by the con- 
 gregation or religious society occupying or enjoying such real estate, 
 provided such corporation shall be formed under the laws of this 
 state, and be in existence at the time of the death of such person ; 
 (§ 33 ;) and in case no such corporation shall have been formed, it 
 shall vest in the people of this state in the same manner as if the 
 person holding the legal title had died intestate and without heirs 
 capable of inheriting such estate. Whenever the title so vests in 
 the people it is placed under the control of the commissioners of the 
 land office, who are required to convey it to a legal corporation, 
 when one shall be formed by the society for whose benefit the estate 
 was originally held. These enactments hold out strong induce- 
 ments to religious societies to cause themselves to be incorporated. 
 They are general in their nature ; not aimed at any one denomina- 
 tion in particular, but embracing all who fall within the purview 
 of the act. 
 
 Will.— 16
 
 242 TRUSTS CREATED BY DEVISE. 
 
 The revised statutes with respect to uses and trusts have nothing 
 to do with personal property. The whole scope and object of the 
 provisions have reference only to real estate, or its rents and profits. 
 {Kane v. 6^01^^, 24 Wend. 661, per Cotven, J.) It is this class of 
 trusts which alone falls within the scope of this work. Such trusts 
 can be created only by an instrument in writing, duly executed 
 within the statute of frauds. They may be created by a devise, or 
 by a grant or deed. It is otherwise with respect to trusts in per- 
 sonal estate. Although they may be created by a last will or testa- 
 ment or other writing, they may also arise by parol. A formal, or 
 even a written agreement, is not necessary to create a trust in money 
 or personal estate. Any declaration, however informal, evincing the 
 intention with sufficient clearness, will have that effect. The doc- 
 trine of equity is that admissions or declarations, by their own force, 
 impress the fund with a peculiar character, and hence they are re- 
 ceivable on the same grounds as a precise and formal agreement. 
 {Day V. Betts, 18 N. Y. B. 453, per Comstock, J.) 
 
 We have already seen by what words trusts may be created; and 
 it may here be added that they may be created by a last will and 
 testament, or by a deed or grant. 
 
 There is a distinction between a trust to sell created by deed, and 
 a similar trust created by devise. In the first case, it is essential 
 that the trustee should take the estate, or the trust itself m^j be 
 defeated; but in the latter, no such necessity exists. The instance 
 before given of an assignment for the benefit of creditors is a suf- 
 ficient illustration of the rule. But the reason does not hold good, 
 where land is devised to executors or other trustees, to be sold or 
 mortgaged, when the trustees are not also empowered to receive the 
 rents and profits. It is accordingly enacted that in such a case, no 
 estate is vested in the trustees. But the trust is valid as a power, 
 and the lands descend to the heirs, or pass to the devisees of the 
 testator, subject to the execution of the power. (1 B. S. 729, § 56.) 
 The reason for this change of the law has been said to be, to take 
 from the trustee the power to defeat the object of the trust, when 
 Buch object can be as well accomplished under a trust power. 
 {Broivn v. Wilber, 8 Wend. 661, per Nelson, J.) On the death 
 of the testator the power attaches immediately to the land, and no 
 subsequent disposition can be made, nor incumbrance created, by 
 which its execution can be defeated. (3 B. S. 585, 2d ed. Bev.
 
 TRUSTS TO SECURE RENTS. 243 
 
 notes.) There is a difference between a naked authorityj and a 
 power coupled with an interest. {Oo. Lit. 113, a.) 
 
 In the exigencies of society, there are numerous cases in which it 
 is necessary that a trust should be created for the education and sup- 
 port, or for either of them, in such a manner that the provision can- 
 not be anticipated, or aliened by the person beneficially interested. 
 This will happen when a provision is desired to be made for an im- 
 provident offspring, or for a ferae covert. Previous to the adoption 
 of the revised statutes a trustee might hold the mere naked legal es- 
 tate in real property, for a feme covert, while the whole equitable 
 interest and estate therein was in her, and subject to her control. 
 In relation, therefore, to such an estate, she was considered as a 
 feme sole, and could charge her equitable interest in the property 
 with any debt she might think proper to contract on the credit of 
 it, which was not inconsistent with the trust or with the nature of 
 her interest in the premises, and which was authorized by the instru- 
 ment or conveyance creating the trust. All such mere formal trusts 
 are now abolished ; and in the few trusts which are authorized by the 
 revised statutes, the whole estate, both legal and equitable, is vested 
 in the trustee. The person for whose benefit the trust is created takes 
 no estate or interest in the lands ; but may enforce the per- 
 formance of the trust in equity, (1 B. S. 729, §§ 57, 60. L'Amo- 
 reux V. Vail Rensselaer, 1 Barb. Ch. 37. Degraw v. Classon, 
 11 Baige, 140. Noyes v. Blakman, 2 Seld. 567. Calkins v. Long, 
 22 Barh. 97. Darling v. Rogers, 22 Wend. 483.) 
 
 The beneficent object of the party creating the trust is thus pre- 
 vented from being defeated by the improvidence or want of judg- 
 ment and discretion of the beneficiar)^ Still it is obvious that the 
 trust created to secure the rents and profits of lands where there is 
 no valid discretion for the accumulation, should, with respect to the 
 surplus of such rents and profits beyond the sum necessary for the 
 education and support of the person for whose benefit the trust was 
 created, be available to th^ creditors of such person, in the same 
 manner as other personal property, which cannot be reached by an 
 execution. Such provision is made of the surplus for the benefit of 
 creditors by the 57th section of the act. {Degraw v, Classon, supra.) 
 
 When a trust has thus been created for the receipt of the rents 
 and profits of lands, the person beneficially interested cannot assign, 
 or in any manner dispose of such interest ; but the rights and in- 
 terests of every person for whose benefit a trust for the payment of a
 
 244 NOTICE OF TRUST. 
 
 sum in gross is created, are assignable. (1 R. S.-730, § 63. Hallett 
 V. Thompson, 5 Paige, 586. Gott v. Cooh, 7 Paige, 521.) 
 
 When an express trust is created for any purpose not enumerated 
 in the preceding sections, it is provided by the 58th section, that no 
 estate shall vest in the trustees ; but the trust, if directing or au- 
 thorizing the performance of any act which may be lawfully per- 
 formed under a power, shall be valid as a power in trust, subject to 
 the provisions, in relation to such powers, contained in the article 
 on powers, of which we shall treat in the next chapter. Whenever 
 the trust is valid as a power, the lands to which the trust relates 
 remain in, or descend to the persons otherwise entitled, subject to 
 the execution of the trust as a power. (1 B. S. 721, §§ 58, 59. 
 Germond v. Jones, 2 Hill, 570, 573.) 
 
 There are various provisions in the chapter on trusts which are 
 merely declaratory of the then existing laws. Thus, the provision 
 that when the trust shall be expressed in the instrument creating 
 the estate, every sale, conveyance or other act of the trustees in con- 
 travention of the trust, shall be absolutely void, (1 B. S. 730, § Q5,) 
 is no more than the familiar principle, that a party who derives a 
 title under an instrument in writing, is chargeable with notice of its 
 contents ; and that no man can be protected as a lonafde pur- 
 chaser, who acts with a full knowledge of the infirmities of his gran- 
 tor's title. {Sanford v. Handy, 23 Wend. 267. North River Bank 
 V. Aymar, 3 Hill, 262 ; ap^^roved in Farm, and M. Bank of Kent 
 Co. V. Butchers and Drovers' Bank, 2 Smith, 143, notwithstanding 
 its reversal by the late court of errors.) Nor is the provision that 
 when the purposes for which an express trust was created, shall have 
 ceased, the estate of the trustees also shall cease, introductory of any 
 new rule. (1 R. S. 730, § 67.) It was part of the then existing 
 law. {Parks v. Parks, 9 Paige, 107. Legget v. Perkins, 2 Corn- 
 stock, 297.) 
 
 The same principle applies when the purchaser has notice of the 
 object of the trust, although it be not named in the instrument, as 
 when it is plainly expressed. The revised statutes provide that such 
 instrument shall be deemed absolute as against the subsequent cred- 
 itors of the trustees, not having notice of the trust, and as against 
 purchasers from such trustees, without notice and for a valuable 
 consideration. (1 R. S. 730, § 64.) This provision is only in affirm- 
 ance of the then existing law. {Fisher v. Fields, 10 John. 495. 
 Murray v. Ballou, 1 John. Ch. 566. Shepherd v. McEvers, 4 id. 136.)
 
 DEATH, OR RESIGNATIOiT OF TRUSTEE. 245 
 
 The object of this provision is to prevent seaxt trusts, which have 
 often been made use of as instruments of fraud. 
 
 It has always been esteemed to be unjust, when a party actually 
 and in good faith pays a sum of money to a trustee, which the trustee 
 as such is authorized to receive, that he should be held responsible 
 for the proper application of such money according to the trust. 
 The statute recognizes the hardship of such a rule, and it prevents 
 the right and title derived from such trustee, in consideration of 
 such payment, from being impeached or called in question, in con- 
 sequence of any misapj)lication by the trustee of the money so paid. 
 (1 B. S. 730, § 66.) 
 
 Formerly, upon the death of a sole surviving trustee of an express 
 trust, the trust estate descended to his heirs at law, or passed to his 
 personal representatives. These might be persons unknown to the 
 party by whom the trust was created, and entirely unfit for the office. 
 The trust property, moreover, was exposed to become mingled with 
 the individual estate of the trustee, or to pass into the hands of his 
 alienee. The rule itself has been abolished by the revised statutes. 
 (1 R. S. 730, § 68.) In such a case, on the death of the trustee, 
 leaving the trust unexecuted, it vests in the supreme court, with all 
 the powers and duties of the original trustee, who will require it to 
 be executed by some person appointed for that purpose, under the 
 direction of the court. {Blatter of Van Schoonhoven, 5 Paige, 559. 
 Haioley v. Ross, 7 id. 103. De Peyster v. Ferris, 11 id. 13.) 
 Equity permits no trust to fail for the want of a trustee. 
 
 With regard to active trusts, authorized by the 55th section of 
 the act, it has been held that the rule is the same as at common 
 law, that the trustee takes that quantity of interest only which the 
 purposes of the trust require, and the instrument creating it permits. 
 The legal estate is in the trustee so long as the execution of the trust 
 requires it, and no longt^r, and then it vests in the person beneficially 
 entitled. {Per Jewett, J. in Nicoll v. Walworth, 4 Denio, 388. 
 Doe V. Nichols, 1 Barn. & Cres. 336. Doe v Simpson, 5 East, 162.) 
 
 The common law made no provision for the resignation of a trustee, 
 without the consent of all the persons interested in the execution of 
 it. {In the matter of Stevenson, 3 Paige, 420, In the matter of 
 Van Wyck, 1 Barb. Ch. 565.) The revised statutes introduced the 
 provision-that the court of chancery, now the supreme court, may, upon 
 the petition of any trustee, discharge him from the trust, under such
 
 246 RESIGNATION OF TRUSTEE; 
 
 regulations as shall be established by the court for that purpose, and 
 upon such terms as the rights and iqterests of the persons interested 
 in the execution of the trust may require. (1 R. S. 730, § 69.) 
 
 The court had power, independently of the statute, to remove a 
 trustee for good cause shown, and to substitute another in his place. 
 {The Peo2)le v. Norton, 5 Selden, 176.) The revised statutes have 
 wisely regulated this power. They enact, that upon the petition or 
 bill of any person interested in the execution of a trust, and under 
 such regulations as for that purpose shall be established by the court, 
 the supreme court may remove any trustee who shall have violated 
 or threatened to violate his trust, or who shall be insolvent, or whose 
 insolvency shall be apprehended, or who for any other cause shall be 
 deemed an unsuitable person to execute the trust. The court is also 
 empowered, in such a case, to appoint a new trustee in the place of 
 the one resigned or removed ; and when, in consequence of such re- 
 signation or removal, there shall be no acting trustee, the court, in 
 its discretion, may appoint new trustees, or cause the trust to be ex- 
 ecuted by one of its own officers, under its direction. These provisions 
 extend only to cases of express trusts. (1 R. S. 730, 731, §§ 70-72.) 
 And it has been held also that they do not embrace the case of ex- 
 ecutors as such, so far as relates to their power to sue for and collect 
 debts due to the testator ; or as relates to their liability to creditors, 
 legatees and next of kin, on account of the personal estate which 
 may have come to their hands. But when the duties which belong 
 to them as executors have been discharged, and the division of the 
 estate made, it was said that the court of chancery, now the supreme 
 court, had the power to accept the resignation of one of such execu- 
 tors to whom a trust fund consisting of personal estate and the pro- 
 ceeds of the real estate, was devised, and to appoint another in his 
 place, as one of the trustees to hold its funds set apart for the lega- 
 tees of the testator. {In the matter of Van Wyck, supra.) 
 
 There have been some decisions of the courts on the subject of the 
 resignation of trustees. It has been held that a provision in a will 
 for the appointment of new trustees in case the number should be 
 reduced by death, removal from the United States, or otherwise, 
 does not authorize a trustee to resign. {Cruger v. Halliday, 11 
 Paige, 314.) It was even doubted in the last case, whether the 
 concurrence of every person interested in the execution of the trust, 
 would render the resignation valid, without an order or decree of 
 the court.
 
 LIMITATION OF ACTIONS. 247 
 
 A resignation will not be accepted without good cause shown for 
 it. If the trustees have accepted the trusts, and especially if they 
 have accepted a legacy given upon condition of their executing the 
 trust, the court will not discharge them, on their own motion, un- 
 less good and sufficient reasons be shown. {Craig v. Craig ^ 3 Barh. 
 Ch. 76.) 
 
 The acceptance of a resignation of a trustee, and his removal from 
 office by the court, depend on different principles. The first does 
 not imply any delinquency in the trustee ; but the last does. This 
 delinquency may have reference to the character or habits of the 
 trustee personally, or his conduct towards the estate. If he refuses 
 to execute a trust for the benefit of creditors, it is a good ground to 
 remove hinj on the application of the latter. {Matter of the Me- 
 chanics' Bank, 2 Barh. 446.) Or it would be proper to order him 
 to do the act imposed upon him by his duty. 
 
 A trust estate, it has been already said, will cease when the pur- 
 poses for which it was created have ceased. (1 E. S. 730, § 67. 
 Sterriher v. Dickinson, 9 Barh. 516.) 
 
 It will cease when the legal and equitable estates in land, being 
 co-extensive, unite in the same person. The former, in such a case, 
 is extinguished in the latter. {Nicholson v. Halsey, 1 John. Ch. 
 417.) There are some exceptions to the rule. Both the rule and 
 the exceptions more frequently are exemplified in the case of mort- 
 gage securities than in any other cases. If the situation of the es- 
 tate, or the interest of the mortgagee, requires that the lien of the 
 legal estate should be kept distinct, or if the mortgagee by reason 
 of some disability is unable to elect, or if there be a decisive inten- 
 tion of the mortgagee to keep them separate, a court of equity will 
 prevent a merger, and preserve the estates distinct. {James v. John- 
 son, 6 John. Ch. 417. James v. Mowry, 2 Coioen, 246. Eussell v. 
 Austin, 1 Paige, 192. Cleft v. White, 2 Kern. 519, reversing pre- 
 vious rejwrt, 15 Barh. 70.) 
 
 At common law there was no stated or fixed period as to the 
 bringing of actions. Limitations are created by, and derive their 
 authority from, the statute. {TJie People v. Gilhert, 18 John. 228. 
 Wilcox V. Fitch, 20 id. 472.) Until the revision of 1830, (2 B. S. 
 395, § 28,) the statute of limitations did not afiect the government, 
 nor was there any presumption of payment of demands due to the 
 people, in analogy to the statute. {Fairbanks v. Wood, 17 Wen- 
 dell, 329.)
 
 248 POWERS. 
 
 . Formerly there was no legal bar to an action for a legacy, yet the 
 courts in regard to very stale demands, adopted the provisions of the 
 statute, in the exercise of their discretion. (Arden v. Arden, 1 John. 
 CJi. 313.) No lapse of time is a bar to a direct trust, as between 
 trustee and cestui que trust. (Decouche v. Savetier, 3 John Ck. 
 190. Goodrich v. Pendleton, Id. 384, 390.) In Souzer v. De Mey- 
 er, (2 Paige, 577,) decided in 1831, Chancellor Wahvorth held that 
 the statute of limitations was a bar to a legacy, unless it was charged 
 on land. He put it upon the ground that courts of law have con- 
 current jurisdiction with courts of equity to recover such legacies. 
 When there is a concurrent remedy at law, the court thought that 
 time was as absolute a bar to discovery or relief in equity, as it 
 would be in a suit at law. {Humbert v. Trinity Church; 24 Wend. 
 587, affirmedl Paige, 195.) 
 
 Since the foregoing decisions were made, the court of chancery has 
 been abolished, and the jurisdiction in matters of equity vested in 
 the same tribunal which takes the cognizance of actions at law. 
 The reasons on which some of those cases are based now fail alto- 
 gether. In addition to this, the statute of limitations has under- 
 gone great changes. It is now incorporated in the code of proce- 
 dure. In an action for relief, on the ground of fraud, in cases which 
 heretofore were solely cognizable by the court of chancery, the ac- 
 tion must now be brought within six years, but the time is compu- 
 ted from the discovery, by the aggrieved party, of the facts consti- 
 tuting the fraud. {Code, § 91, sub. 6.) But there seems to be no 
 limitation in the code, to a direct trust, as between trustee and ces- 
 tui que trust; thus leaving that class of cases to the doctrine as it 
 existed at common law. 
 
 CHAPTER II. 
 
 OF POWEKS. 
 
 Powers are of two sorts : first, such as owe their origin to the stat- 
 ute of uses, and which are now defined and regulated by the revised 
 statutes ; and secondly, such as existed at common law, being sim- 
 ply powers of attorney, to convey lands in the name and for the ben- 
 efit of the owner. We shall treat of both these kinds of power, in 
 their order.
 
 POWERS UNDER THE STATUTE. 249 
 
 Section I. 
 Of Powers unde7' the Statute. 
 
 The revisers, in their note to the article on this subject, remark 
 that the law of powers is the most intricate labyrinth in our juris- 
 prudence. To make the doctrine familiar to the capacity of men of 
 common understanding, they began by proposing to abolish powers 
 as they existed at that time, and prior and after that time, (1830,) 
 they proposed that the creation, construction and execution of 
 powers should be governed by the provisions of that article. It was 
 so enacted by the legislature. (1 B. 8. 732, §§ 93, 94.) 
 
 By the rules of the common law a fee simple could not be limited 
 upon or after a fee, nor could a condition be reserved to a stranger. 
 These difficulties were overcome by means of the statute of uses. 
 We have seen that the law with respect to tbe first has been changed 
 in this state by the act relative to the creation and division of es- 
 tates. (1 B. S. 723, § 16.) Hence, independently of the doctrine 
 of powers, a contingent remainder in fee may be created on a prior 
 remainder in fee under certain restrictions. And with respect to 
 the second, and also with respect to a power of revocation, the doc- 
 trine of powers has afforded the requisite relief. 
 
 The statute of New York is a brief epitome of the law of powers, 
 as gathered from the systematic treatises on the subject, and the 
 adjudged cases. No two authors entirely agree as to the division 
 of the subject, nor in all their explanations. The legislature adopted 
 that line of discussion of the matter, which seemed the most simple 
 and congenial to our institutions. The simplicity of our modes of 
 conveyance, and our habits and ways of business, have hitherto af- 
 forded few occasions for the application of the rules we are called 
 upon to consider. . 
 
 Writers have not been entirely agreed in their definition of a pow- 
 er. It is defined by one to be an authority retained by, or conferred 
 upon a person to deal with property, so as to affect, more or less, 
 interests or estates therein possessed, either by himself or others, 
 albeit it be underived therefrom. ( Wharton's Conveyancing, p. 419.) 
 Mr. Crabbe, in his treatise on the law of real property, says : a pow- 
 er, in the legal sense of the word, is an authority which enables one
 
 250 DEFINITION OF A POWER. 
 
 person to do an act for another, and it is to be distinguished both 
 from a trust and an interest. ■ Powers, says he, are never imperative ; 
 they leave the act to be done at the will of the party to whom they 
 are given. Trusts are always imperative, and are obligatory upon 
 the conscience of the party intrusted. Lord Eldon, in Broiun v. 
 Eiggs, (8 Ves. 570,) in speaking of the distinction between trusts 
 and powers, says : It is perfectly .clear that, where there is a mere 
 pozver of disposing, and that power is not executed, a court of equity 
 cannot execute it. It is equally clear that, wherever a trust is cre- 
 ated, and the execution of that trust fails, by the death of the trus- 
 tee, or by accident, a court of equity will execute the trust. We 
 have seen in the foregoing chapter that the same rule obtains here 
 as to trusts. Equity never permits a trust to fail for the want of 
 a trustee. 
 
 The definition of a power given by the revised statutes is substan- 
 tially the same. It is defined to be an authority to do some act in 
 relation to lands, or the creation of estates therein, or of charges 
 thereon, which the owner granting or receiving such power might 
 himself lawfully perform. (1 B. S. 732, § 74.) 
 
 The distinction between a trust and a poiver was exemplified in 
 the case of Tucker v. Tucker, (1 Seld. 410.) The question arose 
 under a will, the seventh clause of which was in these words : " I 
 do authorize and empower my executors to exchange, sell and con- 
 vey to and with adjoining owners or others, such gores, strips, or 
 pieces of land as they may deem advantageous to my estate, by 
 straightening and equalizing boundary lines, and to execute, deliver 
 and receive sufficient deeds therefor." The question was whether 
 the foregoing clause created a trust in the executors or was merely 
 a power. If a trust, from its connection with other parts of the will 
 it was shown to be void, in consequence of suspending the power of 
 alienation for a longer time than the statute allows. It would be a 
 trust, if it was necessary for the executors to take an estate by im- 
 plication, in the lands of the testator, in order to effectuate his in- 
 tention. But the court held that all the duties enjoined upon the 
 executors by the will, in regard to the lands, could be discharged 
 Tinder the power, and that the clause in question merely created such 
 power. It fell within the definition just given. ' The authority con- 
 ferred upon the executors by the testator was to do some acts in 
 relation to the lands, which the owner granting the power might 
 himself lawfully do. (1 B. S. 732, § 74.)
 
 NAKED POWERS. 251 
 
 In Breivster v. Striker, (2 Comst. 20,) the provisions of the will 
 not only showed, in the opinion of the court, that the testator intend- 
 ed to give the entire and exclusive possession, charge and manage- 
 ment of the real estate to the executors ; but by the clause that " the 
 said real estate shall not, at any time hereafter, be sold or aliened, 
 but by my said executors and the survivor of them," also intended 
 to withhold from the grandchildren the power to sell, and thus 
 prevent the alienation of the estate, or any incumbrance thereon, 
 until the inheritance should finally vest in fee simple absolute, un- 
 der the limitations in the will ;" and this could not be accomplished 
 unless the title vested in the executors. • There was therefore a neces- 
 sity for holding that a trust term vested in the executors by impli- 
 cation, and by thus holding the intention of the testator was 
 effectual. This, then, was a trust and not a power. 
 
 So also, in Dempsey v. Tyler, (3 Duer, 74,) decided in 1854, it was 
 held that during coverture the wife possesses no power to convey 
 by deed to her husband, and is destitute of any testamentary capa- 
 city. Such power or capacity cannot be created over lands belonging 
 to herself in fee, by virtue of any agreement made during coverture 
 between herself and her husband. It can only be created or pre- 
 served, by an ante-nuptial agreement. Having power to grant or 
 devise, while a feme covert, she may by such agreement reserve a 
 power, by the due execution of which she may make a valid will in 
 favor of her husband. The instruments under which the case arose, 
 were all executed prior to 1848, and it was not supposed that the 
 laws of 1848 and 1849, relative to the estates of married women, 
 affected it in the least. {L. of 1848, p. 307. L. of 1849, p. 528.) 
 
 By the last mentioned statute, in connection with the act of 1860, 
 cha])ter 90, a married woman has the same control and power of dis- 
 position during coverture over her estate real and personal, as if 
 she was a feme sole. 
 
 It is quite obvious that no person is capable of granting a power, 
 who is not at the same time capable of aliening some interest in the 
 lands to which the power relates. (1 R. S. 732, § 75.) This is a 
 truism, the force of which is not increased by a legislative enactment. 
 That a party must have something himself, before he can bestow it 
 upon others, is quite manifest. [Selden v. VermiJyea, 3 Comst. 536.) 
 
 Having shown the difference between a power and a trust, it re- 
 mains to point out the distinction between naked powers, and pow- 
 ers coupled with an interest. A naked power does not, at common
 
 252 DIFFERENT KINDS OF POWERS. 
 
 law, survive. {Osgood v. Franklin, 2 John. Ch. 1 ; affirmed, 14 
 John. 527.) But a power to sell coupled with an interest, and ac- 
 compained by possession, sumves the person creating it. (Knapp v. 
 Alvord, 10 Paige, 205.) A power to a mortgagee, to sell on default 
 of payment, is coupled with an interest, and survives the mortgage; 
 [Bergen v. Bennett, 1 Cnines' Cas. 1 ;) and it may be executed here 
 by an administrator of the mortgagee, duly appointed in another 
 state. (Doolittle v. Leiois, 7 John. Ch. R. 45.) 
 
 The powers authorized by the revised statutes are general or 
 sp)ecial, and beneficial or in trust. The statute defines them as 
 follows : a power is general, 'when it authorizes the alienation in fee 
 by means of a conveyance, will, or charge of the lands embraced in 
 the power, to any alienee whatever. A power is special, 1st, where 
 the persons or class of persons to whom the disposition of the lands 
 under the power to be made, are designated ; 2d, where the power 
 authorizes the alienation by means of a conveyance, will or charge of 
 a particular estate or interest less than a fee' A general or special 
 power is beneficial when no power other than the grantee has by the 
 terms of its creation, any interest in its execution. (1 R. S. 732, 
 §§ 76 to 79.) 
 
 The revised statutes use the term "grantor of a power," as de- 
 signating the person by whom a power is created, whether by grant 
 or devise ; and the term "grantee of a power," as designating the 
 person in whom a power is vested, whether by grant, devise or res- 
 ervation. {Id. § 135.) 
 
 The English books make a different distribution of the subject. 
 They denominate the person possessing the property as the " donee" 
 of the power, and they divide them into, 1. Restraining powers ; and 
 2. Enabling powers. The first is where the owner of the estate con- 
 veys it to trustees, reserving a power to himself, under particular 
 circumstances and certain restrictions, to revoke, alter, enlarge or di- 
 minish the trusts declared therein ; and the second confers upon 
 persons, not seised of the fee, the right of creating interests out of it,, 
 which could not be done by the particular tenant or donee, unless 
 by virtue of such delegated authority. It is called an enabling 
 power, because it gives a right to create interests which are to take 
 effect out of estates vested in other persons. "Both these kinds of 
 powers were, either 1. Appendant or appurtenant ; 2. Collateral or in 
 .gross ; or 3. Simply collateral, which are either first, general, or sec- 
 ond, special. ( Wharton's Convey. 424, 425. Crahbe's Law of Real
 
 BY WHAT WORDS CREATED. 253 
 
 Prop. 446.) The revisers, in their note, say that they propose a 
 • new division of powers. And the legislature concurring with them, 
 adopted the classification which we have already noticed. This brief 
 reference to a different mode of classification was necessary in order 
 to understand the cases which may occasionally allude to the former 
 terms. 
 
 With regard to the mode of creating a power, it may be observed 
 that no formal words are necessary. The party creating it may in- 
 dicate his intention in any language that he chooses to adopt. Still, 
 as language is the instrument by which ideas are communicated, it 
 is desirable that a power should be reserved or created by such words 
 as clearly express the intention. In the statute on this subject, it is 
 enacted that a power may be granted by a suitable clause contained 
 in a conve)'ance of some estate in the lands to which the power re- 
 lates, or by a devise contained in a last will and testament. (1 R. S. 
 735, § 106.) In Dorlcmd v. Borland, (2 Barb. 80,) the supreme 
 court held that no formal set of words was requisite to create or 
 reserve a power. It is sufficient if the intention be clearly declared. 
 The language of the testator is to be construed equitably and liber- 
 ally in furtherance of the intention. {Jackson v. Verder, 11 John. 
 169. Haivhins v. Kern}), 3 East, 441. Right v. Thomas, 3 Burr. 
 1441.) A devise of land " to be sold by" executors, without words 
 giving the estate to them, confers a bare power only on the execu- 
 tors. {Wharton's Conveij. 429. 1 Sug. on Foiuers, 132-134.) 
 
 The intention of the testator is much regarded in the construction 
 of powers to sell, created by the will, and they are construed with 
 greater or less latitude in reference to that intent. {Osgood v. 
 FranJdin, 2 John. Ch. 1.) Courts of equity look to the end and de- 
 sign of the parties, in considering the extent of the powers, and to 
 a substantial, rather than a literal execution of the power. On this 
 principle, a power limited in terms has, in favor of the intention been 
 deemed a general power ; and a general power in terms, has been cut 
 down to a particular purpose. ( Wilson v. Troup, 7 Johti. Ch. 25.) 
 In the same case it was said that a power to mortgage includes in 
 it a power to authorize the mortgagee to sell in default of payment, 
 because the power to sell is one of the customary and lawful reme- 
 dies of the mortgagee, and has repeatedly been and is regulated by 
 statute. {S. C. affirmed, 2 Coioen, 195.) 
 
 But a power to sell, and on such sale " to execute, seal and deliver.
 
 254 POWER TO SELL LANDS. 
 
 in the name of the principal, such conveyances and assurances in the 
 law of the premises to the purchaser in fee as should be needful or 
 necessary according to the judgment of the attorney," does not author- 
 ize the latter to execute a deed with covenants, so as to bind the 
 principal. {Nixon v. Eyserott, 5 John. 58.) Nor does a power to 
 bargain and sell land confer authority to license any one to enter and 
 commit waste, or to cut timber. (Hubbard v. Elmer, 9 Wend. 446.) 
 Nor does a power to sell and convey in itself confer a power to mort- 
 gage. (Bloomer v. Waldron, 3 Hill, 361, overruling dictum in 
 Williams v. Woodard, 2 Wend. 487, 492. Coutant v. Servoss, 
 3 Barb. 128.) 
 
 There are some cases where a power seems to be extended by con- 
 struction. In Williams v. Woodard, (supra,) it was held that a 
 power " to bargain, sell, assure and convey," authorized a lease for 
 life upon rents, with a covenant for a future conveyance in fee, upon 
 a certain payment. And in Craig v. Craig, (3 Barb. Ch. 76,) the 
 chancellor held that a power given by will to divide lands authorized 
 the execution of a valid legal instrument, setting off the shares in 
 severalty. 
 
 A naked power to sell must be strictly pursued. When the will 
 contained a naked power to sell, accompanied by a direction, that 
 the moneys arising from the sale should be invested, &c. for the pur- 
 poses of the will, it was held that according to the obvious import 
 of the power, the sale must he for cash, or something that could be 
 invested ; and a deed under it, reciting facts which showed that the 
 o-rantor conveyed partly for money, and partly in consideration of 
 an equitable claim of the grantee, was held a departure from its 
 purpose, and therefore void. (Waldron v. McOomb, 1 Hill, 111.) 
 Though this case was reversed by the court of errors, it was upon a 
 ground not affecting the above principle. (Same case in error, 
 7 Hill, 335.) 
 
 A power to sell land for a certain sum means for cash, unless 
 there be something in the power, or in the usage of trade, to vary 
 the legal construction ; and a power to contract for such sale means 
 for an absolute sale, and not for one optional with the vendee. If 
 the power be to sell the land, an executory contract is no execution 
 of it, (Ives V. Davenport, 3 Hill, 373.) 
 
 A special power to sell, given by will, must be exercised in the 
 mode prescribed by it. If the will directs a sale of real estate at 
 public auction, to pay off legacies, as they become due, and the ex-
 
 WHO MUST UNITE. 255 
 
 ecutor sells at private sale before the legacies become due, the sale 
 is void. {Pendleton v. Fay, 2 Paige, 202. Egerton v. ConUin, 
 25 Wend. 224.) 
 
 "With respect to the person by whom a power can be executed, 
 the rule formerly was that it could only be so done by a person sui 
 juris; so that a/eme covert could not execute a power so as to 
 affect her own interest, if by the terms of the power it must be exe- 
 cuted while she was sole. But unless so restricted she might exe- 
 cute any power, and it was immaterial whether it was granted to 
 her before or after her coverture. So also an infant could execute a 
 naked power. {Crabhe's Laio of Real Estate, 689.) This subject is 
 now regulated by the revised statutes, which enact that a general 
 and beneficial power may be given a married woman to dispose, 
 during her marriage, and without the concurrence of her husband, 
 of lands conveyed or devised to her in fee. (1 R. S. 732, § 80. Id. 
 735, § 110.) But no power vested in a married woman during her 
 infiincy can be exercised by her until she attains her full age. {Id. 
 § 111. Frazer v. Weston, 1 Barb. Ch. 240. Sti^otig v. Wilkins, id. 
 13. Jackson v. Ediuards, 7 Paige, 387. WrigJd v. TaUmadge, 
 1 Smith, 307. Van Wort v. Benedict, 1 Bradf. 115.) 
 
 When a power is given to several, all must unite in the execution 
 of it by the rules of the common law. This principle is retained by 
 the statute, with the addition that if previous to such execution, one 
 or more of such persons should die, the power may be exercised by 
 the survivor or survivors. (1 R. S. 735, § 112.) The application 
 of this principle is more frequent to executors than to any other 
 class of persons. The law has wisely provided that when a part 
 only of the executors qualify and accept the trust, those who qualify 
 have full authority without the others to execute a power to convey 
 real estate, which is by the will conferred on the executors named in 
 it. Those executors who do not prove the will are superseded by 
 the grant of letters testamentary or of administration to others ; and 
 they cannot dispose of any part of the estate until they appear and 
 qualify as executors. (2 R. S. 109, § 55. Ogden v. Smith, 2 Paige, 
 198. "^ Taylor v. Morris, 1 Comst. 358. Willard on Ex'rs, 144.) 
 
 But it seems if the supreme court discharges one of several execu- 
 tors, without appointing a new trustee in his place, the remaining 
 executors are not authorized to execute a power in trust to sell the 
 testator's real estate, so as to give a good title to the purchaser.
 
 256 TO WHOM A POWER MAT BE GIVEN. 
 
 The court should, on discharging one or more, supply the vacancy 
 by a new appointment, and then the original and substituted 
 trustees can act together in fulfillment of the power. {In the Mat- 
 ter of Van Wych, 1 Barh. Ch. 5Q5, 570.) 
 
 The foregoing provisions do not extend to cases where a power is 
 to be executed with the consent of third persons, and one of those 
 persons dies before such consent is given. By the common law, in 
 a case of that kind, the execution of the power was rendered im- 
 possible. The revised statutes have provided that when the consent 
 of a third person to the execution of a power is requisite, such con- 
 sent shall be expressed in the instrument by which the power is exe- 
 cuted, or shall be certified in writing thereon. In the first case the 
 instrument of execution, in the second the certificate, must be signed 
 by the party whose consent is required ; and to entitle the instru- 
 ment to be recorded such signature must be duly proved or acknowl- 
 edged in the same manner as if subscribed to a conveyance of land. 
 (1 R. S. 736, § 122.) But the statute does not extend the principles 
 applicable to the death of one of several grantees of a power, (1 R. S. 
 735, § 112,) to the case of the death of one of several whose consent 
 to the execution of a power was required. 
 
 Accordingly where land was devised to a son for life, and then to 
 his heirs, with power to him to sell and convey the same, by and 
 ■with the consent of his mother and brother, and she died without 
 consenting, and the son afterwards, with the consent of his brother, 
 sold and conveyed the land, the court of appeals held that no title 
 passed by virtue of the power. (Barber v. Cary, 1 Kern. 397.) 
 
 The acts for the more effectual protection of the property of mar- 
 ried women, (L. o/* 1848, j3. 307, a7id of 1849, p. 528,) and the act 
 of 1860, concerning the rights and liabilities of husband and wife, 
 chapter 90, do not afiect the doctrine of trusts or powers. Those 
 statutes indeed render the creation of trusts or powers in favor of 
 married women, in a great measure unnecessary, for the security and 
 protection of their rights. But they do not forbid the creation of 
 trusts, or the granting of powers to them by persons desiring to se- 
 cure them from want. Such trusts and powers for their benefit will 
 still occasionally be made; though they will be of less frequent oc- 
 currence. The doctrine, therefore, is still a necessary part of our 
 jurisprudence, and should be understood. 
 
 A power may be vested in any person capable in law of holding,
 
 POWER OF REVOCATION. 257 
 
 but cannot be exercised by any person not capable of aliening lands, 
 except in the case of married women. (1 R. S. 735, § 109.) 
 
 The question as to how far a party having a disposing power over 
 property shall, as against strangers, be treated as the absolute own- 
 er, is often an interesting and imjlortant one. In general, there is 
 no more decisive incident of ownership, than the jus disponendi. 
 It was one of the objections to trusts and powers that they were 
 sometimes made subservient to purposes of fraud. They enabled 
 the party beneficially interested, to escape from the consequences 
 ■which attach to unfettered ownership. 
 
 The revised statutes contain suitable provisions on these subjects 
 in favor of creditors and purchasers in good faith. "When an abso- 
 lute power of disposition, not accompanied by any trust, is given to 
 the owner of a particular estate for life or years, such estate is 
 changed into an estate in fee, absolute in respect to the rights of 
 creditors and purchasers, but subject to any future estates limited 
 tbereon, in case the power should not be executed, or the lands 
 should not be sold for the satisfaction of debts. (1 R. S. 732, § 81.) 
 The same consequence follows when a like power of disposition is 
 given to a person to whom no loarticular estate is limited. With 
 respect to creditors and purchasers he is thus treated as owner of 
 the fee. {Id. § 82.) 
 
 So also in all cases where such power of disposition is given, and 
 no remainder is limited on the estate of the grantee of the power, 
 the latter is entitled to an absolute fee. {Id. § 83.) 
 
 This principle is not limited to a power of disposition by deed. 
 A general and beneficial power to devise an inheritance, given to a 
 tenant for life or for years, is equivalent to an absolute power of dis- 
 position as against creditors and purchasers. The grantee, who is 
 enabled in his lifetime to dispose of the entire fee for his own bene- 
 fit, must be deemed to have an absolute power of disposition. {Id. 
 §§ 84, 85.) 
 
 Nor is this doctrine confined to cases when the power of disposi- 
 tion is granted to others. It is applicable to cases where the grantor, 
 in any conveyance reserves to himself for his own benefit, an abso- 
 lute power of revocation. With respect to the rights of creditors 
 and purchasers, he is deemed the absolute owner of the estate, not- 
 withstanding his conveyance. {Id. § 86.) 
 
 It has been seen that a general and beneficial power may be given 
 to a married woman to dispose, during her marriage, and without 
 
 Will.— 17
 
 258 POWER TO A MARRIED WOMAN, 
 
 the concurrence of her husband, of lands conveyed or devised to her 
 in fee. {Id. § 80.) And by a subsequent section, a special and ben- 
 eficial power may be granted 1. to a married woman to dispose, during 
 the marriage, and without the concurrence of her husband, of any 
 estate less than a fee, helonginy to her, in the lands to which the 
 power relates ; 2. to a tenant for life of the lands embraced in the 
 power, to make leases for not more than twenty-une years, and to 
 commence in possession during his life. {Id. 87.) But neither of 
 the foregoing sections authorize the giving to her of a heneficial pow- 
 er to dispose of an estate or interest in lands as a feme covert, which 
 interest or estate does not belong to her ; and which, upon the hap- 
 pening of the contingency or event provided for in the grant or de- 
 vise, is limited to some other person. 
 
 Every instrument, except a will, in the execution of a power, is a 
 conveyance which must be recorded to protect the estate conveyed 
 against subsequent bona fide purchasers or grantees ; and when such 
 grant or conveyance is executed by a feme covert, she must acknowl- 
 edge it upon a private examination before the judge or other officer, 
 as in the case of other conveyances executed by femes covert. {\ R. S. 
 736, §§ 114, 117.) But her husband need not be a party to the deed. 
 (Jackson v. Edivards, 7 Paige, 402.) 
 
 The acts for the more effectual protection of the property of mar- 
 ried women already noticed, are prospective in their operation, 
 {Westervelt v. Gregg, 2 Kernan 202,) and with regard to past 
 transactions inoperative. They treat the feme covert more like a 
 feme sole, than the revised statutes do in the article relative to 
 powers. The act of 1849, allows a married woman to take by in- 
 heritance, or by gift, grant, or devise, or bequest from any person 
 other than her husband, and hold to her sole and separate use, and 
 convey and devise the same, in the same manner, and with the like 
 effect, as if she were unmarried, and the same is exempted from the 
 disposal of her husband, and a liability for his debts. Under this 
 provision the supreme court have held that it is unnecessary for the 
 husband to unite with the wife in the conveyance which she shall 
 make, and that she is not required to acknowledge the execution of 
 the deed on a private examination apart from her husband, or in 
 any other way than if she were unmarried. {Blood v. Humphrey, 
 17 Barb. 660.) 
 
 The foregoing sections relative to a beneficial power to a mar- 
 ried woman to dispose during her marriage, and without the con-
 
 WHEN POWER IS IN TRUST. 259 
 
 currence of her husband of her real estate, are confined to such real 
 estate as belonged to her. There are other provisions in the act 
 by which a power in trust may be given to a married woman, to 
 dispose of an estate, or interest in lands, which do not belong to 
 her, to or for the benefit of other persons, as the objects of the trust. 
 The right to create such powers is unquestionably more extensive 
 than that to create powers for the benefit of the persons to whom the 
 power itself is granted. (Jackson v. Edwards, supra.) 
 
 A power may be vested in any person capable in law of holding, 
 but cannot be exercised by any person not capable of aliening lands, 
 except in the case of a married woman of full age. She may exe- 
 cute a power during her marriage, by grant or devise, as may be 
 authorized by the power, without the concurrence of her husband, 
 unless by the terms of the power, its execution by her during mar- 
 riage is expressly or impliedly prohibited. (1 R. S. 735, §§ 110, 
 111. Van Wert v. Benedict, 1 Brad. 114. Wright v. TaUmadge, 
 15 N. Y. Bep. 307.) The court of appeals held in the last case, 
 that the foregoing sections completely removed the disability of 
 coverture in respect to the execution of powers. She can there- 
 fore execute a power in trust, as well as a beneficial power. 
 
 A general power is in trust when any person, or class of persons, 
 other than the grantee of such power, is designated as entitled to 
 the proceeds or any portion of the proceeds, or other benefits to 
 result from the alienation of the lands according to the power. 
 (1 R. S. 734, § 94. Selden v. Vermilyea, 1 Barb. 58.) 
 
 A special power is in trust, 1st, when the disposition which it au- 
 thorizes is limited to be made to any person or class of persons, 
 other than the grantee of such power ; 2d, when any person or class 
 of persons, other than the grantee, is designated as entitled to any 
 benefit from the disposition or charge authorized by the power. 
 {Id § 95, S. C.) 
 
 Unless its execution or non-execution is made expressly to de- 
 pend on the will of the grantee, every trust power is imperative^ 
 and imposes a duty on the grantee, the performance of which may be 
 compelled in equity, for the benefit of the parties interested. And 
 it does not cease to be imperative when the grantee has the right to 
 select any, and exclude others, of the persons designated as the ob- 
 jects of the trust. {Id. §§ 96, 97.) 
 
 Such a power is not to be construed as discretionary, because the 
 terms used are simply those of authority, and not terms of discretion,
 
 260 DISTRIBUTION UNDER A POWER. 
 
 request, or recommendation ; nor because a right of selection is given 
 to the donee of the power. A power, it is said, is always in trust, 
 when a disposition is limited to be made to a class, unless its exe- 
 cution is made in terms to depend upon the mere discretion of the 
 grantee. It is always imperative, when the property given, and 
 the persons to whom it is given, are certain. {Dominick v. Sayre, 
 3 Sand. S. C. R. 555.) 
 
 In cases where a disposition under a power is directed to be made 
 to, or among or between several persons, without any specification of 
 the share or sum to be allotted to each, courts of equity were accus- 
 tomed to hold that all the persons designated shall be entitled to an 
 equal proportion. But when the terms of the power imported that 
 the estate or fund was to be distributed between the persons so des- 
 ignated, in such manner or proportions as the trustee of the power 
 might think proper, it was held that the trustee of the power might 
 allot the whole to any one or more of such persons in exclusion of 
 the other. And if the trustee of the power, with the right of selec- 
 tion, should die, leaving the power unexecuted, its execution could 
 be decreed in equity for the benefit equally of all persons designated 
 as objects of the trust. These principles are incorporated into the 
 revised statutes. (1 B. S. 734, §§ 98, 99, 100.) In Dominick v. 
 Sayer, (supra,) the subject is fully examined by the learned judge 
 (Duer) himself, one of the revisers, and well acquainted with the 
 principles on which the revision was based. 
 
 In Hoey v, Kenney, (25 Barh. 396,) the testator gave one half 
 of his estate to his wife, " to be held and enjoyed by her during 
 her natural life, and by her to be divided and distributed by will 
 among my [the testator's] relatives, in such shares as she may see 
 fit and deem to be just." The widow enjoyed the property during 
 her life, and died without having made a will. It was held that as 
 the wife did not exercise the power of distribution, and it was a power 
 in trust for the benefit of third parties, the law would distribute the 
 property equally among the whole class among whom she might 
 have distributed it. This, it was said, enabled all who were capable 
 of inheriting at her death, to take the land, although they were 
 aliens at the testator's death. Belonging to the class to whom the 
 widow might have given it, they were therefore in the class to whom 
 the law distributes the property in equal shares. {Dominick v. 
 Sayre, supra.) 
 
 When a power in trust is created by will, and the testator has
 
 POWER TO SELL BY IMPLICATION. 261 
 
 omitted to designate by whom the power is to be exercised, its exe- 
 cution devolves on the supreme court. (1 R. S. 734, § 101.) 1 his 
 is merely applving to powers the same doctrine which we have be- 
 fore seen is applicable to trusts. Courts of equity, independently 
 of any statute regulation, never permitted a trust to fail for the 
 want of a trustee; and this principle is expressly declared and 
 enacted by the revised statutes. (1 B. S. 730, § 71.) 
 
 Where a testator directs his lands to be sold for the payment ot 
 his debts, or for the payment of legacies, and appoints executors, the 
 executors have the power to sell, although they are not named as 
 the donees of the power otherwise than by naming them as execu- 
 tors The reason given for this is that it belongs to the executor to 
 pay the debts and legacies ; and the testator having directed it to 
 be done by means of a sale of nis land, the executor should have the 
 power to sell as incident to the accomplishment of the testator's mam 
 purpose. {Per Buggies, in Meakings v. Croiiuoell, 1 Seld. 139, 140.) 
 It matters not whether the testator gives money or directs his 
 laud to be sold and the proceeds distributed ; by the settled princi- 
 ples of equitable conversion, it is money that the testator gives and 
 not land, and the executors are the proper persons to execute the 
 will, though not expressly ordered to do it. Thus, when the testa- 
 tor, by his will, gave to his wife, for life, the rents of certain lands, 
 and directed that after her death the lands should be sold, and the 
 proceeds divided among three persons named in the will, it was held 
 that this was a gift of monetj and not of kinds, and was valid, though 
 the beneficiaries were aliens. The will being silent as to the per- 
 sons who should sell the land, it was further held that power was 
 given by implication to the executors to make the sale ; and that 
 such power was well executed by a deed from one executor, the oth- 
 ers not having qualified. {Meakings v. OromiveU, supra.) 
 
 Had the executors not taken the power to sell by imjMcation, in 
 the foregoing case, no one being expressly authorized to do so, it 
 would have devolved on the court, under the lOlst section, before 
 cited, to designate the person by whom the power could be exer- 
 
 There are several cases in which there is a strict analogy between 
 a power in trust, and a trust in its appropriate sense. The statute 
 has, therefore, wisely applied to powers various regulations prescribed 
 in the cases of trust. {Compare 1 B. S. 134, § 102, and 1 B. S. 
 130, §§ 66-71.)
 
 262 BY WHAT INSTRUMENT EXECUTED. 
 
 Hence a payment in good faith to a party having a power to re- 
 ceive it, does not make the party paying responsible for the applica- 
 tion of the money. When the purposes for which the power was 
 created have ceased, the power itself ceases also. On the death of 
 the surviving grantee of a power, the power does not descend to his 
 heirs nor pass to his personal representatives, but if unexecuted, vests 
 in the supreme court, and is to be executed by some person appointed 
 for that purpose, under the direction of the court. The court may 
 accept the resignation of the grantee of a power, under the like reg- 
 ulations as are prescribed for receiving the resignation of a trustee ; 
 the court may remove him if he has violated or threatened to violate 
 his duty, or if he is insolvent or his insolvency is apprehended, or 
 if for any cause he is deemed an unsuitable person to execute the 
 power ; and appoint a new grantee of the power in place of the one 
 resigned or removed, or cause the power to be executed by some one 
 of the officers of the court under its direction. 
 
 We have seen by what words, and by what instruments a power 
 may be created; it remains to show by what instruments and in 
 what manner it may be executed. As a general rule it may be laid 
 down that when the instrument creating the power prescribes the 
 manner of its execution, that manner must be followed. Thus if 
 the power be created by will, and it directs a sale of real estate at 
 public auction, to pay off legacies as they become due, and the ex- 
 ecutor sells at 2^'i'i'vcite sale before the legacies become due, the sale 
 is void. (Pendleton v. Fay, 2 Paige, 202.) 
 
 Tlie time of executing a trust power of sale depends on the inten- 
 tion of the grantor of the power. If the testator devises a life estate 
 to his wife, and authorizes his trustees, after his death, to sell 
 the land and distribute the proceeds among the children of B., who 
 is then living, a sale before the death of the wife will be premature. 
 (Per Ch. Wahoorth, Egerton v. Conklin, 25 Wend. 224.) 
 
 The courts have been very strict in requiring an adherence to the 
 terms of the power. The revised statutes have introduced many 
 wise provisions on this branch of our jurisprudence. Thus, a power 
 vested in several persons must be executed by all, unless before its 
 execution one or more of them shall have died, when the power can 
 be executed by the survivor. (1 R. 8. 735, § 112. Ogden v. Smith, 
 2 Paige, 198. Taylor v. 3Iorris, 1 Comst. 358.) No power can 
 be executed except by some instrument in writing, which would be
 
 FORMALITIES OF EXECUTION. 263 
 
 sufficient in law to pass the estate under the power, if the persons 
 executing the power were the actual owners. (1 R. S. 735, § 113.) 
 And by the subsequent section, every instrument except a w^ill in 
 execution of a power, and although the power may be a power of 
 revocation only, shall be deemed a conveyance within the meaning, 
 and subject to the provisions of that part of the revised statutes 
 relative to the proof and recording of conveyances. Where a power 
 to dispose of lands is confined to a disposition by devise or will, the 
 instrument of execution must be a will duly executed according to 
 the provisions relative to the execution and proof of wills of real 
 estate. {Id. § 115.) Where a power is confined to a disposition by 
 grant it cannot be executed by will, although the disposition is not 
 intended to take effect until after the death of the party executing 
 the power. {Id. § 116.) 
 
 A power to sell real estate does not authorize the giving of a mort- 
 gage. {The Albany Ins. Co. v. Bay, 4 Comst. 9. Coutant v. Ser- 
 voss, 3 Barh. 128.) 
 
 If a married woman execute a power by grant, the concurrence of 
 her husband as a party is not requisite, but the grant is not a valid 
 execution of the power unless it be acknowledged by her on a private 
 examination, in the manner prescribed by the act in relation to the 
 proof and recording of conveyances by married women. (1 R. S. 
 736, § 117. Id. 758, § 10.) 
 
 When the grantor of a power shall have directed or authorized 
 it to be executed by an instrument, not sufficient in law to pass 
 the estate, the power shall not be void, but its execution shall be 
 governed by the rules before prescribed in the article. (7c?. 736, 
 § 118.) 
 
 The effect of this enactment is to refer to the courts the execution 
 of a power when the instrument pointed out by the grantor of the 
 power is defective, as they had already done in case no p)^'^son was 
 designated in the will creating a power, by whom it was to be ex- 
 ercised. 
 
 It sometimes happens that the grantor of a power directs certain 
 formalities to be observed in the execution of the power, in addition 
 to those which would be sufficient by law to pass the estate. In 
 cases of that kind the statute provides that the observance of such 
 additional formalities shall not be necessary to a valid execu,tion of 
 the power. {Id. § 119.) In other cases, again, the conditions an- 
 nexed to a power may be merely nominal, and evince no intention
 
 264 INCIDENTS OF A POWER. 
 
 of actual benefit to the party to whom or in whose favor they are to 
 be performed. In such cases, those conditions may be wholly dis- 
 regarded in the execution of the power. {Id. § 120.) 
 
 The intentions of the grantor of a power as to the mode, time and 
 conditions of its execution, must be observed, except as to such 
 matters as are merely nominal, or are unnecessary to pass the estate, 
 subject, however, to the power of the supreme court to supply a de- 
 fective execution of the power. {Id. § 120, 121.) Wh^n the consent 
 of a third person to the execution of a power is requisite, such con- 
 sent must be expressed in the instrument by which the power is ex- 
 ecuted, or must be certified in writing thereon. In the first case the 
 instrument of execution, in the second the certificate, must be signed 
 by the party whose consent is required ; and to entitle the instru- 
 ment to be recorded such instrument must be duly proved or ac- 
 knowledged, in the same manner as if subscribed to a conveyance of 
 land. We have already seen that if the consent of more than one 
 person is required, and the consent of one or more is not given, 
 either by death or otherwise, the power cannot be executed. {Id. 
 § 122. Barber v. Cary, 1 Kernan, 397, ante.) The statute has 
 provided that no disposition by virtue of a power shall be void, in 
 law or in equity, on the ground that it is more extensive than was 
 authorized by the power ; but every estate or interest so created, so 
 far as embraced by the terms of the power, shall be valid. (1 B. S. 
 737, § 123.) 
 
 The omission of the grantee of a power to recite, in his instrument 
 of conveyance, the power by virtue of which it is made, does not 
 render it invalid, provided he had a right to convey, under his power, 
 what he professes to convey. {Id. § 124.) 
 
 Instruments in execution of a power are effected by parol, both at 
 law and in equity, in the same manner as conveyances by owners or 
 trustees. {Id. 125.) 
 
 Lands embraced in a power to devise pass by a will purporting to 
 convey all the real property of the testator, unless the intent that 
 the will shall not operate as an execution of the power, shall appear 
 expressly, or by necessary implication. (7c?. 126. Botler v. De~ 
 Peyster, 25 Barb. 539. Jackson v. Delancy, 13 Join. 537.) 
 
 A power is subject to the incidents of other property. An estate 
 or interest given by a parent to a descendant, by virtue of a benefi- 
 cial power, or of a power in trust with a right of selection, is deemed 
 an advancement to such defendant, within the provisions of the
 
 EXECUTION OF POWERS. 265 
 
 chapter of the title to real property by descent. Where a party at- 
 tempts to suspend the alienation of property by an instrument in 
 execution of a power, the period from which the computation is made 
 is not from the date of the instrument, but from the time of the 
 creation of the power. (1 B. S. 737, §§ 127, 128.) 
 
 No estate or instrument can be given or limited to any person by 
 an instrument in execution of a power, which such person would not 
 have been capable of taking under the instrument by which the power 
 was granted. {Id. § 129.) 
 
 When a married woman, entitled to an estate in fee, is authorized 
 by a power to dispose of such estate during her marriage, she may 
 by virtue of such power create any estate which she might create if 
 unmarried. (Id. § 130.) 
 
 A married woman cannot convey her real estate directly to her 
 husband. She cannot, therefore, by uniting with him in a deed of 
 her real property to a trustee, reserve a valid power to appoint it to 
 his use, or one by which she can, by a last will and testament, devise 
 to him. A will by a married woman, in pursuance and in execution 
 of a power so reserved, by which she devises her real estate to her 
 husband, is inoperative and void. During coverture she possesses 
 no power to convey by deed to her husband, and is destitute of any 
 testamentary capacity. Such power or capacity cannot be created 
 over lands belonging to herself in fee, by virtue of any agreement 
 made, during coverture, between herself and her husband. It can 
 only be created or reserved by an ante-nuptial agreement. Having 
 power to grant or devise, while a/eme sole, she may by such an 
 agreement reserve a power by the due execution of which she may 
 make a valid will in favor of her husband. (Demprey v. TyleVy 
 3 Sandf. S. C. R. 73.) 
 
 But there is a way, aside from the doctrine of powers, or trusts, 
 by which a married woman can vest her real estate in her husband. 
 She can unite with him in a conveyance of it to a third person in fee. 
 A reconveyance of it by such third person to the husband in fee, will 
 vest the title in him. {Id.) 
 
 With regard to the execution of powers, it is held that there must 
 be a substantial compliance with every condition required to pre- 
 cede or accompany its exercise. {Per Gardiner, J. in Allen v. De 
 Witt, 3 Comst. 278. Chance on Powers, 172, § 454. 1 H. S. 737, 
 § 121. Bosehoom v. MosJier, 2 Denio, 61.) This rule is well illus- 
 trated in Allen v. De Witt, {supra.) A testator by his will author-
 
 266 DEFECTIVE EXECUTION OF POWERS. 
 
 ized his executors " to sell his real and personal estate, in such par- 
 cels, at such times, and for such considerations as they should judge 
 proper for the purpose of discharging his debts and creating funds 
 for the support of his family." After payment of debts, he directed 
 the avails of his property to be equally divided among all his chil- 
 dren. Before the testator's debts were paid, the husband of one of 
 the daughters being indebted to the plaintiff, procured from the ex- 
 ecutors a conveyance of a portion of the real estate for the purpose 
 of enabling him to mortgage it to secure the debt. Nothing was 
 paid for this conveyance, but the husband agreed to disencumber 
 the land by paying the mortgages, and then to reconvey to the ex- 
 ecutors, or in default thereof, that the value of the land might be 
 charged against his wife's distributive share in the estate. On a bill 
 filed to foreclose the mortgage given by the husband and wife ac- 
 cording to this arrangement, it w^as held by the court of appeals that 
 the conveyance was not an execution of the power contained in the 
 will, and passed no title, and therefore that the mortgage was not a 
 lien upon the interests of the testator's other heirs in the premises. 
 Under such a power it seems that a sale of the real estate by the 
 executor, for the purpose of distribution among the testator's chil- 
 dren, could not be made until after the debts were paid, and that 
 the sale should then be absolute for money, or funds capable of dis- 
 tribution according to the will.) 
 
 In Rosehoom v. 3fosher, (supra,) it was said by Bronson, Ch. J. 
 that when a power is given by will to executors to sell lands, in case 
 of a deficiency of personal assets to pay debts and legacies, and no 
 estate is devised to the executors, the purchaser, to sustain his title, 
 must show the fact of such deficiency. A distinction was taken in 
 that case between an actual deficiency, and the opinion of the ex- 
 ecutor as to such deficiency. In the one case the power is not well 
 executed, unless a deficiency be shown ; in the other, where the tes- 
 tator- has authorized the sale by the executor, if in Ms opinion it 
 shall become necessary, for the payment of debts and legacies, the 
 necessity need not be shown. The fact that the executor makes the 
 sale is evidence of his opinion as to the necessity, and the convey- 
 ance is conclusive. {Kellogg v. Slauson, 1 Kern. 302.) 
 
 With regard to the defective execution of a power in trust, in 
 whole or in part, the statute enacts that its proper execution may be 
 decreed in equity, in favor of the persons designated as the objects of 
 the trust ; (1 J?, S. 737, § 131 ;) and by the subsequent section, the
 
 REVOCATION OF POWERS. 267 
 
 same remedy is given in favor of purchasers claiming under a de- 
 fective conveyance as from a like defective conveyance from actual 
 owners. Courts of equity, before the statute, were in the habit of 
 supplying defects in the execution of powers. {Butcher v. Butcher, 
 9 Ves. 394.) It is a well established branch of equity jurispru- 
 dence, and rests upon its jurisdiction, to relieve against mistakes. 
 Such relief is not granted in favor of every one, nor for every 
 species of mistake. A mistake in law affords no ground for relief. 
 {StovTj's Eq. J. §§ 113, 180 et seq.) And there must be clear evi- 
 dence of the existence of the mistake of fact. If the defect be in 
 the omission of some condition which was merely nominal, and 
 evincing no intention of actual benefit to any of the parties, pro- 
 vision is made in the statute, and no doubt equity would have re- 
 lieved, independently of the statute, in favor of the proper parties. 
 ( Willard's Eq. Jur. 84.) 
 
 But equity cannot relieve against the consequences of failing to 
 comply with the material directions of the party creating the power. 
 Therefore when the power prescribes that a particular instrument, 
 •ds a deed, is required, it cannot be executed by will; so a power 
 which is expressly required to be executed by will, cannot be execu- 
 ted by any act which is to take effect in the lifetime of the grantee 
 of the power. {Rcid v. Shergold, 10 Ves. 370. Orahhe's Law of 
 Real Propertij, p. 708, &c.) 
 
 The power to sell lands contained in a mortgage or other convev- 
 ance, intended to secure the payment of money, is deemed a part of 
 the security and vests in the assignee of the mortgage, and may be 
 executed by him, or by any person entitled to the money secured 
 by it. (1 B. S. 738, § 133.) We have already seen that such a 
 power is coupled with an interest, and survives the mortgage, and 
 is irrevocable. {Bergen v. Bennet, supra. Knapp v. Alvord, 10 
 Paige, 205.) 
 
 With regard to the revocation of powers, we have seen that every 
 power, beneficial or in trust, is irrevocable, unless an authority to 
 revoke it is granted or reserved in the instrument creating the power. 
 (1 B. S. 735, § 108.) The statute contains suitable guards against 
 fraud, by treating the party who has received a power of revocation 
 as absolute owner of the estate, so far as the rights of creditors and 
 purchasers are concerned. (1 B. S. 733, § 86.)
 
 268 POWERS OF ATTORNEY. 
 
 It has been held that when a person takes by execution of a power, 
 he takes under the authority, and under the grantor of the power, 
 equally as if the power and the instrument executing it were incor- 
 porated in one deed. {Doolittle v. Leiois, 7 John. Ch. 45. Litt. 169. 
 Co. Litt 113 a. Cook v. Derchenfield, 2 Atk. 562, 567.) The rule is 
 the same whether the power has reference to real or personal property. 
 
 Powers may either be extinguished, released or suspended, ac- 
 cording to the nature of the power, or the acts of the grantee. 
 {Grahhe's Law of Real Property, 721.) 
 
 Section II. 
 Of Poivers of Attorney to convey Lands. 
 
 The provisions of the article in the revised statutes on powers which 
 we have been considering, do not extend to a simple power of at- 
 torney to convey lands in the name and for the benefit of the owner. 
 (1 R. S. 738, § 134.) It was deemed sufficient to let that class of 
 cases rest upon the common law. 
 
 A power of attorney is an instrument in writing under seal, by 
 which the party executing it appoints another to be his attorney, 
 and empowers such attorney to act for him, either generally in all 
 matters or business, or especially to do some specified act or acts, 
 in his name and behalf. (^S'ee the icord in Ruri^iU's Laiu. Did.) 
 
 If it be intended that the attorney shall make a complete convey- 
 ance of real estate, or any interest therein, which by law is required to 
 be by deed, the power of attorney must be executed by the princi- 
 pal under hand and seal. The instrument conferring the authority 
 must be executed with the same solemnity as the instrument which 
 the attorney is authorized to execute in the name of his principal. 
 [Co. Litt. 52 a. Blood v. Goodrich, 9 Wend. 68.) An authority 
 to execute a deed, must be itself a deed, or in other words an in- 
 strument under seal. {Lawrence v. Taylor, 5 Hill, 113.) 
 
 An agent may be orally empowered to contract to sell land, for 
 the contract may be without seal. {Champlin v. Parish, 11 Paige, 
 405. Mc Whorter v. BIcMahan, 10 Pciige 386. Lawrence v. Tay- 
 lor, supra.) 
 
 As a general rule it may be said that any party having the com- 
 plete ownership of an estate, has the jus disponendi, and unless 
 laboring under some legal disability, may convey the same in person 
 by deed, or authorize another by power of attorney under seal, to
 
 REVOCATION OF POWER. 269 
 
 convey it for him. Married women, infants, lunatics and other per- 
 sons not sui juris, are not in general capable of appointing an 
 attorney. {Per Bronson, Snyder v. Sponahle, 1 Hill, 567.) 
 
 If a party can himself execute a deed of an estate, it would seem 
 on principle that he might authorize another to do it. As a feme 
 covert under the act of 1849 {L. of 1849, p. 528) can hold to her 
 sole and separate use real and personal property, and can convey and 
 devise the same " in the same manner and with the like effect as if 
 she were unmarried," and as her deed thereof does not require to he 
 acknowledged private and apart from her husband, {Blood v. Hum- 
 phrey, 17 Barb. 660,) no reason is perceived why she may not execute 
 a power of attorney under seal and empower such attorney to convey 
 the same in her name. The statute in effect removes the disability 
 of coverture with respect to the disposal of her separate property, 
 without prescribing any restriction as to the mode. 
 
 The acts of 1848 and 1849, probably relate to married women, 
 inhabitants of this state. The act of 1835, chapter 275, makes a 
 separate provision with respect to non-residents. It provides that 
 when such married woman shall unite with her husband in execut- 
 ing any power of attorney for the conveyance of real estate situa- 
 ted in this state, the conveyance executed in virtue of such power 
 shall have the same force and effect as if executed by such married 
 woman, in her own proper person ; provided that the execution of 
 such power of attorney by such married woman shall first have been 
 proved or acknowledged, according to the provisions of the revised 
 statutes in relation to conveyances executed by married women resid- 
 ing out of this state. 
 
 Before the power has been executed, the principal has the right 
 to revoke it, except when the power is coupled with an interest, as 
 it has been declared in the instrument itself to be irrevocable. The 
 power of sale in a mortgage, it has been seen, is a part of the secu- 
 rity itself, and affords an instance of irrevocable powers. When 
 a power of attorney to sell and convey lands for another has been 
 recorded, an instrument under seal revoking it, is not deemed effect- 
 ual unless the instrument containing such revocation be recorded in 
 the same ofl&ce in which the instrument containing the power was 
 recorded. (1 B. S. 763, § 41.) Notice, or a copy of the instru- 
 ment of revocation, should also be served on the attorney. 
 
 An authority must be strictly pursued. A power of attorney au- 
 thorizing the attorney to sell and execute conveyances and assur-
 
 270 POWER OP SUBSTITUTION. 
 
 ances in the law of the lands sold, does not authorize the attorney to 
 bind his principal by any covenants. Any act varying from the 
 terms of this power is void. (Nixon v. Hyserott, 5 John. 58. 
 Gibson y. Cold, 7 id. 390.) 
 
 An attorney has no right to delegate his authority to any other 
 person, unless the instrument contains a power of substitution. 
 The principle is delegata pofestas non potest delegari. (Broom's 
 Maxims, QQ5.) The party to whom the authority is given must ex- 
 ecute it himself, and he cannot delegate it to another. The prin- 
 cipal in general employs the agent from the confidence he reposes in 
 him, and it would be a violation of the trust to transfer the author- 
 ity to another without the express consent of the party who created 
 the power. The principle has a wide application to the doctrine of 
 agency, but we are discussing it only with reference to powers of 
 attorney to sell land. 
 
 It is usual in powers of attorney of this kind, if the principal so 
 pleases, to insert in the power a clause authorizing the attorney to 
 substitute one or more attorneys under him to do the act and to re- 
 tain the power of revocation. 
 
 If the authority be given to two or more, it cannot be executed 
 by one alone. All must join. An authority to three jointly is not 
 •well executed by two. [Co. Litt. 181 h. Green v. 3Iiller, 6 John. 
 39. Franklin v. Osgood, 14 id. 553. Sinclair v. Jackson, 8 Coiu- 
 en, 543.) This is the undisputed rule with respect to private mat- 
 ters between individuals. A different rule obtains in matters of 
 public concern. To obviate the inconvenience of this rule it is j)ro- 
 vided that the surviving executor or administrator, when the grant 
 has been made to several, may execute the power. But the authori- 
 ty may be so given that the surviving attorney may act. It may 
 be given to several jointly or severally, in which case either one 
 could execute the authority ; and if it be given to them or the sur- 
 vivors or survivor of them, the death of one or more, so long as one 
 remains, will not end the power. 
 
 We have said the party making the power of attorney may, at 
 any time before it is executed, revoke it. {See ante, p. 269.) But 
 there are other acts which will put an end to the authority. It 
 must be executed during the life of the party creating it, and there- 
 fore his death determines the power. (jBac. Abr. tit. Authority, U.) 
 This applies only to a naked power. A power coupled with an 
 interest is not revoked by the death of the grantor of the power. (7c?.)
 
 MANNER OF EXECUTION. 271 
 
 With regard to the manner in which the power mnst he executed, 
 it may he in general remarked that it must be executed in the name 
 of the principal. If the attorney affix only his own name and seal, 
 the grant is void, although in the body of the instrument it be stated 
 that it is the agreement of the principal by his attorney. {Toivn- 
 send V. Corning, 23 Wend. 435. Same v. Huhbard, 4 EiU, 351. 
 White V. Skinner, 13 John. 307.) No particular form of words is 
 necessary to be observed by the attorney in executing the instru- 
 ment, provided the words used import the requisite facts. It should 
 appear upon the face of the instrument that it was intended to bo 
 executed as the deed of the principal, and that the seal affixed to 
 the instrument is his seal, and not the seal of the attorney merely. 
 {Wilks V. Back, 2 East, 142. Toiunsend v. Euhhard, supra.) 
 A;id when the deed is executed for several parties, it is said not to 
 be necessary to affix a separate and distinct seal for each, if it ap- 
 pear that the seal affixed was intended to be adopted as the seal of 
 each of the parties. {Id.) It will be less likely to lead to disputes, 
 if approved forms be used and a seal affixed to each name. 
 
 A power of attorney to convey lands should be duly acknowledged 
 or proved in the same manner that conveyances of real estate are re- 
 quired to be acknowledged or proved, and that it be in all cases re- 
 corded in the county where the lands are situated. It should be 
 referred to in the deed executed in pursuance of it by some intelligible 
 description, if it be not in substance set out or recited at large. As 
 it will form a part of the grantee's title to the land, care should be 
 taken that it, as well as the deed, should be duly proved and acknowl- 
 edged and recorded in the proper county. 
 
 All powers of attorney receive a strict interpretation, and the 
 authority is never extended beyond that which is given in terms, or 
 is absolutely necessary for carrying the authority into effect. {Sand- 
 ford V. Eandij, 23 Wend. 260. Nixon v. Eijserott, supra.) 
 
 A party dealing with an agent is chargeable with notice of the 
 contents of the power under which he acts. ( Warwick v. Warivick, 
 3 Atk 294. Willard's Eq. Juris. 250, 608.)
 
 272 MARRIAGE SETTLEMENTS. 
 
 CHAPTER III. 
 
 OF MAREIAGB SETTLEMENTS. 
 
 Section I. 
 Of the origin, policy and effect of Marriage Settlements. 
 
 The doctrine of uses and trusts and powers, of which we have 
 treated in the preceding chapters, is the foundation of marriage 
 settlements. These, in England, are the most voluminous and com- 
 plicated instruments prepared by the conveyancer. They are of rare 
 occurrence in this country. Their general object is to provide a life 
 estate for the wife beyond the control of her husband, and to secure 
 a provision for the issue of the marriage, which neither the parents, 
 or the creditors of the husband, can defeat. 
 
 The subject, in most of its aspects, belongs to treatises on equity 
 jurisprudence, or to such as are specially devoted to the law of hus- 
 band and wife, or the rights of married women. But as it calls for 
 the services of the conveyancer, it falls, to a certain extent, appro- 
 priately within the subject of the present treatise. 
 
 By the common law, the personal property of the wife becomes, 
 by the act of marriage, absolutely the property of the husband. 
 This embraces not only what she had at the time of the marriage, 
 but wliat she afterwards acquires by gift, or grant, or bequest, or 
 from her own earnings. Her personal property consists of three 
 kinds, viz : chattels personal, choses in action, and chattels real. 
 Her chattels personal are absolutely, by the common law, vested in 
 the husband. He requires the aid of no court to establish his claim. 
 The husband is entitled to reduce her choses in action to his pos- 
 session during the lifetime of the wife ; and they then become his 
 absolutely. If he dies without doing so, they become hers by surviv- 
 ership. (WhitaTcer v. Whitaher, 6 John. 112.) But if she dies be- 
 fore he has reduced them to possession, he takes them only as her 
 . administrator, and not by survivorship ; and he is liable for her 
 debts, after her death, to the extent of the assets which he receives 
 from her. {L. of 1853, ch. 576, § 1.) The chattels real of the wife, 
 such as terms for years, whether legal or equitable interests, belong 
 to the husband in a qualified manner. He may transfer them in his
 
 POLICY OF MARRIAGE SETTLEilENTS. 273 
 
 lifetime, and thus become entitled absolutely to the avails of them. 
 But he cannot dispose of them by will, and if he foils to dispose of 
 them while he lives, they survive on his death to his wife. He has, 
 by the common law, the same right to her chattels real which accrue 
 to her during the coverture ; and he is entitled to the rents and prof- 
 its of her real estate during the coverture. As a compensation for 
 these benefits, the law throws upon the husband the burden of the 
 wife's debts, which were incurred while she was sole, and makes him 
 liable for them at any time during the continuance of the marriage, 
 to the extent of her separate estate and property. {Clancy, 2-10. 
 Co. Liu. 351 a. Bac. Ah. tit. Bar. and Feme, G. Willard's Eq. 
 Jut. 473, 474. L. of 1853, p. 1057, §§ 1, 2.) 
 
 It is the design of marriage settlements to escape from the extreme 
 rigor of the common law rules, and to remove some of the disabili- 
 ties which the condition of the marriage state imposes. The prin- 
 ciples and practice which the court of chancery adopted in further- 
 ance of these objects, were mainly derived from the civil law. In 
 the first case, which was brought before our highest court, in which 
 the power of a married woman having separate property, to dispose 
 of it at her will and pleasure, when not expressly restrained in the 
 mode of exercising that will, the judges took occasion to express 
 their opinions as to the policy of the law in this respect. Chief Jus- 
 tice Spencer said : " I confess that my partialities in favor of mar- 
 riage settlements are not so strong as to induce any 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 calcu- 
 lated, in my judgment, to secure domestic tranquillity and happi- 
 ness, than settlements securing to the wife a property separate from 
 and independent of the control of the husband. An improvident 
 and dissipated husband may squander his wife's property, and re- 
 duce 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 feuds 
 and contention. Marriage is a union of persons and interests, yro 
 lono et malo, and the ancient provisions of the common law show' 
 forth in our own country decisive proofs of its benign and salutary 
 influence." (Jaques v. Methodist Epis. Church, 17 John. 580.) 
 The language of Justice Piatt is no less explicit : " I lament," says 
 the learned judge, " the complicated and artificial anomalies in the 
 Will.— is
 
 274 ACTS OF 1848 AND 1849. 
 
 relations of domestic life which have grown, and are still growing, 
 out of the practice of marriage settlements. They give to the wife 
 the amphibious character of a /ewe covert and 2, feme sole. I view 
 it as an adulteration of that holy union ; as a divorce pro tanto of 
 the marriage contract. A wife in the independent enjoyment of her 
 separate estate, armed with distrust of her husband, and shutting 
 out his affections and confidence, by refusing to give her own in mu- 
 tual exchange, is an object of compassion and disgust. Legal chas- 
 tity cannot be denied to her ; but there is danger that the sacred 
 institution of marriage may degenerate into mere form. It is some- 
 times, in practice, little more than legalized prostitution ; and the 
 parties seem to have no higher objects than sexual intercourse, and 
 the sanction of legitimacy for their offspring. If, in the rapid pro- 
 gress of refinement in civilization, it shall be thought expedient to 
 go one step farther, and to allow the wife, by ante-nuptial contract 
 to stipulate for an exemption from personal control over her by the 
 husband, then the quasi divorce would be extended one degree fur- 
 ther, so as to confer on her the independent enjoyment of the rights 
 and privileges of a kept mistress. But she would have little claim, 
 
 indeed, to the endearing appellation and character of a wife 
 
 If matrimony is not safe and desirable, without these trammels, and 
 fences, and reservations and restrictions, I say marry not at all." 
 {Id. 583.) 
 
 But although the policy of marriage settlements was thus early 
 questioned by learned judges, they were assumed by the legislature, 
 in making the revision of the statutes in 1830, as an existing mode 
 t)f providing for the necessities of families, and suitable regulations 
 were prescribed to guard them from abuse. {See the article concern" 
 ing Uses and Trusts, 1 i?. S. 727, and the article concerning Pov)- 
 ers, Id. 732, passim.) And the acts of 1848 and 1849 for the 
 more effectual protection of the property of married women, {L. of 
 1848, p. 307 ; L. of 1849, p. 528,) expressly enact that all contracts 
 made between persons in contemplation of marriage shall remain iu 
 full force after such marriage takes place. This was obviously in- 
 serted to prevent any implication being drawn from those acts 
 against the legality of ante-nuptial agreements, which had already 
 been made. We have already, in another connection, alluded to 
 these statutes. It is believed that one of the objects which they 
 were intended to accomplish was to diminish the necessity for mar- 
 riage settlements in future. By permitting a married female to
 
 POWER TO MAKE WILLS. 275 
 
 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 to convey and devise real and personal property, and any 
 interest or estate therein, and the rents, issues and profits thereof, in 
 the same manner and with the same effect as if she were unmarried, 
 and by declaring that such property shall not be subject to the dis- 
 posal of her husband, nor be liable for his debts, the legislature has 
 given to a feme covert, with respect to her property so acquired, as 
 much power of disposition as is usually contained in marriage set- 
 tlements, and in many respects more. They have left the power of 
 disposition unfettered by any restriction, save such as is applicable 
 to all persons. In furtherance of the same policy, the second sec- 
 tion of the act of 1849 has prescribed a way by which a married 
 woman whose property is held by a trustee, may be put in the bene- 
 ficial enjojinent and control of all or any portion of such property, 
 for her sole and separate use and benefit. Her trustee is required 
 to convey to her all such property held in trust, on the written request 
 of such married woman, accompanied by a certificate of a justice of 
 the supreme court that he has examined the condition and situation 
 of the property, and made due inquiry into the capacity of such mar- 
 ried woman to manage and control the same. The judge will not 
 give such certificate unless he finds on such examination, that the 
 married woman has sufficient capacity to manage and control her 
 property. He has nothing to do with the policy of the law ; and 
 the trustee has no discretion to refuse to convey to the married female 
 the trust property, on being served with the written request of the fe- 
 male and certificate of the judge. " May" evidently means " must," 
 in this connection. 
 
 The operation of this law works a qualified repeal of the excep- 
 tion in the statutes of wills, which excluded married women from 
 the power of devising their real estate by last will and testament, 
 (2 R. S. 57.) This exception when inserted in the original statute 
 of wills in the reign of Henry the 8th, may have been dictated by 
 wisdom and sound policy. But since then, and especially in this 
 country, there has been a revolution in the tenure of real property ; 
 and the social position and general education and intelligence of 
 females have placed them on a level with the other sex, and removed 
 the reasons on which the exception was based. The repeal of it by 
 the act of 1849, extends only to the property specified in the third 
 section, and is not made universal. Nor does that act confer upon
 
 276 LAW OF 1860. 
 
 a married woman her own earnings, nor change the principle of the 
 common law, which vests, on the marriage, the personal estate of 
 the wife in the husband. It applies only to such property as she 
 acquires after and during the marriage, by inheritance or by gift, 
 grant, devise or bequest from any person other than her husband. 
 The property which she owned before the marriage, and that which 
 she acquires by her own earnings, were left by the act of 1849, to 
 the operation of the common law. 
 
 The act of 1860, ch. 90, [L. 0/I86O, p. 157,) goes further. It 
 provides that the property, both real and personal, which any mar- 
 ried woman, at the time of the passing of that law, owned as her 
 sole and separate property ; that which comes to her by descent, de- 
 vise, bequest, gift or grant ; that which she acquires hy her trade, 
 husiness, labor or services carried on or performed on her sole and 
 separate account; that which a woman, married in this state, oivns 
 at the time of her marriage, and the rents, issues and proceeds of 
 all such property, shall, notwithstanding her marriage, be and remain 
 her sole and separate property, and may be used, collected and in- 
 vested by her in her own name, and shall not be subject to the inter- 
 ference or control of her husband, or liable for his debts, except such 
 debts as may have been contracted for the support of herself or her 
 children, by her as his agent. This statute abrogates that rule of 
 the common law which vests, on the marriage, the personal estate 
 of the wife in the husband ; and that other rule which gave to the 
 husband the earnings of the wife during the coverture. It also so 
 far enlarges the provisions of the act of 1849, as to give to the mar- 
 ried female the same control and interest in the real estate owned 
 by her at the time of the marriage, and the rents, issues and proceeds 
 of all such property as, by the act of 1849, was given to her in 
 respect to property obtained by her by inheritance, or by gift, grant, 
 devise or bequest, from any person other than by her husband. 
 
 nDhe law of 1860, in some respects, departs from the principles of 
 the act of 1849. While under the former act a married woman may 
 bargain, sell, assign and transfer her separate personal property, and 
 carry on any trade or business, and perform any labor or services 
 on her sole and separate account, and her earnings from her trade 
 or business, labor or services, are her sole and separate property, 
 and may be used and invested by her in her own name, a different 
 rule prevails with respect to her control over her real property. 
 Under the act of 1849, she was left under no greater restraint in
 
 MARRIED WOMAN CANNOT COVENANT. 277 
 
 this respect over her property mentioned in that act, than an unmar- 
 ried woman. But the act of 1860, while it permits a married wo- 
 man, possessed of real estate as her separate property, to bargain, 
 sell and convey such property, and enter into any contract in refer- 
 ence to the same, provides that no such conveyance or contract shall 
 be valid, without the assent in writing of her husband, except in the 
 cases mentioned in subsequent sections. Those cases are when the 
 married female cannot procure the assent of her husband, in conse- 
 quence of his refusal, absence, insanity or other disability, she may 
 still make such conveyance or contract, without the assent of her hus- 
 band, if she can procure leave to make such contract from the county 
 court of the county where she shall at the time reside. The statute 
 points out the mode of making this application, and prescribes the 
 circumstances under which the court is authorized to allow such 
 married woman to sell and convey her real estate, or to contract in 
 regard thereto, without the assent of her husband : they are, 1, if 
 the husband has willfully abandoned his wife, and lives separate 
 and apart from her ; 2, if he is insane, or imprisoned as a convict 
 in any state prison ; 3, if he is an habitual drunkard ; 4, if he 
 is in any way disabled from making a contract ; or 5, if he refuses 
 to give his consent, without good cause therefor. If either of these 
 circumstances concur, the court is required to cause an order to be en- 
 tered in its minutes, authorizing such married woman to sell and con- 
 vey her real estate, or contract in regard thereto without the assent 
 of her husband, with the same effect as though such conveyance or 
 contract had been made with his assent. {L. o/'1860,^. 158, §§ 5, 6.) 
 A deed executed by a married woman under the acts of 1849 or 
 1860, does not require for its validity, that her husband should be 
 united with her in the instrument. It should however be acknowl- 
 edged by her on a private examination, apart from her husband, 
 under the statute. {Gillett v. Stanley^ 1 Hill^ 121.) She can pass 
 her title by such deed, but neither of these statutes has relieved 
 her from the inability to make covenants for title in such deed. 
 Though she joins with her husband in a deed in which there are cov- 
 enants for title, the husband alone is liable for a breach of them, 
 and as to th'e wife, they are void. ( WMtheck v. Cook, 15 John. 483. 
 Jackson V. Vanderhey den, 17 id. 107.) Nor can she be estopped by 
 her covenant of warranty from claiming a subsequently acquired 
 estate in the land conveyed by her. {Teal v. Woodioorth, 3 Paige, 
 470. Carpenter v. Schermerhorn, 2 Barh. Ch. H. 314.) But she ia
 
 278 HER RIGHT TO BRING ACTIONS. 
 
 as effectually concluded, as any other grantor, from denying any ad- 
 mitted fact which.is essential to the effect and operation of the deed. 
 {Grant v. Toivnsend, 2 Hill, 554.) 
 
 That these statutes were intended to obviate the necessity of a 
 marriage settlement is farther evident by the provision contained 
 in the act of 1860, removing the disability of coverture in respect to 
 actions. It is expressly enacted that a married woman may, while 
 married, sue and be sued in all matters having relation to her 
 property, which may be her sole and separate property, or which 
 may after the passing of the act, come to her by descent, devise, be- 
 quest, or the gift of any person except her husband, in the same 
 manner as if she were sole. She is also allowed to bring, and main- 
 tain an action in her own name, for damages against any person or 
 body corporate, for any injury to her person or character, the same 
 as if she were sole ; and the money received upon the settlement of 
 any such action, or recovered upon a judgment is declared to be 
 her sole and separate property. {L. of 1860, p. 158, § 7.) 
 
 The foregoing enactments are innovations of the common law. 
 They give to a married woman, as far as they go, the same privileges 
 which are enjoyed by the unmarried. If the statute had stopped 
 here, it would have still left the husband liable upon such contracts 
 of the wife as she was permitted to make. But a subsequent sec- 
 tion provides that no bargain or contract made by any married 
 woman, in respect to her sole and separate property, or any property 
 which may thereafter come to her by descent, devise, bequest or gift 
 of any person except her husband, and no bargain or cDntract en- 
 tered into by any married woman, in or about the carrying on of any 
 trade or business under the statutes of this state, shall be binding 
 upon her husband, or render him or his property in any way liable 
 therefor. {L. of 1860, p. 159, § 8.) 
 
 The provision of the common law which required the husband to 
 join and be joined with the wife in all actions in which she was the 
 meritorious cause of action, seems thus to be modified. For though 
 the statute does not in terms, say that the husband shall not be 
 joined in an action against his wife in respect to the matters con- 
 tained in that section, it seems to be clearly unnecessary to make 
 him a party to an action in which no liability attaches to him or 
 his property. If he is neither entitled to the fruits of the recovery 
 in the one case, nor liable to the consequences of a defeat in the
 
 TRUSTEE IN MARRIAGE SETTLEMENT. 279 
 
 other, the principles on which the common law required him to 
 join or he joined no longer remain. 
 
 How for the principle of allowing a married M'oman to sue and to 
 be sued with respect to her own property, as if she were sole, will 
 affect the exceptions in her favor, in the statute of limitations, has ' 
 not yet been decided. That exception is based upon the theory 
 that she labors under a disability to seek redress by an action.^ This 
 exception is in part the compensation for the disability which the 
 law imposes. {Code of Procedure, § 88.) So far as the disability 
 is removed, she ceases on principles of equity, to be entitled to the 
 compensation. But probably while the statute remains in force, 
 she is entitled to the benefit of all its provisions. 
 
 The statutes above referred to do not cover all the cases between 
 husband and wife, nor do they forbid the making of marriage settle- 
 ments, or essentially alter the law of trusts and powers. To a cer- 
 tain extent they render marriage settlements unnecessary ; though 
 they do not invalidate them, if the parties choose to resort to that 
 mode of securing the property of the wife. 
 
 In framing a marriage settlement, it is desirable that the prop- 
 erty should be vested in a trustee. This, however, is said not to be 
 indispensable, though much to be preferred. In Strong v. Skinner, 
 (4 Barh. 546,) the subject was fully examined by the court and the 
 early cases reviewed. The learned judge, who delivered the opinion 
 of the court, held that since the decision of Chancellor Kent, in 
 Bradish v. Gihhs, (3 John. Ch. 522,) the validity, in equity, of an 
 ante-nuptial agreement between husband and wife, without the inter^ 
 vention of a trustee, by which the wife reserves to herself the power 
 of disposing of her own property, either real or personal, during cov^ 
 erture, has not been doubted. Though such an agreement becomes- 
 extinguished at law by the subsequent marriage, yet equity supports 
 it, and will compel the husband to perform it. In such a case, 
 whether the property be real or i)ersonal, equity will treat the hus- 
 band as trustee, and hold him to account as such. {Blanclmrd v. 
 Blood, 2 Barh. S. C. B. 352. 2 Story' s Eq. Juris. § 1380. 2 Kent's 
 Com. 162. 1 Mad. Ch. 376.) 
 
 In the creation of a trust for a married woman, it is as essential 
 in a marriage settlement, as it is in a testamentary disposition of 
 property, that it should not violate the statute as to the suspension 
 of the power of alienation, if it be real property, nor the statute as
 
 280 SUSPENSION OF ALIENATION. 
 
 to the accumulation of personal property, if the latter kind of prop- 
 perty be the object of the trust. The revised statutes forbid tho 
 suspension of the absolute power of alienation, by any limitation or 
 condition whatever, for a longer period than during the continuance 
 of not more than two lives in being at the creation of the estate, ex- 
 cept in the single case where a contingent remainder in fee is al- 
 lowed to be created on a prior remainder in fee, to take effect in the 
 event that the j)ersons to whom the first remainder is limited 
 shall die under the age of twenty-one years, or upon any other con- 
 tingency by which the estate of such persons may be determined be- 
 fore they attain their full age. (1 R. S. 723, §§ 15, 16. Harris v. 
 Clark, 3 Seld. 242.) 
 
 With respect to personal property, the statute provides that the 
 absolute ownership thereof shall not be suspended, by any limitation 
 or condition whatever, for a longer period than during the continu- 
 ance and until the termination of not more than two lives in being 
 at the date of the instrument containing such limitation or condi- 
 tion ; or if such instrument be a will, for not more than two lives in 
 being at the death of the testator. In all other respects, limitations 
 of future or contingent interests in personal property are subject to 
 the rules prescribed in the first chapter of the act in relation to fu- 
 ture estates in lands. (1 R. S. 773, §§ 1, 2. Harris v. ClarJCj 
 supra.) 
 
 We have already anticipated, in our chapter on trusts, most of 
 the cases which are applicable to the subject under consideration. 
 The foregoing provisions of the revised statutes have been repeat- 
 edly the subject of consideration by our courts. In most instances 
 the question has arisen under wills ; but the principle is the same 
 in all cases. 
 
 A suspension of the absolute power of alienation for a certain 
 term, however short, avoids the estate; as "until my youngest 
 daughter is eighteen years of age." The suspension must be bound- 
 ed by life. {Boynton v. Hoyt, 1 Henio, 53.) 
 
 A few cases will be adverted to in order to illustrate the provis- 
 ions of the statute. (In Wood v. Wood, 5 Paige, 596,) there was 
 a devise in trust for three infants, to pay them the rents and 
 profits until they were severally twenty-one or twenty-two years old, 
 •with cross-remainders in case any of them should die without issue 
 before coming into his shares with remainder over in case they all so
 
 BY WHAT WORDS CREATED. 281 
 
 died without issue. It was held by the chancellor that the limita- 
 tion over was void for remoteness. 
 
 It has been settled that a devise in trust of an entire estate, to 
 receive the rents or income thereof and to distribute it among several 
 cestui que trusts, cannot be considered as a separate devise of the 
 share of each cestui que trust, so as to protect the share of each as a 
 tenant in common during his own life. If the trust is to endure for 
 a longer period than two lives in being at the death of the testator, 
 the whole devise in trust is void. (Cosher v. Lorillard, 14 Wend. 
 265. Horie v. Van Schaick, 7 Paige, 231.) Nor can the absolute 
 power of alienation be suspended by means of a trust term, unless 
 the term itself is so limited that it must necessarily terminate during 
 the continuance or at the expiration of not more than two lives in 
 being at the death of the testator. {Haioley v. James, 16 Wend. 61. 
 Hone V. Van Schaick, supra.) 
 
 With regard to personal property, it has been held that a trust 
 to recover the income and apply it to the uses of a cestui que trust 
 for his life, or a shorter period, renders the interest of the cestui 
 que trust inalienable, and suspends the absolute ownership of the 
 trust fund ; and if such trust be so liriiited as to suspend the ab- 
 solute ownership for more than two lives in being at the death of 
 the testator, it is void. This is put upon the analogy to the re- 
 strictions of the revised statutes upon the power of alienating a 
 similar interest in the rents and profits of the real estate so limited 
 in trust. (1 R. S. 730, § 63.) Hence an absolute limitation of 
 a trust term for twenty-one years in gross, and a disposition of 
 the rents and income by division among the testator's numerous 
 children and grandchildren and their descendants, for the whole of- 
 that period, was held to be void. [Hone v.' Van Schaick, supra ; 
 affirmed, 20 Wend. 564.) 
 
 In creating trusts under the revised statutes, the conveyancer 
 should, as t\ir as practicable, follow the precise language of the law. 
 If he deviates from the exact phraseology in which the power is 
 given, he cannot be certain that the trust will be valid. The 55th 
 section of the statute of uses and trusts, (1 R. S. 728,) authorizes 
 a trust to receive the rents and profits of lands, and apply them to 
 the use of any jjcrson. Whether, under this provision, a valid trust 
 could be created to receive the rents and profits, and pay them over 
 to the beneficiary, was for a long time a vexed question, and led to 
 much discussion. The opinions of the judges differed. Chief Justice
 
 282 POWER OVER HER SEPARATE PROPERTY. 
 
 Savage and Judge Bronson held that such a trust was void ; while 
 Chancellor Walworth and Judge Nelson held it to be valid. {See 
 Coster V. Lorillard, 14 Wend. 320, 351, 377, 331, 394. Hawley 
 V. James, 16 id. 156. Gott v. Cook, 7 Paige, 539.) 
 
 The question was at length definitively settled in favor of the va- 
 lidity of such a trust, by the court of appeals, mLeggett v. Perkins, 
 (2 Comst. 297.) This expression has been supposed to be equiva- 
 lent to a direction to apply the income to the use of the beneficiary. 
 Either expression is therefore proper ; and that power should be se- 
 lected which is the most appropriate to the circumstances and con- 
 dition of the party to Avhom it belongs. 
 
 It should also be provided in the marriage settlement, not only 
 that the payment of the income by the trustee to the wife, should be 
 a valid payment, but that her receipt therefor, without the inter- 
 ference of her husband, should be a protection to the trustee. 
 
 There was at an early day, before the revised statutes, a difference 
 of opinion between Chancellor Kent and the court of errors, with re- 
 spect to the power of a married woman under a marriage settle- 
 ment over her separate property. The chancellor thought that she 
 must execute the power in the manner pointed out in the articles; 
 and that she was to be treated as a feme sole, only to the extent of 
 the power given her in the marriage settlement. The court of errors 
 held, that though a particular mode of disposition was especially 
 pointed out in the settlement, it would not preclude the wife from 
 adopting any other mode of disposition, unless she was expressly 
 restrained in the instrument to a particular mode. (See Jaques 
 V. Methodist Epis. Ch. supra, and S. C. 3 John. Ch. 87.) 
 
 The decision of the court of errors rendered the wife more com- 
 pletely and absolutely a feme sole in respect to her separate pro])erty, 
 than was before su2:)posed to be the case. The limitation in mar- 
 riage articles to a particular mode of alienation, was intended as a 
 check to the secret and insensible but powerful marital influence, 
 ■which might be exerted unduly, yet in a manner to baffle all in- 
 quiry and detection. (2 Kent's, Com. 166.) The difference betweeu 
 the two courts is now of little consequence in this state. In cases 
 falling within the acts of 1849 and 1860, the wife is left wholly 
 without control as to the mode of alienation ; and in cases, if there 
 be any, not within those statutes, the framer of the marriage articles 
 can easily restrict the unmarried woman to a particular mode of dis- 
 position, and require the consent of her trustee, if such a safeguard
 
 ANTICIPATION. 283 
 
 againsttheinfluenceof the husband is desired. The rule as orig- 
 inally declared by the chancellor, seems to have been preferred in 
 other states. That decision was made before the revised statutes, and 
 was grounded upon the common law. 
 
 Marriage settlements are usually dictated by the prudence and 
 forethought of parents or friends, from an anxious desire to protect 
 the wife from the consequences of the improvidence, misfortunes or 
 vices of the husband. Unless it was competent to prevent the wife 
 from anticipating her income, by an entire disposition of the whole 
 at once, the provision in her favor would be found to be fruitless. 
 If her power of alienation over her separate ^operty is left the same 
 as it is under the acts of 1849 and 1860, there is nothing to prevent 
 her from yielding to the importunity of her husband, and to sur- 
 render at once the fund which was intended to afford her a support 
 for life. To prevent this, a clause against anticipation was formerly 
 allowed to be inserted in th#marriage articles. The revised statutes, 
 while they do not forbid, seem to render this unnecessary ; for they 
 have thrown an effectual protection over the interest of persons not 
 able to protect themselves. The 63d section of the statute of trusts 
 (1 R. S. 730,) enacts that no person beneficially interested in a trust 
 for the |-eceipt of the rents and profits of lands, can assign, or in any 
 manner dispose of such interest ; but the rights and interest of every 
 person for whose benefit a trust for the payment of a sum in gross 
 is created is assignable. And the 65th section of the same title en- 
 acts that when the trust shall be expressed in the instrument cre- 
 ating the estate, every sale, conveyance, or other act of the trustees, 
 in contravention of the trust, shall be void. These sections have 
 received the authoritative exposition of the courts. In L'Amoreux v. 
 Va7i Rensselaer, (1 Barh. Ch. 37,) the chancellor said that previous 
 to the adoption of the revised statutes, a trustee might hold the 
 mere naked legal estate in real property, for a feme covert, while the 
 whole equitable interest and estate therein was in her, and subject 
 to her control. In relation to such an estate, therefore, she was 
 considered as a feme sole, and could charge her equitable interest in 
 the property with any debt she might think pi:oper to contract on 
 the credit thereof, which was not inconsistent with the trust or with 
 the nature of her interest in the premises, and which was authorized 
 by the instrument or conveyance creating the trust. All such mere 
 personal trusts, even in favor of femes covert, are now abolished, and 
 in the few cases which are authorized by the revised statutes, the
 
 284 SUCH CLAUSE NEEDLESS UNDER REVISED STATUTES. 
 
 whole estate, both legal and equitable, is vested in the trustee. The 
 statute also declares in terms, in the 60th section, that the person 
 for whose benefit the trust is created shall take no estate or interest 
 in the land ; but may enforce the performance of the trust in equity. 
 The cestui que trust, therefore, has no right to charge the trust 
 property, even for necessary repairs thereon, without the authority 
 of the trustee. This doctrine has been repeatedl}'' reaffirmed, 
 {Noyes v. Blakeman, 2 Seld. 567. Belmont v. O'Brien, 2 Kern. 
 394.) In Noyes v. Blakeman, [siipra,) the case was this : " In Oc- 
 tober, 1842, the defendant Henry Blakeman and Ann Maria Blake- 
 man, his wife, united in a conveyance of certain lands, (the fee of 
 which was in Mrs. Blakeman as sole heir of her late father,) to Hen- 
 ry F. Belden, in trust : First, to pay over of the rents and profits, 
 the interest upon the mortgages and other incumbrances ; the ne- 
 cessary taxes and assessments ; the necessary expenses incurred in 
 the needful repairs and insurance of the buildings on said premises ; 
 and to pay the remainder thereof to the said Ann Maria, upon her 
 own separate receipt, notwithstanding her coverture, to the intent 
 and purpose that the same, or any part thereof, might not be at the 
 disposal of, or subject to the control, debts, liabilities or engagements 
 of the said Henry Blakeman, or of any future husband she might 
 have, but at her own sole and separate use and disposal. Secondly, 
 upon her decease, during coverture, to apply and dispose of the in- 
 come, as she should by will appoint, and in default of such appoint- 
 ment, to apply said income to the maintenance and education of her 
 children, if any survived her, and if not, to pay the same to Henry 
 Blakeman for life ; with power to devise said lands by will, and to 
 appoint a new trustee or trustees as often as a vacancy should oc- 
 cur." Under this settlement it was held that the trustee, during 
 the life of the beneficiary, had the whole legal and equitable estate 
 in the lands, subject only to the execution of the trust ; and that 
 the married woman for whose benefit the trust was created, had no 
 estate or interest in the lands or in the future income, upon which 
 she could create a lien or charge, for the expense of protecting the 
 trust estate, or for ^ny other purpose. In the same case it was held 
 that a married woman could not incur an obligation, binding her 
 personally, even for the expense of protecting property held by a 
 trustee for her use. 
 
 It would seem that in a trust created since the revised statutes, a 
 clause against anticipation was not necessary, to insure the protec-
 
 THISRE SHOULD BE A TRUSTEE. 2S5 
 
 tion of the interest of a married woman. It is however advisable, 
 that the estate should be conveyed in trust to a trustee, in conform- 
 ity to law ; and not be left in such a manner that the wife would be 
 compelled to seek the aid of a court of equity to convert her husband 
 into a trustee for her benefit. The property of a married woman 
 held. in trust since the revised statutes, is more effectually guarded 
 for her benefit, against the importunities of her husband, than that 
 which she derives under the acts of 1849 and 1860. In the latter 
 cases, she has the same right of disposition as an unmarried woman, 
 and has not the friendly counsel of a trustee to guard her interests 
 from abuse. 
 
 The foregoing cases relate to trusts created in real estate. The 
 revised statutes have. not attempted to define the objects for whict 
 express trusts of personal estate may be created ; as they have done 
 in relation to trusts in real estate. Such trusts therefore may be 
 created for any purposes which are not illegal. Indeed it would be 
 very difficult, says the chancellor, if not impossible, in many cases, 
 to create and preserve future and contingent interests in personal 
 property without the intervention of a trustee ; although such trus- 
 tees would not be necessary, under the provisions of the revised 
 statutes, to create and preserve such future and contingent interests 
 in lands, or other real estate. {Gott v. Cook, 7 Paige, 534. Kane 
 v. Gott, 24 Wend. 661, ^er Cowen, J. Daij v. Both, 4 Smith, 448. 
 WiUard's Eq. Jur. 423.) 
 
 Most of the cases which are reported in this state arose under 
 marriage settlements executed previous to the revised statutes, and 
 were decided according to the principles then in force. The law in 
 relation to trusts and powers underwent great changes when the 
 statutes were revised in 1830. Many of the trusts usually inserted 
 in marriage settlements in England, would now be invalid if intro- 
 duced into such articles, in this state, at the present day. Many 
 others are rendered useless and unnecessary by our existing laws ; 
 and others are inapplicable to our law of tenures, converting estates 
 tail into estates in fee simple. 
 
 In framing articles of marriage settlement regard must be had to 
 the existing state of our law relative to trusts and powers. The 
 more simple they can be drawn, the less likely will they be to lead 
 to litigation. The tendency to preserve estates for distant and re- 
 mote generations is severely checked by the policy of our laws. 
 They should allow the receipt of the wife of the income to be a good
 
 286 • ANTE-NUPTIAL AGREEMENT. 
 
 discharge to the trustee, and should provide for her ultimate dispo- 
 sition of the property at her death, by a will, or an instrument in 
 the nature of a will. 
 
 It cannot be expected in a brief chapter on this interesting subject, 
 that a a full discussion can be had of "all that appertains to marriage 
 settlements. If free from fraud, they will be upheld against the 
 claims of the creditors of the husband. Equity affords its aid to 
 execute covenants contained in them in favor of any person within 
 the influence of the marriage consideration. The husband and wife 
 and their issue fall within this influence. 
 
 The general division of this class of agreements is into such as are 
 made before marriage and in contemplation of that relation, and 
 ^uch as are made afterwards. The first are sometimes called ante- 
 nuptial, and the last post-nuptial, agreements. We shall, in the 
 further consideration of this subject, subjoin some remarks on each 
 of these kinds of agreements, and notice some of the incidental and 
 collateral principles which usually attend them. 
 
 Section II. 
 
 Of Ante-nuptial Agreements and Settlements made hefore marriage. 
 
 The general rule with respect to a nuptial contract is that rights 
 dependent on it are governed by the lex loci contractus. {Decouche 
 V. Savetier, 3 John. Ch. 190.) Our courts have occasionally had to 
 investigate the foreign law and apply it to the transactions of the 
 ])arties. These cases are not of frequent occurrence. We shall in- 
 vite the attention of the reader to only a few of them. In the case 
 of Le Breton v. 3Iiles, decided in the court of chancery of New York, 
 in 1840, (8 Paige, 261,) the subject was very fully considered 
 by the chancellor. In that case, two natives of France entered into 
 an ante-nuptial contract in New York relative to their future in- 
 terests in property which they had at the time of the marriage, or 
 w^iich they should acquire during the coverture, which contract was 
 made in reference to the law of France, and to an intended residence 
 in that country, and was by its terms to be afterwards drawn up in 
 the due form of a marriage contract according to the French law, 
 but the parties after their marriage continued to reside in this state. 
 It was held notwithstanding, that the rights of the parties under 
 such contract must be governed by the laws of France which were 
 in force at the time of the commencement of the marriage.
 
 AGREEMENTS AS TO FOREIGN LAWS. 287 
 
 In this Ccose the ante-nilptial agreement is set out at full length, 
 and is accompanied with the remarks of the chancellor upon it. 
 Many princii)les were settled with reference to the French law, which 
 it is unnecessary to notice in this place. It was said that when 
 parties marry with reference to the laws of a particular state or 
 country, as their intended domicil, those laws govern in the con- 
 struction of a marriage contract entered into between them, so far 
 at least as their rights of personal property are concerned. But the 
 remedy to secure such property, and to protect the rights of the 
 parties to the contract, must be according to the law of the country, 
 in the courts of which such remedy is sought. 
 
 In De Barante, v. Gott, (6 Bm-h. 492,) the aute-nuptial contract was 
 executed in France with the solemnities required by the laws of that 
 country, and was executed with reference to a marriage of the parties, 
 which took place two days after. In one branch of the articles, it 
 was stipulated that in case of the death of the wife, without having 
 children, her husband receiving the real estate of which she should 
 die possessed in the United States, should be immediately sold, and 
 the proceeds remitted to her husband. It was held that this pos- 
 session operated as a grant to the husband, contingent upon the 
 event which happened. Independent of the ante-nuptial articles, the 
 husband would not have been entitled, by the law of this country, 
 to succeed to the real estate belonging to his wife at the time of 
 her death. Yet full effect was given to the marriage articles. 
 
 In that case there was no trustee appointed by the marriage arti- 
 cles by whom the real estate of the wife, on her death, could be sold 
 and the proceeds remitted to the husband. This, however, was held 
 to be no obstacle, as equity never suffers a trust to fail for want of a 
 trustee, and land directed to be sold and converted into money is, 
 for all purposes, on the principles of equitable conversion, to be 
 treated as if so converted. {See also Craig v. Leslie, 3 Wheaton, 
 563 ; Gott v. Cook, 7 Paige, 534, 07i the subject of equitable con- 
 version.) The subject of marriage contracted in France, under the 
 law of community, was also considered, in Vail v. Vail, (17 Barb. 226.) 
 
 In affording relief in matrimonial contracts made with reference 
 to the laws of another country, courts are governed by the law of 
 comity. {Story's Conflict, ch. 2.) But no aid, it is presumed, 
 will be granted in carrying out matrimonial engagements made with 
 reference to a foreign country, when the principles sought to be en- 
 forced are against sound morals and the settled laws and institutions
 
 288 BOTH SHOULD JOIN IN THE ARTICLES. 
 
 of the country whose courts are resorted to for relief. Thus, agree- 
 ments based on the principles applicable to polygamy, though the 
 parties contemplate a residence in a country where polygamy is 
 authorized by law, will not be aided by our courts. 
 
 It is, however, mainly with reference to cases arising in this coun- 
 try that the conveyancer will be called upon to act. A settlement 
 made by the wife before marriage is in derogation of the marital 
 rights of the husband, and if made without his knowledge, is fraud- 
 ulent and void. The fraud consists in disappointing the hopes and 
 expectations raised by the marriage treaty. The proper way is, to 
 have the intended husband and wife join in the articles which convey 
 the estate to the trustee, then both are bound by it. Such instru- 
 ment should contain the trusts by which the property is held, and 
 the powers which are intended to be reserved or conferred upon the 
 ■wife. Of course the settlement here spoken of, is of the property of 
 the wife. 
 
 But marriage articles often provide for vesting in the trustee for 
 the benefit of the wife property belonging to the husband. Both 
 parties should join in such instrument. We have seen in a previous 
 chapter, in what manner a wife may bar her right to dower, by an 
 ante-nuptial agreement, and in what cases she is put to her election 
 between her jointure and her dower. (1 R. S. 741, §§9-12. Mc- 
 Cartee v. Teller, 2 Paige, 511, 561. Ante, p. 66, 69.) It will not be 
 necessary to repeat what was there said. 
 
 We have seen th^t the husband has only a qualified interest in 
 the wife's chattels real. He may reduce them to possession ; but 
 if he fails to do so and dies, they survive to the wife, both at law 
 and in equity. Now the wife's contingent right of survivership may 
 be barred by a settlement, made upon her before marriage, or by a 
 settlement after marriage, in pursuance of an agreement before mar- 
 riage. Such a settlement, if adequate to the wife's fortune, has been 
 considered as a purchase of it, though there was no agreement be- 
 tween the parties to that effect. {Blois v. Lady Hertford, 2 Vern. 
 501. Clancy, 102.) The wife cannot have her jointure and fortune 
 both. The one is supposed to be the equivalent of the other. 
 
 Previous to the revised statutes of 1830, and as the law stood at 
 that time, an absolute conveyance in fee, to a married woman, 
 whether by deed or devise, carried with it a present life estate to the 
 husband, and an estate by curtesy, if there was issue born alive of
 
 HOW SETTLEMENT MADE WITHOUT A TRUSTEE. 289 
 
 the marriage. A parent or friend, who wished to vest in the wife 
 the uncontroUed disposition of the fee, could not do it by a direct 
 grant or devise to her in fee. It was to enable him to do so and to 
 prevent the consequences which resulted from her ownership of real 
 estate during the marriage, that the 80th section of the article on 
 powers was passed. If the grantor wished that the husband should 
 have no control or interest in the property in right of his wife, he had 
 only to annex to the grant or devise a power to the married woman, 
 authorizing her to dispose, during her marriage, and without the 
 concurrence of her husband, of the lands so conveyed or devised to 
 her in fee. This power the owner of the fee has a right to confer ; 
 and it precedes the interest which the husband would otherwise 
 have in it ; and on being executed by the wife, overreaches any in- 
 choate rights which as husband he would have at common law. 
 Under such a power a wife could, even before the laws of 1848, 1849 
 and 1860, relative to the rights of married women, take a conveyance 
 in fee to her separate use, with a power to convey to any one whom 
 she might choose, for her own benefit ; and thus a very proper mar- 
 riage settlement could be made without the intervention of trus- 
 tees. ( Wright v. Tahnadge, 15 N. Y. Rep. 313.) 
 
 We have seen in a preceding chapter, (see Part 2, ch. 2,) that by 
 the 110th section of the article on powers,- the disability of coverture, 
 in respect to the execution of powers, is completely taken away, and 
 a married woman may without the concurrence of her husband, exe- 
 cute, during coverture, any power which may be lawfully conferred 
 upon any person, unless the instrument creating the power forbids 
 its execution during marriage. 
 
 The 80th section, before adverted to, relates to a general and hen- 
 ejicial power, given to a married woman, &c. What constitutes a 
 general and beneficial power is sometimes open to controversy. In 
 Jackson v. Edioards, (22 Wend. 498,) where an estate was granted 
 during the joint lives of a husband and wife, with power to the wife 
 of ap2^ointing the fee either by deed or will ; and if she died before 
 her husband, without executing the power, the estate to go to her 
 issue ; and in default of issue, to her right heirs — she taking the 
 absolute fee if she survived her husband ; it was held that the wife 
 had a general and beneficial power, within the provisions of the stat- 
 ute, of appointing the fee. {S. C. 7 Paige, 386. Frazer v. West- 
 ern, 1 Barh. Ch. 240. Wright v. Talmadge, supra.) 
 
 We have seen that trusts in marriage settlements may be so cre- 
 
 WlLL.— 19
 
 290 POLICY OF INALIENABLE SETTLEMENTS. 
 
 ated that the property is inalienable until the purposes of the trust 
 have been accomplished. In such a case the wife is relieved from 
 all importunity from her husband, because such importunity would 
 be fruitless. But in a country like ours, where the condition of 
 affairs is constantly changing, and where the interests and happiness 
 of all parties may be greatly benefited by a change of domicil from 
 one part of the country to another, it may well be doubted whether 
 there is not more lost than is gained by the unalterable stability 
 of a settlement. Few persons desire to be absolutely confined to one 
 spot, however desirable in itself, and no one can anticipate all the 
 exigencies that may arise in the affairs of any family. In settle- 
 ments where the wife has the disposition of her estate during cover- 
 ture, as well as in cases arising under the late acts of 1849 and 1860, 
 she can always, by uniting with her husband in the deed, convey an 
 indefeasible title to the estate. She may execute a mortgage of her 
 own estate, under a power reserved to her in a marriage settlement 
 executed previous to the marriage. {Leavitt v. Pell, 27 Barh. 322.) 
 In the last mentioned case, the wife, by a marriage settlement exe- 
 cuted in 1827, in effect reserved the right and power to sell and dis- 
 pose of her real estate included in the settlement as she should think 
 proper, and as if she were a feme sole ; and to revoke the uses and 
 trusts contained therein, and to declare new uses and trusts, by deed 
 under the hands and seals of herself and her husband. In 1834, a 
 tripartite indenture was executed by P. the husband, as party of the 
 first part, Mrs. P. of the second part, and S., the trustee of the wife, 
 of the third part, by which, after reciting the seisin of S. in trust 
 for Mrs. P. of certain lands, subject to powers of revocation and ap- 
 pointment of new trusts, the employment of her separate estate to 
 buy the same, and an agreement to revoke such trusts, and that the 
 same should be held by S. lipon the trusts thereinafter mentioned — 
 the parties of the first and second parts to carry such agreement 
 into effect by virtue of all the powers vested in them, revoked all 
 existing uses, estates, trusts, powers and limitations, in respect to 
 such lands, other than those intended to be executed, limited and 
 appointed to the use of S. the said premises upon the trusts therein 
 mentioned ; and conveyed the same to him in fee, upon such trusts, 
 to wit : 1. To receive the rents thereof and apply the same to Mrs. 
 P.'s separate use, free from the control, debts or engagements of any 
 husband of her's. 2. After her death, to convey such premises as she 
 should direct by last will and testament, &c. and in default of such
 
 HUSBAND BOUND TO SUPPORT HIS WIFE. 291 
 
 appointment, to receive the rents thereof and jiay the same to Mrs. 
 P. for life. 3. After the death of both Mr. and Mrs. P. and in de- 
 fault of such appointment by her, to her issue, and in default of 
 issue to her heirs. This instrument also contained this proviso, viz : 
 That Mrs. P. might, notwithstanding her coverture, with the con- 
 sent of Mr. P. if living, or alone if he were dead, by deed, mortgage, 
 charge, or make chargeable, such premises, with and for the pay- 
 ment of any sum and sums of money, &c. It was held by the su- 
 preme court in the first district, that this deed or instrument was a 
 disposition and revocation within the meaning of the marriage set- 
 tlement of 1827, as to the premises mentioned therein ; and that by 
 it, and as a part of such disposition and revocation, Mrs. P. reserved 
 the power to mortgage the said premises with the consent of her 
 husband. And the husband and wife, and S. the trustee, haying 
 subsequently joined in executing a mortgage to the North American 
 Trust and Banking Company ; it was further held, that such mort- 
 gage was a proper execution of the power, and was valid ; the assent 
 of the husband being shown by his executing the same, and the legal 
 title being conveyed by S.'s execution thereof 
 
 In general the marriage articles should be executed by parties 
 able to contract. The rule seems to be universal that all deeds, or 
 instruments under seal, executed by an infant, are voidable only, 
 with the single exception of those which delegate a naked authority, 
 which alone are void. (Bool v. 31{x, 17 Wemd. 119. Gillett v. 
 Stanley, 1 Hill, 121.) The objection tq^ the validity of a marriage 
 settlement on the ground that the parties were infants, can only be 
 made by the parties themselves. It cannot be raised by the trustee. 
 Such instrument is not void, but voidable only. (Jones v. Butler, 
 30 BarK 641.) 
 
 Although the whole real and personal estate of the wife be secured 
 to her separate use, the husband is notwithstanding bound to main- 
 tain her and family during coverture. (Bleth. Ep. Church v. Jaques, 
 1 JoJm. Ch. 450.) Nor do either of the acts of 1848, 1849 or 1860, 
 relieve the husband from his liability for the torts of his wife, or 
 derogate from his power of personal control over her. (Hashrouck 
 V. Weaver, 10 John. 247.)
 
 292 POST NUPTIAL AGREEMENTS. 
 
 Section III. 
 
 Of Post Nuptial Agreements, and Settlements made after 3Iar- 
 
 riage. 
 
 It is a general principle of the common law that a deed from the 
 husband directly to the wife is void, though she might purchase of 
 others without the consent of her husband. (Co. Lit, 3 a. Sliep- 
 ard V. Shepard, 7 John. Ch. 60. Strong v. Skinner, 4 Barh. 552.) 
 Hence post nuptial marriage settlements can rarely be made with- 
 out the aid of a court of equity. In Shepard v. Shepard, (supra,) 
 Chancellor Kent held that a suitable provision by deed from a hus- 
 band to his wife, will be supported in equity. 
 
 If a settlement be made after marriage in pursuance of a prior agree- 
 ment entered into before marriage, it is valid not only between the 
 parties, but as against creditors. It is merely doing by the act of the 
 parties what the court would order to be done. {Beade v. Livings- 
 ton, 3 John. 488.) Marriage itself is a sufficient consideration to 
 uphold such a settlement. 
 
 Questions with respect to the validity of post nuptial settlements 
 most frequently arise between the creditors of the husband and the 
 wife, or her trustee in whom the title is vested. It is well settled 
 that a voluntary settlement either of lands or chattels, by a person 
 indebted at the time, for the benefit of his wife and children, is void 
 as against his creditors. This rule applies as well to such property 
 as the creditor could not reach, by execution at law, such as choses 
 in action, &c., as to tangible chattels. Indeed, the process of the 
 court can, according to present practice, be made available against 
 choses in action and equitable interests, as well as against real prop- 
 erty or chattels. {Baijard v. Hoffman, 4 John. Ch. 452. Beade 
 V. Livingston, supra. Code, § 292, d:c.) 
 
 But if the husband, though indebted at the time, settles upon the 
 wife personal estate which came to her by descent from her relatives, 
 to no greater extent than the court of chancery would have directed 
 him to do upon a bill filed against him by the wife to protect her 
 equitable claim to a support for herself and her children out of the 
 same, such voluntary settlement will be sustained as against the 
 creditors of the husband ; although it may be void as to other prop- 
 erty contained in the same conveyance to the trustee. ( Wickes v.
 
 AS AGAINST CREDITORS. 293 
 
 Clarle, 8 Paige, 161.) Under the late acts relative to the property 
 of married woiiien, (the acts of 1849 and I860,) the creditors of the 
 husband could not reach such property at all ; and they, therefore, 
 would have no equity to disturb a settlement of it by the husband 
 in favor of his wife. 
 
 As against creditors whose debts existed at the time, a post nup- 
 tial settlement will not be permitted to stand beyond the value of 
 the consideration. (Gnrlick v. Stroiuj, 3 Paige, 452.) 
 
 Although post nuptial contracts between husband and wife, by 
 which property is set apart to her separate use, are void at law, yet 
 if they arise out of considerations moving from her, they will be sus- 
 tained in equity. Thus, where the husband, who was about to sell 
 his estate, agreed with his wife, and with the knowledge of the pur- 
 chaser, that if she would join in a deed of the premises so as to re- 
 lease her dower, she should receive a certain portion of the purchase 
 money as her separate property, free from the control of her hus- 
 band ; and the purchaser gave a note to the wife for her share of the 
 purchase money, and the agent for the wife, in whose hands the note 
 had been placed for her use, loaned a part of the money received oa 
 the note, and took a bond and mortgage directly to the wife ; and 
 the husband afterwards assigned the mortgage to the original pur- 
 chaser of the estate, without the assent of the wife, or her agent, it 
 was held that in equity the bond and mortgage belonged to the wife, 
 and that she was entitled to the money due thereon for her sepa- 
 rate use. [Garlich v. Strong, sicjJ. Searing v. Searing, 9 Paige, 289.) 
 
 With regard to what is a sufficient consideration for a post nup- 
 tial settlement as against creditors ; not only her joining with her 
 husband in a deed so as to discharge her claim to dower in the land 
 conveyed, but her equity in a legacy, before the late statutes, have 
 been held to be sufficient for this purpose. {Patridge v. Havens, 
 10 Paige, 618.) 
 
 Although upon a deed iiiter partes a stranger cannot, at law, re- 
 cover on a covenant contained therein for his benefit, yet a court of 
 equity will give effect to stipulations of this kind in marriage arti- 
 • cles, and other conveyances in trust, upon the application of the 
 party for whose benefit the provision was intended. 
 
 Thus, where the bill charged, that by a post nuptial agreement 
 between the defendants, a husband and his wife, the property of the 
 wife was conveyed to trustees, and it was agreed that a certain spe- 
 cified part of the property should be vested in stocks, or put out at
 
 294 NO TECHNICAL WORDS NECESSARY. 
 
 interest as a provision for the complainant for whom the wife con- 
 sidered herself under a moral obligation to provide, and that the 
 interest or the dividends on the stock should he paid to the wife, 
 free from the control of her husband, for the use and benefit of the 
 complainant, according to the directions of the wife during her life, 
 and that upon the death of the wife the principal should become the 
 property of the complainant if she survived her ; and the bill fur- 
 ther charged that the husband refused to permit his wife to receive 
 the dividends on the stock, and to pay them over, according to her 
 direction, to the complainant ; a general demurer to the bill for want 
 of equity, put in by the husband for himself and wife jointly, was 
 overruled. {Bleeker and wife v. Bingham, 3 Paige, 246. King v. 
 WhMy^ 10 id. 465.) 
 
 No technical form of words is necessary to create a trust for the 
 separate use of a married woman. If the property be vested in a 
 trustee, and the trust declared to be for her sole use and benefit, and 
 the money to be paid to her individually, it is equivalent to provid- 
 ing for payment to the wife upon her separate receipt, and to exclude 
 the husband. (Stuart v. Kissam, 2 Barb. 493.) 
 
 Before the late statutes relative to the estates of married women, 
 the separate estate existing in the wife beyond the control of the 
 husband, was subject to the incidents of ownership. In regard to 
 such property she was treated in equity as a feme sole. She might 
 dispose of it without the solemnity of a private examination. Such 
 disposition was in the nature of an appointment. (Albany Fire 
 Ins. Co. V. Bay, 4 Barb. 407 ; S. C. on appeal, 4 Comst. 9.) She 
 " might mortgage it. Her receipt given to the executor, upon pay- 
 ment of a legacy absolutely belonging to her, as her separate prop- 
 erty, was a good discharge. (Guild v. Peck, 11 Paige, 475.) 
 
 Having a separate estate subject to her own disposal, she might 
 give it to her husband, as well as to any other person, if her dispo- 
 sition of it was free, and not the result of flattery or force, or im- 
 proper treatment. (Cruger v. Cruger, 5 Barb. 226.) 
 
 Her separate estate was not liable, at common law, for her debts 
 contracted before marriage ; and the only ground upon which it 
 could be reached in equity, was that of appointment ; that is, some 
 act of hers, after marriage, indicating an intention to charge the 
 property. ( Vanderheyden v. Mallory, 1 Comst. 452.) 
 
 The common law cast upon the husband a temporary liability for 
 the debts of the wife contracted before marriage. This liability
 
 mSURANCE OF HUSBAND'S LIFE, FOR WIFE. 295 
 
 ceased with the coverture, unless judgment had been recovered 
 against both. If the wife survived the husband, and judgment had 
 not been recovered, her sole liability revived. Hence her private 
 property could not be reached for such antecedent debts. But 
 when a debt was contracted by a woman during coverture, either 
 for herself or as surety for her husband, this was prima facie evi- 
 dence of an appointment, or appropriation of her separate estate to 
 the payment of the debt. {Id. S. C. 3 Barh. Ch. 9.) These prin- 
 ciples were somewhat modified by the act of 1853, chapter 576. 
 Now, an execution upon a judgment against husband and wife, for 
 the debt of the wife contracted before marriage, binds only the sepa- 
 rate estate and property of the wife ; and the husband is no longer 
 liable for the debts of the wife contracted before marriage, only to 
 the extent of the property acquired by the marriage. 
 
 The tendency of the legislation in this state has been for many 
 years in favor of increasing the provision which the common law 
 made for married women and for widows. Our exemption laws, the 
 acts of 1848, 1849 and 1860, and those concerning the administra- 
 tion of the estates of deceased persons, are examples of this tendency. 
 These have already been sufficiently noticed. 
 
 In 1840, in furtherance of the same policy, it was made lawful for 
 any married woman, by herself, and in her name, or in the name of 
 any third person, with his assent, as her trustee, to cause to be insured, 
 for her sole use, the life of her husband, for any definite period, or 
 for the term of his natural life ; and in case of her surviving her hus- 
 band, the sum or net amount of the insurance becoming due and 
 payable, by the terms of the insurance, required to be made payable 
 to her, to and for her own use, free from the claims of the represent- 
 atives of the husband, or of any of his creditors ; but such exemp- 
 tion was not to apply when the amount of the premium annually 
 paid should exceed three hundred dollars. In case of the death of 
 the wife, before the decease of her husband, the amount of the in- 
 surance, it was provided, might be made payable, after her death, to 
 her children for their use, and to their guardian, if under age. 
 
 This modification of common law rules in favor of man-ied wo- 
 men was equivalent to a marriage settlement, to the extent of the 
 sum limited by the act. It was a beneficent provision which thus 
 enabled her or her friends to place a certain sum beyond the reach 
 of the husband's creditors, in case he should be insolvent when he 
 died. But the act of 1840 was not based on the supposition, that
 
 296 OF MERGER. 
 
 the premium on the policy of insurance was to come in any case 
 from the estate of tlie husband. If it was supplied from her sepa- 
 rate property, or from any other source than from her husband's 
 estate, his creditors had no equity to it. But it was obvious that 
 in most cases the premium would be paid by the husband. If an 
 insolvent should take the funds, which in justice belong to his cred- 
 itors, and employ them in effecting an insurance upon his life for the 
 benefit of his wife and children, the law would follow the fund on 
 the death of the husband and make it available to the payment of 
 his debts, upon the principle that every man should be honest be- 
 fore he is generous. As between his wife and children and other 
 kindred of the deceased, the provision of the statute would be sus- 
 tained in favor of the former, whatever might be the case between 
 them and his creditors. 
 
 The act of 1858, ch. 187, p. 306, removed some of the difficulties 
 which have been suggested, and extended this exemption of the in- 
 surance to all cases where the premium annually paid out of tho 
 funds or property of the husband shall not exceed three hundred 
 dollars. This is, in effect, withdrawing so much more of the estate 
 of a deceased person from the claims of creditors in favor of the 
 widow and children. If the annual premium paid out of the estate 
 of the husband exceeds three hundred dollars, it is not protected by 
 the statute, from the claims of the representatives and creditors of the 
 husband. But if the premium does not come from the estate of the 
 husband, his representatives or creditors have no just title to it. 
 
 CHAPTER IV. 
 
 OF MERGER. 
 
 The subject of merger has been adverted to in several places in 
 this treatise ; but its imjwrtance and the intricacy of the doctrine 
 seem to justify a more full discussion of it in a separate chapter. 
 
 It is not easy to give the definition of merger. Cases may easily 
 be put in which it takes place ; but that is rather a description of 
 its effect than a definition of the term. The case put by Blackstone 
 is an apt illustration of the rule. Whenever, he says, a greater 
 estate and a less coincide and meet in one and the same person, without
 
 MERGER. 297 
 
 any intermediate estate, the less is annihilated or is said to he merged, 
 that is, sunk or drowned in the greater. (2 Black. Com. YJI.) 
 
 Merger is tlie act of the law, hy which the less of two vested 
 estates is extinguished, hy uniting in the same person in the same 
 right, without any intermediate estate. The ohject is to accelerate 
 the estate in which the merger takes place. The estate in which, 
 the merger takes place is not enlarged by the accession of the 
 preceding estate. After the merger, the only subsisting estate 
 continues precisely of the same quantity and extent of ownership 
 as it was before the accession of the estate which was mersred 
 Thus if the owner of the reversion in fee, depending on an estate 
 for years, acquires the title of the tenant for years, the two estates 
 are blended into one. The estate of the reversioner in fee is 
 not enlarged, because he has still only a fee, but the possession is 
 accelerated by the annihilation of the estate for years. He is not 
 said to have a fee simple and an estate for years, but a fee simple 
 only, with the right of immediate enjoyment. 
 
 We cannot, in a single chapter, discuss at much leugth the doc- 
 trine of merger. It has been very fully treated by Mr. Preston in 
 his treatise on merger, to which we are greatly indebted for the fol- 
 lowing pages on this subject. We shall therefore bring together, in 
 successive sections, some of the leading principles on the subject, 
 and incorporate with them such decisions of our own courts as may 
 seem to be material. 
 
 Section I. 
 
 Of the difference behveen Merger and certain Acts of Law 
 analogous to it. 
 
 There were at common law five different acts of law, which resem- 
 bled each other in many respects, but which were still distinguishable 
 from each other. They were merger, suspension, extinguishment, 
 discontinuance and remitter. 
 
 Merger, we have already seen, is the extinguishment by act of 
 law of one estate in another, by the union of the two estates in the 
 same person, in the same right, without any intermediate estate. 
 The term estate in this definition must be understood in its technical 
 meaning ; as being the interest which one has in lands, or other 
 property, rather than the land itself In this sense it is nearly sy- 
 nonymous with the words rights title and interest. The word ia
 
 298 SUSPENSION"— REMITTER. 
 
 often used in a broader sense, as denoting the corpus. Tims, a man 
 speaks of his funn as being his estate. 
 
 Extinguishment is the annihilation of a collateral thing or sub- 
 ject, in the subject itself out of which it is derived. Thus, a rent 
 may be extinguished. A common may be extinguished. Extin- 
 guishment is sometimes confounded with merger, but they are dis- 
 tinguishable. Merger is only a mode of extinguishment ; and ap- 
 plies to estates only under particular circumstances. But extin- 
 guishment is a term of general application to rights as well as estates. 
 (Crabhe on Ileal Prope7^fy, § 1488.) 
 
 Susjjension is a partial extinguishment, or extinguishment for a 
 time. 
 
 Discontinuance is defined by Preston to be the cesser of a seisin 
 under one estate and the acquisition of a seisin under a new, and 
 necessarily a wrongful act. It occurred wdiere a tenant in tail cre- 
 ated a larger estate in the land than he was by law entitled to. It 
 operated to take away the right of entry, and put the issue or those 
 in remainder to the necessity of bringing a real action. (3^/. Corn, 
 167.) This species of title does not exist in this state, or in this 
 country ; and it is substantially abolished in England by 3 and 4 
 Will. 4, ch. 27, § 39. 
 
 Remitter is the act of the law which puts an end to the seisin 
 under the wrongful and new acquired title, and restores the rightful 
 owner to the ancient seisin and better title. Remitter is the same 
 in effect, as to rigJits andtitles, which merger is as to estates, and ex- 
 tinguishment is of things. The doctrine of remitter proceeds on the 
 ground that the possession is cast on an innocent person, who has an 
 existing title to the possession ; or that the freehold is cast on a 
 person who has a right which is remediable, and who has done no 
 act by which he has estopped himself to insist on his ancient title ; 
 and then as often as the possession, where the entry is lawful, or the 
 immediate freehold, when the right is remediable, devolves to that 
 person by act of law, or is vested in him by the act of the parties, 
 without his concurrence or voluntary consent, or at a time when that 
 person, (as in the case of an infant, feme covert, &c.) is under an 
 incapacity of giving assent to any act which would be prejudicial, 
 the law does of itself restore the party to that estate to which he 
 tad a subsisting right of possession at the time when he entered, or 
 a subsisting right of action at the time when the freehold devolved 
 on him. A remitter, when it operates, universally supplies the
 
 ORIGIN OF MERGER. 299 
 
 place of an entry, when an entry is lawful ; and of an action when 
 an action might be maintained. (Presto7i on Merger, 12, 13.) It 
 redresses the injury done to the person in whom the right resides, 
 by putting him into possession, or obtaining for him seisin of the 
 freehold under his rightful title, in the same manner, and to the 
 same extent, as he could restore himself to his estate by means of an 
 entry, or an action. {Id.) 
 
 The difference between remitter and merger may be thus concisely 
 stated. Remitter revives the seisin under the ancient title, in favor 
 of the person in whom the possession of the freehold becomes vested, 
 under a defeasible estate. Merger, on the contrary, puts an end to 
 a subsisting estate, though held by a good title, and it accelerates 
 the right of possession under a remote estate, residing in the same 
 person. {See Co. Lift. 347 b; Litt. § 659 e^ seq.; Preston on Mer- 
 ger, 14.) 
 
 Section II. 
 Of the Origin of Merger, and of the Effect of Intention upon it. 
 
 It is, perhaps, impossible to trace the doctrine of merger to its or- 
 igin ; or to assign it to any one princij)le to which there may not be 
 some exceptions. The most obvious reason is that which results 
 from the maxim, Nemo potest esse dominus et tenens. This is sub- 
 ject to fewer objections than any other one principle which has been 
 given as the foundation of the doctrine. This applies to actions 
 and causes of actions as well as to estates. A man cannot be plain- 
 tiff and defendant in the same matter, any more than he can be 
 both landlord and tenant of the same estate. If by the course of 
 the transaction between parties, the estate of the tenant is vested in 
 that of the landlord, it is extinguished or rather merged in that of 
 the larger estate. If the owner of the fee simple, having granted an 
 estate for years, should afterwards, during the continuance of the 
 estate for years, succeed to the latter estate by operation of law or 
 purchase, with no intervening estate, a merger would take place of 
 the estate for years in the estate of inheritance. The owner of the 
 fee simple would thus become landlord and tenant. He would be 
 entitled to the rent and the benefit of the other covenants in the 
 lease, and be at the same time the person, by whom that rent was 
 to be paid, and these covenants are to be performed. The law deals
 
 300 EXTINGUISHMENT. 
 
 more wisely when it extinguishes the less estate in the greater, by 
 the doctrine of merger, than by keeping up incompatible relations. 
 
 In the Touchstone (p. 300) merger is treated as a surrender in 
 law. When the immediate effect of a conveyance corresponds to a 
 surrender, the instrument must be pleaded as a surrender, and not in 
 the words in which the intention is expressed. In short, says Mr, 
 Preston, there is not any case in which merger will take place, un- 
 less the right of making and accepting a surrender resides in the 
 several persons between whom the transaction which causes the de- 
 termination of one of these estates, takes place. 
 
 The effect of a surrender is not always the same as that of mer- 
 ger. If the lessee for life make a lease for years rendering rent, and 
 afterwards the lessee for life surrender his estate ; in this case, albeit 
 the primitive estate for life be yielded up, yet the derivative estate 
 for years shall continue notwithstanding ; but the surrenderee shall 
 not have the rent reserved upon the lease for years. So if lessee for 
 life or years break a covenant with his lessor, and after surrender his 
 estate to him, his breach of covenant is not thereby saved, for the 
 lessor may have an action of covenant still, notwithstanding the sur- 
 render. {Touchstone, 301.) If, therefore, the lessee for life desires 
 not only to surrender his estate to the lessor, but also to transfer the 
 rent due and to become due to him from the tenant for years, there 
 should not only be a surrender of the life estate, but an assignment 
 to the primitive lessor of the lease for years. It is probable that a 
 grant, under the revised statutes, by the tenant for life to the orig- 
 inal lessor of all his estate in the premises, and of the lease for years 
 granted by him, and the rent due and to become due thereon, would 
 operate as a surrender of the primitive lease, and an assignment of 
 the derivative one to the original lessor. 
 
 Section III. 
 
 Of the Extinguishment of the equitable in the legal estate, and of a 
 simple contract in a specialty or judgment, fregueiitly denomi- 
 nated Merger. 
 
 We have pointed out, in a previous section, the difference between 
 merger and extinguishrnent, showing that the former relates to 
 estates only, while the latter is a term of general application to 
 rights as well as estates. The union of the legal and equitable 
 estate in the same person and in the same right, operates as an ex-
 
 MEKGER— APPORTIONMENT. 301 
 
 tinguishmerit of the equitable estate. For the doctrine of merger, 
 technically speaking, it is essential that the several estates consoli- 
 dated by merger should be all legal or all equitable; and this 
 whether the union be by act of the law or act of the party. {Den 
 V. Van Ness, 5 Halst. 102.) Merger is a mode of extinguishment. 
 The two are often confounded together ; and our judges have not 
 always been careful to distinguish the one from the other. They 
 have frequently used indiscriminately the term merger and extin- 
 guishment as meaning the same thing. And they have generally 
 denominated the union in one person of the equitable with the legal 
 estate, as a merger of the former in the latter. In this sense a more 
 enlarged and popular signification is given to the term merger, than 
 is strictly appropriate. It does not, however, occasion any essential 
 difficulty in the discussion of principles. Using the term, therefore, 
 as oar own judges have used it, we shall proceed to notice the appli- 
 cation of the doctrine to the cases mentioned at the head of this 
 section. 
 
 At an early day, the chancellor, in NicJiohon v. Hallett, (1 John. 
 Ch. 422,) said that it is a settled principle that when the legal and 
 equitable estates, being coextensive, unite in the same person, the 
 equitable estate is merged in the legal, and may be said no longer 
 to exist for the purpose of being recognized and acted upon by the 
 court. The legal estate is left to prevail according to the rules of 
 law. Thus, if the legal estate in fee descends, ex j^cirte materna, 
 and the equitable estate in fee, ex jocirfe j^derna, the equitable estate 
 is merged in the legal, and both go in the line of descent of the legal 
 estate. That the union of the legal and equitable estates in one 
 person in the same right leads in general to the merger of one in the 
 other, was the settled doctrine as well of the courts of law as of 
 equity. {Roberts v. Jackson, 1 Wend. 484. James v. Moivry, 
 
 2 Coioe'Q,, 246.) The term extinguishment is sometimes used, but 
 not as conveying any different idea from that of merger. 
 
 The effect of the doctrine sometimes leads to an apportionment 
 of an incumbrance. Thus, if a tenant in fee acquires a moiety of 
 the rent and reversion, the lease and rent are merged pro tanto. 
 {Lansing v. Paine, 4 Paige, 639.) On the same principle, if an 
 undivided half of land upon which an annuity for A. is charged, is 
 cast upon B. by descent, the half of the annuity chargeable upon 
 his share of the land is thereby merged. {Jenkins v. Van ScJiaick, 
 
 3 Paige, 242.)
 
 302 KULE IN EQUITY. 
 
 The doctrine under consideration is more frequently exemplified 
 in the case of mortgage securities than in cases of landlord and ten- 
 ant. The rule is inflexible, at law, that when a greater estate and 
 a less meet and coincide in the same person, in one and the same 
 right, without any intermediate estate, the less estate is immediately 
 annihilated ; or in the law phrase is said to be merged. This doc- 
 trine was applied to the vesting of a mortgage security in the owner 
 of the equity of redemption. {James v. Moivry, 2 Cowen, 246.) 
 
 It becomes important, to those dealing with real estate, to know 
 when, and under what circumstances, the rule of law will be relaxed 
 and the equitable estate be permitted to subsist, notwithstanding 
 its apparent union with the legal estate. At law, we have seen that 
 the rule is inflexible that the equitable merges in the legal estate. 
 In equity this rule is not inflexible, though in general equity follows 
 the law in this respect. 
 
 The qualification of the rule by means of which courts of equity 
 will keep alive a security, which, at law, would be merged or extin- 
 guished, depends on the concurrence of two things, 1, the intention 
 of the party, and 2d, the existence of some fact or circumstance 
 showing that it would be beneficial to the one party and not injuri- 
 ous to any body to continue it as a subsisting security. In Gard- 
 ner V. Adams, (3 John. Ch. 53,) a party purchased the equity of 
 redemption of certain mortgaged premises, and afterwards })aid off 
 the mortgage and took an assignment of it to himself It thus be- 
 came merged at law. He afterwards sold the premises to the de- 
 fendant by a deed, with full covenants of warranty, seisin and against 
 incumbrances ; and at a later day, being still in possession of the 
 mortgage, he assigned it to the plaintiff's intestate for a valuable 
 consideration. The administrator sought to foreclose the mortgage, 
 thus treating it as a subsisting security. This was resisted by the 
 defendant on the ground that the mortgage had merged in the legal 
 estate and was therefore extinguished. The defendant, in his an- 
 swer, alleged that he purchased the premises with the full assur- 
 ance that they were free from incumbrances, and had no knowledge 
 or suspicion that the mortgage was a subsisting lien. The court 
 held that there was no reason in the case for keeping the two estates 
 distinct ; and that the owner of the equity of redemption when he paid 
 off and took an assignment of the mortgage, did so for the purpose of 
 payment, and that the same was, by that act, extinguished. In 
 this case it is obvious that had the court kept alive the security, it
 
 UTILE m EQUITY. 303 
 
 would have been aiding one of tlie parties to practice a fraud on the 
 other. Had the purchaser exercised more caution he would have 
 caused a search to he made for incumbrances and had the mortgage 
 discharged of record. That would probably have saved him from 
 the litigation. He did no act, however, that deprived him of the 
 benefit of the legal principle that the mortgage was merged. 
 
 The same doctrine was repeated in Starr v. ElUs, (6 JoJin. Gh. 
 393.) The chancellor said that a court of equity will keep an in- 
 cumbrance alive, or consider it extinguished, as will best serve the 
 purposes of justice, and the actual and just intention of the party. 
 It must at all events be an innocent purpose and injurious to no one. 
 
 This is the doctrine of the English courts of equity. In Forbes 
 . V. Moffatt, (18 Ves. 384,) the master of the rolls said " that a per- 
 son entitled to an estate, subject to a charge for his own benefit, may, 
 if he chooses, at once take the estate, and keep up the charge. A 
 court of equity will sometimes hold a charge extinguished when it 
 would subsist at law ; and sometimes preserve it, when, at law, it 
 would be merged. In such instances, it is, with reference to the 
 party himself, of no sort of use to have a charge on his own estate ; 
 and when this is the case, it will be held to sink, unless something 
 shall be done by him to keep it on foot. If it be perfectly indifferent 
 to the party whether the charge should or should not subsist, it 
 sinks." {See also Lord Comj-yton v. Oxenden, 2 Ves.jun. 261.) 
 
 The subject was again most thoroughly discussed by the counsel 
 and the court, in the case o^ James v. 31owry, decided in 1823, in 
 the late court of errors. (2 Coiven, 246.) That case came up on 
 appeal from the court of chancery, where it had been decided by the 
 late Chancellor Kent. (6 JoJm. Ch. 420-434.) The doctrine of the 
 two courts was not essentially variant on questions of law, as will be 
 seen by comparing the several opinions delivered in the case. It 
 must be considered as decisively settled in this case, that the doctrine 
 of merger, as stated above at page 300, is the law of this state : that 
 the rule is inflexible at law, but in equity is not so, but depends on 
 the expressed or implied intention of the person in whom the estates 
 unite, whether the equitable estate shall merge, or still be kept in 
 existence. If such person be an infant, or labor under any incapa- 
 city to make an election, a court of equity will keep the equitable 
 estate on foot. So also when it is for the interest of the person in 
 whom these estates unite, the law will imply an intention to prevent 
 a merger, provided no injustice be done thereby to other parties.
 
 304 EXTINGUISHMENT. 
 
 It is not essential to the law of merger, as administered in this 
 state, that the mortgagee should have acquired the legal title to the 
 •whole premises covered by the mortgage. If he purchases and takes 
 a release of the equity of redemption in a part of the mortgaged 
 premises, the mortgage is extinguished pro tanto ; and may be ap- 
 portioned between the party as to which it is extinguished and the 
 party in relation to which it exists. {James v. Moivry, supra.) This 
 too is subject to the general rule, with respect to intention, conven- 
 ience and interest of the parties. It is competent for the mortgagee 
 to release to the mortgagor the equity of redemption to a part of the 
 mortgaged premises, and leave the mortgage a subsisting security 
 for the whole debt upon the residue. If such was the intention of 
 the parties, it will be carried into effect. There need be no appor- 
 tionment when the release is voluntarily given. 
 
 In equity a prior mortgage cannot be merged in the subsequently 
 acquired legal title to the equity of redemption, where there is an 
 intermediate mortgage. {Millspaugli v. McBride, 7 Paige, 509. 
 Skeel V. Spraker, 8 id. 182.) 
 
 We shall bring this subject to a close by noticing some cases of 
 extinguishment, frequently confounded with merger and called by 
 that name, in addition to those already mentioned. This doctrine 
 applies to the acceptance of a higher security by a creditor for his 
 debt, by means of which the original demand is extinguished. Thus, 
 if a creditor by simple contract accepts an obligation under seal for 
 his debt, the original simple contract debt is thereby extinguished. 
 The reason of this is that the obligation under seal is of a higher 
 nature than the simple contract. {The Bank of Columbia v. Pat- 
 terson's Adm'r, 7 CrancJi, 299.) 
 
 It is on the principle of extinguishment, that a valid award made 
 by arbitrators is a bar to a suit for the original cause of action. 
 (Coleman v. Wcide, 2 Selden, 44.) 
 
 In Clark v. RoiuUng, (3 Comst. 216,) it was held that a judgment 
 upon a simple contract operated to extinguish it ; but not so as to 
 prevent a court of equity from looking behind the judgment and see 
 upon what it was founded. The learned judge in this case applied 
 the terms merger and extinguishment, indiscriminately, as desciip- 
 tive of the effect of the judgment upon the simple contract. 
 
 Whether the debtor's promissory note will extinguish the original 
 demand for which it was given, depends on circumstances. If it be
 
 EXTINGUISHMENT. 305 
 
 not negotiable, it is of no higher nature than the original demand. 
 No extinguishment or merger can take place when both securities 
 are of the same quality or degree, {Hill v. Beebe, 3 Kernan, 564.) 
 This doctrine applies to chattel mortgages ; one chattel mortgage is 
 not an extinguishment of another. Nor is a judgment recovered on 
 a covenant for the payment of rent an extinguishment of the rent, 
 unless the judgment be satisfied. {Chipman v. Martin, 13 John. 
 240.) No other action could indeed be brought upon the covenant 
 while the first judgment remains in force ; and in this sense, the 
 original cause of action is said to be merged or extinguished in the 
 judgment. But the remedy by distress under the lease, while that 
 remedy was in force, was of as high a nature as the judgment. It 
 is still so now, though the remedy by distress is abolished ; the land 
 being in a measure still held for the rent. 
 
 When a collateral security, in the form of a note executed by a 
 judgment debtor and his surety, is itself got into a judgment and 
 collected of the surety on execution, the original judgment to which 
 such note was collateral is thereby extinguished, and no effectual 
 sale of the debtor's property can be made, even on an execution is- 
 sued previous to the payment of the second judgment. {Croft v. 
 Merrill, 4 Kernan, 456.) 
 
 The question sometimes arises, after a deed has been executed and 
 delivered in pursuance of an executory contract, whether the latter 
 is extinguished. If such contract provided only for the delivery of 
 a deed, and it be made and delivered according to the terms speci- 
 fied therein, it is plain that the latter is discharged or extinguished. 
 Full performance is all that can be required, and that is a satisfac- 
 tion of the contract. But, it often happens, that the executory 
 contract contains other stipulations, relative to collateral matters. 
 These are not necessarily affected by the delivery of a deed. In 
 Witbeck V. Waine, (2 Smith, 532,) the executory contract for the 
 sale of land provided for an increase or rebate of the purchase mon- 
 ey in proportion to any excess or deficiency which might exist in the 
 quantity of the land ; this was held to remain in force, after the ex- 
 ecution and delivery of the deed. In Bogart v. Burkhalter, (1 De- 
 nio, 125,) the preliminary contract for the sale of land contained an 
 agreement that the vendee should erect a particular description of 
 building on the premises, and would not erect any thing thereon 
 which should be a nuisance to the adjoining property. It was held 
 
 WILL.-20 ^1 r J
 
 306 WHAT IS ESSENTIAL TO MERGER. 
 
 that the vendee could maintain an action for a breach of this agree- 
 ment, though before the acts complained of he had conveyed the 
 land to the vendee. 
 
 It is competent to the parties, in carrying out their executory 
 agreement, to deviate from it ; to waive any of its stipulations ; and 
 to substitute others. When a deed has been given in pursuance of 
 a preliminary contract for the sale of the land, containing stipula- 
 tions of which the conveyance itself is not the performance, it is, 
 therefore, a question of intention whether the parties have surrender- 
 ed those stipulations. In the absence of all proof, there is no pre- 
 sumption that either party intends to give up the benefit of cove- 
 nants of which the conveyance is not a performance or satisfaction. 
 In Morris v. WhitcJier, (6 Smith, 41,) a stipulation in the execu- 
 tory contract that the vendor should retain possession for a specified 
 period, was held not to be merged or extinguished by the conveyance, 
 but admissible in evidence to qualify its operation, and to defeat an 
 action for the possession by a subsequent grantee with notice. {See 
 also Drinker v. Byers, 2 Femi. R. 528.) 
 
 Section IV. 
 Of the Circumstances indispensable to Merger. 
 
 The first circumstance which, from the terms of the definition, 
 appears to be essential to a merger is, that there must be two or 
 more estates, which meet in the same person, in the same lands, &c. 
 or in some part of the same lands, &c. Unless there be at least two 
 estates, there is no occasion for a merger. A mere o^ight or title, it 
 is said, will not suffice. The case put to illustrate this rule by Pres- 
 ton is, that if the discontinuance of an estate tail, by the granting 
 an estate for life, by tenant in tail, and his death without issue, in 
 the lifetime of the tenant for life, and the surrender by the latter to 
 the person entitled under the remainder expectant on the estate tail, 
 there can be no merger. But such a case cannot occur in our prac- 
 tice, and therefore the ingenious and subtle reasoning on which it 
 depends need not be repeated. 
 
 The question will rarely arise whether a man has one estate or 
 two estates in the same premises. But it has sometimes occurred. 
 Thus in Rosse's case, a lease was made to A. and his assigns haben- 
 dum to him for his life and for the lives of B. and 0. The question 
 was whether the grant during the life of B. and C. was void. The
 
 MERGER. 307 
 
 oLjection was, that when a man has two estates in him, the greater 
 shall drown the less, and that an estate for his own life is higher 
 than for the life of another ; and, therefore, it was insisted that the 
 estate for his own life and for the life of others could not stand to- 
 gether. But the court held that here was but one estate, which had 
 this limitation, to wit : during his life and the life of two others, 
 and he had but one freehold, and therefore there could not be any- 
 drowning of estates in the case, but he had an estate of freehold to 
 continue during these three lives and the survivor of them. 
 
 In commenting on this case Mr. Preston says (3 Conv. 405,) that 
 if the lease had been for the several lives, by way of distinct and 
 successive estates, one of those estates might have merged in 
 another of those estates. The ground of the decision was that the 
 limitation for the several lives gave only one entire estate, and not 
 several and distinct estates. The right of enjoyment for several 
 lives may be limited to the same person by the same deed, and yet 
 a merger may take place. Thus, says Preston, a lease to A. for the 
 life of B., remainder to himself for his own life, gives several and 
 distinct estates, and therefore and because an estate in remainder, 
 which is for his own life, is a distinct estate, and larger than the 
 estate for the life of B., the estate for the life of B, will merge in 
 the estate of A, for his own life. 
 
 If Rosse's case had occurred in this state, under our existing laws, 
 on the death of the tenant for life, the estate he held limited on the 
 life of B. and C would have gone to his personal representatives un- 
 der the statute. {2 R. S. 82, § 6, suh. 1.) The estate would not 
 have terminated on his death, as it would if the estates limited 
 upon the life of B, and C. had been granted as distinct estates, by way 
 of remainder, on the death of the tenant for life. In this latter 
 case, as the several remainders would have merged in the estate for 
 his own life, there would be nothing, after his death, to go to his 
 personal representatives. 
 
 It is to be noticed, under this head, that the several estates must 
 meet and vest in the same person and in the sa7ne right. Several 
 estates in distinct persons will continue several and distinct interests. 
 
 The same effect will follow if the several estates be held by the 
 same person in different rights. This embraces the case of trustee 
 and cestui que trust, of executors and administrators, and of husband 
 and wife. 
 
 In Hadley v. Chapin, (11 Paige, 245,) it was intimated that if
 
 308 MERGER. 
 
 a mortgagee in trust acquires the equity of redemption, the mort- 
 gage is not thereby merged in equity. A court of equity will keep 
 the security on foot, unless the purposes of justice require a union 
 of the two estates. 
 
 In Gage v. Acton, (1 Salk. 326,) Lord Holt said that if a feme 
 executrix of an obligee marries the obligor, that will work, no ex- 
 tinguishment, because the husband is to receive it in aute7' ch'oit; 
 it would be a devastavit by construction of law, which, being a 
 wrong, cannot be ; so if a man hath a term in right of his wife, or 
 as executor, and purchases the reversion, this is no extinguishment, 
 because he hath the term in one right and the i^eversion in another. 
 In that case the difference of the rights hinders an extinguishment, 
 because a third person is concerned and may be prejudiced, which 
 cannot be by act of law. In 3 T. B. 461, Lord Kenyon is reported 
 to have said generally, without any distinction, that nothing is 
 clearer than that a term taken alienojure is not merged in a reversion 
 acquired suo jure. This is the doctrine of Blackstone in 2 Com. 177. 
 But the correctness of the above opinions is questioned by Mr. Pres- 
 ton, in his treatise on merger. (3 Prest. 277.) 
 
 AVith regard to husband and wife, it is laid down by Blackstone 
 that if the reversioner marries the tenant for years there is no merger ; 
 for he hath the inheritance in his own right, the lease in right of his 
 wife. (2 Black. Com. 177.) Mr. Preston, (supra,) denies this to be 
 law, and cites a case where a married woman became entitled to a 
 term as executrix, and the husband held the term in her right, and 
 in right of her character of executrix, he purchased the inheritance ; 
 and it was held that the term was merged so as to be extinct as 
 to the wife, if she survived, though in respect to all strangers it 
 should be accounted assets in his hands. But it is believed that the 
 law in this state is understood as expounded in Blackstone, and by 
 Lord Holt and Lord Kenyon. In Cooper v. Whitney^ (3 Hill, 95,) 
 it was intimated by the judge that if the wife acquire an equity of 
 redemption by deed, and the forfeited mortgage be assigned to the 
 husband, there is no merger. 
 
 In James v. Mowry, (2 Cowen, 284 and 300,) the judges who de- 
 livered the prevailing opinions, cite the doctrine of merger from 
 2 Black. Ill, without qualification. It was said also in that case 
 that when it is for the interest of the person in whom the two estates 
 unite to prevent a merger, the courts will keep both on foot. Un- 
 der the statutes of this state, in relation to executors and adminis-
 
 MERGER PRO TANTO. 309 
 
 trators, and with respect to the rights of married women, it is be- 
 lieved that a married woman, acquiring a term as executrix, would 
 still hold it on the death of her husband, though he purchased the 
 inheritance in his lifetime. 
 
 A distinction is taken by Mr. Preston between a case in which ati 
 estate in one's own right meets in an estate in auter droit, occasioned 
 b}^ the act of the lata or the act of the party. If the union is occa- 
 sioned by the act of the law, he admits that no merger occurs ; if by 
 the act of the party, the two estates are said by him to merge. 
 There are some cases referred to which justify this distinction. 
 
 It results from what has been said that an estate may merge for 
 a part of the land ; and continue in the remaining part of the land. 
 The merger will not be more extensive than the particular part of 
 the land in which there are several successive estates in the same 
 person, without any difference whether the more immediate or the 
 more remote estate comprises a larger portion of the lands. This 
 doctrine of a merger pro tanto is expressly recognized by the court 
 of errors, in James v. Mowry, {supra,) and by the chancellor in 
 Lansing v. Paine, (supra.) 
 
 The law of merger may operate between three or more estates, as 
 well as between two estates. If A. be tenant for life, with remain- 
 der to B. for life with remainder to A. in fee ; here the intermediate 
 estate of B. prevents the union of the several estates in A. This im- 
 pediment being removed by B.'s conveying his life estate to A., the 
 whole becomes one interest. A. is no longer a tenant for life, or a 
 tenant ^wr auter vie, but a tenant in fee. 
 
 The next circumstance we shall notice is that the several estates 
 must be immediately expectant on each other. The more remote 
 must be without any intervening vested estate, and also without any 
 intervening contingent remainder created in the same instant of 
 time, and by the same means as gave origin to the other estates. 
 {Preston on llerger, 107.) It is absolutely necessary that the latter 
 estate should be connected with the former estate, and be immedi- 
 ately expectant thereon, so as to come into its place, on the determ- 
 ination of that estate. 
 
 One case to illustrate this is, if a man lease to one for ten years, 
 and afterwards lease the same land for twenty years, and the first 
 lessee purchases the reversion in fee, yet the first lease is not extinct, 
 because the second lease, which is for twenty years, is mesne between
 
 310 GRADATION OF ESTATES. 
 
 the first lease and the fee simple, which is an impediment to extin- 
 guishment. 
 
 If one of the mesne estates, where there are several, be greater in 
 its quantity and extent than the estate by which it is followed, the 
 oJDeration of the doctrine must experience an interruption at this 
 point. The doctrine must be stationary till the impediment shall 
 be removed, either by the actual determination of this mesne estate, 
 or by some change in the tenancy of the parties, which will afford 
 room for the application of the leasing. This case is put by way of 
 illustration. A. is tenant for 21years, remainder to B. for life, remain- 
 der to A. for life, remainder to A. for 1000 years, remainder to D. in 
 fee, and B. conveys his estate to A. As soon as this conveyance is 
 made, first the estate from the life of B., and secondly, the estate for 
 twenty-one years, will merge in the life estate of A. This is the ne 
 plus ultra to which the doctrine can be carried under these circum- 
 stances of the tenancy. The next estate of A. is for years, and his 
 estate for life is larger than, and prior to that estate, and for that 
 reason cannot merge in the same ; but suppose D. who is seised of 
 the fee, to convey that estate to A. or to limit the same to him in 
 tail, or to die leaving A. his heir ; in either of these cases, the acces- 
 sion of the fee will operate to the merger and annihilation of the 
 estate for one thousand years. By these means the estate of A. for 
 his life, and his estate in fee, will become immediate to each other ; 
 and as the estate for life, or for years, is less than the estate in fee, 
 the estate for life will merge in that estate. {Preston on Merg. 142.) 
 Another circumstance to be observed is, that the more remote es- 
 tate must be as large as, or larger than the more immediate estate. 
 Thus, where a man leases for a term of years, and afterwards takes 
 an interest for term of life, to take effect immediately ; there the 
 lease for years is extinct. But where one leases to J. N. for term 
 of life and twenty years over, then he shall have both estates,- The 
 reason is that the more remote estate is less than the estate for life. 
 {Preston on llerger, 166.) 
 
 Under this head it will not be inappropriate to notice the grada- 
 tion of estates. This has reference to their quantity as well as qual- 
 ity. With respect to quantity, the highest estate with ns is a fee 
 simple. This comprehends all other interests. The next in order 
 are determinable fees, qualified fees, and conditional fees. There is 
 no principle by which a superiority can be given to one of these last 
 over the others, except where one of them is derived out of the other ;
 
 GRADATION OF ESTATES. 311 
 
 and thus the derivative interest must, of necessity, be the inferior 
 estate. 
 
 Next folio vi^ estates for life ; in which are included 1st. Estates 
 for the life of the party ; 2d, for several lives ; 3d, for the life of 
 another jDcrson ; and 4th, for the joint lives of several persons. Next 
 come estates for years which are all of the same nature ; though 
 they may be different in their extent. Then other chattel interests ; 
 and lastly estates at will. 
 
 Any estate of an inferior degree may, if the requisite circumstan- 
 ces concur, merge in one of a higher nature. A term of years de- 
 rived by way of under lease, out of a term of years, may merge 
 therein. And an estate for years may merge in a more remote term 
 in remainder. {Preston on Merger, 169, 182, 201.)
 
 PART III. 
 
 OF THE MODE OF ALIENATION OF REAL PROPERTY. 
 
 IN this brancli of our treatise it becomes necessary to examine the va- 
 rious modes by which title to real estate is lost or acquired ; and 
 of the various circumstances which occur in transmitting it from one 
 person to another. It involves the consideration of the theory as 
 well as the practice of conveyancing. This leads to the inquiry 
 whether the property has been acquired by descent or purchase. It 
 shows the necessity and points out the mode of preparing abstracts 
 of title, and searching for incumbrances. And it gives the form in 
 which these instruments of alienation are made. We shall treat of 
 these subjects under the following heads, and reserve for the appen- 
 dix the collection of various forms which are used in the conveyance 
 of real property. 
 
 CHAPTER L 
 
 OF TITLE TO THINGS REAL, 
 
 Most writers on the subject have adopted the definition of Coke ; 
 {Co. Litt. 345 h.) Titulus estjusta causa prossidendi quod nostrum 
 est; signifying the means whereby a man has the ownership and pos- 
 session of his property. This definition has reference not only to 
 the instruments which convey, and afford the evidence of title, but 
 those acts of possession and occupation which usually attend it. In 
 this sense it embraces not only deeds, wills and other muniments of 
 
 [312]
 
 TITLE TO THINGS REAL. 313 
 
 ownership, but the actual and rightful enjoyment of property, 
 whether gained by a written transfer from the rightful owner, by de- 
 scent, or by long and uninterrupted possession. 
 
 The evidence by which the title of the claimant is established ad- 
 mits of various degrees, from the slightest presumption to the high- 
 est probability. The various stages in this evidence may be properly 
 marked by considering first, simple possession ; second, right of pos- 
 session ; and third, the right of property. 
 
 1. The lowest order of evidence, in this respect, is that which re- 
 sults from the actual possession. This may happen when one man 
 unjustly expels another, or, in the language of the old cases, disseises 
 him. It may occur when, on the death of the rightful owner, and 
 before the entry of the heirs, a stranger abates, as it is termed, and 
 holds out the heir. The evidence of title derived from bare naked 
 possession is all the time increasing by the acquiescence or negli- 
 gence of the rightful owner, until at length, it maj'' ripen into an 
 indefeasible right. 
 
 Until the true owner has asserted his right to devest this posses- 
 sion, such possession, as against all the rest of the world, affords 
 prima facie evidence of a legal title to the possessor. It is sufficient 
 to enable him to maintain an action against a trespasser who has 
 no actual title to the land, or right of possession. {Hyatt v. Wood, 
 4 John. 157.) And trespass cannot be maintained against a stran- 
 ger, except by the person who has the possession in fact of the land, 
 {Campbell v. Arnold, 1 id. 511.) 
 
 This presumption in favor of the actual occupant rests on the 
 well known feudal maxim, that seisin must be the basis of every 
 title, except in the case of descent. 
 
 2. The next stage of a perfect title is a right to the possession. 
 This right may be in one person, while the actual possession is in 
 another. A tenant for a terra of years may be turned out of pos- 
 session by a naked trespasser. In this case, he who was expelled has 
 the right of possession, which the law will protect, while a wrong- 
 doer has the actual possession. This right of possession is either 
 apparent, which may be rebutted by a better right ; or actual, which 
 will be paramount to all other claims. There is much nice reason- 
 ing on this subject in the old English books, which has little or no 
 application to our jurisprudence, at the present day.
 
 314 TITLE TO THINGS REAL. 
 
 3. The last ingredient of a perfect title is the right of i^voperty ; 
 the jus xiroprietatis of feudalism. This may exist in the original 
 and rightful owner, after the right of possession has been gained by- 
 one party, and the actual possession by another. The distinction 
 between the right of possession and the right of property, at the 
 present day in this state, is followed by no practical consequence 
 since 1830, when, by the revised statutes, the statute of limitations 
 was fixed at twenty years, whether the remedy was brought to 
 assert a mere right to the land, or a right to the possession of it. 
 (2 R. S. 292, repealed by the Code, and the substance re-enacted, 
 Cfode, §§ 75, 78, et seq.) 
 
 The union of the three preceding requisites are essential to a per- 
 fect title to lands, tenements and hereditaments, viz. the actual pos- 
 session, the right to possession and the right of property. Lord 
 Coke thus states the whole doctrine : " It is to be known that there 
 is Jus proprietatis, a right of ownership ; jus possessionis, a right of 
 seisin or posssession ; and jus proprietatis et possessionis, a right 
 both of property and possession. For example, a man may be dis- 
 seised of an acre of land, the disseisee hsith jus proprietatis, the dis- 
 seisor hsith jus jjossessio^iis; and if the disseisee release to the dis- 
 seisor, he hath Jus proprietatis et possessionis." {Co. Litt. 266 a.) 
 
 The owner of real property who proposes to sell or mortgage, 
 must, according to the English writers, be prepared to deduce his 
 title to the possession of it during a period of sixty years at least, pre- 
 vious to such sale or mortgage. {Whart. Conv. 497.) This period 
 was fixed with reference to the statute of limitations in England, 
 which formerly required a period of sixty years to bar a writ of right. 
 The act of 3 and 4 Will. 4, ch. 27, among other changes, reduced 
 the period of limitations to twenty years, and abolished all the old 
 real and mixed actions, except dower quare impedit and ejectment, 
 and provided that where the remedy is barred by time, the right and 
 title of the person in any land, rent, &c. whose remedy is thus taken 
 away, is extinguished. This is said to be a great improvement, and 
 very much assists titles depending upon non-claim. {Sugden's 
 Vend. 613, 614.) 
 
 Opinions differed as to the reason of the rule fixing sixty years as 
 the minimum extent to which abstracts of title should reach. If it 
 depended solely on the analogy drawn from the statute of limitations 
 it was supposed that a shorter period might be adopted. But the 
 q[uestion has been conclusively settled in England by Lord Gotten-
 
 MODE OF ACQUIRING- TITLE. 3I5 
 
 ham, in the case of Oooj^cr v, Emery, (1 Phil. 388,) that the period 
 for which a good title is required to be shown is still sixty years, not- 
 withstanding the statute of 3 and 4 Will. 4. In delivering his 
 judgment the chancellor says : " It was supposed that by the oper- 
 ation of that act, it was not necessary that the title should be carried 
 back, as formerly, to a period of sixty years, but that some shorter 
 period would be proper. It appears that conveyancers have enter- 
 tained different opinions on that subject ; but after considering it 
 I am of opinion that the statute does not introduce any new rule in 
 this respect; and that to introduce any new rules, shortening the 
 period, would affect the security of titles. One ground of the rule 
 was the duration of human life ; and that is not affected by the 
 statute. It is true that in other respects the Security of a sixty 
 years' title is better now than it was before. But I think that is 
 not a sufficient reason for shortening the period ; for adopting forty 
 years, or as it has been suggested by a high authority, fifty years 
 instead of sixty. I think the rule ought to remain as it is, and that 
 it would be dangerous to make any alteration." {See Whart. Conv. 
 498 and notes.) 
 
 In this country a less period than in England, of uninterrupted 
 possession and enjoyment of land, will afford the requisite evidence 
 of ownership. In most, if not all the states, grants have been very 
 freely presumed upon proof of an adverse, exclusive and uninter- 
 rupted enjoyment of twenty years ; it being the policy of courts of 
 law to limit the presumption to periods analogous to those of the 
 statute of limitations, in all cases where the statutes do not apply. 
 (2 Gh^eenl Ev. § 539.) 
 
 But this branch of the subject will be resumed under a subsequent 
 head, and need not be further noticed in this place. 
 
 It remains to consider the modes of acquiring a title to real prop- 
 erty. These are two : by descent and purchase. In the former the 
 title is vested in a person by the operation of law, and the latter by 
 the act and agreement of the party. (Co. Litt. 18 h.) This distri- 
 bution is sufficient for all practical purposes, though as a definition, 
 it is open to criticism. {Hargrave's note 106 to Co. Litt. 18 h.)
 
 316 TITLE BY DESCENT. 
 
 CHAPTER 11. 
 
 OF TITLE BY DESCENT. 
 
 Having shown in the preceding chapter, the nature of title to 
 things real, and that the modes of acquiring it might be substan- 
 tially reduced to two, we propose now to consider that species 
 of title which is derived by descent. 
 
 Descent is the title whereby a person, on the death of his ancestor, 
 acquires his estate as his heir at law. The heir therefore is the 
 person upon whom the law casts the estate immediately on the death 
 of the ancestor. 
 
 The English law of descents is derived, it is said, from feudal 
 principles, and differs essentially from the Roman law of succession. 
 It contains a number of rules, or canons, which if they were ever in 
 force in this state, have been greatly modified, and in some instances 
 repealed. The rules of deseent in this state depend mainly on our 
 statute, which adopts only such parts of the common law as it does 
 not repeal. (1 R. S. 750.) 
 
 The law of descent has reference only to real estate, and not to 
 personal. The former, if not disposed of by devise, descends to the 
 heirs ; the latter vests at the death of the owner, in his personal 
 representatives. If not bequeathed by will, it is to be distributed 
 among the next of kin of the last possessor, according to the statute 
 of distributions. The next of kin may be the same persons as the 
 heirs at law, and may embrace some persons who would not take by 
 descent. 
 
 Not only every thing which falls under the denomination of real 
 estate descends to the heirs, but also heir looms, and all such other 
 chattels as are annexed to or connected with the freehold ; as wain- 
 scots, benches, doors, windows, charters, deeds and other evidences 
 of the title, together with the chests and boxes in which they are 
 contained. Enough has been said on this subject in a former chapter. 
 {See ante, Part 1, cli. 2.) 
 
 Trees, whether timber trees or not, if standing on the land at the 
 death of the ancestor, together with the grass annually growing, though 
 ripe for cutting, descend with the land to the heirs. But such vegeta- 
 bles and growing crops as are produced annually by labor and cultiva- 
 tion, such as potatoes, corn and the like, go to the personal representa-
 
 PERSONS CAPABLE OF INHERITING. 317 
 
 tives. The inquiry, as to what descends to the heir, and what passes 
 to the executors or administrators, has often led to much contro- 
 versy. As between the heirs and the executors or administrator, 
 the rule in favor of the inheritance obtains with the utmost rigor ; 
 and things annexed to the freehold will descend to the heir, which 
 as between landlord and tenant, if annexed by the latter for purposes 
 of trade, would be treated as personal property. {Elioes v. Blaiv, 
 3 East, 38. Amos & Ferard on Fixtures, ch. 2, §§ 3, 4. Cresson 
 V. Stout, 17 John. 116. Holmes v. Tremper, 20 id. 29. Beynolds 
 V. Shuler, 5 Coiven, 323.) 
 
 The doctrine of descents also often gives rise to the inquiry who 
 were the heirs on whom the law devolves the estate. These may be, 
 under the laws of this state, the lineal descendants, or the ancestor 
 of the person last seised, or the collateral kindred of the latter, if 
 there be none in the other class entitled to inherit. The lineal re- 
 lationship has reference to persons of whom one is descended from 
 the other, as ftxther or mother, grand parents, &g. in the ascending 
 line ; or children, grandchildren, great-grandchildren, in the descend- 
 ing line. Collateral consanguinity is that which subsists between 
 persons descended from a common ancestor. Thus brothers are col- 
 laterally related to each other. The like is true of their respective 
 offspring. Also uncles and aunts and their descendants are collat- 
 erally related. 
 
 In this state, the method of computation is according to the rule 
 of the civil law, by which in the ascending and descending line each 
 generation constitutes a degree. Thus from the father to the son is 
 one degree, to the grandson two degrees, and so on ad infinitu7n, 
 whether ascending or descending. The rule is the same in this re- 
 spect as in the canon law. But in computing the relationship of 
 collateral kindred, the civil law and canon law differ. By the canon 
 law the computation is made by counting only from the common 
 ancestor to the party most remote from him, if the line is unequal, 
 or to either party if they are in equal degree. The civil law, which 
 we follow in this respect 'unless when altered by statute, counts 
 from the propositus nip to the common ancestor, and then down- 
 wards to the other party in question, reckoning a degree for each 
 generation. This subject will be again resumed. 
 
 The law of descents involves also an inquiry, as to the persons 
 capable of inheriting. At common law the persons claimmg by de-
 
 318 ILLEGITIMATES— ALIENS. 
 
 scent must be, 1st, legitimate; 2d, natural born or naturalized, or 
 made denizens; and 3d, not attainted of felony. 
 
 No person could claim as heir by descent who was not born in 
 lawful matrimony. A bastard being //ms nullius, could neither in- 
 herit from father or mother. {Cruise's Dig. title 29, ch. 2.) It wall 
 be seen, when we come to examine the rules of descent, that the 
 term heir includes other persons besides descendants. At present 
 we are only speaking of the descendants of the intestate, and not of 
 the other person on whom the law casts the estate on failure of 
 lineal descendants. This rule of the common law of excluding chil- 
 dren and relatives who are illegitimate from inheriting, is broken in 
 upon in this state by the act of 1855, chapter 574. By that act il- 
 legitimate children, in default of lawful issue, may inherit real and 
 personal property from their mother as if legitimate. The law was 
 prospective in its operation and was not to affect any right or title 
 in or to any real or personal property already vested in the lawful 
 heirs of any person theretofore deceased. (3 R. S. 43, 5th ed.) This 
 statute does not prevent illegitimacy from being an interruption to the 
 rule of descent, except in the single case for which it provides ; that 
 of a bastard from its mother in case she has no legitimate issue. 
 The illegitimate offspring, if there be more than one, cannot inherit 
 from each other, nor from their putative father, or his relatives, or 
 the relatives of their mother. In all respects, save the case specifi- 
 cally provided for, the rule is that illegitimates are not entitled to 
 inherit, under any of the provisions of the act. (1 R. S. 754, § 19.) 
 
 It is not essential that the heir should be born during the lifetime 
 of the parents. Our statute expressly provides that descendants and 
 relatives of the intestate, begotten before his death, but born there- 
 after, shall, in all cases, inherit in the same manner as if they had 
 been born in the lifetime of the intestate and survived him. 
 
 {Id. § 18.) 
 
 We have already alluded to the disability of aliens with respect 
 to their obtaining a title by purchase, and have shown what pro- 
 vision is made in their favor in this res])ect, when they have made 
 a deposition or affirmation, in writing, of their residence and inten- 
 tion always to reside in the United States, and to become citizens 
 thereof as soon as they can be naturalized, and that they have taken 
 the incipient measures required by law to enable them to obtain 
 naturalization. {Ante, Part 1, ch. 1, § 2.) It remains to inquire 
 into their right to take by descent.
 
 ALIENS. 319 
 
 At common law an alien cannot take by descent. Nor could a 
 natural born or naturalized citizen take by descent if he had to 
 trace his descent through an alien ancestor. In England the stat- 
 ute of 11 and 12 Will. 3d, ch. 6, removed the common law disa- 
 bility of claiming title through an alien ancestor, but did not apply 
 to a living alien ancestor so as to create a title by heirship, where 
 none would exist by the common law, if the ancestor was a natural 
 born sul)ject or citizen. (3I'Cree's Lessee v. Somerville, 9 Wheat 
 354. The People v. Irvin, 21 Wend. 128.) Hence the nephew 
 could not inherit from the uncle, if he had to derive his title through 
 a living alien ancestor ; as the nephew does not inherit directly from 
 the uncle, but must derive title from the common stock. {Id.) The 
 act of 11 and 12 Will. 3d, was not re-enacted in this state until the 
 revision in 1830. (1 R. S. 754, § 22. Jackson v. Green, 7 Wend. 
 333, 339. Jackson v. Fitzsimons, 10 id. 9. Banlcs v. Walker, 
 3 Bcirh. Ch. 438. McCarthy v. Marsh, 1 Seld. 262. McLean v. 
 Swanton, 3 Kern. 535.) 
 
 The laws of this state have lessened the disability of alienage in 
 favor of actual residents who have taken the incipient steps to be 
 naturalized. Thus, by the revised statutes, (1 R. S. 720, § 15, as 
 amended in 1834, ch. 272 ; 3 R. S. 5,) it is enacted that any alien 
 who has come or may hereafter come into the United States, may 
 make a deposition or affirmation in writing that he is a resident of, 
 and intends always to reside in the United States, and to become a 
 citizen thereof as soon as he can be naturalized, and that he has 
 taken such incipient measures as the laws of the United States re- 
 quire, to enable him to obtain naturalization, which is required to 
 be filed and recorded by the secretary of state in a book to be kept 
 by him for that purpose. And the next section provides that, the 
 alien having complied with the foregoing, he shall thereupon be 
 authorized and enabled to take and hold lands and real estate of any 
 kind whatever, to him, his heirs and assigns forever ; and may, dur- 
 ing six years thereafter, sell, assign, mortgage, devise, and dispose 
 of the same in any manner as he might or could do if he were a na- 
 tive citizen of this state, or of the United States, except that no 
 such alien shall have power to lease or demise any real estate which 
 he may take or hold by virtue of this provision, until he becomes 
 naturalized. (Kennedy v. Wood, 20 Wend. 233.) 
 
 Various statutes have been passed at different times, some in re- 
 lation to individuals, and others of a limited character, with respect
 
 320 ALIENS. 
 
 to the disability of alienage ; and all tending to mitigate the rigor 
 of the common law. It cannot be expected that these various 
 enactments should be inserted in this treatise. Parties deriving title 
 under them will be able to refer to them, and others have little or 
 no interest in them. 
 
 The act of 1845 went forther towards removing the disability in 
 question than any previous general law, and was for the benefit of 
 resident aliens indiscriminately. The first section provides that any 
 alien resident of this state, who has heretofore purchased and taken 
 a conveyance of any lands or real estate within this state, or to whom 
 any lands or real estate have been or may hereafter be devised, before 
 making and filing in the ofiice of secretary of state the deposition or 
 affirmation in writing, specified above, may, on making and filing 
 such deposition or affirmation, hold the real estate granted, convey- 
 ed or devised to such alien, in the same manner and with the like 
 effect as if such alien, at the time of such grant, conveyance or de- 
 vise, were a citizen of the United States. (Laws of 1845, cJi. 115. 
 1 B. S. 6, 5fh ed.) Though this section does not authorize the alien 
 to take by descent, it enables him to acquire real estate by purchase, 
 and imparts to him a capacity to transmit it to his heirs by descent 
 or otherwise. This is obviously included in the authority to hold it 
 m the same mo.nner as if lie luere a citizen of the United States. 
 
 The fourth section goes a little further, and enables those who on 
 his death would, according to the statutes of this state, answer the 
 description of heirs of such deceased alien, whether they are citizens 
 or aliens, to take and hold as heirs of such deceased alien, as if they 
 were citizens of the United States, the lands and real estate of such 
 alien at his death, in the like manner as if such alien, at his death, 
 were a citizen of the United States. But if any persons answering 
 the description of heirs to such alien, are males of full age, they shall 
 not hold the real estate hereby made descendible to them as against 
 the state, unless they are citizens of the United States, or, in case 
 they are aliens, unless they make and file in the office of the secre- 
 tary of state the deposition or affirmation before mentioned. (3 B. S. 
 7, 5th ed.) 
 
 This statute removes, to a great extent, the disability of alienage, 
 and enables the persons who comply with its terms and fall within 
 its provisions to take by descent from an alien as if they were citizens 
 of the United States. (Broivn v. Sprague, 5 Benio, 550, 551, per 
 Beardsley, J.)
 
 CHILDREN OF ALIENS— DENIZENS. 321 
 
 A person duly naturalized according to the provisions of the act 
 of congress to establish a uniform rule of naturalization and the acts 
 amending the same, has the like capacity to take and transmit real 
 estate, as a native born citizen. (3 Laws of U. S. April 14, 1802, 
 ch. 28, p. 475. Jackson v. Green, 7 Wend. 333.) If the alien has 
 previously obtained real estate by purchase, by becoming a citizen at 
 any time before office found, his title, even as against the state, is 
 confirmed. (The Peojyle v. ConJdin, 2 Hill., 67.) 
 
 It need not appear by the record, that all the preliminary requi- 
 sites to a naturalization were complied with. The judgment of the 
 court admitting the alien to become a citizen, is conclusive evidence 
 upon that point. {Ritchie v. Putnam, 13 Wend. 524.) If a record 
 of naturalization is valid on its face, it is conclusive. (Banks v. 
 Walker, 3 Barh. Ch. 438.) 
 
 With respect to the children of such persons as are naturalized 
 under the act of 1802, it is provided that if they are dwelling within 
 the United States, and within the age of twenty-one years, at the 
 time of such naturalization, they are considered as citizens of the 
 United States. The act of congress is held to be prospective. 
 {West v. West, 8 Paige, 435. Peck v. Young, 26 Wend. 613.) 
 
 In England, it is said that if an alien be made a denizen by the 
 king's letters patent, and afterwards purchase lands, his son, born 
 before his denization, cannot inherit those lands, but a son born after 
 the denization, may inherit them, even though his elder brother be 
 living. (1 Bl. Com. 374.) But there is no such class of persons in 
 this state as denizens.^' 
 
 The act of 1845, before cited, in the 8th section, provides that all 
 aliens who shall hold any real estate by virtue of any of its provis- 
 ions, shall be subject to duties, assessments, taxes and burdens, as if 
 
 * A denizen is an alien born, who has obtained, from the king, letters patent to 
 make him either permanently or for a time, an English subject. He occupies a mid- 
 dle state between an alien and a natural born subject, and partakes of both of them. 
 He may take lands by purchase or devise, but cannot take by inheritance. (1 Black. 
 Com. 374 and note. Burrill's Laiv Did. word Denizen.) According to Lord Coke, a 
 person born within the king's liegance is called sometimes a denizen: In acts of 
 parliament, denizen is taken for alien born, who is denizated by letters patent, 
 granted by the king. {Co. Lilt. 129 a.) This last is the usual meaning of the term, 
 and it is never used as synonymous with citizen or subject. {Lessee of»Levy v. Mc- 
 Carty, 6 Peters, 117, note. 8 T. R. 31. 1 i?. ^ P. 430.) A denizea can hold no office 
 civil or military. (1 Bl. Com. 374 ) His legal status is more liko that of the emanci- 
 pated slaves, in those states where they are not treated as citizens, than that of natu- 
 ral born or naturalized citizens. 
 
 Will.— 21
 
 322 CONVICTS. RULES OP DESCENT. 
 
 he were a citizen of the United States ; but shall be incapable of 
 voting at any election, or of being elected or appointed to any office, 
 or of serving on any jury. 
 
 A person attainted of treason or felony was at common law inca- 
 pable of taking by descent, or of transmitting his estate to his heirs. 
 Such attainder operated as an extinction of his civil rights and capa- 
 cities, which took place on pronouncing sentence of death. (4 Bl. 
 Com. 380.) He is from that moment treated as dead in law. [Id. 
 and 2 id. 251.) The constitution of the United States forbids the 
 passage of any bill of attainder ; and provides that no attainder of 
 trpason shall work corruption of blood or forfeiture, except during 
 the life of the person attainted. {Const. U. S. art. 2, § 9, and art. 
 3, § 8.) This state, during the revolution, on the 22d October, 
 1779, (1 Greenl. 26,) attainted fifty-nine persons, who had been prom- 
 inent subjects in the colony, and many of them high officers in the 
 frovernment, and confiscated their estates and vested the same in the 
 people. The same act banished the said persons from the state, 
 and directed that if any of them should be afterwards found in the 
 state they should suffer death, as in cases of felony, without benefit 
 of clergy. 
 
 The existing law of this state provides that whenever any person 
 shall be outlawed upon a conviction for treason, the judgment there- 
 upon shall produce a forfeiture to the people of this state, during 
 the lifetime of such person, and no longer, of every freehold estate 
 in real property, of which such person was seised in his own right, 
 at the time of such treason committed, or at any time thereafter ; 
 and of all his goods and chattels. (2 R. S. 656, § 3.) A person 
 sentenced to imprisonment in a state prison for life, shall thereafter 
 be deemed civilly dead. {Id. 701, § 20.) Of course he cannot af- 
 terwards take by descent, or be the medium through which others 
 may trace their title. 
 
 CHAPTER III. 
 
 OF THE KULES OF DESCENT. 
 
 The constitution of 1777 adopted such parts of the common law 
 of England, and of the statute law of England and Great Britain, 
 and of the acts of the legislature of the colony of New- York, as to-
 
 RULES OF DESCENT. 323 
 
 gether formed the law of the colony on the 19th April, 1777, as the 
 law of this state, subject to such alterations and provisions as the 
 legislature of the state should, from time to time, make concerning 
 the same. This feature of the first constitution has been preserved 
 and re-adopted in each of the subsequent constitutions of the state, 
 and is still a part of the organic law. The common law of England 
 with regard to descents, with its doctrine of primogeniture, prefer- 
 ence of males over females, exclusion of the half blood, and its vari- 
 ous other provisions, was the law of the colony, until altered by the 
 act of the 12th July, 1782 ; which latter act was revised and re- 
 pealed on the 23d February, 1786. (1 Greenl. 205.) This latter 
 statute still required the heir to be the heir of the lyerson last seised^ 
 and the inheritance was then directed to descend 1, to his lawful 
 issue, standing in equal degree, in equal parts as tenants in common ; 
 2, to his lawful issue, and their descendants, in different degrees, 
 according to the right of representation ; 3, to the father ; 4, to 
 brothers and sisters ; 5, to the children of brothers and sisters. In 
 all cases of descent beyond those five cases, the common law con- 
 trolled. The foregoing, it will be seen, abrogated the law of primo- 
 geniture, and the preference of males to females, and the exclusion 
 of the parents on failure of lineal descendants, and constituted them, 
 in a certain order, heirs to their own children. 
 
 The law thus remained in this state until the revision of the stat- 
 utes in 1830, when important changes were introduced. All the de- 
 cisions of the courts of this state, prior to 1830, with respect to the 
 transmission of real estate by descent, were made either with refer- 
 ence to the common law, or that law as modified by the acts of 
 1782 and 1786. Some cases, arising under the former law, were not 
 the subject of adjudication until after 1830, and were determined 
 according to the principles of the statutes in force at the time the 
 respective cases arose. So long a period has elapsed since the act of 
 1782, that no case can be expected to arise depending wholly upon 
 common law principles. And the period of thirty years and upwards, 
 which has transpired since the revised statutes took effect, has made 
 it needless to devote much time to a consideration of the state of the 
 law antecedently in force. 
 
 The act of 1786 adopted the maxim of the common law, which 
 had subsisted for ages, that lands in fee simple must descend to the 
 heir of the pei-son last actually seised thereof. Coke, in his com- 
 mentary on the 8th section of Littleton, p. 15 a, states the law to
 
 324 RULES OF DESCENT— POSSESSIO FRATRIS. 
 
 be, that if the father make a lease for years, and the lessee entereth 
 and dieth, and the eldest son dieth during the term, before entry 
 and receipt of the rent, the youngest son of the half blood shall not 
 inherit, but the sister ; because the possession of the lessee for years 
 is the possession of the eldest son, so as he is actually seised of the 
 fee simple, and consequently the sister of the whole blood is to be 
 heir. But, he observes, in the case aforesaid, if the father made a 
 lease for life, or a gift in tail, and dieth, and the eldest son dieth in 
 the life of a tenant for life, or tenant in tail, the younger brother of 
 the half blood shall inherit, because the tenant for life or the tenant 
 in tail is seised of the freehold, and the eldest son had nothing but 
 a reversion expectant upon that freehold or estate tail, and there- 
 fore the youngest son shall inherit the land, as heir to his father 
 •who was last seised of the actual freehold. (3 Co. Eep. 42, Bad- 
 cliff's case.) This is the language of Spencer, J. in Jackson v. Hil- 
 ton and others, (16 John. 99,) a case which arose under the com- 
 mon law, before it had been affected by the act of 1782 or 1786. 
 In that case the testator, by his will, dated 1755, devised certain 
 real estate to his daughter, without making any disposition of the 
 reversion. The testator died, leaving B. his heir at law, who died 
 before the termination of the life estate. It was held, that the heirs 
 of B. were not entitled as such to the land after the death of the 
 tenant for life ; for the reason that B., the son, had not such seisin 
 as to create a new stock of descent ; and a person claiming the land 
 by descent must entitle himself as heir of the devisor who was last 
 actually seised in fee. 
 
 In the case of Jackson v. EendricJcs, (3 John. Cases, 214,) the 
 same doctrine was recognized. In that case Esther Hendricks died 
 seised of real estate in 1775, leaving a husband and two sons and 
 three daughters ; the husband became seised by the curtesy until his 
 decease in 1793 ; the eldest son died in 1784, intestate, and without 
 issue ; the youngest son entered after the death of his father ; the 
 sisters brought their ejectment, and the court held that the case was 
 governed by the common law, and the statute of descents did not 
 apply, {Act of 1786 ;) that the descent to the eldest son was sus- 
 pended by the existence of the estate of the tenant by the curtesy, 
 and the eldest son was not seised so as to form a new stock of de- 
 scent, or to constitute a. possessio fratris ; and that the mother was 
 the person last seised, from whom the descent must be claimed ; and 
 as she died before the statute of descents, {Act of 1786,) her surviv-
 
 POSSESSIO FRATRIS. 325 
 
 ing son was adjudged to be entitled to the estate, to the total exclu- 
 Bion of his sisters. The same doctrine was held in Bates v. Shrae- 
 der, (13 John. 260.) 
 
 The possessio fi-atris is an expression found in the old books, and 
 is used to denote the doctrine, which prevailed at common law, of 
 the exclusion of the half blood from the succession to estates. ^ The 
 maxim was that the brother's possession of an estate in fee simple, 
 makes the sister to be heir. This is best illustrated by Blackstone. 
 (2 Black. Com. 227.) If a father have two sons, A, and B., by- 
 different wives ; now these two brethren are not brethren of the 
 whole blood, and therefore shall never inherit to each other, but the 
 estate shall rather escheat to the lord. Nay, even if the father dies, 
 and his lands descend to his eldest son A., who enters thereon, and 
 dies seised without issue ; still B. shall not be heir to this estate, be- 
 cause he is only of the half blood to A. the person last seised ; but 
 it shall descend to a sister (if any) of the whole blood A ; for in such, 
 cases the maxim is that the seisin or possessio fratris facit sororem 
 esse hoeredem. Yet, had A. died without entry, then B. might have 
 inherited ; not as heir to A., his half brother, but as heir to the 
 common father, who was the person last actually seised. This was 
 the common law. It is, however, not now law in England, it hav- 
 ing been recently abolished by 3 and 4 Will. 4th, and it is not law 
 in this state, as we shall see when we come to examine the present 
 law of descent as prescribed by the revised statutes of 1830. 
 
 Before we proceed to examine the several rules or canons of de- 
 scents, a few more observations will be added. If the next heir of 
 the person last seised be an alien, the lands do not escheat, but go 
 to some remoter heir who is capable of taking by descent. {Ley- 
 man V. Aheel, 16 John. 30.) 
 
 The same rule of descent which governs in the case of corporeal 
 hereditaments governs also in the case of incorporeal hereditaments. 
 They are real property, and are subject to the like rules. {Id.) 
 
 A person who has a vested remainder in fee simple, expectant on 
 the determination of a present freehold estate, has such a seisin in 
 law, when the estate is acquired by purchase, as will constitute him 
 a stirps or stock of descent. {Wendell v. Crandall, 1 Comst. 491, 
 affirming Vanderheyden v. Crandall, 2 Denio, 9.) 
 
 The rule that the descent between brothers is immediate, and not 
 impeded by the alienage of their father, holds between one of them 
 and the representatives of the other, and also betweeen the repre-
 
 326 FIRST RULE OF DESCENT. 
 
 sentatives of both of them. Hence the alienage of the common 
 grandfather does not impede descent between cousins, the children 
 of brothers who were citizens, and capable of transmitting by de- 
 scent. {McGregor v. Comstock, 3 Comst. 408.) In that case the 
 death of the ancestor occurred prior to 1830. 
 
 We will now proceed to examine the rules or canons of descent, 
 as they are prescribed by the revised statutes, and shall have occa- 
 sion to -compare them with those antecedently in force. 
 
 The general requirement of the law is that the real estate of every 
 person who shall die without devising the same, shall descend in the 
 manner following : 1. To his lineal descendants. 2. To his father, 
 3. To his mother ; and 4. To his collateral relatives ; subject in all 
 cases to the rules and regulations prescribed in the act. (1 JR. S. 
 751, §1.) 
 
 I. The first rule or canon of descents is that if the intestate shall 
 leave several descendants in the direct line of lineal descent, and all 
 of equal degree of consanguinity to such intestate, the inheritance 
 shall descend to such persons in equal parts, as tenants in common, 
 however remote from the intestate the common degree of consan- 
 guinity may be. {Id. §§ 2, 17.) 
 
 This is the same as the first canon under the act of 1786, with 
 the exception that the latter act applied only to cases of the death 
 of the party last seised, leaving other cases when the ancestor had 
 been disseised, or his right was contingent or executory, to be de- 
 termined by the rules of the common law. The cases cited on a 
 preceding page afi'ord apt illustrations of the effect of that pro- 
 vision. 
 
 The rule at common law, as laid down by Blackstone, Cruise and 
 the other approved English writers, was, that inheritances shall lin- 
 eally descend to the issue of the person who last died actually seised 
 i)i infinitum; but shall never lineally ascend. 
 
 The original rule, it will be perceived, required that the ancestor 
 had no capacity to transmit the descent to his heirs, unless he was 
 the person last seised of the actual freehold and inheritance. 
 
 The nature of seisin, and the difference between a seisin in laiu 
 and a seisin in deed, have been explained in a previous chapter. 
 Where a person acquired a fee simple in lands by descent, he ac- 
 quired only thereby a seisin in law, and could not, on his death be- 
 fore entry, transmit the estate to his heir. It was necessary, at 
 common law, that he should make an actual entry, so as to acquire
 
 FIRST RULE OF DESCENT. 327 
 
 a seisin in deed^ before he had such a title as would pass by descent 
 to his heir. In this country no actual entry by the heir is necessary 
 when the ancestor dies seised. 
 
 There were some exceptions to the common law rule. 1. When 
 the ancestor acquired the estate by his own act, he was, in many 
 cases, allowed to transmit it to his heirs, though he never had the 
 actual seisin of it himself. In the case of an exchange, if both par- 
 ties died before either entered, the exchange was totally void : but 
 if one of the parties entered, and the other died before entry, his heir 
 might enter and be in by descent. {Shelleij's case, 1 Co. 98 b.) Trust 
 estates and equitable interests might be transmitted to the heir, 
 without an actual entry. Such is undoubtedly the rule with us at 
 this day. 
 
 It was a maxim of the common law, that the freehold should 
 never, if possible, be in abeyance. The lands, therefore, on the death 
 of the party, immediately descend to the person who is heir at the 
 time of. the death of the ancestor. But this descent might be 
 defeated by the subsequent birth of a nearer heir. This is now pro- 
 vided for by the statute. Descendants and relatives of the intestate, 
 begotten before his death but born thereafter, in all cases inherit in 
 the same manner as if they had been born in the lifetime of the in- 
 testate and. had survived him, (1 R. S. 754, § 18.) This is not 
 confined to lineal descendants, but extends to collaterals, A child 
 begotten but not born, is for all purposes under the law of descents, 
 treated as in being. Thus should the intestate die without lineal 
 descendants, leaving nephews and nieces for example as his heirs, a 
 nephew or niece, begotten before but born after the death of the 
 intestate, would share equally with his or her brothers and sisters in 
 the inheritance. 
 
 The rule in the first canon of descents at common law, excluding 
 parents and all lineal ancestors from the inheritance of their off- 
 spring, is derived from the feudal law. It was first broken in upon in 
 our act of 1786 in favor of the father, unless the inheritance came to 
 the child from the mother, in which latter case it was left to descend 
 as if the person last seised had survived the father. 
 
 The immediate descent to the children is, in certain cases, sus- 
 pended. By the act of 1860, ch, 90, § 11, it is enacted that at the 
 decease of the husband or wife intestate, leaving minor child or 
 children, the survivor shall hold, possess and enjoy all the real estate 
 of which the husband or wife died seised, and all the rents, issues
 
 328 SECOKD EULE OF DESCENT. 
 
 and profits thereof during the minority of the youngest child, and 
 one third thereof during his or her natural life.* 
 
 II. The second rule, as established by the revised statutes, is that 
 if any of the children of the intestate be living, and any be dead, the 
 inheritance shall descend to the children who are living, and to the 
 descendants of such children as shall have died, as tenants in com- 
 mon ; so that each child who shall be living, shall inherit such share 
 as would have descended to him, if all the children of the intestate 
 who shall have died leaving issue, had been living; and so 
 that the descendants of each child who shall be dead shall inherit 
 the share which their parent would have received if living. (1 B. S. 
 751, §§3, 17.) 
 
 This is the same as the second canon in the act of 1786, except 
 the latter derived the descent from the person last seised, of which 
 enough has been already said. The revised statutes speak only of 
 the intestate, and do not require an actual technical seisin in the 
 ancestor to enable him to transmit the estate to his heirs. 
 
 The second canon at common law was, " That the male issue shall 
 be admitted before the female." And the 3d canon was, " That when 
 there are two or more males in equal degree, the eldest only shall 
 inherit." These two rules giving the preference to the males, and 
 establishing the rule of primogeniture, we have already said, were 
 abrogated by our statutes at an early day. They have probably 
 been repudiated in all the states in the Union whose jurisprudence 
 was derived from the common law. 
 
 * This act is strangely defective, and will in some cases lead to the grossest injustice. 
 Thus, should the mother die, in the lifetime of the father, leaving one or more infant 
 children, and should the father marry another woman and then die himself, the second 
 wife would, by virtue of the above act, hold, possess and enjoy all the real estate of 
 which her husband died seised during the minority of the youngest child, without any 
 liability on her part to support those children. The widow is not bound to support 
 the minor children of her deceased husband by a former wife, any more than the hus- 
 band is bound to maintain his wife's child by a former husband. {Gay \\ Ballou, 
 4 Wend. 403.) There is less reason for a liability in the first case than in the last. It 
 ■was a strange oversight in the legislature to give the mother in law all the estate, and. 
 leave the children of the deceased husband destitute. The only remedy, as the law 
 stands, is for the husband to make a will and not die intestate. 
 
 Again, this statute only applies to the cases where the husband died seised, and does 
 not extend to cases where there is an outstanding life estate, nor where there is 
 an outstanding contingent remainder or executory devise, and he dies before the 
 termination of the preceding estate. The legislature has used the language of the law 
 of 1780, in preference to that of the revised statutes of 1830.
 
 SECOND RULE OF DESCENT. 329 
 
 Both the doctrine of primogeniture and the preference of males to 
 females are of feudal origin. 
 
 The second rule, as adopted by the revised statutes, applies to 
 descendants of the intestate entitled to share in his estate, but who 
 are of unequal degrees of relationship to him. Those nearest of kin- 
 dred to him take the same shares that they would if those who have 
 died leaving children had survived ; and the issue of the deceased 
 take the share that would have fallen to their ancestor. Thus, if a 
 father dies, leaving one son, and two grandsons, the children of a de- 
 ceased son or daughter, the son takes one half the estate by descent, 
 and the grandsons the other half, being one quarter to each ; and all 
 as tenants in common. If one of these grandsons shall have died 
 leaving two sons or daughters, in the case supposed, the latter will 
 take only the share which would have belonged to their father, as 
 tenants in common : That is to say, one quarter to be divided be- 
 tween them, being one eighth to each. They inherit, in this case, 
 peo' stijyes, or by representation ; so that the offspring take only 
 the share which would have belonged to their ancestor, had he been 
 living. (1 B. S. 751, § 4.) 
 
 If all the descendants were in equal degree of consanguinity to the 
 intestate, they would take j^er cajnta under the first rule. Thus, 
 if the intestate leaves twenty grandchildren, and no other lineal de- 
 scendant, though there may be some of them the children of a son 
 and others of a daughter of the intestate, they take by direct de- 
 scent from their grandfather, in equal parts as tenants in common, 
 ^er capita, and not by representation. If the intestate had four 
 children, one of whom had two children, another five, another six, 
 and another seven, making twenty grandchildren in all ; and if their 
 parents be all dead before the death of the intestate, in that case these 
 twenty grandchildren succeed to the estate as tenants in common, 
 each having a twentieth part of it. {Pond v. Bergh, 10 Paige, 140. 
 1 B. S. 751, § 4.) 
 
 This second rule of descent which we have been considering, com- 
 prehends within it all that is valuable in the fourth canon of de- 
 scent at common law. That canon was : That the lineal descend- 
 ants in infinitum of any person deceased, shall represent their an- 
 cestor ; that is, shall stand in the same place as the person himself 
 would have done, had he been living. Under this rule, according to 
 the English law, the child, grandchild or great-grandchild, whether
 
 330 THIRD RULE OF DESCENT. 
 
 male or female, of the eldest son, succeeded before the younger son or 
 the daughters. {Wliart. Con. 517.) This is thus illustrated by the 
 same author: If a man have two sons A. and B., and A. dies leav- 
 ing two sons, and then the grandfather die ; now the eldest son of 
 
 A. shall succeed to the whole of his grandfather's estate ; and if A. 
 had left two daughters only, they would have succeeded to moieties 
 of the whole in exclusion of B. and his issue. Under our rule, in 
 the case supposed, the two sons A. and B. would take in equal parts 
 as tenants in common ; and if A. had left two daughters only, they 
 would have taken, as tenants in common, one half of the estate, and 
 
 B. the other half. 
 
 III. The third canon or rule of descents established in this state, 
 transmits the inheritance of the intestate, in case of his death with- 
 out lawful descendants, to the parents, first to the father, and in 
 default of a father capable of taking, then to the mother ; in both 
 cases under certain limitations prescribed by the act. 
 
 This rule was an innovation and great improvement upon the 
 former act, and still more so upon the English rule of descent, which 
 excluded both the parents altogether. 
 
 The statute of 1786 provided that if the person last seised should 
 die without lawful issue, leaving a father, then the inheritance should 
 go to the father of the said person so seised, in fee simple ; unless 
 the said inheritance came to the person so seised, from the part of 
 his or her mother, in which case it should descend as if such person 
 so seised had survived his or her father. (1 R. L. of 1813, p. 53.) 
 But the act of 1786 made no provision for the inheritance passing 
 to the mother in any event. 
 
 In considering this rule of descent, which was new in our juris- 
 prudence, and a departure from the common law, it is proper to 
 consider its bearing upon each of the parents separately. 
 
 1. Upon the father. The revised statutes under which the third 
 rule is deduced, transmit the inheritance of the intestate to the fath- 
 er, in default of lawful descendants,- unless it came to the intestate 
 on the part of his mother, and such mother be living ; but if such 
 mother be dead, the inheritance, descending on her part, goes to the 
 father for life, and the reversion to the brothers and sisters of the 
 intestate, and their descendants according to the law of inheritance, 
 by collateral relatives before provided ; if there be no such brothers, 
 or sisters, or their descendants living, such inheritance descends to 
 the father in fee. (1 R. S. 751, § 5.)
 
 THIRD RULE OF DESCEN"T. 331 
 
 In the first case, the father takes the inheritance in fee ; and in 
 the second, he takes only a life estate, and the reversion passes to 
 the collateral relatives of the intestate and their descendants. If 
 there be no such collateral relatives or their descendant living, the 
 inheritance goes to the father in fee. In this latter case, the inher- 
 itance which came to the intestate on the part of the mother is di- 
 verted into another line of descent from that which it followed before 
 the revised statutes. 
 
 2. Upon the mother. On the death of the intestate without de- 
 scendants, leaving no father, or leaving a father not entitled to take 
 the inheritance under the fifth section, and leaving a mother and 
 brother or sister, or their descendants, then the inheritance descends 
 to the mother for life, and the reversion to such brothers and sisters 
 of the intestate as may be living, and the descendants of such as 
 may be dead, according to the law of inheritance, provided in sub- 
 sequent sections. If, however, the intestate in such case shall leave 
 no brother or sister, nor any descendant of a brother or sister, the 
 inheritance descends to the mother in fee. 
 
 The operation of the foregoing rules is more favorable to the fa- 
 ther than the mother. The father takes an estate in fee, in prefer- 
 ence to the brothers and sisters of the intestate or their descendants, 
 but the mother, under the like circumstances, takes only a life es- 
 tate, with a reversion to the brothers and sisters of the intestate who 
 are living, and the descendants of such as may be dead. In the ab- 
 sence of brothers or sisters of the intestate, or their descendants, she 
 takes the fee simple. In this respect she is put in the same situa- 
 tion of the father under the same circumstances, in relation to an 
 inheritance coming to the intestate on the part of his mother. 
 
 These provisions are far more consonant to our notions of justice 
 than those of the law of 1786, and greatly to be preferred to the seven 
 rules of the common law. Rules somewhat analogous to the fore- 
 going have been adopted in the other states, but it does not fall 
 within the compass of this treatise to arrange them in order. These 
 rules have now been in operation in this state for over thirty years ; 
 have met with the approbation of the public, and have led to no 
 serious controversy. 
 
 The tendency of our legislature for the last few years has been to 
 mitigate those parts of our jurisprudence having their origin in feu- 
 dal principles, which bore with unjust severity upon females. The 
 acts of 1848 and 1849 relative to the separate right of married
 
 332 FOURTH RULE OF DESCENT. 
 
 women, and that of 1860, chapter 90, all of which have been already 
 adverted to, are the offspring of that policy. 
 
 The statute does not extend the rule to the grand parents, who 
 therefore do not succeed on failure of the parents or other kindred 
 of the intestate. At common law they could not inherit from their 
 grandchildren, and the law in that respect is unaltered. 
 
 IV. The fourth rule or canon of descents is, that if there be 
 no lawful descendants of the intestate, and no father or mother ca- 
 pable of inheriting the estate, it descends, in the cases thereafter 
 specified, to the collateral relatives of the intestate ; and if there be 
 several such relatives all of equal degree of consanguinity to the in- 
 testate, the inheritance descends to them in equal parts, however 
 remote from the intestate the common degree of consanguinity may 
 be. (1 R. 8. 752, § 7.) 
 
 If all the brothers and sisters of the intestate be living, the inher- 
 itance descends to such brothers and sisters ; if any of them be liv- 
 ing, and any be dead, then to the brothers and sisters and every of 
 them who are living, and to the descendants of such as shall have 
 died ; so that each brother or sister who shall be living shall inherit 
 such share as would have descended to him or her if all the brothers 
 and sisters of the intestate, who shall have died leaving issue, had 
 been living ; and so that such descendants shall inherit the share 
 which their parent would have received, if linng, (7c?. § 8.) 
 
 This rule embraces the whole, or parts of the third, fourth and 
 fifth rules of the act of 1786, with modifications. It takes the place 
 of the fifth case of the common law, which was broader ; that on 
 failure of lineal descendants or issue of the 2Jerson last seised, the 
 inheritance shall descend to his collateral relatives, being of the 
 blood of the first purchaser, subject to the three preceding rules. 
 
 The great princi})le of the common law on which the doctrine of 
 collateral inheritance depends, is, according to Blackstone, Cruise, and 
 the other systematic writers on the subject, that upon failure of issue 
 of the last proprietor, the estate shall descend to the blood of the 
 first purchaser ; or that it shall result back to the heirs of the body 
 of that ancestor from whom it either really has, or is supposed by 
 fiction of law, to have originally descended. Instead of searching for 
 the first piu-chaser, the New York rule seeks to continue the estate 
 in the family of the intestate. It gives a paramount importance to 
 proximity of kindred. It shows no preference to males over females, 
 and disregards entirely the doctrine of primogeniture.
 
 FIFTH RULE OF DESCENT. 333 
 
 Under the former statute the supreme court held, in Jackson v. 
 Thurman, (6 John. 322,) that in the case of lineal descendants of 
 the person last seised, if all the descendants were of equal degree of 
 consanguinity to him they should take equally, however remote they 
 might all be from him. And if any of that class had died leaving 
 issue, that such issue should take as the representatives of the de- 
 ceased relatives of that class. But in relation to collateral heirs, a 
 different rule was adopted ; so that if the nearest relatives of the 
 deceased were nephews and nieces, they did not take equally, although 
 they all stood in the same degree of consanguinity to the testator ; 
 hut they took only as the representatives of their deceased parents. 
 And no provision was made by the fifth canon of descents for the 
 representative, or even for equality among relatives of the same 
 degree, beyond brother's and sister's children. (1 L. of 1813,^. 53, 
 § 3.) Hence, the issue of nephews and nieces could not take. But 
 the object of the 8th, 9th and 10th sections of the revised statutes 
 under consideration, says the chancellor in Pond v. Bergli, (10 Paige, 
 148,) was to place the law of descents among lineal and collateral 
 relatives upon the same footing in this respect. The class of nearest 
 relatives of the deceased not only take equally when they are his 
 only heirs at law, but all the original members of that class take 
 equally, by themselves, or by their representatives when some of them 
 have died leaving issue ; in the same manner as if they had survived 
 the person last seised and had then died intestate. And thus the 
 descendants of nephews and nieces were allowed to take. {See Re- 
 port of Eevisers, 3 R. S. 603, 2d ed. Hannan v. Oshorn, 4 Paige, 
 336, 340. Brown v. Burlingham, 5 Sand. 418. McGregor v. 
 Comstocl*', 3 Comsf. 408.) 
 
 The descendants take j^er capita when they stand in equal degree 
 of consanguinity to the intestate, and per stirpes, when they stand 
 in different degrees of relationship to the common ancestor. These 
 hold, however remote they may be in kindred to the common stock. 
 
 y. The fith rule is, that in default of lineal descendants, parents, 
 brothers and sisters, and their descendants, the inheritance descends 
 1. To the brothers and sisters of the father of the intestate, in equal 
 shares, if all be living. 2. If any be living, and any shall have died 
 leaving issue, then to such brothers and sisters as shall be living, 
 and to the descendants of such of the said brothers and sisters as 
 shall have died. 3. If all such brothers and sisters shall have died, 
 then to their descendants. ^
 
 334 SIXTH RULE OF DESCENT. 
 
 In all these cases the inheritance descends in the same manner as 
 if all such brothers and sisters had been the brothers and sisters of 
 the intestate. (1 R. S. 752, § 10.) They take per cajnta if in 
 equal degrees, otherwise per stirpes. 
 
 This rule assumes that the estate was acquired by the intestate 
 by other means than by a descent from either of his parents. This 
 leads to the next rule. 
 
 VI. The sixth rule is, that if the inheritance came to the intes- 
 tate on the part of his father, then the brothers and sisters of the 
 father, and their descendants, have the preference, and in default of 
 them, the estate descends to the brothers and sisters of the mother, 
 and their descendants. (1 R. S. 753, § 11.) 
 
 But if the inheritance shall have come to the intestate on the 
 part of his mother, then her brothers and sisters, and their descend- 
 ants, have the preference ; and in default of them, the brothers and 
 sisters on the father's side, and their descendants, succeed to the in- 
 heritance. (Id. § 12.) 
 
 Where the inheritance has not come to the intestate on the part 
 either of the father or mother, it descends to the brothers and sisters 
 both of the father and mother of the intestate, in equal shares, and 
 to their descendants, in the same manner as if all the brothers and 
 sisters had been the brothers and sisters of the intestate. {Id. § 13.) 
 
 The sixth canon of descent at common law was, that the collateral 
 heir of the person last seised must be his next collateral kinsman of 
 the whole blood. And the seventh and last canon was, that in col- 
 lateral inheritances, the male stock must be preferred to the female; 
 that is, kindred derived from the blood of the male ancestor, however 
 remote, shall be admitted before those from the blood of the female, 
 however near, unless when the lands have, in fact, descended from 
 a female. (Cruise's Dig. tit. 29, cJiajJ. 3.) Both these canons were 
 substantially abrogated by the law of 1786. They are entirely so by 
 the preceding canons, or rules derived from the revised statutes. 
 In addition to which, it is expressly enacted in the 15th section, that 
 relatives of the half blood shall inherit equally with those of the 
 whole blood in the same degree ; and the descendants of such rela- 
 tives shall inherit in the same manner as the descendants of the 
 whole blood ; unless the inheritance came to the intestate by de-- 
 scent, devise or gift of some one of his ancestors ; in which case all 
 those who are not of the blood of such ancestor shall be excluded 
 from such inheritance. [Champlin v. Baldwin, 1 Paige, 562.
 
 ILLEGITIMATES. ' 335 
 
 Broim V. Burlingham, 5 Sandf. 418.) The terms " the Mood" of 
 the ancestor, in the 15th section of the statute, include his relations 
 of the half blood. {Beebe v. Griffin, 4 Kern. 235.) 
 
 The case of illegitimates has already been adverted to in a pre- 
 ceding chapter. The question with regard to them arises in two 
 aspects : 1st, with respect to a descent from them ; and 2d, in rela- 
 tion to their capacity to take by descent. 
 
 The first case is provided for in the revised statutes, (1 R. S. 753, 
 § 14,) by directing the inheritance of an illegitimate, who dies with- 
 out descendants, to descend to his mother ; if she be dead, it then 
 descends to the relatives of the intestate on the part of the mother, 
 as if the intestate had been legitimate. The meaning is that if the 
 mother be dead at the time of the death of the intestate. If the 
 mother be living at the time of the death of an illegitimate intestate, 
 the case provided for in the statute does not arise, and the common 
 law rule governs. By the common law, a person of illegitimate 
 birth, not having inheritable blood, can neither inherit lands him- 
 self, nor transmit them by descent to any other person except his 
 own legitimate offspring, or persons otherwise capable of inheriting, 
 claiming by inheritance from or through him. {St. John v. Nor- 
 thiqj, 23 Barb. 25.) With respect to his offspring and their de- 
 scendants, he is a new stock, from which the inheritance is to be 
 derived. 
 
 2. Though the revised statutes thus gave an illegitimate a quali- 
 fied capacity to transmit the inheritance at his death to his living 
 mother, in case of a default of issue, they made no provision in fa- 
 vor of an illegitimate's taking the inheritance by descent from any 
 person. The act of 1855 (ch. 547) was made for this contingency. 
 It provides that in default of lawful issue of the mother, illegitimate 
 children may inherit real and personal property from their mother, 
 as if legitimate. It was prospective, and was not to affect any right 
 or title in or to any real or personal property already vested in law- 
 ful heirs of any person theretofore deceased. In case the mother 
 should marry and have lawful issue, the illegitimate offspring is left 
 as at common law, without capacity to take by descent from his 
 mother, or any other person. 
 
 The revised statutes, in conclusion, enact that in all cases not 
 provided for by the foregoing rules, the inheritance shall descend 
 according to the course of the common law. (1 B. S. 753, § 16.) It 
 will rarely happen that a case will occur which has not been pro-
 
 336 ■ ESTATES TAIL. 
 
 vided for. None but some remote collateral kindred can ever fall 
 "within its provisions. If such a case should occur, it must be de- 
 termined upon common law principles, in which the right of primo- 
 geniture, the preference of males to females, and the exclusion of the 
 half blood, will again control the distribution of the estate. Had 
 the legislature adopted for these remote cases of kindred, the rule 
 of the statute of distributions relative to personal estates, and dis- 
 tributed the property to the next of kin in equal degree to the in- 
 testate and their legal representatives, when the case did not fall 
 within any of the preceding rules, there would have been no occasion 
 to resort to the doctrines of the common law for any case. 
 
 For such a supposable case, which may by possibility occur, and 
 for such a case only, it may not be out of place to give Lord Coke's 
 explanation in what order the attribute of dignity of blood is applied 
 by legal intendment. This is compendiously arranged, from Coke's 
 Commentary, by Mr. Cruise, (Co. Lit. 10 a, 12 a; Cruise's Dig. tit. 
 29, ch. 3,) in this manner : 1. To the male stock of the paternal 
 line. 2. The female stock of the paternal line. 3. The male branches 
 of the female stock of the paternal line. 4. The female branches of 
 the female stock of the paternal line. 5. The male stock of the 
 maternal line. 6. The female branches of the male stock of the 
 maternal line. 7. The male branches of the female stock of the ma- 
 ternal line. 8. The female branches of the female stock of the ma- 
 ternal line.* 
 
 The rules under our former statute of descents, the act of 1786, 
 did not apply to the descent of estates in remainder or reversion ex- 
 pectant on an estate of freehold ; because when there was a preceding 
 estate of freehold, the actual seisin was in the possession of that 
 estate, and not in the person entitled to the remainder or reversion. 
 This rule of the common law, we have already intimated, has been 
 changed in this state by the operation of our law of descents. The 
 risht of the ancestor descends on his death to his heirs, whether his 
 right was in possession, remainder or reversion. (Vanderheyden v. 
 Crandall, 2 Denio, 9.) 
 
 Prior to 1782, estates tail existed in this state and were occasion- 
 ally created. By that act and the act by which it was revived and 
 repealed in 1786, estates in fee tail, whether existing in 1782 or there- 
 
 * Professor Greenleaf has inserted, in his valuable edition of Cruise's Digest, vol. 2, 
 from page 166 to 179, an interesting summary of the rules of descent in the various 
 states of the Union.
 
 ESTATE IN FEE TAIL. 337 
 
 after created, were converted into estates in fee simple absolute. 
 (1 R. L. 52.) This law we have already seen was incorporated in 
 the revision of 1830, and is still the law of this state ; so that there 
 cannot be at present any such estate in this state. In the investi- 
 gation of old titles it has sometimes been found necessary to inquire 
 whether a specified estate was an estate in fee simple or fee tail. 
 This was the case in Vanderheyden v. Crandall, (supra.) It is 
 therefore deemed expedient here merely to define an estate in fee 
 tail, as it formerly existed, and give the rule of descent with refer- 
 ence to it. 
 
 An estate in fee tail grew out of the statute De donis condition- 
 alihus, (13 Edw. 1, ch. 1,) by which estates of inheritance were 
 made descendible to some particular heirs only of the person to 
 whom they were granted, and not to his heirs generally. The donee 
 of an estate tail was the first purchaser of it, and none save those 
 who were lineally descended from him, and answered the limitation, 
 general or special, could inherit it per formam doni. But primo- 
 geniture amongst the males, and coparcenary amongst the females, 
 who were not excluded by the original gift, existed, and a posthu- 
 mous child was not prejudiced by reason of his coming after prior 
 children. 
 
 In tracing descent, then, to an estate tail, the maxim seisina 
 facit stipetem never applied, for the issue are as much within the 
 donor's intention, and as personally and precisely described in the 
 gift as any of their ancestors ; and consequently the half blood is 
 not excluded, since the issue in tail is ever of the whole blood to 
 the donee ; neither does the rule of possessio fratris obtain. 
 {Wharton's Conv. 534.) 
 
 The statute of descents does not affect the estate of a husband as 
 tenant by the curtesy, or of a widow as tenant in dower. Nor does 
 it prevent real estate held in trust for any other person, when not 
 derived by the person for whose use it is held, from descending to 
 his heirs, according to the provisions of the act which we have been 
 considering. (1 R. S. 754, §§ 20, 21.) 
 
 In determining the value of the real estate descended to an heir, 
 the conveyancer will sometimes have to inquire whether there be 
 any incumbrance upon it, either created by the original owner, or 
 by the heir after the death of the ancestor ; or whether by reason 
 of any advancement by the ancestor in his lifetime the value of the 
 portion belonging to the heir is affected. 
 Will.— 22
 
 338 ADVANCEMENT. 
 
 The doctrine of advancement was carried into the law of descent 
 "by the legislature, in 1830, from the statute of distributions, which 
 latter was drawn from the English statute on the same subject, and 
 had reference only to the personal assets. Under our law of dis- 
 tributing real estate, there is the same equity tha't the child who has 
 been advanced by the parent in his lifetime, with a view to a por- 
 tion or settlement in life, should bring it into hotchpot with his 
 brothers and sisters not thus favored, as in the case of the distribu- 
 tion of the personal estate. The statute has therefore wisely enact- 
 ed, that if any child of an intestate shall have been advanced by 
 him by settlement or portion of real or personal estate or of both 
 of them, the value thereof shall be reckoned for the purpose of this 
 section only, as part of the real and personal estate of such intestate, 
 descendible to his heirs, and to be distributed to his next of kin 
 according to law ; and if such advancement be equal or superior to 
 the amount of the share which such child would be entitled to re- 
 ceive of the real and personal estate of the deceased, as above reck- 
 oned, then such child and his descendants shall be excluded from 
 any share in the real and personal estate of the intestate. (1 R. S. 
 754, § 23.) But if such advancement be not equal to such share, 
 such child and his descendants shall be entitled to receive so much 
 only of the personal estate, and to inherit so much only of the real 
 estate of the intestate as shall be sufficient to make all the shares 
 of the children in such real and personal estate and advancements 
 to be equal as near as can be estimated. (Id. § 24.) 
 
 To obviate any controversy as to the value of any real or personal 
 estate so advanced, it is provided that it shall be deemed that, if 
 any, which was acknowledged by the child by an instrument in 
 wiiting ; otherwise its value shall be estimated according to the 
 worth of the property when given. (Id. § 25.) 
 
 It is not every sum of money, or other valuable thing which an 
 indulgent parent may furnish one child in preference to another, 
 that will constitute an advancement, within the meaning of the 
 law. Nor wiU the maintaining or education of a child, without 
 a view to a portion or settlement in life, constitute an advancement. 
 (Id. § 26.) The parent is bound to support and educate his off- 
 spring according to his state and circumstances in life. ( Vail v. 
 Vail, 10 Barb. 69. 3IcBae v. McBae, 3 Bradf. 199.) And 
 though the education or support of one be more expensive than
 
 DUTY OF CONVEYANCER. 339 
 
 that of the others, this difference does not per se constitute an ad- 
 vancement. 
 
 The revised statutes make the heirs of every person who shall 
 have died intestate, and the heirs and devisees of any person who 
 shall have died after the making of his last will and testament, re- 
 spectively liable for the debts of such person, arising by simple 
 contract or by specialty, to the extent of the estate, interest and 
 right in the real estate which shall have descended to them from, or 
 been devised to them by such person. (2 B. S. 452, § 22.) But 
 the heirs are not liable for any such debt, unless it shall appear that 
 the deceased left no personal assets within this state to be admin- 
 istered, or that the personal assets of the deceased were not suffi- 
 cient to pay and discharge the same ; or that after due proceedings 
 before the proper surrogate's court and at law, the creditor has been 
 unable to collect such debt, or some part thereof, from the personal 
 representatives of the deceased, or from his next of kin or lega- 
 tees. {Id. § 33.) 
 
 If the debts of the intestate have been reduced to judgment 
 against him in his lifetime, and the judgment has been docketed 
 in proper manner, a lien is created upon the real estate, which in- 
 dependent of the above statute will follow it into whosesoever 
 hands it may pass. The first inquiry, therefore, of the conveyancer 
 who is called upon to investigate the validity of the title of the heir, 
 is to ascertain the nature and extent of the title of the ancestor, 
 and to search for incumbrances, by judgment or mortgage, against 
 him. 
 
 But the liability of the heir or devisee for the debts of the deceas- 
 ed is not confined to such as are either a specific or general lien 
 upon his lands. He is liable also for the simple contract or specialty 
 debts of the deceased, to the extent of the interest he takes in the 
 estate by descent or devise. These debts are an equitable lien upon 
 the estate in the possession of the heir or devisee, and prior in time 
 to judgments recovered against them for their individual debts. 
 {Morris v. 3Ioivatt, 2 Paige, 586.) But as the personal estate is 
 the primary fund for the payment of the debts of a deceased person, 
 his heirs are not liable for those debts unless it appears that the 
 personal assets were not sufficient to pay the same, or that after 
 due proceedings before the surrogate and at law, the creditor has 
 been unable to collect such debt from the executor or administrator, 
 or from the next of kin or legatees. Thus, a suit at law against
 
 340 SALE OF EEAL ESTATE. 
 
 the prior parties is an essential preliminaiy to a right to sne the 
 heirs; and the latter are to be sued jointly in equity. {Stuart v. 
 Kissam, 11 Barb. 271.) 
 
 By the provisions of the title of the revised statutes relative to 
 the powers and duties of executors and administrators in relation to 
 the sale and disposition of the real estate of their testator or intes- 
 tate, the personal representatives are authorized to apply to the 
 suiTOgate for a sale of the real estate of the deceased for the pay- 
 ment of his debts, at any time within three years after the granting of 
 letters testamentary or of administration. And if such personal rep- 
 resentatives neglect to apply to the suiTogate, any creditor is author- 
 ized to make a similar application to the surrogate to compel such 
 sale after citing the executors or administrators to account. (2 R. S. 
 100, § 1. 1 id. 108, § 48, amended in 1837, 1843 and 1847; 3 id. 
 196, 5tli ed.) The legislature having furnished this cheap and sum- 
 mary mode of providing for the payment of the creditors out of the 
 real estate of the deceased, when his personal estate is insufficient 
 for that purpose, absolutely prohibited the creditor, by the 53d sec- 
 tion of the same title, from wasting the real estate by useless suits 
 in a court of equity against the . heirs or devisees, during the time 
 limited for the institution of proceedings before the surrogate for 
 such sale. The first clause of that section in terms declares, that 
 no suit shall be brought against the heirs or devisees of any real 
 estate in order to charge them \^dth the debts of the testator or in- 
 testate, within three years from the time of granting letters testa- 
 mentary or of administration upon the estate of their testator or 
 intestate. (Butts v. Genimg, 5 Paige, 257. Schermerhorn v. Bar- 
 Jiydt, 9 id. 45, 46.) Although since the decision of the chancellor 
 in the foregoing cases, the 48th section has been repealed and another 
 substituted in its place, extending the time within which a creditor 
 may apply to the surrogate for an order compelling the executors 
 or administrators to mortgage, lease or sell the real estate of the 
 testator or intestate for the payment of his debts, the principle then 
 decided is not changed. {Skidmore v. Romaine, 2 Bradf. 122.) 
 
 Though the heir takes an absolute title to the land descended, 
 subject only to be defeated or charged with the debts of the testator 
 or intestate, either by the representatives or the creditors taking the 
 steps authorized by the statute, it will, in practice, sometimes be 
 difficult to ascertain when the land is entirely free from a liability 
 to be thus proceeded against. ( Wilson v. Wilson^ 13 Barb. 252.)
 
 HEIRS OR CREDITORS MAT CONTEST DEBTS. 341 
 
 The executors or administrators are expressly limited to three years 
 from the date of their letters, within which to make the apphcatiou 
 to the surrogate. If they omit to proceed within the time allowed 
 for that purpose, any creditor of the deceased may apply to the sur- 
 rogate for an order for the executors or administrators to show cause 
 before the surrogate why they should not be required to mortgage, 
 lease or sell the real estate of the deceased for the papnent of debts. 
 This application may be made at any time after the granting of 
 letters testamentary or of administration; and the executor or ad- 
 ministrator is forbidden to show, for cause, that the time within 
 ivhich he is aUoioed to sell the same has expired. There is a good 
 reason why the executors or administrators should not be permitted 
 to allege their own laches in this respect, as a bar to a claim of a 
 creditor. But the law has not taken from the heirs or devisees, or 
 other creditors, the right of interposing the statute of limitations, 
 or any other defense, to the claim of the creditor who makes the 
 application. 
 
 1. The heirs and devisees have a direct interest in the question ; 
 and to remove all doubt as to their right to contest the validity of 
 the claims presented, the statute has expressly granted it in terms, 
 and forbid the admission of any such claim by an executor or ad- 
 ministrator, as evidence to revive the same, or in any way affect it. 
 (2 R. S. 100, § 10, as amended hij § 72 of the act of 1837, ch. 46, 
 and L. of 1843, ch. 172. Shidmore v. Romaine, 2 Bradf. 122. 
 Ferguson v. Broom, 1 id. 10. Renioich v. Renivick, 1 id. 234. 
 Wfcox V. Smith, 26 Barh. 316. Martin v. Gage, 5 Seld. 398.)^ 
 
 2. Any other creditor of the deceased, and probably a purchaser 
 from an heir or devisee of the deceased, have the same right to con- 
 test the validity of any claim. They have an interest in the fund 
 which the court will protect. {Mooers v. White, 6 John. Ch. 360.) 
 The proceeding before the suiTOgate to establish claims against the 
 estate is analogous to that under the common decree in an adminis- 
 tration suit. In the latter case it was held by the master of the 
 rolls in Sheiven v. VanderJiorst, (1 Russ. & Myl. 347,) that it was 
 competent for any of the parties interested in the fund to set up 
 the statute of limitations in bar of the claim of a creditor seeking 
 to establish his debt before the master, although the executors re- 
 fused to interfere. The decision was affirmed, on appeal, by Lord 
 Brougham, who remarked that, without saying hov/ far the master 
 himself might be entitled to set up the objection, he could see no
 
 342 APPLICATION BY CREDITOR. 
 
 reason why it miglit not be taken by a creditor, or a volunteer, as 
 well as by the personal representative. {Id. Mooers v. White, 
 supra. Wilcox v. Smith, supra. Willard on Executors, 317.) 
 
 With respect to an application by a creditor to the surrogate for 
 an order on the executors or administrators to show cause why he 
 should not be required to mortgage, lease or sell so much of the 
 real estate as may be necessary to pay the debts of the deceased, 
 there is no limitation of time within w^hich it may be made. In 
 this respect it is the same as the former statute in relation to the 
 application of executors and administrators. And yet, under that 
 statute, Chancellor Kent held that the application should be made 
 within a year from the granting of letters testamentary or of ad- 
 ministration. {Mooers v. White, supra.) And the supreme court, 
 without prescribing any definite period, expressed an opinion that 
 the lapse of fourteen years between the granting of administration 
 and an application to a surrogate for the sale of real estate, was a 
 sufficient cause, without explanation, for the rejection of the appli- 
 cation. {Jackson v. Robinson, 4 Werid. 436.) In the last men- 
 tioned case, the question arose in an action of ejectment brought 
 by a party claiming title under a deed executed by an administra- 
 trix under and in pursuance of a sale by virtue of the order of the 
 surrogate made while the law of 1813 was in force. It did not ap- 
 pear that the objection had been taken before the suiTogate, that 
 an unreasonable period had elapsed between the granting of the 
 letters and the application for the order of sale. The defendant 
 claimed under a deed from the heirs at law, and raised this question 
 for the first time on the trial of the ejectment, and called upon the 
 court to hold that the sale under the surrogate's order was void. 
 But the court, while holding that the surrogate should, in the ab- 
 sence of satisfactory explanation, have denied the order of sale, had 
 the objection been taken, thought it could not be pronounced void 
 in this collateral action. The proper remedy doubtless was to raise 
 the objection before the surrogate, and on its being overruled, 
 appeal. 
 
 It was perhaps impossible to prescribe a limit within which a 
 creditor might be required to make the application. In most cases 
 it may be presumed that estates will be fully settled up during the 
 period which the law has given to the executors and administrators 
 for that purpose. The right given to the creditors to become ac- 
 tors probably applies only to the exceptional cases of neglect of the
 
 TITLE BY PURCHASE. 343 
 
 personal representatives to make tlie application within tlie time 
 prescribed for tliem. Public policy, says Chancellor Kent, in 
 Moores v. White, (supra,) requires that a power of such formida- 
 ble import, and which affects the bona fide jjurchaser equally with 
 the devisee, should bo strictly construed. Nor will the creditor for 
 whose benefit the whole provision is intended, be materially affected. 
 In analogy to the cases of llooers v. White, and Jackson v. Bob' 
 inson, (siipt-a,) it would seem that the surrogate should limit the 
 creditor to a period not exceeding a year from the expiration of the 
 three years from the date of the letters testamentary or of adminis- 
 tration, unless under peculiar circumstances, a longer time might 
 be adjudged necessary consistently with sound policy and justice. 
 The defense should be interposed before the surrogate at the time 
 for showing cause. 
 
 The real estate may also be charged by the testator with the pay- 
 ment of debts and legacies. Such charge will be an incumbrance 
 on it in whose hands soever it may be. It wiU be necessary for 
 the conveyancer who investigates the validity of the title, to ex- 
 amine the last will and testament of the former owner to see whether 
 the real estate is well charged with debts or legacies, and to ascer- 
 tain whether those debts and legacies have been paid off and extin- 
 guished. 
 
 To inquire what language in a will operates to create a charge 
 upon the real estate of the testator, a more appropriate occasion 
 will arise, when we come, in a subsequent chapter, to consider the 
 doctrine of wills and devises. We shall therefore postpone a more 
 full discussion of this branch of our subject, till then. (See post, 
 ch. 9, § 4.) 
 
 CHAPTER IV. 
 
 OF TITLE BY PURCHASE. 
 
 We stated in a former chapter, that the mode of acquiring title 
 to real property might be reduced to two, by descent and purchase. 
 In the former the title is vested in a person by the operation of law, 
 and in the latter by the act and agreement of the party. If by 
 the term purchase we are to understand with Littleton, that it em- 
 braces every other method of coming to an estate, but merely that
 
 344 ESCHEAT AND FORFEITURE. 
 
 of inheritance, the reducing the number of modes by which a title 
 can be acquired to two, descent and purchase, is sufficiently accurate 
 for all purposes. 
 
 We have treated in the last chapter of title by descent. We 
 shall treat in the present of title by purchase. It embraces, among 
 others, the following methods of acquiring and defending the title 
 to estates: 1. Escheat; 2. Forfeiture; 3. Prescription; 4. Adverse 
 enjoyment; 5. Occupancy; 6. Election; 7. Estoppel; and 8. Alien- 
 ation. We shall treat of them in their order. 
 
 Section I. 
 Of Escheat and Forfeiture. 
 
 1. An escheat is one of the incidents of the feudal tenures. It 
 denotes, according to the systematic waiters on this subject, an ob- 
 struction of the course of descent, and a consequent determination 
 of the tenure, by some unforeseen contingency; in which case the 
 land naturally results back, by a kind of reversion., to the original 
 grantor or lord of the fee. (2 Bl. Com. 244.) 
 
 An escheat at common law is partly of the nature of a purchase, 
 and partly of descent. It was a purchase so far as it was necessary 
 for the lord to enter on the reverted property in order to complete 
 his full ownership of it; and it was a descent because the escheated 
 property followed the seignory, and was inherited along with, it, by 
 the lord's heir at law. It occurred in England on the death, intes- 
 tate, of the tenant without heir capable of inheriting, and on his 
 attainder for certain crimes. 
 
 The laws of this state declare that the people in their right of 
 sovereignty are deemed to possess the original and ultimate prop- 
 erty in and to all lands within the jurisdiction of this state; and 
 it is enacted, that all lands, the title to which shall fail from a de- 
 fect of heirs, shall revert or escheat to the people. {IB. 8. 718,' § 1.) 
 
 There are two cases with us in which lands escheat. First, when 
 the tenant in fee dies seised, leaving no heir capable of inheriting 
 the property, and making no valid disposition of it by will; and 
 second, when lands are purchased by an alien who cannot hold as 
 against the state. In both these cases, says Bronson, J. the prop- 
 erty immediately reverts to, and vests in the people, as the original 
 and ultimate proprietors of all the lands within the state. If there 
 be an outstanding life estate, the people will not be entitled to the
 
 ESCHEAT. 345 
 
 possession until that estate has terminated; but this cannot affect 
 their title to the fee. {The People v. Conhlin, 2 Hill, 74.) 
 
 It would seem from the foregoing remarks of the learned judge, 
 that to entitle the state to the real estate of the intestate by escheat, 
 he must have died seised. But this is not required by the statute. 
 In the case before the court, the testator having no relatives but 
 aliens, de\ased to his wife for life, remainder in fee to aliens. It 
 was held that the estate in remainder escheated on the testator's 
 death, though the jaeople could not enter until the life estate 
 terminated. 
 
 Some of the cases decided in this state arose prior to the revised 
 statutes, when the descent of real property was deduced from the 
 person last seised. This was the case of Jackson v. Jackson, (7 
 John. 214,) in which it was held that if the next heir of the person 
 last seised be an alien, the land does not therefore escheat, but goes 
 to a remoter heir, if there be any who is capable of taking. 
 
 By the common law, according to Mr. Cruise, if lands held in 
 trust escheated to the king, he held them free from the trust. Such 
 would have been the rule in this state, with reference to the people, 
 who take the place of the king, but for our legislation on the sub- 
 ject. The revised statutes provide that all escheated lands, when 
 held by the state or its grantees, shall be subject to the same trusts, 
 incumbrances, charges, rents and services to which they would 
 have been subject had they descended; and the supreme court, 
 formerly the court of chancery, is empowered to direct the attorney 
 general to convey such lands to the parties equitably entitled there- 
 to according to their respective rights, or to such new trustee, as 
 inay be appointed by such court. (1 R. S. 718, § 2.) 
 
 Although all the lands within this state are declared to be allo- 
 dial, so that the entire and absolute property is vested in the owners 
 according to the nature of their respective estates; and all feudal 
 tenures of every description, with all their incidents are abolished, 
 an exception is made in favor of escheat, which instead of goino- to 
 the lord as at common law, vests, we have seen, the estate in the 
 people, with its burdens as well as benefits. {Id. § 3.) 
 
 The former practice in this state to obtain the possession of es- 
 cheated lands was, under the statute of 24th March, 1801, (1 K. (k 
 R. 310,) by a wiit of escheat, issued out of chancery on the appli- 
 cation of the attorney general; and the inquisition found thereupon 
 might be traversed; and on a traverse of it, the traverser was con-
 
 346 FORFEITED ESTATES. 
 
 sidered as a defendant, and if he showed that the people had no 
 title, though he proved nothing but a bare possession in himself, he 
 was entitled to judgment. {The People v. Cutting, 3 John. 1.) 
 The revised statutes have changed this practice, and substituted an 
 action of ejectment, which is superseded in modern practice, under 
 the code by a civil action. (1 R. S. 282; 1 id. 685, 5th ed.) The 
 statute now contains suitable provisions for the recovery of escheat- 
 ed lands, and for fulfilling any contracts which may have been made 
 by the person last seised, or by any person from whom his title is 
 derived, so far as to convey the right and title of this state, 
 pursuant to such contract, without any covenants of warranty or 
 otherwise, and to allow all payments which may have been made on 
 such contracts. It is not deemed expedient to give an abstract of 
 the statute, or pursue the subject further. 
 
 2. We have a statute which treats of the recovery of forfeited 
 estate. (1 R. S. 284.) It assumes that such forfeiture may occur 
 upon a conviction or outlawry for treason, and gives to the attorney 
 general the same remedy to recover real estate so forfeited, as in the 
 case of escheated land. That remedy, we have seen, is ejectment, 
 or its substitute under the code. There has been no conviction and 
 forfeiture for treason in this state since the revolution. 
 
 In an action brought by the people to recover lands escheated to 
 the people or otherwise forfeited, the latter must prove that at the 
 time of the commencement of the action they had a valid subsisting 
 interest in the premises claimed, or right to recover the possession 
 thereof With respect to making out the proof of title in them- 
 selves, the people have an advantage over an individual. By right 
 of sovereignty, they are deemed the owners of all the lands within 
 the state, except such as have been granted to others, or have been 
 lost by lapse of time. Hence it is enough for the people to prove 
 in the first instance, that the premises in dispute were vacant and 
 unoccupied, within a period necessary to constitute an adverse pos- 
 session against them, and that the defendants subsequently entered 
 or made claim to them. ( Wendell v. The People, 8 Wend. 183. 
 The People v. Dennison, 17 id. 313. The People v. Van Rensselaer, 
 5 Selden, 319.)
 
 TITLE BY PRESCRIPTION. 347 
 
 Section II. 
 Of title by Prescription, by Adverse Enjoyment, and Occupancy. 
 
 1. The doctrine of prescription seems to liave been introduced 
 into English juirsprudence from the Eoman law. It is founded on 
 this presumption, that he who has had a quiet and uninterrupted 
 possession of any thing, for a long period of years, is supposed to 
 have a just right, without which he could not have been suffered to 
 continue in the enjo^onent of it. For a long possession may be con- 
 sidered a better title than can commonly be produced, as it supposes 
 an acquiescence of all other claimants; and that acquiescence also 
 supposes some reason for which the claim was forborne. 
 
 By the common law a prescription can only be made to incorpo- 
 real hereditaments, such as rents, right of way and the like. It 
 wiU not in any case give a right to erect a building on another s 
 land This is a mark of title and exclusive enjoyment, which can- 
 not be acquired by prescription. Title to land requires the higher 
 evidence of corporeal seisin and inheritance. {Ferris v. Brown, 3 
 Barh. S. G. B. 109. Cortelijou v. Van Brundt, 2 John. 362.) 
 
 Nor ^dll lapse of time enable a party to prescribe for a nuisance, 
 thouo-h a temporary occupation of part of a street or highway by 
 perso°ns engaged in building, or in receiving or delivermg goods 
 fi-om stores or warehouses, or the like; is allowed from the necessity 
 of the case; yet a systematic and continued encroachment upon a 
 street, though for the purpose of carrying on a lawful business, is 
 unjustifiable. {The Peoples. Ounningham, 1 Den. 524. 3Iills v. 
 
 EaJl, 9 Wend. 315.) 
 
 There is another kind of prescription established by statute law, 
 extending to corporeal hereditaments, by which an uninterrupted 
 possession for a certain number of years will give the possessor a 
 good- title, by taking from all others the right of maintaining any 
 action for the recovery thereof. 
 
 There are, therefore, two kinds of prescriptions known to our 
 law. The first, a prescription to incooyoreal hereditaments by a 
 usage of at least twenty years, which period our courts, in analogy 
 to the statute of limitations, have adopted instead of the immemo- 
 rial usage of the EngHsh law. This is a positive prescription, and 
 the kind which we are now considering. 
 
 A prescription differs from custom in this, that a custom is prop-
 
 348 TITLE BY PRESCRIPTION. 
 
 erly a local usage not annexed to the person; such as a right or 
 privilege which several persons have to the produce of the lands or 
 water of another. Thus common of pasture is a right of feeding 
 the beasts of one person on the lands of another; common of esto- 
 vers is the right the tenant has of taking necessary wood and timber 
 from the woods of the lord for fuel, fencing, &c. ; common of tur- 
 bary and piscary are in like manner rights which tenants have to 
 cut turf or take fish in the grounds or waters of the lord. {Per 
 Savage, Oh. J. in Van Re7isselaer v. Raddiff, 10 Wend. 647.) 
 Prescription, on the other hand, is always annexed to a particular 
 person. {Co. Litt. 113 6.) 
 
 This kind of prescription is of two sorts; a j^ersonal right, or 
 else a right attached to the ownership of a particular estate, and 
 only exercised by those who are seised of that estate. {Id.) The 
 first is termed a prescription in the person; t\iQ second, a prescrip- 
 tion in a que estate. {Cruise's Dig. title Prescription.) 
 
 This last, a prescription in a que estate, must always be laid in 
 the person who is seised of the/ee si7npl€. A tenant for life, or 
 years, or at will, cannot prescribe in this manner, by reason of the 
 imbecility of iheir estates. The reason given for this is that as 
 prescription is always beyond time of memory, it would be absurd 
 that those whose estates commenced within the memory of man 
 should intend to prescribe for any thing. Therefore tenant for life 
 must prescribe, under cover of the tenant in fee simple. (6 Co. 60 a.) 
 
 The reason for this distinction does not exist in this state, since 
 an uninterrupted and adverse and exclusive enjoyment of twenty 
 years affords a conclusive presumption of a grant, or a right, as the 
 case may be. A prescription cannot be predicated upon a user of 
 less than twenty years; and as it supposes a grant it is not appli- 
 cable to a case where there can be no grantee. {Per Gridley, J. in 
 Munson V. Hungerford, 6 Barh. 265.) 
 
 It is laid down in the English books that a prescription by im- 
 memorial usage can in general only be of things which may be cre- 
 ated by grant; for the law allows prescription only to supply the 
 loss of a grant. {Cruise's Dig. tit. 31, ch. 1, § 1.) Hence an ease- 
 ment which is a seisin, or convenience that one neighbor hath of 
 another, without profit, as a way through his land, a sink, or such 
 like, may be claimed by prescription; but a multitude of persona 
 cannot prescribe for an easement, though they may plead a cus- 
 tom. {Id.)
 
 TITLE BY PRESCRIPTION. 349 
 
 There is a difference between a prescription and a dedication, 
 though some of the principles on which they are founded are com- 
 mon to both. The one is personal, and the other belongs not to 
 one, but the public generally. {8ee Post v. Pearsall, 22 Weiid. 
 425; S. G. 20 id. Ill, luhere most of the cases are examined.) 
 
 While a prescription by immemorial usage can only be of things 
 which may be created hy grant, a prescrij)tion in a que estate is not 
 predicable of things that lie in grant, and can be affirmed only of 
 things that cannot pass without deed, or by descent from ancestors 
 without a conveyance. {Co Litt. 121 a.) 
 
 The first essential requisite to form a prescription is the length 
 of time during which it has existed. In England this is said to be 
 from time whereof the memory of man runneth not to the contrary, 
 which has long been ascertained to commence from the beginnins: 
 of the reign of Kichard 1. The reason given for fixing that period 
 is said by Littleton, that that was the limitation of writs of right, 
 the highest wnrit in its nature. {Litt. § 170.) That reason does 
 not exist in this country, which was not settled until centuries after 
 that period; but the principle on which the doctrine originally 
 rested, the period of limitation for a writ of right, has led the courts 
 in this country to adopt the period of our statute of limitations 
 against the recovery of real property from an adverse holder, as that 
 which will authorize the presumption of a grant. In this state it 
 is well settled that a prescription cannot be predicated upon a user 
 of less than twenty years. {Munson v. Eungerford, supra.) The 
 presumption of a grant from twenty years' uninterrupted use, has 
 been frequently held conclusive of a right. In Stiles v. Hooker, 7 
 Coioen, 266,) it was applied in favor of the owner of a miU, who 
 had, for twenty years or more, used the water of a stream at a par- 
 ticular height. In Corning v. Goidd, (16 F/end. 531,) it was held 
 that a grant of a right of way might be presumed from a continuous 
 and adverse user of twenty years. {See Hoyt v. Carter, 16 
 Barb. 213.) 
 
 With regard to ancient lights, it was said by the court in Par- 
 Jcer V. Foote, (19 Wend. 309,) that the modern English doctrine on 
 that subject was anomalous, and that in this state there was no 
 absolute legal presumption of the grant of such an easement from 
 the time of their enjoyment; but it must be left to the jury to 
 draw the presumption or not, as the circumstances may in their 
 judgment warrant.
 
 350 TITLE BY PRESCRIPTION. 
 
 The statute of limitations for the recovery of real property differs 
 in the different states. But the principle on which a prescription 
 is founded in this country is generally conceded to have reference 
 to that period. Hence in some a longer and in others a shorter 
 period than twenty years is adopted. {Coolidge v. Learned, 
 8 Pick. 503. Melvin v. Whiting, 10 id. 295. Mitcliell v. Walker, 
 1 Ark. 266. Ingraliam v. Hutchinson, 2 Conn. Rep. 584.) 
 
 The second essential requisite to a valid prescription is that it 
 must have a continued and peaceable usage and enjoyment. In 
 Colvin V. Burnett, (17 Wend. 568.) the question arose upon plead- 
 ings; and the learned judge who delivered the opinion of the court, 
 adopting the language of Putnam, J. in Sargeant v. Ballard, (9 
 Pick. 251, 255,) says the essential ingredients of a prescription are 
 that the user for twenty years was continuous, uninterrupted and 
 adverse; that is, under a claim of right, with the acquiescence and 
 knowledge of the owner. And in another and later case they say 
 that the right to flow the lands of another, founded upon an exclu- 
 sive and uninterrupted enjoyment for twenty years, cannot he ac- 
 quired unless the enjoyment he adverse. They, however, admit 
 that the uninterrupted possession is ^Wwa/acte evidence that it is 
 adverse, hut such conclusion may be rebutted by proof that it was 
 commenced and continued without any claim of right. {Hart v. 
 Fo.se, 19 Wend. 365. Gayetta B. Bethune, 14 3Iass. Rep. 49.) 
 
 The third ingredient is that the prescription must be certain and 
 reasonable. It must be open, peaceable, continued, and unequivo- 
 cal, and be adverse, that is, of a nature to indicate that it is claimed 
 as a right, and not the effect of mere indulgence. (Id.) 
 
 As a prescription must have a peaceable and uninterrupted en- 
 jo}Tnent, it may be lost by neglecting to claim or exercise it. 
 Abandonment is a simple non-user, and to operate as an extin- 
 guishment, it must have been continuous for twenty years. {Corn- 
 ing V. Gould, 16 Wend. 531.) It must have totally ceased for the 
 same length of time that was necessary to create the original pre- 
 sumption. 
 
 A temporary relinquishment of the right, if accompanied with 
 an intention to resume it within a reasonable time ; and when there 
 are no circumstances intimating the suspension to be temporary 
 only, a bona fide purchaser will be protected in the enjoyment of 
 the property as it appeared at the time of the purchase. {Id.)
 
 ADVERSE ENJOYMENT. 351 
 
 2. Title by adverse enjoyment is the second kind of prescription, 
 and owes its origin to the statute of limitations. It differs from a 
 prescription in this, that by a prescription of twenty years umn- 
 terrupted adverse enjoyment, a right to an incorporeal hereditament 
 is acquired, or a grant thereof conclusively presumed; whereas in 
 this second sort of prescription no positive right is acquired, but. 
 only the remedy of the former possessor in taken away, for the re- 
 covery of a corporeal or incorporeal hereditament. For this reason 
 it has sometimes been called a negative prescription. It is more 
 generally applicable to corporeal than to incorporeal hereditaments. 
 
 Though the statute of limitations does not profess to take an es- 
 tate from one man and give it to another, it extinguishes the claim 
 of the former owner, and quiets the possession of the actual occu- 
 pant who proves that he has occupied the premises under a color 
 of title peaceably and quietly for the period prescribed by the law. 
 It is therefore truly spoken of as a source of title; and is in truth 
 as valid and effectual as a grant from the sovereign power of the 
 state. 
 
 The statute of limitations in this state, with reference to real 
 property, was revised in 1801, and again in 1830, and subsequently 
 at the adoption of the code of procedure. (1 B. L. 181. 2 R. S. 
 292. Code of Procedure, § 75 et seq.) The act of 1801 provided 
 that the people of this state would not sue any person for, or in re- 
 spect to, any real property, or the issues or jjrofits thereof, by rea- 
 son of the right or title of the people to the same, unless such right 
 or title should have accrued within forty years before any action or 
 other proceeding for the same should be commenced, or unless the 
 people, or those from whom they claim, should have received the 
 rents and profits of such real estate, or of some part thereof, within 
 the space of forty years. At the revision in 1830, this limitation 
 was reduced to twenty years, and so continued till 1848, when at 
 the adoption of the code of procedure it was restored to forty years, 
 where it has ever since remained. As against the people, the de- 
 fendant must show title in himself, or a continued possession of 
 forty years, (The People v. Van Rensselaer, 8 Barb. 189.) 
 
 The limitation for a wi'it of right, by the law of 1801, was twen- 
 ty-five years. This was reduced to twenty years by the revised 
 statutes of 1830, and has been so continued in the code. The writ 
 of right was indeed abolished, but the limitation of twenty years 
 was applied to the substituted remedy.
 
 352 ADVERSE ENJOYMENT. 
 
 The existing law is that which is provided by the code; which 
 has also adopted, from the decisions of the courts, the principles 
 which govern in cases of adverse possession. {Code, § 78, &c.) 
 
 It provides that no action for the recovery of real property, or for 
 the recovery of the possession thereof, shall be maintained, unless 
 it appear that the plaintiff or his ancestor, predecessor or grantor, 
 was seised or possessed of the premises in question within twenty 
 years before the commencement of such action. This provision 
 covers what was formerly a writ of right, as well as the various pos- 
 sessory actions, which in this state were formerly embraced in the 
 action of ejectment. They are now all placed upon the same footing. 
 
 The same principle is extended as well to the action or its de- 
 fense, when founded upon the title to real property, or to rents or 
 services out of the same; and neither is effectual unless it appears 
 in the one case that the persons prosecuting the action, and in the 
 other the party making the defense, or under whose title the action 
 is prosecuted or defended, or the ancestor, predecessor or grantor 
 of such person, was seised or possessed of the premises in question, 
 within twenty years before the commencement of the act in respect 
 to which such action is prosecuted or defense made. {Code, § 79.) 
 
 The statute has wisely given a legislative definition of the effect 
 of an entry, by declaring that it shall not be deemed sufficient, or 
 valid as a claim, unless an action be commenced thereupon within 
 one year after the making of such entry, and within twenty years 
 from the time when the right to make such entry descended or 
 accrued. 
 
 The person establishing a legal title to the premises is, in every 
 action for the recovery thereof, presumed to have been possessed 
 thereof within the time required by law; and the occupation of 
 such premises by any other person shall be deemed to have been 
 under and in subordination to the legal title, unless it appears that 
 such premises have been held and possessed adversely to such legal 
 title for twenty years before the commencement of such action. 
 {Id. § 81.) 
 
 The foregoing provision of the code was borrowed from the revised 
 statutes of 1830, and was supposed to express the result of the 
 multifarious decisions of the courts, as to the presumption that ev- 
 ery possession was under the legal title. {Jackson v. Sharp, 9 
 John. 163. Wickham v. Conklin, 8 id. 228. Jackson v. Thomas^ 
 16 id. 293.)
 
 ADVERSE POSSESSION. 353 
 
 The doctrine with respect to adverse possession had become pretty 
 well settled as early as 1830, when the revised statutes took effect. 
 Some of the rules on the subject were supposed to be subtle and 
 refined; but having been long the subject of judicial exposition, it 
 was supposed by the legislature that they could be stated with pre- 
 cision and clearness; and it was therefore proposed, in the recom- 
 mendation of the re\dsers, that they should be fixed by legislative 
 enactment. The object was, 1. To make the statute of limitations 
 better understood; 2. To give to the rules a permanent character, 
 and rescue them from the fluctuations of opinions; and 3. That 
 the community at large might have the means of knowing the most 
 imj^ortant laws respecting the enjoyment of their property. {See 
 Revisers' notes on the subject, 3 R. S. 699, 2c? ed.) 
 
 The statute was made so as to embrace two of the most impor- 
 tant classes of cases, viz : 1st. Where the entry into the possession 
 of the premises was under a claim of title, exclusive of any other 
 •right, founded upon a written instrument, as, being a conveyance 
 of the premises in question, or upon the decree or judgment of a 
 competent court; and 2d. Where there has been an actual contin- 
 ued occupation of premises under a claim of title, exclusive of any 
 other right, but not founded upon a wi'itten instrument or a judg- 
 ment or decree. 
 
 The legislature intended to fix the rules with respect to these 
 two classes of cases by permanent enactment, and therefore adopted 
 substantially the expositions given to the subject by the courts. 
 And the same sections were retained by the code of procedure, un- 
 altered, and are still the law of this state. They obviously super- 
 sede the necessity of introducing, in this place, the adjudged cases 
 upon which they are founded. 
 
 With respect to the first class of cases, to wit, where the entry 
 was under a written instrument, as being a conveyance of the prem- 
 ises in question, or upon the judgment or decree of a competent 
 court, the enactment is, that where there has been a continued oc- 
 cupation and possession of the premises included in such instru- 
 ment, decree or judgment, or of some part of such premises, under 
 such claim, for twenty years, the premises so included shall be 
 deemed to have been held adversely; except that where the premises 
 so included consist of a tract divided into lots, the possession of 
 one lot shall not be deemed a possession of any other lot of the 
 same tract. (2 B. S. 294, § 9. Code of Procedure, § 82.) 
 
 Will.— 23
 
 354 ADVERSE POSSESSION. 
 
 This provision was intended to exclude the doctrine of a con- 
 structive adverse possession as applicable to large tracts of land. 
 That doctrine is admissible only when it is applied to a lot or farm; 
 in which latter case the improvement of a part of a lot or farm wiU 
 give a valid constructive possession of the residue, although not 
 improved. But it is essential to support such constructive posses- 
 sion, that the deed or writing should include within its boundaries, 
 the land not occupied and improved. (Jackson v. Camp, 1 Coiv- 
 en, 605. Jackson v. Woodruff, Id. 286. Same v. Michards, 6 id. 
 617. Sharp v, Brandow, 15 Wend. 597.) 
 
 The foregoing section does not define what shall be deemed to 
 have been such a possession or occupation of land, as to constitute 
 an adverse possession, by a person claiming a title founded upon a 
 written instrument, or a judgment or decree. To supply that de- 
 ficiency the statute declared what was necessary to constitute such 
 occupancy or possession; and it was declared to be 1, where the 
 land so claimed has been usually cultivated or improved; 2, where 
 it has been protected by a substantial inclosure ; 3, where, although 
 not inclosed, it has been used for the supply of fuel or fencing tim- 
 ber, for the purposes of husbandry, or the ordinary use of the oc- 
 cupant; 4, where a known farm or a single lot has been partly im- 
 proved, the portion of such farm or lot that may have been left not 
 cleared, or not inclosed, according to the usual course and custom 
 of the adjoining country, shall be deemed to have been occupied 
 for the same length of time as the part improved and cultivated. 
 (2 B. S. 294, § 10. Code, § 83.) 
 
 The laws should be made with reference to the actual condition 
 of the society upon which they are to operate. This is not the 
 same in every part of the state. In some counties lands have not 
 been reclaimed from their primeval forests. In others, farms will 
 be found in every stage of improvement; some just emerging from 
 a wild state, and others already reduced to cultivation. The stat- 
 ute is broad enough for every case; and yet there will often be oc- 
 casions for the exercise of a wise discretion in courts and juries in 
 the application of the rules. 
 
 With respect to the second class of cases, namely, an occupation 
 or possession of lands under a claim of title not written, or hj judg- 
 ment or decree, a like policy was pursued by the legislature of con- 
 forming the written law to the approved judicial decisions. The 
 supreme court, as early as 1812, had decided in Smith v. Burtisj
 
 ADVERSE POSSESSION. COLOR OF TITLE. 355 
 
 (9 Jolin. 180) tliat a possesion for ever so long a time, stripped of 
 the circumstances that it was accompanied with the claim of the 
 entire title, would not amount to an adverse possession, barring 
 those who had the real and legitimate title. It was not required 
 that there should be a rightful title. The fact of the possession, 
 and the quo animo^ it was commenced or continued, were the only- 
 tests. 
 
 To carry out these views, the statute expressly enacted that 
 where it shall appear that there has been an actual continuous oc- 
 cupation of any premises under a claim of title, exclusive of any 
 other right, but not founded upon any written instrument, or any 
 judgment or decree, the premises so actually occupied, and no oth- 
 er, shall be deemed to be held adversely. (2 R. 8. 294, § 11. 
 Code, § 84.) 
 
 The actual occupancy is thus made the criterion, when the right 
 is not founded upon a wi'itten instrument, or judgment, or decree. 
 What shall constitute such occupancy as to amount to an adverse 
 possession, is there declared to be 1, where the land has been pro- 
 tected by a substantial inclosure; and 2, where it has been usually 
 cultivated or improved. (2 R. 8. 294, § 12. Code, § 85.) This is only 
 the adoption of the principle which had long been held by the 
 courts, that a mere possession fence, as it is called, made by felling 
 trees and lapping them upon one another, is too loose and equivo- 
 cal, to take away the right of entry from the rightful owner. There 
 must, say the court, be a real and substantial inclosure, an actual 
 occupancy, a possessio pedis, which is definite, positive and noto- 
 rious, when that is the only defense interposed to countervail a le- 
 gal right. (Jackson v. 8choonmaJcer, 2 John. 230.) But the in- 
 closure may be in part natural, as a continued ledge of rocks, a 
 mountain or a navigable river. (Jackson v. Halstead, 5 Coioen, 
 216.) If there is no written title, judgment or decree, but the de- 
 fendant relies solely on possession, vni\\ an assertion of title, he 
 can retain so much only as he had under actual improvement, and 
 within a substantial inclosure. (Jaclcson v. Warford, 7 Wen- 
 dell, 62.) 
 
 The effect of the statute of limitations when applied to civil ac- 
 tions, is to mature a wrong into a right, by cutting off the remedy. 
 (Per Coioen, J. in Humbert v. Trinity Church, 24 Wend. 604.) 
 To warrant its application in ejectment, the books require color of 
 title, by deed or other documental semblance of right in the defend-
 
 356 ADVERSE POSSESSION. COLOR OF TITLE. 
 
 ant, only when the defense is founded on a constructive adverse 
 20ossession. But neither a deed nor any equivalent muniment is 
 necessary where the possession is indicated by actual occiq^ation, 
 and any other evidence of an adverse claim exists. An oral claim 
 of exclusive title, or any other circumstances by which the absolute 
 owner of land is distinguished from the naked possessor, are equally 
 admissible, and may be equally satisfactory. {Id.) 
 
 If on the trial the defendant shows that he took possession claim- 
 ing under a deed, he is not bound to produce the deed, though 
 called for by the plaintiff, but may rely on his adverse possession. 
 (Jackson v. Wheat, 18 John. 40. Same v. Neivton, Id. 355. Brad- 
 street V. Clarice, 12 Wend. 674.) It is not necessary that there 
 should be a rightful title. All that is necessary is that it should be 
 a possession taken and held in good faith, under claim and color of 
 title, and exclusive of any other right. The defense of adverse pos- 
 session assumes that the defendant has not a valid legal paper title; 
 if he had, he need not rely upon the length of his possession. The 
 fact of the possession and the quo animo it was commenced and 
 continued, are the only tests. He need not even produce the deed 
 under which he claims ; and if, when produced, it is defective as a, 
 deed, as for want of a seal or otherwise, it will not destroy the effect 
 of the defendant's possession. (Bradstreet v. Clarke, supra.') 
 
 The title claimed must be such an one as the law will prima 
 facie consider a good title. {Jackson v. Frost, 1 Cowen, 346.) If 
 it is subser\aent to and admits the existence of another and a higher 
 title, the possession is not adverse to that title, the possessor must 
 claim the entire title. {Jackson v. Johnson, 5 Coiven, 74.) On the 
 foregoing principles, a quit-claim deed given by a mere squatter, 
 without color of title, in consideration of a discontinuance of an 
 ejectment against him, does not change the character of the pos- 
 session. {Jackson v. Hill, 5 Wend. 532.) 
 
 But adverse possession cannot be founded on an absolutely void 
 conveyance; as for example, a deed given pending a suit concern- 
 ing the land, which is void for champerty. {Jackson v. Andreivs, 
 7 Wend. 152.) Nor upon a deed founded in fraud; nor upon a 
 deed executed by another without authority, to the knowledge of 
 the grantee. {Livingston v. The Peru Iron Co. 9 Wend. 511.) 
 
 From the nature of the estate of tenants in common and joint 
 tenants, each has a right to the possession; and therefore the pos- 
 session of one will not be treated as adverse to his companions, uu-
 
 ADVERSIS BOSSESSION". 357 
 
 less there has been an ouster. If one tenant in common actually 
 excludes his co-tenants it is an ouster, and his possession then be- 
 comes adverse. (Eumhert v. Trinitij Cliurch, 24 Wend. 587. So 
 the grantee of one tenant in common of the whole premises, who 
 enters under the grant and claims title to the whole, holds adverse- 
 ly to the other tenants in common. {Cla2n'> v. Bramagham, 9 Goiv- 
 en, 530. Town v. Needham, 3 Paige, 545.) So if one tenant in 
 common claims possession of the whole, under a warranty deed 
 from a stranger, it is a sufficient ouster. {Siglar v. Van Riper, 10 
 
 Wend. 414.) 
 
 A party holding adversely may, by a recognition of the rightful 
 title, lose the benefit of his adverse holding. If while in possession 
 he offers to purchase the title of the claimant, it is a circumstance 
 which, unexplained, will authorize the presumptioU that he came 
 into possession under such title. (Jackson v. Cray, 12 John. 427. 
 Jackson v. Britton, 4 Wend. 507.) 
 
 But this rule does not prevent a person in possession from quiet- 
 ing his title, by taking a quit-claim or any other deed from a stran- 
 ger, who interposes any claim to the land. {Northrop v. Wright, 
 
 7 Hill, 476.) 
 
 The relation of landlord and tenant gave occasion for some con- 
 flict of opinion with respect to the right of the latter to set up an 
 adverse possession against the former. It was held at an early day 
 that a person who entered into possession under another, and ac- 
 knowledged his title, could not set up an outstanding title in a 
 third person. (Jackson v. Stewart, 6 John. 34. Same v. De Walts, 
 7 id. 157.) Nor, after recognizing the lessor as his landlord, could 
 he afterwards dispute his title. (Jackson v. Voshurgh, 7 id. 186. 
 Same v. Reynolds, 1 Caines, 444. Same v. Whitford, 2 id. 215.) 
 Indeed, the doctrine was carried out to that extent, that when the 
 relation of landlord and tenant was once established, it attached to 
 all who might succeed to the possession, through or under the ten- 
 ant, either immediately or remotely; and this, though the purchaser 
 from the lessee took an absolute grant, not knowing of the tenancy. 
 (Jackson v. Harsen, 7 Coiven, 323. Same v. Scissam, 3 John. 
 499. Jackson v. Davis, 5 Coioen, 123.) It was justly thought by 
 the legislature that there should be some limitation on the forbear- 
 ance of the landlord, and that some reasonable period should be 
 fixed beyond which, if he forbore to assert his right, the possession 
 of the occupant might be deemed adverse. This was accordingly
 
 358 ADVERSE POSSESSION— EFFECT OF. 
 
 done by enacting that whenever the relation of landlord and tenant 
 should exist between any persons, the possession of the tenant 
 should be deemed the possession of the landlord, until the expira- 
 tion of twenty years from the termination of the tenancy; or where . 
 there has been no wi'itten lease, until the expiration of twenty years 
 from the time of the last payment of rent; notwithstanding that 
 such tenant may have acquired another title, or may have claimed 
 to hold adversely to his landlord. But such presumptions are not 
 to be made after those limited periods, (2 R, S. 294, § 13. Code, 
 § 86.) This provision abrogates a technical rule, in favor of an ac- 
 tual possession, in good faith, of twenty years. 
 
 It was a principle of the common law that where a man was seised 
 hj any means whatsoever of the inheritance of a corporeal heredit- 
 ament and died,, whereby the same descended to his heirs, however 
 feeble his right, the entry of any other person who claimed title to 
 the freehold was taken away, and he could not recover possession 
 against the heir by entry, but was driven to his action to gain a 
 legal seisin of the estate. (3 Bl. Com. 176.) Such was the rule 
 whether the seisin was by right or by wrong. {Doe v. Thompson, 
 5 Coiven, 371.) This rule was founded purely upon feudal reasons, 
 and has been abrogated by the revised statutes. (2 R. S. 295, 
 § 15. Code, § 87.) The remedy of the party claiming title is the 
 same as in other cases where the possession is unlawfully withheld. 
 
 As the effect of the statute of limitations is to mature a wrong 
 into a right by cutting off the remedy, after the assertion of it has 
 been forborne for a specified period, it is obvious upon principles of 
 natural justice, that the mere delay to bring an action against the 
 party wi'ongfuUy in possession, should not mature into a title in 
 favor of the wrongdoer, if the rightful owner labored under a dis- 
 al)ility. What shall amount to such disability has been uniformly 
 expressed in our statutes on this subject. The existing statute of 
 this state provides that if a person entitled to commence any action 
 for the recovery of real property, or to make an entry, or defense 
 founded on the title to real property, or to rents or services out of 
 the same, be, at the time such title shall first descend or accrue^ 
 either 1, within the age of twenty-one years; or, 2, insane; or, 
 3, imprisoned on a criminal charge, or on execution upon conviction 
 of a criminal offense for a term less than for life; or, 4, a married 
 woman, the time during which such disability shall continue shall
 
 LIMITATIONS. DISABILITIES. 359 
 
 not be deemed any portion of the time limited for the commence- 
 ment of such action, or the making of such entry or defense; but 
 such action may be commenced, or entry or defense made, after the 
 period of twenty years, and within ten years after the disabiHty 
 shall cease, or after the death of the p-erson entitled, who shall die 
 under such disability; but such action shall not be commenced, or 
 entry or defense made, after that period. (2 R. S. 295, § 16, as 
 amended in 1849 and 1851. Code, § 88.) This provision was 
 taken from the former law, with some slight modification. (1 B. L. 
 185, 186.) In the former law, the proviso was in favor of a party 
 hnjjrisojied, without stating any particular circumstances, whereas 
 the present law limits the imprisonment to such as arises on a crim- 
 inal charge, or in execution upon conviction of a criminal offense 
 for a term less than for life. A party imprisoned for debt only, 
 is not within the exception, nor within the reason on which it is 
 founded. A party imprisoned for life is civilly dead, and his case 
 is elsewhere provided for. 
 
 There are various provisions in the statute of limitations \Ndth 
 respect to the commencement of actions for the recovery of debts, 
 demands or damages, which do not fall within the scope of this 
 treatise. 
 
 The statute of limitations with respect to real property, does 
 not begin to run from the time the tenant came into possession, 
 but from the time of his holding adversely. (Jackso7i v. Parker, 
 3 John. Oh. 124.) If, therefore, a party enters without claim or 
 color of title, and afterwards obtains a good or colorable title, the 
 adverse possession will commence from that period. {Same v. 
 Thompson, 16 John. 293. Same v. Neivton, 18 id. 355.) 
 
 Nor does the law allow successive disabilities of different persons 
 taking the same estate by devise or descent from each other. (Car- 
 penter V. Schermerhorn, 2 Bai^b. Ch. 314.) Hence, when an ad- 
 verse possession begins to run in the lifetime of the ancestor, it 
 continues to run,, though the land descends to a person under a 
 disability. (Jackson v. Moore, 13 John. 513. Same v. Robins, 
 . 15 id. 169. Fleming v. Grisioold, 3 Hill, 85.) 
 
 These principles were well illustrated in Carpenter v. Schermer- 
 horn, (supra.) Though that case arose under the former statute, 
 the principle is applicable to the existing code, which in this respect 
 is the snme. It was there said, that where a female having an in- 
 terest in real estate, is under a disability in her lifetime, by reason
 
 360 DISABILITIES. 
 
 of coverture, which prevented her bringing an action of ejectment, 
 her heirs must bring their suit within ten years after her death. 
 And where one of those heirs was also a feme covert at the death of 
 her mother, it was held that that circumstance would not have the 
 effect to extend the period within which the ejectment must be 
 brought. 
 
 The principle of not allowing successive disabilities in different 
 persons was borrowed from the English decisions under a like pro- 
 vision of their statute of limitations. {Doe v, Jesson, 6 Uast, 80. 
 2 Frest Abst 341.) 
 
 The right of entrj'- of a reversioner or remainderman, is not affect- 
 ed by the statute, if a particular estate existed when the right 
 accrued. If the husband be tenant by the curtesy initiate, and the 
 wife be disseised and die without entry, the statute does not run 
 against the heirs until the husband's death. The heirs, in such 
 case, have ten years after the death of the tenant by the curtesy to 
 enter. (Jackson v. Johnson, 5 Goiven, 14:. Same v. Sclioonma- 
 ker, 4 John. 390. Moore v. Jackson, 4 Wend. 5S. Carpenter v. 
 Scherraerhorn, stipra.) 
 
 If the owner be a feme covert when the adverse possession com- 
 mences, she is entitled to ten years after her disability ceases, and 
 to twenty years in all, to bring her action. The time of her cover- 
 ture during the adverse possession is not to be deducted from the 
 twenty years. ( Wilson v, Betts, 4 Denio, 201. Clapp v. Bram- 
 aghan, 9 Coioen, 530.) 
 
 The doctrine of adverse possession is essential to be known by the 
 conveyancer. While land is held adversely, the person out of pos- 
 session and claiming the title, cannot convey his right to a third 
 person, though he may release to the party in the actual enjoyment 
 of the land. His grant to a stranger is void, and passes no title to 
 the grantee. {BurhansY. Burhans, 2 Barb. Ch. 398. Jackson v. 
 Demont, 9 John. 55. Same v. Oltz, 8 Wend. 440. Coe v. Irvine, 
 6 Hill, 634.) The latter, therefore, cannot maintain an action upon 
 it; and it is immaterial in a civil action, whether knowledge of 
 this adverse possession was brought home to him or not. 
 
 But though the conveyance of land held adversely to the grantor 
 is inoperative and void, against the person thus holding adversely, 
 and those who afterwards come in under him, it is valid as to all 
 the rest ^of the world, and passes the title from the grantor to the 
 grantee. If, therefore, the adverse holder voluntarily abandons the
 
 POLICY OF THE STATUTE OF LIMITATIONS. 361 
 
 possession, the grantor may enter and enjoy the land; or if after 
 such abandonment a stranger enters, the grantor may bring eject- 
 ment and oust him. {Livingston v. Froseus, 2 Hill, 526.) The 
 statute (1 B. S. 739, § 147) declaring a deed of land held adversely 
 to the grantor to be void, was for the benefit and protection of the 
 claimant. If the person thus holding adversely, acknowledges the' 
 title of the claimant, his possession as to the latter ceases to be ad- 
 verse. Much more, if when prosecuted at law by the claimant, he 
 confesses the action, there is no longer any obstacle to a convey- 
 ance by the latter, of the laud the title to which is so confessed. 
 (Kenada v. Gardner, 4 Sill, 469; S. C. 3 Barh. 589.) 
 
 But the statutes against selling pretended titles in lands held 
 adversely, (1 B. S. 739; 2 id. 691, § 5,) have no application to judi- 
 cial sales. Such sales do not come within the mischief which the 
 statutes were made to prevent. {Ttdtlc v. Hills, 6 Wend. 213, 224. 
 Tfuax V. Thorn, 2 Barh. 156.) 
 
 In bringing this branch of the subject to a close, it is not deemed 
 inappropriate to add a few remarks on the policy of the statute of 
 limitations. There was a time when those statutes were viewed 
 with disfavor, and when slio-ht circumstances were considered suf- 
 ficient to obviate their effect. But that day has gone by in this 
 state, and they are now justly treated as statutes of repose, intend- 
 ed to quiet the possession of the actual occupant, and to repress 
 the spirit of litigation. They are founded on the probability that 
 after a long lapse of time the party may have lost the evidence ne- 
 cessary for his defense, or that those who could prove the lavrful- 
 ness of their entry have departed this life. {See remarks of Spen- 
 cer, Ch. J. in Sands v. Gelston, 15 John. 519, and in Murray v. 
 Coster, 20 id. 586, 587.) They are founded too, in public policy — 
 as was said by Lord Eldon in Cholmondely v. Clinton, (4 Bli. B. 
 Ft. 1, jj. 117,) — it is generally immaterial to the public at large 
 whether A. or B. is the owner of a particular estate; but it is highly 
 important that the person who is in possession should be the owner, 
 for he is dealt with by all men as the owner, and therefore it is a 
 consideration of public policy. The statutes of limitation, says 
 his lordship, are not simply for the purpose of quieting rights be- 
 tween individuals, but they are founded upon public policy, that 
 the person who is in possession, having the credit attributed to that 
 possession, should not be lightly disturbed. 
 
 The remarks of Lord Redesdale, in the same case, are to the like
 
 362 TITLE BY OCCUPANCY. 
 
 effect; showing that courts of equity act upon the same principle, 
 in cases not within the letter of the act, and which remarks are ap- 
 proved by our supreme court, in Huinhert v. Trinity Cliurch, (24 
 Wend. 607.) 
 
 3. Of title hy occui^ancy, very little need be said, as it has ceased 
 to exist in this state. 
 
 At common law, this right to real property extended only to a 
 single case, namely, where a man was tenant pur auter vie, or had 
 an estate granted to himself only, without naming his heirs, for 
 the life of another man, and died during the life of cestui que vie, 
 or him by whose life it w^as liolden; in this case, he that could first 
 enter on the land might lawfully retain the possession so long as 
 cestui que vie held by right of occupancy. (Co. Litt. 41 &.) It was 
 not apphcable to things lying in grant, or incorporeal heredita- 
 ments, for of them there could be no occupant. It was an incident 
 of real estate only, and it is the only instance, says Blackstone, in 
 which a title to real estate could be acquired by occupancy. 
 
 But this estate, even in England, is reduced to almost nothing 
 by force of two statutes, namely, that of 29 Charles 2, ch. 3, and 
 14 George 2, ch. 10. By the first of which, an estate ^wr auter vie 
 is devisable by will, and if not devised, was chargeable in the hands 
 of the heir, if he came to it by special occupancy, as assets by de- 
 scent; and by the other, that the surplus, after paying debts, 
 should be distributed in a course of administration. 
 
 In this state, by the laws of 1813, it was enacted that estates j9wr 
 auter vie were devisable by will, duly executed, and if not so de- 
 vised, should go to the executors or administrators of the party who 
 had the estate to be applied and distributed as part of the personal 
 estate. (1 i^. i. 365, § 4.) The revised statutes contain the same 
 provision so framed as to exclude the title by occupancy altogether. 
 They enact that an estate during the life of a third person, wheth- 
 er limited to the heirs or otherwise, shall be deemed a freehold only 
 during the life of the grantee or devisee, but after his death it shall 
 be deemed a chattel real. (1 B. S. 722, § 6.) And in another 
 statute, the executors or administrators of the tenant for life are 
 required to insert in the inventory of the testator or intestate, as 
 part of the assets, all estates held by him for the life of another. 
 (2 R. S. 82, § 6.) 
 
 Tenant for his own life, or for that of another person, is a free- 
 holder during his life, and while conveyance by fine was a common
 
 TITLE BY ELECTION. 363 
 
 assuraDce in this state, lie miglit levy a fine wliicli would Und the 
 remainderman and other strangers. Such a fine, it was held, devest- 
 ed and displaced the reversion or remainder, leaving only a right of 
 entry in the reversioner or remainderman. (Boseboom v. Van Vech- 
 ten, 5 J>t'w. 424.) 
 
 But this mode of assurance is now abohshed m this state, f^in. ^. 
 343, § 24.) And it is now declared that no greater estate or inter- 
 est shall he construed to pass by any grant or conveyance, thereaf- 
 ter executed, than the grantor possessed at the delivery of the deed, 
 or could then lawfully convey, except that every grant should he 
 conclusive against the grantor and his heirs claiming from him by 
 descent. (1 B. S. 739, § 143.) 
 
 Section III. 
 
 Of Title hy Election and by Estoppel. 
 
 The doctrine of election and estoppel sometimes becomes material 
 in considering the title to real property. The first more frequently 
 arises in equity than at law, and is founded upon the principle that 
 where a person claims under an instrument he must give efi"ect to 
 that instrument in full. He cannot put himself in a capacity to 
 take under an instrument without performing the conditions of it, 
 expressed or implied. Election, says the chancellor in Broome v. 
 Monck, (10 Ves. 609,) is when the testator gives what does not 
 belong to him, but does belong to another person, and gives that 
 person some estate of his own; by virtue of which gift a condition 
 is implied, either that he shall part with his own estate, or shall 
 not take the bounty. 
 
 The case oi Smith v. Wycloff, (11 Paige, 49, 57,) is an illustration 
 of this same doctrine. In that case the chancellor held that the 
 devisee who takes a farm under the provisions of a will must give 
 efi'ect to it. As the testator had specifically charged certain notes 
 upon the farm, it was held that the devisee of the same farm could 
 not raise the question whether or not the notes were given for debts 
 which the devisee was bound in justice and equity to pay. For, 
 said the chancellor, if he claims under the will, he must take it 
 subject to the payment of such debts as the testator thinks proper 
 to charge him with, as a condition of such devise.
 
 364 TITLE BY ESTOPPEL. 
 
 Estop2:tel is a mode oi preserving, rather than of acquiring, prop- 
 erty, inasmuch as a person is concluded by his own act from dis- 
 puting the title of another. Estoppel is defined to be a conclusion, 
 because a man's own act or acceptance stops or closes up his mouth 
 to allege or plead the truth. (Co. Lift. 352 a.) 
 
 There is an analogy between the doctrine of election and the 
 doctrine of estoppel, and some of the cases are used indiscriminately, 
 to support or illustrate both. The doctrine of estoppel is more fre- 
 quently applied to the law of pleading than to that of estates. But 
 it is also connected w^ith the title to real property. We shall there- 
 fore briefly notice it in this place. 
 
 Estoppels are of three kinds, namely, by matter of record, by 
 matter in writing, and by matter in pais. 
 
 1. By matter of record, as by letters patent, verdict and judg- 
 ment in a former suit. The general principle of law is that a de- 
 cision of a court of competent jurisdiction is conclusive and binding 
 on all courts of concurrent jurisdiction. (^Si^njjson v. Hart, 1 John. 
 Ch. 91.) Or as it is elsewhere expressed, the judgment of a court 
 of concurrent jurisdiction, directly upon the point, is as a plea in 
 bar, or evidence conclusive between the same parties, upon the same 
 matter directly in question in another court. (Gardner v. Buck- 
 hee, 3 Cowen, 120. Burt v. Sternberg, 4 id. 559.) It is final not 
 only as to the matter actually determined, but as to every other 
 matter which the parties might have litigated and have had de- 
 cided. But to be a good bar, it must have been between the same 
 parties, and for the same subject matter; and contingent remainder- 
 men in esse are not bound by the decree, if they were not parties 
 to the suit, though the owners of the particular estate were parties. 
 (Bruen v. Eone, 2 Barb. 586. Vail v. Vail, 7 id. 226.) 
 
 To make a record in a former suit conclusive evidence on any 
 point, it should appear from the record that such point was in is- 
 sue. Other evidence cannot be received to show that a particular 
 matter not in issue on the record came in question, or was taken 
 into consideration by the jury. This rule, it will be seen hereafter, 
 admits of qualification, in the case of general pleadings. Indeed, 
 the verdict and judgment are not evidence, unless it be on the same 
 point and between the same parties. {Manny v. Harris, 2 John. 
 24. Maylee v. Avery, 18 id. 352.) 
 
 But the same point may be said to arise collaterally as well as 
 directly. In Kingsland v. Spalding, (3 Barh. Ch. 343,) the chan-
 
 ESTOPPELS BY WRITING. BS5 
 
 cellor said that the rule on this subject is, that a decree, sentence 
 or judgment, of a court of competent jurisdiction, is conclusive up- 
 on the parties, in any future litigation of the same question between 
 the parties to such decree, sentence or judgment, or those claiming 
 under them; whether the question arises directly or collaterally in 
 such subsequent litigation; provided the question is brought before 
 the court in the proper form. When, says the chancellor, the 
 former decision of the same matter can be set up in pleading as an 
 estoppel, the party who wishes to avail himself of it must plead it 
 in bar of the future litigation of the same matter. But in those 
 cases where the forms of proceeding do not allow of special pleading, 
 it may be given in evidence; and is conclusive upon the parties, 
 the court and jury. ( Wright v. Butler, 6 Wend. 284. Young y. 
 Black, 7 Cranch, 565.) 
 
 It seems, however, to be well settled, that the former judgment 
 is not conclusive except upon the matters directly in question in 
 the former suit; but is not evidence of matter incidentally cogniza- 
 ble, or to be inferred only by argument or construction from the 
 judgment. In Wood v. Jackson, (8 Wend. 9,) the chancellor said 
 that the former verdict, in order to operate as an estoppel, must be 
 pleaded; and that when it is not pleaded, but merely relied on as 
 evidence, it is not conclusive, but only prima facie e\adence, which 
 may be repelled by the party against whom it is urged. In the 
 same case it seems to have been settled, that if it does not appear 
 from the record that the verdict and judgment in the former suit 
 were directly upon the point or matters which are attempted to be 
 again litigated in the second action, the fact may be shown aliunde, 
 provided the pleadings in the first suit were such as to justify the 
 evidence of those matters, and that it also appeared that v/hen 
 approved, the verdict or judgment must necessarily have involved 
 their consideration and determination by the jury. {Lawrence v. 
 Sunt, 10 Wend. 84, per Nelson, J.) 
 
 The reversal of a judgment destroys its efficacy as an estoppel as 
 between the parties to it. ( Wood v. Jackson, supra.) But an es- 
 toppel by record cannot be countervailed by argument, however 
 conclusive. (Mersereau v. Pearsall, 5 Smith, 108.) 
 
 2. Estoppels by matter in writing arise under wills in some cases, 
 but more frequently under deeds. 1. Under walls it has been held 
 that an heir cannot take under and in hostility to the will. If he 
 claim under the wiU, he must give eiSfect to it so far as in his power.
 
 366 ESTOPPELS BY DEED. 
 
 {Eawley v. James, 16 Wend. 61.) A party claiming thiough 
 deeds which recite a will is estopped from denying its validity and 
 genuineness. (JacJcson v. Thompson, 6 Cowen, 178.) 
 
 So, it was held in Jackson v. Ireland, (3 Wend. 99,) that by 
 accepting a grant confirmatory of a will devising him a remaieder, 
 the grantee was estopped from setting up any title inconsistent with 
 the will. And in another case, it was held that a recital in a will 
 that a testator had executed a deed to the defendant, was evidence 
 against the testator's heirs of a perfect execution of such deed, and 
 of title in the defendant. {Smith v. Wait, 4 Barh. 28.) 
 
 But this doctrine of estoppel is confined within some reasonable 
 bounds. A party is not estopped by his admission or assertion of 
 a conclusion of law upon undisputed facts. Thus, where there had 
 been a partition of real estate among devisees by action, and occu- 
 pying under it, claiming as owners in fee, it was held that no es- 
 toppel was created, as against one of the devisees in favor of his 
 judgment creditor, who purchased the share of such devisee, at a 
 sale under his own execution, so as to prevent such devisee from 
 showing, in order to defeat such purchaser's action of ejectment, 
 that by the devise the legal estate was vested in the executors and 
 not in the devisees, at the time of the docketing of such judgment, 
 and, therefore, that such judgment was not a lien on the share of 
 such de\dsee, and the purchaser acquired no right or title by his 
 purchase at said sale. (Breivster v. Striker, 2 Comst. 19.) 
 
 2. Estoppels under deeds are more frequent than under wills. 
 The general rule appears to be well settled, that recitals in a deed 
 estop parties and privies. (Jackson v. Parkhurst, 9 Wend. 209. 
 Chautauque Co. Bank v. Bisle^j, 4 Denio, 480.) The grantor is es- 
 topped by a recital in his deed. (Bennison v. Ely, 1 Barh. 610.) 
 But a mere general recital cannot control the plain words of the 
 granting part of a deed. Thus, where a deed of assignment by a 
 debtor in trust for his creditors, recited that the debtor was desir- 
 ous to convey his property, to secure three of his creditors named, 
 in full, and the residue for the benefit of his other creditors; and in 
 the body of the deed, the assignment was expressed to be in trust, 
 to pay and satisfy those three creditors, and three others named, 
 and the surplus to be divided among his other creditors; it was 
 held that the three creditors named in the recital were only entitled 
 to be paid ratably with the other three creditors, in proportion to 
 their demands, out of the proceeds of the property assigned. {Eim-
 
 ESTOPPEL BY DEED. 367 
 
 tington v. Havens, 5 John. Cli. 23.) The general recital here was 
 of an intention which was inconsistent with the plain language of 
 the instrument, and could not control the latter. 
 
 But a recital in a deed of a particular fact may estop the party. 
 (Id.) Thus a recital in a patent of a prior patent, being a recital 
 of a particular fact directly affirmed, estops one claiming under it 
 from denying the existence of such prior patent. (Jackson v. Wil- 
 son, 9 John. 92.) So also, the recital of a lease in a deed of release 
 is conclusive upon parties in privity of estate. (Carver v. Jack- 
 son, 4 Peters, 1. This comes within the general nature of estoppel 
 as laid down by Lord Coke. (Ob. Litt. 352 5.) 
 
 There was a time for many years when it was held in this state 
 that the grantee of the husband could not deny the seisin of the 
 latter so as to defeat the claim of dower interposed by his widow 
 in an action against her husband's grantee. (Hitchcock v. Har- 
 rington, 6 John. 290. Same v. Carpenter, 9 id. 344. Collins v. 
 Torry, 7 id. 278, 282. Davis v. Darrow, 12 Wend. %5.) The 
 soundness of these decisions was strongly questioned by Co wen, J. 
 in Sherwood v. Vandenburgh, (2 Hill, 308,) and by Bronson, J. in 
 Osterhout v. Shoemaker, (3 id. 518,) and it was shown pretty clearly 
 that the doctrine of estoppel had been misapplied in that and other 
 kindred cases. It was shown that there was no mutuahty between 
 the grantee of the husband and the widow of the latter, that should 
 estop the former from denying the seisin of the husband of such an 
 estate as to entitle his widow to be endowed. But the supreme court 
 felt themselves bound by the prior adjudications, and not at liberty 
 to depart from them. At length the question came before the court 
 of appeals in 1848, in the case of Sparrow v. Kingsman, (1 Comst. 
 242,) when the whole subject was fully and carefully considered by 
 the whole court, and the doctrine of those cases was repudiated. 
 In that case, it is true, the grantee held by quit-claim deed from 
 the husband, and it was adjudged that he was not estopped by the 
 grant from showing in an action of dower by the widow, that the 
 grantor had not such an estate in the land as to entitle his widow 
 to dower. The fact that the grantee held by quit-claim deed from 
 the husband, does not seem to be important. For if he held under 
 a warranty deed, he is under no obligation to surrender the land to 
 the grantor or the widow. He owes no faith or allegiance to the 
 grantor, and he does him no wrong when he treats him as an utter 
 stranger to the title.
 
 368 ESTOPPEL IN PAIS. 
 
 As between landlord and tenant the general principle is that the 
 ■latter cannot controvert the title of the former, under whom he 
 holds, and which he has recognized. {Incjraham v. Baldwin, 12 
 Barb. 9; S. C. affirmed on ajjjoeal, 5 Seld. 45.) But this estoppel 
 is not without its limitation. After the expiration of the lease, 
 the lessee is no longer estopped by it to assert any right which he 
 may have, though it be of such a character that he could not do so 
 while the relation of landlord and tenant continued. {Child v. 
 Chap2:)el, 5 Seld. 246. Jackson v. Roivland, 6 Wend. 607.) 
 
 3. JEstoppels in pais. An admission by the defendant intended 
 to influence the conduct of the man with whom he is dealing, and 
 .actually leading him into a line of conduct which must be prejudi- 
 cial to his interest, unless the defendant be cut off from the power 
 of retraction, is the very de:finition of an estoppeU'w^^ats. (Per 
 Cowen, J. in Dezell v. Odell, 3 Hill, 215.) But a man can be es- 
 topped from denying only what he has once admitted. {Despard 
 V. Wolhridge, 1 Smith, 377, per Selden, J.) 
 
 An estoppel in pais is to be resorted to solely as a measure to 
 prevent injustice — always as a shield but never as a sword. (Pierre- 
 pant V. Bar7iard, 5 Ba7'b. 364.) 
 
 Estoppels in pais are not pleaded, but are in general given in evi- 
 dence, and will pji-ima facie operate as effectually to estop the party 
 under the direction of the court. ( Welland Canal v. Hathaway, 
 8 Wend. 480. Reed v. Pratt, 2 Hill, 64. People v. Bristol and 
 Bensselaer Turnpike Co. 23 V/end. 222.) 
 
 This species of estoppel is sometimes connected with the title to 
 real property. If a person having a conveyance of land, looks on and 
 suffers another to purchase and expend money on the land without 
 making known his claim, he will not be permitted afterwards to 
 assert his legal title against an innocent purchaser. (Wendell v. 
 Van Bensselaer, 1 Joh7i. Ch. 344. Town v. Needham, 3 Paige^ 
 545.) So, if having the legal title, he acquiesces in the sale of the 
 land by another, claiming or having color of title to it, he is estop- 
 ped from afterwards asserting his title against the purchaser; espe- 
 cially if he has advised and encouraged the parties to the sale to 
 deal with each other. (Storrs v. Baker, 6 John. Ch. 166.) 
 
 The abrogation of the doctrine which formerly prevailed with 
 respect to remedies, preserving a distinction between such as are to 
 be asserted at law and such as can be enforced only in equity, and 
 blending the whole in one form of proceeding by the same court,
 
 TITLE BY ALIENATION. ' 369 
 
 necessarily leads to a modification of some of the doctrines which, 
 we find in the cases decided prior to the constitution of 1846. 
 What was said by the learned judge in Levick v. Sears, (1 Hill, 
 17,) that a person who stands by, and not only sees another buy, 
 but advises him to do so, without disclosing the title which he af- 
 terwards sets up, is not estopped from asserting such title at law, 
 cannot be upheld at the present day. If equity would not have 
 permitted him formerly, under such circumstances, to assert his le- 
 gal title, as it clearly would not, the same defense can now be inter- 
 posed in a court having jurisdiction in law and equity, and admin- 
 istering, it may be, both remedies together. 
 
 Enough has been said to illustrate the principles applicable to 
 this class of cases. It remains to be added that every estoppel 
 ought to be reciprocal, that is, to bind both parties. It is for this 
 reason that a stranger can take no advantage of estoppels, and is 
 not bound by them. Estoppels bind only the parties to them, and 
 privies. Of these there are three kinds : privies in blood, as the 
 heir; privies in estate, as the feoffee, lessee, &c.; and privies in 
 law, as the lord by escheat; tenant by the curtesy, tenant in dow- 
 er, &c., who come under act of law, or in the post. (Co. Litt. 352 h. 
 Lansing v, Montgomery, 2 John. 382.) 
 
 Again, every estoppel, because it concludes a man to allege the 
 truth, must be certain to every intent, and not be taken by argu- 
 ment or inference. {Co. Litt. 352 h.) 
 
 No instrument in writing not under seal can be pleaded as an 
 estoppel. The form of pleading an estoppel, is to rely on the deed 
 as an estoppel, and pray judgment that the party be estopped, or 
 not admitted to deny the facts which the deed purports, without 
 demanding judgment, si actio, &c. {Davis v. Tyler, 18 John. 492.) 
 
 Section IV. 
 Of Title by Alienation. 
 
 The last mode of acquiring and losing property, which we shall 
 notice, is alienation. This is the most usual mode of exercising 
 dominion over it; and it comprises every method whereby estates 
 are voluntarily resigned by one person, and accepted by another. 
 It embraces, also, such transfers of property as may be made by 
 order of the appropriate tribunal^ or under judgment and execu- 
 tion, against the owner. 
 
 Will.— 24
 
 370 ALIENATION. 
 
 In tliis state, especially since the abolition of entails, there has 
 never been any restriction upon the power of alienation. The own- 
 er, ha\ang the Jus disponendi, as incident of his dominion, has been 
 permitted to transfer that ownership to others, at his pleasure. 
 
 The statute of quia emptores, 18 Edw. 1, which established in 
 England the free right of alienation by the sub-vassal without the 
 consent of his lord, was brought by our ancestors to the colony of 
 New York, and became a part of its law and of the law of the state, 
 independent of the statute of tenures enacted in 1787, which we 
 have already noticed. ( Van Rensselaer v. Hays, 19 N. Y. R. 68.) 
 The owner, on parting with the fee, and retaining no reversion or 
 possibility of reversio7i therein, could not at any time annex any 
 condition to his conveyance, that would prevent his alienee from 
 the disposition of the property. It was only where he retained some 
 reversion in himself that he could annex a condition in restraint of 
 alienation. (Be Peyster v. llicJiael, 2 Seld. 467.) 
 
 It does not fall within the scope of this treatise to give a histor- 
 ical sketch of the law of alienation, as it has existed in England at 
 various times, or as it exists in that country at this time. 
 
 In a former chapter (Part 1, cJi. 1, § 11,) we treated, to a cer- 
 tain extent, of the persons capable of holding and conveying land. 
 It may be added, that in general, all persons capable of holding 
 real estate, may freely alienate the same, unless he is under some 
 disability; such as idiocy, lunacy, infancy, or coverture. With re- 
 sjDCct to persons under disability at common law, to deal with their 
 estates, we shall see, in its proper place, that vdse and provident 
 provisions are made by the statutes of the state, by which the real 
 jDroperty of such persons may be sold or incumbered. 
 
 The only restriction which exists against the sale and purchase 
 of real property is our statute, which declares void every grant of 
 land, if, at the time of the delivery thereof, such lands shall be in 
 the actual possession of a person claiming under a title adverse to 
 that of the grantor. (1 R. S. 739, § 147.) But this provision 
 does not prevent the person having a just title to lands, of which 
 there shall be an adverse possession, from executing a mortgage on 
 such lands. And such mortgage, if duly recorded, binds the lands 
 from the time the possession thereof shaU be obtained, by the mort- 
 gagor or his representatives. The mortgage has preference over 
 any judgment or other instrument, subsequent to the recording 
 thereof; and if there are several mortgages, they have preference
 
 ALIENATION OP LAND HELD ADVERSELY. 37X 
 
 severally according to tli» time of recording the same respectively. 
 {Id. § 148.) 
 
 In addition to the provision avoiding the conveyance of lands 
 held adversely, the statute has made it a misdemeanor, punishable 
 by fine and imprisonment, for any officer, judicial or ministerial, or 
 other person, to take a conveyance of any lands or tenements, or of 
 any interest or estate therein, from any person not being in posses- 
 sion thereof, while such lands or tenements shall be the subject of 
 controversy by suit in any court, knowing the pendency of such suit, 
 and that the grantor was not in possession of such lands and tene- 
 ments. (2 B. S. 691, § 5.) This section, it has been held, does 
 not apply where the person in possession does not hold adversely to 
 the grantor; and, therefore, it is not forbidden to take a conveyance 
 from a party in possession of lands, although they be the subject of 
 controversy by suit in court. ( Wehh v. Bindon, 21 Wend. 98.) 
 
 The subsequent section of the same statute goes further, and for- 
 bids the buying or selling, or in any manner procuring, or making 
 or taking any promise or covenant to convey any pretended right 
 or title to any lands or tenements, unless the grantor thereof, or the 
 person making such promise or covenant, shall have been in pos- 
 session, or he, and those by whom he claims, shall have been in 
 possession of the same, or of the reversion or remainder thereof, or 
 have taken the rents and profits thereof for the space of one year 
 before such grant, conveyance, sale, promise or covenant made; 
 and it makes the violation thereof a misdemeanor. But the two 
 last sections do not apply to any mortgage executed by a person not 
 in possession, allowed to be given by the statute before cited, nor 
 to any conveyance of lands and tenements to any person in the law- 
 ful possession thereof. {Pepper v. Haiglit, 20 Barb. 429) Main- 
 tenance is no longer an ofiiense here, except as to buying and selling 
 pretended titles, and falsely suing and maintaining suits. {Small 
 V. Mott, 22 Wend. 403, affirming previous case, 20 id. 212.) The 
 party in possession may quiet his title by purchasing in any out- 
 standing claims. 
 
 But these statutes against selling pretended titles, or lands held 
 adversely, have no application to judicial sales nor to decrees. {Tut- 
 ile V. Jackson, 6 Wend. 213. Truax v. Thome, 2 Barb. 156. 
 Varich v. Jackson, 2 Wend. 166, affirming 7 Cowen, 238.) 
 
 With regard to the kind of conveyances, which are recognized by 
 the law, it may be remarked that some are made by the parties
 
 372 ALIENATION BY DEED. 
 
 themselves, and take effect in their lifetime; others are made 
 through the intervention of the court, or of some public officer act- 
 ing by its direction; and others not to take effect until after the 
 death of the party making them, which is the case of devises by a 
 last will and testament. 
 
 It is more convenient to treat, in subsequent successive chapters, 
 of these three kinds of common assurance. 
 
 CHAPTER V. 
 
 OF THE ALIENATION OF REAL ESTATE BY THE VOLUNTARY ACT OF 
 THE PARTIES INTER VIVOS. 
 
 Section I. 
 Of Alienation by Deed. 
 
 A deed, as defined by the elementary writers, is a writing or in- 
 strument, written on paper or parchment, sealed and delivered, to 
 prove and testify the agreement of the parties whose deed it is, to 
 the things contained therein. (Shep. Touch. 50.) Coke says it is 
 an instrument consisting of three things, viz : writing, sealing and 
 delivery, comprehending a bargain or contract between party and 
 party, man or woman. (Co. Litt. 171 b.) And Blackstone more 
 briefly defines it, as a writing sealed and delivered by the parties. 
 
 It is said to be called a deed, in latin factum, because it is the 
 most solemn and authentic act that a man can perform, with rela- 
 tion to the disposal of his property. We have seen, in a previous 
 chapter, that a man is estopped by his deed, and not permitted to 
 aver and prove any thing to the contrary. Deeds at common law 
 were of two kinds, 1, deed poll, which is executed only by the 
 grantor, and 2, deeds indented. The latter are often called inden- 
 tures. An indenture is an agreement between two or more persons, 
 whereof each party has usually a part. That part which is exe- 
 cuted by the grantor is usually called the original, and the rest are 
 counterparts. With us, most frequently, all the parties execute 
 every part, which renders them all originals. The practice which 
 formerly prevailed here, was to cut the paper or parchment on 
 which an indenture was written in an undulating line. This, in 
 the time of Lord Coke, was deemed indispensable to an indenture.
 
 DEED. GRANT. BARGAIN AND SALE. 373 
 
 (Co. Litt. 229 a.) A deed jjoU was shaved even across the top. 
 But these formalities are obsolete, and have long sinc6 ceased to 
 be deemed of any importance. 
 
 The New York revised statutes abolished the mode of conveying 
 lands by feoifment with livery of seisin ; (1 R. S. 738, § 136 ;) and 
 all fines and common recoveries. (2 id. 343, § 24.) They doubt- 
 less intended to substitute a grant for the former modes of assur- 
 ance. And hence they enacted that every grant in fee of a freehold 
 estate shall be subscribed and sealed by the person from whom the 
 estate or interest conveyed is intended to pass, or his lawful agent; 
 if not duly acknowledged previous to its delivery, according to the 
 provisions of the revised statutes, its execution and delivery must 
 be attested by at least one witness; or if not so attested, it shall 
 not take eifect as against a purchaser or incumbrancer until so ac- 
 knowledged. (1 id. 738, § 137.) It is, however, well settled by 
 the courts, that whether acknowledged or attested by a subscribing 
 witness or not, it is valid between the parties, and takes eifect, as 
 to prior incumbrancers, at the time of its execution. ( Wood v. 
 - Chapin, 3 Kern. 509. Voorhees v. Preshyterian Church of Am- 
 sterdam, 17 Barb. 108, per Hand, J.) 
 
 At common law, a grant was the name of a conveyance of incor- 
 poreal hereditaments. They were said to lie in grant, as lands and 
 tenements were said to lie in livery. The legislature adopted the 
 name grant, and applied it to the instrument intended for the con- 
 veyance of a fee, or a freehold estate; and the act declares that it 
 shall take effect so as to vest the estate or interest intended to be 
 conveyed, only from its delivery ; and all the rules of law in force, 
 at the adoption of the revision, (1830,) in respect to the delivery 
 of deeds, were declared to be applicable to grants thereafter to be 
 executed. (1 E. S. 738, § 138.) 
 
 Prior to 1788, the most usual mode of the conveyance of land in 
 this state, was by lease and release. On the declaration, in that 
 year, by the act for the amendment of the law, and the better ad- 
 vancement of justice, that from and after the first day of May, 
 1788, none of the statutes of England or of Great Britain should 
 operate or be considered as law of this state, (2 Greenl. 116, § 37,) 
 that form of conveyance immediately fell into disuse, and the con- 
 veyance by bargain and sale took its place, and has ever since been 
 the most frequent mode of alienation amongst us, and was the one 
 principally in use at the time the statutes were revised, in 1830.
 
 374 LEASE AND RELEASE. 
 
 The conveyance by lease and release was, however, occasionally em- 
 ployed. And hence, the statute provided that deeds of bargain 
 and sale, and of lease and release, might continue to be used, and 
 be deemed grants, and subject to all the provisions in the statute 
 concerning grants. The statute also declared that no covenants 
 shall be implied in any conveyance of real estate, whether such con- 
 veyance contains covenants or not, and that lineal and collateral 
 warranties, with all their incidents, should be abolished. The stat- 
 ute contains suitable provision for subjecting heirs and devisees to 
 a liability upon the covenants and agreements of their ancestor or 
 devisor to the extent of the lands descended and devised, which will 
 be noticed in their proper place. (1 R. S. 739, §§ 141, 142.) 
 
 Although the statute evidently gave a preference to a grant as 
 the mode of passing the title to the fee and freehold, so that there 
 need be but one form of conveyance, and that applicable to both 
 corporeal and incorporeal hereditaments, it did not abrogate any 
 other mode of conveyance known to the law before, except i\iQ feoff- 
 ment, and conveyances by fine and recovery. It expressly, as be- 
 fore observed, retained the bargain and sale, and lease and release; 
 and by necessary consequence, left all other forms of alienation as 
 they were before. Hence deeds of surrender, assignment, confirm- 
 ation, exchange, &c. may still be used, if desired by the parties. It 
 would seem, however, that a grant would be equally efiective, and 
 supersede the necessity of any other form. No greater estate can 
 be made to pass by it, than the grantor possessed at the time and 
 could lawfully convey; and it is conclusive against him and his 
 heirs claiming under him by descent. It is also conclusive against 
 subsequent purchasers from the grantor or from his heirs claiming 
 as such, except a subsequent purchaser in good faith and for a 
 valuable consideration, who shall acquire a superior title by a con- 
 veyance that shall have been first recorded. (1 B. S. 739, §§ 143, 
 144.) 
 
 Our examination of the law in relation to conveyances of real es- 
 tate is not much abridged by the revised statutes. The doctrine in 
 relation to the circumstances necessary to constitute a valid deed 
 is the same which formerly prevailed. The conveyance itself, 
 whether it be in form a grant, under our statute, or a bargain and 
 sale, is still denominated, in coramon parlance, a deed; and it 
 will so continue to be called for ages to come. Yery little, if any 
 thing, has been gained by the change of name of the conveyance;
 
 ARTICLES OF AGREEMENT. 375 
 
 or by the substitution of an instrument, originally designed for the 
 transfer of incorporeal interests, as a conveyance of corporeal here- 
 ditaments. Hence it is j)roper, in the further consideration of this 
 subject, to inquire into the circumstances necessary to the valid ex- 
 ecution of deeds. In this sense, a grant is a deed, and requires the 
 like formalities for its validity. 
 
 AU deeds, whether deriving their effect from the common law, or 
 from the statute of uses, do immediately upon their execution by 
 the grantor devest the estate out of him, and put it in the party to 
 whom the conveyance is made, though in his absence, and without 
 his knowledge, till some disagreement to such estate appears. 
 (1 R S. 738, § 138. Cruise's Dig. tit. 32, ch. 1, § 25. Cunning- 
 ham V. Freeborn, 11 Wend. 240. Jackson v. Bodle, 20 John. 
 184, 187.) This doctrine is founded upon the principle that the 
 assent of the party who takes may be implied; 1st, from the bene- 
 ficial nature of the instrument; 2d, from the incongruity that would 
 arise from a perfect execution on the part of the grantor, which 
 canno' be if the estate still remains in him; and 3d, unless it so 
 vests, "-.here would be an uncertainty as to where the freehold was 
 vested. The New York statute, as explained in Cunningham v. 
 Freelorn, (supra,) seems to take this view of the subject. If the 
 conveyance casts a burden on the grantee which he desires not to 
 assume, there can be no doubt that he can decline to accept. There 
 can bt no valid delivery without an acceptance, though the pre- 
 sumpion is in favor of the latter when the first is proved. (Jack- 
 son V. Phipps, 12 John. 418, 422.) 
 
 The oractice is quite common of entering into articles of agree- 
 ment, }reparatory to the execution of a formal deed, where the 
 one pary has agreed to purchase, and the other to sell, any real 
 estate. This article contains a memorandum of the agreement, in 
 which tie mutual stipulations of the parties are set forth with more 
 or less ftrmality. Such articles contain a trust which courts of 
 equity wU enforce by a specific execution of the agreement. It is, 
 therefore important that they be drawn with care, and contain, 
 with reajonable certainty, the agreement of the parties. Under 
 the New York revised statutes a contract for the sale of lands is 
 void, unLss the contract, or some note or memorandum thereof, 
 expressing the consideration, be in writing, and subscribed by the 
 party by vhom the sale is to be made, or by his agent lawfully au^ 
 thorized. And where the contract has not been signed, either by
 
 376 ESSENTIALS OF A DEED. 
 
 the vendor or his agent, it is not binding upon tlie vendee, although 
 he has subscribed the same. The authority of the agent is not re- 
 quired to be in writing by the statute of frauds. If lawfully au- 
 thorized by parol, he can bind his principal by a valid signing of 
 the executory contract. (2 R. S. 134, § 8, ef seq. McWIiorter v. 
 McMahan, 10 Paige, 386. Toivnsend v. Hubbard, 4 Hill, 351.) 
 The statute does not require an executory agreement for the con- 
 veyance of land at a future day, to be under the seal of any of the 
 parties. It is good and obligatory, whether it be under seal or not. 
 
 Section II. 
 0/ the requirements essential to a Heed. 
 
 Our remarks under this section are applicable to grants, and to 
 all other instruments in writing and under seal, which fall within 
 the appropriate definition of a deed. 
 
 From the definition of a deed, given in the preceding sertion, 
 and from a reference to the revised statutes, on the subject of alien- 
 ation by deed, it is obvious, that the following circumstances are 
 essential to a deed : 1. Proper parties and subject matter. 2. A 
 good and sufficient consideration. 3. Writing on paper or parch- 
 ment. 4, Words sufficient to express the agreement, legallf and 
 orderly set forth. 5. Eeading, if desired. 6. Sealing and siping. 
 7. Delivery. 8. Attestation by witnesses. 9. Acknowledgiig, or 
 proving. 10. Recording in the proper county, and in the proper 
 book. 
 
 1. The parties to a deed may be either natural persons, ♦r arti- 
 ficial, as a corporation. With respect to the first, as a geneial rule, 
 it may be laid down that all persons who have attained the age of 
 twenty-one years, of sound mind and understanding, and ^re not 
 under any legal disability, may convey to others whatever nterest 
 they have in real estate. Though such person be blind, deaf or 
 dumb, he can convey his land by deed. Those infirmities do not 
 prevent a party from making a will. ( Willard on Execuors, 69, 
 70.) And on the same principle they will not disable tie owner 
 from conveying his estate inter vivos. Though born leaf and 
 dumb, and having continued so from his nativity, he is sill capa- 
 ble of executing a deed, if of sufficient capacity. {Broiun \ Brown, 
 3 Conn. 299.) In cases of this kind, and indeed in all cases where 
 the mental capacity is in any respect doubtful, care (hould be
 
 PARTIES TO A DEED. 377 
 
 taken to explain the nature of the transaction, so as to make it un- 
 derstood by the grantor. 
 
 An idiot or lunatic is incapable of binding himself by deed. But 
 mere imbecility of mind, not amounting to idiocy or lunacy in the 
 grantor, is not sufficient to avoid the deed, though it should insure 
 caution in those who are called upon to decide upon the validity 
 of the acts of such persons. The definition of the term idiot and 
 lunatic, seems to comprehend only those who show a total want of 
 understanding, in the first, from nativity, and in the second, at the 
 time of doing the act which is brought in question. {Odell v. Buck, 
 21 Wend. 142. Jackson v. King, 4 Coioen, 207, approved in, 
 Steioart's Ex. v. Lispenard, 26 Wend. 298, and Blancliard v. Nes- 
 tle, 3 Denio, 37.) In the latter of which cases, the common law 
 notion of idiocy and lunacy, is fully set forth by the learned judge. 
 
 A civil corporation may, in general, convey its lands like a nat- 
 ural person; but religious corporations are under a disability in 
 this respect, except by the permission of the supreme court, or some 
 tribunal having the requisite authority. But this matter will be 
 considered more at large in the following chapter. 
 
 Married women, at common law, could not alien their lands dur- 
 ing the coverture. They vv^ere permitted to do so by joining with 
 their husband in the conveyance, and acknowledging, on a private 
 examination before a proper officer, that they executed the deed 
 freely, without any fear of their husband. By some recent statutes, 
 a married woman of lawful age can, in certain cases, alien her real 
 estate in the same manner as if she was sole. This branch of the 
 subject belongs to the next chapter, where it will be treated at 
 large. 
 
 By the common law, all natural persons may be grantees in a 
 deed, because it is supposed to be for their advantage. But if such 
 grantees are infants, married women, or persons of insane memory, 
 they may disagree to such deeds, and waive the estates thereby con- 
 veyed to them. 
 
 A grant to be valid, must be to a corporation, or to some certain 
 person named who can take by force of the grant, and hold in his 
 own right, or as trustee. A grant to the people of a county is void. 
 Formerly, counties were not esteemed a corporate body; and it was 
 well settled, that a community, not incorporated, could not pur- 
 chase and take in succession. (Jackson v. Carry, 8 John. 388.)
 
 378 SECOND REQUIREMENT. CONSIDERATION. 
 
 So a grant to the inhabitants of a town, not incorporated, was held 
 to he void. (Hornheck v. Wcstbrook, 9 id. 73.) But by the re- 
 vised statutes each county is made a corporate body, with capacity 
 to purchase and hokl lands within its own limits, and for the use 
 of its inhabitants. (1 B. S. 364.) Strictly speaking, and in the 
 absence of any legislative provision on the subject, the acts and 
 proceedings by, to, and against a county, should be in the name of 
 the board of supervisors of such county, as a board, and not of the 
 individuals by name; but the statute has provided that every con- 
 veyance of land within the limits of the county, made, in any man- 
 ner, for the use or benefit of its inhabitants, shaU have the same 
 effect, as if made to the board of supervisors. (Id. Hill v. The 
 Board of Supervisor's of Livingston Co. 2 Kern. 52. 23 Barb. 
 338.) The statute has also given to the several towns in the state 
 a certain corporate capacity. They may purchase and hold lands 
 within their own limits for the use of their inhabitants. (1 B. S. 
 337. Lorillard v. The Toivn of Monroe, 1 Kern. 394. Benton v. 
 Jackson, 3 John. Ch. 320.) But neither a county or a town can 
 hold lauds out of their respective limits, unless specially authorized 
 by statute; nor for purposes not connected with their business and 
 duties as a county or a town. They cannot embark in the business 
 of buying and selling lands for the purpose of profit. The inten- 
 tion of the law doubtless was to give them respectively a corporate 
 capacity to take and hold lands for a court house, jail, poor house, 
 town house, and the like. The general law for the incorporation 
 of villages, (2 R. S. 701 et seq. 5th ed.) gives to such villages when 
 incorporated a corporate capacity to hold lands within their limits 
 for various purposes, and in some cases they are specially author- 
 ized to take and hold lands without their corporate limits for a 
 cemetery for the burying of the dead. The power of holding real 
 estate is possessed to more or less extent by all our cities and vil- 
 lages heretofore incorporated, as will be seen by reference to their 
 charters; but it is not deemed necessary to insert a reference to 
 them in this treatise. 
 
 2. With regard to the consideration, it was not deemed essential 
 at common law, to the validity of a deed, that it should express a 
 consideration. {Cunningham v. Freeborn, 11 Wend. 248.) And 
 80, under the revised statutes, a conveyance actually delivered and 
 accepted of aU the real estate of a party, is good and vaHd as
 
 CONSIDERATION. 379 
 
 a grant, although there be no express consideration to support it. 
 This is so, whether the grant be a beneficial one, or in trust for the 
 payment of debts, and in the latter case it is unnecessary that the 
 creditors should be parties to it. (Id.) 
 
 But although a deed be good between the parties, and effectual 
 to vest the estate of the grantor in the grantee, without any consid- 
 eration being expressed therein, yet such deed may be impeached 
 by creditors of the grantor for fraud. A man in unembarrassed . 
 circumstances may, if he pleases, give his property to a friend or a 
 stranger, and in the absence of fraud or imposition, the courts -svill 
 not interfere with it. Even a voluntary deed is not void in law, 
 as made to defraud creditors, if the grantor had, at the time, enough 
 other property to pay all his debts. {Jackson v. Post, 15 Wend. 
 588.) Indeed, the distinction which had previously been supposed 
 to exist between fraud in fact and fraud in law, in voluntary con- 
 veyances, seems to have been repudiated in subsequent cases. 
 {Seward v. Van Wijck, 8 Cowen, 406. Jackson v. Feck, 4 Wend. 
 300. Same v. Timmerman, 7 id. 437.) In the case of a volutary 
 conveyance, as much as in any other, the question is as to the ac- 
 tual fraud, and is to be passed upon by the jury. Where there is 
 amj valuable consideration, the deed is not voluntary, and the 
 adequacy of it is only material upon the question of fraudulent 
 intent. (Id.) 
 
 There are various reasons why it is advisable that a deed should 
 express the consideration on Avhich it is granted. Courts of equity 
 never lend their aid to carry into execution voluntary conveyances. 
 There must either be a good or a valuable consideration, or some- 
 thing equivalent thereto. (J\Iinturn v. Seymour, 4 John. Cli. 497. 
 Acker V. Fhoenix, 4 Paige, 305. Willard's Eq. Jur. 263.) If 
 the deed requires the aid of a court of equity to vary its terms, it 
 will not be granted in favor of a volunteer. 
 
 A voluntary conveyance may become valid upon matter ex post 
 facto, or it may acquire validity so far as concerns the claims of 
 others. ( Wood v. Jackson, 8 Wend. 9.) 
 
 Considerations are of two kinds, good and valuable. The first is 
 naerely a moral consideration; such as arises from an implied obli- 
 gation, and which subsists between parent and child. The love 
 and affection subsisting between near relatives, and the desire of 
 preserving his name and family, are frequently held to be good con- 
 siderations. The second, called a valuable consideration, is money
 
 380 THIRD: WRITING. 
 
 or other valuable thing. Marriage is a valuable consideration. 
 (Whelan v. Whelan, 3 Cowcn^ 537. Verjplank v. Sterry, 12 
 John. 536,) 
 
 3. The third essential circumstance to the validity of a deed is, 
 that it must be written or printed on paper or parchment. If it be 
 made on a piece of wood, or upon a piece of linen, or on the bark 
 of a tree, or on a stone or the like, and the same be sealed or deliv- 
 ered, it is no deed. (Co. Litt. 229 a.) The reason assigned for 
 this, by Coke, is that a writing upon paper or parchment is less 
 subject to alteration or corruj)tion than upon the other substances. 
 
 It is usual that the instrument is written or printed and sub- 
 scribed with ink, as that is in general the most durable, and most 
 difficult to be effaced. But with regard to the note or memoran- 
 dum of the agreement which the statute of frauds requires to be in 
 writing, and subscribed by the party to be charged, (2 R. 8. 134, 
 § 6,) it has been held in this state, both by the supreme court and 
 the late court of errors, that a memorandum written and subscribed 
 with a lead pencil, was as valid as if wi-itten with pen and ink. 
 (3Ie7'ritt v. Classon, 12 John. 102; affirmed on error, 14 id. 484, by 
 name of Classon v, Bailey, and a^jproved by the same court in the 
 later case of Davis v. Shield, 26 Wend. 354.) It appears by the 
 note of the revisers, that the opinion of Chancellor Kent in Classon 
 V. Bailey, (supra,) was before the legislature, when the statutes 
 were revised in 1830, and with a knowledge of what he had said on 
 the subject, they left the language of the statute of frauds in that 
 respect unaltered. The statute, the chancellor observed, requires a 
 writing &c., but does not tell us with what instrument it may be 
 written. He then proceeds thus : "To write is to express our ideas 
 by letters visible to the eye. The mode or manner of impressing 
 those letters is no part of the substance or definition of writing. 
 A pencil is an instrument with which we write without ink. The 
 ancients understood alphabetical waiting as well as we do, but it is 
 certain that the use of paper, pen and ink was for a long time un- 
 known to them. In the days of Job they wrote upon lead, with an 
 iron pen. The ancients used to write upon hard substances, as 
 stones, metals, ivory, wood, &c. with a style or iron instrument. 
 The next improvement was writing on waxed tables; until at last 
 paper and parchment were adopted, when the use of the calamus or 
 reed was introduced. The common law has gone so far to regulate
 
 FOURTH : PROPER WORDS— PARTIES. 381 
 
 vmitings as to make it necessary that a deed should be written on 
 paper or parchment, not on wood or stone. This was for the sake 
 of durabihty and safety; and this is all the regulation that the law 
 has prescribed. The instrument, or the material by which letters 
 were to be impressed on paper or parchment, has never yet been de- 
 fined. This has been left to be governed by public convenience and 
 usage; and as far as questions have arisen on the subject, the courts 
 have, \\T.th great latitude and liberality, left the parties to their own 
 discretion." He then adverts to the well known fact, that it has long 
 been held that printing is writing, and making a mark is a suh- 
 scrihing within the meaning of the law, and that the ecclesiastical 
 courts had admitted to probate a codicil to a will wi-itten in pencil. 
 And he fully concurred in opinion with the supreme court, which 
 upheld the validity of the agreement written by a lead pencil. The 
 court of errors unanimously agreed with him, {See Willard on 
 Executors, 113.) 
 
 The question whether a deed written and subscribed with a lead 
 pencil, is valid, does not seem to have arisen. It is the most pru- 
 dent course to continue the use of pen and ink until the legislature 
 or the higher courts sanction a different mode. 
 
 4. The next circumstance to be noted is, that the deed must 
 contain proper words for expressing the contract, and that they 
 should be legally and orderly set forth. Although the statute does 
 not prescribe the different parts of a deed, and the omission of all 
 but the granting part would not invalidate the instrument, it is 
 nevertheless the more correct and lawyer-like mode of conveyancing, 
 to adhere to forms which have been long established and sanctioned 
 by general usage. 
 
 The orderly parts of a deed are, 1. The premises; the office of 
 which is rightly to set down the names of the parties, grantor and 
 grantee, together with their place of abode, or other matter of de- 
 scription, the recital if there be any, the consideration and the 
 receipt thereof, the grant, the description of the thing granted, and 
 the exception if there be any. 2. The habendum and tenendiim, the 
 office of which is to set forth the kind of estate which is granted, 
 for what time and the tenure by which held. These are not essen- 
 tial parts of our deeds, if the quantity of interest conveyed has 
 been already stated in the premises. They are merely inserted in 
 pursuance of custom. 3. The redendum, which is that by which
 
 382 FIFTH: READING. SIXTH: SUBSCRIBING. 
 
 the grantor reserves something to himself, as the payment of rent 
 in a lease. 4. The condition, of which enough has been said in a 
 previous chapter. 5. The warranty. 6. The covenants, if any. 
 7. The conclusion, in which is set forth the date, if it has not 
 already been inserted. {Sliep. Touch. 52. Cruise's Dig. tit. 32, Deed, 
 cJi. 2. 2 ^?. Com. 297 et seq.) 
 
 5. The fifth circumstance essential to a deed is, that it be read 
 if either of the parties so require. If it is not read, it is void as 
 to the party who required it to be read. If he can, he should read 
 it himself; if he be blind or illiterate, another must read it for him. 
 It may always be read by another at the request of the parties, and 
 is usually read by the scrivener. If it be read falsely it will be 
 void. In Lansing v. Bussell, (13 Barh. 510,) the supreme court 
 said that a deed in the nature of a testamentary instrument, pur- 
 porting to be signed by his mark by the grantor, who at the date 
 of the deed was in his 90th year, partly deaf and nearly blind, and 
 who was laboring under a disease which rendered him nearly help- 
 less, and which deed was in the handwriting of the husband of the 
 grantee, and witnessed only by her son, and which recited in the 
 body of it that the object of the deed was to place the grantee upon 
 a footing of equality with the other children of the grantor, re- 
 quires for its support something more than the proof of the sub- 
 scribing witness that he saw it executed by the grantor. If the 
 condition of the grantor be such as to throw a doubt over his capa- 
 city to make a deed; if he be greatly infirm, or his mind imbecile, 
 the instrument should, before it is executed, be distinctly read or 
 explained to the grantor, by a disinterested party, who should also 
 subscribe his name as a witness to its execution. {See also Lan- 
 sing V. Russell, 3 Barh. Ch. 325.) 
 
 But a deed will not be avoided on the ground of fraud or mis- 
 take, because the whole was not read by the grantor. (Jackson v. 
 Corey, 12 John. 427.) 
 
 6. The sixth circumstance is that the deed should be subscribed 
 and sealed by the party whose deed it is. A scrawl with a pen of 
 the letters L. S., or any other words, is not a seal, within the mean- 
 ing of the law. In some of the states it is understood that such 
 letters added to the signature constitute a seal, and will thus turn 
 a simple contract into a specialty. But it is not the law of this 
 state. With us a seal is wax or wafer with an impression. It is
 
 SEALING. WHEN A QTAllF SUFFICIENT. 383 
 
 immaterial of what tlie wax is composed. It must ob^dollsly he 
 some tenacious matter, that will receive an impression and adhere 
 to the paper. (Warren y. Lynch, 5 John. 239.) ^ 
 
 The leo-islature have so for changed the common law m this re- 
 spect, as to aUow the impression of the seal of any court by stamp, 
 to he a sufficient sealing in* all cases where sealing is reciuired. 
 (2RS 276.) And by other statutes, the same provision is ex- 
 tended to the seal of public officers, the seal of notaries public, and 
 the common seal of incorporations. (L. of 1859, jp. 883. 2 B. S. 
 404. Act 0/1848, ch. 197,^1. 3 R. S. 687, 5th ed.) 
 
 Several persons may bind themselves by one seal. (Machay v. 
 Bloodgood, 9 John. 285. Toionsend v. Eubhard, 4 EiU, 351.) _ 
 
 The real estate of a corporation can be conveyed by it only m its 
 corporate capacity, and not by the individual members of the cor- 
 poration, or the stockholders. {Wilde v. Jenkins, A Paige, 481.) 
 At common law the seal of a corporation, like that of an mdmd- 
 ual was void unless impressed on wax or some other adhesive sub- 
 stance. (The Farm. & M. Bank v. Haight, 3 Sill, 493.) But by 
 the act of 1848, already cited, in aU cases where a seal of any cor- 
 poration is authorized or required, the same may be affixed by 
 making an impression directly on the paper, which is thus made as 
 valid and effectual as if on a wafer or wax. This statute extends 
 to municipal corporations, as well as to civil and rehgious corpora- 
 tions. It puts those bodies having a common seal, on the same 
 footing, in this respect, as courts and public officers. The statute 
 had a retrospective operation upon deeds made by the corporation 
 of the city of Albany. 
 
 The seal of a corporation should be affixed by the officer to whom 
 the custody of it is confided, by the cUrection of the managing offi- 
 cers of the institution, and not without. Iii the absence of all 
 proof to the contrary, the court will perhaps presume, when the in- 
 strument is signed by the proper officer, that the seal was affixed 
 by him by the express authority of the trustees. (Jackson v. Camp- 
 hell, 5 Wend. 575.) 
 
 Where a power to sell is conferred upon a corporate body, the 
 deed should be executed in the name and under the seal of the cor- 
 poration. But that rule was held not to apply where the trustees 
 of a gospel lot were declared by law to be a corporation, and were 
 by name of trustees authorized to take possession, lease or sell the 
 lot. Such an authority, the court thought, was well executed by the
 
 384 SEVENTH: DELIVEPwY. 
 
 individual trustees, under their hands and seals, describing them- 
 selves as such trustees in the deed. (X>e Zeng v. Beehman, 2 Hill^ 
 489.) 
 
 7. The seventh requirement is that the deed be delivered by the 
 party himself or his attorney. The deed takes effect from its de- 
 livery, and not from its date, unless the latter be coincident with 
 the delivery. (Jackson v. Bard, 4 John. 230, Same v. ScJioon' 
 maker, 2 id. 230. Carver v. Jackson, 4 Fet. 1-22.) 
 
 It has sometimes been said that the date is presumptively the 
 time of the execution of the deed. But it has been held, that since 
 the revised statutes, (1 M. S. 738,) there is no such presumption 
 as to a deed not acknowledged or proved, and having no subscrib- 
 ing witness. And the presumption in all cases fails where there is 
 positive proof that it was in the hands of the grantor after the day 
 of its date. {Elsey v. Metcalf, 1 Ben. 323.) And where there is 
 positive evidence that it was not executed till sometime after its 
 date, the date is no evidence whatever of the time of its execution. 
 {Costigan v. Gould, 5 id. 290.) 
 
 Though a deed cannot in general be contradicted by parol evi- 
 dence, yet such evidence is competent to show that the deed, though 
 it be in the hands of the grantee, was in truth never delivered. 
 (Roberts v. Jackson, 1 Wend. 478.) 
 
 The deed of a corporation, it is said, does not need a delivery. 
 The affixing of the corporate seal gives perfection to it, without 
 further ceremony, if it be done with that intent; yet it has no such 
 effect if the order for affixing the seal be accompanied with a direc- 
 tion to their clerk to retain the conveyance in his hands till ac- 
 counts were adjusted with the purchaser. {Berhy Canal Co. v. 
 WUmot, 9 East, 360.) 
 
 The usual way of delivering a deed, as described by the text wri- 
 ters, is to take it up and say, "I deliver this as my act and deed." 
 It is in general recommended to those engaged in the business of 
 conveyancing, to use some words like the above, or of equivalent 
 meaning, when the instrument is delivered. The repeating of some 
 such formula at the time of the execution of the instrument, is cal- 
 culated to impress the fact upon the recollection of the witnesses, 
 and to obviate all subsequent disputes on the subject. But a 
 formal delivery is not essential; it is sufficient that such acts
 
 DELIVERY AS AN ESCROW. 355 
 
 appear as show an intention to deliver. {Goodrich v. Walker, 1 John. 
 Cases, 250.) 
 
 In general the deed should be delivered to the grantee, or to some 
 one authorized by him to receive it, or it may be to a stranger for 
 the use of the grantee, without any authority from the latter. It 
 has been held that the delivery of a deed to the clerk of the county 
 for the use of the defendant was a perfect delivery to the grantee; 
 and upon the acceptance by the latter the deed took effect from the 
 time of such delivery. (Bathbun v. Rathhm, 6 Barh. 98, 103. 
 Elsey V. Metcalf, supra.) The subsequent assent of the grantor, 
 in cases of this kind, is equivalent to an original authority, and the 
 deed becomes valid from the time of the original delivery. (The 
 Lady Superior v. McNamara, 3 Barh. Ch. 375. Church v. Gil- 
 man, 15 Wend. 656. Souverhye v. Arden, 1 John. Ch. 240.) But 
 in all cases where the deed is delivered to a third person for the use 
 of the grantee, without the authority of the latter, such delivery is 
 invalid, unless the grantee assent thereto. If the delivery to such 
 third person be absolute, the grantor not reserving any future con- 
 trol over the deed, the estate passes; the assent of the grantee to 
 accept the conveyance being presumed, from the fact that the con- 
 veyance is beneficial to him. {Church v. Gilman, supra.) 
 
 The delivery of a deed may be to the party himself or to a stran- 
 ger for his use absolutely; or it may be delivered to a third person 
 to keep tiU something be done by the grantee and then delivered to 
 the latter. This is called delivering the deed as an escrow. An 
 escrow takes effect only from delivery on performance of the condi- 
 tion. Such deed does not take effect until the condition is perform- 
 ed and the deed is delivered over, and in the mean time the estate 
 remains in the grantor. {Green v. Putnam, 1 Barh. 8. C. B. 500. 
 Jackson v. Bowland, 6 Wend. QQQ. Frost v. Beekman, 1 John. 
 Ch. 288. 18 John. 544.) 
 
 Where a deed is delivered as an escrow, and either of the parties 
 dies before the condition is performed, and afterwards the condition 
 is performed, the deed is valid and takes effect from the first deliv- 
 ery. Thus, where A. having executed a deed of lands in consider- 
 ation of natural love and affection to two of his sons, and delivered 
 it to C, to be delivered to them in case A., the grantor, should die 
 without making a will; A. having died without making a will, 0. 
 delivered the deed to the sons. This was held to be effectual from 
 the first delivery. {Buggies v. Lawson, 1.3 John. 285.) So, also, 
 
 Will.— 25
 
 386 ESCROW. EIGHTH: ATTESTATION. 
 
 when a deed of lands was delivered as an escrow, and an absolute 
 delivery was subsequently made; but previous to the second deliv- 
 ery a judgment was obtained against the grantor, under which, the 
 land was sold, it was held that the purchaser under the judgment 
 was entitled to the land, {Jackson v. Roioland, supra.) 
 
 Two things are to be attended to in the delivery of a deed as an 
 escrow: 1. It must be delivered to a stranger; for if it be delivered 
 to the party himself to whom it is made, or his agent, as an escrow, 
 upon certain conditions, the delivery is absolute and the title passes, 
 and the grantee is not bound to perform the condition. ( Worrall 
 v. llunn, 1 Seld. 229.) 2. Apt words should be used indicating 
 an intention that the title shall not pass until the condition be per- 
 formed. The form of words laid down in the Touchstone, (p. 59,) 
 slightly altered to conform to our practice, is : "I deliver this to 
 you as an escrow, to deliver to the grantee as my deed upon con- 
 dition that he delivers to you one hundred dollars," (or any other 
 sum agreed upon, or upon his performing certain other specified 
 conditions, as the case may be.) If, says the Touchstone, when I 
 deliver the deed to the stranger, I shall use these or the like words : 
 " I deliver this to you as my deed, and that you shall deliver it 
 to the party upon certain conditions; or I deliver this to you as 
 my deed, to deliver to the grantee when he comes to London;" in 
 these and the like cases, the deed takes effect presently, and the 
 grantee is not bound to perform the conditions. Note the diversity. 
 In the proper form of this conditional delivery, the words, as an 
 escroiv, are made to qualify the delivery by the grantor to the 
 Btranger, and his right to deliver it over, is also made subject to 
 a conditioii. In the latter form, the title passes by the first deliv- 
 ery to the stranger. It is, therefore, inconsistent with the rights 
 of ownership, that the handing over the deed to the grantee should 
 be conditional. 
 
 8. The eighth circumstance is the attestation of the instrument by 
 the attesting witness. A deed is good as between the parties with- 
 out any attesting witness, or acknowledgment; and at common law, 
 it was good as against all the world. The statute which declares 
 that such deed shall not take effect as against purchasers or incum- 
 brancers until acknowledged, refers to subsequent purchasers and in- 
 cumbrancers. (1 B. S. 738, § 137. Wood v. CJiapin, 3 Kernan, 
 509.) The requirement of one or more subscribing witnesses to 
 the execution of a deed, or an acknowledgment, or proof of its ex -
 
 SUBSCRIBING WITNESS. 387 
 
 ecution before a public officer, is a statute regulation which is dif- 
 ferent in the different states; and which, prior to the revision of 
 the laws in 1830, was different in this state, at different times. 
 
 With regard to what is a good attestation by a witness, it is gen- 
 erally understood that a subscribing witness is one who was present 
 when the instrument was executed, and who at that time subscribed 
 his name to it as a witness of the execution. {Henry v. Bishop, 
 2 Wend. 575.) The witness need not be present at the moment 
 of the execution. If he is called in by the parties immediately af- 
 terwards, and told by the grantor that it is his deed, and requested 
 to sign his name as a witness, it is enough. The execution by the 
 parties and the subscribing by the witness, are thus considered 
 as parts of the same transaction. {Hollenheck v. Fleming^ 6 
 Hill, 305.) 
 
 If there be no subscribing witness to the deed, and a question 
 arises as to its execution on the trial of a cause, proof of the hand- 
 writing of the grantor, by any person acquainted with it, is admis- 
 sible evidence. The execution of it may also be proved, in such a 
 case, by a witness who was present and saw it executed, though he 
 did not subscribe his name as a witness. If, however, there was a 
 subscribing witness, he must be called or his absence accounted 
 for; as by showing that he is dead, or out of the jurisdiction of the 
 court, or the like. The necessity of calling the subscribing witness, 
 when he can reasonably be procured, arises from the reason, that 
 he is the person selected and agreed on by the parties, as the wit- 
 ness to their act in making the instrument, with the attending cir- 
 cumstances. Where there is a subscribing witness, who can be 
 called, it is not competent to permit another person, who was pres- 
 ent at the execution of the instrument, but who was not then re- 
 quested to attest it, to add his name at a subsequent day, without 
 the request of the parties, and thus become a witness instead of the 
 one who signed at the time of the execution. {Henry v. Bishop, 
 2 Wend. 575. Hollenheck v. Fleming, supra.) Proof of the con- 
 fession or acknowledgment of the party that he executed the deed, 
 will not be a substitute for the testimony of the subscribing wit- 
 ness. (Id.) 
 
 In Jackson v. Phillips, (9 Cowen, 113,) the chief justice, speak- 
 ing of the execution of a deed, says : "If the parties choose to sign 
 their names alone, and then call witnesses before whom they ac- 
 knowledge the instrument, that is a good execution. And should
 
 388 SUBSCRIBING WITNESS. . NINTH : ACKNOWLEDGMENT. 
 
 some time intervene, (years if you please,) I can see no difference. 
 It is a redelivery of the deed, whicli then, at least, becomes effect- 
 ual. This evidence would he good and sufficient to prove the deed 
 in a court of law, and therefore is sufficient before the judge or com- 
 missioner." This doctrine is questioned by Bronson, J. in Hollen- 
 heck V. Fleming, (supra.) It is an authority at least to show that 
 a deed is good between the parties without a subscribing witness. 
 Whether such an acknowledgment would entitle the deed to be re- 
 corded, and to relate back to the original signing, will be hereafter 
 considered. {Voorhees v. Presbyterian Church of Amsterdam, 
 17 Barb. 103, as to validity of an unwitnessed deed.) 
 
 The statute does not say who may or may not be witnesses to a 
 deed. It is the most discreet course for the conveyancer to permit 
 none but a comj)etent, as well as credible and disinterested person, to 
 be a subscribing witness. In case a question of mental capacity 
 should arise with resj)ect to the validity of the deed, the testimony 
 of credible and disinterested witnesses, of good character, would 
 weigh more than that of witnesses of a different description; espe- 
 cially as their opinions on the capacity of the grantor are, within 
 certain limits, admissible. {De Witt v. Baily, 17 N. 7. R. 340. 
 5 Seld. 371. Cidver v. Easlam, 7 Barb. 314.) The relation which 
 the subscribing witness bore, at the time, to the parties, is always 
 open to observation in case of a controversy about the execution of 
 the deed. (See Lansing v. Eussell, 13 Barb. 510, 524.) It wiU 
 be shown, under the next head, that the witness should not only 
 be competent, but disinterested. (1 R. S. 759, § 17.) 
 
 9. The ninth circumstance is that the deed should be acknowl- 
 edged before a proper officer, or the proof of its execution made by 
 one of the subscribing witnesses before such officer. We have seen 
 under the preceding head, that an unattested deed is valid between 
 the parties. But under our statutes it is a matter of great import- 
 ance, that a deed should be not only attested, but acknowledged oi 
 proved before a^ proper officer. It is enacted that every conveyance, 
 acknowledged or proved and certified in the manner required by the 
 act, by any of the officers duly authorized for that purpose, may 
 be read in evidence vdthout further proof thereof, and shall be en- 
 titled to be recorded. (1 R. S. 759, § 16.) The record of a con- 
 veyance duly recorded, or a transcript thereof duly certified, may 
 also be read in evidence with the like force and effect as the original
 
 ACKNOWLEDGMENT. 389 
 
 conveyance. Neither the certificate of the acknowledgment, or of 
 the proof of any conveyance, nor the record, or transcript of the 
 record, of such conveyance, shall be conclusive, but may be rebut- 
 ted, and the force and effect thereof may be contested by any party 
 affected thereby. If the party contesting the proof of a conveyance 
 shall make it appear that such proof was taken upon the oath of 
 an interested or incompetent witness, neither such conveyance nor 
 the record thereof shall be received until established by other com- 
 petent proof. {Id. § 17. Clarh v. Nixon, 5 Hill, 36. Dempsey 
 V. Ttjlee, 3 Duer, 73.) In this way the subscribing witness maybe 
 impeached, as well as if he had been sworn on the trial of the cause, 
 and may doubtless in like manner be supported. 
 
 As the revised statutes have now been in force more than thirty 
 years, and the principles on which they are based have not been 
 essentially changed since that time, it will rarely be necessary to 
 look into the laws with respect to the acknowledgment and proof 
 of conveyances at an earlier day. It is quite certain that prior to 
 1710, deeds were not only acknowledged, but also proved by the 
 subscribing witness, before the officer who allowed them to be re- 
 corded. A transcript of such deed as well as the record of it was 
 evidence. (Van Cortland v. Tozer, 17 Wend. 338; S. C. in error, 
 affirmed, 20 Wend. 423, 427.) 
 
 There are numerous cases in our reports in relation to these an- 
 cient deeds, but it is not deemed important to occupy any space 
 with a description of them. (See Jackson v. Schoonmaker, 2 John. 
 330; Same v. Woodrvff, 15 id. 89.) 
 
 The existing laws on the subject are the revised statutes of 1830, 
 (1 B. S. 756,) and the several statutes on the same subject which 
 wiU be found collected in 3 B. S. 45 et seq. 5th ec?.* Most of the 
 subsequent statutes relate to the persons before whom the deed 
 may be proved or acknowledged, when executed out of this state. 
 It does not seem expedient to advert more fully to those statutes. 
 If the deed be acknowledged or proved in this state, it may be done 
 before any of the justices of the supreme court, judges of county 
 courts, mayor and recorders of cities or commissioners of deeds, or 
 justices of the peace of towns. But no county judge or commis- 
 sioner of deeds can take such proof or acknowledgment out of the 
 city or county for which he was appointed. Formerly the pro.of or 
 
 * This portion of the existing statutes is inserted in the Appendix.
 
 390 ACKNOWLEDGMENT, OR PROOF. 
 
 acknowledgment could be taken before the cbancellor, circuit judges 
 and supreme court commissioners; but when those offices were abol- 
 ished by the constitution of 1846, those duties were devolved on the 
 judges of the supreme court and county judges. By the act of 
 1840, ch. 238, the office of commissioner of deeds was abolished, 
 and the powers and duties of such commissioners were directed to 
 be executed by the justices of the peace in the several towns respec- 
 tively. 
 
 The statute requires that no acknowledgment of any conveyance 
 ha^dng been executed shall be taken by any officer, unless the offi- 
 cer taking the same shall know, or had satisfactory evidence that 
 the person making such acknowledgment is the individual described 
 in, and who executed such conveyance. (1 R. S. 758, § 9.) The 
 object of this provision was to guard against the fraudulent person- 
 ation of the grantor. Pre^nious to the act of February, 1797, relative 
 to the acknowledgment of deeds, it was not necessary that the cer- 
 tificate should state the fact that the officer knew the person who 
 made the acknowledgment to be the grantor described in the deed, 
 or that his identity was proved. (Bradstreet v. Clark, 12 Wend. 
 673.) The act of 1794, relative to conveyances of military bounty 
 lands, (3 Web. L. 45,) which required an actual acknowledgment by 
 the grantor, prohibited the officer from taking the acknowledgment 
 unless he knew, or had satisfactory proof, that the person making 
 the acknowledgment was the same person described in the convey- 
 ance; but it did not require that fact to be stated in the certificate. 
 This defect was supplied by the act of 1798. (Croivder v. Hop- 
 kins, 10 Paige, 188.) 
 
 The foregoing section relates to the acknowledgment by a party 
 Avho is sui juris, and not under disability. ' If the grantor be a mar- 
 ried woman residing in this state, her acknowledgment is not to be 
 taken, unless, in addition to the requisites contained in the ninth 
 section, she acknowledge, on a private examination apart from her 
 husband, that she executed the same freely and without any fear oi 
 compulsion of her husband; nor shall any estate of any such mar- 
 ried woman pass by any conveyance not so acknowledged. (1 R. S 
 778, § 10.) 
 
 This statute has led to some controversy. In Dennis v. Tarjye- 
 ny, (20 Barb. 371,) the officer who took the acknowledgment of a 
 married woman, instead of certifying as the law required, " that it
 
 ACKNOWLEDGMENT. 391 
 
 was taken on a private examination of the wife apart from her hus- 
 hand, and that she executed the same freely and without any fear 
 or compulsion of her hushand/' stated that on an examination be- 
 fore him of the wife, " separate and apart from her husband, she 
 acknowledged the execution of the same without fear or compulsion 
 from him." This was held to be a sufficient compliance with the 
 act. It is not necessary that the certificate should be in the precise 
 words of the statute, though it is recommended that it should be, as 
 being better calculated to avoid disputes. In llerriam v. Harsen, 
 (2 Barb. Ch. 232,) the officer omitted to certify that it was exe- 
 cuted by the wife ^'freely," though it was stated to be " without 
 any fear, threat or compulsion of her husband." This was held to 
 be sufficient. 
 
 The legislature, in 1848 and 1849, removed, to a limited extent, 
 the disability of coverture, in the alienation of the real estate of the 
 wife, which she has taken by inheritance or by gift, grant, devise 
 or bequest, from any person other than her husband. She is al- 
 lowed to hold such property to her sole and separate use, and to 
 convey and devise the same, and any interest or estate therein, and 
 the rents, issues and profits thereof, in the same manner and with 
 the like efiect as if she were unmarried. The same property so ac- 
 quired is exempted from the disposal of her husband, and is not 
 liable for his debts. (L. o/1849, p. 528.) The supreme court has 
 decided, with reference to such cases, that the wife need not ac- 
 knowledge the execution of the instrument by which she conveys 
 her land, thus acquired, on a private examination apart from her 
 husband; or that she executed the same freely without any fear or 
 compulsion of her husband. The court thought that it was the in- 
 tention of the legislature to remove the disability which both the 
 common law and the statute had thrown around married women, 
 not only as regards their right to take and hold, free and independ- 
 ent of their husbands, but also as to their power of alienation by 
 grant or devise. (Blood v. Humphrey, 17 Barh. 660.) 
 
 The real property of which she was seised or possessed prior to 
 the marriage is not affected by the statutes of 1848 and 1849. The 
 act of 1860, ch. 90, allows a married woman to bargain, sell and 
 convey such property, and enter into any contract in reference to 
 the same, but it declares that no such conveyance or contract shall 
 be valid without the assent in writing of her husband; except in 
 case such assent cannot be procured in consequence of his refusal,
 
 392 ACKNOWLEDGMENT BY FEME COVERT. 
 
 absence, insanity or other disability, in which cases leave to make 
 such conveyance may be granted by the county court of the county 
 where she resides. The assent of the husband would doubtless be 
 well given by his uniting with the wife in the conveyance, in which 
 case it should be acknowledged by them both, as in other cases of 
 deeds by husband and wife. If in consequence of his refusal or 
 inability to unite with her in the deed, and she executes it under 
 the direction of the county court, the certificate of acknowledgment 
 should probably have some reference to the authority by which she 
 acts. But we are at present without any adjudged cases on the 
 subject. 
 
 At common law, a married woman could not convey her lands 
 by deed, either with or without the concurrence of her husband. 
 But by usage, and the laws of the colony and state of New York, 
 a married woman might, before the late statutes, convey her lands, 
 or any interest she might have in lands, by deed duly acknowledged; 
 and such conveyance was valid although her husband did not join 
 therein. {The Albany Fire Ins. Co. v. Bay, 4 Comst. 9.) In cases 
 not Vkithin some special statute, the deed of a feme covert is not 
 binding upon her until acknowledged; and her subsequent acknowl- 
 edgment has no retrospective operation. This is the same whether 
 she executes the deed alone, or in conjunction with her husband. 
 {Jackson v. Stevens, 16 John. 110. Same v. Cairns, 20 id. 301. 
 Knowles v. McCamly, 10 Paige 342. Ehoood v. Klock, 13 Barb. 
 50.) If the mfe be an infant, her uniting with her husband, and 
 acknowledging the due execution of the instrument, will not give 
 it effect. Such instrument so executed is void. The disability of 
 infancy is not removed by any of these statutes. {Sanford v. Mc- 
 Lean, 3 Paige, 117.) 
 
 At common law, the only mode in which a married woman could 
 alienate her lands was by fine and recovery. {The Albany Fire 
 Ins. Co. V. Bay, su^ora.) These modes of conveyance, we have 
 seen, are abolished in this state, and the disabilities of coverture, 
 with regard to the alienation of the property of the wife, have been 
 greatly modified or wholly removed. 
 
 At common law, the wife cannot convey her lands by deed di- 
 rectly to her husband; but she could indirectly accomplish the same 
 object, by uniting in a deed with him to a third person, who then 
 reconveyed to him alone. {Jackson v. Stevens, sujora.)
 
 BY CORPORATIO^T. BY AN ATTORNEY. 393 
 
 If the deed be executed by a corporation, or by the attorney of 
 the grantor, the attorney in the one case, and the proper officer of 
 the corporation in the other, are the persons who may make the ac- 
 knowledgment. It is impossible that a corporation aggregate 
 should execute or acknowledge a deed in person. The officer of 
 the corporation intrusted with its common seal, and who subscribes 
 his name to the deed as the evidence that he is the person who has 
 affixed the common seal to the same, stands also in the character 
 of a subscribing witness to the execution of the deed by the corpo- 
 ration; and may be examined by the officer taking the proof to 
 prove that the seal affixed by him is the common seal of the corpo- 
 ration, whose deed the conveyance or instrument to which it is af- 
 fixed, purports to be. (Lovett v. The Steam Sato Mill Association, 
 6 Paige, 60. Johnson v. Bush, 3 Barh. Ch. 207.) 
 
 A deed executed by an attorney may be recorded, upon his ac- 
 knowledgment before the proper officer, or upon proof that such 
 deed was executed by him, without proving the power under which 
 the attorney acted in executing such deed. {Johnson v. Bush, 
 sujora.) 
 
 The more usual course, in case of deeds by a corporation, is to 
 take the evidence under oath of the officer by whom the corpo- 
 rate seal is affixed, stating his own authority, that he knows the 
 corporate seal, and that the same was affixed to the conveyance by 
 order of the board of directors, or other trustees of the corporation, 
 and that he subscribed his name thereto as a witness to the execu- 
 tion thereof. (Lovett v. Steam Saiv Mill Association, supra.) 
 [See form in the Appendix.] 
 
 The foregoing observations relate to the execution of deeds or 
 other instruments, by persons in this state. If the grantors be non- 
 residents, or the instrument be executed abroad, but within the 
 United States, it must be taken before some one of the officers 
 authorized to take the proof or acknowledgment of deeds in such 
 cases. Those persons are, the chief justice and associate justices of 
 the supreme court of the United States, district judges of the Uni- 
 ted States, the judges or justices of the supreme court, superior or 
 circuit court of any state or territory within the United States, and 
 the chief justice or any associate judge of the circuit court of the 
 United States in the District of Columbia : but when taken by such 
 officer it must, to be effectual, be taken within some place or terri- 
 tory to which the jurisdiction of the court to which he belongs ex-
 
 394 ACKNOWLEDGMENT. 
 
 tends. (1 R. S. 757, § 4, stch. 2.) A great variety of other officers 
 abroad are authorized to take the proof and acknowledgment of 
 deeds; in addition to which the governor is authorized to appoint 
 and commission officers in other states and territories, with the like 
 power. (See these acts collected, 3 B. S. 46 et seq. 5th ed. See 
 Aj^ipendix.) 
 
 The statute also gives to a conveyance of her real estate executed 
 by a married woman not residing in this state, when she joins with 
 her husband in such deed, the same effect as if she were sole; and 
 allows it to be proved or acknowledged in the same manner. 
 (1 B. S. 758, § 11.) The same principle has been applied, by a 
 subsequent statute, to a power of attorney for the conveyance of 
 real estate, executed by a non-resident married woman with her 
 husband, for the conveyance of real estate situated in this state, 
 (L. of 1835, ch. 275.) 
 
 No acknowledgment of any conveyance having been executed can 
 be taken by any officer, unless the officer taking th,e same knows, or 
 has satisfactory evidence that the person making such acknowledg- 
 ment is the individual described in and who executed such convey- 
 ance. (Id. § 9.) And when the proof of a conveyance is made by a 
 subscribing witness thereto, he must state his own place of resi- 
 dence, and that he knew the person described in and who executed 
 such conveyance. And this proof is not to be taken unless the offi- 
 cer is personally acquainted with such subscribing witness, or has 
 satisfactory evidence that he is the same person, who was a sub- 
 scribing witness to such instrument. (Id. § 12. Jachson v. Os~ 
 horn, 2 Wend. 555. Same v. Gould, 7 id. 364.) 
 
 The officer who takes the proof or acknowledgment of any con- 
 veyance is required to indorse a certificate thereof signed by himself, 
 on the conveyance; and in such certificate he is required to set forth 
 the matters required to be done, known or proved, on such acknowl- 
 edgment or proof, together wdth the names of the witnesses exam- 
 ined before him, and their places of residence, and the substance of 
 the e^adence given by them. (Id. § 15.) The officer need not cer- 
 tify that he knew the witness who identified the subscribing wit- 
 ness; it is the latter, namely, the subscribing witness, that the 
 officer must know. But the statute does not require the officer to 
 have knowledge of the identifying witness. (Jackson v. Harrow, 
 11 John. 434. Same v. Vichory, 1 Wend. 406.)
 
 TENTH: RECORDING IN PROPER COUNTY. 395 
 
 The certificate of tlie officer is made by statute evidence of cer- 
 tain facts, and it, therefore, requires no proof of its genuineness 
 where on its face it appears to be reguhar. It is received without 
 proof of the official character of the officer granting it of his sig- 
 nature, or that it was gi'anted within the jurisdiction where he was 
 authorized to act. The evidence is only prima facie, and may be 
 rebutted. {Thurman v. Cameron, 24 Wend. 87.) 
 
 If the subscribing witness to any conveyance be dead, and it be 
 desired to have the instrument proved and recorded, it may be 
 proved before any officer authorized to take the proof and acknowl- 
 edoment of deeds, other than commissioners of deeds and county 
 iud-es not of the degrees of counsel in the supreme court. It can- 
 not be made before a justice of the peace, who now takes the place 
 of commissioner of deeds. The proof of the execution of the con- 
 veyance, in such case, must be made by satisfactory evidence of the 
 death of all the witnesses thereto, and of the handwriting of such 
 witnesses, or any one of them, and of the grantor; all which evi- 
 dence, with the names and places of residence of the witnesses 
 examined before him, must be set forth by the officer taking the 
 proof in his certificate of such proof The conveyance so proved 
 and certified is permitted to be recorded in the proper office, if the 
 orio-inal deed be at the same time deposited in the same office, there 
 to remain for the inspection of all persons desiring to examine the 
 same. (1 i?. /S'. 761, §§ 30, 31, 32.) 
 
 10 The tenth and last circumstance required to complete the 
 deed'or conveyance so as to give it full and perfect effect against all 
 the world, is to record it in the county where the lands lie. By the 
 common law every deed took eff-ect according to the priority of its 
 date or delivery. Subsequent purchasers or morgagees were required 
 ' to take notice at their peril of antecedent conveyances. An unre- 
 corded deed was always good against the grantor and his heirs. 
 (JacJcson v. West, 10 John. 466.) And would be good against 
 every body but for the statute. 
 
 The whole object of the recording acts, says the chancellor, m 
 Stuyvesant v. Eall, (2 Barh. Ch. 158,) is to protect subsequent 
 purchasers and incumbrancers against previous deeds, mortgages, 
 &c which are not recorded; and to deprive the holder of the prior 
 unregistered conveyance or mortgage of the right which his priority 
 would have given him at common law. The recording of a deed
 
 396 RECORDING. 
 
 or mortgage, therefore, is constructive notice only to those wlio have 
 subsequently acquired some interest or right in the property under 
 the grantor or mortgagor. 
 
 It is true the language of the first section of the act is that every 
 conveyance not recorded shall be void as against any subsequent 
 jDurchaser in good faith and for a valuable consideration, of the same 
 real estate, or any portion thereof, whose conveyance shall be first 
 duly recorded. (1 R. S. 756, § 1.) But this, as was well remark- 
 ed by Beardsley, J. in Raynor v. Wilson, (6 Hill, 473,) is not to 
 be taken literally in favor of any and every subsequent purchaser 
 of the same real estate, without regard to the person of whom the 
 purchase is made. That would lead to absurd consequences, and 
 the section should not receive such an interpretation. It applies to 
 successive purchases of the same real estate from the seller, and 
 must be limited to cases of that description. This is plain enough 
 on the words and spirit of the section already referred to; but the 
 statute contains another section which declares, that " every grant 
 shall also be conclusive as against subsequent purchasers from such 
 [i. e. the same'] grantor, or from his heirs claiming as such, except 
 a subsequent purchaser in good faith and for a valuable considera- 
 tion, who shall acquire a superior title by a conveyance that shall 
 have been first duly recorded." (1 R. S. 739, § 144.) These sec- 
 tions being in pari materia, must be construed in reference to each 
 other; and they leave no doubt of the sense in which both are to be 
 understood. 
 
 The recording acts protect none but innocent and honafide pur- 
 chasers and holders of real estate. And none should be deemed 
 honafide purchasers who purchase with knowledge or notice of a 
 defect in the title. The recording of a deed is constructive notice 
 to all the world of its existence. There is no difference between 
 the efiect of such notice, on a question of superiority of title, and 
 an actual notice, so far as respects the person receiving such actual 
 notice. (Schutt v. Large, 6 Barh. 373.) 
 
 When any conveyance is proved or acknowledged before any judge 
 of the county courts, not of the degree of counsellor at law in the 
 supreme court, or before any commissioner of deeds, while that of- 
 fice was in being, and now before any justice of the peace, it is not 
 entitled to be read in evidence, or to be recorded in any other county 
 than that in which the said oflS.cer shall reside, unless in addition 
 to the other requisites there shall be subjoined to the certificate of
 
 RECORDING— OBJECT OF IT. 397 
 
 proof, or acknowledgment required by sucli judge or commissioner, 
 a certificate under the hand and official seal of the clerk of the 
 county, in which such officer resides at the time of taking such 
 proof or acknowledgment, specifying that such officer was duly au- 
 thorized to take the same, and that the said clerk is well acquainted 
 M-ith the handwriting of such officer, and verijy believes that the 
 signature to the said certificate of proof or acknowledgment is gen- 
 uine. (1 R. S. 759, § 18.) The certificate of the proof or acknowl- 
 edgment of every conveyance, and the certificate of the genuineness 
 of the signature of any judge or other officer, in the cases where 
 such last mentioned certificate is required, must be recorded with 
 the conveyance so proved or acknowledged; and unless the said 
 certificates be so recorded, neither the record of such conveyance, 
 nor the transcript thereof, shall be read in evidence. (Id. § 20.) 
 
 In order that the transcript of a deed can be used in evidence, it 
 must include not only the deed but the certificate of proof or ac- 
 knowledgment, and the certificate of genuineness when there is one. 
 {Morris v. Keyes, 1 Hill, 540.) The court can thus determine 
 whether the deed was properly proved or acknowledged, and prop- 
 erly recorded. If the proof was defective, and the instrument im- 
 properly recorded, it is not notice for any purpose, nor legitimate 
 evidence. It is only when it has been duly recorded, that the re- 
 cord or a transcript is evidence. It is then made primary evidence 
 of the contents of the deed. (Clark v. Noxon, 5 Hill, 36.) 
 
 In addition to the officers before mentioned, who are authorized 
 to take the proof and acknowledgment of deeds, there are various 
 others in different parts of the state, possessing the like power by 
 local and special statutes. It is not deemed important to give a 
 reference to these, as they are not of general interest. 
 
 The object of the recording laws is not solely to affi^rd notice to 
 subsequent purchasers and incumbrancers of the existence of the 
 conveyance; but to preserve the evidence thereof for the benefit of 
 the parties interested, and their heirs. Besides the facility which 
 they afford to purchasers and others to investigate the title, they 
 preserve the evidence of such title from the contingency of loss or 
 destruction. 
 
 It is weU calculated to facilitate the search in the public records 
 to have those of the same kind, as far as practicable, inserted in 
 the same book. A proper classification is an economy of time. 
 Hence the statute has provided that different sets of books shaU be
 
 398 RECORDING. PROPER BOOK. 
 
 provided by the clerks of the several counties for the recording of 
 deeds and mortgages; in one of which sets all conveyances absolute 
 in their terms, and not intended as mortgages, or as securities in 
 the nature of mortgages, must be recorded; and in the other set, 
 such mortgages and securities must be recorded. (1 R. S. 756, § 2.) 
 
 A deed conveying real estate, though absolute in its terms, which 
 by any other instrument in writing shall appear to have been in- 
 tended only as a security in the nature of a mortgage, is considered 
 as a mortgage; and no advantage can be derived by the person for 
 whose benefit it is made, from the recording thereof, unless every 
 writing operating as a defeasance of the same, or explanatory of its 
 being designed to have the eflect only of a mortgage or conditional 
 deed, be also recorded therewith, and at the same time. (Id. § 3.) 
 
 In cases of this kind, both the deed and defeasance should be re- 
 corded in the book of mortgages. If the deed is intended only as 
 a mortgage, there can be no good reason why the terms on which 
 it is defeasible should not appear on its face. If, through inadver- 
 tence, it is taken as an absolute deed, the holder may comply with 
 the terms of the statute, by making a written defeasance, specify- 
 ing the conditions on which it was intended to be given, and re- 
 cording both together in the book of mortgages. If he does this 
 before the rights of any third party have intervened, he will be 
 protected. And if he neglects it, he will only be in the same situ- 
 ation of every other mortgagee who neglects to have his security 
 recorded. ( White v. Morse, 1 Paige, 554. Day v. Dunham, 2 
 John. Ch. 188. James v. Johnson & 3Ioivry, 6 id. 417; S. C. in 
 error, 2 Coiven, 248. Jackson v. Van Valkenbergh, 8 id. 260.) 
 
 If a deed absolute on its face, but intended as a security for a 
 debt, be recorded as a deed, it is valid and effectual between the 
 parties as a mortgage; but it is liable to be defeated by a subse- 
 quent mortgage duly recorded. (James v. Johnson, supra.) A 
 conveyance and separate defeasance constituting a mortgage, must 
 be recorded together as a mortgage, or they will be void as against 
 a subsequent bona fide purchaser for value. {Broivn v. Dean, 3 
 Wend. 208.) And if an absolute deed be taken, whether the de- 
 feasance is by writing or parol, it must be recorded as a mortgage, 
 otherwise it is not protected against subsequent bona fide purchasers 
 or mortgagees. ( White v. 3Ioore, supra.) When an absolute deed 
 is intended as a mortgage, a subsequent purchaser with notice
 
 AVOIDING A DEED. 399 
 
 stands in the place of the equitable mortgagee. {Williams v. 
 Thorn, 11 Paige, 459.) 
 
 In some cases where it is doubtful in which book the conveyance 
 should be recorded, the provident and cautious conveyancer will ad- 
 vise that it be recorded in both books, as a deed and as a mortgage. 
 
 A deed or mortgage improperly recorded, as where the proof of 
 its execution, or the acknowledgment was defective, or insufficient, 
 is not available as notice. {Frost v. Beekman, 1 John. Ch. 300.) 
 
 The regularity of the proof or acknowledgment requires that it 
 should be done before a proper officer. The statute forbids any 
 judge of any court from sitting in any court, in any cause, in which 
 he is a party, or in which he is interested, or in which he would be 
 excluded from being a juror, by reason of consanguinity, or affinity 
 to either of the parties. (2 H. S. 275.) If the taking the proof or 
 acknowledgment of a deed be a judicial act, the officer would be in- 
 competent to act if he stood in such relation to the grantees as 
 would render him incompetent as a juror. This question has actu- 
 ally arisen in this state, and it has been decided that the officer 
 who takes the proof or acknowledgment of a deed does not act judi- 
 cially, but ministerially; and therefore if he be an heir, for exam- 
 ple, of the grantor, he is competent to act, {Lynde v. Livingston, 
 8 Barb. 463; ajirmed on appeal, 2 Seld. 422.) 
 
 Section III. 
 Of avoiding a Deed, by matter ex post facto. 
 
 It was resolved in Bigot's case, (11 Oo. 27 a,) that when any 
 deed is altered in a material point, by the plaintiff himself, or by 
 any stranger without the privity of the obligee, be it by interline- 
 ation, addition, rasing, or by drawing a pen through a line, or 
 through the midst of any material word, that the deed thereby be- 
 comes void. The case before the court in which the decision was 
 made, was that of a bond, in which the question was whether the 
 plaintiff could, after such alteration, maintain an action thereon. 
 The same doctrine is laid down in the Touchstone, page 69. 
 
 This doctrine is no doubt applicable to an action on the covenants 
 in a deed. On the principle of Pigot's case, the party in whose fa- 
 vor a covenant was made, cannot maintain an action thereon asfainst 
 the covenantor, if the former has made a material alteration with- 
 out authority, in the deed which contains the covenant.
 
 400 ALTERATION OF A DEED. 
 
 If a deed be valid in its inception and be delivered to the grantee, 
 a subsequent erasure, alteration or even cancellation of the instru- 
 ment, will not reinvest the title in the grantor. (Nicholson v, 
 Halsey, 1 John. Ch. 417. Smith v. McGoioan, 3 Barb. 404. Ray- 
 nor V. Wilson, 6 Hill, 469. Schutt v. Large, 6 Barh. 373.) 
 
 If the erasure be made by consent of the parties, it .does not in- 
 validate the deed; and the fact may be proved by any person cog- 
 nizant of it, whether he be the subscribing witness or not. {Penny 
 v. Corivithe, 18 John. 499. Woolley v. Constant, 4 John. 54.) 
 
 In commenting on Pigot's case, the chancellor, in Waring v. 
 Smith, (2 Barh. Ch. 133,) said that the modern and more sensible 
 rule is, that an alteration if made by a party claiming to recover on 
 the bond or instrument, or by any person under whom he claims, 
 renders the deed void; but that an alteration by a stranger, Avithout 
 the privity or consent of the party interested, will not render the 
 deed void, when the contents of the same, as it originally existed, 
 can be ascertained. 
 
 The chancellor also, in the same case, takes a distinction between 
 deeds which operate to convey the title to property, and those 
 which merely give a right of action. For when the legal title to 
 real estate passes to the grantee by the execution and delivery of a 
 deed, a fraudulent alteration of the deed, by such grantee, will not 
 have the effect to revest the title in the grantor, in cases where the 
 statute of frauds requires a wi-itten conveyance to transfer the title. 
 {Doe V. Archbishop of York, 6 East, 86. Mitler v. Mainwaring, 
 Cro. Car. 397. Lewis v. Payn, 8 Coiven, 71.) In this class of cases 
 it is held that the title to the estate which was vested in the gi-antee 
 by a genuine and valid conveyance, remains in the grantee, although 
 he destroys or makes void the deed itself, by a forgery or a volun- 
 taiy cancelment of the conveyance which created that title. But 
 the deed itself is avoided thereby; so that the grantee cannot re- 
 cover upon the covenants therein, nor sustain any suit founded 
 upon the deed as an existing and valid instrument. 
 
 But a deed is not destroyed by the tearing oif of the seals or 
 other cancellation by a stranger, without the privity or consent of 
 the parties. {Every v. Merivin, 6 Coioen, 360. Bees v. Over- 
 haugh, id. 746.) Nor does any unauthorized and unratified alter- 
 ation by a stranger have that effect. ( Waring v. Smith, sicpra.) 
 
 In case an alteration or erasure appears in a materal part 
 of the deed, sufficient to avoid it, if fraudulently made, the prac-
 
 CONSTRUCTION OP DEEDS. 401 
 
 tical question arises as to the party upon whom the burden of proof 
 is cast. If the alteration was made before the execution of the in- 
 strument, and noted by the subscribing witness, or by the officer 
 who takes the acknowledgment, it is conclusive evidence that the 
 party so executing or acknowledging the instrument, with the 
 knowledge of the alteration, assented thereto, or ratified it. {Id.) 
 But if the alteration or erasure be material, and is not so no- 
 ted, either by the witness or the officer taking the acknowledg- 
 ment or the proof, the party claiming the benefit of such apparent 
 alteration, as part of the instrument, is bound to give some expla- 
 nation; and the sufficiency of this explanation, when given, is for 
 the consideration of the jury. {Jackson v. Oshorn, 2 Wend. 555. 
 Eerrich v. Malin, 22 id. 388. Waring v. Smith, supra.) This 
 explanation may be given by oral evidence dehors the deed, or the 
 explanation may appear upon the face of the deed itself. 
 
 The conveyancer should endeavor so to draw the instrument that 
 it will be without blemish, after it is executed. . If, unfortunately, 
 some alteration in a material part has to be made, and the parties 
 do not call for a re-engrossment of the deed, the alterations or de- 
 fects should be distinctly specified and noted by the witness or the 
 acknowledging officer. 
 
 Section IV. 
 
 Of the Construction of Deeds. 
 
 It is a cardinal rule in the construction of deeds, that it be made 
 on the entire deed, and not merely upon a particular part of it; 
 and therefore every part of a deed ought, if possible, to -take eifect, 
 and every word to operate. A deed, and especially a deed poll, is 
 always construed most strongly against the grantor. If a deed can- 
 not operate in the manner intended by the parties, the judges will 
 endeavor to construe it in such a way as that it shall operate m 
 some other manner; it being the maxim quando quod ago, non 
 valet ut ago, valeat quantum valere potest. Per Spencer, Ch. J. 
 in Jackson v. Blodget, (16 John. 168 ;) Same v. Myers, (3 id. 395.) 
 
 The intent, when apparent and not repugnant to any rule of law, 
 will control technical terms, for the intent, and not the words, is 
 the essence of every agreement. {Per Kent, Ch. J. in Jackson v. 
 Myers, supra. Same y. Beach, 1 John. Cases, 402.) 
 
 If, however, the intention be contrary to the rules of law, it is 
 
 Will.— 26
 
 402 CONSTRUCTION. AMBIGUITY. 
 
 otlierwise. The rules of law will prevail against the intention. 
 The example given to illustrate this is, if a person should grant 
 land to a man and his heirs for twenty-one years, the executors of 
 the grantee, and not his heirs, would be entitled to the land on the 
 death of the grantee before the expiration of the term. This re- 
 sults from the rule of law that a term for years is a chattel interest 
 which goes to the personal representatives,^ and not to the heir, 
 (2 B. S. 82, § 6.) 
 
 A deed must receive its legal construction according to its lan- 
 guage and subject matter. (Per Woodworth, J. in Jackson v. 
 Tihhits, 9 Cowen, 250.) The maxim in the books is, quoties in 
 verbis nulla ambiguifas, ibi nulla expositio contra verba fi&n^ 
 da est. {Broom's Max. 477.) This maxim applies as well to 
 deeds as to wills. Too much stress should not be laid upon partic- 
 ular words when the intention is clear. It is the duty of the court 
 to make a deed eifective if possible, litres magis valeat quam 
 pereaf. (Fish v. Hubbard's A dm. 21 Wend. 654.) 
 
 In case of a patent ambiguity, ambiguitas patens, that is, an 
 ambiguity which appears on the face of the instrument, no aver- 
 ment is aUowed to explain it. Such ambiguity, Bacon says, is 
 never helped by averment, and the reason is, because the law will 
 not couple and mingle matter of specialty, which is of the higher 
 account, with matter of averment, which is of inferior account in 
 law; for that were to make all deeds hollow, and subject to aver- 
 ment, and so in effect, that to pass mthout deed, which the law 
 appoints, shall not pass without deed. {Fia]% v. Hubbard's Ad- 
 ministrators, supra, p. 659.) 
 
 A latent ambiguity is such as is created by extrinsic proof, and 
 may be removed in the same way. Ambiguitas verborum latens, 
 verificatione supp)letur ; nam quod ex facto oritur ambigmim ver- 
 ifcatione facti tollitur. {Broom's Maxims, 468.) If a grant 
 should be made to John Styles of Saratoga, and it should be shown 
 by extrinsic evidence that there are two persons of that name in the 
 same place, parol evidence would be admissible to show which John 
 §tyles was intended by the grantor. Here, then, is no ambiguity 
 in the instrument itself, but the ambiguity is created by the proof; 
 and it may therefore be removed in the same way. 
 
 But suppose the grant should be made to one of the sons of J. S., 
 or if there be a blank left in the deed or will, for the name of the 
 grantee or devisee, it is not admissible to prove by parol what per-
 
 CONSTRUCTION. AMBIGUITY. 40a 
 
 son was probably intended by the grantor or devisor. In this latter 
 case the ambiguity is patent. It appears on the face of the instru- 
 ment, and is not created by any extrinsic proof. 
 
 Where the language of a deed will bear more than one interpre- 
 tation, looking only to the instrument, the court will look to the 
 surrounding circumstances existing when the contract was made, 
 such as the situation of the parties and of the subject matter of the 
 contract. (Per Jeioett, Ch. J. in French v. Carhart, 1 Comst. 102. 
 Sevich Y, Sears, 1 Hill, 17.) 
 
 Where the words of an ancient deed are equivocal, the usage of . 
 the parties, under the deed, is admissible to explain it. {Living- 
 ston V. Ten Brock, 16 John. 14.) But if the words be not ambigu- 
 ous or eG[uivocal, evidence of usage to control the effect or operation 
 of the deed, is inadmissible. {Parsons v. 3IiUer, 15 Wend. 561.) 
 
 Several instruments of the same date, between the same parties, 
 and relating to the same subject, may be construed as parts of one 
 assurance. {Jackson v. Dunshagh, 1 John. Cas. 91, Stow v. 
 Tifft, 15 John. 458.) 
 
 When the deed may enure several ways, the grantee shall have 
 his election which way to take it. An uncertainty shall be taken 
 in favor of the grantee. {Jackson v. Hudson, 3 John. 375. Same 
 \. Gardner, 8 id. 394.) 
 
 The rule in the construction of deeds is, that if a general clause 
 be followed by special words which accord with the general clause, 
 the deed shall be construed according to the special matter; but 
 that if a deed contain special words, and conclude with general 
 words, the general as well as th6 special words shall stand, for gen- 
 aralis clausula non j^orrigitur ad ea qucn antea specialiter sunt 
 comprehensa. {Per Kent, Ch. J. in Munroe v. Alaire, 2 Caines, 
 327. Altham's case, 8 Co. 154 h.) Thus, where in an assignment 
 made by a debtor, in trust for several creditors, it was expressed to 
 be an assignment of all the property, goods, chattels, debts, &c. of 
 the debtor, particularly described in a schedule annexed and refer- 
 red to; it was held that this was not a general assignment of all 
 the debtor's estate, but was to be construed to operate only on the 
 articles specified, ( Wilkes v. Ferris, 5 John. 335.) In this case, 
 though the words in the first place were general and broad enough 
 to cover all the debtor's estate, they were afterwards limited by the 
 special words. 
 
 A recital in a deed cannot control the plain words in the grant-
 
 404 CONSTRUCTION. AMBIGUITY. 
 
 ing part of the instrument. (Euntinpton v. Havens, 5 John. 
 Ch.23.) 
 
 The construction of a grant is matter of law, but its legal effect, 
 deducible from its terms, or from matter . subsequent, which by 
 showing the sense of the parties, may authorize a larger or naiTower 
 construction, so as to include or exclude the premises in controversy, 
 is matter of fact for the jury to decide. (Frier v. Van Allen, 8 
 John. 495.) 
 
 When the words of a deed are so uncertain that the intention of 
 the parties cannot be discovered, the deed is void. This uncertainty 
 may be with reference to the person of the grantee, or the descrip- 
 tion of the thing granted. An instance of the first is, of a gift to 
 A. or B., or to one of the children of J. Z., he leaving four children: 
 such a gift is void for uncertainty of the person. {Cruise's Dig. 
 tit 32, ch. 20, § 24.) The case of BoUin v. PicJ:eU, (2 Hill, 552,) 
 affords an instance of the second kind. In that case one party 
 agreed to convey to another seventy acres of land at twenty dollars 
 an acre, payably in a certain described way. In an action on the 
 contract it was held to be void for want of a description of the land. 
 
 In relation to sherifi's' deeds, it has been repeatedly held that a 
 deed is void when the description is so general that the lands can- 
 not be located by the deed. (Jackson v. Bosevelt, 13 John. 97. 
 Same v. Be Lancy, Id. 537.) So when the deed is illegible, or so 
 as to leave it uncertain what is conveyed, the deed is inoperative. 
 (Jackson v. Ransom, 18 John. 107.) But though the description 
 be imperfect, if enough be given to locate with reasonable certainty 
 the premises sought to be conveyed, it will be sufficient to pass the 
 title. (Dygert v. Pletts, 25 Wend. 402. Jackson v. Parkhursf, 
 4 id. 369. Corhin v. Jackson, 14 id. 619. Jackson v. Livingston, 
 7 id. 136.) 
 
 There is, in general, more danger of error in the description of the 
 premises, than in the person of the grantee. If in the description 
 there are particulars sufficiently ascertained to designate the thing 
 intended to be granted, the addition of circumstanceg, false or mis- 
 taken, will not frustrate the deed. But where the description of 
 the estate intended to be conveyed, includes several particulars, all 
 of which, are necessary to ascertain the estate to be conveyed, no 
 estate will pass except such as will agree with every particular. 
 (Jackson v. Clark, 7 John. 217.) If the words loith the dwelling 
 house thereon, be inserted in the description, wdien in fact there is
 
 CONSTRUCTION. BOUNDARIES. 405 
 
 no dwelling house on tlie* premises claimed under the deed, it is 
 merely a false circumstance, which does not control the rest of the 
 description, or defeat the grant. (Id.) 
 
 Land may he described hy the number of the lot in a certain pa- 
 tent, and may refer to the ma]5 on which it is laid down. In such case 
 the whole lot passes, notwithstanding it is described in the deed as 
 containing a less number of acres than it actually contains. The 
 reference to the number of acres in a grant is generally mere matter 
 of description. {Jackson v. Deiffendorff, 1 Caincs, 493. 3Iann 
 V. Pearson, 2 John. 37.) 
 
 Where the courses and distances are given in a grant, as well as 
 monuments, and the quantity of land is given, the latter is mere 
 matter of description and not of covenant. {Jackson v. 3IcCon- 
 nell, 19 Wend. 175. Root v. Ptiff, 3 Barb. 353.) 
 
 Where there is a known and well ascertained place of beginning, 
 in the description in a deed, that must govern, and the grant be 
 confined within the boundaries given. And a place of beginning 
 cannot be varied by the incidental mention of it in a subsequent 
 patent. {Jackson v. Wilkinson, 17 John. 146. Same v. Wendell, 
 5 Wend. 142; affirmed 8 id. 183.) 
 
 What is most material and most certain in the description of the 
 property granted, has a controlling influence. Thus, a river, a 
 known stream, a spring, or even a marked tree, controls both course 
 and distance. Courses and distance must be varied, and distance 
 lengthened or shortened so as to conform to the natural or ascer- 
 tained objects or bounds called for by the grant. {Jackson v. 
 Ccnivp, 1 Coiven, Q(y5. Doe y. Thompson, 5 id. 371. Jackson y. 
 Frost, Id. 346. Same v. Ives, 9 id. 661. The People v. Weti- 
 dell, 8 Wend. 183, affirmdng S. C. 5 id. 142.) 
 
 ■ Where the boundary is a highway or a river, unless there be 
 some express words in the grant limiting the boundary to the bank 
 "of the river, or to the side of the highway, the center of the river 
 or the highway is to be taken as the boundary. {Jackson v. Hath" 
 atoay, 15 John. 447. Jackson v. Louw, 12 id. 252. Same v. 
 Halstead, 5 Goiven, 216. Ex parte Jennings, 6 id, 518. The 
 People V. Seymour, 6 id. 579. Luce v. Carlcy, 24 Wend. 451.) 
 
 In some cases the actual location of the premises on the ground, 
 by the parties, and acquiescing therein for a long period of time, 
 will conclude them; and estop them from showing that such loca- 
 tion was erroneously made. Long acquiescence in even an errone-
 
 406 PRACTICAL LOCATION. 
 
 oils location will authorize the jury to find that the plaintifi' had 
 agreed to a location different from his deed; and whether he knew 
 his rights or not, such acquiescence or location will conclude him. 
 (BQckioell V. Adams, 7 Coiven, 761. McCormiclc v. Barnum, 10 
 Wend. 104. Dihhh v. Rogers, 13 id. 536.) 
 
 So where a location is made under a deed and survey, and an un- 
 disturbed possession is held accordingly for thirty-eight years, it 
 was allowed to prevail, though the survey was incorrect. {Jackson 
 V. Deiffendorff, 3 John. 269.) So a houndaiy according to which 
 the parties had occupied for forty-one years, was not allowed to be 
 disturbed. (Jackson v. McCall, 10 id. 377.) It is presumed that 
 a much shorter possession, in analogy to the statute of limitations, 
 which we have elsewhere considered, will be sufficient to conclude 
 the parties. In Jackson v. Widger, 7 Coioen, 723,) an acquies- 
 cence of twenty years in the settling of a line by his surveyor, was 
 held to conclude the plaintiff from disputing it. 
 
 Where the description of the boundaries are somewhat vague and 
 indefinite, the acts of the parties, and of those claiming under ad- 
 joining patents, are entitled to great weight in the location of the 
 grant. {Jackson v. Wood, 13 John. 346.) 
 
 '■■■. The doctrine of a practical location of premises does not rest 
 wholly on the principles of the statute of limitations. It is found- 
 ed in justice and public policy. It is intended to quiet the actual 
 possession of parties, and give peace to the honest occupants of their 
 farms. The remarks of the chancellor in Adams v. Rockwell, and 
 which appear to have been concun-ed in by the court of errors, are 
 founded in wisdom and good sense. He says : " Where there can 
 be no real doubt as to how the premises should be located, accord- 
 ino- to certain and known boundaries described in the deed, to es- 
 tablish a practical location different therefrom, which shall deprive 
 the party, claiming under the deed, of his legal rights, there must 
 bs either a location which has been acquiesced in for a sufficient 
 length of time to bar a right of entry, under the statute of limita- 
 tions, in relation to real estate; or the erroneous line must have 
 been agreed upon between the parties claiming the land on both 
 sides thereof; or the party whose right is to be thus barred must 
 have silently looked on and seen the other party doing acts, or sub- 
 jecting himself to expenses in relation to the land on the opposite 
 side of the line, which would be an injury to him; and which he 
 would not have done, if the line had not been so located; in which
 
 WORDS OP LIMITATION. 407 
 
 ..ase, perhaps, a grant miglit be presumed within twenty years." 
 (See also Van Wyclc v. Wright, IS' Wetid. 157.) 
 
 The acquiescence, to be available against the party, must be by 
 one sui juris, and not laboring under any disability. Thus, a, feme 
 covert is not bound by the acquiescence of her husband in au erro- 
 neous line, dividing lands owned by her from adjoining lands. 
 (Bradstreet v. Pratt, 17 Wend. 44.) The same principle apphes 
 with greater force to lunatics, idiots and infants. .? 
 
 Section V. 
 By what Words different Estates are Created. 
 
 The rule, at common law was, that to create an estate in fee sim- 
 ple, the word "heirs" was absolutely indispensable. {Littleton, § 1. 
 Co. Litt. 8 h.) Lord Coke says, that if land be conveyed to a man 
 and his heir, in the singular number, he has only an estate for life. 
 The doctrine that an estate in fee could not pass without words of 
 inheritance was the former law of this state, (Jackson v. Myers, 
 3 John. 388. Sayne v. Davenjjort, 18 id. 295; S. C. affirmed on 
 error, 20 id. 537.) But a conveyance to a corporation, whether 
 sole or aggregate, did not require words of inheritance to pass a fee; 
 but in a grant to a corporation sole, the word " successors," is ne- 
 cessary. 
 
 A different rule prevailed in devises of real estate. Any words 
 indicating an intention to pass the fee would have that effect. The 
 word heirs was not indispensable in the case of. a will as it was in 
 the case of a deed. (Jackson v. Delany, 11 John. 365; affirmed 
 13 id. 536. Pond v. Bergh, 10 Paige, 140.) 
 
 Such was the rule of law in this state until the revised stat- 
 utes took effect in 1830. In determining the quantity of interest 
 which passed by a deed executed previous to that time, the con- 
 struction must be according to the former law: one rule applying 
 in the case of deeds, and a more lax one in the case of a devise by 
 will. The revisers, in order to remove this diversity, proposed to 
 the legislature to abolish this distinction, and substantially: to make 
 the rule which governed in the case of devises, control also in the 
 case of deeds. The legislature adopted the suggestion, and enacted 
 that the term " heirs," or other words of inheritance, should not be 
 requisite to create or convey an estate in fee; and further enacted, 
 that every grant or devise of real estate, or . any interest therein,
 
 408 WORDS OF LIMITATION. 
 
 thereafter to be executed, should pass all the estate or interest of 
 the grantor or testator, unless the intent to pass a less estate or int 
 terest, should appear by express terms, or be necessarily implied in 
 the terms of such grant. (1 R. S. 748, § 1.) 
 
 In the construction of devises the courts had been in the habit 
 of seeking for the intention, though apt words were not used. If 
 enouo-h appeared to show the object and design of the testator, his 
 intention would be carried into effect, whereas in the case of deeds 
 if the word "heirs" was omitted, a fee simple could not be made to 
 pass, though the grantor conveyed all his estate to the grantee for- 
 ever ; so important were words of limitation in a deed. To place 
 both modes of alienation upon the same footing, the legislature at 
 the same time further enacted, that. in the construction of every in- 
 strument creating or conveying, or authorizing the creation or con- 
 veyance of any estate or interest in lands, it should bfe the duty of 
 courts of justice to carry into effect the intent of the parties, so far 
 as such intent could be collected from the whole instrument and 
 was consistent with the rules of law. {Id. § 2.) Thus, deeds and 
 wills are now placed upon the same footing, with respect to words 
 of limitation; or the quantity of estate intended to be conveyed or 
 
 devised. 
 
 This new rule dispensing with the word heirs as essential to pass 
 a fee, has been adopted in several other states. It is in truth the 
 rule which prevails in all civillaw countries, none of which it is 
 believed insisted on any particular form of words as indispensable 
 to the passing of the entire interest of the grantor. The grant to 
 Alvarado, of a large domain in California, which the latter after- 
 wards sold to Col. Fremont, was made according to the laws of 
 Mexico without any words of inheritance, and was still held by the 
 supreme court of the United States to carry a fee, and to entitle 
 him to a patent from the United States. {Fremont v. Tlie United 
 States, 17 How. 542, 545.)H-jca fjiLt oi -^i '^ 
 
 But though the rule has been thus settled by legislative enact- 
 ment since 1830, still few deeds, it is believed, are written without 
 the words of limitation which were formerly inserted. As the word 
 heirs is as expressive of the intent to pass a fee simple as any other, 
 and probably more so, it is still recommended to all conveyancers 
 to adhere, in this respect, to the ancient form. The blank deeds 
 furnished by the stationers stiU contain those words when the de- 
 sign is to convey a fee.
 
 WORDS OF LIMITATION. 409 
 
 An estate in fee simple will, in England, pass to the king A^ithoiit 
 the words heirs or snccessors; partly, it is said, on account of his 
 prerogative, and partly because in judgment of law the king never 
 dies. {Cruise's Dig. Deed, cli. 22, § 10.) As the people in this 
 state succeed to the prerogative of the king, it is presumed that a 
 deed of all the grantor's estate to the people carries a fee or what^ 
 ever other estate the grantee had, without words of limitation. 
 
 If it be the design of the grantor, who is the owner of the fee, to 
 convey to another a life estate, the usual mode of expressing it is, 
 " to hold to the said grantee and his assigns, for and during the 
 term of his natural life." If the intention be to grant it for the life 
 of the grantor, or the life of a stranger by name, the phraseology 
 must be changed so as to express that intention. 
 
 Estates for years are usually created in deeds by the words " To 
 hold to the said A. B., his executors, administrators and assigns, 
 from, the day of the date hereof for and during, and unto thefidl 
 
 end and term, of year thence next ensuring and fidly to he 
 
 com.plete and ended.'' Any other words expressive of the intent 
 will be equally effectual. 
 
 The technical words for creating an estate at will are " To hold 
 to the said A. B: at the luill of the lessor." ■ {Litt. § 68.) 
 
 With respect to joint estates, it was the rule at common law, that 
 where land is granted to two or more persons, except husband and 
 wife, to hold to them and their heirs, or for the term of their lives, 
 or for the term of another's life, without any restrictive or explan- 
 atory words; all the persons to whom lands were so conveyed took 
 as joint tenants. This was the rule in this state prior to the act 
 of 1786. (1 B. L. 54, § 6.) That act as revised in 1830, (1 B. S. 
 727, § 44,) provides that in 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 in joint tenancy; but every estate 
 vested in executors or trustees as such, shall be held by them in 
 joint tenancy. This act as revised took effect retrospectively; for 
 it is made to apply as well to estates already created or vested as to 
 estates thereafter to be granted or devised. But neither this or any 
 otlicr statute affects the character of the estate granted or devised in 
 fee to husband and wife, who now as formerly are neither properly 
 joint tenants or tenants in common : for husband and wife being 
 considered as one person in law, they cannot take the estate by moi^ 
 eties, but both are seised of the entirety per tout et non per my.
 
 410 WORDS OP LIMITATION". 
 
 The consequence of wliich is, tliat neither the husband or the vv'ife 
 can dispose of any part without the assent of the other, but the 
 whok^. must remain to the survivor. (2 Black. Com. 182; and ante, 
 .page 180.) 
 
 At common h\w, the usual mode of creating- a tenancy in com- 
 mon was to limit the estate to two or more persons, " equally to he 
 divided among them; they to take as teiiants in comimon and not 
 as joint tenants." Such a clause in a deed is now unnecessary to 
 create a tenancy in common; for we have seen that by the statute, 
 if the estate be granted or devised to two or more persons in their 
 own right, without any words of exjilanation, they will take as ten- 
 -ants in common. These words, however, though unnecessary, will not 
 vitiate, and are often inserted in wills, when a tenancy in common 
 is intended to be created. If it be intended to create a joint ten- 
 ancy in a grant or devise to persons in their own right, the usual 
 mode is to limit the estate to two or more, " to have and to hold 
 the same, not in tenancy in co7nmon, hut in joint tenancy." 
 
 If the grant or devise be to executors or trustees as such, the 
 statute declares the nature of the estate, without special words of 
 restriction or explanation. Nevertheless, the conveyancer or the 
 framer of a devise, not unfrequently, for greater cnution, inserts the 
 words '^ as joint tenants and 7iot as tenants in common." These 
 words, though unnecessary in such a case, will occasion no incon- 
 venience. 
 
 In the case of marriage articles, the construction is founded on 
 the apparent intent of the parties, however untechnically expressed; 
 and it is, therefore, more liberal than in the case of deeds. (Tivis- 
 den V. Loch, Amh. 663.) 
 
 In this state we have seen, in a former part of this treatise, that 
 all estates tail are abolished; and that every estate which would be 
 adjudged a fee tail, according to the law of this state, as it existed 
 previous to the twelfth day of July, 1782, shall hereafter be ad- 
 judged a fee simple; and if no valid remainder be limited thereon, 
 shall be a fee simple absolute. (1 R. S. 722, § 3, ante p. 167.) The 
 words by which that estate was formerly created were such as de- 
 noted the particular kind of heirs who were to succeed to the inher- 
 itance, as to the heirs male of the grantee, or devisee; or the heirs 
 female — or the heirs of the grantee laiofidly hegotten upon his 
 .present wife, and the like. Similar words are sometimes found in 
 wills drawn by persons not skilled in conveyancing, and it is scarcely
 
 COVENANTS IN DEEDS. 41 X 
 
 necessaiy to add, that instead of an estate tail, an estate in fee sim- 
 ple is thus created; and that the heirs generally, and not any par- 
 ticular heirs in exclusion of others, succeed to the inheritance. 
 
 The forms of conveyances in the Appendix will show the reader 
 examples of the several kinds of estate, and of the covenants which 
 are usually contained in them, to which reference may be made. 
 
 Section VI. 
 Of the Covenants in Deeds. 
 
 A covenant is an agreement or consent of two or more by deed 
 m wi-iting, sealed and delivered, whereby either one of the par- 
 ties promises to the other that something is done already, or shall 
 be done afterwards. He that makes the covenant is called the cov- 
 enantor, and he to whom it is made, the covenantee. {Touchstone, 
 160.) In fewer words, it is defined by Stephens, in his commenta- 
 ries, as a promise by deed. (2 Stejjh. Corn. 108.) 
 
 No particular technical words are necessary to make a covenant; 
 but any words which import an agreement between the parties to a 
 deed, will suffice for that purpose. {Halht v.- Wylie, 3 John. 48. 
 Bull V. Follett, 5 Coiven, 170.) 
 
 At common law, covenants were either express or implied. Ex- 
 press covenants were when the intention was indicated by the lan- 
 guage of the instrument; impjUed, when they resulted from the 
 nature of the conveyance. Thus, though the words grant, bargain, 
 sell, alien and confirm, in a conveyance in fee, did not imply a cov- 
 enant, the words '^dedi," or ^^ I give," did imply a warranty for 
 the life of the grantor. (Frost v. Raymond, 2 Caines, 188. Kent 
 V. Welsh, 7 John. 258.) 
 
 The revisers, in 1830, proposed to continue implied covenants, 
 and to define by legislative enactments, the cases in which they 
 should be implied, and the nature of the covenants that should be 
 thus implied. This enactment they supposed would relieve the 
 law from obscurity, ahd abrogate the principle which had been es- 
 tablished, that an express covenant in a deed takes away all im- 
 plied covenants. {Vanderkanv. Vanderkan, 11 John. 12'2>.') But 
 the legislature did not adopt that proposal, but coincided with the 
 alternative sugscestion of the revisers, and declared that no covenant 
 
 Oct '' 
 
 shaU be implied in any conveyance of real estate, whether such con- 
 veyance contain special covenants or not. (1 B. S. 738, § 140.) The
 
 412 COVENANT OF SEISIN. 
 
 supreme court has said that the language is imperative, leaving no 
 room for construction. It applies to all conveyances of real estate, 
 whether they he grants in fee, for term of years, or hy way of 
 mortgage. {Kinneij v. Watts, 14 Wend. 40. Hone v. Fisher, 2 
 Barh. Ch. 569.) The chancellor, in Tone v. Brace, (11 Faige, 
 569,) differs from the supreme court in Kinney v. Watts, (supra,) 
 and supposes that the 140th section of the revised statutes does 
 not extend to an estate for years, and, therefore, that the old rule 
 with respect to implied covenants remains as to chattel interests. 
 The difference hetween the two courts has not yet heen authorita- 
 tively settled. We have already had occasion to notice that the 
 legislature also abolished, at the same time, lineal and collateral 
 warrantees, with all their incidents. As a substitute, they enacted 
 suitable provisions for making the heirs and devisees of the cove- 
 nantor answerable to the extent of the lands descended or devised 
 to them, in case the personal assets of the ancestor proved to be in- 
 sufiicient for that purpose. (1 B. S. 739, § 141. 2 id. 109, § 53.) 
 The lineal and collateral warrantees thus abrogated, are not the 
 covenant of warranty usually inserted in our deeds at this day, but 
 had their origin in feudal principles, which have thus been succeed- 
 ed by better remedies. 
 
 The covenants which are usually entered into by a vendor seised 
 in fee, and who parts with all his estate to his vendee, are 1, that 
 he is seised in fee; 2, that he has power to convey; 3, for quiet en- 
 joyment by the purchaser, his heirs and assigns; 4, that the estate 
 is free from incumbrances; 5, for further assurance; and lastly, 
 that the vendor will forever warrant and defend. (2 Sugd. Ven- 
 dors,702.) 
 
 It is the duty of the attorney of the vendor to see that his client 
 does not enter into unusual covenants, without fully understanding 
 their nature and effect. If the purchaser consents to take a de- 
 fective title, relying on the covenants of the vendor, this fact should 
 be distinctly stated in the deed. 
 
 There are some covenants which run wifh the land, and some 
 which do not, and are only obligatory upon the covenantor, and his 
 representatives. 
 
 We shaU first notice those which do not run with the land. 
 
 1. The covenant of seisin, if broken at all, must be so at the time 
 of the conveyance. {Greenhy v. Wilcox, 2 John. 1. Hamilton v. 
 Wilson, 4 id. 72. Ahhott v. Allen, 14 id. 248. Bingham v. Wei-
 
 AGAINST INCUMBRANCES. 413 
 
 derivax, 1 Comst 509.) If the grantor have a seisin in fact, though 
 not in hw, the covenant is kept; but if he has neither seisin in fact 
 nor in 1-aw, the covenant is broken at once. {Foivler v. Poling, 
 
 2 Barb. 300.) 
 
 In an action of covenant by the vendee against the vendor, for 
 the breach of this covenant, the measure of damages is the value of 
 the land at the time of the sale, and not of the eviction. The de- 
 fendant is liable to refund the purchase money, together with inter- 
 est to be calculated from the time that the plaintiff loses the mesne 
 profits; and the costs, including reasonable counsel fees, which the 
 plaintiff sustained in the action wherein he was evicted; but not 
 the costs of the suit for the mesne profits. {Staats v. Ten Eych, 
 
 3 Caines, 111. Pitcher v. Livingston, 4 John. 1. Bennett. Jack- 
 son, 13 id. 50.) In an action of this kind the true consideration 
 may be shown, and also that the whole or some part of it remains 
 unpaid, notwithstanding a different consideration is expressed in 
 the deed, and the receipt of it is admitted in the conveyance. 
 {Bingham v. Weiderwax, 1 Comst. 514.) 
 
 On recovery by the grantee for breach of the covenant of seisin, 
 where he has been in the actual enjoyment of the land and taken 
 the mesne profits, he is entitled to recover the consideration money 
 and the interest thereon for six years only, and the costs. The 
 reason of this is, that on a recovery by the rightful owner against 
 him, he is only liable for the mesne profits for six years, and hence 
 his right to interest should be limited to the same period. {Caulhins 
 V. Harris, 3 Caines, 324, aiid case before cited.) 
 
 2. The covenant that the grantor has power to convey as well as 
 that against incumbrances, is broken at the time of the conveyance, 
 if broken at all ; and therefore does not run with the land. (Green- 
 by V. Wilcox, supra. Hamilton v. Wilson, supra. Fowler v. 
 Poling, supra, Dimmick v. Lockwood, 10 Wend. 142. Kelly v. 
 Tlie Dutch Church, 2 Hill, 105. Webb v. Alexander, 7 Wend. 
 281. Beddoe's Executors y. Wadsworth, 21 id. 120.) A covenant 
 real ceases to be such when broken, and no longer runs with the 
 land. (Per Coioen, J. in 21 Wend. 123, supra.) Hence none of 
 the covenants which are broken when made run with the land. 
 
 In an action upon a general covenant for quiet enjoyment, the 
 plaintiff must aver and prove that the person by whom he was evict- 
 ed had a lawful title to the property; and that he had such title 
 before or at the time of the conveyance by the defendant. (Kelly
 
 414 . BROKEN AS SOON AS MADE. 
 
 V. The Dutch Church, 2 Bill, 111, i:>e»* Bronson, J.) It must bo 
 both a lawful and a superior title. 
 
 The covenant for quiet enjoyment goes to the possesBion and not 
 to the title; and is broken only by a lawful entry and expulsion 
 from, or some actual disturbance in the possession. {Korts v. Car- 
 penter, 5 John. 120. WMtheck v. Cooh, 15 id. 483.) It is there- 
 fore like a covenant of warranty, which however defective the title 
 may be, is not brokeu till the possession is disturbed. When the 
 latter event transpires, with ret;pect either to the covenant for quiet 
 enjoyment or the covenant of warranty, an action lies to recover 
 damages for the failure both of possession and title, according to the 
 extent of such ftiilure. {Beddoe's Executors v. Wadsioorfh, 21 
 Wend. 124. Webb v. Alexander, sujjra. Kelly v. The Dutch 
 Church of Schenectady, stipra) And this action can be brought 
 only by the party whose possession has been disturlied. 
 
 It is said by Cowen, J. in Beddoe's Ex'rs. v. Wadsworth, already 
 cited, that there is a difference in more respects than one between 
 our ow^n and the English cases as to what shall constitute a breach 
 of the covenants of title, so as to take away the assignable quality. 
 He says it would seem that in England a simple failure of title, 
 without eviction, would be a breach of the covenants of quiet en- 
 joyment. The cases already cited show, that with us the doctrine 
 is clearly otherwise. In England, too, the covenant of seisin is said 
 to run with the land till actual damages are sustained by the breach. 
 But the reason assigned for the decision is too refined to be sound. 
 
 The doctrine of the courts in this state is, that where the cove- 
 nants are all broken at the time they were made, so as to give an 
 immediate right of action to the covenantee, they do not run with 
 the land, and consequently the right of action does not pass to the 
 assignee of the covenantee. The covenant of seisin, and of good 
 right to convey and against incumbrances, all stand upon the same 
 footing, and are broken at the instant they are made, if they are 
 broken at all. {Mitchell v. Warner, 5 Coinst. 497, and the cases 
 before cited.) 
 
 The grantee who has taken a covenant of seisin' is not bound to 
 wait until evicted before bringing his action for the breach of this 
 covenant. If he suspects the title of his grantor to be defective, 
 he may commence his action at once, subject however to be defeated 
 if the grantor can show that he had title in himself at the time he 
 conveyed and had good right to convey. (Abbott v. Allen, 14 John.
 
 COVENANTS RmiNING WITH THE LAND. 415 
 
 248.) The covenant of seisin extends only to a title existing in a 
 tliird person, and which might defeat the estate granted. {Fitch 
 V. Baldioin, 17 John, 161.) It is a breach of this covenant if the 
 covenantor was not seised of the entire estate, but others wer^ 
 seised of an undivided portion. (Sedgtvick v. HoUenbeck, 7 John, 
 376.) But it is no breach of it that the land conveyed contains $ 
 less number of acres than is described in the deed, nor that it wag 
 incumbered by mortgages or judgments, nor that a portion of it isi 
 subject to the easement of a public highway. (Mann v. Pearson, 
 2 John. 37. Stannard v. Eldridge., 16 id. 254. Whitheck v. Cook, 
 15 id. 483.) In these respects the jmrchaser should protect him- 
 self by other and apj^ropriate covenants. 
 
 The covenant that the covenantor has good right to convey is 
 said to be synonymous with the covenant of seisin. Of course the 
 principles and practice applicable to the one, apply to the other 
 also. (Eickert v. Snyder, 9 Wend. 421.) 
 
 . So also with respect to the covenant against incumbrances, the 
 grantee may extinguish them himself and then maintain an action 
 against the covenantor for the actual damages; but where the in- 
 cumbrance is still outstanding, and the grantee has suiBfered no dis- 
 turbance by reason of it, he can only recover nominal damages. 
 
 2. With respect to covenants running with the land, it may be 
 said that they embrace all such as extend to the possession as well 
 as the title. This attribute belongs to the covenant of warranty, 
 and the covenant for quiet enjoyment. (liickert v. Snyder, supra.) 
 A covenant to renew the lease at the end of the term, a covenant 
 not to erect or suffer to be erected any tenement, edifice or struc- 
 ture, upon a street or common owned by the grantor in front of the 
 premises, and a covenant by the lessor to repair in case of damage 
 by fire, all run with the land, and in the latter case the covenant 
 binds the grantee of the reversion to rebuild in case of a total de- 
 struction of the premises. {Piggot v. Mason, 1 Paige, 412. Rut- 
 gers V. Hunter, 6 John. Ch. 215. Tlie Trustees of Watertown v; 
 Cowen, 4 Paige, 510. Allen v. Culver, 3 Denio, 284.) 
 
 In delivering the judgment of the supreme court in Allen v. Cul- 
 ver, (su2)ra,) Jewett, J. at page 295, discusses at large the subject 
 of covenants which run with the land, and gives the following as 
 instances of that class of covenants, embracing some which we have 
 already mentioned, and others not yet specified, viz: 1. A covenant 
 of warranty. (Stiydam v. Jones, 10 We7id. 180. Withy v. Mum^
 
 416 COVENANTS WHICH RUN WITH THE LAND. 
 
 ford^ 5 Coioen, 137. Le Bay De-'Chaumont t. Forsythe, 2 Penn. 
 Mep. 507. Wyman v. Ballard, 12 3Iass. Bep. 306. Mitchell v. 
 Warner, 5 Conn. Bep. 497.) 2. A covenant for quiet enjoyment. 
 (MarMand v. Crump, 1 Dev. d Bat. 94.) 3. A covenant that nei- 
 ther the grantor nor his heirs shall make any claim to the land con- 
 veyed. (Fairbanks v. Williamson, 7 Greenl. 96.) 4. A covenant 
 by a tenant to repair. (Demarest v. Willard, 8 Cowen, 206. Nor- 
 man v. Wells, 17 Wend. 148.) 5. A covenant to pay rent. 6. A 
 covenant not to erect a building in a common or public square 
 owned by the grantor in irowi of the premises conveyed. ( Water- 
 toivn V. Cowen, 4 Paige, 510.) It is no objection that the rent is 
 a rent charge, or reserved in a grant in fee, with a clause of distress 
 for non-pajTnent. It still runs with the land, and payment may be 
 enforced against the jmrty occupying the land, or the land itself, 
 as we have already had occasion to show under a former head. 
 ( Van Bensselaer v. Says, 19 N. Y. Bept. 80. 2 Sug. on Vendors, 
 Perk. ed. 111. Ante, p). 205.) It is a general rule that all cove- 
 nants concerning title run with the land, except such as are broken 
 before the land passes. (4 Kent's Com. 473.) Hence a covenant 
 for further assurance runs with the land, whether the estate to 
 which it relates be an estate in fee or for a term of years. {Camp- 
 hell V. Lewis, 3 Barn. &Ald. 392. Sp)encer v. Noyes, 4 Ves. 370.) 
 
 The leading authority on the subject of covenants running with 
 the land is Sp)encer's case, (5 Co. 16,) and see the note to that case. 
 The authorities which have been cited are little more than a com- 
 mentary upon it, 
 
 A covenant iimning with the land has relation to the land. If 
 the thing to be done be merely collateral to the land, and does not 
 touch or concern the thing demised in any sort, then the assignee is 
 not charged. This was the etfect of the 2d resolution of Spencer's 
 case, (supra. Dolph v. White, 2 Kern. 301.) 
 
 There are cases where the covenant runs with the land, which do 
 not arise under the statute. (1 B. S. 141, § 23.) That section, as 
 modified by the laws of 1846, ch. 274, provides that the grantees of 
 any demised land, tenements, rents or other hereditaments, or of 
 the reversion thereof, the assignee of the lessor of any demise and 
 the heirs and personal representatives of the lessor, gi-antee or as- 
 signee, shall have the same remedies by entry, action or otherwise, 
 for the non-performance of any agreement contained in the lease so 
 assigned, or for the recovery of any rent, or for the doing of any
 
 FURTHER ASSURANCE. 417 
 
 ■waste or other cause of forfeiture, as their grantor or lessor had, or 
 might have had, if such reversion had remained in such lessor or 
 grantor. The subsequent section gives to the lessees of any lands, 
 their assigns or personal representatives, the same remedy by action 
 or otherwise against the lessor, his grantees, assignees, or his or their 
 representatives, for the breach of any covenant or agreement in 
 such lease contained, as such lessee might have had against his im- 
 mediate lessor, except covenants against incumbrances or relating 
 to the title or possession of the premises demised. But independ- 
 ently of these provisions, the supreme court held, in Norman v. Wells, 
 {supra,) that a covenant of the lessor of a mill with the lessee and 
 liis assigns, not to establish a rival mill on the same stream, runs 
 with the land. 
 
 With regard to the covenant for further assurance, it is the duty 
 of the covenantee, when he deems a further assurance necessary to 
 devise the same, and give notice to the covenantor, or the person 
 bound to fulfill the covenant. This assurance must be reasonably 
 devised, and not differ from the nature and purport of the original 
 bargain. The party to whom this notice is given is entitled to a 
 reasonable time to consider of it; and he is, therefore, not in de- 
 fault and liable to an action, until, after reasonable notice, he neg- 
 lects or refuses to give such further assurance. {Miller v. Parson, 
 9 John. 336.) 
 
 The question has sometimes arisen as to the person competent to 
 maintain an action for a breach of a covenant which runs with the 
 land. In Kane v. Sanger, (14 John. 89, 93,) Spencer, J. intima- 
 ted that where covenants run with the land, if the land is assigned 
 or conveyed, before the covenants are broken, and afterwards they 
 are broken, the assignee or grantee can alone bring the action of 
 covenant to recover damages; but if the grantor or assignor is 
 bound to indemnify the assignee or grantee against such breach of 
 covenants, then the assignor or grantor must bring the action. But 
 this dictum of the learned judge was shown, by Savage, Ch. J. in 
 Withy V. Mumford, {sujjra, ^j. 140,) to have been unnecessary to a 
 decision of the case before him, and unsupported by authority, and 
 contrary to the general principles applicable to such cases. The 
 doctrine is now well supported that an assignee with warranty, or 
 without warranty, can maintain an action for a breach of the cov- 
 enant which has happened after the assignment. {See also Gar- 
 lock V. Closs, 5 Cowen, 143, note. ■ Beddoe v. Wadsivorth, 21 Wend. 
 Will.— 27
 
 418 COVENANTS— now DISCHARGED. 
 
 120.) In the last mentioned case,- it was held that the covenants 
 may be assigned as well by a release and quit-claim deed, as by 
 deed of bargain and sale, or by lease and release. Even though the 
 grantor had no title at the time of the conveyance, if possession bo 
 taken under the deed by the grantee, and there is a subsequent 
 eviction by title paramount, the grantor, under a quit-claim deed 
 from the original grantor, can maintain an action for the breach of 
 the covenant of warranty, and for quiet enjoyment, (Id.) The 
 cases before cited show that in such a case an action could not be 
 maintained for breach of the covenant of seisin, because that was 
 broken at the time it was made, and a cause of action existed in the 
 original covenantor from that moment. But with regard to the 
 other covenants, those of warranty and quiet enjoyment, no cause 
 of action existed until the eviction had taken place. 
 
 In cases where the covenant passes to the assignee with the land, 
 it cannot be affected by the equities existing between the original 
 parties, any more than the legal title to the land itself. A cove- 
 nant under seal cannot be discharged by a parol agreement before 
 breach. {Kay v. Wagliorn, 1 Taunt. 427.) The discharge must 
 be by matter of as high a nature as that which creates the debt or 
 duty, {Preston v. Christmas, 2 Wil. 86. Worrall v. Munn, 1 
 Seld. 239, per Paige, J.) This is universally true where the ac- 
 tion is founded upon, or grows exclusively out of the deed or cove- 
 nant. {Blake's case, 6 Co. 43.) Hence, in Suydam v. Jones, (10 
 Wend. 180,) before cited, where premises were conveyed subject to 
 a mortgage, and it was agreed at the time of the conveyance, by 
 parol, that the grantee should assume the pajTuent of the mortgage 
 and pay the grantor only the difference between the amount thereof 
 and the sum agreed on as the consideration of the conveyance, and 
 that the covenants of warranty and for quiet enjoyment should not 
 be considered to extend to the mortgage, it was held that such 
 agreement could not be set up in bar to an action brought by the 
 assignee of the covenantee who was evicted under the mortgage. 
 Such a defense at law, it will be seen, would be attempting to show 
 by parol that the real contract was different from that expressed in 
 the deed, and that a covenant under seal, can, before breach, be 
 discharged by a parol agreement; neither of which can be done in 
 a court of law. 
 
 The doctrine of this and the other cases shows the importance of 
 expressing the whole contract fully and according to the intention
 
 OF THE SEVERAL KINDS OF DEEDS. 419 
 
 of the parties, in the instrument itself, and not leave any thing to 
 the vague recollection of witnesses. 
 
 In assigning the breaches on these covenants, the pleader must 
 be governed by the nature of the covenant. It belongs to a trea- 
 tise on pleading, rather than to our principal subject, to suggest the 
 various questions which will arise in asserting the remedy. All the 
 covenantees must sue, although they did not all sign and seal the 
 agreement. {Smith v. Kerr, 3 Comst. 144.) If one of two or more 
 covenantors die, the action must be brought against the surviver. 
 {Gere v, Clark, 6 Hill, 350.) 
 
 CHAPTER VI. 
 
 OF THE SEVERAL KINDS OF DEEDS KNOWN TO THE LAW. 
 
 Although in this state the mode of conveyance by fine and recov- 
 ery, and by feoffment, has been abolished, and a strong inclination 
 has been manifested to substitute the grant for most of the others, 
 it is still deemed necessary to know what were the conveyances at 
 the common law, and what derived their origin from the statute 
 of uses. 
 
 According to the elementary writers, the original conveyances 
 deriving their effect from the common law, were 1. Feoffment. 
 2. Gift. 3. Grant. 4. Lease. 5. Exchange. 6. Partition. These 
 were called original conveyances. The following were denominated 
 derivative conveyances. 1. Release. 2. Confirmation. 3. Surren- 
 der. 4. Assignment. 5. Defeasance. Those conveyances which 
 owed their origin to the statute of uses were 1. Covenant to stand 
 seised to uses. 2. Bargain and sale. 3. Lease and release. 4. Deed 
 to lead or declare the uses of other more direct conveyances ; and 
 5. Deeds of revocation of uses. 
 
 Though some of these modes of conveyance have become obsolete 
 even in England, and others have been expressly abolished in this 
 state, it will still be deemed expedient to have some general knowl- 
 edge of them all. We shall proceed therefore to notice briefly some 
 of the points by which they were characterized.
 
 420 TEOFFMENT. GIFT. GRANT. 
 
 Section I. 
 Of Feoffment, Gift and Grant. 
 
 The office of tlie feoffment was to convey a free inheritance to a 
 man and his heirs. The usual operative words were, "give, grant 
 and enfeoff," but any other words of equal import would be suffi- 
 cient. The mere signing and sealing of the feoffment were in no 
 case sufficient to transfer an estate of freehold, unless possession 
 was formally delivered by the feoffer to the feoffee. Tliis was call- 
 ed livery of seisin, without which a deed of feoffment only passed 
 an estate at will. There were, according to Coke, two kinds of liv- 
 ery: 1. A livery in deed; as when the feoffor takes the ring of the 
 door, or turf or twig of the land, and delivers the same upon the 
 land, to the feoffee in the name of seisin of the land. 2. Livery in 
 law, was when the feoffor said to the feoffee, being in \'iew of the 
 house or land, I give you yonder land, to you and your heirs, and, 
 go enter into the same and take possession thereof accordingly, and 
 the feoffee accordingly, in the lifetime of the feoffor, enters; this is 
 a good feoffment. {Co. Litt. 48 a, and 48 h.) 
 
 The operation of a feoffment was stronger than any other con- 
 veyance. It cleared away all diversions, abatements, intrusions 
 and other wrongful or defeasible estates. It operated on the pos- 
 session, without regard to the estate or interest of the feoffor; so 
 that to make a feoffment good and valid, nothing was wanting but 
 possession. 
 
 No person could make a valid livery in deed unless he had the 
 actual possession at the moment of such livery; and a livery inlaw 
 was not effectual to transfer the freehold, until an actual entry was 
 made by the feoffee, in the lifetime of the feoffor and feoffee. But 
 it is unnecessary to enlarge ujion the doctrine and the refinements 
 which grew up under this mode of conveyance. It is sufficient to 
 say that it now has no existence in this state, and has been expressly 
 abolished. (1 B. S. 738, § 136.) 
 
 A gift, as a mode of conveyance, at common law, was properly 
 applied to the creation of an estate tail. It differed in nothing 
 from the feoffment but in the nature of the estate that passed by it. 
 Livery of seisin must be given to the donee to render it effectual. 
 The 'gift had the same relation to an estate in fee tail, as the feoff-
 
 GRANT— ITS OPERATION. 421 
 
 ment had to an estate in fee simple. The converting of estates in 
 fee tail into estates in fee simple, necessarily dispensed with this 
 mode of conveyance. Like the feoflfment, therefore, it is now no 
 longer one of the modes of conveyance in this state. 
 
 A grant, at common law, was properly applicable to the trans- 
 fer of incorporeal hereditaments. The operative words were, dedi 
 et concessi, given and granted. It required no livery of seisin. 
 None, indeed, could be given of an incorporeal hereditament. 
 
 The operation of a grant by which any thing already in existence 
 is conveyed, was materially diiferent from that of a feoffment; for 
 a feoffment, it has been seen, operated immediately on the posses- 
 sion without any regard to the estate or interest of the feoffor ; 
 whereas a grant only operated on the estate or interest of the 
 grantor, and would pass no more than what he was by law enabled 
 to convey. (Co. Litt. 251 a.) 
 
 .. This principle has been adopted by the revised statutes, which 
 expressly enact that no gi-eater estate or interest shall be construed 
 to pass by any grant or conveyance thereafter executed, than the 
 grantor himself possessed at the delivery of the deed, or could then 
 lawfully convey, except that every grant shall be conclusive as 
 against the grantor and his heirs claiming from him by descent, 
 and as against subsequent purchasers from such grantor, or from 
 his heirs claiming as such, except a sulisequent purchaser in good 
 faith for a valuable consideration, who shall acquire a superior title 
 by a conveyance that shall have been first duly recorded. {I R. S. 
 739, §§ 143, 144.) 
 
 It was at common law, one of the consequences of the above doc- 
 trine with respect to grants, that they never worked a forfeiture; so 
 that if tenant for life or years granted the estate in fee, it was no 
 forfeiture, because nothing passed but that which lawfully might 
 pass. {Co. Litt. 254 h.) This principle, too, is adopted by the 
 revised statutes, and applied to any conveyance made by a tenant 
 for life or years, of a greater estate than he possessed, or could 
 la^vfuUy convey. Such conveyance, it is enacted, shall not work a 
 forfeiture of his estate, but shall pass to the grantee all the title, 
 estate or interest which such tenant could lawfully convey. (1 R. S. 
 739, § 145.) 
 
 Formerly, as a grant did not require the notoriety of a livery of 
 seisin to make it effectual, it was supposed to be necessary that it 
 should be accompanied with the attornment of the tenant, that is,
 
 422" ATTORNMENT. 
 
 the consent of the tenant to the transfer. The necessity of an at- 
 tornment is now taken away in England by statute 4 and 5 Anne, 
 ch. 16, which was adopted in this state at an early day. (1 11. L. 
 525, § 25. 1 R. S. 739, § 146.) But the payment of rent to such 
 grantor, by his tenant, before notice of the grant, is binding upon 
 the grantee; and the tenant is not liable to such grantee for any 
 breach of the condition of the demise, until he shall have had notice 
 of the grant. (Jd.) This notice is a substitute for the ancient 
 attornment, and should always be given by the grantee of the land- 
 lord to the tenant, in order that the latter may know to whom the 
 payment of his rent is due. Although there be no attornment of 
 the tenant in form, or notice in writing of the assignment given, 
 still the assignee of a lease, who has been recognized as such by the 
 tenant, may sue in his own name for the rent, notwithstanding he 
 has no interest in the reversion. The assignee of the rent alone, 
 without the reversion, may recover in his own name. {Allen. y. 
 Bryan, 5 Barn, d: Cress. 512. Demarest v. Willard, 8 Cowen, 
 206. Willard v. Tilghman, 2 Hill, 277.) This was on the ground 
 formerly, that after attornment by the tenant, the privity of con- 
 tract was transferred to the assignee of the rent. Attornment is 
 now unnecessary, but notice is required for certain purposes; and 
 the consent of the tenant to the transfer is conclusively shown by 
 his paying rent to the assignee of the lessors. Such payment dis- 
 penses with evidence of notice. {Moffat v. Smith, 4 Comst. 126.) 
 As a grant only operates on the estate of the grantor, and passes 
 only such interest as he possessed at the time of the delivery of the 
 grant, if the statute was silent on the subject the grant would not 
 be void if the grantor was out of possession at the time. But the 
 statute has interposed and enacted that every grant of lands shall 
 be void if at the time of the delivery thereof such lands shall be 
 in the actual possession of a person claiming under a title adverse 
 to that of the grantor. (1 B. S. 739, § 147. Webb v. Bindon, 21 
 Wend. 98. Poor v. Horton, 15 Barb. 485. Vrooman v. Shep- 
 herd, 14 id. 441.) 
 
 We have seen in the previous chapter, that the legislature have 
 adopted the grant as the conveyance of the fee, or of a freehold 
 estate. A grant is a deed; and the circumstances essential to its 
 validity have already been detailed. A legal grant effectual to pass 
 a fee simple, or any less estate, may be created by few words. It 
 is usual, however, to add the forms of conveyance to which the
 
 LEASE. 423 
 
 public have long been familiar, and to insert such covenants fur 
 title as are agreed to by the parties. These covenants are not neces- 
 sary to pass the title. A conveyance or assurance is good, without 
 a warranty, or personal covenant. {Nixon v. Hijserott, 5 John. 58.) 
 The statute, it has been seen, permits deeds of bargain and sa^ 
 and lease and release still to be used, and declares that they shall 
 be deemed grants. (1 B. S. 739, § 142.) The law does not insist 
 upon any particular form of words to constitute a grant. Of course 
 whatever will constitute a deed of bargain and sale will constitute 
 a gi-ant A deed merely remising, releasing and forever quit- 
 claiming to the grantee and his heirs and assigns forever, has been 
 held to be a good conveyance by way of bargain and sale before the 
 revised statutes, and is therefore now a good grant under the statute. 
 (Jackson v. Fish, 10 John. 456. Beddoe's Ex'rs v. Wadsworth 
 21 Wend. 120.) ' 
 
 But while the law is thus indulgent in caiTying out the intention 
 of the parties, it is nevertheless desirable that well considered forms 
 of conveyance should be adopted. Such forms are the parent of 
 security and peace, while those which deviate from established usage 
 invite litigation. In compiling the forms in the Appendix, we 
 have sought rather for such as have received the sanction of time, 
 than to amuse the reader by untried novelties. 
 
 Section II. 
 Of Lease. 
 
 The appropriate definition of a lease is, that it is a contract for 
 the possession and profits of lands and tenements on the one side, 
 and a recompense of rent, or other income, on the other. It is a 
 conveyance of lands and tenements to a person for life, for years, or 
 at will, in consideration of a return of rent, or other recompense. 
 It is always for a less time than the lessor has in the premises. If 
 it be for the whole interest of the lessor, it is more properly an as- 
 signment, or in the language of our statutes, a grant. (2 Black 
 Com. 217.) 
 
 The proper words for creating a lease are, ''demise, lease and to 
 farm ht." But any other words which show the intention of the 
 parties are sufficient. And we have seen in the preceding chapter, 
 that the whole instrument must be examined to ascertain the in- 
 tent. A memorandum for a lease between H. & W. by which H.
 
 424 LEASE. LETTING LAND ON SHARES. 
 
 agreed to let or lease to W. (the defendant) for the term of four 
 years, from &c. for a certain rent, i)ayal)le &c., and the said W. 
 agrees to take the said premises on the said terms and conditions, 
 was held to be a lease, and not merely an agreement for a lease. 
 {Sallett V. Wylie, 3 John. 44.) 
 
 So where A. by articles of agreement covenanted to let and hire 
 to B. a certain farm for the term of six years, from the Ist of April, 
 1807, to the 1st of April, 1813, on condition, and in consideration, 
 that B. should pay A. two hundred and fifty dollars on the first day 
 of April in each and every year during the term; this was held to 
 be a lease inpresenti, to commence on the 2d April, 1807, which 
 was the evident intention of the parties ; for if the term was to be 
 construed to commence on the 1st of April, 1807, the lessee w^ould 
 have to pay seven years' rent instead of six; and in case of B.'s be- 
 ing kept out of possession of the premises, his remedy would be 
 ejectment, under the law then in being, and not an action for a 
 breach of covenant. (TJiornton v. Payne, 5 John. 74.) 
 
 In the last mentioned case, the preposition "from" excludes the 
 day mentioned, as it did also in Wilcox v. Wood, (9 Wend. 346.) 
 In some cases it includes the day referred to; and in all these cases 
 the intention controls, where it can be gathered from other parts of 
 the instrument. The better way is, in all conveyances, to insert 
 the word inclusive or exclusive, after the mention of the day, ac- 
 cording as the parties wish to have it construed. This -svill often 
 obviate a controversy. 
 
 But letting land upon shares is not, technically speaking, a lease; 
 and the parties are merely tenants in common of the crop. {Cas- 
 well V. Districh, 15 Wend. 379. Bradish v. Schenck, 8 John. 151.) 
 So a person entering under a contract for a deed, is not a tenant; 
 nor entitled to notice to quit, nor liable to distress, while that rem- 
 edy remained, or assumpsit for the rent. On the non-performance 
 of his contract he was liable to be turned out as a trespasser, and 
 was, in that character, liable for the mesne profits. (Smith v. 
 Steivart, 6 John. 46.) 
 
 An agreement by A. and B., the latter to work for A., on his 
 farm, a year, for so much, and to be supplied with a house, is not 
 a lease, but creates the relation of master and servant. (Haywood 
 V. Miller, 3 Hill, 90.) So a contract for rooms and board made 
 with the keeper of a hotel, or boarding house keeper, does not ere-
 
 DURABLE LEASE. 425 
 
 ate the relation of landlord and tenant. ( Wilson v. Martin, 1 De- 
 nio, 602.) 
 
 A lease to A., his executors, administrators and assigns, forever, 
 was, before the revised statutes, held to be only a lease for life. 
 ( Williams v. Woodard, 2 Wend. 487.) If the lessor was, at the 
 time, the owner of the fee, it is believed, that under the pro^dsions 
 of the revised statutes, the word forever would carry the fee, not- 
 withstandinff the word heirs was not inserted as a word of limita- 
 tion, unless, indeed, other parts of the instrument would indicate 
 that only a Hfe estate was intended to be conveyed. (1 li. S. 748, 
 §§ 1 and 2.) 
 
 Although the proper definition of a lease embraces only such in- 
 struments of conveyance as transfer to the lessee a less estate than 
 is possessed by the lessor, thus leaving a reversion in him, yet we 
 have seen, in a preceding chapter, that grants in fee, reserving an 
 annual rent, with clause of distress, create a valid rent charge, not- 
 withstanding there is no reversion in the person entitled to it; and 
 that the covenant to pay such rent runs with the land, as well as 
 the condition of re-entry for its non-payment. (See ante, p. 82 d:c. 
 Van Rensselaer v. Hays, 5 Smith, 68-80, 2 Sug. 725, Perkins* 
 ed. top 2'>aging VII.) This species of conveyance is most generally 
 called a lease in fee, or durable lease, and is thus often denominated 
 in the adjudged cases and in the statutes. {Jackson v. Allen, 3 
 Coioen, 220. L. of 1805, ch. 98, p. 254. 1 R. L. 364, § 3. \ R. S. 
 748, § 25.) The law of 1860, ch. 396, ouacting that the act of 1805, 
 and its subsequent re-enactments, shall not apply to deeds of convey- 
 ance in fee made before the 9th April, 1805, nor to such deeds there- 
 after to be made, does not impair the common law rule on this sub- 
 ject, nor affect the usage that has prevailed in this state fi'om an 
 early period. Nor does it alter the name by which that species of 
 conveyance is commonly called. 
 
 With regard to the form of the instrument demising premises 
 from one person to another, it is usually an indenture, executed 
 under the hand and seal of the respective parties, both parts of 
 which, in such a case, are deemed originals. (Lewis v. Payn, 8 
 Cowen, 71.) A lease for more than one year, is required by the 
 statute of frauds, to be by deed or conveyance in writing, subscribed 
 by the party creating it. The same principle applies to the crea-
 
 426 LEASE— COVENANTS THEREIN. 
 
 tion of estates or interests in land, and to the granting, assigning, 
 surrendering or declaring the same, except hy operation of law, or 
 "by last will and testament. (2 It. S. 134, § 6.) 
 
 An oral lease for more than one year, though void by the statute 
 of frauds for the whole term, is good for one year if the lessee en- 
 ters, and creates an estate from year to year thereafter. {The Peo- 
 ple V. Bickert, 8 Cowen, 226. Schuyler v. Leggett, 2 id. 660.) 
 
 With regard to the paHies competent to make a lease it may, in 
 general, be said that all persons, natural or artificial, who are ca- 
 pable of being parties to a deed, and of which we have sufficiently 
 treated in preceding chapters, may make and accept a lease. There 
 are also some persons who are not authorized to convey land in fee, 
 without the order or authority of some tribunal, who may neverthe- 
 less demise the premises of w^hich they have the control for some 
 limited time, less than a fee. This is the case with religious incor- 
 porations under the general laws; with committees of lunatics and 
 habitual drunkards; with guardians, whether testamentary or ap- 
 pointed. But this branch of the subject will be treated in a subse- 
 quent chapter. {See post, ch. 7.) 
 
 It belongs more properly to a treatise on the law of landlord and 
 tenant, to notice the various questions which may arise under leases. 
 The limits of this work restrict us to a few only of the points which 
 should be particularly regarded. 
 
 1. In respect to the covenants which may be, or are usually in- 
 serted in leases, we have already, in the preceding chapter, brought 
 to the notice of the reader such of them as are usually inserted in 
 deeds, and discriminated between 'such as run with the land and 
 such as are in gross, or are obligatory only on the covenantor or his 
 representatives. Some of those covenants are applicable to leases. 
 Without repeating these, but referring the reader to the chapter in 
 which the subject is discussed, we propose now to treat of some of 
 the covenants usually inserted in leases, with the conditions, excep- 
 tions and reservations therein contained. 
 
 Covenants are of two kinds, express and implied. We defined 
 the difference between them in a preceding chapter, and adverted 
 to the difference in opinion between the late supreme court and the 
 late chancellor, on the question whether the statute which directs 
 that no covenant shall be implied in any conveyance of real estate 
 extended to a conveyance of a chattel interest or not. {See page 
 411.) Without undertaking to settle this question, it is proper
 
 EXPRESS AND IMPLIED COVENANTS. 427 
 
 to advert to a few sncli cases as have arisen and been decided on 
 the subject of implied covenants. 
 
 It has been held by the supreme court that there is no implied 
 covenant or warranty on the part of the lessor of a dwelling house 
 that the premises are tenantable. {Cleves v. WiUoughhy, 7 Hill, 
 83.) The learned judge who delivered the opinion in this case took 
 a distinction between a lease of a house for years and a demise of 
 ready furnished lodgings. With respect to the quality or condition 
 of property, he said that the maxim of caveat emptor applied; and 
 that, therefore, the purchaser took the risk of its quality and con- 
 dition unless he protected himself by an express agreement on the 
 subject. He mentioned as the only exception to that rule the sale 
 of provisions for domestic use; {Van Vranklin\. Fonda, 12 John. 
 468;) and a demise of ready furnished lodgings. {Smith \. Mar- 
 rahle, 1 C. '& Mas. 479.) To these he said the law implied a war- 
 ranty that the former are wholesome, and the latter free from 
 nuisance. 
 
 There is no implied covenant in a demise for years that the land- 
 lord shall repair. The tenant, when there are no covenants on the 
 subject, takes the premises for better or worse, and cannot involve 
 his landlord in expense for repairs without his consent. If through 
 default of repairs a municipal penalty is incurred, it falls upon the 
 tenant. {Mumford v. Broton, 6 Coiven, 475. The Ilayor &c. v. 
 Corliss, 2 Sandf. 301.) 
 
 The fact that none, or very few covenants, are ever implied in a 
 lease, renders it expedient that the parties should provide, by express 
 covenant, for such contingencies as may reasonably be anticipated. 
 These express covenants are extremely numerous. The first and 
 most important is that for the payment of rent. The words yield- 
 ing and paying, &c. constitute a covenant for the payment of rent, 
 {De Lancy v. Ganong, 5 Seld. 9,) and this covenant runs with the 
 land, whether the lease be for years or in fee ; and if it be inserted 
 in a lease, and be not qualified by any exception or condition, it 
 formerly bound the tenant to pay rent during the continuance of 
 the term, notwithstanding the premises were destroyed by fire, after 
 the commencement of the tenancy. {Hallett v. Wylie, 3 John. 44.) 
 This was the well settled doctrine of the common law, (3 Burr. 
 1638, per Lord Mansfield. Doe v. Sandham, 1 T. R. 705.) This 
 doctrine led to the insertion of covenants in leases, as to the party 
 who should be required to repair jn such cases, and to exceptions
 
 428 COVENANT TO REBUILD, 
 
 or conditions qualifying the covenant to pay rent, and making suit- 
 able provision for this contingency. The legislature, by the act of 
 April 13, 1860, ch. 345, provided for some of the cases which may 
 arise. By that statute it is enacted, that the lessees or occupants 
 of any building which shall, without any fault or neglect on tlieir 
 part, be destroyed, or be so injured by the elements, or any other 
 cause, as to be untenantable and unfit for occupancy, shall not be 
 liable or bound to pay rent to the lessors or owners thereof, after 
 such destruction or injury, unless otherwise expressly provided by 
 written agreement or covenant. And the lessees or occupants may 
 thereupon quit and surrender possession of the leasehold premises, 
 and of the land so leased or occupied. This is merely making 
 provision by general law for a contingency which could be suffi- 
 ciently guarded against by proper stipulations in the lease. In well 
 considered leases of buildings there is usually a covenant on the 
 part of the lessor, that in case the premises shall be partially dam- 
 aged by fire, the same shall be repaired as speedily as possible, at 
 the expense of the landlord; that in case the damage shall be so 
 extensive as to render the premises untenantable, the rent shall 
 cease until such time as the same shall be put in complete repair; 
 but in case of the total destruction of the premises by fire or other- 
 wise, the rent shall be paid up to the time of such destruction, and 
 then and from thenceforth the lease shall, at the option of the ten- 
 ant, cease and come to an end. [See the forms in the Appendix.] 
 The covenants for rebuilding and repairing run with the land, 
 and are obligatory not only upon the lessor but upon his assigns. 
 Of course the landlord, whoever he may be, is bound by it. In 
 Allen V. Culver, (supra,) the lease contained a covenant that in case 
 of damage to the buildings on the demised premises by fire rendering 
 the same untenantable, the lessor would repair. It was held that 
 the grantee of the reversion was bound to rebuild houses which 
 were wholly destroyed by fire. In that case, too, the lease embraced 
 premises on which there were several buildings, and it contained in 
 addition to the covenant last mentioned, a provision that the rent 
 should cease for such part of the buildings as should be rendered 
 untenantable on account of injury by fire, while they should remain 
 untenantable, and a part of the buildings were destroyed by fire, 
 and the landlord neglected to rebuild; it was held that the cove- 
 nants to pay rent and to repair were independent, and that the 
 lessee was bound to pay a proportionate part of the rent on account
 
 COVENANT TO REPAIR, &o. 429 
 
 of the buildings left uninjured, notwithstanding the default in re- 
 buikling. The act of 1860, had it been in force at the time the 
 case of Allen v. Culver arose, would not have aided the tenant; for 
 the statute extends only to cases where the whole premises are de- 
 stroyed, and does not seem to contemplate a case of a destruction 
 of one out of several buildings included in the same lease, when tlie 
 others are left uninjured, and the lease provides for a stojjpage of 
 the rent only as to those which are destroyed. 
 
 The covenant to keep the buildings in repair is usually inserted 
 in such form as to bind the lessee and his assigns to that duty. 
 And the latter is frequently bound by covenant to yield up the 
 premises at the end of the term in good repair. If the covenant be 
 that the tenant shall keep the premises in repair during the tenn, 
 and at the expiration thereof yield them up in like condition, and 
 the tenant permits them to go to decay, and omits to make necessary 
 repairs, the lessor or his assigns may bring an action forthAvith, and 
 is not bound to wait until the expiration of the term. If the cov- 
 enant was merely to leave the premises in good repair, probably no 
 action could be maintained till the expiration of the term, (ScMef- 
 ftlin V, Carpenter, 15 Wend. 400.) 
 
 Sometimes the lessor binds himself and his heirs to pay to the 
 tenant, at the end of the term, on his sun-endering the same in 
 good condition, for such buildings as he shall have erected on the 
 same premises, or for such as may remain thereon at that time. 
 Such a covenant does not bind the landlord to pay for ordinary re- 
 pairs, but only for buildings erected by the tenant. This covenant 
 runs with the land, and enures to the benefit of the assignee of the 
 lessee, and enables the latter, at the end of the term, to recover for 
 erections made by a previous tenant. {Lametti v. Anderson, 6 
 Cowen, 302, Van Rensselaer v. Penniman, 6 Wend. 569.) 
 
 When the lessee covenants to surrender up the possession of the 
 premises at the expiration of the lease, in the same condition they 
 are in at the date of the lease, natural wear and tear excepted, but 
 there is no covenant to repair or rebuild; and the buildings are de- 
 stroyed by fire, the tenant is not bound to put up new buildings in 
 the place of those destroyed. If there be, in such a case, any fix- 
 tures attached to, and forming a part of, the demised premises; and 
 they become recovered by the fire, they do not thus lose their iden- 
 tity; but are the property of the landlord, and the tenant is liable
 
 430 COVENANT FOR QUIET ENJOYMENT. 
 
 to an action if he carries them away. ( Warner v. Hitchins, 5 
 Barb. 666.) 
 
 In some cases the lessor and lessee agree for a valuation of the 
 improvements at the end of the terra, by persons to be nominated 
 by them. Both parties must concur in the aj)pointment of the ap- 
 praisers to make it obligatory; and if the lesKor refuses to join in 
 the aj)pointment, the lessee alone cannot appoint them, and his 
 only remedy is by action to recover their value, which in such case 
 must be estimated by the jury. {Holliday v. Marshall, 7 John. 
 211.) 
 
 A covenant to renew the lease at the end of the term is a cove- 
 nant, we have seen, that runs with the land ; but it does not require 
 that the renewed lease should contain a similar covenant. {Pig got 
 V. Mason, 1 Paige, 412.) A covenant to renew a lease implies the 
 same term and the same rent, but it does not necessarily imply that 
 the renewed lease should contain the same covenants as in the ori- 
 ginal lease. The covenants are not indispensable to a lease. And 
 hence, when parties stipulate for a renewal of the lease, they should 
 specify in their covenant not only the duration of the term and the 
 amount of rent, but also what covenants should be contained in the 
 renewed lease. {Rutgers v. Hunter, 6 John. Ch. 218.) 
 
 The payment of taxes and other assessments should, in general, 
 be provided for in the lease. This burden is usually assumed by 
 the tenant, and it is, therefore, taken into consideration in fixing 
 the amount of the rent. Sometimes the lessor himself assumes that 
 burden; but in either case, the lease itself should contain the agree- 
 ment of the parties on the subject. The lessee's covenant to pay 
 assessments runs Avith the land, and binds the assignee of the term. 
 If the covenant was on the part of the lessor, the same consequences 
 follow. A covenant to pay all assessments for which the premises 
 shall be liable, includes an assessment imposed for opening a street, 
 although it was not authorized by any law existing at the time of 
 the demise. {Post v. Kear7iy, 2 Comst. 394. Osioald v. GiJfertf 
 11 John. 443. Corporation of N. Y. v. Cushman, 10 id. 96. 
 Bleeher v. Ballon, 3 Wend. 263.) 
 
 The usual covenant for quiet enjojTuent should be inserted; at 
 least until it is settled that such covenant can be implied in a lease 
 for years, notwithstanding the statute abolishing implied covenants. 
 {See Kinney v. Watts, supra, and Tone v. Brace, supra.) 
 
 A covenant on the part of the lessee not to assign or underlet the
 
 COVENANTS AGAINST ALIENATION. 431 
 
 whole or any part of the demised premises during the term or any 
 part thereof, without the consent in writing of the lessor or his as- 
 signs, is frequently inserted in leases. If the lease be by its terms 
 assignable only with the consent of the lessor, an assignment of a 
 part of the premises with the consent of the landlord is not a sur- 
 render; and the lessee remains liable for any act of the assignee 
 which amounts to a breach of any of the covenants in the lease. 
 {Jackson v. Broivnson, 7 John. 227.) 
 
 To constitute an assignee of the lease, the assignment must be 
 of the whole term and estate, though it may be of but part of the 
 premises. (Van Rensselaer v. Gallup, 5 Denio, 454.) One who 
 takes a conveyance of the whole term in any part of the premises, 
 or in an undivided part of any portion of the premises, is an as- 
 signee, and liable to a portion of the rent. {Childs v. Clarh, 3 
 Barh. Ch. 52.) The purchaser under a mortgage of all the estate 
 of a lessee, is an assignee. (Kearney v. Post, 1 Sand/. 105.) 
 
 The covenants in a lease are sometimes protected by a condition, 
 avoiding the estate and working a forfeiture in case of a breach by 
 the tenant. The breach of such condition makes the estate voida- 
 ble at the election of the lessor or his assigns. The condition of 
 forfeiture may be inserted for the non-payment of rent, or for any 
 other default, or improper conduct of the tenant. And an estate 
 becomes forfeited by breach of a condition subsequent by a grantee, 
 though the grantee be an infant or feme covert. (Norman v. 
 Wells, 17 Wend. 136. Clark v. Jones, 1 Den. 516. Garret v. 
 Scouter, 3 id. 334.) 
 
 Covenants and conditions in restraint of alienation could at com- 
 mon law only be imposed by persons having at least a reversion, 
 or possibility of reversion, therein. A resel-vation in a conveyance 
 in fee, of a pre-emptive right of purchase by the grantor or his 
 heirs, &c., and the reservation by the grantor of a right to a portion 
 of the sale money on each sale by the grantee, &c., are void as re- 
 pugnant to the estate granted, and as illegal restraints upon the 
 power of alienation. These principles apply as well to leases in fee, 
 reserving rent, as to absolute conveyances. (DePeyster v. Michael, 
 2 Seld. 467.) But the right of re-entry for non-payment of rent 
 may be reserved upon a conveyance in fee. ( Van Rensselaer v. 
 Ball, 5 Smith, 100. Same v. Hays, Id. 68.) 
 
 There are various other covenants and conditions inserted in 
 leases, according to the agreements of the parties. Enough ha3
 
 432 WHO MAY MAKE LEASES. 
 
 been said on this brancli of the subject to awaken the attention of 
 the reader to the subject. The precedents in the Appendix will 
 exhibit other covenants, and the circumstances and condition of 
 parties will perhaps render others expedient or necessary. 
 
 With regard to the duration of the estate created by lease, we 
 have no restriction save that contained in the 14th section of the 
 1st article of the constitution of 1846, which provides that no lease 
 or grant of agricultural land for a longer period than twelve years 
 thereafter made, in which shall be reserved any rent or service of 
 any kind, shall be valid. This restriction is not applicable to ur- 
 ban or village leases, or to any others except those intended for ag- 
 ricultural purposes. The constitution of 1846 was framed during 
 the period when the anti-rent excitement, which prevailed for 
 many years in certain portions of the state, was fresh in the recol- 
 lection of the delegates; and the object doubtless was to prevent 
 the formation of long leases for agricultural purposes, and to en- 
 courage the tenants in their efforts to acquire the fee. Beyond this 
 restriction, there is no legal objection that will prevent the owner 
 of land in fee from granting any lease at will, or for years, or for 
 life, or for any other period that may suit the convenience of the 
 parties. 
 
 A tenant by the curtesy or in dower, or other tenant for life, can 
 make no lease that will be valid after the death of the lessor. The 
 derivative estate must fall \\dth that out of which it was created. 
 
 A tenant for years may assign his whole term, or he may make a 
 lease to a third person of a less estate than his own. 
 
 The act of 1855, chapter 230, in relation to conveyances and de- 
 vises of personal and real estate for religious purposes, forbids the 
 making of any grant, conveyance, devise or lease, to any person and 
 his successor or successors in any ecclesiastical office. The object 
 of the statute evidently was to induce all the religious denomina- 
 tions to cause themselves to be incorporated under the general act, 
 and the amendments thereto, so that the temporalities of the church 
 might be under the control of the people, and not be subject ex- 
 clusively to ecclesiastical management. Though the law is general, 
 it affected only the Roman Catholics, who prefeiTed to retain the 
 title of the property, which was dedicated to religious purposes, in 
 the hands of their bishop. This was believed to be contrary to the 
 policy of our laws. 
 
 Guardian in socage had, at the common law, the custody of the
 
 EXCHANGE AND PARTITION. 433 
 
 land, and was entitled to the profits for tlie benefit of the heirs. 
 He might lease the land, avow and bring trespass in liis own name. 
 {Byrne v. Van Hoesen, 5 John. 66. Field v. ScUeffelin, 7 John Ch. 
 150. Holmes v. Seely, 17 Wend. 75.) On the death of the father, the 
 mother succeeded as such guardian, and could in that character 
 enter on the lands of the heirs. {Jackson v. De Watts, 7 John. 
 157.) At common law this species of guardianship belonged only 
 to such blood relative of the infant as could not by possibility in- 
 herit from him. Under the operation of our laws of descent, which 
 allow both the father and mother, in certain contingencies, to inherit 
 from the child, this species of guardianship has disappeared. But 
 a substitute for it has been provided by the revised statutes, 
 (1 R. S. 718, § 5. 2 id. 153, § 20.) 
 
 A lease executed by a testamentary guardian, or a guardian ap- 
 pointed under the statute, should not be made for a longer period 
 than the full age of the infant; and if made for a longer time, will 
 be void for the excess. 
 
 Executors and administrators may dispose of terms for years vested 
 in them in right of the testator or intestate; and may lease the 
 same for a less number of years; the rent so reserved will be assets 
 in their hands. {Bac. Ahr. Lease, /, 7.) 
 
 Joint tenants and tenants in common may either make leases of 
 their undivided shares, or may join in a lease of the whole. {Id. 
 No. 5.) 
 
 All persons, whether natural or artificial, though they be idiots, 
 lunatics, infants or manied women, are capable of being lessees. 
 This is for the reason that a lease is always presumed to be benefi- 
 cial to the person who takes it. When the lessee labors under dis- 
 ability at the time the lease is made, he may on the removal of the 
 disability avoid such lease. A continued occupancy after the remo- 
 val of the disability, would render the lease good. {Cruise's Dig. 
 tit. Lease, 93.) 
 
 Section III. 
 0/ Exchange and Partition. 
 
 1. Exchange is a mode of conveyance not used in this state. The 
 object can be better accomplished by the grant, or bargain and sale 
 by one party to the other, of the parts intended to be exchanged. 
 
 The statute in relation to dower seems, however, to contemplate 
 
 Will.— 28
 
 434 " EXCHANGE DEFINED. 
 
 the existence of this form of alienation. It is provided that if a 
 husband, seised of an estate of inheritance in lands, exchanges them 
 for other lands, his widow shall not have dower of both, but shall 
 make her election to be endowed of the lands given or of those taken 
 in exchange. (1 R. S. 740, § 3.) 
 
 An exchange is defined to be a mutual grant of equal interests, 
 the one in consideration of the other. The estates exchanged 
 must be equal in quantity; not of value, for that is immaterial, but 
 of interest; as fee simple for fee simple, a lease for twenty years for 
 a lease for twenty years, and the like. {Per Gridley, J. in Wilcox 
 V. Randall, 7 Barh. 638, quoting 2 Bl. Com. 323.) 
 
 Coke says that there are five things necessary to an exchange : 
 1. That the estates given be equal. 2. That this word excambium, 
 (exchange,) be used, which is so individually requisite, as it cannot 
 be supplied by any other word, or described by any circumlocution. 
 3. That there be an execution by entry or claim in the life of the 
 parties. 4. That if it be of things that lie in gi'ant, it must be by 
 deed. 5. If the lands be in several counties, there ought to be a deed 
 indented, or if the things lie in grant, albeit they be in one county. 
 (Co. Lit. 51 h.) 
 
 In Wilcox V. Randall, {stqwa,) the supreme court held that 
 the word exchange, as used in the foregoing section of the revised 
 statutes relative to dower, is to receive the same interpretation 
 which is applied to it, when used at common law, in reference to 
 that species of conveyance; and therefore, to deprive the wife of 
 her dower in lands conveyed by her husband, or to put her to an 
 election, under the provisions of the statute, there must be a mutual 
 grant of equal interests in the respective parcels of land, the one in 
 consideration of the other. In that case it was held, that a trans- 
 fer of a mere equitable interest in 75 acres of land, derived under a 
 lease in perpetuity, for 11 acres of land and $700 in other property, 
 did not constitute a legal exchange. {See also Runyan v. Stew^ 
 art, 12 Barh. 542.) 
 
 The word exchange implied a warranty; and therefore, if either 
 party was evicted of the premises taken in exchange, through de- 
 fect of the other's title, he shall return back to the possession of his 
 own by virtue of the implied warranty. Entry must be made by 
 both parties in their lifetime; and if either party died before entry, 
 the exchange was void. (2 Bl. Com. 323.) 
 
 The revised statutes, we have already seen, abolished all lineal
 
 EXCHANGE. PARTITION. 435 
 
 and collateral warranties, and directed also that no covenant should 
 be implied in any conveyance of real estate, whether such convey- 
 ance contain special covenants or not. (1 R. S. 738, 739, §§ 140, 
 141.) If an exchange, in its common law sense, can be made at 
 all, it must, to be effectual, contain a special covenant with respect 
 to title. 
 
 In England it is said that an exchange by lease and release is now 
 the preferred mode, since the statute of uses executes the possession 
 instantly upon the execution of the deed. With us, if that mode 
 of conveyance be adopted, or that by grant or bargain and sale, no 
 entry would be required and no covenant implied. (2 Bl. Com. 
 323, notes, Sharsivood's ed. Butler's 7iote to Co. Litt. 271 b, n. 1.) 
 With respect to a deed of partition it may be observed that it 
 was anciently made in a deed to which all the joint tenants or ten- 
 ants in common or parceners were parties. (See several forms in 
 4 Newnam's Conveyancer, 570 et seq.) In this state it has been 
 repeatedly held that a parol partition between tenants in common, 
 followed up by possession, is valid and will sever the possession. 
 (Jackson v. Harder, 4 John. 202. Sa7ne v. Bradt, 2 Caincs, 174. 
 Same v. Vosbvrgh, 9 John. 270. Sa7ne v. Livingston, 7 Wend. 
 136, 141. Corhin v. Jackson, 14 id. 619. Jackson v. Luquere, 5 
 Coiven, 221. Bool v. 3Iix, 17 Wend. 119. Bijers v. Wheeler, 25 
 id. 434) 
 
 It is more usual to make partition by some instrument in writ- 
 ing, under seal. When large tracts of land were granted, as was 
 formerly the case to several, the practice was to have the same sur- 
 veyed and laid out into lots, regularly numbered; and then, either 
 amicably or by commissioners agreed upon, divide the lots amongst 
 the proprietors, and all unite in a deed of partition, assigning and 
 releasing to each proprietor the portion belonging to him. When 
 partition is made in this way, the parties, after a lapse of above 
 twenty years, will be concluded by it, and will not be permitted to 
 show that the survey and partition were erroneous. {Jackson v. 
 Eashrouck, 3 John. 331.) 
 
 A mutual grant by one party to the other of the share to which 
 the latter is entitled, will convert the joint estate into an estate in 
 severalty. This is the preferable mode where the parties are few 
 in number. Thus if there be three parties to the common estate, 
 there must be a deed or a release from the two to one. In a joint
 
 436 DERIVATIVE COITV'EYANCES. 
 
 estate held by two, mutual grants to each other, or releases of the 
 share allotted to each, should be given. 
 
 The mode of making partition of lands, tenements and heredita- 
 ments, held or possessed by joint tenants or tenants in common, 
 when the parties are unable to agree, or any of them labor under 
 disability, is prescribed by the revised statutes. {Code of Proce- 
 dure, § 448. 2 R. S. 316.) This belong-s rather to a treatise on 
 the practice of the courts, than to our present subject, and enough 
 has been said about it in a former part of this work. {Part 1, ch. 7.) 
 
 Section IY. 
 
 Of the derivative conveyances, Release, Confirmation, Surrender, 
 Assignment and Defeasance. 
 
 The conveyances which have been treated in the three preceding 
 sections are the oy^iginal conveyances at common law. We propose 
 now briefly to notice the above derivative conveyances. Where a 
 man has the right of property and another is in possession claiming 
 adversely, the real owner cannot grant or convey the land to a 
 stranger, but may pass his estate in the land to the party thus in 
 possession, by an instrument called a release. A release therefore 
 is a conveyance of a right to a person in possession. A release to 
 a person out of possession is inoperative. (Bennett v. hnoin, 3 
 John. 363.) It is said that a release may operate five ways : 1. By 
 way of enlarging an estate. Thus, if he who has the remainder in 
 fee releases to the tenant for a term of years or for life, in possess- 
 ion, and his heirs, this vests in the particular tenant the fee simple. 
 {Litt. § 465.) To give operation to this release as such, the tenant 
 must be in possession of some estate for the release to operate upon. 
 2. By way of 2^o.ssing an estate, as where one parcener or joint ten- 
 ant releases to the other, the latter becomes seised in severalty of 
 the whole. In these two cases there must be a privity of estate 
 between the releasor and releasee ; that is, both estates together 
 must make the fee. 3. By way of passing a right; as if a man be 
 disseised, and he who is disseised releases to the disseisor all his 
 right. This changes the estate of the disseisor, which at first was 
 tortious, into a rightful estate. This release to be effectual must 
 be to one who has the whole right, or a fee simple. 4. By way of 
 extinguishment. {Litt. §§ 479, 480.) This is where he to whom 
 the release is made cannot lease that which is released to him, as
 
 RELEASE. CONFIRMATION. SURRENDER. 437 
 
 where a release is made to the tenant of the land of a rent charo-e 
 or common of pasture.' {Id. § 480.) 5. By way of entry and fecrtF- 
 ment, as if there be two joint disseisors and the disseisee releases 
 to one of them, or becomes sole seised, and shall keep out his former 
 companion. (2 Bl. Com. 325.) 
 
 The operative words of a release are remise, release and forever 
 quit-claim. (Lift. § 445.) Such a conveyance, merely remisin- 
 releasmg and quit-claiming to another, his heirs and assigns for- 
 ever, though technicaUy a release, has been held in this state to be 
 a good conveyance by way of bargain and sale, and sufficient to 
 pass the fee, though the releasee was not in possession. (Jackson 
 V. Fish, 10 John. 456. Beddoe v. Wadsivorth, 21 Wend 120 
 Lynch V. Livingston, 2 Seld. 42.) It is, therefore, under the re- 
 vised statutes, good as a grant. And it is for this reason that a 
 release by one tenant in common to his companion will be good* 
 because, though they have distinct freeholds, the one may convey 
 to the other, which is well effected by the release. 
 
 A confirmation bears a strong resemblance to a release. It is 
 defined by Coke to be a conveyance of an estate or right in esse, 
 whereby a voidable estate is made sure and unavoidable, or where- 
 by a particular estate is increased. (Co. Litt. 295 h.) The opera- 
 tive words of this conveyance are, according to Littleton, give 
 grant, ratify, approve and confirm. (Litt. §§ 515, 531 ) A con- 
 firmation cannot work upon an estate tliat is absolutely void An 
 example of one branch of the definition is, if lessee for life should 
 make a lease for thirty years, and die during the term: here the 
 lease for thirty years is voidable by the reversioner. Yet if he had 
 confirmed the estate of the lessee, in the lifetime of the tenant for 
 lite, the estate would be no longer voidable but sure. 
 
 A surrender is a conveyance, the converse of a release. The re- 
 lease operates by the greater estate descending upon the less The 
 surrender is the falling of the less estate into the greater. It is de- 
 fined by Coke, to be a yielding up of an estate for life or years to 
 him that hath an immediate estate in reversion or remainder where- 
 in the estate for life or years may drown by mutual agreement be- 
 tween them. The technical and proper words of this conveyance 
 are, surrender and yield up;" but any other form of words which 
 manifests the intention of the parties, will operate as a surrender
 
 438 SURRENDER. 
 
 Formerly, a surrender might be made without deed, as by a tenant 
 for life yielding up the ppssession to him in remainder or reversion, 
 which was always favored in law. (Co. Litt. 338 a.) But now, 
 by the statute of frauds, a surrender, like other conveyances of an 
 estate or interest in land, is required to be in writing, subscribed by 
 the party executing the same, unless in cases where it is accom- 
 plished by act or operation of law. (2 R. S. 135, § 6.) An in- 
 stance of a surrender by operation of law is contained in Livings- 
 ton V. Potts, (16 John. 28.) In that case it was held that where a 
 lessee for years, for life, or pur auter vie, accepts a new lease or a 
 o-rant in fee of the same premises, this, without any actual surren- 
 der of the old lease, is a surrender in law, or an implied surrender 
 of it; and if the former lease gave the lessee a right of common in 
 the other lands of the lessor, and no such right was granted by the 
 second lease, it was further held that the common was extinguished 
 by the surrender. 
 
 To make a surrender good, the person who surrenders must be 
 in possession; and the person to whom the surrender is made must 
 have a greater estate, immediately in remainder or reversion, in 
 which the estate surrendered may merge. This is well illustrated 
 by the case of Springstein v. Schermerhorn, (12 John. 357.) In 
 that case, it appeared that a tract of 400 acres of wood land was 
 leased by the proprietor of the manor of Kensselaer^vick, in 1707, 
 to A. in fee, reserving an annual rent, and granting reasonable es- 
 tovers out of the woods of the manor, &c. In 1763, A. granted to 
 his son B. part of the premises, with common of estovers, out of 
 any part of the wood land of A.; and afterwards devised to his sons 
 C. and D. the residue of the said tract, who, on the death of the 
 devisor, entered and made partition. In 1791, an agi-eement was 
 made between B., C. and D. and other tenants of the manor, with 
 the then proprietor, by which the tenants agreed to surrender or 
 release their former leases, and take new leases of the proprietor at 
 a certain rent, and new leases were accordingly accepted, for their 
 respective lands, by B., C. and D. It was held, that as there was 
 no reversion in the proprietor of the manor, the acceptance of new 
 leases did not operate as a surrender of the former estate, but that 
 the lessees, having accepted new leases from the proprietor, in pur- 
 suance of the agreement, a release of the old was to be presumed. 
 And further, that B. was thereby estopped from all claim under
 
 ASSIGNMENT. 439 
 
 the lease to him; and that for these reasons, the right granted to 
 B. to take estovers from the other lands of A. was gone. 
 
 To make a valid surrender there must be a i)rivity of estate be- 
 tween the surrenderor and surrenderee. 
 
 The possession necessary to enable a party to execute a deed of 
 surrender need not be an actual pedis possessio. A conveyance of 
 wild and uncultivated lands gives a constructive seisin thereof in 
 deed to the grantee, and attaches to him all the legal consequences 
 and remedies incident to the estate. {Jackson v. Sellich, 8 John. 
 262. Same v. Howe, 14 id. 405. Bradstreet v. Clarke, 12 Wend. 
 602. Jackson v. Johnson, 5 Coioen, 97.) 
 
 An assignment is properly a transfer of some particular estate or 
 interest in lands, but is usually applied to the transfer of a tenn 
 for years, or a bond and mortgage, judgment or other security. It 
 differs from a derivative lease only in this, that by such lease the 
 lessor conveys an interest less than his own, reserving to himself a 
 reversion; whereas in an assignment the assignor parts with the 
 whole interest in the thing assigned, and puts the assignee in his 
 place. 
 
 The proper technical words of an assignment are, " assign, trans- 
 fer and set over." But any other words that indicate the intent, 
 as give, grant, bargain and sell, will have that effect. No consid- 
 eration is necessary to support the assignment of a term for years; 
 for the payment of the rent, or other burdens attending the estate,' 
 are sufficient to vest the estate in the assignee. 
 
 Before the statute of frauds, chattels real might be assigned by 
 parol; as personal property, or choses in action may be now by de- 
 livery only. (Ford v. Stuart, 19 John. 342. Briggs v. Don, Id. 
 95. Prescott v. Hull, 17 id. 284. Canfield v. Hunger, 12 id. 284.) 
 But the statute of frauds, which requires a deed or note in writino- 
 subscribed by the party, to render valid the alienation of an estate 
 or interest in lands, embraces assignments among the instruments 
 thus required to be in writing. (2 R. S. 135, § 6.) 
 
 The lessor may assign the rent without the reversion. (JDema^ 
 rest V. Willard, 8 Cowen, 206.) 
 
 With some exceptions created by the statute or the agreement 
 of the parties, every estate and interest in lands and tenements 
 may be assigned; and this is applicable also to an estate in incor- 
 poreal hereditaments, as rents, &c. Thus, by the statute relative
 
 440 DEFEASANCE. 
 
 to uses and trusts, section 63, no person beneficially interested in a 
 trust for the receipt of the rents and i)rofits of lands, can assijrn, or 
 in any manner dispose of such interest; but the rights and interests 
 of every person for whose benefit a trust for the payment of a sum 
 in gross is created, are assignable. Enough has been said on this 
 subject in the chapter on trusts. 
 
 The beneficial interest of a cestui que trust in the income of a 
 fund for the support and maintenance, under a valid trust, which 
 would have been invalid if created after the revised statutes, is 
 transferrible by him, but the beneficial interest of a cestui que trust 
 in rents and profits is inalienable by statute. {Bryan v. Knicker- 
 hacker, 1 Barb. Ch. 409. Wood v. Wood, 5 Pairje, 596.) 
 
 A naked power is not assignable, but a power coupled with an 
 mterest may be assigned. {Osgood v. Franklin^ 2 John. Ch. 1. 
 14 John. 527.) 
 
 A defeasance is a collateral deed made at the same time with a 
 grant or other legal conveyance, containing certain conditions, upon 
 the performance of which the estate created by such deed may be 
 defeated. The difference between a condition and a defeasance is 
 that the first is contained in the deed, and the last in a separate 
 deed, generally executed at the same time. "We have seen in an- 
 other place that the defeasance need not be executed at the same 
 time as the deed, but may be made at a subsequent period. And 
 where a deed has been by mistake made absolute in its terms, when 
 intended to have been a mortgage, that a defeasance subsequently 
 executed will be effectual to correct the error. {Dunham v. Day, 
 2 John. Ch. 182. 15 John. 555.) 
 
 A vnriting to operate as a defeasance to a deed must be of as high 
 a nature, and must therefore be under seal. {Coke's Litt. 236 h. 
 Kelleran v. Brown, 4 Mass. Rep. 443. Flagg v. Mann, 14 Pick. 
 479. Eaton v. Green, 22 id. 530.) 
 
 Section V. 
 Of the Conveyances which owe their Origin to the Statute of Uses. 
 
 We mentioned in the introduction of this chapter, that there 
 were five of these instruments, which were derived from the statute 
 of uses. 
 
 1. The covenant to stand seised to uses. This was a voluntary con-
 
 BARGAIN AND SALE. 441 
 
 vej'ance entered into in consideration of marriage. It was only 
 made use of between near relations upon consideration either of 
 marriage or blood. If made upon a pecuniary consideration, it has 
 been upheld as a bargain and sale. This conveyance is obsolete in 
 England, and probably does not exist at all in this state, at the 
 present day. It is mentioned only because it formerly was employ- 
 ed amongst our conveyances, and is sometimes mentioned in our 
 early reports. 
 
 The next of these conveyances is the hargain and sale, which is 
 by far the most common mode of alienation in this state. It is a 
 contract by which a person conveys his lands to another, for a pe- 
 cuniary consideration, in consequence of which a use arises to the 
 bargainee, and the statute immediately vests the possession. 
 
 It is well settled, upon authority, that a deed of bargain and sale, 
 without any pecuniary consideration, is void. (Jackson v. Sehring^ 
 16 John. 515 Same v. Caldwell, 1 Coiven, 622.) 
 
 It is not necessary that the consideration should be money. 
 {Sjjalding v. Hallenheck, 30 Barb. 292, 296.) It must, however, 
 be a valuable consideration to the bargainor to raise a use, a quid 
 2yro quo. {Jackson v. Pike, 9 Coiocn, 69.) In the last mentioned 
 case, the deed was to the supervisors of the county of C, and the 
 consideration was expressed to be, " as well for and in consideration 
 of accommodating the said parties of the second part with a proper 
 and convenient site for erecting a court house and jail for said 
 county, as for increasing the value of property owned by the said 
 parties of the first part, adjacent to the premises granted." This 
 was held by the supreme court to be a valuable consideration, and 
 that the deed was valid as a deed of bargain and sale. The chief 
 justice said, the deed was given in consideration that a court house 
 and jail should be built upon the land; which was done, and the 
 grantors' lands were, in consequence, immediately and materially, 
 enhanced in value by fixing the site, which was done upon the ex- 
 ecution of the deed. 
 
 That a valuable consideration is necessary in a deed of bargain 
 
 and sale, is established by all the cases. In addition to those cited 
 
 supra, see also Jackson v. Florence, (16 John. 47;) Same v. De- 
 
 lany, (4 Cowen, 427.) 
 
 The words /or value received are sufficient to raise a use. They
 
 442 BARGAIN AND SALE. 
 
 are evidence of a pecuniary consideration. (Jackson v. Alexander, 
 
 3 JoJm. 484. Saine v. Hoot, 18 id. 60 ) 
 
 It is not indispensable that the consideration should be expressed 
 in the deed; though it is always most advisable to insert it in the 
 instrument. If none be expressed, and a valuable consideration be 
 proved, it is sufficient. (Jackson v. Fish, 10 id. 456. Spalding v. 
 HaUenhack, 30 Barb. 292, 296.) 
 
 No precise form of words are required to raise a use. The proper 
 and technical words are " bargain and sell;" but any other words 
 that would have been sufficient to raise a use, upon a valuable con- 
 sideration, before the statute, are now sufficient to constitute a val- 
 id bargain and sale. Thus, the words " remise, release, and forever 
 quit-clai7n," or the words " release and assign," have been held to 
 be sufficient to raise a use. (Jackson v. Fish, supra.) The words 
 " make over and grant" have been held sufficient to pass lands by 
 way of bargain and sale. (Jackson v. Alexander, supra. Lynch 
 V. Livingston, 2 Seld. 422.) 
 
 A deed of bargain and sale, founded on a pecuniary considera- 
 tion, to take effect in future, is effectual. (Jackson v. McKenny, 
 3 Wend. 233.) 
 
 In a deed of bargain and sale, a use can be limited to no other 
 person than the bargainee, in whom the legal estate can be executed. 
 (Jackson v. Cary, 16 John. 302. Same v. Myers, 3 id. 388.) 
 
 A rent may be reserved upon a conveyance of bargain and sale, 
 and it is a sufficient consideration to support it. The consideration 
 sufficient to support a bargain and sale has become, says Nelson, J. 
 in Rogers v. Eagle Fire Ins. Co. (9 Wend. 619,) purely technical, 
 without substance or value, and of course it is not important 
 that courts should be over astute in the enforcement of the rule. 
 A penny, a pepper corn, or red rose, has generally been adjudged a 
 good consideration, by which he means a sufficient consideration. 
 In the foregoing case, where A. by a deed poll, "in consideration 
 of the performance hereinafter mentioned," granted all his estate, 
 real and personal, to B. in fee, upon condition that B. should suffer 
 and permit A. to remain in possession, and to use and enjoy all the 
 said estate during his natural life, without yielding and papng any 
 thing therefor; and that at the decease of A. the grantee should 
 pay unto C. the sum of £100, and that during the natural life of 
 A., the grantee should provide him with a maintenance; and in the 
 deed was contained a clause in these words : "And the said B.
 
 LEASE AND RELEASE. 443 
 
 is to occupy and be in possession of my houses situate at the corner 
 of Eagle street, for which he is to alloio me £60 a year during my 
 natural life;" and then, after some furtlier provisions in relation 
 to the management of the estate, the deed concludes with a clause, 
 that/rom aiid after the decease of A., the grantee and his heirs 
 shall hold and enjoy the premises by the deed given and granted, 
 and dispose thereof to his and their own proper use; it was held 
 that the deed as to the house at the corner of Eagle street was valid 
 and operative as a conveyance to B. for the life of A, subject to rent, 
 with a remainder to him in fee without rent. And it was further 
 held that the deed might well be considered a bargain and sale, 
 under the statute of uses as to the house at tlie corner of Eagle 
 street, conveying a freehold in futiiro, the reservation of £60 a year 
 during the life of the grantor being a .sufficient consideration to 
 raise the use. 
 
 A bargain and sale, we have seen, is allowed still to be used as a 
 mode of alienation, but it is deemed a grant under the statute. 
 The principles which govern the one are applicable to the other. 
 We have shown elsewhere some of the changes introduced into the 
 revised statutes relative to conveyances, which it is not necessary to 
 repeat. Most of them were borrowed from the decisions of the 
 courts growing out of the conveyances to uses. {Ste note to 2 
 Cruise's Dig. ch. 9, tit. 32, § 1, Greenl. ed. 2 Preston on Conv. 475 
 to 479.) What has been said on the subject of deeds, the proof and 
 acknowledgment and the recording thereof, appertains as well to the 
 deed of bargain and sale as to the gi-ant, or any other conveyance. 
 
 The lease and release is another mode of conveyance, which owes 
 its origin to the statute of uses. It was formerly the most frequent 
 instrument of assurance, but it fell into disuse in 1788, and is at 
 present superseded by other and more simple assurances. It is 
 however preserved by the revised statutes, and permitted to be used 
 the same as formerly, but it is denominated a grant. It is in fact 
 a bargain and sale for a year of the premises intended to be con- 
 veyed, and a common law release, operating by way of enlarging 
 the estate. It was introduced originally in England to avoid both 
 the statute of enrollment and the necessity of livery of seisin. The 
 mode was for the vendor to convey to the vendee the estate to be 
 conveyed by a bargain and sale for one or more years, and after the 
 entry of the lessee, a deed of release of the inheritance was executed
 
 444 DEED TO LEAD USES. 
 
 to him in fee simple. The statute of uses transferred to the lessee 
 the possession without an actual entry, and then the release of the 
 reversion carried to the party whatever estate the releasor possessed. 
 The lease and release were treated in the law as one conveyance. 
 But one acknowledgment or proof was taken of the execution, and 
 that was indorsed upon the release, which was alone recorded. It 
 was not usual to record the lease, or to produce it on the trial of a 
 cause to make out the title of the releasee to the premises. The 
 recital of it in the release was deemed conclusive evidence of its ex- 
 istence upon all persons claiming under the parties in privity of 
 estate. {Carver v. Jackson, 4 Peters, 88. Cruise's Big. tit. 32, 
 Deed, c7i. 11, § 6.) Not only estates in possession, but estates in 
 remainder and reversion can be conveyed by lease and release. The 
 consideration to raise the use must be inserted in the lease. This 
 is usually a nominal consideration of one dollar; but a reservation 
 of a pepper corn rent has been held to be sufficient to raise a use in 
 a bargain and sale to ground a release. As the release is a common 
 law conveyance, no consideration need be expressed to make it valid, 
 though it is usual to insert the true consideration, as has been 
 recommended in other conveyances. 
 
 The statute with respect to the proof and acknowledging of deeds, 
 and of the recording of them, is applicable to the lease and release, 
 and the doctrine vdth respect to parties and covenants is the same 
 in all cases. 
 
 Deeds to lead or declare the uses of other convegances, and deeds 
 of revocation of uses, were instruments of frtequent occurrence in 
 the English system of conveyance, and were occasionally used in 
 this state. They are still admissible in some cases. The subject 
 has already been considered in our chapter on trusts and powers, 
 and of marriage settlements. There have been but few cases in 
 this state arising upon conveyances made since the adoption of the 
 revised statutes, in 1830.
 
 ALIENATION BY ORDER OF COURT. 445 
 
 CHAPTER VII. 
 
 OF ALIENATION OF KEAL ESTATE BY THE ORDER OR PERMISSION OF 
 SOME TRIBUNAL OR PUBLIC OFFICER. 
 
 There are a variety of cases where the owner of real estate is un- 
 der a disability to convey the fee without the order or authority of 
 the court. We wiU instance some of these cases. 
 
 1. ReHgious corporations cannot convey their lands in fee simple, 
 without the intervention of some court. The general act of 1784, 
 (1 GreenL 60,) while it authorized such corporations to lease, take, 
 receive, acquire, purchase, use and enjoy lands, tenements and her- 
 editaments &c. to a certain amount, limited their power of disposi- 
 tion to demise, lease and improve the same. Special acts of the 
 legislature were occasionally passed, incorporating certain persons 
 without restriction as' to the power of alienation. The necessity for 
 selling their lands in fee simple, and of making different invest- 
 ments, was often felt by religious corporations, and relief was occa- 
 sionally granted by special acts of the legislature. (See a reference 
 to these acts, Will. Eq. Jur. 734, note.) At length, in 1806, the gen- 
 eral act was so amended that the chancellor was authorized, upon 
 the application of any religious corporation, in case he should deem 
 it proper, to make an order for the sale of any real estate belonging 
 to such corporation, and to direct the application of the moneys 
 arising therefrom by the said corporation, to such uses as the same 
 corporation, with the consent and approbation of the chancellor, 
 should conceive to be most for the interest of the society to which 
 the real estate so sold, belonged. (29 Sess. ch. 43, § 3.) But this 
 provision did not extend to any of the lands granted by this state 
 for the sifpport of the gospel. 
 
 Since the abolition of the court of chancery, the application for 
 leave to sell or mortgage the real estate of a religious corporation is 
 made to the supreme court of the district, or the county court of 
 the county where the religious corporation is located. {Code, § 30, 
 Judiciary act of 1847, p. 323, § 16.) 
 
 The principal difficulty with respect to the alienation of real 
 property held by a religious corporation was, that the legal estate 
 in the hands of the purchaser, with notice of the trust, would be
 
 446 RELIGIOUS CORPORATIONS. INFANTS. 
 
 chargeable with the charitable uses to which it was originally de- 
 voted. Real estate held by a corporation, for its ordinary purposes, 
 or which it might acquire in the course of its business, niiglit be 
 sold and conveyed, and may be so still, in the same way as a natu- 
 ral person disposes of his own property. But real property held by 
 a corporation to charitable uses, would be followed by a court of 
 equity into the hands of the alienee with notice. This is the view 
 taken of the subject, by the chancellor, in Dutch Church v. Mott, 
 (7 Paige, 84.) And hence the necessity of the act, by which, with 
 the leave of the court, real estate thus held in trust, may be aliened 
 to a purchaser, free from the trust; so that the latter may take a 
 clear and indefeasible estate in fee simple, freed from all charges 
 thereon. 
 
 The mode in which the relief is granted is by petition to the 
 court, showing the necessity and propriety of the application, and 
 the assent of the persons interested beneficially in the property to 
 the proposed sale and reinvestment. The deed should recite enough 
 of the proceedings to give the court making the order jurisdiction, 
 and should purport to convey the premises in pursuance of the or- 
 der. In other respects the deed ^vill resemble our statute grants, 
 or the common deeds of bargain and sale. The most usual occa- 
 sions for the application are, when the corporation is under. the ne- 
 cessity of mortgaging their real estate to secure the payment of 
 their indebtedness, or is desirous of changing the location of their 
 religious edifice. 
 
 Another instance of persons under disability having to resort to 
 the court for leave to sell their real estate, is in the case of infant^. 
 By the common law the rule seems to be universal, that all deeds 
 or instruments under seal, executed by an infant, are voidable only, 
 with the single exception of those which delegate a naked authority, 
 which latter are void. {Bool v. Mix, 17 Wend. 119. ' Gillet v. 
 Stanley, 1 Hill, 121.) Such deed of lands executed by an infant 
 cannot be avoided until he comes of age, though he may enter and 
 take the profits in the mean time. {Bool v. Mix, supra.) Previ- 
 ous to the year 1814 there was no mode of disposing of the real 
 estate of infants but by act of the legislature. Special acts were 
 frequently passed for this purpose; when at length on the 9th of 
 April, 1814, the legislature authorized the infant, by his guardian 
 or next friend, to apply to the court of chancery by petition, setting
 
 SALE OF INFANTS' REAL ESTATE. 447 
 
 forth the grounds and reasons for the application, and the court was 
 empowered to gi-ant an order for the sale of such of the infant's real 
 estate as was necessary and proper for his supjwrt and maintenance j 
 and to take order for the investment and disposition of the proceeds. 
 (L. of 1814, ch. 108.) By the act of the follo\\ang year, this juris- 
 diction was so extended that the chancellor might order the real 
 estate of infants to be sold, when the interests of the infants 
 required it. (L. of 1815, ch. 106.) The application was conducted 
 in a summary way, under a rule adopted by Chancellor Kent, 
 framed specially for that purpose, in obedience to the requirement 
 of the act. (Ex parte Quackenboss, 3 John. Ch. 408.) The exist- 
 ing law is a revision of the foregoing statutes, and prescribes the 
 mode of the proceeding, so as adequately to protect the rights of the 
 infant, and directs that whenever it shall appear satisfactorily that 
 a disposition of any part of the real estate of the infant, qt of his 
 interest in any term for years, is necessary and proper, either for 
 the support and maintenance of such infant, or for his education; 
 or that the interest of such infant requires or will be substantially 
 promoted by such disposition, on account of any part of his said 
 property being exposed to waste and dilapidation, or on account of 
 its being wholly unproductive, or for any other peculiar reason or 
 circumstances, the court may order the letting for a term of years, 
 the sale or other disposition of such real estate or interest, to be 
 made by such guardian or guardians so appointed, in such manner 
 and with such restrictions as shall be deemed expedient. But no 
 real estate or term for years shall be sold or disposed of in any man- 
 ner against the provisions of any last will, or of any conveyance by 
 which such estate or t^rm was devised or granted to such infant. 
 (2 B. S. 195, §§ 175, 176.) It was not the practice of the late court 
 of chancery to authorize the sale of a future interest in real estate 
 belonging to infants, except under very special circumstances; nor 
 for the mere purpose of increasing the income of an adult owner of 
 a present interest in the estate. (Matter of Jones, 2 Barb. Ch. 22.) 
 
 It is quite clear that the jurisdiction of the court of chancery to 
 order the sale of real estate belonging to infants was derived entirely 
 from the statute. A sale, therefore, made by order of the court 
 contrary to the provisions of the statute was utterly void, and pass- 
 ed no title to the purchaser. (Bogers v. Bill, 6 Hill, 415.) 
 
 The mode. of conducting the proceedings was by petition of the 
 infant by his guardian or next friend. The court appointed the
 
 448 SALE OF LANDS OF IDIOTS AND LUNATICS. 
 
 general guardian, if there was one, if he could give the requisite 
 security; if he had no general guardian, that fact should be stated 
 in the petition, when a special guardian was appointed for that 
 purpose. The matter was then referred to a master, whose duty it 
 was to examine as to the age of the infant, and the actual value of 
 his interest in the property, so far at least as to detennine whether 
 the value, as stated in the petition, is substantially correct; 
 and he was required to certify what sum was requisite under the 
 rule, and that the sureties of the guardian were worth that sum 
 over and above all debts. {Matter of Lansing, 3 Paige, 265. 
 Matter of Wilson, 2 id. 412.) The master was required to take 
 testimony as to the facts, and report the result briefly. {Matter of 
 Morgan, 4 Paige, 44.) 
 
 The mode of proceeding is now substantially the same, a reference 
 to a referee instead of a master being necessary since the abrogation 
 of the latter office. The statute contains suitable provisions as to 
 the right of dower, if any, in the premises. The deed, which is 
 authorized by the court, is executed by the special guardian, and 
 should recite the proceedings, or enough thereof to give jurisdiction 
 to the court, and should purport to be by order of the court and in 
 pursuance of the statute. The granting clause is substantially like 
 the statute grant, or a deed of bargain and sale. It merely conveys 
 to the purchaser and his heirs, and covers all the estate which the 
 infant had in the premises, and without any covenants for title. 
 The statute provides that all sales, leases, dispositions and convey- 
 ances made in good faith by the guardian in pursuance of the order 
 of the court, when confirmed by the court, shall be valid and effect- 
 ual as if made by such infant when of full age. (2 R. S. 195, § 173.) 
 
 These sales are conducted in a summary way, and without the 
 notoriety which attends adverse proceedings in courts. If fraudu- 
 lently conducted, or the requisite steps to pass the title be omitted 
 by carelessness or design, the title may prove defective, and the 
 whole proceedings be void. {See Clark v. Underwood, 17 Barb. 
 202. Rogers v. Dill, supra.) The deed should be proved or ac- 
 knowledged, and recorded. 
 
 Analogous to the condition of infants is that of idiots, lunatics, 
 persons of unsound mind, and habitual drunkards, against whom a 
 commission has been awarded, after their estates have been put in 
 the hands of a committee. From that period their power of alien-
 
 SALE OF LANDS OF DECEASED PERSONS. 449 
 
 ation of it is taken away. The statute provides that on a proper 
 application of the committee, by petition, the court may order the 
 mortgage, leasing or sale of the whole, or such part of the real es- 
 tate as may be necessary to discharge the debts of the party thus 
 laboring under this disability, (2 R. S. 54, § 13.) A subsequent 
 section confers the same power upon the court to order a mortgage, 
 lease or sale, if the personal estate be insufficient for the mainte- 
 nance of the party thus disabled, or for the educatidn of his chil- 
 dren. {Id. § 16.) These objects, the payment of debts, and the 
 support and maintenance of the lunatic and his family, or the edu- 
 cation of his children, are the limits of the power of the court. {In 
 ■ the matter of Petit, 2 Paige, 596.) The estate cannot be sold on 
 the application of the committee, for the purpose of improving the 
 investment. This can be done only by act of the legislature. 
 
 The deed given by the committee should, as in the case of a sale 
 of infants' estates, recite enough of the proceedings to give juris- 
 diction to the court, and state the substance of the order, and then 
 contain the usual granting clause, as in other deeds. The part)'" 
 investigating the title under these sales must be careful to see that 
 the court had jurisdiction to make the order, and that the requisite 
 jurisdictional steps had been taken by the committee. The deed 
 contains no covenants for title. 
 
 The real estate of deceased persons can only be aliened by their 
 personal representatives, by proceedings in the surrogate's court of 
 the county, on the application of the executors or administrators, 
 within three years from the date of their letters testamentary or 
 of administration. The mode of conducting these proceedings, and 
 the circumstances which render the application proper, will be 
 found discussed in treatises on the practice of surrogates' courts, to 
 which the reader is referred. ( Will, on Ex. p. 306, et seq.) In 
 investigating the title of the purchaser under these sales, the main 
 inquiry is, whether the court had acquired jurisdiction of the par- 
 ties and subject matter, before making the order, and whether 
 the sale had been conducted with fairness, and freedom from such 
 irregularities as render it void. 
 
 Even if the proceedings before the court be, in aU respects, in 
 conformity to the statute, and the sale be conducted on proper no- 
 tice, it may still be invalid, if the purchase is made by the execu- 
 tors or administrators for their own benefit, or by persons standing 
 in confidential relations to the owners of the estate. The law, for 
 
 Will.— 29
 
 450 sjlles by order of surrogate. 
 
 the ^visest of imrposes, prohibits a party froDi purchasing, on his 
 own account, that which his duty or trust requires him to sell on 
 account of another, and from purchasing on account of another that 
 which he sells on his own account. ( Will. Eq. Jur. 605, GOG, and 
 the cases there cited.) The statute has applied these princii)les to 
 the sales under the order of the surrogate, and prohibited the ex- 
 ecutors or administrators, and guardians of minor heirs of the de- 
 ceased, from being interested in the purchase of any of the real 
 estate of the deceased so sold. All sales made contrary to the pro- 
 visions of that section of the act are declared to be void; but an 
 exception is made in favor of a purchase by a guardian for the ben- 
 efit of his ward. (2 R. S. 105, § 27. Will, on Ex'rs, 326. 2 Sug. 
 Vend. Perk. ed. 362 etscq.) 
 
 The conveyances are to be executed by the executors or adminis- 
 trators, or by the person appointed by the surrogate to conduct the 
 sale. They are required to contain and set forth at large, the ori- 
 ginal order authorizing a sale, and the order confirming it, and di- 
 recting the conveyance to be made. 
 
 Prior to 1850 surrogates' courts were held to great strictness in 
 the conducting these sales. They were treated as courts of inferior 
 and limited jurisdiction; and those claiming under their decrees 
 were required to show affirmatively that the court had authority to 
 make the decree, and that the facts upon which the surrogate acted 
 gave him jurisdiction of the subject matter, and of the persons be- 
 fore him. (^Dakin v. Hudson, 6 Coioen, 221. Bloom v. Burdichy 
 1 Hill 130. Corwin v. Merrill, 3 Barb. 331. People v. Barnes^ 
 12 Wend. 492.) 
 
 The act of March 23, 1850, ch. 82, changed the foregoing rules, 
 and placed the sale by order of surrogates' courts, as well those 
 theretofore made as those thereafter to be made, on the same foot- 
 ing as if made by order of a court having original general jurisdic- 
 tion. It provides that a purchase, at any such sale in good faith, 
 shall not be impeached or invalidated, by reason of any omission, 
 error, defect or irregularity in the proceedings before the surrogate, 
 or by an allegation of want of jurisdiction on the part of the surro- 
 gate; except in the manner and for the causes that the same could 
 be impeached or invalidated, in case such sale had been made pur- 
 suant to the order of a court of original general jurisdiction. The 
 statute in the second and third sections directs that certain speci- 
 fied defects, which the courts had formerly held to be fatal, should
 
 SALE OF LANDS OF MARRIED WOMEN. 451 
 
 no longer render tlie sale invalid. These sales, with respect to their 
 validity, stand upon the same grounds that are occupied by the sale 
 of infants' estates under the general laws conferring jurisdiction up- 
 on the supreme court and county courts over these estates. In all 
 these cases, a want of jurisdiction in the court would be fatal to the 
 proceedings. The main diiference between the present law and the 
 former practice is, that the regularity and jurisdiction are now pre- 
 sumed in favor of the i^roceeding, whereas formerly they had to be 
 sho\\'Ti, and no presumption was indulged in their behalf. 
 
 The surrogate had no jurisdiction to order the sale of real estate 
 of the testator for the payment of debts, if the testator had charged 
 the payment of his debts upon his real property. (2 R. S. 105, 
 § 32.) The remedy of the creditor to enforce such charge is in 
 equity. If the executor has de\'ised his lands to his executors in 
 trust to pay debts, or simply empowered them to sell the lands for 
 that purpose, the surrogate has no jurisdiction over the subject to 
 compel the execution of the power, or to order the sale of the lands, 
 but the jurisdiction, in that respect, is in equity. With regard to 
 what direction in a will amounts to a charge on the real estate, in 
 favor of creditors or legatees, so as to oust the surrogate of juris- 
 diction, see Lupton v, Lupton, (2 John. Ch. 614, 624;) Willard 
 on Ex'rSj 328, and the subsequent chapter on devises. 
 
 With respect to the disability of married women to convey their 
 real estate, there are but few instances where the consent and ap- 
 probation of a public officer is necessary. In general, a married 
 woman can alien her real estate, or her inchoate right to dower, by 
 uniting with her husband in a conveyance of it by any of the instru- 
 ments recognized by the law, as grant, bargain and sale, &c. and 
 acknowledging the same, on a private examination, apart from her 
 husband, that she executed it freely, and without any fear or com- 
 pulsion of her husband. (1 B. S. 758, § 10.) Enough has been 
 said on this subject in a previous section. In these cases, the con- 
 veyance is not made by order of the officer who takes the acknowl- 
 edgment. But there are a few instances where an order has to be 
 obtained to give effect to the conveyance, either to or by a married 
 woman. 
 
 Thus, the trustee of a married woman of real or personal estate, 
 under any deed of conveyance or otherwise, may, on the written 
 request of such married woman, accompanied by a certificate of a
 
 452 LANDS OF MARRIED WOMEN. 
 
 justice of the supreme court, that lie has examined the condition 
 and situation of tlie property^ and made due inquiry into tho 
 capacity of sucli married woman to manage and contrtd tho 
 Bame, convey to such married woman, by deed or otherwise, all or 
 any portion of such property, or the rents, issues or profits thereof, 
 for her sole and separate use and benefit. (L. of 1849, ch. 375, p. 
 b2d>, § 2.) The inquiry by the judge as to the capacity of the 
 married woman is not usually extended farther than to see that she 
 is not laboring under any other disability, as infancy &c., and that 
 she acts freely and without restraint or coercion. When she be- 
 comes seised of the property in her own right, her power of dispo- 
 sition over it is governed by the same rules as those which regulate 
 her alienation of her private property. We have seen that she can 
 dispose of it as if she were sole. {See ante, p. 391.) 
 
 The act of 1860, chapter 90, has gone further in some respects 
 tliau tlie act relative to the rights of married women, passed in 1849, 
 and in other respects has fallen short of it. The act of 1849 author- 
 ized a married woman to take by inheritance or by gift, grant, de- 
 vise or bequest, from any person other than her husband, and 
 hold to her sole and separate use, and convey and devise real and 
 personal jjroperty, and any interest or estate therein, and the rents, 
 issues and profits thereof, in the same manner and with the like 
 effect as if she were unmarried; and the same was declared not to 
 be subject to the disposal of her husband, nor liable for his debts. 
 {L. 0/1849, p. 528.) Thus, the ownership of real estate by a mar- 
 ried woman was accompanied by the unrestricted ^ms disponendi. 
 
 The act of 1860 extended the ownership of a married woman fur- 
 ther, but imposed some limitations on her power of alienation. It 
 interferes very essentially wdth the marital rights of the husband, 
 as they existed at common law. It declares that the property, both 
 real and personal, which any married woman now owns as her sole 
 and separate property; that which comes to her by descent, devise, 
 bequest, gift or grant; that which she acquires by her trade, busi- 
 ness, labor or services, earned on or performed on her sole or sepa- 
 rate account; that which a woman mamed in this state owns at the 
 time of her marriage, and the rents, issues and proceeds of all such 
 property shall, notwithstanding her marriage, be and remain her 
 sole and separate jiroperty, 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, except such debts
 
 SALE OF LANDS OF MARRIED WOMEN. 453 
 
 as may have been contracted for the support of herself or lier chil- 
 dren by her, as his agent. (X. of 1860, jj. 157.) 
 
 With respect to her real estate as her separate property, a mar- 
 ried woman is authorized, by the third section of the same act, to 
 bargain, sell and convey such property, and enter into any contract 
 in reference to the same; but no such conveyance or contract is valid 
 without the assent in writing of her husband, except in certain 
 cases which will soon be noticed. This is a restriction upon the 
 power of alienation by a married woman not contained in the act 
 of 1849. The legislature failed to carry out the principles on which 
 the law is based — the separate ownership of property, of which the 
 jus disponendi is an incident. 
 
 It was foreseen that there might be cases in which the assent of 
 the husband, to the disposition of her property by the wife, could 
 not be procured. In case this is occasioned in consequence of his 
 refusal, absence, insanity or other disability, she may apply on pe- 
 tition to the county court of the county where she resides, for leave 
 to make such sale, and that court, on examining into the grounds 
 of the application, may, in its discretion, order notice of the appli- 
 cation to be given to the husband. 
 
 If it appears to the court that the husband has willfully aban- 
 doned his said wife, and lives separate and apart from her, or that 
 he is insane, or imprisoned as a convict in any state prison, or that 
 he is an habitual drunkard, or that he is in any way disabled from 
 making a contract, or that he refuses to give his consent, without 
 good cause therefor, the court may cause an order to be entered 
 upon its records, authorizing such married woman to sell and convey 
 her real estate, or contract in regard thereto without the assent of 
 her husband, with the same effect as though such conveyance or 
 contract had been made with his assent. 
 
 What shall be a good cause for the husband to withhold his re- 
 fusal, when he is laboring under no disability, has not yet been 
 decided. But if he gives his assent, or if having refused it, and 
 the court shall have authorized the sale by an order in its records, 
 the conveyance should contain recitals of the necessary facts to au- 
 thorize the married woman to convey. 
 
 The assent of the husband to such conveyance by the wife would 
 be decisively manifested by his uniting -wath her in the deed. It 
 may, it is presumed, be in a separate instrument ; and if that course 
 be adopted, the assent should be recited in the deed of the wife,
 
 454 JUDICIAL SALES. 
 
 and the original should be annexed to it. A party deriving title 
 under such sale, would need for his protection some evidence of the 
 husband's assent. 
 
 The act of 1860 does not, like that of 1849, except in terms, a 
 gift or grant from the husband to the wife, as a source of her title. 
 But probably the act of 1849 was merely in affirmance of the com- 
 mon law, and if so, it is equally applicable to the act of 1860, 
 as the common law is not presumed to be changed unless there is a 
 manifest intention on the part of the lawgiver, to make an alter- 
 ation. 
 
 The sale and conveyance of mortgaged premises, on a foreclosure, 
 is the result of judicial proceedings, and the title is conveyed by 
 the act or permission of some tribunal or public officer. Enough 
 was said on this subject, when we were treating of mortgages, in a 
 former chapter. It is sufficient to add, that by the code of proce- 
 dure, when real property is adjudged to be sold, it must be sold in 
 the county where it lies, by the sheriif of the county, or by a referee, 
 appointed by the court for that purpose, and thereupon the sheriff 
 or referee must execute a conveyance to the purchaser, which con- 
 veyance is declared to be effectual to pass the rights and interests 
 of the parties adjudged by the decree to be sold. (Code, § 287, as 
 amended in 1849.) 
 
 The title derived from the sale by a sheriff, under an execution 
 issued upon a judgment of courts of record, or of such other judg- 
 ments as are made a lien uj^on the real estate of the debtor, owes 
 its origin to modern legislation, and was unknown to the common 
 law. Parties were subjected to rigorous imprisonment for the 
 non-payment of judgments, long before their real estate could be 
 reached by an execution. It is not deenaed expedient to trace the 
 origin of the changes in this state, with respect to this matter. Im- 
 prisonment for debt was abolished in 1831. {L. o/1831,^, 396, 
 cli. 300.) The real estate of the judgment debtor w^as made liable 
 for his debts many years before that time; and the necessity of 
 reaching his equitable interests has been made more urgent by the 
 entire freedom of his person from arrest and imprisonment for debt, 
 except in cases of fraud, and a few other instances. The sale and 
 conveyance of real estate, under judgment and execution, alone falls 
 within the scope of this work.
 
 JUDICIAL SALES. 455 
 
 To enable the party to sell the real estate of the judgment debtor 
 under an execution, the judgment must be a lien upon the estate. 
 
 Such judgment, followed up by an appropriate execution, con- 
 tains a statute authority to the sheriff or other officer empowered to 
 act in that behalf, to sell the real estate of the debtor, if the per- 
 sonal estate proves insufficient to satisfy the judgment. 
 
 To make the judgment effectual for this purpose it must be dock- 
 eted in the office of the clerk of the county where the lands sought 
 to be charged lie; and it continues such lien upon such lands, 
 and any other which the debtor may acquire thereafter, for ten 
 years from the time of docketing the same in the county where it 
 was rendered. A judgment rendered by a justice of the peace for 
 twenty-five dollars or upwards may be also docketed in the county 
 •where it was rendered, and becomes in like manner a lien from the 
 time of filing and docketing the transcript. . A certified transcript 
 of the judgment may be filed and docketed in any county, with the 
 like efiect in all respects as in the county where the judgment was 
 rendered. A judgment of a justice when docketed becomes a judg- 
 ment of the county court. {Code, §§ 63, 262. 3 R. S. 642, 5th ed.) 
 
 An execution to enforce the judgment may be issued at any time 
 within five years after the entry of the judgment, without special 
 leave of the court; after the expiration of that period it can only 
 be issued by leave of the court, on a motion for that purpose, of 
 which previous notice should be given. {Code, §§ 283, 284) The 
 execution- must be directed to the sheriff", or coroner when the sher- 
 iff is a party or interested, subscribed by the party issuing it, or 
 his attorney, and must intelligibly refer to the judgment, stating 
 the court, the county where the judgment roll or transcript is filed, 
 the names of the parties, the amount of the judgment^ if it be for 
 money, and the amount actually due thereon, and the time of dock- 
 eting in the county to which the execution is issued; and shall re- 
 quire the officer, if it be against the property of the judgment debtor, 
 to satisfy the judgment out of the personal property of such debtor, 
 and if sufficient property cannot be found, out of the real property 
 belonging to him on the day when the judgment was docketed in the 
 county, or at any time thereafter. {Code, § 289.) There are other 
 forms of execution, but it is of this we have to do at present. The 
 execution is returnable within sixty days after its receipt by the 
 officer, to the clerk with whom the record of judgment is filed. 
 With regard to the kind of real property which may be sold
 
 456 JUDICIAL SALES. 
 
 under an execution, and from wliat time it is bound, it may be 
 remarked that no jnd<j^ment becomes a lien from the time of the 
 docketing it upon a mere chattel interest, but only upon a freehold, 
 A term for years is not bound by the docketing of a judgment. 
 ( Vredenhurgh v, Morris, 1 John. Ch. 223, Merry v. Ilallet, 2 
 Cowen, 497.) Nor are estates at will or at sufferance liable to be 
 sold under an execution. {Colvin v. Baker, 2 Barb. 206.) It is 
 only an estate amounting to a freehold that is liable to the lien 
 created by the docketing of a judgment. The estate of a tenant by 
 the curtesy may be sold under an execution. (Schermerhorn v. 
 Miller, 2 Cowen, 439.) By parity of reasoning, an estate in dower, 
 or a conventional life estate, may be sold by the sheriff by virtue 
 of an execution on a judgment against the tenant for life. 
 
 The property which is bound by the docketing of a judgment is 
 the real property corporeal, and not incorporeal. The term " lands, 
 tenements and real estate," which are subject to such lien, is used 
 by the act in a popular sense, as embracing things tangible. And 
 hence a rent reserved upon a conveyance in fee of land is not subject 
 to such lien, or liable to be sold on execution, though the convey- 
 ance contain af clause of distress and a provision for re-entry, (Fayn 
 V. Beal, 4 Denio, 405, overruling the People v, Raskins, 7 Wend. 
 463.) 
 
 The question how far the interest of a person in possession of 
 land, who has no legal title to it, may be affected by a sale, is an 
 interesting subject of inquiry. The matter was considered by the 
 chancellor, in Talbot v. Chamberlain, (3 Paige, 220.) Previous 
 to the .revised statutes, says the chancellor, if the judgment debtor 
 was in possession of land at the time of the sale thereof on an exe- 
 cution against him, he was estopped from denying that he had any 
 interest in the land. The bare possession was an interest which 
 might be sold on execution, and the purchaser acquired the same 
 interest which the defendant in the execution had, and no more. 
 If the latter was a mere tenant at will or by sufferance, or even was 
 in possession without color of Tight, the purchaser, as against him 
 and those claiming under him, had a right to be substituted in his 
 place so far as respected the possession and any legal rights of the 
 defendant connected therewith. {Jackson v, Graham, 3 CaineSy 
 188. Jackson v. Parker, 9 Cowen, 84.) Possession was consid- 
 ered to be such an interest in land as to be the subject of sale under
 
 JUDICIAL SALES. 457 
 
 execution, and such is the rule now where the case does not fall 
 within the statute. 
 
 If the defendant was in under a contract to purchase, and had 
 actually paid all the purchase money, so that the vendor held the 
 premises as a mere naked trustee for the use of the defendant, his 
 equitable interest also passed under a sale by the sheriff. (1 John. 
 Ch. 56. 17 JoJm. 356.) The revised statutes have altered the 
 law in these respects, by prohibiting the sale on execution at law, 
 of the interest of a person holding a contract for the purchase of 
 land. (1 B. S. 744, § 4.) Even if the purchaser has paid the 
 whole purchase money, if he had not obtained the legal title, the 
 court thought his possession under the contract could not be sold 
 under an execution at law. The remedy was in equity alone. 
 (Watson V. Le Boiv, 6 Barb. 481. Brewster v. Power, 10 Paige^ 
 562. Griffin v Spencer, 6 Hill, 525. Boughton v. The Bank of 
 Orleans, 2 Barb. Ch. 458.) 
 
 But where a trust results under the statute, relative to trusts, 
 (§§ 51, 52,) in favor of the creditors of a person paying the consid- 
 eration and taking the grant in the name of another, such person 
 takes an equitable title as respects his then creditors, which is con- 
 verted into a legal one in their favor by the statute, (Id. § 45,) so 
 that they may seU the land under the judgments for their debts, 
 as they could under the former statute, and are not obliged to re- 
 sort to a court of equity. ( Wait v. Bay, 4 Ben. 439, disapproving 
 a dictum of the chancellor in Brewster v. Powers, supra.) 
 
 Prior to the act of! April 12, 1820, {L. of 1820, p. 167,) the sale 
 by the sheriff under an execution, and the delivery of a deed to the 
 purchaser on the payment of the bid, devested the estate of the 
 judgment debtor. {Catlin v. Jackson, 8 John. 520.) Real estate 
 was sometimes sacrificed at such sales. The oppression and injus- 
 tice which occasionally arose in those cases led to the redemption 
 act of that year, which has since been revised and improved, and 
 now forms an important part of our jurisprudence. 
 
 By the terms of the execution, the personal property of the debt- 
 or is the primary fund out of which it is to be satisfied. If there 
 be none, or it proves insufficient, resort is then had to the real es- 
 tate of which the judgment debtor was seised on the day of the 
 docketing of the judgment, or at any time afterwards, in whose 
 hands soever the same may then be. (2 R. S. 367, § 24.) 
 
 The statute contains minute directions to the sheriff for regula-
 
 458 REDEMPTION BY JUDGMENT DEBTOR. 
 
 ting and conducting the sale; requiring a notice of the time and 
 place of sale to he i)uhli.shcd for six weeks in a newspaper in the 
 county, if tliere he one, descrihing the property with cuuinion cer- 
 tainty; and requiring the sale to he at puhlic vendue between the 
 hours of nine in the morning and the setting of the sun; and im- 
 poses a penalty of a thousand dollars on the sheriff, in addition to 
 his liability to the party injured, for all the damages he may have 
 sustained, for a failure on his part to comply with the requirements 
 of the statute. But these and other provisions of the law are di- 
 rectory to the sheriff, and will not invalidate the sale to a honajide 
 purchaser. {Groff v. Jones, 6 Wend. 522. Ncilson v. Neilson, 5 
 Barb. 565.) Proof of the judgment, execution and sale by the 
 usual documentary evidence, followed up by the production of the 
 sheriff's deed, is all that is required. A party investigating a title 
 Tinder a sheriff's sale, is not, in general, required to look farther 
 than the deed and the judgment, execution and sale recited in it. 
 Third persons, acting in good faith, are not chargeable with notice 
 of any infirmity in the title occasioned by the non-compliance of 
 the sheriff with the directions in the statute. If, indeed, the judg- 
 ment had been satisfied before the sale, even a bona fide purchaser 
 would acquire no title. In such a case, the sheriff has no subsist- 
 ing power to sell, and of this the purchaser must take notice at his 
 peril. (Id. Wood v. Colvin, 2 HiU, 566.) Much more will this 
 be so, if the purchaser had notice, before the sale, of the payment 
 of- the judgment. (Jackson v. Anderson, 4. Wend. 474.) It 
 would greatly impair the confidence in public sales of real estate 
 by the sheriff, if their validity might be affected in the hands of a 
 bona fide purchaser, by the irregularities of the sheriff, or his omis- 
 sion to make a proper return to the execution. (Neilson v. Neil- 
 son, supra, p. 568.) 
 
 The existing law with respect to a redemption of the property 
 sold, is a revision of the act of 1820. It provides for a redemption, 
 1st, by the judgment debtor, and 2d, on his failing to redeem, 
 within the time prescribed, by a judgment creditor. 
 
 1. B2/ the judgment debtor. The sherifi" on the sale makes du- 
 plicate certificates thereof, describing the premises sold, the price 
 bid for each distinct parcel, the whole consideration paid, and the 
 time when the sale will become absolute and the purchaser will be 
 entitled to a conveyance, pursuant to law, which will not be until 
 the expiration of fifteen months from such sale.
 
 REDEMPTION OF THE LANDS SOLD. 459 
 
 The judgment debtor lias the prior right to redeem within one 
 year from the sale, by the payment to the purchaser, his personal 
 representatives, or to the officer who made the sale, for the use of the 
 purchaser, the sum of money which was bid on the sale of such lot 
 or tract as he desires to redeem, with the interest on that sum from 
 the time of sale, at the rate of ten per cent a year. The judgment 
 debtor is not bound to redeem the whole premises sold, when they 
 consist of separate lots, or parcels, and were sold separately, but 
 may redeem any one or more of them at his option. (3 R. S. 651, 
 § 61, 5tli ed.) The right is not confined to the party whose right 
 and title were sold; but in case he be dead, it may be exercised by 
 his devisee of the premises sold, if they shall have been devised, 
 and if- they shall not have been devised, by the heirs of such person; 
 or by a grantee of such person who shall have acquired an absolute 
 title by deed, sale under a mortgage, or under an execution, or by 
 any other means, to the premises sold, or to any lot, tract, parcel 
 or portion which shall have been separately sold. (Id. § 62.) 
 
 A sale of lands under a judgment perfected by a deed, destroys 
 the lien of the judgment. But if the sale be for a less sum than 
 the amount of the judgment, and the premises be redeemed by the 
 judgment debtor himself, the premises may be resold by the sheriff 
 under the same execution, for the balance remaining unpaid. The 
 judgment by such redemption is only paid pro fanto, but remains 
 a valid lien for the residue. (Titus v. Lewis, 3 Barb. 70.) 
 
 The party who seeks to redeem as standing in the place of a 
 grantee of the judgment debtor, is not entitled to redeem upon a 
 mere equitable right, but he must have the legal estate. (Lathrop 
 V. Ferguson, 22 Wend. 116.) 
 
 The officer who conducts the sale may authorize the deposit of 
 the redemption money with the county clerk, or in a bank, and the 
 payment to such person or bank will be a valid j ayment. But the 
 redemption, to be effectual, must be by payment of the whole sum to 
 which the purchaser is entitled for the premises sought to be re- 
 deemed. If the calculation be made by the party himself, and by 
 a miscalculation his payment faUs short of the sum due, the redemp- 
 tion is ineffectual at law, and the purchaser who obtains the sher- 
 iff's deed of the premises is entitled to the legal estate. But if the 
 .sheriff himself makes a miscalculation of the interest, and thereby 
 misleads the redeeming party, the redemption is valid and effectual, 
 and the sheriff must make up the deficiency arising from his own
 
 460 REDEMPTION BY A CREDITOR. 
 
 mistake. {Hall v. Fisher, 1 Barb. Ch. 56. Dickinson v. GilH- 
 land, 1 Cotoen, 481. Ex parte Peru Iron Company, 7 id. 540. 
 The People v. Rathhun, 1 Smith, 528.) 
 
 2. ^7/ a creditor. If the judgment debtor omits to redeem within 
 the year, the right of redemption devolves on certain creditors of 
 the debtor by judgment or mortgage, within three months after the 
 expiration of the year. The fifteen months allowed to creditors, &c. 
 are calendar, not lunar months. (Snyder v. Warren, 2 Coicen^ 
 518.) When the last day of the fifteen months happens on Sunday, 
 the redemption must be made the day before. (Tlce People v. Lu- 
 ther, 1 Wend. 42.) 
 
 The provisions with respect to redemption by creditors, after the 
 expiration of the year from the sale, are that any creditor, having 
 in his own name, or as assignee, representative, trustee or otherwise, 
 a decree in chancery or a judgment at law, rendered at any time 
 before the expiration of fifteen months from the time of such sale, 
 or having a mortgage duly recorded within the same period, and 
 which shall be a lien and charge upon the premises sold, or upon 
 any parcel which shall have been separately sold, by papng the 
 sum of money which was paid on the sale of such premises, or 
 upon any parcel which shall have been separately sold, together 
 with the interest therecn, at the rate of seven per cent a year from 
 the time of such sale, shall thereby acquire all the rights of the 
 original purchaser, subject to be defeated by any other like cred- 
 itor in the manner mentioned in the several statutes on this subject. 
 (3 R. S. 652, § 67, 5tk ed. Laivs of 1847, ch. 410. L. of 1836, 
 ch. 525.) 
 
 The statute points out how one creditor may redeem from an- 
 other, and the evidence to be furnished to the officer in all cases 
 of redemption. (3 R. S. 653, 654, 5th ed.) 
 
 The deed of the sheriff is not given until the expiration of fifteen 
 months from the time of the sale. It is then given to the original 
 purchaser, or the redeeming creditor, as the case may be, and the 
 conveyance is declared to be valid and effectual to convey all the 
 right, title and interest which was sold by the officer. {Id. 655, 
 § 79, 5th ed.) 
 
 The deed relates back to the time of the sale, though executed 
 afterwards, and after the time of redemption has expired, (Jack- 
 son V. Dickinson, 15 John. 309. Same v. Ramsay, 3 Coiven, 75. 
 Wright v. Douglass, 2 Comst. 373.) The sale and deed extin-
 
 JUDGMENTS VOID, OR ERRONEOUS. 461 
 
 guisli all junior liens upon the premises. {Ex j)0,Tte Stevens, 4 
 Cowen, 133.) The purchaser under a judgment, or the party re- 
 deeming, as the case may be, acquires all tlie title of the judgment 
 debtor, and takes the benefit of covenants and estoppels running 
 with the land. {Sweet v. Green, 1 Paige, 473. Kellogg v. Wood, 
 4 id. 578.) He takes the land subject to all prior incumbrances 
 and liens of which he has actual or constructive notice. ( Bartlett 
 V. Gale, Id. 503.) 
 
 In general, objections to the regularity of the sheriif 's sale of 
 land, cannot be raised by strangers to the execution. {Smith v. 
 McGowan, 3 Barh. 404.) A misrecital of the judgment, as to date 
 and amount, the recital being in all other respects correct, will not 
 vitiate the sheriff's deed. {Jackson v. Streeter, 5 Coiven, 529.) 
 If the deed contain a correct description of the premises sold, a va- 
 riance between it and the sheriff's certificate of sale will not affect 
 the purchaser's title. {Jackson v. Page, 4 Wend. 585.) 
 
 The purchaser cannot be affected by any matter subsequent to 
 the sale, arising between the parties to the judgment, to which he 
 is a stranger. {Jackson v. Bartlett, 8 John. 361.) 
 
 There is a distinction between proceedings and judgments which 
 are absolutely void, and such as are merely erroneous. In the first 
 case no title can be acquired under a sale by virtue of a void judg- 
 ment; but if the judgment be merely erroneous, and be reversed 
 for such error after the sale, and purchase by the bidder, the title 
 so acquired will not be devested by the reversal. The reason given 
 for this is, that great inconvenience would follow a contrary doc- 
 trine, so that none would buy of the sherifi" in such cases, and exe- 
 cution of judgments would not be done. It was held in Drury's 
 case, (8 Co. 142,) that if an erroneous judgment be given, and the 
 sheriff, by force of &. fieri facias, sells a term of the defendant, and 
 afterwards the judgment is reversed by a writ of error, yet the term 
 shall not be restored, but only the money, because the sheriff was 
 commanded and compelled by the king's writ to sell. This is the 
 uniform current of the authorities, and it is applied by our courts 
 to the sale of the fee simple, as well as of term for years. ( Wood- 
 cock V. Bennett, 1 Cowen, 734. Wood v. Jackson, 8 Wend. 9.) 
 
 The same distinction exists between void and erroneous process. 
 If the process under which a sale was made is set aside for irregu-
 
 462 DEED OF TIIE SHERIFF. 
 
 larity, that is, on the ground of its being void, the sale itself is 
 void, even in the hands of an innocent purchaser. But if the pro- 
 cess be merely erroneous, as when it wjis issued, formerly, withfjut 
 a scire facias, after a year and a day from the docketing of the 
 judgment; or when, under the present practice, it is issued after 
 five years from the rendering of the judgment, without leave of the 
 court, the process is only voidable on the application of the party, 
 and the sale is good, and cannot be questioned as against a bona 
 fide purchaser. {Id. Jachson v. Bartlctt, 8 John. 361. Same v. 
 DeLancy, 13 id. 537.) 
 
 We have seen already that the sheriff, in advertising real prop- 
 erty for sale, must describe it with common certainty. In his deed 
 to the purchaser, nothing passes under a general description of 
 " all other the land &c. of the defendant," for the sheriff cannot 
 sell under so vague a description. In short, he can sell nothing 
 which the creditor cannot enable him to describe with reasonable 
 certainty. {Jackson v, DeLancy, 13 id. 537,) 
 
 The purchaser acquires nothing but a lien before the time of re- 
 demption has expired, ( Vaughn v, Ely, 4 Barb. 159.) And the 
 debtor is left in the use and enjoyment of the property during the 
 fifteen months; and his title is not devested until the expiration 
 of that time. But if the real estate sold is not redeemed Avithin that 
 time, and the sheriff executes to the purchaser a deed of the same, 
 in pursuance of the sale, the grantee in such deed is deemed vested 
 with the legal estate, from the time of the sale on the execution, 
 for the purpose of maintaining an action for any injury to such real 
 estate, (2 R. S. 373, § 78. 3 id. 655, 5th ed. Rich v. Baker, 3 
 Den. 79. Boyd v. Eoyt, 5 Pai(/e, 65. Talbot v. Chamberlain, 3 
 id. 219. 2 R. S. 337, § 23.) The statute thus wisely converts 
 the fiction of a title by relation to the time of the sale, into an in- 
 strument of justice. 
 
 The deed of the sheriff should recite the judgment and execu- 
 tion, showing the time when the lien attached, the sale and pur- 
 chase, and redemption, if any, and then, in consideration thereof, 
 and of the payment of the sum bid and paid, and of the statute in 
 such case made and provided, should grant and convey unto the 
 grantee, his heirs and assigns forever, all the estate, right, title 
 and interest, which the judgment debtor had in the premises on.
 
 TAX SALES. 463 
 
 the day of the docketing of the said judgment, or at any time after- 
 wards. It should contain a full and accurate description of the 
 premises. It should be proved or acknowledged like other deeds, 
 and recorded in the clerk's office of the county where the lands are 
 situated. 
 
 Tlie sale of lands for taxes by the comptroller, occasions the 
 alienation, every year, of large tracts of land. It is not proposed 
 to analyze the laws on this subject as they have been repeatedly 
 modified. The act of 1850, amending the revised statutes, (1 B. S. 
 411, § 81,) enacts, that conveyances of lands sold for taxes shall be 
 executed by the comptroller, under his hand and seal, and the exe- 
 cution thereof shall be -odtnessed by the deputy comptroller, state 
 engineer and surveyor or treasurer, and every conveyance of land 
 sold for taxes heretofore or hereafter executed by the comptroller, 
 either in his own name or in the name of the people of this state, 
 shall be pi^esumptive evidence that the comptroller had authority 
 to sell and convey the land described in it, for arrears of taxes 
 charged thereon, and that all proceedings, things and notices re- 
 quired by law to be had, done or given, prior to the execution of 
 such conveyances by the comptroller, have been had, done and giv- 
 en, as required by law; but such presumption may be rebutted by 
 legal evidence. But this section shall not be applicable to any such 
 conveyance, in case the grantee therein or those claiming under him 
 shall neglect or refuse to release to the owner, occupant or claimant 
 of the premises described therein, or any part thereof, said prem- 
 ises, upon being paid, or upon a tender thereof made, the purchase 
 money named in said conveyance, with interest -at the rate of ten 
 per cent per annum, and the costs of any suit commenced for the 
 recovery of the said premises, or any part thereof • (L. of 1850, ch. 
 183, § 81. See Tallman v. White, 2 Comst. QQ, which arose before 
 the S\st section was amended.) 
 
 The revised statutes, before their amendment in 1850, made the 
 comptroller's deed conclusive evidence of the regularity of the sale. 
 This conclusiveness has been held only to apply to the proceedings 
 to be had after the right and power to sell are acquired. It is not 
 conclusive or even presumptive evidence of the regularity of the 
 assessment. {Tallman v. White, supra.) 
 
 There are a variety of cases where the real estate is bound by 
 corporation assessments or by taxes. {Mayor of Troy v. The Mu-
 
 464 TAX SALES. EMINENT DOMAIN. 
 
 tual Bank, 6 Smith, 387.) In some cases, it is presumed, the 
 statute provides for tlie effect of the deed given on a side fur non- 
 payment of taxes or assessments. If there be no provision in the 
 act, the common law must prevail. In the absence of any legisla- 
 tion on the subject, the purchaser is bound to inquire into the 
 authority of the officer who sells, and if that is insufficient the sale 
 is void. Analogous questions have repeatedly arisen and been de- 
 cided in conformity to Ihis view of the subject, by the sui)reme 
 court of the United States. {Stead's Ex'rs v. Course, 4 Crunch, 
 403. Williams v. Peyton's Lessee, 4 Wheat. 11.) The general 
 principle is, in the case of a naked power not coupled with an in- 
 terest, that every prerequisite to the exercise of the power should 
 precede it. The party who sets up a title must furnish the evidence 
 necessary to support it. If the validity of a deed depends on an 
 act in j)ais, the party claiming under it is as much bound to prove 
 the performance of the act, as he would be bound to prove any mat- 
 ter of record on which the validity of the deed may depend. For 
 example, if the lands be sold for the non-payment of taxes, the 
 marshal's deed is not evidence, even 2y7'ima facie, that the prere- 
 quisites required by law have been complied with; but the party 
 claiming under it must show positively that they have been com- 
 plied with. {Williams v. Peyton's Lessee, supra?) 
 
 The rule is substantially the same in this state. The recitals in 
 the deed given on such sale are not evidence of the facts stated in 
 them. {Jackson v. Shepard, 9 Coiven, 88. Jackson v. Esty, 7 
 Wend. 148. Leland v. Bennett, 5 Hill, 286. Bush v. Davison, 
 16 Wend. 550. Varick v. Tallman, 2 Barh. 113.) 
 
 CHAPTER VIII. 
 
 OF ALIENATION OF REAL PROPERTY THROUGH THE EXERCISE OF 
 THE RIGHT OF EMINENT DOMAIN. 
 
 The right of eminent domain is defined to be the ultimate right 
 of the sovereign power to appropriate not only the public property 
 but the private property of all persons within the territorial sove- 
 reignty, to public purposes. ( Vattel's Laiv of Nations, hook 1, ch. 
 20, § 244, approved by Story, J. in Charles River Bridge v. War- 
 ren Bridge, 11 Peters, 641.) No civilized state can exist without
 
 RIGHT OF EMINENT DOMAIN. 455 
 
 the enjoyment of this right. The various improvements which are 
 essential to the well being and prosperit}^ of a community rest upon 
 It. Without it, public highways, turnpike roads, rail roads and 
 canals, and the various public buildings which are needed for the 
 convenience of the administration of justice, or of the public chari- 
 ties of the country, could not be made and preserved. If govern- 
 ment was required, in every case, to obtain the assent of the owner 
 of real estate, which might be wanted for any of these purposes, or 
 for fortifications, it would be subjected to intolerable delays, and to 
 gross and unreasonable exactions, or be obstructed altogether. 
 
 The necessity for some provision on this subject, as well for the 
 public as for the security of individuals, was foreseen at an early 
 day, and accordingly it was provided by the fifth amendment to 
 the constitution of the United States, that private property shall 
 not be taken for public use, without just compensation. This pro- 
 vision is supposed not to embrace cases arising under the state o-qv- 
 ernments, but to be applicable solely to such as arise under'^the 
 general government. {Barron v. Mayor of Baltimore, 7 Pet 243 
 Livingston v. Mayor of New York, 8 Wend. S5. 2 Coioen, 818 ) 
 It assumes that government had the right already from the 'nature 
 of sovereignty, and it was designed to impose the limitation of just 
 compensation upon the exercise of the right. The constitution of 
 this state, while it asserts the original and ultimate property in aU 
 lands withm its jurisdiction, to be in the people, contains the same' 
 limitation as to the powers of the government to take private prop- 
 erty for public use, as is contained in the amendment to the con- 
 stitution of the United States, already referred .to. It is in truth 
 merely the assertion of a great principle, which governs the ac- 
 tions of all enlightened governments. 
 
 There never has been any doubt with respect to the exercise of 
 the right of eminent domain in this state, when the property was 
 to be applied for the public use, unconnected with individual profit 
 The taking of land without the consent of the owner, for the pur- 
 pose of laying out highways, and the erection of bridges, and of 
 gravel and other materials for their construction and reparation 
 was exercised as a right before the constitution was formed and 
 was regulated by statute. Nor was the right questioned to lay out 
 B. private ivay for an individual occupant. The necessity for the 
 road, m all cases, had to be determined by local ofiicers chosen by 
 the people, and suitable provision was contained in the various stat- 
 WlLL. — 30
 
 4GG RIGHT OF EMINENT DOMAIN. 
 
 utes on the subject, for making compensation to the owner for the 
 easement thus obtained. These laws existed in the time of the 
 colony, and have continued without interruption as to the principle 
 involved, to the present day. (2 Laivs of N. Y. 664, § 19, Van 
 Sell. ed. Id. 723, § 2. 1 Laws of N. Y. 139, 141, §§ 2, 13, Jones 
 & VaricFs ed. Laws of 1784. 1 Greenl. 108, § 13. 2 II. L. of 
 1813, ]j- 276, § 20. 1 R. S. 517, §§ 77, 79. 2 id. 402, 403, 5th 
 ed.) These laws above referred to cover the entire period from 
 1772 to the present day. 
 
 In the case of Taijlor v. Porter, (4 HiU, 140,) it was decided by 
 a majority of the supreme court, that the statute of 1830, author- 
 izing a private road to be laid out over the lands of a person without 
 his consent, is unconstitutional and void. The chief justice dis- 
 sented from the decision, and supported his views by reasoning 
 which has never been answered. The decision itself took the pub- 
 lic by surprise, and its correctness was very generally denied, Tliis 
 decision was, in 1846, brought to the notice of the convention then 
 in session to revise the constitution. {Atlas ed. 103.) The con- 
 stitution, as adopted in that year, contains a provision that private 
 roads may be opened in the manner to be prescribed by law, the ne- 
 cessity for the road and the amount of all damages to be sustained 
 by the opening of it, being first determined by a jury of freehold- 
 ers. {Const, of 1846, Art. 1, § 7.) 
 
 The same principle was made applicable to lands taken for turn- 
 pike roads, and the bridges connected with them. The charters of 
 the early companies contained suitable provisions on this subject, 
 and at length, in 1807, a general act was passed, (1 R. L. 231, § 3,) 
 authorizing the company to enter upon the land for the purpose of 
 making the road, if no person was living on the land who had au- 
 thority to receive the damages; but the title to the land was not 
 vested in the company, even for the purpose of the road, during the 
 existence of the charter, until actual payment of the damages, and 
 the moment the owTier made proper demand of the damages, and 
 the same were not paid, he might bring an action for the recovery 
 of the land. {3IeseroIe v. TJie Mayor of Brooklyn, 8 Paige. 198.) 
 
 A turnpike road being a substitute for the former highway, and 
 being open for all to travel on, was deemed a public road for all 
 purposes. It was never seriously doubted that the legislature had 
 the power, even after the adoption of the constitution of 1821, to 
 authorize the taking of land for a turnpike, without the consent of
 
 EIGHT OF EMINENT DOMAIN. 467 
 
 the owner, on making just compensation. The constitution of 
 1777 did not contain the prohibition against taking private property 
 for public use, and the clause was first inserted in the constitution 
 of 1821, (Art. 7, § 7,) in the same form that it exists in the pres- 
 ent constitution. Yet all the early charters for turnpike roads con- 
 tain the authority to take land for the purpose of the road, on 
 making just compensation. The fact that individual stockholders 
 were supposed to be entitled to derive a benefit from the use of 
 the road in the shape of tolls, did not derogate from the principle 
 that the purpose to which the land was applied was a public pur- 
 pose. These benefits were a remuneration for their capital invested 
 in the road, which relieved the public from the expense of con- 
 structing and keeping it in repair. 
 
 After the principle forbidding private property to be taken for 
 public use without just compensation came to be inserted in the 
 organic law, it was insisted that the legislature could not exercise 
 the right of eminent domain in favor of corporations, whether pri- 
 vate or municipal. It was contended that the statute must desig- 
 nate the specific land to be taken, and that the legislature could 
 not delegate the power to the corporation to make the location and 
 selection. Had the objection prevailed, it is quite obvious that no 
 rail road could have been constructed in this state, without an ex- 
 penditure of money that would have rendered the franchise value- 
 less. But the objection was overruled by the highest court of the 
 state. It was decided that the legislature may grant to such corpo- 
 ration the power to appropriate private property necessary for their 
 use, on making compensation as required by the constitution ; and 
 that such power may be gi-anted by a general act providing for the 
 creation of an indefinite number of corporations. (The Buffalo et 
 al. Rail Road Co. v. Brainard and others, 5 Selden, 100.) This 
 subject was very fully discussed in the early case of Bloodgood v. 
 The Mohaioh and Hudson Rail Road Co. (18 Wend. 9-78.) That 
 case was concluded by the court of errors, by the adoption of a res- 
 olution declaring, in substance, that the legislature of this state have 
 the constitutional power to authorize the taking of private property 
 for the purj^ose of making rail roads, or other- public improvements 
 of the like nature; whether such improvements be made by the 
 state itself, or through the medium of a corporation, or joint stock
 
 4G8 RIGHT OF EMINENT DOMAIN. 
 
 company, on making ample provision for a just compensation for 
 the property taken to tlie owners thereof. 
 
 The same doctrine has been applied, by the highest court of the 
 state, to municipal corporations. Thus, it was decided in Hey- 
 zoard v. The Mayor dc. o/Neiv York, (3 Seidell, 214,) that the legis- 
 lature has the power to authorize a municipal corporation to acquire 
 a fee simple to lands of private persons required for public purposes, 
 upon the payment of a just compensation, and when so acquired, 
 no reversionary estate remains; and if the public exigencies re- 
 quire the conversion to some other purpose they may be so converted. 
 
 The right of eminent domain does not imply a right in the sove- 
 reign power to take the property of one citizen and transfer it to 
 another, even for a full compensation, where the public interest will 
 be in no w^ay promoted by such transfer. But if the public interest 
 will be in any way promoted by the taking of private property, it 
 rests in the wisdom of the legislature to determine whether the ben- 
 efit to the public will be of sufficient importance to render it expe- 
 dient for them to exercise the right of eminent domain. (Beehman 
 V, Saratoga and Sch. Hail Road Co. 3 Paige, 73.) No just sove- 
 reign would take the property of the subject, for the public use, 
 without his consent, unless a ftiir equivalent w^as returned. The 
 question under our constitution is whether the payment of the com- 
 pensation should precede the taking of the private property for 
 public use, or be concurrent with such taking; or whether it is 
 enough that provision be made for its certain payment. In the 
 case of Rogers v. JSradshaiv, (20 John. 735,) the court of errors 
 decided that where private property was taken for public use, it was 
 not necessary that the amount of compensation should be actually 
 ascertained and paid before the appropriation; but that it was suf- 
 ficient if a certain and adequate remedy was provided, by which the 
 individual could obtain such compensation without unreasonable 
 delay. This principle was api:)roved in the later case of Bloodgood 
 \. Mohawk and Hudson R. R. Co. (18 Wend. 17.) 
 
 It is the better opinion that an act authorizing the taking of pri- 
 vate property for public use is not valid, unless it or some other 
 act contains a suitable and efficient remedy for such compensation. 
 It is not enough to cast the party, whose property is thus taken, 
 upon the doubtful and feeble remedy arising from the moral duty
 
 RIGHT OF EMINENT DOMAIN. 469 
 
 of the legislature to inake it. The legislature may authorize 
 an entry on tlie lands of a person for the purpose of examination, 
 without previous payment; hut that is a different thing from an 
 appropriation of the land to the puhlic, devesting the title of the 
 owner. (/S'ee Bloodgood v. M. and H. R. B. supra; Jerome v. 
 Boss, 7 John. Ch. 344; 2 Kent's Com. 339, note.) 
 
 It would seem, on principle, that when the parties cannot agree, 
 that a regular appraisal of the damages, followed up by payment 
 or its equivalent, a tender, whore acceptance of the sum awarded 
 has been declined, is essential to devest the owner, and to vest the 
 title in the corporation. ( Wheeler v. The Rochester and S. B. B. 
 12 Barb. 227.) 
 
 The title acquired by a corporation for lands necessary for a rail 
 road, is an estate in fee simple, whether the corporation be in terms 
 unlimited in its duration, or confined to a definite j)eriod. It may 
 receive a less estate by grant, if it be so stipulated in the deed; but 
 a corporation, although created but for a Hmited period, may ac- 
 quire the fee simple to lands necessary for its use. {Nicoll v. The 
 N. Y. and Erie B. B. Co. 2 Kern. 121. The Beople v. Mauran, 
 5 Den. 389.) Such a corporation has a fee simple for the purpose 
 of alienation, but a determinable fee for the purpose of enjoyment. 
 
 Although the lands be thus compulsorily obtained, yet where 
 the title has vested in the corporation by the payment of the just 
 compensation, all the incidents of ownership follow. Should the 
 exigences of the company make it necessary, they may alien such 
 lands in fee simple. In the case of the Almshouse in New York, 
 it had been used for twenty-seven years, and was then moved to 
 another site, and yet the title to the original site was not thereby 
 lost. {Heyward v. Tlie Mayor do. of N. Y. 3 Seld. 214.) 
 
 The statutes of this state make ample provision for the case of 
 persons laboring under the disability of infancy, idiocy, insanity, 
 &c., when it is necessary to take their lands for the purpose of a 
 rail road; and also for the case of non-residents. But the further 
 consideration of this branch of the subject does not belong to this 
 work. (Laws of 1850, ^j^J- 216, 217. Id. of 1854, ch. 282, p. 
 608 et seq.) 
 
 If the title be acquired by an amicable agreement between the 
 parties, the deed will be in the form of other deeds to a corpora- 
 tion; and it will carry the fee without words of limitation. {Nicoll 
 v. N. Y. and Erie B. B. supra.) If, however, it be acquired by
 
 470 ALIENATION BT DEVISE. 
 
 the exei'cise of the right of eminent domain, the proceedings should 
 be set forth at large, showing jurisdiction in the officer, and the 
 mode in which it was exercised. (See the form of a record of an 
 assessment of damages in Adams v. Saratoga and Washington 
 B. R. Co. 11 Barb. 414-417 et seq., and remarks hy Willard, J. 
 in that case; and the remarks of the judge in Buell v. The Trus- 
 tees of the Village of Lochport, 4 Seld. 58; Dyckman v. The May- 
 or of N. York, 1 id. 434, and remarks of Foote, J. in that case, 
 page 440.) [See Appendix.] 
 
 CHAPTER IX. 
 
 OF THE ALIENATION OF KEAL ESTATE BY DEVISE. 
 
 Section I. 
 Of the Nature of a Devise. 
 
 The mode of alienation, of which we have been treating hereto- 
 fore, in cases where it was made by the parties possessing the title 
 at the time, in general, assumes that the instrument of conveyance 
 will take eifect during the life of the grantor. A devise, on the 
 contrary, is a disposition of real jiroperty in a person's last will and 
 testament, to take effect on the death of the devisor. 
 
 The law has not prescribed any particular form in which a de- 
 vise must be framed. It must be in waiting, and must indicate the 
 intention of the testator to dispose of his lands after his decease. 
 No entry is required by the devisee to render the transfer of the fee 
 effectual. The devise interrupts the descent of the land to the 
 heir; and the de\T[see may bring an action against the heir to re- 
 cover the estate devised, before the will has been admitted to pro- 
 bate; The title of the devisee is derived from the will, and not 
 from the decree of the surrogate's court, A will of freehold lands 
 need not be proved before the surrogate, in order to perfect the ti- 
 tle of the devisee; though it is usual, and always recommended, 
 that a will merely disposing of real estate, should be proved and 
 recorded according to the provisions of the revised statutes. This 
 is important not only to perpetuate the evidence of the due execu- 
 tion of the will, but to defeat any conveyance that might be made
 
 DEVISE, LEX REI SIT^. . 47^ 
 
 by the heir after the death of the testator, to a party purchasing in 
 good faith, without knowledge of the will. Unless the will is 
 proved and recorded in the proper court within four years after the 
 death of the testator, in the manner prescribed by the act, the title 
 of a purchaser in good faith, and for a valuable consideration, from 
 the heirs, will prevail over that of the devisee. (2 R. S. 749, § 3.) 
 In a contest between the devisee and the heir, the probate copy 
 of i\iQ will is not necessary to be produced; nor is it evidence, un- 
 less it has been proved before the surrogate as a will of real estate, 
 on the requisite citation to the heirs. It is otherwise with respect 
 to a will of personal property. The probate of a will of personal 
 property, whether obtained by a summary or a plenaiy proceeding, 
 if granted by the proper court, is conclusive evidence of the due 
 execution of the will and of the testamentary capacity of the testa- 
 tor. {Bogardus v Clark, 4 Paige, 623. Muir v. The Trustees of 
 the Orphan Asylum, 3 Barb. Ch. 477. Cotton v. Ross, 2 Paige, 
 396. Vanderpoel v. Van ValTcenhurgh, 2 Seld. 190.) 
 
 A court of equity frequently decides upon the validity of a wiU 
 of real estate, when the question comes before it collaterally; but 
 if the heir insists upon the invalidity of the will in his answer, an 
 issue is awarded to try the question at law. It was well settled 
 under the former practice of the court, and the principle still re- 
 mains sound, that the heir cannot go into equity to set aside a will 
 on the ground of the incompetency of the testator, if the defendant 
 makes the objection in due time. {Cotton v. Ross, supra.) The 
 validity of the will, and every question affecting capacity, are di- 
 rectly involved in an action by the devisee to recover the estate de- 
 vised to him, whether the action be against the heir or any other 
 person. Those questions may be discussed in an action before the 
 proper court to prove the will as a will of real estate, as wUl be 
 shown more fully in a subsequent section. 
 
 A will of immovable property, that is, a devise, is in general 
 governed by the lex rei s^itoi. The law of the place where such 
 property is located, by the rules of the common law, governs as to 
 the capacity or incapacity of the testator, the extent of his power 
 to dispose of the property, and the forms and solemnities necessary 
 to give the will effect. (1 Jarman on Wills, 1. Stor7j on Conflict 
 of Laws, § 474. Holmes v. Remsen, 4 John. Ch. 460; S. C 20 
 John. 229. McCormick v. Sullivant, 10 Wheat. 192. ' U. States
 
 472 BEQUEST. LEX DOJ^IICILII. 
 
 V. Crosby, 7 CrancJi, 115. Clark v. Graham, 6 Wheaton bll. 
 Kerr V. Devisees of Moon, 9 id. 5G5.) In some of tlie states it is 
 understood there are statutes changing the above rule, but in this 
 state the doctrine of the common law prevails. 
 
 If the property disposed of by the will be personal, or rather 
 movable property, the lex domicilii prevails. The cases before cited 
 show that with respect to a bequest of personal property, or the 
 succession to it on the death of the intestate, the law of the domicil 
 of the testator or intestate controls. This appears to be the general 
 rule in all civilized countries, and may be said to be a part of the 
 jus gentium. {Ennis v. Smith, 14 Eoio. TJ. S. Rep. 400.) 
 
 The presumption of law is that the domicil of origin is retained, 
 until residence elsewhere has been shown by him who alleges a 
 change of it. But residence elsewhere repels the presumption, and 
 caste upon him who denies it to be a domicil of choice, the burden 
 of disproving it. The place of residence must be taken to be the 
 domicil of choice, unless it is proved that it was not meant to be a 
 principal and permanent residence. {Id. 421 et seq.) 
 
 The question of domicil is much more a question of fact than of 
 law. It depends on intention, and on the/aci of actual residence. 
 Intention alone will not work a change of domicil; nor will the re- 
 moval of a person from one place to another, for temporary pur- 
 poses, and with no intention to break up the original domicil. The 
 original domicil remains until another has been acquired. {See 
 Bempde v. Johnstone, 3 Vesey, 201. Munroe v. Douglass, 5 
 Mad. 379.) 
 
 ^ Section II. 
 
 Of the Parties to a Devise. 
 
 To enable a party to devise his real estate he must be of sound 
 mind, and not labor under any disability, as infancy or coverture; 
 and the party to whom the estate is devised must be capable of 
 taking by that form of alienation. This matter is in this state 
 regulated by statute. It is enacted that all persons except idiots, 
 persons of unsound mind, married women and infants, may devise 
 their real estate by a last will and testament, duly executed accord- 
 ing to the provisions of law. (2 R. S. 5&.) 
 
 The first two grounds of disability embrace every case of testa- 
 mentary incapacity, such as idiocy, lunacy or unsoundness of mind,
 
 PARTIES TO A DEVISE. 473 
 
 whether caused by old age or other infirmity. This branch of the 
 subject belongs to works on the probate of wills in the surrogates' 
 courts, and is fully discussed in Willard on Executors, QQ et seq. 
 to which, and the cases there cited, the reader is referred. The pre- 
 sumption of law is that every person possesses the requisite capacity 
 imless the contrary appears. The onus is cast upon the party who 
 impeaches the will, to make out the fact of incapacity. All per- 
 sons except those laboring under one or more of the disabilities 
 referred to are expressly empowered to make a will. 
 
 The statute which authorizes the father to dispose of the custody 
 and tuition of his infant child during its minority, is not confined 
 to such father as is of full age, but is expressly extended to a father 
 who is a minor. This disposition is to be by deed or last will, and 
 as a male must be of the age of eighteen years or upwards, in order 
 to make a valid will of personal estate, he cannot make a testamen- 
 tary appointment of a guardian under that age. (2 i?. S. GO, 150. 
 Willard on Executors, 453.) 
 
 The disability of coverture, which was general in 1830 when the 
 statutes were revised, has been in a great measure removed by sub- 
 sequent statutes. The act of 1849, to amend the act for the more 
 efi'ectual protection of the property of married women, {Laivs of 
 1849, p. 528,) permits a married woman to take by inheritance or 
 by giftj grant, devise or bequest, from any person other than her hus- 
 band, and hold to her sole and separate use, and convey and devise 
 real and personal property, and any interest or estate therein, and the 
 rents, issues and profits thereof, in the same manner and wdth the like 
 efi'ect as if she were unmarried. And such real estate is not sub- 
 ject to the disposal of the husband, nor is it liable for his debts. 
 The will of a feme covert, made in pursuance of the above statute, 
 like a will made in pursuance of a power, should be admitted to 
 probate in the court of the proper surrogate. ( Waters v. Cidlen, 
 2 Bradf. 354. Van Wert v. Benedict, Id. 114.) In one of the 
 above cases, the surrogate of New York treated the act of 1849 as 
 a substantial repeal of the restriction contained in the revised stat- 
 utes against the validity of a will made by a married woman in 
 regard to real and personal property. He considered it as removing 
 the personal disability, and did not think it was limited to subse- 
 quently acquired property. Be this as it may, the statute of 18G0, 
 ch. 90, is in terms made applicable not only to such property as the 
 maiTied woman owns as her sole and separate property; to that
 
 474 PARTIES TO A DEVISE. 
 
 ■which comes to her by descent, devise, bequest, gift or graut ; to tliat 
 which she acquires by her trade, business. Labor or services carried ou 
 or performed on her sole or separate account; but also to that which 
 a married woman in this state owns at the time of her marriaye. 
 It declares that it shall be and remain her sole and separate prop- 
 erty, 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, except such debts as may have been 
 contracted for her support of herself or her children, by her as his 
 agent. 
 
 We have seen, in a former part of this treatise, that with respect 
 to her real estate, a married woman may convey it by deed in ail 
 respects as if she were sole and unmarried. It follows, by parity 
 of reasoning, that she may devise it in the same manner. Her will 
 is subject to all the incidents of that of a single woman. If proved 
 before the surrogate, the citation should go to her heirs, which in 
 this case embraces her late husband, who, in certain cases, succeeds 
 to her estate as heir. {L. of 1860, ^j. 159, § 11.) 
 
 In considering who- are capable of being devisees, under a will 
 of real estate, the subject naturally divides itself into two branches: 
 1, with regard to natural persons; and 2, with regard to corpo- 
 rations. 
 
 1. All natural 2^er sons who are, at the time when a will is made, 
 capable of acquiring lands by purchase, such as infants &c. may be 
 devisees. Under this rule j^osthttmous children are embraced. The 
 revised statutes permit them to inherit, when no provision is made 
 for them, or they are not mentioned in the will; and thus by direct 
 implication allow them to be devisees. (2 B. S. 65, § 49. Mitch- 
 ell V. Blair, 5 Paige, bSQ.) 
 
 A ma^-ried ivoman may take by devise from her husband; for it 
 does not take effect till his death. Of course she may take from 
 any other person. The same is true of persons laboring under the 
 diability of idiocy, lunacy, &c. 
 
 An illegitimate may take by devise, whether he is in esse and has 
 acquired a name or not; if he be so described as to remove all un- 
 certainty as to the person intended. It was at one time supposed 
 that a bastard in ventre matris was incapable of being a devisee, 
 and, therefore, that such a devise was void. {Co. Litt. 3 5.) The 
 reason, assigned by Coke, was that he must have gotten a name by
 
 DEVISE TO CORPORATIONS. 475 
 
 reputation before he could be the grantee, and, of course, the devi- 
 see of an estate. But the object of a name is to identify the per- 
 son, and this surely can be done by describing the mother. A will 
 in favor of natural children is to receive a like construction as those 
 in favor of other persons. Although a devise to children, without 
 other description, means legitimate children, yet if the testator had 
 no legitimate children, and had those who were illegitimate, and 
 who were recognized as his, they will be entitled to take. {Gard- 
 ner V. Heijer, 2 Paige, 11.) 
 
 The rule of law does not acknowledge a natural child to have any 
 father before its birth. A devise by a man to such child or chil- 
 dren as A. may happen to he enciente hy we, is void for uncer- 
 tainty. But a devise to a child or children, of which a particular 
 woman was enciente, without reference to any person as its father, 
 would be free from uncertainty, and probably good. {East v. Wil- 
 son, 17 Ves. 531.) 
 
 2. Corporations. The revised statutes expressly provide that 
 no devise to a corporation shall be valid, unless such corporation be 
 expressly authorized by its charter or by statute, to take by devise. 
 (2 II. S. 57, § 3. The Theological Seminary of Auburn v. Childs, 
 4 Paige, 422. King v. Bundle, 15 Barb. 139.) The act in rela- 
 tion to religious incorporations allows those bodies to take and hold 
 real estate by grant or debase ; and the only restriction is as to the 
 amount of the lands which they are entitled to hold. (3 B. S. 295, 
 § 4, 1st ed.) It is under this general act that most of the religious 
 societies in this state have been incorporated. They have an un- 
 limited power to receive property up to a certain amount, but their 
 230wer of alienation of their realty requires for its validity the action 
 of the supreme court or county court. 
 
 The corporations formed under the general act of April 12, 1848, 
 for the incorporation of benevolent, charitable societies, and mission- 
 ary societies, and the several amendatory acts, {L. of 1848, p). 447, 
 § 6. Id. of 1849, p. 400. Id. of 1857, p. 615,) although made 
 capable of taking, holding or receiring any property, real or per- 
 sonal, by virtue of any devise or bequest contained in any last will 
 and testament of any person whatsoever, the clear annual income 
 of which devise or bequest shall not exceed the sum of ten thousand 
 dollars, are expressly subject to the proviso, that no person leaving 
 a wife or child or parent, shall devise or bequeath to such institu-
 
 476 RELIGIOUS CORPORATIONS. 
 
 tion or corporation more than one-fourth of his or her estate, after 
 the pajinent of his or her debts, and such devise or bequest shall be 
 valid to the extent of such one-fourth; and no such devise or bequest 
 shall be valid, in any will which shall not have been made and ex- 
 ecuted at least two months before the death of the testator. This 
 disabling clause is founded on the principle that the claim of cred- 
 itors, and of wife, child and parent is stronger than that of benev- 
 alence, and should be satisfied before the testator should dispose of 
 his property for })ious uses. The limitation too, that the devise or 
 bequest should be made at least two months before the testator'3 
 death, is not without its value. The motive doubtless is to insure 
 the making of the devise or bequest with reasonable deliberation, 
 without yielding to an importunity wdiich some minds cannot resist 
 in the closing period of life. 
 
 It is the policy of the laws of this state, that the various religious 
 denominations should become incorporated under the general stat- 
 ute for that purpose. The temporalities of the church, in that case, 
 become vested in the trustees, the whole, or major part of whom, 
 are laymen, and are not exclusively under ecclesiastical control. 
 The act of 1855, entitled " An act in relation to conveyances and 
 devises of personal and real estate for religious purposes," (L. of 
 1855, ch. 230, p. 338; 3 R. S. 621, btli ed.) was enacted to carry 
 out these views. It has been adverted to in former parts of this 
 treatise. It enacts that no grant, conveyance, devise or lease, of 
 personal or real estate to, nor any trust of such personal or real 
 estate, for the benefit of any person and his successor or successors 
 in any ecclesiastical office, shall vest any estate or interest in such 
 person, or in his successor; and no such grant, conveyance, devise 
 or lease, to or for any such person, by the designation of any such 
 office, shall vest any estate or interest in any successor of such person. 
 And without admitting the validity of any such grant, conveyance, 
 devise or lease theretofore made, it enacts that no future grant, 
 conveyance, devise or lease of any real estate, consecrated, dedi- 
 cated or appropriated, or intended to be consecrated, dedicated or 
 appropriated to the purposes of religious worship, for the use of any 
 congregation or society, shall vest any right, title or interest in any 
 person or persons to whom such grant, conveyance, devise or lease 
 may be made, unless the same shall be made to a corporation or- 
 ganized according to the provisions of the laws of this state, under 
 the act entitled " An act to provide for the incorporation of religious
 
 DEVISE TO ALIENS. 477 
 
 societies," and the acts amendatory thereof, or under the act enti- 
 tled '' An act for the incorporation of societies to establish free 
 churches," passed April 13, 1854. {L. of 1854, ch. 218. 2 R. S. 
 620, 5th ed.) Subsequent sections pro\'ide for the escheat of such 
 real estate to the people of this state, in the event that such con- 
 gregation or society shall not be incorporated as aforesaid, and for 
 placing it under the charge of the commissioners of the land office 
 of the state, who are required, on being satisfied that the congre- 
 gation or society which had used, occupied or enjoyed such real 
 estate for the purposes of religious worship prior to the death of 
 the person or persons on whose decease the title thereto vested in 
 this state, has been duly incorporated, to grant and convey such real 
 estate to said corporation. 
 
 The occasion which led to the foregoing acts was the refusal of 
 the Roman Catholics to become incorporated under the general 
 law ; and their practice of vesting the title of their real estate ded- 
 icated to the purposes of religious worship in ecclesiastics. That 
 policy was deemed incompatible with our institutions, as it gave an 
 undue control to those persons over the laity of their congregations. 
 
 If a de\'ise be made to the heirs of the testator of the precise 
 estate which they would take by descent, the devise is void, and the 
 heirs take by descent, which is the better title. This was the rule 
 by the common law; but it was changed by the English statute of 
 3 and 4 Will. 4th, ch. 106, § 3, which requires in such a case that 
 the heir shall take as a devisee, and not by descent. (1 Jarman 
 on Wills, 111, Ferkms' ed.) But the rule has not been altered by 
 the law of this state. ( Vcm Kleeck v. Dutch Church, 20 Wend. 469.) 
 
 With regard to the alienage of the devisee, it was enacted by the 
 revised statutes, that every devise of any interest in real property 
 to a person who, at the time of the death of the testator, shall be an 
 alien, not authorized by statute to hold real estate, shall be void. 
 The interest so devised descends to the heirs of the testator; if there 
 be no such heirs competent to take, it passes under his will to the 
 residuary devisees therein named, if any there be competent to take 
 such interest. (2 R. S. 57, § 4.) But this statute was modified 
 m 1845 (L. of 1845, ch. 115) in favor of such resident aliens as 
 have made and filed in the office of the secretary of state the depo- 
 sition in writing required by 1 B. S. 720, § 15, that he is a resident 
 of this state, and intends always to reside in the United States and
 
 478 PROPER SUBJECT OF A DEVISE. 
 
 to become a citizen thereof, as soon as he can be naturalized, and 
 that he had taken such incipient measures as the h'lws of the Uni- 
 ted States require to enable him to obtain naturalization. An alien 
 having thus complied with the law, may take by grant or dtvise, 
 and may also grant and devise his own real estate. 
 
 The court of appeals held in Wadsivortliv. Wadsioorth, (2 Ker- 
 nan, 376,) that the foregoing provision of the revised statutes did 
 not apply to an alien devisee, born after the death of the testator. 
 Such a person could take real estate by devise, though he could not 
 hold it against the state. In that case the testator devised lands 
 in trust for the use of his daughter, who was an American citizen, 
 during her life, Avith remainder in fee to her issue, and she subse- 
 quently died leaving an alien son, born after the death of the testa- 
 tor; the court held that he took under the will as against the heirs 
 of the testator. 
 
 The authorities which establish the common law rule, that an 
 alien may take by 'devise, and hold against all but the state until 
 office found, are, among others, Doe v. liobertson, (11 Wheat. 332;) 
 Fairfax v. Hunter, (7 Cranch, 603.) 
 
 The act of 1845 enables the alien to anticipate the benefits of 
 our naturalization laws, and it has a benign tendency to induce 
 those who intend to take their lot in this country, to become citi- 
 zens as soon as the laws will permit. 
 
 .' J 
 
 Section III. 
 Of the proper subject of a Devise. 
 
 The proper subject of a devise is real estate. It matters not 
 whether it be in possession, or remainder, or reversion; it is in ei- 
 ther case the subject of devise. Every estate and interest in real 
 property, descendible to heirs, may be so devised. (2 li. S. 57, § 2.) 
 
 By the rules of the common law, a testator could not devise lands 
 subsequently acquired, however strongly his intention to that effect 
 might'-be expressed. (Bunter v. Coke, 1 Salk. 237.) The English 
 statute (1 Vict. ch. 26, § 24,) has changed the rule of law upon 
 this subject entirely, and provided that every will shall be construed, 
 with reference to the real and personal estate comprised in it, to 
 speak and take effect as if it had been executed immediately before 
 the death of the testator; unless a contrary intention shall appear 
 in the will. (See 1 Will. Ex. Preface, p. 16.) The revised stat-
 
 ESTATES HELD IN TRUST. 479 
 
 utes have not gone so far as to put wills of real estate upon the 
 same footing as wills of personal property, in this respect; though 
 they have unquestionably abrogated the technical rule that the tes- 
 tator was incapable of devising an interest in land, or real estate, 
 acquired subsequent to the date of the will by which he attempted 
 ' to dispose of the same. {Pond v. Bergh, 10 Paige, 149. Parker 
 V. Bogardus, 1 Seld. 309.) The 5th section of the title relative 
 to wills of real and personal property, (2 R. S. 57,) declares that 
 every vdW that shall be made by a testator in express terms, of all 
 his real estate, or in any other terms denoting his intent to devise 
 all his real property, shall be construed to pass all the real estate 
 which he was entitled to devise at the time of his death. This stat- 
 utory provision proceeds upon the ground that in a general devise 
 of all his real estate, the testator has reference to the real estate as 
 it shall exist at the time of his death; and that such a construction 
 of the testamentary disposition of his property will be but carryino- 
 his intention into effect. Upon the same principle, said the chan- 
 cellor in Pond v. Bergh, (supra,) if he devises all the real estate 
 of a particular descrii)tion of which he shall die possessed, or which 
 shall belong to him in aparticniar toivn or county, at the time of 
 his death, although the devise would not be within the words of 
 this section, it not being a general devise of all his real estate, it 
 would clearly be within the spirit and intent of the act. But where 
 he devises all his real estate at a i)articular place, or within a par- 
 ticular district of country, there is good reason to suppose he means 
 to speak in reference to the lands he has acquired there; and that 
 if he intended to give to the devisee all the lands or real estate 
 which he should afterwards purchase at that place, or within the 
 specified district of country, there would have been something in 
 his will indicating such an intention. 
 
 The provisions of the statute do not apply to wUs executed prior 
 to 1830, when the revision took effect. In this respect, the effect 
 of wills executed prior to that time, is not touched by the statute, • 
 but remains as at common law. {Parker v. Bogardus, 1 SelcU 309. 
 Ellison V. Miller, 11 Barb. 332.) 
 
 In order to devise real estate, a man must be the beneficial owner. 
 We have seen elsewhere that he cannot alienate, and of course can- 
 not devise real estate held by him in trust. In such a case, on the 
 death of an only trustee, the trust vests in the supreme court, which 
 is authorized to appoint a new trustee; and thus the trust is pre-
 
 480 ESTATES HELD IN JOINT TENANCY. 
 
 served until the purpose for whicli it was created is Batisfied. 
 (1 It. S. 730, §§ 67, G8, 71. In the uiaftcr of Van Schoonhoven, 
 5 Paige, 559. Haivley v. Boss, 7 id. 103.) 
 
 Chattels real, or terms for years, cannot be devised, though, like 
 other personal property, they can be bequeathed, and thus disposed 
 of by will. If not so disposed of, they vest in the executor or ad- 
 ministrator, as assets, and do not descend to the heirs. They are 
 to be inserted in the inventory as part of the personal property of 
 the deceased. (2 R. S. 82.) 
 
 A party who has entered into a valid executory contract to pur- 
 chase real estate, has such an interest even before the legal title is 
 conveyed to him, that he may devise the same. This is an equita- 
 ble interest which a court of equity will protect. 
 
 From the time when the agreement was executed, the vendor is 
 considered to be seised only in trust for the purchaser, who in equity 
 is treated as the real owner. The latter, therefore, can devise 
 the land, but the former cannot. The language of our statute is 
 broad enough to include this, as a devisable interest. Equity goes 
 upon the maxim that what is agreed to be done is treated as actu- 
 ally performed. 
 
 A possibility coupled with an interest is devisable, when the per- 
 son in whom the interest is to vest in the event contemplated, is 
 known or is capable of being ascertained. As to such interest, it is 
 held that devisable and descendible are convertible terms; and no 
 particular form of words is necessary in a will to embrace contin- 
 gent interests in real estate. {Pond v. Bergh, supra.) 
 
 It is no objection to the right of devising property that it is held 
 by a stranger adversely; and it is strongly intimated that under our 
 statute of wills, a devise may be good notwithstanding an actual 
 disseisin. The statute against champerty and maintenance does 
 not apply to devises, nor to judicial sales or assignments under our 
 insolvent laws. (Varickv. Jackson. 2 Wend. 166.) 
 
 We have few cases of joint tenancy in this state, as the laAv fa- 
 vors a tenancy in common. But where an estate is held by two or 
 more in joint tenancy, none but the last survivor can devise it. A 
 different rule would defeat the right of survivership, which is an , 
 inseparable incident of the estate. The reason assigned by Coke 
 is, that the survivor has a priority of time in the instant, and there- 
 fore is preferred to the devisee of the deceased. (Litt. § 287. Co. 
 Litt. 185 6.)
 
 FORMALITIES TO A DEVISE. 481 
 
 A mortgage is considered as a mere security for the payment of 
 the debt. The debt is the principal and the mortgage the incident. 
 Formerly, on the death of the mortgagor, the personal representa- 
 tives, as between them and the heirs, were bound to relieve the in- 
 heritance from the incumbrance. This was changed by the revised 
 statutes; and now, whenever real estate, subject to a mortgage 
 executed by any ancestor or testator, shall descend to an heir, or 
 pass to a devisee, such heir or devisee is required to satisfy and dis- 
 charge the mortgage out of his own property, without resorting to 
 the executor or administrator of the ancestor, unless there be an 
 express direction in the will of the testator, that such mortgage be 
 otherwise paid. (1 R. S. 749, § 4. Mollan v. Griffiths, 3 Paige, 
 404. House v. House, 10 id. 162. Johnson v. Corbett, 11 id. 269. 
 Ta7jlor v. Wendel, 4 Brad/. 324.) 
 
 Until foreclosure, the legal estate is in the mortgagor, and he may 
 devise the premises in the same manner as if they were unincum- 
 bered. But the mortgagee has no estate in the land which will 
 pass to his heirs, or can be devised as real property, even after 
 breach of the condition, until foreclosure. 
 
 A rent charge is devisable, and may be severed from the inher- 
 itance. By the devise of the reversion the rent will pass, unless 
 some provision be made to the contrary. But by a devise of the 
 rent alone, the reversion will not pass. (Demarest v. Willard, 8 
 Coiven, 206.) 
 
 Section IV. 
 0/ the Formalities necessary to a Valid Devise. 
 
 There was formerly a marked distinction between a will devising 
 real estate, and a will which merely disposed of personal property. 
 This distinction applied not only to the solemnities attending the ex- 
 ecution of the instrument, but also to the capacity of the testator, 
 and the necessity and mode of probate. These distinctions have, 
 in a great measure, been abrogated in this state. The only diifer- 
 ence between the two cases now is, that it is essential to the mak- 
 ing of a will of real estate that the testator should be of the full 
 age of twenty-one years, whereas a male infant of the age of eigh- 
 teen years or upwards, and an unmarried female infant of the age 
 of sixteen years or upwards, if laboring under no other disal)ility, 
 
 Will.— 31
 
 482 MODE OF EXECUTION. 
 
 may, in either case, bequeath their personal estate by will in writ- 
 ing. (2 It. S. 57, GO.) 
 
 The probate of wills and the proving and recording wills of real 
 estate belong to the courts of the surrogates of the several counties, 
 and are sufficiently treated in books devoted to that subject. 
 
 It is not necessary to the validity of a devise, that the \viU should 
 have been admitted to probate as a will of personal property; or that 
 it should have been recorded as a will of real estate, under the pro- 
 visions of the revised statutes. We have seen elsewhere, that it is 
 desirable that it should be proved in the proper court as a matter 
 of prudent precaution and to preserve the evidence of its authenti- 
 city, but that the devisee does not derive his title from the probate, 
 as the party claiming a personal bequest does to a certain extent. 
 
 The devisee may, without the proof of the will before the surro- 
 gate, enter upon the land devised to him, or maintain an action at 
 law for its recovery, if it be in the possession of a stranger, at the 
 death of the testator, or at any other time. It hence becomes ne- 
 cessary to know the requisite proof to sustain a title under a will; 
 and that in a great measure depends on the statutory requirements 
 as to the execution of it. 
 
 The general provisions with respect to the execution of a will of 
 real estate are the same as those which are required in a will of 
 personal property, and are prescribed by the statute. (2 B. S. 63, 
 § 40.) It is required that a last will and testament of real or per- 
 sonal property, or both, shall be executed and attested in the fol- 
 lowing manner : 
 
 1. It shall be subscribed by the testator at the end of the will. 
 
 2. Such subscription shall be made by the testator, in the pres- 
 ence of each of the attesting witnesses, or shall be acknowledged by 
 him to have been so made, to each of the attesting witnesses. 
 
 3. The testator, at the time of making such subscription, or at 
 the time of acknowledging the same, shall declare the instrument 
 so subscribed to be his last wiU and testament. 
 
 4. There shall be at least two attesting witnesses, each of whom 
 shall sign his name as a mtness, at the end of the will, at the 
 request of the testator. (2 B. S. 63, § 40; 68, § 71, as to codicil.) 
 
 The four ingredients above specified must enter into, and together 
 constitute one entire complex substance essential to a complete ex- 
 ecution. {Per Nelson, J. in Bemsen v. Brinkerhpof, 26 Wend. 331.)
 
 ON WlIxVT TO BE WRITTEN. 483 
 
 Before -noticing more at large the above four requisites, it is 
 proper to say that the will must be in writing. The statute has 
 not declared on what substance it should be written,- nor whether 
 with pen and ink, or with a lead pencil. It is invariably, in this 
 state, wTitten on paper or parchment, and with pen and ink; and 
 that is recommended as the most advisable course. In England, 
 wills of personal property written with a pencil have been admitted 
 to probate. {Rymer v. Clarkson, 1 FMll. 35. Dickerson v. Dich- 
 erson, 2 id. 173.) The question has not arisen in this state since 
 the revised statutes. We have seen that it is essential to the valid- 
 ity of a deed that it should, be \mtten on paper or parchment. 
 This was founded on technical reasons applicable to common law 
 proceedings, and does not necessarily relate to wills, the proof of 
 ■which belonged to a difi'erent forum. But in this state, wills of 
 real and personal property are both placed on the same footing, and 
 are required to be in writing, and subscribed by the testator at the 
 end thereof, and to be attested by at least two witnesses, who are 
 to siern their names at the end of the will as such witnesses. It was 
 obviously the design of the legislature, at the revision, to assimilate 
 the different modes of conveyance to each other. There is a strong 
 implication, from the language of the statute, that the will should 
 be written with pen and ink. The decision of the court of errors in 
 Davis V. Shields, (26 Wend. 341,) which arose under similar lan- 
 guage in the statute of frauds, to that in the act concerning wills, 
 affords a strono: argument in favor of the doctrine that a testa- 
 mentary instrument must be written on j)ai)er or parchment, with 
 pen and ink. Professor Greenleaf, the learned editor of Cruise's 
 Digest, seems to think that it is not indispensable to the validity of 
 a will, that it should be written on paper or parchment, or with 
 pen and ink; and that the substance on which it is written or the 
 mode of writing is not conclusive as to the intention. (3 Cruise's 
 Dig. 45, 7iote 2, Greenl. ed. tit. 3S, Devise, ch. 5, § 4.) The learned 
 professoy does not speak with reference to the laws of this state, 
 but the common law. (See also Green v. Skipworth, 1 Phill. 53.) 
 
 It is not material in w^hat language the will is written, nor in 
 what handwriting, or character, so that it be fair and legible, and 
 the meaning sufficiently apparent. Nor is it important whether 
 numbers, or sums of money, be expressed in words at length, or in 
 figures; nor whether abbreviations be used, provided they are such 
 as are usual and well understood. Nor is it necessary, absolutely,
 
 484 FIRST REQUISITE— SUBSCRIBING. 
 
 that the rules with respect to capitalizing and punctuation should 
 be strictly observed. These are matters which a skillful draftsman 
 will never disregard, as a correct observance of good usage in this 
 respect tends to avoid ambiguity and uncertainty; and thus to re- 
 lieve the parties interested from distressing and expensive litigation. 
 
 Thus much has been deemed necessary to say on the sulyect of 
 the writing of a will, and the materials with which it should be 
 done. It is now proposed to notice the four requisites particularly 
 specified in the statute. Experience has shown that it is impossi- 
 ble to announce the directions of the lawgiver in a few brief sentences, 
 so accurately expressed, as to avoid all room for construction. The 
 imperfection of human language frequently calls for circumlocution 
 to free it from doubt and uncertainty. 
 
 Thejirst re(iuisite, that of suhscrihing hy the testator at the end 
 of the will, was a change from the former law, which required only 
 the signing of the will by the testator. (1 i?. L. 364.) Under 
 that law it had been held that if the testator wrote his name in any 
 part of the vsdll, with the intent to give it validity, it was a suffi- 
 cient signing within the meaning of the statute; and that making 
 his mark with the like intent, was a valid signing. {Jachson v. 
 Van Dusen, 5 John. 144. Bakei' v. Dunning, 8 Adol. & EU. 94. 
 Tonnele v. Hall, 4 Comst. 145, ^:>er Jeivett, J. 1 J arm. on Wills, 
 Perkins' ed. 114, a7id notes.) 
 
 The mischief under the old law was, as stated by Jewett, J., 
 supra, that inasmuch as the testator was not required to sign the 
 will at the end of it, it could n(jt always appear clearly that he had 
 perfected the instrument. To remedy this, our statute requires the 
 will to be subscribed by the testator at the end of the will. The 
 late English statute, Victoria 1, chap. 26, passed in 1837, has adopt- 
 ed a similar change, by requiring the will to be " signed at the foot 
 or end of the will." The word " subscribe" imports a signing be- 
 neath the matter written, and this is made more plain by adding, 
 " at the end of the will." A will commencing with the name of 
 the testator, as " I A. B. make this my last will and testament," 
 which was held to be a sufficient signing within the old law, would 
 not be a subscribing of his name at the end of the will, within the 
 meaning of the present statute. 
 
 The statute does not require that a testator who cannot write 
 should make his mark. It how^ever evidently implies that a person 
 who cannot write his own name, whatever be the cause of the omis-
 
 SECOND. SUBSCRirTIOX BY TESTATOR. 485 
 
 sion, may make a will : that in such a case some other person may, 
 by the direction of the testator, sign the testator's name to the will. 
 But in this case, the person who thus signs the testator's name to 
 the will, is required " to ^vrite" his own name " as a witness to the 
 loilL" (2 R. S. 64, § 41.) The former practice of making his 
 mark should be followed when the testator fails to subscribe his 
 name personally. For though such mark cannot perhaps be proved 
 by persons vvlio had seen the testator make his mark to other wi'it- 
 ings, the making of the mark is calculated to impress itself upon 
 the mind of the witnesses, and to call the attention of the testator 
 more strongly to the act of execution of the instrument. (Keeney 
 V. Whitmarsh, 16 Barh. 141. Butler v. Benson, 1 id. 527. Chaffee 
 V. The Baptist Miss. Con. 10 Paige, 91. Addy v. Grix, 8 Vescy, 
 504. Jackson v. Van JDusen, supra.) 
 
 The second requirement is that the subscription shall he made hy 
 the testator in the presence of each of the attesting witnesses, or 
 shall be achioidedged by him to have been so made to each of the 
 attesting witnesses. 
 
 This acknowledgment by the testator is an independent requisite, 
 and is not to be confounded with the declaration required by the 
 next subdivision, that the instrument so subscribed is his last will 
 and testament. {Lewis v. Leivis, 1 Kern. 220.) The acknowledg- 
 ment of the testator that the instrument is his last will and testa- 
 ment, and requesting the witnesses to attest it as such, is not a 
 substitute for the acknowledgment of his subscription. All the 
 statutory requirements must be fully complied with. (Bemsen v. 
 Brinkerhoff, 26 Wend. 331. Chaffee v. TJie Bapjtist Miss. Con. 
 10 Paige, 85.) 
 
 The execution of the will by the testator, and the attestation by 
 the subscribing witnesses, are all concurrent acts, and to be done 
 at the same time. The particular order in which these require- 
 ments are fulfilled, is not important. There is necessarily some in- 
 terval between the different acts, though all, in contemplation of 
 law, are done at the same time. (Doe v. Boe, 2 Barb. 205 ^e- 
 guine v. Seguine, id. 394-5, per Edmonds, J. Keeney v. Whit- 
 marsh, 16 id. 145.) 
 
 It was intimated by the learned judge iti Butler v. Benson, (su- 
 pra,) that the acknowledgment may be made to the witnesses sep- 
 arately, or that he may subscribe and publish in the presence of 
 one, and acknowledge and publish before another. This was not a
 
 486 THIRD. PUBLICATION OP WILL. 
 
 necessarj-- point in that case, and, though entitled to much respect, 
 cannot be supported. 
 
 The usual mode of making the acknowledgment is by a declara- 
 tion to the witnesses that the subscription is his. It has been licld, 
 in England, that when the testator produces the will, with his sig- 
 nature visibly apparent on the face of it, to the witnesses, and re- 
 quests them to subscribe it, this is a suflicient acknowledgment of 
 his signature. {Gage v. Gage, 3 Curtets, 451.) The cases in this 
 state are as full and explicit. (Nipper v. Groesheck, 22 Barb. 
 670.) It is well settled in the foregoing cases that no particular 
 form of words is necessary to be used by the testator, either under 
 the second or third requirement of the statute. The only import- 
 ant thing is that the testator and the witnesses alike understand 
 that the testator' s object is to give effect to the instrument as 
 his "vvill. 
 
 The third requirement is, that tJie testator at the time of maTcing 
 such suhscrip>tion, or at the time of acknoivledging the same, shall 
 declare the instrument so subscribed to be his last tvill and tes- 
 tament. 
 
 The testamentary declaration required by this branch of the stat- 
 ute is deemed of great importance ; and the courts have held the 
 parties to a strict compliance with it. If it is strictly followed it 
 will show, beyond controversy, that the testator comprehended the 
 act which he was doing. In Letois v. Leivis, (1 Kern. 220,) the 
 testator presented the instrument to the witnesses and said, " I de- 
 clare the within to be my free will and deed." This was held by 
 the court of appeals not to be a sufficient declaration that the in- 
 strument was his last will and testament. In this case it was left 
 in doubt, by the mode of expression, whether the testator supposed 
 he was executing a will or a deed. The statute does not use the 
 -word puhlicaf ion. It is doubtless included in the word " executed," 
 in connection with the testamentary declaration. {Brinkerhoff x. 
 Bemsen, 8 Paige, 488. S. C. in error, 26 Wend. 325.) The dec- 
 laration required by the statute must be made in the presence of 
 two witnesses at the least. It is not enough that the testator 
 makes the requisite declaration in presence of one witness, and 
 afterwards signs the instrument in the presence of two who sub- 
 scribe it as witnesses at his request. (Seymour v. Van Wyck, 2 
 Seld. 120.) 
 
 When the drafting and execution of a will devising real estate
 
 THIRD : ATTESTATION CLAUSE. ^ 437 
 
 are superintended by a professional adviser, he will doubtless follow 
 the order prescribed in the statute, as the best mode of complying 
 with its directions and S])irit. But wills are not always, and pur- 
 haps not often, prepared and executed by the aid of wise and skill- 
 ful counsel. The statute is not to be construed strictly, except as 
 to the evils it was intended to prevent; in all other respects it is 
 to be construed liberally, and when the essential requisites are sat- 
 isfactorily proved, the objects of the law are answered. The statute 
 does not render a will invalid because the literal order in the per- 
 formance of the statutory requirements has not been followed. 
 When it is required that the testamentary declaration shall be made 
 at the time of the subscription, time is used in the sense of occasion^ 
 season, and not in its extreme strictness, as indicative of a precise 
 instant. (liieben v. Hicks, 3 Brad/. 353.) It is not required that 
 while the testator is subscribing his name, he should make the 
 declaration. It may be done immediately preceding, or immedi- 
 ately after the subscription. It is enough if the various acts be 
 so connected as to leave no doubt that they are all parts of the 
 res gestae. 
 
 Nor is the form of much importance, provided the ideas be prop- 
 erly expressed. It is often done by means of questions put by the 
 counsel attending the execution of the will, and the affirmative re- 
 sponse of the testator. {Tunlson v. Tunison, 4 Bradf. 138.) It 
 is^ not to be^ expected that even intelhgent lajTnen can perform, 
 without advice and assistance, the ceremonies requisite to a valid 
 execution of a will; much less can this be required from the un- 
 learned, who are often in the last stages of disease when the act is 
 to be performed. 
 
 It is advisable that the attestation clause of the will should be 
 so drawn up as to indicate a comi)liance with the statute require- 
 ments. This should be read aloud to the witnesses in the presence 
 of the testator. It will serve to fix their attention to the facts which 
 have occurred, and impress them upon their memory. {Whitheck 
 V. Patterson, 10 Barb. 608.) An attestation clause is not abso- 
 lutely required by the statute, nor is the reading of it made indis- 
 pensable. It is merely recommended as a matter of caution. 
 
 In the EngHsh books, it is sometimes said that a devise must be 
 published, (Cruise's Dig. tit. 38, ch. 5, Devise, § 50,) and that a 
 delivery of a will as a deed is a sufficient publication. An act of 
 publication is, however, not essential, unless when it is. required by
 
 488 FOURTH: ATTESTING WITNESSES. 
 
 statute, or by the power under which it is made. {Moodie v. Reid, 
 7 Taunt. 355.) We have seen that a2>?/6Zica^/on,hy that name, is 
 not required under our statute. Tlie execution of the instrument, in 
 the manner prescribed by law, accompanied by the testamentary dec- 
 laration prescribed, and the attestation of the witnesses, are in truth 
 a publication, in the sense in which that term is usually understood. 
 No publication distinct from the foregoing was ever required under 
 the statute of frauds. {Doe v. Purdctt, 4 Adol. &, EUis, 14.) 
 
 The fourth and last requirement is, that there shall he at least 
 two attesting witnesses, each of lohom shall sign his name as a 
 witness, at the end of the will, at the request of the testator. The 
 former statute of wills, (1 R. L. 364,) like the English statute of 
 Henry 8th, from which it was principally taken, required that a 
 will devising real estate should be in writing, and signed by the 
 party making it, or by some other person in his presence, and by 
 his express direction; and be attested and subscribed in the pres- 
 ence of the testator, by three or more credible witnesses. Witnesses 
 were not required to a will of personalty. 
 
 The re^^sed statutes have put both kinds of wills upon the same 
 footing; and instead of three witnesses, have required two only, 
 and have pointed out the manner in which they shall attest the will. 
 
 As a matter of precaution it is required that the witnesses shall 
 write opposite to their names their respective places of residence; 
 .and the person who shall sign the testator's name to any will by his 
 direction, is required to Avrite his own name as a witness to the will, 
 A failure to comply with either of these provisions subjects the de- 
 faulting party to a penalty of fifty dollars, but does not invalidate 
 the instrument or the attestation. 
 
 While the statute has taken for granted that there may be cases 
 where a testator cannot subscribe his own name to the will, and has 
 provided for that contingency, it has made no such presumption in 
 regard to the attesting witnesses. It assumes that no one would 
 be called to attest the execution of a will who could not write his 
 own name. A prudent counsellor will no doubt advise the testator 
 to request no other persons to become attesting witnesses than such 
 as are capable of authenticating the fact by their own signature. 
 Nevertheless, it is by the request of the testator that they become 
 attesting witnesses ; and it may happen that the only persons acces- 
 sible for that purpose, or desired by the testator, are too illiterate 
 or infirm to write, otherwise than by their mark. Shall their at-
 
 PRESENCE OF TESTATOR. 439 
 
 testation be invalid for that cause ? We have but few decisions on 
 this point, because probably but few cases of that kind ever occur. 
 But the weight of authority, as well as the reason of the thing and 
 the analogy of this to other cases, lead us to believe that the attest- 
 ation of a witness by making his mark to the signature of his name, 
 put to the will at his request by another person, is a valid attesta- 
 , tion. (Jackso7i v. Van Dusen, 5 John. 144. Campbell v. Logan, 
 2 Brad. 90. Harrison v. Elvin, 3 Qu. B. Bep. 117.) The only 
 exception to this would seem to be the case of a witness who had 
 signed the testator's name to the will at his request, who is required 
 in such case " to write his own name" as a witness to the will. If 
 he was able to sign the testator's name, he would certainly be able 
 to 2^r?Ye his own ; and there is no hardship in requiring that he 
 should do so in such a case. There is in the positive requirement in 
 this case, an implication that in other cases the writing of the name 
 of the witness by his own hand is not an indispensable requirement. 
 There are two circumstances prescribed in the statute with respect 
 to the attestation which should be noticed. The witnesses are re- 
 quired to sign their names at the end of the will, and at the request 
 of the testator. 
 
 The first of these, with reference to the place where the witnesses 
 should sign their names, will not in general lead to any controversy. 
 If the usual attestation certificate be subjoined to the will by the 
 person who drew it, and the witnesses sign their names thereto, it 
 will be at the end of the will; as is contemplated by the act. 'if 
 there be no such certificate, and we have seen that it is not indis- 
 pensable, the signature of the witnesses should be at the end of the 
 will, as low if not lower than that of the testator; thus showing 
 that their signatures were subsequent to that of the testator. 
 
 The former statute required that the signing by the attesting 
 witnesses should be in the presence of the testator. This is omit- 
 ted in the present statute, and is no longer necessary. {Lyon v. 
 Smith, 11 Barh. 124, disapproving the doctrine of Hand, J in 
 Butler V. Benson, 1 Barh. 530. Buddon v. McDonald, 1 Bradf 
 352. 4 Kent, 515.) The late English statute, 1 Vic. ch. 26, § 9, re- 
 quires !he attesting witnesses to subscribe the will in the presence 
 of the testator; but neither that statute or ours requires them to 
 subscribe in the presence of each other. (1 Will. Ex. 75, Mh Am. ed ) 
 It is no donbt necessary that the subscribing witnesses should 
 write their names at the time it was executed; and it is the more
 
 490 REQUEST OF TESTATOR. 
 
 prudent course to Jo it when both are together, and in the presence 
 of the testator. At connnou law, a person who was present and 
 saw an instrument executed, cannot make himself a good suhscri])- 
 ino- witness, by adding his name thereto at a subsequent day, with- 
 out the request of the parties. {IloIIcnhecJe v. Fleming, C Hill, 
 305. He7iry v. Bishop, 2 Wend. 575. Lyon v. Smith, sivpra.) 
 The cases under the former law of real and constructive presence . 
 are no longer of any importance. 
 
 The other circumstance, namely, that the witnesses must attest 
 at the request of the testator, has led to some discussion in the courts. 
 It is not material at what time the testator requests the witnesses 
 to attest his subscription to the will, whether immediately before 
 or immediately after such subscription, provided it be on the same 
 occasion, and a part of the same transaction. {Seguine v. Seguine, 
 2 Barb. 386.) Nor is it important in what language the request 
 is made; nor whether it is proved by direct evidence, or is sought 
 to be inferred from circumstances. {Rutherford v. Rutherford, 2 
 Denio, 33.) 
 
 It often happens that the witnesses are not called upon to testify 
 as to the execution of the ^vill until long afterwards. It is not sur- 
 prising that they should, if they are not of the legal profession, fail 
 to recollect the occurrence or the language of the testator at the 
 time. If the proper attestation clause be added to the will, certi- 
 fying that the testator subscribed his name to 'the will in the pres- 
 ence of the witnesses, and at the same time declared it to be his 
 last will and testament, and requested the witnesses to sign their 
 names thereto as witnesses to the execution thereof, and certifying 
 further that the said witnesses did accordingly, in the presence of the 
 testator and of each other so subscribe, and specifying the dtiy when 
 it was done; and be subscribed by the witnesses; the latter can 
 hardly fail to have their memory so refreshed as to be able to give 
 the requisite evidence. When an attestation certificate in due form 
 is read over to the testator, in the presence of the witnesses, and 
 the wiU is then subscribed by the testator in their presence, and they 
 sign their names as attesting witnesses, it affords sufficient evidence 
 of a request by the testator that the witnesses should sign the will. 
 At all events, it is enough to submit the case to the jury, who will 
 be authorized to find the requisite request. {Doe v. Roe, 2 Barh. 
 200. Rutherford v. Rutherford, supra. Remsen v. Brinkerhoff, 
 26 Wend. 332. Brinkerhoff v. Remsen, 8 Paige, 489-499.)
 
 WHEN WILL SHOULD BE READ. 491 
 
 The propriety of reading over the whole attestation clause at the 
 time of the execution of the will, in the hearing of the witnesses 
 and of the testator, is fully shown by the preceding cases. It is 
 not necessary to read over the entire will, unless indeed the tes- 
 tator be blind or illiterate; in which latter cases it seems to be 
 necessary. 
 
 In Jauncey v. Thorn, (2 Bai^b. Ch. 240,) the chancellor said that 
 the most liberal presumptions in favor of the execution of wills are 
 sanctioned by courts of justice, when from the lapse of time or oth- 
 erwise, it might be impossible to give any positive evidence on the 
 subject. Accordingly, a will may be sustained, even in opposition 
 to the positive testimony of one or more of the subscribing witness- 
 es, who either mistakingly or corruptly, swear that the formalities 
 required by the statute were not complied with, if, from other testi- 
 mony in the case, the court or jury is satisfied that the contrary was 
 the fact. And when any of the witnesses are dead, or in such a 
 situation that- their testimony cannot be obtained, proof of their 
 signatures is received, as secondary evidence of the facts to which 
 they had attested by subscribing the will as witnesses to the execu- 
 tion thereof. {Jauncey v. Thorn, szipra. Nelson v. 3IcGijfert, 
 3 Barb. Ch. 158.) 
 
 Questions with regard to testamentary capacity and the compe- 
 tency of the subscribing witnesses belong more appropriately to 
 courts of probate, and will be found discussed at large in treatises 
 devoted to that subject, and the law of evidence. In this state, as 
 wills, whether relating solely to real or to personal proi)erty, or to 
 both, are required to be executed by the same formalities, the doc- 
 trines we have been considering apply as well to courts of common 
 law, as to those having the exclusive jurisdiction in testamentary 
 matters. Some of the decisions to which we have adverted were 
 made in cases originating in courts of probate, and others in actions 
 at common law. (See Willard on Ex'rs, 97 to 118, and the cases 
 there cited.) 
 
 With regard to codicils, it is only necessary to add, that the term 
 ■wills, as used in the statute, includes codicils as well as wdUs. 
 (2 B. S. 68, § 71. Seymour v. Van Wyck, 2 Seld. 120. Howard 
 v. The Union Th. Sem. 4 Sand/. S. C. B. 82.)
 
 492 REVOCATION. RErUBLICATION. 
 
 Section V. 
 Of the Revocation of Devises, and of Republication. 
 
 The doctrine with regard to the revocation of wills necessarily 
 embraces all that can be said on the subject of revocation of devises, 
 "What is affirmed of the first is applicable also to the last. It is of 
 the very essence of a will that all its provisions are under the con- 
 trol and direction of the testator until his death. Until that event 
 it is said to be ambulatory. {Dan v. Brown, 4 Cowen, 490. Mat' 
 te7' of MiclieU, 14 John. 324.) And the testator may revoke it in. 
 whole or in part. 
 
 A subsequent will does not revoke a prior one, unless it contains 
 a clause of revocation, or be inconsistent with it; and if the incon- 
 sistency be only partial, it is a revocation jiro tanto only. {Brant 
 V. Wilson, 8 Coiven, m. Nelson v. 3IcGiffert, 3 Barh. Ch. 158.) 
 
 At the revision in 1830 it was supposed to be possible so to de- 
 fine the law with respect to revocations of wills as to leave little or 
 nothing open to the discretion of the courts. The statute, there- 
 fore, in the first place re-enacted, wdth some slight changes, the old 
 law with respect to such revocations made by the testator himself, 
 animo revocandi, and in the next place provided for the cases of 
 implied revocation occasioned by changes of the testator's social re- 
 lations, or subsequent dealings with his property. 
 
 The first class of revocations is embraced in the 42d section. 
 (2 R. S. 64.) It provides that no will in writing, excejit in the 
 cases thereinafter mentioned, nor any part thereof, shall be revoked 
 or altered, otherwise than by some other will in writing, or some 
 other writing of the testator, declaring such revocation or altera- 
 tion, and executed with the same formalities with which the will 
 itself was required by law to be executed; or unless such will be 
 burnt, torn, canceled, obliterated or destroyed, with the intent and 
 for the purpose of revoking the same, by the testator himself, or by 
 another person in his - presence, by his direction and consent; and 
 when so done by another person, the direction and consent of the 
 testator to the fact of such injury or destruction shall be proved by 
 at least two witnesses. 
 
 The most obvious mode of revoking a prior wiU is by an express 
 clause in a subsequent wiU revoking aU former wiUs. In such a
 
 IMPLIED REVOCATION. 493 
 
 case there can be no doubt as to the intention of the testator. It 
 is recommended to all persons engaged in the preparation of testa- 
 mentary writings, to leave no doubt on this jioint; but if it be tlie 
 intention of the testator to revoke all previous testamentary dispo- 
 sitions of his property, or of any of it, it is the part of wisdom so to 
 declare in explicit terms. 
 
 It is the intention of the testator to revoke his will which consti- 
 tutes the revocation. The mere act of canceling a will is not a 
 revocation, unless it be done animo revocandi. (Jackson v. Hal- 
 loway, 7 John. 394.) On this principle, when the testator made 
 obliterations in his will already executed, not with an intent to de- 
 stroy the devise already made, but to enlarge it, by extending it to 
 lands subsequently acquired; and made interlineations and correc- 
 tions which could not operate from their not being attested accord- 
 ing to law, it was held that the will remained operative as origin- 
 ally executed. 
 
 It requires the same mental capacity to revoke a will by ca'ticel- 
 lation, burning, &c. as it does to make a will originally. The act 
 of cancellation must be accompanied by the intention. Both must 
 concur. A lunatic can have no such intention. If a party is in- 
 competent to make a Mill, he is incompetent to revoke it, either by 
 a physical destruction of the instrument, or by an express revoca- 
 tion by a will in writing. {Smith v. Wait, 4 Barb. 28. Nelson 
 V. McGiffert, 3 Barb. Ch. 158.) 
 
 The revised statutes have sought to define the cases of implied 
 revocation, arising from some change in the social relations of the 
 testator, some different disposition of his property, or from a sub- 
 sequent will, not expressly revoking a former one, but making de- 
 vises incompatible with those in the foi-mer instrument. These 
 questions formerly rested on the decisions of the courts, and with 
 respect to some of them there was a contrariety of opinion. It was 
 held that a subsequent marriage and birth of a child amounted to 
 an implied revocation of a will either of real or personal property; 
 but that such presumjjtive revocation might he rebutted by circum- 
 stances. To work a revocation it required the concurrence of both 
 circumstances, marriage and the birth of a child. Neither circum- 
 stance alone was enough for that purpose. Neither this or any 
 other implied revocation was within the statute of frauds. (Burch 
 V. Wilkins, 4 John. Ch. 506.) The subject was fully examined, 
 and the English cases reviewed, by the chancellor, in the case last
 
 494 IMPLIED REVOCATION. 
 
 cited; and it was that case which led to the adoption of the lej^is- 
 lative provision on the suhject. It is contiiincd in the 43d s<'cti<jn. 
 (2 R. S. 64.) It is there enacted that if after the making of any 
 will disposing of the whole estate of the testator, such testator shall 
 marry, and have issue of such marriage, born either in his lifetime 
 or after his death, and the wife or the issue of such marriage shall 
 he living at the death of the testator, such will shall be deemed re- 
 voked, unless provision shall have been made for such issue by some 
 settlement, or unless such issue shall be provided for in the will, or 
 in such way mentioned tlierein as to show an intention not to make 
 such provision; and no other evidence to rebut the presumption of 
 such revocation shall be received. This last provision, excluding 
 parol evidence to rebut the implication of a revocation, was inserted 
 to repudiate the suggestion to the contrary by the chancellor, in 
 Burch V. Wilkins, (supra.) To prevent marriage and the birth 
 of a cliild from working a revocation of the will, the pro\-ision for 
 such child must either be contained in the will, or some settlement, 
 or be so mentioned in the will as to show an intention not to make 
 such provision. The intention, which is to govern, must thus be 
 indicated by some- writing, and cannot be made out by extrinsic 
 oral evidence. 
 
 It is not important whether the testator, at the time he made his 
 will, was a bachelor, or a widower, or a married man, with chil- 
 dren. If he loses his wife, and again marries and has a child by 
 his second wife, he falls within the letter as well as spirit of the act. 
 {Havens v. Van Den Burgh, 1 Denio, 27.) 
 
 Another instance of implied revocation by marriage occurred 
 where an unmarried woman having executed a will, should marry. 
 This act is declared to be a revocation of her will. This was so at 
 common law, upon the ground that it is of the essence of a will that 
 it should be valid during the remainder of the devisor's life. For 
 this reason the will of a feme sole ceased upon her becoming covert. 
 (Doe V. Staples, 2 D. &. E. 696, per Lord Kenyon.) The prin- 
 ciple on which the common law was based sprung from the disabil- 
 ity of a married woman to devise her estate. The revised statutes 
 have adopted this provision without qualification. Since the act 
 of 1860, chap. 90, and the act of 1849, relative to married women, 
 (L. of 1849, ch. 375,) have in a great measure removed the disabil- 
 ity of married women, the common law basis of the principle is in
 
 IMPLIED REVOCATION. 495 
 
 a great measure removed. The statute, however, remains unalter- 
 ed, and it is believed, is still obligatory. 
 
 By the common law, an agreement or covenant, made for a val- 
 uable consideration, to convey lands, which had been previously 
 devised by will, operated in equity, though not at law, as a revoca- 
 ' tion of such devise. In cases of this kind the legal estate passed to 
 the devisee; but the court of chancery would compel him to convey 
 it to the person entitled under the equitable agreement. (Cotter v. 
 Layer, 2 P. Wms. 623, 626.) The revised statutes provide for such 
 cases and prevent the agreement of the devisee from operating as a 
 revocation, either at law or in equity. They direct that the property 
 shall pass by the devise, subject to the same remedies for a specific 
 performance or otherwise, against the devisee, as might be had 
 by law against the heirs of the testator, if the same had descended 
 to them. (2 R. S. 64, § 45. Langdon v. A star's Ex'rs, 2 Smith, 9.) 
 
 It was held more than a century ago, that if A. devises lands, 
 and then makes a mortgage thereof in fee, it is a revocation in law, 
 but otherwise in equity. {Hall v. Dimch, 1 Vern. 329, apjyroved 
 in Sparroiv v. Hardcastle, 3Atk. 805.) It was deemed expedient 
 by the legislature, at the time of the revision, that the rule in this 
 respect should be uniform in all the courts. As the rule in equity 
 was thought to be the most reasonable, it was in substance adopted, 
 by declaring that a charge or incumbrance upon any real or personal 
 estate, for the purpose of securing the payment of money or the 
 performance of any covenant, shall not be deemed a revocation of 
 any will relating to the same estate previously executed; but the 
 devises and legacies therein contained shall pass and take effect 
 subject to such charge or incumbrance. (2 II. S. 64, § 46.) The 
 statute makes no distinction between a mortgage in fee, or for a 
 term for years. It does not leave one rule to be operative at law, 
 and another in equity; but makes the proA^sion general. 
 
 It was held, too, before the revised statutes, that where an estate, 
 specifically devised, was sold by the testator, by an executory con- 
 tract, it was a revocation of the devise, in equity, though not at 
 law; for the estate, from the time of the contract, was in equity 
 considered as the estate of the vendee. And although such execu- 
 tory contract was revoked by the purchasel- and testator, so that 
 the latter was restored to, and died seised of his former estate, the 
 devise was not thereby restored. The devise being once revoked, 
 could not be made efiectual but by a republication of the will.
 
 496 IMPLIED REVOCATION. 
 
 ( WaIto7i V. Walton, 7 John. Ch. 258.) It was considered essential 
 to the validity of a devise of lands, under the former law, that the 
 testator should be seised thereof at the time of making,' the will, and 
 should continue so seised without interruption until his decease. 
 If therefore a testator, subsequently to his will, by deed aliened 
 lands which he had disposed of by such will, and afterwards ac- 
 quired a new freehold estate in the same lands, such newly acquired 
 estate did not pass by the devise, which was necessarily void. 
 (1 Jarman on Wills, 170, Perkins' ed.) We have seen that since 
 the revised statutes, a will may be so drawn that it will operate to 
 pass the real estate of which the testator was seised at the time of 
 his death.' The legislature intended to provide for the effect of 
 conveyances by the testator, upon devises made by him, and to 
 make the rule uniform at law and in equity. It was therefore 
 enacted, that a conveyance, settlement, deed, or other act of a tes- 
 tator, by which his estate or interest in property previously devised 
 or bequeathed by him shall be altered, but not wholly devested, 
 shall not be deemed a revocation of the devise or bequest of such 
 property; but such devise or bequest shall pass to the devisee or 
 legatee the actual estate or interest of the testator, which would 
 other\vise descend to his heirs, or pass to his next of kin; unless in 
 the instrument by which such alteration is made, the intention is 
 declared that it shall operate as a revocation of such previous devise 
 or bequest. (2 R. S. Q5, § 47.) The subsequent section provides 
 that if the provisions of the instrument by which such alteration is 
 made are wholly inconsistent with the terras and nature of the 
 previous devise or bequest, such instrument shall operate as a revo- 
 cation thereof, unless such provisions depend on a condition or con- 
 tingency, and such condition be not performed, or such contingency 
 do not happen. (Id. § 48. Brant v. Wilson, 8 Coiven, 56.) 
 
 A devise is revoked by the conveyance of the land devised, not- 
 withstanding the conveyance be to the de\asee. The latter will 
 then hold under the deed and not under the will. (Hose v. Bose, 7 
 Barb. 174.) Nor wdll the effect be altered, when the testator sells 
 and conveys the land devised, if he takes back a bond and mortgage 
 for the purchase money or any part of it. {Adams v. Winnc, 7 
 Paige, 97. Broion v. Brown, 16 Barh. 572.) The conveyance is not 
 merely an alteration of the estate, but completely devests the tes- 
 tator of all title to it. The mortgage taken back is a mere security 
 for the payment of the money. In the last mentioned case, it was
 
 POST TESTAMENTARY CHILDREK 497 
 
 Baid that if the land devised is reconveyed to the devisor, and the 
 title is in him at the time of his death, it will pass under the will 
 without any formal republication thereof. This was put upon 
 the ground of the statute (2 B. S. 57, § 5) which allows a testator 
 to devise all the real estate of which he is the owner at the time of 
 his death. The statute abolishes the technical rule, that a devise 
 passes only such real estate as the testator was seised of at the time 
 of making the will; but the intention must be expressed to pass 
 the estate, and such intention will be regarded. (Pond v. Bergh, 
 10 Paige, 140, 149. Arthur v. Arthur, 10 Barh. 9. Ellison v. 
 Miller, 11 id. 332. Knight v. Weathertvax, 7 Paige, 182.) 
 
 The revised statutes have also provided for the case of post tes- 
 tamentary children, or such children as are born after the making 
 of the will, either in the lifetime of the father or after his death. 
 Having provided for an after-born child in the case of an intestacy, 
 there was an obvious and equal reason for some similar provision in 
 the case of a will. If after the making of his will by the testator, 
 he shall have a child born, either in his lifetime or after his death, 
 and shall die leaving such child so after-born unprovided for by any 
 settlement, and neither provided for, nor in any way mentioned in 
 his will, such child, it is enacted, shall succeed to the same portion 
 of the father's real and personal estate as would have descended or 
 been distributed to such child if the father had died intestate, and 
 shall be entitled to recover the same portion from the devisees and 
 legatees in proportion to and out of the parts devised and bequeathed 
 to them by such will. (2 B. S. 65, § 49.) The object is to put 
 Buch child, as far as practicable, in the same situation as if it had 
 been in being when the will was made, and been equally provided 
 for by the testator. The presumption is a fair one, that it shared 
 the regard of the parent equally with the other objects of his bounty, 
 though not provided for by settlement or named in the will. If 
 provision were made for it by settlement, or a specific provision in 
 the will, or if the latter directed that no provision should be made 
 for it, the statute has no application to the case, but leaves it to be 
 governed by the will or settlement. 
 
 No distinction whatever is made by the statute, between specific, 
 general, or residuary legatees, or de\dsees, and none was probably 
 intended. The object was, not to disturb the arrangement which 
 the testator had made in the disposition of his property, among the 
 several objects of his bounty, except so far as to compel each to 
 
 Will.— 32
 
 498 EFFECT OF REVOCATION ON PRIOR WILL. 
 
 contribute ratably, out of that which he would be entitled to ac- 
 cording to the will, for the purj)ose of making up the distriljutive 
 share of the post testamentary child. All the legacies, therefore, 
 have to abate in proportion to their amount and value, as well the 
 residuary legacy, or one given in lieu of dower, as the specific and 
 general legacies. {Mitchell v. Blain, 5 Paige, 590.) 
 
 A partition made amongst tenants in common is not such a 
 change of the subject of tlie devise as to work a revocation of it. 
 If the tenant in common should devise his undivided moiety, and 
 then make partition either voluntarily, or it be made by order of 
 the court during the lifetime of the testator, the devise would pass 
 the estate in severalty, which, at the making of the will, was held 
 in common. {Risley v. Baltinglass, T. Baymond, 240. Barton v. 
 Croxally Taml. 164.) 
 
 A conveyance, to have the effect of revoking the whole will, must 
 be coextensive with the estate devised. If it be but of a part, it 
 affects the devise, only pro tanto. (Adams v. Winne, 7 Paige, 
 101. Herrington v. Budd, 5 Denio, 323.) In the last mentioned 
 case it was held that a grant in fee, reserving rent, with a clause of 
 re-entry, is a revocation of a prior devise of the same lands made 
 by the grantor. 
 
 The revised statutes have prevented, in certain cases, the lapse 
 of a devise or a legacy — we are treating only of devises. If the tes- 
 tator devises real estate to a child, or a lineal descendant of the 
 testator, and the devisee shall die during the lifetime of the testa- 
 tor, leaving a child or other descendant who shall survive the testa- 
 tor, the devise does not lapse, but vests in the surviving child or 
 descendant of the devisee, as if such devisee had survived the testa- 
 tor and died intestate. (2 R. S. QQ, § 52. Bishop v. Bishop, 4 
 Hill, 138.) 
 
 There was, at one time, a contrariety of opinion as to the effect 
 of the revocation of a subsequent will, in setting up one which had 
 previously been made. The courts of common law were said to fa- 
 vor the revival of the former will, but the ecclesiastical courts either 
 allowed a different presumption, or left it open to be decided by 
 other testimony. The question does not seem to have been settled 
 in this state by any adjudication prior to the revised statutes. By 
 those statutes it is put at rest by declaring that no revocation of a 
 second will shaU revive the fijst will, unless it appears by the terms
 
 EEPUBLICATION OF WILL. 499 
 
 of the revocation that it was the intention of the testator to revive 
 and give effect to the first will; or unless after such destruction, 
 cancelling or revocation, he shall duly republish his first will. 
 (2 R. S. 66, § 53.) 
 
 A republication of a wdll is of two kinds, express and construct- 
 ive. Express republication arises when a testator repeats those 
 ceremonies which are essential to constitute a valid execution, with 
 the avowed design of republishing the will. (1 Jarra. on Wills, 
 202, Perkins' ed. Will, on Ex'rs, 132.) Constructive republica- 
 tion takes i^lace when a testator, for some other purpose, makes a 
 codicil to his ^vill; in which case the effect of the codicil, if not neu- 
 tralized by internal evidence of a contrary intention, is to republish 
 the will. (Id. and Van Cortland v. Kip, 1 Hill, 590.) The cod- 
 icil need not be actually annexed to the will, in order to operate as 
 a republication. When the codicil is so executed as to operate as 
 a republication of the will, both should be read and construed to- 
 gether as one entire instrument. The effect of the codicil which 
 republishes a will is to bring down its language so as to cause it to 
 speak as of the date of the codicil; and this whether the immediate 
 subject of the codicil be real or personal property. (Id.) 
 
 The statute above cited has reference only to a republication of 
 a will which has been previously revoked. The object of it was to 
 prevent a revocation from having the effect ^^er se of reviving the 
 first will, unless it should appear by the instrument by which the 
 revocation was effected, that it was the testator's intention to give 
 effect to the former will. 
 
 But occasions may arise when the testator may desire to repub- 
 lish a will, which has never been revoked; so that it may speak 
 from the day of such republication. The statute does not prevent 
 such republication, but leaves the matter to be regulated by the 
 general laws on the subject. It may thus be republished by repeat- 
 ing the solemnities attending its first execution, or by a duly at- 
 tested codicil. (Mooers v. White, 6 John. Ch. 375. Va7i Cortland 
 v. Kip, supra. Jackson v. Potter, 9 John. 312.) Such codicil may 
 give effect to a devise in the original will which was void by reason 
 of the devisee being a necessary subscribing witness. So also if the 
 original will be defectively executed, the effect of the codicil, if 
 properly drawn and attested, whether annexed to the will or not, is 
 to remove those imperfections and give efficacy to the will. (Barnes
 
 500 VOID DEVISES. 
 
 V. Croiue, 1 Ves.jun. 486, 497. Atherton v. liohins, 1 Adol. & 
 Ellis, 423. Havens v. Foster, 14 Pick. 543. ilft7e« v. Boyden, 3 
 «cZ. 216. 7V(/o« V. Waller, 7 Fes. 98.) Even though the codicil 
 relates only to personal i)roperty, and expresses no intention as to 
 republication of the will, it is a republication of a will devising real 
 estate. {Id.) 
 
 But though such be the ordinary effect of a codicil, yet it may 
 be so expressed as to have only the effect of a republication, giving 
 no different operation to the several instruments (if there be more 
 than one codicil) from that which they would have if they stood 
 upon their original execution, and therefore not make the will and 
 previous codicils speak as from the date of the republication, for. 
 the purpose of reviving legacies which have been adeemed or sat- 
 isfied. (Langdon v. Astor's Ex'rs, 2 Smith, 9.) 
 
 Section VI. 
 Of Void Devises, and the Effect thereof. 
 
 There are several cases in which devises are absolutely void. By 
 the common law, if the testator makes the same disposition of his 
 estate as the law would have done if he had been silent, the will 
 being unnecessary, is void. Therefore, if the testator devises his 
 real estate in fee to his heirs at law, the devise is a nullity, and the 
 heir takes under the law of descent, which is the better title. This 
 rule has been changed in England, so as to require the devisees to 
 take under the will and not by descent, (3 and 4 Wm. 4, ch. 106,) 
 but it remains still in force in this state. A devise which we some- 
 times see in wills, that the widow of the testator shall have her 
 dower, is void; for she takes her dower by the common law, and it 
 is not in the power of the husband to prevent it. If, however, the 
 testator devises a life estate to his wife in a part of his lands and 
 gives the rest to his children, the widow will take the devise and 
 her dower besides; the first under the will and the last by the com- 
 mon law. {Jackson v. Ohurchill, 7 Coiven, 287.) We have seen, 
 elsewhere, when the widow is put to her election between a devise 
 and her dower. {See ante, jyage 69.) 
 
 We have seen in a previous section that no devise of real estate 
 for the benefit of any person and his successor or successors in any 
 ecclesiastical office, shall vest any estate or interest in such person 
 or his successor. The title in such a case, on the death of the tes-
 
 VOID DEVISES, IN CHARITY. 5OI 
 
 tator, does not descend to the heirs of the devisor, but vests in the 
 people of the state of New York, in the same manner and with the 
 same effect as if the person holding the legal title thereto had died 
 intestate, and without heirs capable of inheriting such estate. 
 {L. of 1855, ch. 230. 2 R. S, 621, 5th ed.) 
 
 The devises to charitable corporations, formed under the act of 
 1848, chapter 319, and the amendments thereof, (2 B. S. 623 
 et seq. 5th ed.) are void, if the will containing the same, being 
 made by a person leaving a wife or child or parent, has not been 
 made and executed at least two months before the death of the 
 testator; and if the testator has devised or bequeathed to the in- 
 . stitution or corporation more than one-fourth of his or her estate, 
 after the payment of his or her debts. It is in such case valid to 
 the extept-of the one-fourth and void for the excess. The statute 
 does not direct how the estate so unlawfully de\dsed shall go, but 
 leaves it to descend to the heir at law, if it be real estate, and to 
 pass to his next of kin if it be personal. 
 
 This prohibition has been extended and made general by the act 
 of April 13, 1860, page 607. It is there enacted, that no person 
 having a husband, wife, child or parent, shall, by his or her last 
 will and testament, devise or bequeath to any benevolent, charitable, 
 literary, scientific, religious or missionary society, association or 
 corporation, in trust or otherwise, more than one-half part of his or 
 her estate, after the payment of his or her debts; (and such devise 
 or bequest shall be valid to the extent of one half and no more.) 
 It is thus made applicable to devises and bequests to any of the 
 societies therein named, and is not confined to such as were formed 
 under the act of 1848. It preserves for the kindred of the devisor 
 a larger portion of the estate, and it renders the devise or bequest 
 of the excess above one-half, to the purposes of charity therein in- 
 dicated, without reference to the time when the will was made; 
 whether by the testator in extremis, or in the vigor of mental and 
 bodily health. The tendency of the law, and such probably was 
 the object of its framers, will be to diminish charitable devises and 
 bequests by persons having either of the relatives above mentioned. 
 It thus gives a preference to the claims of consanguinity over those 
 of benevolence, with respect to estates of deceased persons. If an 
 individual desires to devote his wealth to religious, benevolent or 
 public purposes, he is not prohibited from doing so in his Hfetime, 
 when he can see to the administration of it himself. (See remarks
 
 502 DEVISES VOID FOR UNCERTAINTY. 
 
 of tT\e Judge in Beelcman v. The People, 27 Barb. 305, and Wil- 
 lard's Eq. Juris. 576.) 
 
 We have seen that a devise to an alien, not authorized by statute 
 to hold real estate, is void. (2 R. S. 57.) 
 
 A devise may become void by the death of the devisee subsequent 
 to the making of the will, and before the death of the testator. 
 This is the common law rule; but it has been changed in this state, 
 where the devise is to a child or other descendant of the testator, 
 and such devisee shall die before the testator, leaving a child or 
 other descendant who shall survive the testator. In such a case, 
 the devise does not lapse, but vests in the surviving child or other 
 descendant of the devisee, as if the devisee had survived tne testa- 
 tor, and had died intestate. (7c?. QQ, § 52.) In other cases the 
 common law is left to take its course. {Bishop v. Bishop, 4 Hill, 
 139. Chrystie v. Phyfe, 22 Barb. 195.) 
 
 A devise may be void for uncertainty. The uncertainty may be 
 with regard to the person of the devisee, or the subject matter of 
 the devise. 
 
 An instance of the first will be found in Waite v. Templer, (2 
 Sim. 524.) In that case the legacy was in these words : "I give 
 one-fifth of my remaining property to Thomas Palby, Esq. yxa.., 
 who resided in Stonehouse, near Plymouth, Devonshire, when I left 
 England, or to his heirs, executors, administrators or assigns forev- 
 er." The testator left England in 1784, Thomas Palby, jun. died 
 in 1798, and left his father his only next of kin at his death. The 
 testator died in 1810. The legacy lapsed by the death of the lega- 
 tee in the lifetime of the testator, and the legacy over to his heirs 
 &:c was held to be void for uncertainty. 
 
 So also, a bequest by a testator, that " a handsome gratuity" be 
 given to each of his executors, has been held to be void for uncer- 
 tainty, as to the subject of the gift. (Jubber v. Jubber, 9 Sim. 
 503.) So a bequest of "some of my best linen," has been held void 
 for uncertainty. (Peck v. Halsey, 2 P. Wms. 387.) 
 
 There must be such a description of the estate intended to be de- 
 vised, and of the devisee, that both the estate and the person may 
 be ascertained; otherwise the devise is void. 
 
 It remains, under this head, to inquire what becomes of a void 
 devise, when it lapses, in a case where the will contains a residuary 
 clause. In the case of a bequest of personal property, the residu-
 
 VOID DEVISES. 503 
 
 ary legatee will in general take whatever is not otherwise well dis- 
 posed of in the will. The rule is different with respect to devises. 
 If the devise be void when the will was made, as, if the devisee 
 be dead at that time, the estate will go to the residuary devisee, if 
 it be drawn in a sufficiently comprehensive manner. In the case 
 of a legacy void by reason of the death of the devisee after the 
 making of the mU, and before the death of the testator, it goes to 
 the heir. 
 
 This subject was very fully examined by the chancellor in Van 
 Kleek V. The Reformed Dutch Church, (6 Paige, 600; affirmed 20 
 Wend. 457.) He came to the conclusion that it was settled in 
 England that a residuary devise of real estate, or " of all my estate 
 not before disposed of," carries with it not only the real estate in 
 which no interest is devised in the previous parts of the will, but 
 also every reversionary and contingent interest which, in the events 
 contemplated by the testator as apparent from the will itself, is not 
 whoUy and absolutely disposed of, and which would be a'proper 
 subject of devise consistently with the declared intent of the testa- 
 tor. The rule is that the general residuary clause will carry to the 
 devisee all reversionary and contingent interests not previously de- 
 . Tised, unless the will contain special indications of a contrary inten- 
 tion; and with the qualification, that the will is to be taken in 
 connection with the situation of the testator's property and fam- 
 ily at the date of the wiU. This, it seems, is the law of this state. 
 But when a specific devise is ineffectual, through want of the 
 devisee's capacity to take— as when the devisee is a religious corpo- 
 ration—the estate goes to the heir, and not to the residuary dev- 
 isee. (Id.) 
 
 When an interest in real estate is devised to a widow in lieu of 
 dower, and she elects to take her dower, it seems such interest vests 
 in the residuary devisee. (Bowers v. Smith, 10 Paige, 193 )
 
 504 CONSTRUCTION OF DEVISES. 
 
 CHAPTER X. 
 
 OF THE CONSTRUCTION OF DEVISES. 
 
 Section I. 
 Of the General Maxims in the Construction of Wills. 
 
 1. The primary rule in the constniction of a will, whether it re- 
 lates to real or personal property, is that the intention of the testa- 
 tor, if not inconsistent with the rules of law, must govern; and this 
 intention is to be ascertained from the whole will taken together. 
 {Bradhurst v. Bradhurst, 1 Paige, 331. Covenhoven v. Shider, 
 2 id. 122. Rathbone v. Dyckman, 3 id. 9. Crosby v. Wendell, 
 6 id. 548.) 
 
 This rule is supported by all the adjudged cases, and is, more- 
 over, declared by the revised statutes, and made applicable to every 
 instrument creating or conveying, or authorizing the creation or 
 conveyance, of any estate or interest in lands. And it is made the 
 duty of courts of justice to carry into effect the intent of the parties, 
 so far as it can be ascertained from the whole instrument, and is 
 consistent with the rules of law. (1 R. S. 748, § 2.) This enact- 
 ment is merely declaratory of the principles of the common law so 
 far as it relates to wills, and an extension of the same principle to 
 deeds which were formerly governed by more strict rules. 
 
 2. A will and codicil are to be taken and construed together as 
 parts of one and the same instrument. ( Westcott v. Cady, 5 John. 
 Ch. 334.) 
 
 3. The testator must be presumed to have used words in their 
 primary and ordinary sense, unless there is something in the situa- 
 tion of his family, or in his will, to lead to a contrary conclusion. 
 (Matter of Ballet, 8 Paige, 375. Hone v. Van Schaick, 3 Barb. 
 Ch. 488, reversed 3 Comst. 538, but the above principle held by both 
 courts. Cromer v. Pinckney, 3 Barb. Ch. 466.) 
 
 4. In general, technical words are to be understood in a technical 
 sense; but if by taking them in a technical sense, the intention of 
 the testator collected from the whole will, cannot be supported, but 
 will be overthrown, a liberal and popular meaning may be attrib- 
 uted to them. As, for instance, the word ^^ inherited" may be ap-
 
 MAXIMS OF CONSTRUCTION. 505 
 
 plied to lands devised or conveyed by a parent or ancestor. {De 
 Kay V. Irving, 5 Den. 646, affirming 9 Paige, 521. 2 P. Wms. 
 741. Hodgson v. Ambrose, 1 Doug. 341.) The word " devise" is 
 sometimes used for "bequeath," and vice versa, without impairing 
 the will. (3Iijers v. Uddy, 31. S.) And " or" is sometimes con- 
 strued as " and," and e converso. (Richardson v. Spraag, 1 P. 
 Wm. 434. Read v. Snell, 2 Ath. 643.) 
 
 5. The situation of the testator's family and collateral circum- 
 stances, may be resorted to in construing a will. So also the situ- 
 ation of his property, and his social relations, are to be regarded. 
 ( WoJfe V. Van Nostrand, 2 Comst. 436. Cromer v. Pinchiey, 3 
 Barb. Ch. 466.) 
 
 6. The general intent of the will is to prevail over expressions 
 indicating a different particular intent. (Parks v. Parks, 9 
 Paige, 107.) 
 
 7. When a will is susceptible of a two fold construction, one of 
 which avoids and the other upholds it, the latter must be adopted. 
 (3Iason v. Jones, 2 Ba7'b. 229.) 
 
 8. If two provisions of a will are repugnant, so that both cannot 
 stand, the last will prevail. (Bradstreet v. Clark, 12 Wend. 602. 
 Covenhoven v. Shuler, supra. Parks v. Parks, supra.) 
 
 9. But a subsequent clause apparently irreconcilable with pre- 
 cedent provisions, will be construed in connection with them, 
 and may be rejected if repugnant to the intention of the tes- 
 tator, as derived from the whole will. {Bradly v. Amidon, 10 
 Paige, 235.) 
 
 10. The clear, literal interpretation of words may be departed 
 from, if they will bear another construction; and the strict gram- 
 matical sense may be neglected. {Bradhurst v. Bradhurst, 1 id. 
 331. Rathbone v. Dyckman, 3 id. 9.) 
 
 11. In construing wills words may be transposed or rejected to 
 get at the correct meaning. {3Iason v. Jones, 2 Barb. 229.) Words 
 which, if allowed to stand, would produce repugnant and incon- 
 sistent results, may be rejected. (Pond v. Bergh, 10 Paige, 140.) 
 
 12. Words which admit of a twofold construction, shall be 
 deemed to have been used in that sense which will render the de- 
 vise valid, and not in a sense which would render the clause of the 
 will in which they are used a mere nullity. (Pond v. Bergh, su- 
 pra. Butler V. ButUry 3 Barb. Ch. 304.)
 
 506 WITH REFERENCE TO THE ESTATE. 
 
 13. Tlio title of the heirs being derived from the law of descent, 
 is not to be defeated by an uncertain devise. 
 
 14. The punctuation of sentences may be changed, and a passage 
 be read as if inserted in a parenthesis, when necessary to arrive 
 at tlie sense. ( Wolfe v. Van Nostrand, 2 Comstock, 439, ^^er 
 Gardiner, J.) 
 
 The foregoing rules may be greatly multiplied; but others will 
 be suggested in succeeding sections. The subject is examined by 
 English wi-iters, and the cases are fully reviewed. {^See Cruise's 
 Dig. tit, 38, Devise, ch. 9, and notes to Greenl. ed. 2 Powell on 
 Devises J by Jarm.pp. 5-11. Wigram on Wills, pp. 11-14.) 
 
 Section II. 
 
 0/ the Construction with reference to the Estate, the Property 
 devised, and the Person of the Devisee. 
 
 1. Of the Estate. 
 
 The usual words necessary to create a devise are, " give and de- 
 vise." These are the appropriate technical words in a will disposing 
 of a fee or a freehold interest, as " give and bequeath" are for dis- 
 posing of personal property and chattel interests. But any other 
 words which sufficiently show the intention of the testator, to dispose 
 of his lands, or any part thereof, will be sufficient for that purpose. 
 
 We have seen, in the former part of this treatise, that the mean- 
 ing of the term estate, in a legal sense, is different from its popular 
 acceptation. It imports in legal acce})tation the interest which the 
 owner has in the land, rather than the land itself, which is the 
 popular notion with regard to it. (See Part 1, ch. 1, p. 47.) A de- 
 vise of a testator's estate generally passes both real and personal 
 projierty, and may include a debt secured by a mortgage. (Jack- 
 son V. De Lancy, 11 John. 365; offirined, 13 id. 536.) The word 
 estate passes a fee, without any words of limitation. (Id. Jack- 
 son V. Merrill, 6 John. 185.) So a devise of all one's right cJlrries 
 a fee simple to the devisee. (Neivkirk v. Neivkirk, 2 Caines, 345.) 
 A general devise of real estate to A., to be at his absolute disposal, 
 passes a fee. (McLean v. McDonald, 2 Barb. 534.) 
 
 No technical words are necessary to devise a fee, and the inten- 
 tion of the testator, to be collected from the whole will, is to govern. 
 (Jackson v. Babcock, 12 John. 389.) These principles are adopted 
 by the revised statutes, and made applicable to grants as well as to
 
 WITH REFERENCE TO ESTATE. 507 
 
 devises. The term *' heirs" ia not required in any case to convey a 
 fee in land; and every devise of real estate, or any interest therein, 
 passes all the estate or interest of the testator, unless the intent to 
 pass a less estate or interest appears by express terms, or is neces- 
 sarily implied in the terms of the grant. (1 B. S. 748, § 1.) 
 
 A reference to a few of the cases will be sufficient to illustrate 
 the principle applicable to these cases. In Jackson v. Babcock, 
 {supra,) the testator devised as follows : " I give to my wife, after 
 payment of debts, &c. all my estate, real and personal, that I may 
 be in possession of at my decease, to be at her absolute disposal, 
 according to an agreement made and entered into with her on the 
 27th October, 1802, and previous to our marriage; it being my in- 
 tention, if my said wife should die before me, that my real and per- 
 sonal estate shall be divided among my said children, their heirs 
 and assigns." It was held by the supreme court that the wife took 
 an estate in fee, not by implication, but by force of the words '' all 
 my estate to be at her absolute disposal;" that as by reference to 
 the agreement in writing mentioned in the will, it appeared that it 
 was intended, that after the death of one, the other should have the 
 full benefit of survivorship in the joint estate created by the agree- 
 ment, it showed the intention of the testator to dispose of the fee; 
 and the use of the word heirs, in the deA'ise to the children, did not 
 show an intention in the testator to limit the preceding devise to 
 his wife to her life only. 
 
 In the subsequent case of Jackson v. Hoivarcl, (17 John. 281,) 
 the words of the will, without any other words to explain or control 
 them, were, " my property, after my debts are paid, I leave to my 
 beloved wife A., and wish her to educate my daughter with care 
 and affection." It was held that the wife took the real estate in 
 fee, and the personal absolutely. 
 
 A devise by implication depends upon the intention of the testa- 
 tor; and one implication may be rebutted by another equally strong. 
 If the particular devise or bequest cannot be reasonably accounted 
 for, except upon the supposition that the testator intended to make 
 the corresponding disposition of other parts of his property or of 
 the previous estate therein, courts will imply such disposition. 
 (Bathbone v. Dyckman, 3 Paige, 9.) 
 
 Under the law in force before the revised statutes, if the devise 
 contained no words of limitation, or perpetuity, the devisee could 
 take only a life estate. (Jackson v. Wells, 9 John. 222. Same v.
 
 508 WORDS OF LBHTATION. 
 
 Umhler, 14 id. 198.) We have seen what other words would 
 supersede tlie necessity of words of limitation, formerly; and that 
 those words are not now required in order to create an estate in fee. 
 
 Nevertheless, a careful conveyancer, in framing a will or deed, 
 will use the words which necessarily carry the fee simple, and which 
 leave no room for construction; or if a less estate be intended to be 
 conveyed, will so express it as to leave no room for argument or 
 dispute. / give and devise to A. 31., his heirs and assigns forever y 
 is the appropriate expression for a devise of an estate in fee simple, 
 and can as easily be used as an equivocal expression. 
 
 With regard to introductory words in a will, it should be remem- 
 bered that they are often words of course, and unless the words of 
 disposition in the clause of the devise are connected in terms or 
 sense, with the introductory clause, they are not sufficient to en- 
 large the estate subsequently devised, into a fee. {Barheydt v. 
 JBarheydt, 20 Wend. 576, j^er Nelson, Ch. J. Van Derzee v. Van 
 Derzee, 30 Barb. 331.) Nevertheless, in the inquiry concerning 
 the intention of the testator, in relation to the quantum of estate 
 de\ased, the introductory clause of the will is very material. (Fox 
 V. Phel])s, 17 Wend. 393, per Bronson, J.) 
 
 It sometimes happens that in the same will there are various de- 
 vises, and to different persons, some of which are invalid as conflict- 
 ing with some rule of law. In this class of cases the question will 
 sometimes arise whether the whole will is void, or only the devises 
 which are illegal. The leaning of the courts, in modern times, is 
 more and more to the preservation of such parts of the will as may 
 be separated from the rest without a disruption of the whole. It is 
 therefore a well established rule, that where the devises are dis- 
 tinct, or one part can safely be detached from another, without 
 disturbing the relation or continuity of the whole, it should be 
 done. (Post v. Hover, 30 Barb. 313, per Hogeboom, J.) 
 
 But if the principal trusts created by a will be adjudged void, 
 and thus the main intent and object of the testator be defeated, life 
 estates in other lands given by a codicil executed by the testator to 
 other parties for whom provision was made under the principal 
 trusts, are void also, and the whole estate passes to the heirs at 
 law. (Coster v. Lorillard, 14 Wend. 265, reversing same case, 5 
 Paige, 172.)
 
 OF THE PROPERTY DEVISED. 509 
 
 2. Of the property devised. 
 
 The words lands, tenements and hereditaments, will pass every 
 species of property; and have been held to carry money directed to 
 be laid out in the purchase of land. This is upon the princijde 
 that what is agreed to be done is treated as done. {Cruise's Dig. 
 tit. 38, Devise, ch. 10, §§ 62, 63.) 
 
 A general devise of all the testator's real estate will carry his real 
 property of every description, and every estate or interest which he 
 has therein, either in possession, reversion or remainder, whether 
 absolute or contingent, unless restrained by other words of the will. 
 {Pond V. Bergh, 10 Page, 149.) So a devise of all the land and 
 real estate which the testator was to get out of his father's estate, 
 canies a contingent interest given by the father's will. {Id.) 
 
 So a devise of all the testator's interest in the real estate which 
 might fall to him from the estate of his brother Philip — Philip 
 having an absolute title to some, and a determinable fee to other 
 lands — was construed as a devise of the testator's contingent title 
 to the latter under a prior will. {Id.) 
 
 The expression " the farm I now occupy," is often used in devises 
 as expressive of the thing devised. But the expression cannot be 
 enlarged by parol evidence so as to include other lands of the tes- 
 tator in the same tenure, under a lease from the testator for a term 
 of years. Where those words are used to designate the thing de- 
 scribed as distinct from other things, they cannot be rejected as 
 surplusage, and be made to embrace lands not in truth occupied 
 by the testator at the time. {Jackson v. Sill, 11 John. 201.) 
 
 An additional description of the subject of devise cannot vitiate, 
 but must be rejected, if false. In Doe v. Roe, (12 Wend. 578,) the 
 devise was of "all the land I own which lies along the Schoharie 
 creek, and known by the name of Ten Eyck's patent." The farm 
 lay along the creek, but not in Ten Eyck's patent, and the devise 
 of it was held good. 
 
 This is upon the maxim that falsa demonstratio non nocet, or, 
 as it is expressed in Lord Bacon's maxims, {Peg. 25,) Veritas no- 
 minis tollit errorem demonstrations . This is applicable only to 
 cases where the object of the devise or the thing devised is suffi- 
 ciently certain without the demonstration or description. In such 
 a case, if the latter be false it does not vitiate; but may be rejected 
 as surplusage. (11 John. 218.) 
 
 In Brownellx. Broivnell, 19 Wend. 367,) the testator owTied the one
 
 510 OF THE PROPERTY DEVISED. 
 
 half of lot No. 137, the whole of which lot contained ahout one hun- 
 dred and twenty acres. He devised *' tlie one-half uf lot No. 137, 
 containing sixty acres of land." It was held tliat the whole of the 
 half passed hy the devise. The words " containing sixty acres of 
 land" might be rejected as a false description of the whole lot; or 
 by referring it to the " half," instead of ''lot," the last antecedent 
 might, in either case, be made intelligil)le. 
 
 When the description of the property is insufficient of itself to 
 designate any particular class of lands owned by the testator, resort 
 must sometimes be had to extrinsic facts, in order to apply the de- 
 vise to its subject. Thus in Jlyers v. Wheeler, (22 Wend. 148,) 
 the devise was of "all my back lands;" parol evidence was held to 
 be admissible to designate the premises, as by showing that certain 
 lands owned by the testator, were called and known by him and his 
 neighbors, by that designation. 
 
 Land may be devised with reference to its value, ■without giving 
 a description by metes and bounds. A devise of land to the value 
 of $1500 to be taken, at an a})praisal, out of any except certain 
 land of the testator, and to be taken out of such lands as the de- 
 visee should select, with that exception, was held by the chancellor 
 to be a valid devise, and to mean lands which shall be of the speci- 
 fied value, over and above all charges, incumbrances or claims 
 thereon, which might render it less valuable to the owner thereof. 
 (Neilson v. Neilson, 6 Paige, 106.) 
 
 We have seen that the word estate has reference technically to 
 the quantity of interest. But it will jiass every kind of property 
 of a real nature, unless restrained by other words. (2 Preston on 
 Estates, 68-173.) A devise of the testator's estate generally, passes 
 both real and personal estate. (^See ante, p. 506.) When a testator 
 has an estate of his own, and holds another in trust for others, a 
 general devise in the residuary clause giving all his estate " after 
 payment of his debts, legacies and funeral expenses," was held to 
 pass only the estate in which he had a beneficial interest. {Roe v. 
 Reade, 8 T. R. 122, ^jer Lord Kenyon, Ch. J.) With us, a trust 
 estate cannot be devised at all; but the case is important only to 
 show how a general devise may be qualified by other words in 
 the will. 
 
 The words "all I am worth," without any other words to control 
 them, will pass real as well as personal property. So a devise of 
 " all that I possess in doors and out doors," is sufficient to pass real
 
 OF THE PERSON OF THE DEVISEE. 511 
 
 estate. (Pitman v. Stevens, 15 East, 505. Thomas v. Fhelps 4 
 MusseU, 348.) ' 
 
 The word " legacy" may be applied to a real estate, if the con- 
 tents of the will show that such was the intention of the testator. 
 (Hardacre v. Nash, 5 T. B. 716.) And the word " devise" may be 
 used in reference to a bequest of personal property, without injury 
 to the will; the meaning being in all respects plain. {Myers v. 
 Eddy, supra.) And real property will pass under the description 
 of personal, if it is manifest that such was the intention of the tes- 
 tator. (Cruise's Dig. tit. 38, Devise, ch. 10, § 78.) 
 
 The draftsman of a will should avoid all disputes of this nature, 
 by using the proper technical terms ''give and devise," when the 
 object is to pass the title to freehold interest, and ''give and be- 
 queath," when a personal legacy only is intended. 
 
 3. Of the person of the devisee. 
 
 On this subject, it may be remarked, that any words which are 
 sufficient to denote the person intended by the testator, and to dis- 
 tinguish him from all others, is a sufficient description. 
 
 A reference to a few of the cases will be enough to illustrate the 
 rule. 
 
 In Gardner v. Beyer, (2 Paige, 11,) it was said by the chanceUor, 
 that if there are no persons answering the description of the lega- 
 tees, in the legal sense of the term used in describing them, it is 
 allowable to prove the situation of the testator's family, to enable 
 the court to ascertain the legatees intended. It was said also, in 
 the same case, that a devise to children, without other descrii^tion 
 as a general rule, means legitimate children; and if the testator has 
 such children, parol evidence cannot be received to show that a dif- 
 ferent class of persons is intended; but he, having illegitimate chil- 
 dren, proof of circumstances dehors the will was held admissible to 
 show that they were the children intended. 
 
 In Bijers v. Wheeler, (22 Wend. 150,) Cowen, J. said, a nick- 
 name, or a name by reputation, given by the testator, and current 
 in his family and neighborhood, is sufficient to designate the 
 devisee. 
 
 A mere misdescription of the legatee does not render it void un- ' 
 less the ambiguity is such as to. render it impossible to ascertain 
 from the will itself, or by evidence dehors the wiU, who was the ml 
 tended legatee. (Smith v. Sjnith, 4 Paige, 271.) That case re-
 
 512 OF THE PERSON OF THE DEVISEE. 
 
 lated, it is true, to personal property; but the principle is the same 
 in a devise of the realty. 
 
 The word children does not ordinarily include grandchildren, or 
 any others than the immediate descendants in the first degree, of 
 the person named as the ancestor. But it may include them when 
 there were no children in existence at the time of the making of 
 the will; or when there could not be any children at the time, or 
 in the event contemplated by the testator; or when the testator has 
 clearly shown by the use of other words, that he used the word 
 children as synonymous with descendants, or issue, or to designate 
 or include illegitimate oflfspring, grandchildren, or step-grandchil- 
 dren. {3Ioiuatt V. Caroiv, 7 Paige, 328.) When there is nothing 
 in the will to show that the testator intended to use the word chil- 
 dren in a different sense, it will not be held to include ilk'gitimate 
 offspring, step-children, children by marriage only, grandchildren, 
 or more remote descendants. {Cramer v. Pinchiey, 3 Barb. Ch. 
 475.) In the case last mentioned several other questions arose 
 with respect to the persons intended by the will. And it was held 
 that the words nephews and nieces, in their primary and ordinary 
 sense, mean the immediate descendants of the brothers and sisters 
 of the person named; and do not include grand-nephews and grand- 
 nieces, or more remote descendants. (Falkner v. Butler, Ambler , 
 514.) 
 
 But the peculiar circumstances of the case, and the structure of 
 the will, may show that the testator used the terms nephews and 
 nieces in an enlarged sense, so as to include all the grand-nephews 
 and nieces whose parents were dead. In the same case the testa- 
 tor, by one clause of his wiU, gave a legacy unto each of his neph- 
 ews and nieces except J. C, who w^as not a nephew, but one of the 
 children of a deceased nephew; and by another clause he gave to 
 the children of his nephew J. C. $500 — it was held that the broth- 
 ers and sisters of J. C, and other grand-nephews and nieces whose 
 ancestors were dead at the time of the making of the will, were en- 
 titled to the legacies. It was also held that parents and children 
 could not both take, under the description of the testator's nephews 
 and nieces, but only the parents who were living, and those grand- 
 nephews and nieces whose parents were dead. (Cramer v. Pinck- 
 ney, supra; and see Hone v. Van Schaick, 3 Barb. Ch. 488, and 
 S. C 3 Comst. 538.) 
 
 As no person can in strictness be said to be the heir of a person
 
 ' OF THE PERSON OF THE DEVISEE. 513 
 
 now living, it is necessary that if a devise be given to a person by 
 that designation, it must be shown by the will that heir apparent 
 was intended, or it will be void. If the devise be to the heirs of 
 the body of B. now living, it has been held to be a good description 
 of the person. It shows that heir apparent is the person meant. 
 But a devise to the heirs of B., who was in truth living, but that 
 fact not stated in the will, is void. {Heard v. Horton, 1 JDen. 165.) 
 
 A limitation by means of an executory devise, may be made to 
 any number of persons for life successively, if in esse at the death 
 of the testator, — to infants in ventre sa mere, and to persons un- 
 born. - Such was formerly the law, and is still, except that by our 
 revised statutes (1 R. S. 723, §§ 15-17) successive estates for life 
 shall not be limited to more than two persons in being at the crea- 
 tion thereof; and if limited to more than two, all the life estates 
 subsequent to the two first entitled, shall be void. It was at one 
 time doubted whether a limitation for life to an unborn person was 
 good ; but it is now well settled that it is, and also that an estate 
 limited to the issue of such unborn person to take as purchasers, 
 would be void, being a possibility upon a possibility, which the law 
 will not admit. (Jackson v. Brown, 13 Wend. 441, 442. Steivart 
 V. Nicoll, 3 John. Cas. 18. Chapman v. Brown, 3 Burr. 1635, ^^er 
 Wilmot, J.) 
 
 The word issue is a sufficient designation of a person in a devise. 
 It comprises children and grandchildren. {Merest v. James, 1 
 Brod. & Bing. 484. Kingsland v. Rapelye, 3 Edw. 1.) 
 
 A devise to the testator's wife during her natural life; and at 
 her decease to be equally divided amongst the " relations^n his 
 side," has been held good, and to belong to those persons to whom 
 the personal estate of the testator would go under the statute of 
 distributions. {Doe v. Over, 1 Taunt. 263.) Unless the word 
 " relations" was thus restricted, it would embrace an almost bound- 
 less range of subjects; for it would comprehend every degree of 
 consanguinity however remote. {See 2 Jarman on Wills, 25-68, 
 various cases collected.) 
 
 Will.— 33
 
 Jgl^ DEVISES VOID FOR UNCERTAINTY. 
 
 Section III, 
 
 Of Devises Void for Uncertainty, and of the Remedy when the 
 Will is of Doubtful Construction. 
 
 From what has been said in the foregoing section it would seem 
 that a devise will be void, if there be so much uncertainty, either 
 in the subject of it, or of the person intended, as to be incapable of 
 any clear meaning. {Mason v. Robinson, 2 Sim. d Stu. 295.) 
 
 Although, in the construction of wills, great indulgence is shown 
 to the ignorance, unskillfulness and negligence of the testator; and 
 no testamentary disposition of property will be rendered invalid by 
 a failure to comply with mere technical rules and forms of expres- 
 sion, or by gi-ammatical or orthographical errors, nor by a confused 
 collocation of sentences, if the intention of the testator can be dis- 
 covered from the whole will. But if this cannot be ascertained, the 
 intended disposition will fail. Conjecture is not permitted to sup- 
 ply what the testator has failed to indicate. The law has provided 
 a definite successor to the property of its dying owner, in the ab- 
 sence of a legal disposition of it. The law must therefore take its 
 course, if the testator from any cause fails to make a disposition of 
 it in language that can be understood. (1 Jarman on Wills, 322, 
 Perkins' cd.) 
 
 There are, in modern times, fewer instances of devises void for 
 uncertainty than in an earlier state of the law. This may be owing 
 to a better understanding of the rules of construction, which have 
 given a determinate meaning to many words and phrases once con- 
 sidered vague and insensible, or to greater skill in the courts in the 
 application of these rules; or to both those causes. 
 
 A few examples of each kind of defects will be given. In the 
 early case of Bowman v. Millbanke, (1 Lev. 130,) the words of the 
 will were, " I give all to my mother, all to my mother." The ques- 
 tion was whether this was sufficient to carry to the mother the tes- 
 tator's real estate. Here it was uncertain to what the word "all" 
 referred. It might mean all his real property; it might be all his 
 personal estate; it might be all his estate of whatsoever kind ; or it 
 might be all of a particular portion of his estate. It was adjudged 
 by the court to be void absolutely for this uncertainty. 
 
 In the later case before Sir Thomas Plumer, M. R. {Mohun v.
 
 WHEN VOID FOR TJNCERTAmTY, 515 
 
 MoJiun, (1 Swans. 201,) the language of the will was : " I leave and 
 bequeath to all my grandchildren, and share and share alike." 
 Here no property was mentioned as the subject of the gift. It did 
 not appear lohat he left to his grandchildren. It was contended 
 that the difficulty would be removed by transposing the word " all," 
 so that it should follow the word bequeath. But that, according to 
 the preceding case, would leave it still uncertain. Besides, it was 
 not a case in which the transposition of words is allowable. These 
 words as they are situated were not inconsistent with the context. 
 The word " all," though inoperative where the testator placed it, 
 was not repugnant. The court held that there was an uncertainty, 
 both in the subject and object of the bequest, and that it was there- 
 fore void. 
 
 In Jubher v. Jubber, (9 Sim. 504,) the testator, after making his 
 will added a codicil, which was as follows : " I request a handsome 
 gratuity to be given to each of my executors." Here no definite 
 sum is bequeathed, nor is it said by whom the amount shall be 
 ascertained. The will contained a provision that if any dispute 
 should occur it should be settled by arbitration, which should be 
 final without appeal and without reference to the law. It was held 
 that this legacy v.'as absolutely void for uncertainty. And the vice 
 chancellor (Shadwell) said he should not do what Sir Joseph Jekyl 
 did in Feck v. Hahey, as he conceived that he had no power so to do. 
 
 In Peck V. Ealsey, (2 P. Wms. 387,) the testatrix bequeathed 
 to one of her grandchildren by name, " some of her best linen." 
 This was held to be void for uncertainty; but still the master of 
 the rolls. Sir Joseph Jekyl, recommended to the residuary legatee 
 to give some of the best linen of the testatrix to the legatee. 
 Whether the recommendation was followed does not appear; but it 
 is quite clear the court had no power to enforce it. In both the 
 above cases the gift was entirely indefinite, as to quantity. 
 
 The indefiniteness of the gift constitutes no objection, if it be of 
 the residue after satisfying prev-ious legacies. {Gibbs v. Tart, 8 Sim. 
 132. Surman v. Surman, 5 Madd. 123.) 
 
 The same principles apply to the object of testamentary gifts. 
 It is enough that the devisee or legatee is so designated as to be 
 distinguished from every other person, and the inaptitude of some 
 of the particulars introduced into the testator's description is im- 
 material; and this whether the object of the gift be a natural or an
 
 r)16 WHEN VOID FOR UNCEIJTAINTy. 
 
 artificial person. A mistake in the name of the, devisee, or an erro- 
 neous description of him, will not vitiate, if from other parts of the 
 will, or the surrounding facts, there is no reasonable doubt as to the 
 person intended. But when the entire name of the devisee is left 
 blank, no parol evidence is admissible to show who the testator in- 
 tended. {Baylis v. The Att'y Gen. 2 Atk. 239.) In Clayton v. 
 Lord Nugent, (13 M. d Wels. 200,) the case was this : The testa- 
 tor wrote his will on various pages of a book at difi'erent times, part 
 of it being executed and attested in 1820, and the remainder in 
 1827. No devisees were mentioned by name; but the testator's 
 
 real estates were devised, " first to K., then to , then to L., 
 
 then to M.," &c. On a slip of paper, pasted into the book, and 
 forming part of the will at the time of the attestation, in 1820, the 
 testator stated that a " key and index to the letter, initials, &c. was 
 in a writing case in the drawer of his ^vl•iting desk, on a card." 
 The testator died on the 11th of December, 1828, and on that day 
 a card, in his handwriting, and signed by him, was found in the 
 above writing desk, dated January 30, 1828, as follows: "K. sig- 
 nifies Eleanor Mary East. L. signifies Gilbert East Clayton. M. 
 signifies second son of William Eobert Clayton. N. signifies eldest 
 son of Richard Rice Clayton," &c. Two years before the testator's 
 death, a card with wiiting on it had been seen by a person lying be- 
 fore the testator, together with the book containing the will, which 
 appeared to be similar to the card and wTiting thereon found after 
 his death. It was held that the card found after the testator's 
 death was not admissible in evidence, as a declaration of the testa- 
 tor, to show who were the persons meant to be designated in his 
 will by the letters K. L. M. &c. 
 
 In Miller v. Travis, (8 Bing. 254,) it was said by Tindall, Ch. 
 J. that it was a well established principle that where a complete 
 blank is left for the name of the legatee or devisee, no parol evi- 
 dence, however strong, will be allowed to fiU it up; as intended by 
 the testator. 
 
 Where, however, the blank was left for the christian name only, 
 parol evidence has been admitted to prove the individual intended. 
 (Price V. Page, 4 Ves. 680.) So in the case of a legacy to Mrs. Gr., 
 it was referred by Lord Loughborough to the master to receive ev- 
 idence to show the person intended. (Abbot v. Massie, 3 id. 148.) 
 From the remarks of the judge who delivered the opinion of the 
 court in Clayton v. Lord Nugent, (supra,) it would seem that the
 
 WHEN INTENTION IS EXPLAINABLE. 517 
 
 foregoing cases went iij)on the ground that the testator was in the 
 habit of calling the claimant in the one case Mrs. G., and the claim- 
 ant in the other by his surname. When a testator has habitually- 
 called certain persons or things by peculiar names, by which they 
 were not commonly known; if those names occur in his will, evi- 
 dence of such habit seems receivable to explain the meaning of the 
 wall, in like manner as if his "oall had been Avritten in cipher or in 
 a foreign language. The habits of tRe testator, in these particu- 
 lars, must be receivable as evidence to explain the meaning of his 
 will. {Per Lord Ahincjcr in Doe v. Hiscocks, 5 M. & W. 368.) 
 
 The case of Parsons v. Parsons, (1 Ves. jun. 266,) affords an- 
 other example of a mistake in the name of the legatee, which did 
 not defeat the object of the testator. The testator by his will gave 
 an annuity to his brother Edward Parsons for life, and, after his 
 decease, the same to go equally among his [B. P.'s] children " by his 
 present wife;" and at the date of the will, the testator had no 
 brother except one named Samuel who had a wife and children; 
 but four or five years before, he had a brother named Edward, who, 
 as well as his wife, was then dead; which fact was known to the 
 testator, who by the same will gave legacies to his children. The 
 testator had been in the habit of calling his brother Samuel, Ed- 
 ward and Ned. The lord chancellor, without argument, held that 
 the children of Samuel were entitled. 
 
 In Thomas v. Stevens, (4 John. Ch. 607,) a legacy to Cornelia 
 Thompson was held, by Chancellor Kent, to be a good bequest to 
 Caroline Thomas, it being admitted by the executors and by proof 
 aliunde that she was the person intended. 
 
 On the same principle, the case of Connolly v. Pardon, (1 Paige, 
 291,) was decided. In that case the testator, in a codicil, bequeath- 
 ed as follows : " To my nephew Cormar Connolly, the son of my 
 brother Cormar Connolly, the sum of five hundred dollars, for his 
 ecclesiastical education, w^hich sum is to be taken from what I have 
 bequeathed to my brother Cormar, and to my sisters Mary and 
 Ann." The testator never had a brother named Cormar, but he 
 had a nephew Cormar, son of his brother James, the complainant, 
 who, at the time of making the will, was pursuing classical studies 
 in Ireland, with a view to an ecclesiastical education; and he was 
 the only nephew of that name. The proper parties were before the 
 court, and the bill was taken as confessed. The chancellor, after
 
 518 JURISDICTION OF COURTS OF EQUITY. 
 
 considering the exi)lanatory circumstances set up in tlie "bill, held 
 that the complainant was the object of the testator's bounty. 
 
 If the legatee can be ascertained, a legacy will not be permitted 
 to fail on account of a misdescription of the legatee. {Banks v. 
 Fhelan, 4 Barb. 80.) 
 
 The same principles apply when the object of the testator's boun- 
 ty is a corporation or a voluntary association. Thus, in the last 
 cited case, a legacy in trust for " the ladies of the Ursuline order, 
 residing in Charleston," was upheld, while the legatee intended 
 was, " The Ladies' Ursuline community of the city of Charleston." 
 And it was said that a bequest to a religious society, as such, is 
 valid as a gift for pious and charitable uses, where there is no doubt 
 or uncertainty as to who was the legatee intended, although the 
 society be not incorporated. 
 
 Some of the cases referred to are of personal legacies, but the 
 principle, so far as relates to the description of the person intended, 
 is the same, whether it be a bequest of personal property, or a de- 
 vise of real estate. 
 
 It sometimes happens that the testator has expressed his inten- 
 tion so ambiguously as to render it necessary to come into a court 
 of equity for a construction of the will, or to remove the difficulty, 
 and to obtain the direction of the court in relation to the whole, or 
 some part of it. In cases of this kind, the cost of the litigation is 
 within the discretion of the court, and is usually borne by the 
 estate. {Smith v. Smith, 4 Paige, 271. Rogers v. Ross, 4 John. 
 Gh. 608. King v. Strong, 9 Paige, 94.) 
 
 Courts of equity obtain their jurisdiction over wills, by virtue of 
 their general jurisdiction over trusts. The jurisdiction is not con- 
 fined to wills of personal property, but extends to all kinds of wills, 
 whether they relate to real or personal property, or to both. Some- 
 times the object is to remove an uncertainty, either as to the person 
 intended or the subject of the will. Some of these cases have been 
 adverted to in this section already. Sometimes the bill is filed to 
 remove an ambiguity; sometimes to enforce a charge, or to comi^el 
 the execution of a trust, in favor of legatees or creditors ; and some- 
 times to enforce contribution among the beneficiaries to remove a 
 burden common to all. This branch of the subject belongs more 
 appropriately to works on equity jurisprudence, to which the reader 
 is referred, {See Willard's Eq. Jur. 483 et seq.)
 
 WORDS TO CREATE AN ESTATE. 519 
 
 Section IV. 
 
 By whai Words particular Estates and Conditions arc Created^ 
 and by ivhat Words Lands are Charged. 
 
 "We have mentioued in the second section of this chapter, the 
 manner in which a devise is created, and have brought to the no- 
 tice of the reader some of the rules of construction with reference 
 to the quantity of interest, the -property de\dsed, and the person of 
 the devisee. It is proposed in this section to point out by what 
 words particular estates, not before mentioned, are created. 
 
 By the common law, if a man devises to two or more persons an 
 estate in lands, to them and their heirs and assigns forever, the de- 
 visees take an estate in joint tenancy. It was not necessary to spe- 
 cify the incident of survivorship, for that was inseparable from the 
 nature of the estate. It has been shown in a previous part of this 
 work, that the revised statutes have changed this rule of the com- 
 mon law, and made the estate in the case supposed a tenancy in 
 common. If it be desired by the testator to give an estate in joint 
 tenancy, he must expressly declare that intention in the will itself. 
 It is usual in such cases for the testator to use language like this, 
 viz: I give and devise to A. B. and C. D., and their heirs, such a 
 farm, describing it, to hold as joint tenants and not as tenants in 
 common. If it be simply devised to them and their heirs, without 
 any words of qualification, they will take the estate as tenants in 
 common, and not as joint tenants. The only exception to this 
 rule, imder our statute, is the case of estates vested in executors 
 or trustees, who invariably hold as joint tenants, with all the inci- 
 dents of survivorship. (1 R. S. 727, § 44.) 
 
 Under the New York statutes, if the devise be in fee tail, as at 
 common law; as when the testator devises the estate to A. B. and 
 the heirs of his body, or to A. B. and his issues; or when, by any 
 words, he manifests an intention to restrain the estate to the devi- 
 see and the issue of his body; the devisee will take the fee simple 
 by force of the statute abolishing entails, and converting them into 
 estates in fee simple. {Id. 722, revising the statidc of 1786.) It 
 is immaterial, therefore, in determining the nature of the estate 
 which a party derives by devise, whether the estate be such as at
 
 520 CONDITION. LnilTATION. 
 
 common laAv was a fee tail or a fee simple. In either case, by force 
 of the statute, the estate is a foe simple. 
 
 There are several material distinctions between a will ami a deed. 
 A deed operates from the time of its execution; a will only from 
 the death of the testator. In the meantime it is said to be ambu- 
 latory. A will is revocable in its nature; but a deed is not revo- 
 cable in its nature. To defeat its operation there must be a condi- 
 tion; or in case of a conveyance to uses, or upon trust, a power of 
 revocation. In regard to deeds, whenever a condition is annexed to 
 the same, the title derived under the conveyance must be consider- 
 ed as defeasible so long as the condition remains in force. A will 
 may be revoked, as we have seen, by a variety of means; and again 
 be republished and made operative. (3 Prest. on Ab. 181.) 
 
 With respect to the words that are necessaiy to make a devise 
 conditional, it is laid down by Lord Coke, that many words in a 
 will make a condition in law, that make no condition in a deed; as 
 a devise of lands to an executor ad vendendum. So if lands be de- 
 vised to one ad solvcndum, £20 to J. L. or jmying £20 to I. S., 
 tliis amounts to a condition. (1 Co. Lift. 23t) h.) Any words 
 which in a deed create a condition, will have the same operation in 
 a devise. Conditions are express or implied; precedent or subse- 
 quent; and whether they be one or the other depends upon the 
 intention of the parties as expressed in the instrument. {NicoU v. 
 The New York and Brie Bail Road, 2 Kern. 121. Ante, Fart 1, 
 chapter 4.) 
 
 There is distinction between a condition and a limitation. A 
 condition is something inserted for the benefit of the grantor, giv- 
 ing him the power, on default of performance, to destroy the estate, 
 if he will, and revest the estate in himself or his heirs. As the law 
 does not presume forfeitures, it requires some express act of the 
 grantor, as evidence of his intent to reclaim the estate, viz: an en- 
 try. (1 Cruise's Dig. Greenl. ed. tit. 13, ch. 2, § 64, note 1.) 
 
 A limitation determines the estate ij^^o facto, without entry. It 
 is conclusive of the time of continuance, and of the extent of tho 
 estate granted; and beyond which it is declared at its creation not 
 to be intended to continue. 
 
 Conditions render the estate voidable hy entry. Limitations 
 render it void, ivithout entry. 
 
 If, upon failure of that upon which the estate is made to depend, 
 no matter how expressed in the deed, the land is to go to a third
 
 CHARGING REAL ESTATE. 521 
 
 j[)er8on; this is a limitation over, and not a condition. For if a 
 condition, an entry hy the grantor would be necessary; and he 
 mi^ht defeat the limitation by neglecting to enter. 
 
 A limitation is imperative, and is determined by the rules of 
 law. 
 
 A condition not only depends on the option of the grantor, but 
 is also controlled by equity, if the grantor attempts to make an in- 
 equitable use of it. The performance of a conditions excused by 
 the act of God or of the law, or of the party for whose benefit it 
 was made. 
 
 A limitation determines the estate absolutely, whatever be its na- 
 ture. {Id.noteo/Frof.Greenl. I Frest. on Fst. 40-50. 2 J3L 
 Com. 155, 15G. 4 Kent's Com. 126-128.) 
 
 With regard to the charging the real estate of the testator with 
 the payment of debts or legacies, or both, the most obvious mode 
 is to express the intention, in direct terms. The testator may, if 
 he pleases, make his real estate the primary fund for the payment 
 of debts and legacies, or only the auxiliary fund for that purpose. 
 He may bequeath and devise all his estate, real and personal, to his 
 executors in trust to pay the debts and legacies; or he may simply 
 authorize and empower his executors to sell his real estate, or such 
 part thereof as may be necessary for those purposes. In the first 
 case, the executors take the fee, and in the second a power of sale; 
 and in both they become trustees for the purposes of the will, and 
 th(^y may be compelled to the execution of the trust by a court of 
 equity. 
 
 If the will is silent on the subject, the personal estate constitutes 
 th(3 primary fund for the payment of the debts, and the only fund 
 for the payment of legacies. (Lupton v. Lupton, 2 John. Ch. 614, 
 624.) In this state the real estate can be reached for the payment 
 of debts, in the hands of executors or administrators, in all cases, 
 whether they be so charged by the testator by his will or not. If 
 so charged, the courts have power to enforce the execution of it; 
 and if not charged, provision is made through the intervention of 
 tlu; surrogate's court, for making the real estate available for the 
 payment of debts. (2 B. S. 100, § 1, as amended hy act of 1837. 
 Willard on ExWs, 306 et seq.) 
 
 Wlien the charge is made in direct terms, there is no room for 
 dispute or construction, and the cases need not be examined in this
 
 522 IMPLIED CHARGE. 
 
 plcace. It is only in cases where the realty is indirectly charged that 
 there will, in general, be any difficulty. 
 
 Whether a general direction in a will by a testator that his debts 
 shall be paid, charges the real estate with the payment, has been 
 much agitated. The weight of authority is that such direction 
 alone is not sufficient to charge the real estate. It means, merely, 
 that his debts shall be paid out of the primary fund for their pay- 
 ment. {Freeman's Ch. Cas. 192. Lupton v. Lupton, supra. 
 Eyles V. Cary, 1 Vern. 457.) 
 
 A charge is implied when it appears, from the whole will, that 
 it was clearly the testator's intent that the charge should be im- 
 posed, and in no other case. {Per Johnson. J. in Reynolds v. Rey- 
 nolds, 16 N. Y. Rep. 262. Harris v. Fly, 7 Faige, 421. War- 
 ren V. Davies, 2 31. & K. 49.) 
 
 The usual residuary clause in a wall does not of itself imply that 
 the real estate is to be charged with either debts or legacies. Nor 
 does the blending of the real and personal estate in one devise in 
 the same clause of the will. This subject was well considered by 
 the court of appeals in New York, in Reynolds v. Reynolds, (2 
 Smith, 259.) The cases are reviewed by Bowen, J., and the result 
 seems to be that when a testator directs his debts and legacies to 
 be first paid, and then devises real estate; or when he devises the 
 remainder of his estate, real and personal, after payment of debts 
 and legacies; or devises real estate after payment of debts and lega- 
 cies, the real estate is held to be charged. {Neivman v. JohnsoUj 
 
 1 Vern. 45. Harris v. Ingledeio, 3 P. Wms. 91. Trott v. Vernon, 
 
 2 Vern. 708. Kentish v. Kentish, 3 Br. Ch. Cas. 257. Shalcross 
 V. Finden, 3 Ves. 739. Tomp)hins v. Tompkins, Free, in Ch. 397. 
 Williams v. Chitty, 3 Ves. 545. Hassel v. Hassel, 2 Dick, 527. 
 Brudenell v. Boughton, 2 Atk. 268. Bench v. Biles, 4 Mad. 187.) 
 So, too, where the devisee of real estate is appointed executor, and 
 is expressly directed to pay debts and legacies, the charge will be 
 created. {Henvell v. Whitaker, 3 Russ. 343. Hoe v. Fratt, 6 
 Add. & Ell. 180. Alcock v. Sparhaivk, 2 Vern. 228. Dover v. 
 Gregory, 10 Sim. 393.) 
 
 So where a testator gives several legacies, and then, without cre- 
 ating any express trust for their payment, makes a general residu- 
 ary disposition of the whole estate, blending the realty and person- 
 alty together in one fund, the real estate will be charged with the 
 legacies; for in such a case the " residue" can only mean, what re-
 
 EXECUTORY DEVISES. 523 
 
 nicains after satisfying the pre^dous gifts. {Lewis v. Darling, 16 
 Eoio. 10. Hill on Trustees, 508. Brudenell v. Boughfon, supra. 
 Bench v. Biles, supra) But in these cases the residuary legatee 
 was the executor, and the gifts to him did not become effectual im- 
 til all antecedent dispositions of the estate werG Jlrst satisfied. But 
 if the executor is not a legatee or devisee, but an indifferent person, 
 and the residuary legatee and devisee is not expressly charged with 
 the payment of debts or legacies, and the residuary devise is not ex- 
 pressed to be made after such payment, the prior legacies and debts 
 are not charged. {Myers v. Eddy, supra.) The law will raise no 
 implication in such a case to change the ordinary rule for the pay- 
 ment of debts and legacies. * 
 
 Where the testator by his will directs his real and personal estate 
 to be sold and converted into a common fund, charging the fund 
 with the payment of debts and legacies, it has been held, as was 
 said by the learned judge in Reynolds v. Reynolds, {supra,) that 
 the charge is not primarily upon that part of the fund arising from 
 the personalty, but that the portion arising from each is charged pro- 
 portionably. {Roberts v. Walker, 1 Russ. d My I. 752. Kidney 
 v. CoussmaJcer, 1 Ves.jun. 436. Salt v. Chattaivay, 3 Beavan, 576. 
 Stocher v. Harbin, 3 id. 479.) "'•' 
 
 Section V. 
 Of Executory Devises, and of the Residuary Clause of a Will. 
 
 The subject of executory devises is nearly allied to that of con- 
 tingent remainders, and has been adverted to in a previous chapter, 
 when we were treating on that subject. {See Part 1, ch. 6, p. 174.) 
 
 An executory devise is a limitation by will of a future contingent 
 interest in lands, contrary to the rules of limitation of contingent 
 estates in conveyances at law. If the limitation conforms to the 
 rules regulating contingent remainders, it is a remainder, not an 
 executory devise. This is the construction whenever a remainder 
 is limited upon a preceding freehold. {Doe v. llorgan, 3 Term Rep. 
 763. Wolfe V. Van Nostrand, 2 Comst. 442.) The changes in- 
 
 * The case of Tracy v. Tracy, (15 Barb. 503,) was a special term decision, and was 
 correctly decided, but upon erroneous reasons. The legacies were not charged by the 
 blending and combining of real and personal estate, but by the " rest, residue and 
 remainder" being given after the payment of debts. See remarks of Bowen, J. on 
 this case, in Reynolds v. Reynolds, (2 Smith, 261.')
 
 524 EXECUTORY DEVISES. 
 
 troduced by the revised statutes into the doctrine of future estates 
 have made certain future estates contingent remainders, which 
 formerly coukl be upheld only as executory devises. The statute 
 has however fixed limits to the power of the owner over the dispo- 
 sition of his property. It has made all future estates void in their 
 creation which shall suspend the absolute power of alienation for a 
 lono-er period than during the continuance of not more than two 
 lives in being at the creation of the estate, except in a single in- 
 stance. That instance is, that a contingent remainder in fee may 
 be created on a prior remainder in fee, to take eflFect in the event 
 that the persons to whom the first remainder is limited shall die under 
 the'age of twenty-one years, or upon any other contingency by which 
 the estate of such persons may be determined before they attain 
 their full age. (1 R. S. 723, §§ 14-16.) The power of alienation 
 is said to be suspended when there are no persons in being by whom 
 an absolute fee in possession can be conveyed. 
 
 The effect of the statute is to destroy the distinction between 
 contingent remainders and executory devises, which may now alike 
 be created by grant or by will. They are made alike applicable to 
 real and to personal property. 
 
 The questions growing out of these statutory changes have, in 
 most instances, arisen under wills. In Irving v. De Kay, (9 Paige, 
 521,) the subject was extensively examined by the chancellor in de- 
 termining various points arising out of the will of the late Henry 
 Eckford. He stated some of the principles which had been adopted 
 by his court and affirmed by the court of errors. He considered it 
 settled that an estate which is inalienable for an absolute term, and 
 which is not so limited as to be certainly determinable at the expi- 
 ration of not more than two lives in being at the death of the tes- 
 tator, is void in its creation. He considered it also as well settled, 
 that any legal trust is sufficient to sustain a devise or conveyance 
 to the trustee, of an estate commensurate with such trust, without 
 reference to other illegal trusts, which the testator or grantor has 
 attempted to create in the same estate as distinct and separate trusts. 
 
 The intention of the testator, when ascertained from an examin- 
 ation of the will in connection with the situation of his property, &c. 
 at the time of making his will, must be carried into effect by the 
 courts, so far as is consistent with the rules of law. Although some 
 of the objects for which a trust is created, or some future interests, 
 limited upon the trust estate, are illegal and invalid, if any of the
 
 suspen'sion of power of alienation. 525 
 
 purposes for which the trust was created are legal and valid, and 
 would have authorized the creation of such an estate, the legal title 
 vests in the trustees, during the continuance of such valid ohjects 
 of the trust; except in those cases where the legal and valid objects 
 of the trust are so mixed up with those which are illegal and void, 
 that it is impossible to sustain the one without giving effect to the 
 other; and that every disposition by the testator of an estate or in- 
 terest in the rents, profits or income of his real or personal property, 
 and every trust in the will which, if valid, would have the effect of 
 rendering the property inalienable for a longer period than is allowed 
 "by law, and every remainder, or other future estate, or other interest 
 limited upon the trust, which would have that effect, must be con- 
 sidered and treated as absolutely void and inoperative, in determin- 
 ing the question of the validity of a devise of the legal estate to 
 trustees, or the validity of any other provision of the will. (See 
 Gott V. Cook J 7 Faige, 521; Van Vechten v. Van Veclden, 8 id. 
 104; Darling v. Rogers, 22 Wend. 483; Amory v. Lord, 5 Seld. 
 403. Taylor v. Gould, 10 Barh. 388. Haidey v. James, 16 
 Wend. 61.) 
 
 The courts have held that the provisions of the revised statutes 
 prohibiting a suspension of the power of alienation for more than 
 two lives in being at the creation of the estate, applies as well to 
 present as to future estates. {Coster v. Lorillard, 14 Wend. 265.) 
 And that a limitation which may by possibility suspend the abso- 
 lute power of alienation illegally, is void. {Per Nelson, Ch. J. in 
 Hawley v. James, 16 Wend. 120.) 
 
 There are few duties more difficult to be performed by the con- 
 veyancer than the creation of future estates and trusts, in such a 
 form as not to be in conflict \sdth some provisions of the revised 
 statutes. It is impossible to anticipate all objections which may 
 arise, or to prescribe any invariable rules which will avoid all ob- 
 jections. The careful draftsman must examine the cases which 
 have been decided, and see wherein the wills which were the subject 
 of discussion were erroneous, and in what respect they departed 
 from the statute. Those wills were prepared by 'learned counsel, 
 and were drawn with much ability. They should be examined in 
 connection with the criticism to which they were subjected, and the 
 ultimate decision of the courts. They thus, as corrected, become 
 models which may bjg safely followed. 
 
 If a will makes no valid disposition of any part of the estate, real
 
 526 RESIDUARY CLAUSE OF WILL. 
 
 or personal, the property of the testator must l)e distrihutod as m 
 the cases of intestacy. A testator may appoint an executor and 
 testamentaiy guardian by a will which is invalid in every other re- 
 spect. {Bayeux v. Bayeux, 8 Paige, 333.) 
 
 Distinct, independent provisions in a Avill, which are in them- 
 selves valid, will not be invalidated by other separate provisions 
 which are contrary to law. But if the valid and invalid provisions 
 are so intermingled that they cannot be separated from each otlier, 
 they must all fall together. So where a particular provision, which 
 if it stood alone would be valid, forms a part of, or depends upon 
 a general purpose of the testator which is contrary to law, it is void. 
 (Haioley v. James, 5 Paige 318; 16 Wend. fil. LoriUard v. 
 Coster, 5 Paige, 172; 14 Wend. 265. Haxtun v. Corse, 2 Barh. 
 Ch. 506. De Kay v. Irvin, 5 Denio, 646, affirming 9 Paige, 521. 
 Parks V. Parks, 9 Paige, 107.) 
 
 The residuary clause in a will is in general inserted to prevent 
 the effect of an intestacy. It means, says Chancellor Kent, in 
 Lupton V. Lupton, (4 John. Ch. 623,) that the testator does not 
 intend to die intestate as to any part of his property, and it gene- 
 rally means nothing more. 
 
 There are no particular words necessary to a residuary bequest 
 or devise. In a wall disposing of both real and personal property, 
 the usual formula is: "I give, devise and bequeath all the residue 
 of my estate, real and personal, to A. B., his heirs and assigns, for- 
 ever." This form may be varied to meet the taste of the framer of 
 the will. In Howland v. The Union Theological Seminary, (1 Seld. 
 193,) the residuary clause was in this form : " As to all the rest 
 and residue of my estate, real and personal, whatsoever and where- 
 soever, I give, devise and bequeath the same in three equal parts, 
 to be divided as follows," &c. This was held to be a general resid- 
 uary clause, disposing of all the testator's estate of which no spe- 
 cific disposition was made by other parts of the will. 
 
 We have shown, under a previous head in this chapter, what be- 
 comes of a void devise, in a case where the will contains a residuary 
 clause, {see § 3, p. 514,) and it need not be repeated.
 
 NATURE OF AN ABSTRACT. 527 
 
 CHAPTEK XI. 
 
 or abstracts; examination thereof; searching for incum- 
 brances, AND PREPARING THE CONVEYANCE; AND BY WHOSE 
 EXPENSE. 
 
 Section I, 
 Of the Nature of an Abstract. 
 
 When land is to be conveyed by one party to another, it is, ac- 
 cording to the English practice, the duty of the solicitor for the 
 vendor to prepare an abstract of the title; and of the solicitor of 
 the purchaser to compare the abstract with the deeds, wills, &c. 
 The general practice is to produce the deeds, &c. to the purchaser's 
 solicitor, at the office of the vendor's solicitor — whenever they are 
 exhibited the purchaser must procure some person on his behalf to 
 compare the abstract with the evidence of title. This assumes that 
 the same person does not act as solicitor, at the same time, both 
 for the vendor and purchaser. It is in general desirable in cases in 
 any respects complicated, that each party should be represented by 
 his own counsel or solicitor. 
 
 The object of the abstract is to enable the purchaser or his coun- 
 sel to judge of the sufficiency of the title, and of the incumbrances 
 by which it may be affected. It should, therefore, describe what- 
 ever will tend to enable the purchaser or his counsel to form an 
 opinion of the precise state of the title, at law or in equity, together 
 with all chances of eviction, or even of adverse claims, {Preston on 
 Abstracts, vol. 1, 1-5.) 
 
 According to Mr. Preston, the general practice in England is to 
 take the commencement of the title, so as to show the state of the 
 evidence for a period of sixty years at least. And in many cases it 
 is material to carry back the title even to a more remote period. 
 This period of sixty years is derived from the analogy to the stat- 
 ute of limitations against a writ of right, which by 32 Henry 8, ch. 
 2, was fixed at that period. (3 BlacTc. Com. 196, Sharstvood's ed.) 
 The application of that principle to our practice would shorten the 
 period to forty years, the longest limitation in our statute. {Code,
 
 528 ABSTRACT. 
 
 § 75. The People v. Arnold, 4 Comst. 508. The People v. Van 
 Pensselae?', 5 Seld. 291.) 
 
 The simplicity of our law of real estate, compared with that of 
 England, relieves us from many cases of doubt and uncertainty 
 which often oppress the mind of their conveyancers. When the 
 title to land has been derived directly from the state, and has been 
 held by the vendor, uninterruptedly, till the day when he proposes 
 to sell, it can only be necessary for the purchaser, after examining 
 the original patent from the land office, to inquire whether the 
 owner has in any way subjected the estate to any incumbrance by 
 mortgage, judgment, or other lien. 
 
 Where the estate has passed through various owners, by inter- 
 mediate conveyances, the case becomes more complex; and the in- 
 quiry for incumbrances must be extended so as to embrace the va- 
 rious persons through whom the title has passed. 
 
 If the estate has been derived by any of its owners by descent, 
 additional questions, as to pedigree, may arise; and also whether 
 the deceased left a last will and testament or not. 
 
 If any of the parties through whom the title has passed, derived 
 his ownership by devise, still another class of questions will arise, 
 either as to the competency of the testator to make a will, the con- 
 formity of the will to the statutory requirements as to its execution, 
 the structure of the wiU itself, so as to pass real estate, and whether 
 the estate debased is charged with the payment of debts or legacies, 
 and if so, whether they have been fully paid; and whether the 
 estate is incumbered with any claim for dower, or any other con- 
 tingent right. 
 
 If the vendor, or any one from whom he derives his title, acquired 
 the property at a judicial sale, or a sale under a judgment and ex- 
 ecution, or a sale for taxes, the regularity and validity of those sales 
 may be brought in question. 
 
 So also if the sale to any of the parties has been made under a 
 power, the circumstances required to the valid exercise of the power 
 should be stated, as far as they are material to the operation of the 
 deed. If the deed was executed by attorney, the production of the 
 power of attorney should be required, and evidence that the prin- 
 cipal was alive when the deed was executed by the attorney. (1 
 Sugden, 483.) 
 
 It is obvious, therefore, that the subjects of inquiry, with respect
 
 SEAECHING FOR INCUMBRANCES. 529 
 
 to the safety of a purchase, are as numerous as the sources of the 
 original and derivative title to the estate. 
 
 We shall proceed to notice some of the necessary points to which 
 the intention of a purchaser, or a party proposing to advance money 
 on the credit of the property, should be directed. 
 
 Section II. 
 Of Searching for Incumhrances against the Vendor. 
 
 If the title to the estate about to be conveyed has passed through 
 no other hands than those of the vendor after being derived from 
 the state, it is against him only that incumbrances are to be in- 
 quired for. 
 
 There are various liens which the owner of real estate may cre- 
 ate; but which to be available against hona fide purchasers, for 
 value parted with at the time, the law requires an entry of them 
 in some public office so as to be accessible to a reasonable search. 
 
 1. Judgments rendered by courts of record, are a charge upon 
 the land, tenements, real estate and chattels real of every person 
 against whom any such judgment shall be rendered, whicli such 
 2)erson may have at the time of docketing such judgment, or which 
 such person shall acquire at any time thereafter; and such real es- 
 tate and chattels real are subject to be sold upon execution to be 
 issued on such judgment. This lien continues between the parties 
 until the judgment is satisfied; but from and after ten years from 
 the time of the docketing every such judgment, it ceases to bind or 
 be a charge upon any such property, as against purchasers in good 
 fsiith, and as against incumbrances subsequent to such judgment, 
 by mortgage, judgment, decree or otherwise. (2 R. S. 359, §§ 3, 4. 
 Code, ^ 282.) The code of procedure makes it a lien on the real prop- 
 erty of the judgment debtor in the county where it was rendered, 
 and in any other county, upon the filing with the clerk thereof a 
 transcript of the original docket. 
 
 This statute is held to be a short limitation in favor of all pur- 
 chasers and incumbrancers whose interests arise after the docket. 
 With respect to them, whether they had notice of the judgment or 
 not, they take the land free and discharged of the lien. {Little v. 
 Harvey, 9 Wend. 157. Gra£ v. Kipp, 1 Edio. Ch. R. 619. Tnfts' 
 Adm. V. Tiifts, 18 Wend. 621. Scott v. Howard, 3 Barb. 319. 
 Muir V. Leitch, 7 id. 341.) But the judgment continues a Hen on 
 
 Will.— 34
 
 530 WHAT JUDGMENTS ARE A LIEN. 
 
 the real estate as against the defendant in the judgment and his 
 heirs, and as against tlie grantee of the defendant Avithout valuable 
 consideration. (Scott v. Hoioard, supra.) 
 
 The same principles are extended to the judgments of justices of 
 the peace amounting to twenty-five dollars or upwards. Such judg- 
 ment, on filing a transcript thereof in the office of the clerk of the 
 county where the judgment was rendered, from the time of such 
 filing, becomes a judgment of the county court. A certified trans- 
 cript of such judgment may be filed and docketed in the clerk's of- 
 fice of any other county, with the like effect in every respect, as in 
 the county where the judgment was rendered; except that it is a 
 lien only from the time of filing and docketing the transcript. 
 (Code, § 63.) 
 
 With regard to judgments rendered by the federal courts, it was 
 said by the chancellor in Manhattan Co. v. Fvertson, (6 Paige, 
 466,) that there is no act of congress making a judgment of those 
 courts a lien upon the lands of the judgment debtor within the 
 general territorial jurisdiction of the court, or elsewhere. The ex- 
 istence of such lien, therefore, depends npon the local law of tho 
 state where the land is situated upon which such lien is claimed. 
 This is so settled by the supreme court of the United States. (Tay- 
 lor v. Thompson's Lessees, 5 Peters, 358.) 
 
 The chancellor said in the same case, (6 Paige, 468,) that the 
 lien of a judgment recovered in one of the circuit or district courts 
 of the United States within the limits of this state, is a lien upon 
 the lands of the debtor lying within the territorial jurisdiction of 
 such court, for the term of ten years from the docketing of such 
 judgment, in the same manner as the judgment of a court of record 
 in one of the state courts is a lien. But he thought that though 
 those courts could issue executions to the marshals of other districts 
 than that in which the judgment was obtained, the lien of the 
 judgment upon the lands of the debtor must be confined to the lands 
 of the state in which the court is held, and the judgment obtained. 
 
 Previous to the revised statutes of 1830, a judgment in a court 
 of record in this state was a lien upon the lands of the judgment 
 debtor from the time of the entry thereof, whether docketed or not. 
 But if the judgment was not properly docketed, it does not afiect 
 the lands of the judgment debtor, as against subsequent purchasers 
 or mortgagees. The efiect of the revised statutes was to prevent
 
 LIEN" OF JUDGMENTS. 531 
 
 the common law lien of the judgment from attaching at all upon 
 the real estate of the judgment debtor until the judgment has been 
 actually docketed. (Buchan v. Sumner, 2 Barb. Ch. 165.) 
 
 The general lien of a judgment upon the real estate of the debtor 
 is subject to all equities which existed against such real estate, in 
 favor of third persons, at the time of the recovery of such judgment; 
 and a court of equity will so control its legal lien as to restrict it to 
 the actual interest of the debtor in the property, and to protect 
 prior equitable interests in such property, or the proceeds thereof. 
 {Buchan v. Sumner, supra.* Matter of Hoioe, 1 Paige, 125. 
 White V. Carpenter, 2 id. 217. Kersted v. Avery, 4 id. 9.) 
 
 If a judgment be duly docketed, it is notice to all the world of 
 its existence, and a party can gain nothing by alleging his ignorance 
 of it. {Pierce v. AIsop, 3 Barb. Ch. 195.) It is his duty to cause 
 the requisite search to be made in the proper office, and to obtain 
 the certificate of the clerk as to the facts disclosed by the docket. 
 
 We have discussed, in a previous chapter, (Part 3, ch. 6,) the 
 subject of judgments against various parties, and of title under 
 sales by the sheriff, to which the reader is referred. It will there 
 be seen how far judgments are a lien upon the real estate of parties. 
 
 We have seen that the ordinary limitation of the lien of a judg- 
 ment upon the real estate of the judgment debtor, is ten years from 
 the docketing of the judgment. But in case the judgment creditor 
 shall be restrained from proceeding thereon, by injunction or by 
 the operation of a writ of error, the time during which he is so 
 stayed constitutes no part of the ten years, if the party so delayed 
 proceeds as directed by the act, to entitle him to such deduction. 
 For this purpose he is required to file with the clerk of the court in 
 which the judgment was obtained, a notice specifying the injunc- 
 tion or writ of error by which the judgment shall be restrained, and 
 the time of the service thereof; and if such restraint shall have 
 ceased, such party shall specify the duration thereof. The clerk is 
 required to enter in the margin of the docket of the judgment a 
 minute stating that an injunction or writ of error, as the case may 
 be, has been issued, relating to such judgment. A copy of this 
 notice is required to be transmitted by the clerk with his docket of 
 judgment to the other clerks of the court, at .the same time and in. 
 the same manner. (2 R. S. 359, §§ 5, 6.) 
 
 The foregoing provision was contained in the revised statutes; 
 and the code, (§ 282,) as amended in 1851, contains a correspond-
 
 532 LIEN EXTINGUISHED BY SALE. 
 
 ing provision. It enacts that whenever an ai)])eal from any judg- 
 ment shall be pending, and the undertaking requisite to stay exe- 
 cution on such judgment shall have been given, and the appeal 
 perfected as provided in the code, the court in which the judgment 
 was recovered may, on special motion, after notice to the person 
 owning the judgment,, in such terms as they shall see fit, direct an 
 entry to be made by the clerk on the docket of such judgment that 
 the " same is recovered on ai)peal," and thereupon it shall cease, 
 during the pending of the appeal, to be a lien on the real property 
 of the judgment debtor as against purchasers and mortgagees 
 in good faith. 
 
 A judgment may, in certain cases, be entered up, filed and dock- 
 eted against a party who is dead, within one year after such death, 
 A suggestion of such death, if it happened before judgment, shall 
 be entered on the record, and if after judgment, the fact must be 
 certified on the back of the record by the attorney filing it. Such 
 judgment, however, does not bind the real estate which the party 
 had at his death, but is considered as a debt to be paid in the usual 
 course of administration. If a verdict has been rendered before the 
 death of the party, upon which the proceedings shall be stayed by 
 a bill of exceptions, or by any order of the court, or any officer 
 thereof, the court is allowed to authorize the filing and docketing a 
 record of the judgment, within one year after the death of such party, 
 subject to the power of the court to vacate the same. (2 B. S. 
 359, §§7, 8. Nichols v. Chapman, 9 Wend. 452.) 
 
 With regard to the interest which a party has under a contract 
 for the purchase of land, the revised statutes enact that it shall not 
 be bound by the docketing of a judgment or decree, or by the issu- 
 ing of an execution. In such a case, after the return of the execu- 
 tion unsatisfied, the creditor may go into a court of equity for the 
 sale of the defendant's interest in the contract, for the payment of 
 the debt. (1 R. S. 744, §§ 4-6. Griffin v. Spencer, 6 Hill, 525. 
 Talbot V. Chamherlin, 3 Paige, 220. Brewster v. Poiver, 10 id, 
 562. Appjroved in Garjidd v. Hatmaker, 1 Smith, 475.) 
 
 The lien of a judgment is not afifected by the plaintiff binding 
 himself not to take put execution for any time less than the ten 
 years, (dluir v. Leitch, 7 Bai'b. 341.) But it is extinguished by 
 a sale of the land, upon an execution issued upon the judgment. 
 If the judgment is not satisfied in whole by such sale, it will attach
 
 WHEN DISCHARGED OF RECORD. 533- 
 
 to a subsequently acquired title of the debtor. {Russell v. Allen, 
 10 Paige, 249.) 
 
 It will sometimes happen that the certificate of the clerk will 
 disclose the existence of judgments against the vendor which are 
 undischarged of record. If it be knoid7i that such judgments have 
 been paid, a purchaser may with safety complete his purcliase; for 
 a judgment, after it has been fully paid and satisfied, cannot be 
 kept on foot to cover new demands of the plaintifi". (Troup v. 
 Wood, 4 John. Ch. 228.) Part payment on a judgment discharges 
 the lien to that extent, and no agreement between the parties can 
 restore it, as against third persons. (Marvin v. Vedder, 5 Cowen, 
 671. De la Vergne v. Evertson, 1 Paige, 181.) 
 
 The more prudent course for the purchaser, in such a case, is to 
 cause satisfiiction to be acknowledged by the judgment creditor, and 
 to have the docket of the judgment canceled and discharged by the 
 clerk of the court. This will be done upon the filing with the clerk 
 an acknowledgment of satisfaction, signed by the party in whose 
 favor the judgment was obtained, or by his executors or adminis- 
 trators, duly authenticated. (2 B. S. 362.) It may also be made 
 by the attorney on record of the party in %vhose favor the judgment 
 was rendered, within two years after the filing of the record of such 
 judgment, in the same manner and with the like effect as if made 
 by such party himself When made by the attorney it is not con- 
 clusive against the principal in respect to any person to whom ac- 
 tual notice of the revocation of the authority of such attorney shall 
 have been given, before any payment on such judgment shall have 
 been made, or before any purchase of property bound by such judg- 
 ment shall have been effected. (Id. § 24. Benedict v. Smith, 10 
 Paige, 126.) 
 
 The statute also provides for cases where the judgment creditor 
 resides out of the state. In such a case, the acknowledgment of 
 the satisfaction piece, signed by the party, or by his executors or 
 administrators, mdy be taken before either of the ofiicers before 
 whom conveyances of real estate may be acknowledged or proved, 
 by persons residing or being out of this state. (L. of 1834, ch. 262, 
 § 1. SB. S. 640, 5th ed.) The same statute provides that in all 
 cases of acknowledgment of satisfaction of judgment, by virtue of 
 a letter of attorney, or other instrument containing a power to ac- 
 knowledge satisfaction, such letter or instrument must be acknowl- 
 edged by the party executing the same, or proved by a subscribing
 
 534 EFFECT OF SHERIFF'S RETURN. 
 
 witness thereto in the manner prescribed by law, before the clerk 
 of the court in which the judgment has been rendered, or before 
 either of the officers before whom conveyance of real estate may now 
 be acknowledged or proved; and such letters of attorney or other 
 instruments must be filed with such clerk, with the satisfaction 
 piece. (Id. § 2.) 
 
 It is made the duty of the attorney to acknowledge satisfaction, 
 when the judgment is paid to him, on payment of the fees by the 
 defendant. (2 R. S. 362.) It is the judgment debtor alone who 
 has any interest in having the judgment lien removed, and it should 
 therefore be done, if done at all, at his expense. 
 
 It is the payment of the judgment which operates as the dis- 
 charge of it. The satisfaction piece is merely the evidence to the 
 clerk of such payment. 
 
 But the statute has also given to the sheriff's return on the exe- 
 cution issued upon the judgment, the effect of an authority to the 
 clerk to enter satisfaction of record to the extent of the amount re- 
 turned by the sheriff as havang been collected by him on the execu- 
 tion; unless, indeed, such return be vacated by the court. On the 
 return of the execution, the clerk is required to enter in the docket 
 of the judgment, the fact that the amount stated in the return to 
 have been levied, has been collected. (2 Jl. S. 362, § 26.) 
 
 If a judgment be reversed, vacated, or satisfied of record, the 
 proper certificate of the clerk of the court with whom such judg- 
 ment is entered of that fact under his seal of office is made suffi- 
 cient authority, on being filed with the clerk of any county with 
 whom such judgment or decree may have been duly docketed, to 
 discharge and cancel such docket thereof. {L. of 1844, ch. 104, 
 § 5. SB. S. 641, 5th ed.) 
 
 The satisfaction piece, though filed, is not a record, but a mere 
 warrant to the clerk to enter satisfaction on the roll. (Lowns v. 
 Hemsen, 7 Wend. 35.) 
 
 A party having an interest in knowing the extent of the incum- 
 brances by judgment against the owner of real estate, is thus ena- 
 bled to ascertain the facts, and can pursue his inquiries as far as 
 may be necessary for that purpose. There are, however, some cases 
 in which the amount stated in the judgment will not disclose the 
 exact amount due, but it gives the limit beyond which it cannot be 
 extended. A judgment may be taken as a security for a debt 
 already due, or advances thereafter to be made. It may be taken
 
 TOWN COLLECTOR'S BOND. 535 
 
 as a continuing security, for advances to be made by the obligee. 
 ( Wilder v. Winne, 6 Cowen, 284, affirming 4 Wend. 100. Trus- 
 cott V. King, 6 Barb. 346.) A person who has taken such security 
 will be protected whether the arrangement appears on the ftxce of 
 the papers, or rests in parol. {Id. Bank of Ufica v. Finch, 3 
 Barb. Ch. 293.) If after the taking of a judgment to secure an 
 existing demand and future advances, another creditor obtains a 
 mortgage on the same lands, after the recording of which the judg- 
 ment creditor makes further advances ; in such a case the question 
 will arise as to which is to be preferred, the judgment creditor for 
 his future advances, or the mortgage creditor who obtained his lien 
 before the subsequent advances were made by the judgment cred- 
 itor. This question has been settled by the courts in favor of the 
 judgment creditor. The recording acts do not make the recording 
 of a mortgage constructive notice to a prior incumbrancer, but only 
 to such as are posterior in point of time. There is no fraud, there- 
 fore, in the judgment creditors making subsequent advances on the 
 fiiith of the judgment, unless he had actual notice of the interven- 
 ing incumbrances; the recording of the mortgage not being con- 
 structive notice to him for this purpose. {Truscott v. King, supra. 
 Stuyvesant v. Hall, 2 Barb. Ch. 151.) His equity is stronger than 
 that of the intervening mortgagee; because as to him the judgment 
 is constructive notice of the extent of the advances wdiich are in- 
 tended to be secured, and he must be presumed to have taken his 
 security with reference to the whole amount of the judgment; un- 
 less there be positive notice when he takes his mortgage, that only 
 a part of the money mentioned in the judgment had been advanced, 
 and the subsequent loan of the judgment creditor was made with 
 full knowledge of that fact. 
 
 2. Another case of general lien arises in the case of town collect- 
 ors, whose official bond is declared to be a lien on all the real estate 
 held jointly or severally by the collector or his sureties, within the 
 county, at the time of filing the said bond in the office of the clerk 
 of the county; and it is enacted that it shall continue such lien tiU 
 its condition, together with all charges which may accrue by the 
 prosecution thereof, shall be fully paid. {Laws of 1823, 400, § 26. 
 1 R. S. 346. Id. 826, 5th ed.) This bond is required to be exe- 
 cuted to the supervisor of the town within eight days after the 
 election of the collector, in double the amount of the taxes to be 
 collected by him, and to be filed by the supervisor within six daya
 
 536 LIEN FOR TAXES. 
 
 thereafter, ^\itli his aiiprobation indorsed thereon in tlie office of 
 the county clerk, who is required to make an entry thereof, in a book 
 to be provided for that purpose, in the same manner in which judg- 
 ments are entered of record. 
 
 If the vendor has been a town collector of taxes or a surety for 
 such collector, a search in the county clerk's office -will thus disclose 
 the extent of the lien upon the real estate owned by them, or either 
 of them; and an examination at the office of the county treasurer 
 of the county will afford decisive information whether the condition 
 of the bond has been complied with or not. Indeed, upon the set- 
 tlement of the amount of taxes directed to be collected by any col- 
 lector in any town or ward, (the city of Neio York excepted,) the 
 county treasurer, if requested, is required to give the collector, or 
 to any of his sureties, a satisfaction piece in writing, and to ac- 
 knowledge the same before some person authorized to take the 
 acknowledgments of the satisfaction of judgments in courts of record. 
 (1 B. S. 401, § 20. Id. 925, 5fh ed.) Upon the production of 
 such satisfaction piece, acknowledged as aforesaid, the clerk of the 
 county is required to enter satisfaction of record of the collector's 
 bond, w^hich shall be thereby discharged. (Id. § 21.) It is there- 
 fore an easy matter to determine whether the bond, at any given 
 time, is a subsisting lien or not 
 
 3. Another class of general lien arises from the act for the assess- 
 ment and collection of taxes. Taxes on real estate are a lien upon 
 the same. If they are returned unpaid in consequence of the prem- 
 ises becoming vacant, or in default of goods and chattels of the 
 occupant to pay them, the supervisor of the town is required to 
 add a description thereof to the assessment roll of the next year in 
 the part thereof appropriated to taxes on lands of non-residents, 
 and to charge the same with the uncollected tax of the preceding 
 year; and the same proceedings shall be had therein in all respects 
 as if it was the land of a non-resident, and as if such tax had been 
 laid in the year in which the description is so added. (1 B. S. 925, 
 5th ed.) In a subsequent part of the act, it is required that when- 
 ever any tax charged on lands returned to the comptroller, and the 
 interest thereon, shall remain unpaid for two years from the first 
 of May following the year in which the same was assessed, the 
 comptroller shall proceed to advertise and sell such land in the 
 manner directed by the act. (Id. 930.)
 
 SPECIFIC LIENS. 537 
 
 The proceedings on the assessment and collection of taxes are 
 foreign from the subject of this treatise. It is enough to know that 
 the hind tax creates a lien upon the real estate so taxed; and that 
 an application to certain officers, the collector, supervisor of the 
 town, county treasurer, or the comptroller, as the case may be, the 
 extent of that lien may be ascertained, and the amount discharged. 
 
 A separate and independent provision for the sale of lands for 
 taxes exists in the city and county of New York, under the direc- 
 tion of officers of the local government. An application to the 
 comptroller of the city will probably, in most cases, afford the 
 requisite evidence of the state of the premises sought to be bought 
 or sold, with respect to taxes, (1 R. S. 967 et seq. 5th ed.) It is 
 j)resumed that in most of the cities and in many of the villages of 
 the state, there are local laws of taxation and assessment, affecting 
 the real estate within their bounds. A party dealing with lands so 
 situated can generally ascertain, without difficulty, from the local 
 officers, whether any portion of the real estate is incumbered by 
 taxes or assessments, and the extent thereof. It will not be at- 
 tempted to collect a digest of these local statutes. Many of them 
 are changed, from time to time, by the legislature. 
 
 4. In addition to the general liens which have been adverted to, 
 lands are subject to specific liens created by the owner, by mort- 
 gage, either for the payment of money, or for the performance of 
 covenants. Mortgages, like judgments, may be taken to secure fu- 
 ture advances ; and the same principles are applicable to them as to 
 judgments taken in the same way. The cases which we have been 
 considering in relation to judgments are applicable to mortgages, 
 and need not be repeated, {Averill v. Louckes, 6 Barh. 19, 470.) 
 
 AVe have treated, in a former part of this work, of mortgages in 
 general, of the recording thereof, and of the priority amongst suc- 
 cessive mortgages. {See ante, p. 119.) The statute has pointed 
 out a convenient waj^ for the discharge of the lien of a mortgage, 
 without any reconveyance by the mortgagee to the mortgagor. 
 With us a mortgage is treated as security for the payment of a 
 debt, or the fulfillment of an obligation. The mortgagor, until 
 foreclosure, is, for most substantial purposes, treated as the owner 
 of the land, as to all persons but the mortgagee. (Jticnyan v. J/t^r- 
 sereau, 11 JoJm. 534. Hitchcock v. Harrington, 6 id. 290. Coles 
 V. Coles, 15 id. 319.) If, upon search, the premises attempted to
 
 538 SATISFACTION PIECE. 
 
 "be sold are incumbered by mortgage, the purcliaser will naturally 
 insist not only that the mortgage shall be paid oflf, but that it shall 
 be discharged of record. The statute provides u])on what evidence 
 the clerk in whose office the mortgage is recorded may make this 
 entry. It is a certificate signed by the mortgagee, his jx'rsonal 
 representatives or assigns, acknowledged or proved and certified in 
 the manner therein prescribed, to entitle conveyances to be recorded, 
 specifying that such mortgage has been paid, or otherwise satisfied 
 and discharged. This certificate, and the proof or acknowledgment 
 thereof, must be recorded at full length; and a reference must be 
 made to the book and page containing such record, in the minute 
 of the discharge of such mortgage, made by the officer upon the 
 record thereof. (1 R. S. 761, §§ 28, 29. 3 E. S. 57, 5th ed.) 
 
 If the mortgage has been assigned, the assignee, it has been seen, 
 is the party to give the satisfaction piece. The clerk cannot know, 
 but from the assignment in wTiting itself, that the assignee has 
 authority to grant the discharge; and hence it is desirable, when a 
 bond and mortgage are assigned, that it should be done by a written 
 assignment, proved or acknowledged in the same manner as deeds 
 are required to be proved or acknowledged in order to be recorded. 
 The record of this assignment will be the authority for the clerk to 
 carry into effect the certificate of discharge by the assignee. Though 
 this record is not constructive notice to a mortgagor, or his heirs or 
 personal representatives, so as to invalidate any payment made by 
 them or either of them to the mortgagee, it is doubtless notice as 
 against persons claiming by virtue of some subsequent assignment or 
 conveyance from the mortgagee, or assignor of the mortgage, or his 
 representatives; (1 B. S.763, §41. The Neiv York Life Ins. and 
 Trust Co. V. Smith, 2 Barb. Ch. 84;) and it is notice to the clerk 
 with whom the mortgage is recorded. 
 
 In case of the death of the mortgagee the power to give the sat- 
 isfaction piece, on payment, is vested in his executors or adminis- 
 trators. A certificate from the surrogate's office of the county in 
 which probate of the will, or letters of administration 'have been 
 granted, showing that the party to whom it is given is the duly 
 qualified executor or administrator of the estate of the deceased, will 
 furnish to the clerk of the county in which the mortgage is regis- 
 tered the requisite evidence of such appointment; and authorize 
 him to act upon it accordingly. 
 
 The foregoing remarks have been made upon the supposition,
 
 TITLE BY DESCENT OR DEVISE. 539 
 
 that the title to the premises intended to be sold or incumbered by- 
 mortgage, have only passed through a single individual after being- 
 granted by the government. This furnishes but a small part of 
 the cases which will arise in daily practice in the conveyancer's of- 
 fice. In most cases, the title wiU have passed through various in- 
 dividuals, by different conveyances. Safety, therefore, will require 
 that a similar process of search for liens created or occasioned by 
 the successive owners, should be pursued. The abstract will con- 
 tain the deduction of title from a former owner sufficiently remote 
 from the present period to induce the belief, that there are no sub- 
 sisting liens of an earlier date; and the search for liens and incum- 
 brances will be conducted with reference to the subsequent succes- 
 sive owners. In this mode alone can the premises be shown to be 
 entirely unincumbered. 
 
 Section III. 
 Of the Examination of a Title derived hy Descent ^ and hy Devise. 
 
 1. By descent. If the party intending to sell or mortgage the 
 premises in question has derived title thereto by descent from his 
 ancestor, in addition to the inquiry whether the property has not 
 been incumbered by him, a variety of other questions will arise and 
 have to be investigated. These relate both to the title of the an- 
 cestor, and the right of the vendor by descent. 
 
 In making the investigation of this subject the counsel will bear 
 in mind the law of descent, dower, wills, escheat, statute of Kmita- 
 tions, both as they existed prior to the revision in 1830, and as they 
 now exist. These subjects have been sufficiently adverted to under 
 appropriate heads, and need not be repeated. 
 
 The same line of inquiry with respect to the ancestor will have 
 to be pursued as was indicated in the last section. It may be that 
 the purchase deed of the ancestor is sufficiently remote in point of 
 time to be the foundation of the commencement of the examination. 
 If, for example, he, or those under whom he claims, had been in the 
 peaceable and uninterrupted occupation of the premises, as owner, 
 for a period of twenty years or upwards before and at the time of 
 his death, without any controversy as to his title; such deed fol- 
 lowed up by continued possession, in subordination to that title, 
 furnishes a strong presumption of its goodness. This presumption 
 is said to be greatly strengthened if there have been frequent changes
 
 540 TITLE BY DESCENT.. 
 
 of ownership, without any adverse chiim. (1 Prest. on Ahs. 17.) 
 Whether it will be necessary to abstract ancient deeds, which the 
 vendor may have relating to the title of his vendor, or whether it 
 will be sufficient to rest upon the purchase deed alone, and to 
 examine the title from that period, has sometimes been made a 
 question. 
 
 To abstract all the deeds, would in many cases invite tedious in- 
 quiries and long discussions, which would answer no useful jnirpose 
 to the purchaser, Mr. Preston thinks that a discretion ought to 
 be exercised on this point. 
 
 While no substantial defect in the title ought to be concealed, 
 by withholding the knowledge of the deeds, which may give a dif- 
 ferent complexion to it, so, on the other hand, it cannot be expect- 
 ed that, on mere matters of form, the vendor should furniph the 
 means of enabling a reluctant, or over cautious purchaser, or those 
 professional men who are more nice than wise, to treat the title as 
 difficult or doubtful; when no one, acting with a sound discretion, 
 would view it as attended ^\'ith either doubt or difficulty. {Id. 18.) 
 
 If the purchase deed under which the ancestor held is sufficiently 
 remote to exclude the presumption of any adverse claim, it will be 
 sufficient to examine as to incumbrances created or suffered by the 
 ancestor, or any of those under whom he claims, in the intermedi- 
 ate time. 
 
 It will be important to inquire whether the ancestor left a widow 
 who has any claim of dower, and if so, whether it lias been released 
 or discharged. It will also be necessary to ascertain, in case there 
 has been in the meantime, frequent change of ownership of the 
 property, whether the successive vendors were married or not, and 
 if married, whether their wives united in the conveyance in such 
 form and by such private acknowledgement, apart from their hus- 
 bands, as to discharge* their contingent right of dower to the prem- 
 ises. {Gillet V. Stanley, 1 Hill, 121.) What is needful to be 
 done to effect this object, has been shown in another part of this 
 treatise. 
 
 Assuming that the vendor claims by descent from his ancestor, 
 it is important to know that he is a legitimate heir of the former 
 owner. This often involves an inquiry as to the validity of the 
 marriage of his parents. By the common law of England and this 
 country, marriage is considered in no other light than as a civil con- 
 tract. The holiness of the matrimonial state is left entirely to
 
 TITLE BT DEVISE. 541 
 
 ecclesiastical and religious scrutiny. In the catholic and some of 
 the protestant countries of Europe, it is treated as a sacrament. 
 {Story's Confi. Laws, § 108.) The general principle is, that be- 
 tween persons sui juris, marriage is to be decided by the law of 
 the j)lace where it is celebrated. If valid there, it is valid every- 
 where. If invalid there, it is equally invalid everywhere. {Id. 
 § 113.) These principles, with their qualifications, will be found 
 stated, with more or less fullness, by all the elementary writers. 
 
 The existence of a marriage, except in actions for adultery and 
 indictments for bigamy, is sufficiently proved by presumptive evi- 
 dence of cohabitation, or even by general reputation. {Doe v. 
 Fleming, 4 Bing. 266. Birt v. Barlow, Doug. 171. Morris, v. 
 Miller, 4 Burr. 2057.) 
 
 How far a claim to dower may be affected by divorce, by joint- 
 ure, or a testamentary provision in her favor, and her election, has 
 been sufficiently shown in a previous chapter, {Part 1, ch. 2, § 3.) 
 
 If the vendor is shown to be a son, for example, of the intestate, 
 it will be important to inquire, whether he had any brothers or 
 sisters who would share with him the inheritance; and whether 
 they have conveyed their share of the estate to the vendor, by prop- 
 er instruments of conveyance, duly executed and acknowledged or 
 proved. 
 
 It will also be important to inquire, whether there are any out- 
 standing terms for years, created by any of the prior parties, and 
 which are still subsisting. To make a good title in fee, they should 
 be extinguished by a valid surrender by the tenant, unless the pur- 
 chaser is willing to take the title with that incumbrance. 
 
 2. If the title of the vendor was derived by devise, another class 
 of questions arise. In addition to showing the unincumbered na- 
 ture of the estate of the devisor at the time of his death, which will 
 be done by some of the modes already pointed out, it will be im- 
 portant to inquire as to the valid execution of the will to pass real 
 estate, whether it has been proved as a will of real estate, and re- 
 corded in the proper surrogate's court; whether the testator has 
 devised to the vendor the fee simple, or what other estate in the 
 property in question; whether, by the terms of the will, the testa- 
 tor's debts and legacies, or either of them, have been charged upon 
 the real estate; and whether there js still any outstanding claim 
 of dower, affecting the premises. 
 
 We have seen, under the proper head, that a will is revocable.
 
 542 TITLE BY DEtlSE. 
 
 and have pointed out how it may be revoked, and how restored by 
 republication. It may become necessary to apply these i)rinciple8 
 to an actual case. 
 
 The devise under which the vendor claims may have been upon 
 a condition. Conditions, we have seen, are of two kinds, precedent 
 and subsequent; and we have pointed out the difference between a 
 condition and a limitation; {Port 3, ch. 10, § 4;) and by what 
 words the real estate of the testator may be charged with debts or 
 legacies. It will be the duty of the counsel in })reparing the ab- 
 stract to set out such parts of the will as bear upon these questions, 
 and sometimes an examination of the whole instrument will be 
 nqcessary. 
 
 If the will has not been proved as a will of real estate, it should 
 be done as a matter of precaution to perpetuate the evidence in re- 
 lation to its execution, and to prevent the heirs at law from dealing 
 with the estate. (1 2L S. 748, 749, § 3. WiUard on Ex'rs, 170.) 
 Though the title, derived from the will, may be enforced in the 
 proper tribunal without the proof and recording it with the surro- 
 gate, still the latter proceeding will in general be insisted on by ev- 
 ery prudent purchaser. 
 
 When an estate has been divided among different owners, either 
 by descent or purchase, and the inquiry is made as to the title of 
 one only of the present holders of it, the absence of the earlier deeds 
 affords no suspicion of concealment; and accounts in the most sat- 
 isfactory manner for the absence of the more early deeds. In this 
 state, since the recording of deeds and other conveyances is almost 
 universal, there is a ready mode of ascertaining the state of the 
 title by a reference to the public records. If the seller cannot pro- 
 duce the original deeds or wills under which his title is held, he 
 cannot require the purchaser to send round to the different offices 
 to examine the abstract with the originals, or with the records, 
 even when that will be permitted by the rules of the office, although 
 the vendor is willing to pay the expense of the attendances; but 
 he must procure office copies or extracts, as the case may require, 
 in order to enable the purchaser's solicitor to examine the abstract 
 with him, if it should be deemed necessary. (1 Sugd. Vend. 518, 
 § 15, Perkins' ed.) 
 
 In the case of Hughs v. Winne, (8 Sim. 85,) it was held that 
 when title deeds were in the hands of persons residing in different
 
 SPECIFIC PERFORMANCE. 543 
 
 parts of the country, the vendor must be at the expense of the pur- 
 chaser sending a clerk to compare the abstract with the deeds. 
 
 The rights of the parties are sometimes regulated by the stipu- 
 lations of the executory contract of sale. When the seller, in the 
 conditions of sale, agrees to deliver an abstract of title and deduce a 
 good title, he is bound to perform the agreement. If he intends to 
 deprive the purchaser of the right to the production of any evidence 
 necessary to verify the title beyond what the title deeds in his own 
 custody will supply, he is bound to make that intention previously 
 kno^NTi to the purchaser in clear and explicit terms. (Southy v. 
 Butt, 2 MijL & Or. 207.) 
 
 The questions of this nature most frequently arise in actions for 
 the specific performance of contracts for the sale or purchase of real 
 estate. The court will not decree a specific performance where the 
 vendor cannot make a clear and undoubted title to the premises, 
 unless the purchase has been made at the risk of the vendee as to 
 the title, or the latter has agreed to accept such title as the vendor 
 was able to give. In general, however, it is not necessary for the 
 complainant to show that he was able to give a good title at the 
 time of making the agreement to sell, or even at the commencement 
 of the suit. It will be sufficient if he can give a perfect title at the 
 time of the decree. {Brown v. Huff, 5 Paige, 241. Langford v 
 Pitt, 2 P. Wms. 630. Clute v. Bobinson, 2 John. 595. Coffn v. 
 Cooper, 14 Ves. 205. Seymour v. Delancy, 3 Coiven, 445. Dutch 
 Church V. Mott, 7 Paige, 77.) This, too, is a good answer to the 
 bill of the vendee to rescind the contract. For though the vendor 
 may not have been able to convey at the time he made the contract, 
 or at a later day when the vendee called for performance, yet if he 
 can give a good title at the time of the decree, the complainant 
 must accept it; but in that case he will be entitled to an equitable 
 compensation for the delay. {Pierce v. Nichols, 1 Paige, 244.) 
 
 Equity sometimes decrees the execution of an agreement, with a 
 compensation for defects. The vendor must himself, when he seeks 
 relief against a vendee, be able to perform on his part. A mere 
 trifling, immaterial defect, will not defeat a decree. If the defend- 
 ant obtain by a performance the same title which he expected to 
 obtain when he made the contract, a performance will be decreed. 
 ( Winne v. Reynolds, 6 Paige, 407.) It was said by the chancellor 
 in the last cited case, that the reservation of a pepper corn rent, or
 
 544 TITLE BY JUDICIAL SALE. 
 
 any thing else which is merely nominal, is not an objection to the 
 title which could justify the court in refusing a specific performance, 
 even where the defendant had contracted to purcliase without any 
 notice that such nominal rent was reserved. 
 
 The foregoing observations show the importance of care in pre- 
 paring the preHminary contract. The vendor should not stipulate 
 to give any different title from that which it is in his power to con- 
 vey; and the vendee should be apprised of the nature of the title, 
 and of its defects, if any, when he completes the executory contract. 
 For although a court of equity may overlook trifling defects which 
 have not been enumerated in the contract, yet the existence of such 
 defects often give rise to distressing litigation, and may affect the 
 question of costs, if they be not suflficient to break up the agree- 
 ment altogether. Such controversies can be avoided by a reason- 
 able precaution in the beginning. 
 
 Courts of equity do not entertain an action for a specific per- 
 formance of a merely gratuitous promise. It never decrees, specifi- 
 cally, a mere voluntary agreement. {JacTcson v. Ashton, .11 Pet 
 229.) But in all cases where specific performance of a contract 
 would be granted between the original parties, it will be decreed 
 between all claiming under them, if there be no intervening equities 
 to control the case. (Hays v. Hall, 4 Porter, 374.) 
 
 Section IV. 
 
 Of the Examination of a Title acquired under a Judicial Scde, 
 or Sale under a Power. 
 
 When a party has acquired a title to real estate, at a sale under 
 a judgment and execution; or a sale of lands for taxes; or a sale 
 of lands under an order of the surrogate, for the payment of debts; 
 or the sale of lands of infants or lunatics under the authority of 
 some tribunal, and is desirous of selling or mortgaging the same, his 
 abstract of title should show, at least, in a general way, the nature 
 of his title. We have treated in a previous chapter, of titles so ac- 
 quired, by reference to which the reader will discover what is requi- 
 site to a complete title, and in what manner it can be assailed. 
 (See ante, p. 445.) 
 
 The purchaser, if apprised fully of the particulars of the vendor's 
 title, will regulate the price he is to give by the probable risk of a 
 controversy about the subject of his purchase.
 
 EXAMINING TITLES. 545 
 
 ^ The points to which the inquiry should be directed, in investigat- 
 ing the vaHdity of title acquired at judicial sales, are as variou^'s as 
 the nature and occasion of such sales. 
 
 If the sale be by wtue of a judgment and execution, the promi- 
 nent point to be examined is as to the title of the judgment debtor 
 at the time the judgment under which the purchase was made be- 
 came a hen upon the land; that is, at the time the judgment was 
 docketed. The mode of conducting that investigation has already 
 been indicated. It is the same as if the purchase was made directly 
 Irom him by a deed of bargain and sale, and his ability to give an 
 unincumbered title was in issue. Whatever title he had at the 
 time of the docketing of the judgment will pass to the purchaser 
 and may be acquired by a redeeming creditor. The judgment ex- 
 ecution and sheriff's deed will h^ ^prima faeie sufficient evidence of 
 title of the party claiming under such sale. The abstract should 
 set out not only the deed but the judgment and execution. It will 
 then be for the other party to show that the judgment had been 
 paid, or that the execution or judgment or both were void, at the 
 time of the sale. It will not be enough to show that the judgment 
 was erroneous, or that the execution was irregular merely A ref- 
 erence to the sixth chapter, supra, will show what wiU be necessary 
 to defeat the title, and what not. ^ 
 
 In like manner, should the title have been acquired at a sale of 
 the estate of infants, by order of the court, or at a sale of the real 
 estate of a testator or intestate under the order of the surrogate, the 
 jurisdiction of the court, in both cases, to make the order, may be 
 disproved, and the sale thus shown to be invalid. Enou-h has 
 been said in the chapter already referred to, on the subject of this 
 class of sales to enable the party who sustains, as well as the party 
 who assails them, to understand the principles on which they rest 
 So, also should the title be derived from a sale under a power of 
 attorney, the power itself must be produced or accounted for, and 
 It must appear that he who granted the power had the right to 
 do he act which the trustee is sought to be empowered to do 
 {Sddenv Verrmlyea, 3 Comst. 525.) These powers are frequently 
 conferred on an executor by the will of the testator. They are a 
 trust and confidence which cannot be delegated. (Berger v JDnf 
 4JoknCk.S68.) They must be strictly%rsued And a powf;. 
 given to an executor cannot be executed by an administrator with 
 the mil annexed. (ConkUn v. Fgerton, 21 Wend. 430 ) 
 Will. — 35
 
 546 EIGHT OF PURCHASER TO ORIGINAL DEEDS. 
 
 A title derived from a sale of lands for taxes, is often rendered 
 invalid by matter deliors the deed of the comptroller. It is of no 
 validity, if the taxes were in fact paid to the collector, before the 
 sale. (Jackson v. Morse, 18 John. 441.) Under the re^^sed stat- 
 utes, the comptroller's deed will not pass title to any portion of the 
 premises, if a single foot of it be actually occupied at the time, un- 
 less the title be perfected by the notice, default to redeem, and the 
 proof thereof to the comptroller, and his certificate. {Burt v. Da- 
 vison, 16 Wend. 550. Leland v. Bennett, 5 Hill, 286. Smith v. 
 Sanger, 3 Barh. 360.) 
 
 The reader is referred to the seventh chapter, part three, already 
 cited, for the rules of law applicable to the alienation of real estate 
 by the order or permission of some tribunal or public officer. He 
 will there see what circumstances are essential to a valid transfer of 
 property, and how far the title may be afiected by irregularities. 
 It is not deemed expedient to pursue this branch of the subject 
 further, in this connection. 
 
 Section V. 
 
 Of the Right ivhich a Purchaser has to the Original Deeds, and of 
 Covenants for their Production. 
 
 It was held, in Lord Burkhurst's case, (1 Co. 2,) that if a man 
 seised of lands in fee simple, and having divers evidences and char- 
 ters, some containing warranty, and some not, conveys the land 
 over to another without any warranty upon which he may be vouch- 
 ed, the purchaser shall have all the charters and evidences, as well 
 those which comprehend the warranty, as the others; for inasmuch 
 as the feoffor had conveyed over all his estate in the land absolute- 
 ly, and is not bound to warrant the land, so that he cannot be 
 vouched to warranty, and to render the value, but the feoffee is to 
 defend the land at his peril; it is therefore reasonable that the fe- 
 offee, for his better defense, shall have all the charters and eviden- 
 ces as incident to the land, although they be not granted to him 
 by express words ; and that the feoffor shall not have them, because 
 he can receive no benefit by keeping them, nor sustain any damage 
 by delivering them. 
 
 But where a man conveyed with warranty, he had a right (unless 
 there was an express grant of the deeds) to retain all evidences 
 which contain warranty, or serve to protect the warranty para-
 
 POSSESSION OF TITLE DEEDS. 547 
 
 mount, or to maintain the title of the land; but not such as con- 
 cern the possession. So where a conveyance was made with a war- 
 ranty against the grantor and his heirs only, the purchaser was 
 entitled to the deeds without an express grant of them; for, as he 
 could not recover in value upon this warranty in case of eviction 
 by a stranger, the defense of the title was at his peril. (1 Coke 
 Litt. 6 a.) 
 
 This doctrine was made subservient to the interests of the parties. 
 If a man enfeoffed two, to them and their heirs, and gave the an- 
 cient charters to one of them and he died, the survivor should have 
 all the charters, and not his heir, to whom the gift was made; for 
 he could sustain no loss from the want of them, nor receive 'any 
 benefit by them if he had them; but it is otherwise of the survivor; 
 and he should have them as things which went with the land. 
 These principles owed their origin to the doctrine of warranty; 
 ' but though that has gone into disuse in England, and has been 
 abolished in this state, these principles continue substantially the 
 same. The title deeds are things which go with the inheritance, 
 descend with it, and pass with it by conveyance without beino^ 
 named. (1 Sugd. Vend. 523, Perk. ed. Austin v. Croome 1 
 Carr. & Marsh. G53. 3 Ves.jun. 226.) ' 
 
 There can be no doubt in the application of these principles to 
 modem conveyancing, that where a man conveys the whole lot of 
 which he has the title, by a conveyance in fee, without any cove- 
 nants of warranty, the title deeds should be given to the grantee, 
 as an incident to the grant. The grantor has no longer any interest 
 in them; but they may be of essential value to the grantee, to pro- 
 tect his title against adverse claimants. 
 
 But where a man sells only a part of the estate, and retains the 
 balance himself, the purchaser is not entitled, as an incident of the 
 grant, to the possession of the deeds, unless they are expressly 
 granted to him by the terms of the deed. {Yea w. Field 2 Term 
 Bep. 708.) ' 
 
 So where lands held under one title are sold to two or more per- 
 sons, in separate parcels, the deeds, at common law, are usually 
 granted to him who takes the largest part; but in all cases where 
 a person cannot obtain the evidences, he is entitled, at the expense 
 of the vendor, unless it is stipulated expressly to the contrary to 
 attested copies of all such as are not of record. {BougUon v Jew- 
 ell, 15 Ves. 176. Dare v. Tucker, 6 id. 460.) He is also entitled
 
 -^48 RECORDING DEEDS. 
 
 to a covenant from the vendor, or the person having the larger part 
 of the estate, to produce the deeds themselves, in order that the 
 purchaser may be enabled to defend his title and possession. Al- 
 though the purchaser of part of the estate takes such a covenant 
 for the production of the deeds, yet, if he afterwards obtain posses- 
 sion of them, no person can recover them from him who has not a 
 better right to them than he has. ( Yea v. Field, supra.) 
 
 There is great inconvenience in having the title-deeds, says Lord 
 St. Leonards, (1 Sug. Vend. 526, Perk, ec/.,) in the hands of a sel- 
 ler who has parted with the whole of the property, although he has 
 covenanted to produce them, for the obligation is soon forgotten or 
 disregarded, and the deeds accordingly are in danger of being neg- 
 lected or destroyed, unless by being sometimes called for, they pro- 
 duce emolument in the hands of a solicitor. 
 
 The statute relative to the recording of conveyances has relieved 
 our conveyancers from some embarrassments which formerly exist- 
 ed. The revised statutes of 1830 require that all conveyances of 
 real estate wnthin this state, thereafter made, shall be recorded in 
 the office of the clerk of the county where the land is situated, and 
 when not so recorded, they are declared to be void as against any 
 subsequent purchaser in good faith, and for a valuable considera- 
 tion, of the same real estate, or any portion thereof, whose convey- 
 ance shall be first duly recorded. (1 B. S. 756, § 1.) This statute 
 is a mere revision of the act of 1788, and the subsequent enact- 
 ments on the same subject. (2 Greenleaf, 99. \ K. & R. 478. 
 1 B. L. 369.) An unrecorded deed has always been good, and still 
 is valid against the grantor and his heirs. {Jackson v. West, 10 
 John. 466, per Kent, Ch. J.) The present statute is mandatory as 
 to all deeds thereafter made, and it holds out inducements to the 
 recording of them which practically makes the usage of recording 
 universal. A transcript of a duly recorded deed is an original by 
 statute for all the purposes of pleading and proof. (1 B. S. 759, 
 § 17. Clark v. Nixon, 5 Hill, 36. Dumfrey v. Tyler, 3 Duer, 
 73, 95,) 
 
 It would seem, in this state, that a covenant to produce the orig - 
 inal deeds cannot be necessary in any case. If the deed has not 
 already been recorded, the purchaser will doubtless insist on its be- 
 ing recorded at the expense of the vendor, in the proper county, if 
 it has been duly proved or acknowledged; and in cases which re-
 
 RECORDING WILLS. 549 
 
 quire it, deposited in the same office, for the inspection of all per- 
 sons desiring to examine the same. (1 R. S. 761, §§ 30-32.) 
 
 A deed duly acknowledged is evidence, not only of a transfer of 
 the title, but of the covenants contained in it. {Morris v. Wads- 
 loorth, 17 Wend. 103.) In order to be evidence, the transcript of 
 the record must include the whole of it— that is, the record of the 
 proof or acknowledgment as well as of the deed itself. {Per Bran- 
 son, J. in Morris v. Keyes, 1 Hill, 540.) 
 
 The counsel for the purchaser will see that the deeds under 
 which the grantor derives his title have been legally proved or ac- 
 knowledged, and recorded in the proper county. The custody of 
 the originals becomes then a matter of subordinate importance; 
 but I believe it is usual, when the whole land covered by the deed 
 is conveyed, without covenants, to deliver to the grantee the muni- 
 ments of the grantor's title. But when a grantor conveys with 
 covenant of seisin, he is not bound to deliver the title deeds to the 
 grantee. {Ahhott v. Allen, 14 John. 248.) And the learned judge 
 who delivered the opinion of the court in the last case, expressed 
 the opmion that the grantor, who had given a covenant for quiet 
 enjoyment and general warranty, is in the same condition, and may 
 retam in his own hands the evidences of his title. 
 
 This rule is not therefore confined to covenants which run with 
 the land, as a warranty, but extends to such as do not, as the cove- 
 nant of seisin, and the power to convey, and the covenant against 
 mcumbrances, which are broken the moment they are made 
 {Greenly v. Wilcox, 2 John. 1. Dimmick v. Lochioood, 10 Wend. 
 Rep. 142.) 
 
 The same principles are applicable to cases where the title is de- 
 rived by devise. The devisee is not, by virtue of his devise, entitled 
 to the custody of the will, or of any certificate or other muniment 
 of title from the executors or the heu'. He is entitled to have the 
 will, under which he derives his title, proved in the proper court 
 as a will of real estate, and recorded with the proofs thereof, in the 
 book pro^^ded for that purpose. He has a right to institute that 
 proceeding himself against the heirs, executors or other parties 
 having an interest in the question; and can thus have the validity 
 oi the will established by judicial authority. {L. of 1837, cli. 460, 
 § 4. 3 ^. 8. 146, bth ed. Willard on Executors, 167-174 ) 
 
 The exemplification of the will alone, without the proofs, cannot 
 be received in evidence. The whole record, including the proofs
 
 550 TITLE BY ADVERSE HOLDING. 
 
 must be certified. The record itself is made evidence, and this the 
 court say includes the proof as well as the will. The transcript of 
 "the record, certified by the proper officer and sealed with the seal 
 of the court, is also as effectual as the original will W(juld be if 
 produced, {Morris v. Keyes, supra.) 
 
 But though the record and the transcript thereof are both made 
 legal evidence, they are not conclusive, but only prima facie evi- 
 dence of the authenticity of the will in the one case, and of the deed 
 in the other. The instrument may still be assailed by contrary 
 proof. {Id. Jackson v. Rumsey, 3 John. Cases, 234. 2 R. S. 
 58, § 15.) 
 
 It is not usual in this state to insist on a covenant from the 
 vendor to produce the original deeds or will, when the same have 
 been recorded. Such requirement would be vexatious to the one 
 party, without being attended with any benefit to the other. 
 
 A good title may sometimes be made to an estate, although the 
 origin cannot be shown by any deed or will. But it must be shown 
 that there has been such a long, uninterrupted possession, enjoy- 
 ment and dealing with the property, as afford a reasonable pre- 
 sumption that there is an absolute title in fee simple. (Cottrel v. 
 Watbins, 1 Mason, 363.) 
 
 In many of the cases, when a title has become perfect by adverse 
 enjoyment, the owner can show no documentary e\adence which 
 would in the beginning have been accepted by a purchaser as a valid 
 title. The acquiescence of all adverse claimants is presumed by 
 lapse of time. The increased value of the property, by the growth 
 of the country or the industry of the occupant, are constantly 
 strengthening a title, which perhaps began in wrong; until at length 
 it ripens into a right. The statute of limitations, as well as the 
 principles on which the doctrine of title by adverse enjoyment rests, 
 is founded in wisdom. And it may be doubted whether society 
 could continue to prosper without it. It imparts to good faith and 
 honest industry a promise of protection; and thus holds out induce- 
 ments to make improvements which would otherwise be neglected. 
 {See ante, pp. 351, 352.)
 
 FORM OF ABSTRACT. 55^ 
 
 Section VI. 
 
 Of the Form, Arrangement and Substance of the Abstract. 
 
 The form of the abstract has reference not only to its mechanical 
 execution, but the lucid arrangement of its diflPerent parts. As the 
 object is to communicate accurate information on the subject of the 
 title under investigation, it should be so made as to be easily ex- 
 ammed, and readily understood. It should be drawn or engrossed 
 m a fair hand, on good paper, so that no time need be wasted in 
 deciphenng its meaning, or arranging the order in which the differ- 
 ent parts are stated. The parts of the deed, or will, under whi^h 
 the title 18 claimed, should be stated truly, and in the langua-e of 
 the instrument abstracted. The Unes should be sufficiently^open 
 to give room for interlineations if need be, and the marc^in suffi- 
 ciently broad to admit of notes of inquiry by the counsel who is 
 employed to examine it and investigate the title. If the title be 
 comphcated, the counsel will need the whole powers of his mind to 
 combine the different parts, and to bring him to a safe result 
 bometimes the abstract is accompanied with full copies of the deeds 
 aiid wills under which it is derived. In some cases it is presumed 
 tha such copies may be important; but if the abstract be faithfully 
 made, they will not be indispensable. 
 
 Every abstract should have a head or title. It should disclose 
 the name oi the person whose title is to be considered, the interest 
 he has in it, the lands to which attention is to be directed, the name 
 ol the town and county in which it is situated, and if there is any 
 difference between the ancient description of it, and that by which 
 It IS now known the abstract should so connect the two as to show 
 the identity of them. 
 
 The form given by Mr. Preston in his treatise, (1 Prest on Abs 
 36,) may be adopted by so varying the phraseology as to conform 
 to our style of description. 
 
 It may be to this effect: "An abstract of the title of A B to 
 the fee simple or inheritance of a farm of 160 acres of land, 'in the 
 town of Saratoga Springs, in the county of Saratoga and state of 
 New York, being in the allotment of the patent of Kayade- 
 
 rosseras, so called." ^'^j'ciue
 
 552 FOR^I OF ABSTRACT. 
 
 The heading of the abstract sliould be varied in point of fonn, 
 as circumstances may require; thus directing the attention to those 
 points which are most material and prominent. 
 
 The abstract is like a brief of facts prepared by counsel for the 
 trial of a cause, the object of which is to establish or defend the 
 title. In the case where lands are situated in an old patent grant- 
 ed more than a hundred years ago, it is unnecessary and perhaps 
 unwise, to begin the abstract with the granting of the patent, by 
 the colonial government, and then to trace the title under examin- 
 ation through the partition of the patent among the original pat- 
 entees, and the subsequent conveyances by deed or will, or descents, 
 to the party whose title is under examination. If the party from 
 whom he purchased, or those under whom he claimed, had been in 
 the peaceable and quiet possession of the premises, claiming as^ 
 owner for many years before — twenty, thirty, or forty, as the case 
 may be — that fact should be stated. 
 
 It may be stated thus : C. D. under whom the said A. B. de- 
 rives title, went into possession of the premises in question in 1820, 
 under a deed in fee simple from E. F., who claimed to be, and w^as 
 believed to be, the owner thereof The deed of E. F., in which his 
 wife joined, to the said C. D., was dati^d the 1st A})ril, 1820, pur- 
 ports to be for the consideration of 1000 dollars in hand paid, and 
 " grants, bargains, sells," &c., (using the granting words of the 
 deed,) the premises in question to the said C. D., his heirs and as- 
 signs forever. It contains the usual covenant of warranty ; (state 
 what the covenants were ;) it was duly acknowledged by the grant- 
 or, and his wife on a private examination apart from her husband; 
 and was recorded in the clerk's office of Saratoga county on &c. in 
 
 book of deeds letter __ &c. page The said C. ©.immediately 
 
 afterwards entered into the possession of the said premises under 
 the said deed, erected fences and buildings on the premises, and im- 
 proved the farm, claiming it as owner until the year 1845, when, 
 for the consideration of 4000 dollars, he sold the same to the said 
 A. B. in fee simple, by a deed executed and acknowledged by him- 
 self and wife, bearing date 1 March, 1845, by which for the said 
 consideration of 4000 to him in hand paid, they " granted, bargain- 
 ed, sold," (follow the language of the deed,) the said described 
 premises to the said A. B. his heirs and assigns forever. The deed
 
 FORM OF ABSTRACT. 553 
 
 contains the following covenants of title, (setting tliem out,) and 
 is recorded, (state where and when.) 
 
 The said A. B., immediately after the delivery of the said deed, 
 entered into the possession of the said premises under said deed, 
 and has continued ever since in the peaceable and quiet possession 
 thereof as owner, cultivating the farm, and otherwise improving 
 the said premises. 
 
 The certificate of the county clerk of the county of Saratoga 
 shows that he has searched the docket of judgments in his office for 
 the last ten years, and finds no judgment now in force against the 
 said A. B. ; and that he has searched the record of mortgages for 
 the last twenty years, and he finds no mortgage either against the 
 said A. B. or the said C. D. 
 
 The foregoing makes as clear a title as is usually conveyed in the 
 country. If the purchaser is dissatisfied with it, he should point out 
 the defects, so as to give the vendor an opportunity to explain or 
 remove them. If, for example, the vendor had been town collector, 
 or a surety for such collector, the purchaser might require a certifi - 
 cate from the clerk that the docket of the collector's bond had been 
 discharged. {Ch. II, p. 535.) So also with regard to other pos- 
 sible liens, for taxes, or the like, the purchaser might make inqui- 
 ries and protect himself by proper covenants. 
 
 The foregoing abstract will serve only to show, in a general way, 
 how it should be prepared. 
 
 But there will often be incumbrances to be removed. There may 
 have been many transfers of the property. To some of the deeds - 
 the wife of the grantor may not have been a party, thus leaving the 
 lands liable to a contingent right of dower. Some of the changes 
 may have been occasioned by a devise. It may be important to see 
 whether the will was properly executed to pass real estate; whether 
 it has been proved and recorded in the proper office; whether it 
 chp.rged the payment of debts or legacies on the real estate of the 
 testator, and whether those debts and legacies have been paid; 
 whether there is any contingent right of dower or curtesy in the 
 land or in any part of it. 
 
 The title to some of the parties may be derived by descent from 
 a remote ancestor. In this case it may be necessary to accompany 
 the abstract with a pedigree, duly authenticated. In the case of 
 ancient titles this is sometimes attended with difficulty. We have 
 only to look into our reports to see cases where titles have been
 
 554 OBJECT OF ABSTRACT. 
 
 traced back for more than a century, to witness the draft upon tlie 
 ingenuity and skill of the counsel who is employed in the investi- 
 gation.''' 
 
 Conveyancing is both a theory and an art. The theory has ref- 
 erence to the knowledge of the doctrine of estates, the quantity and 
 quality of the interest which a vendor may have at a given time, 
 and his right to alien the same. To acquire this theory, the stu- 
 dent should make himself fomiliar with the law of real property as 
 it existed in this state before the revolution, when a large portion 
 of our great estates had their origin, the changes which have been 
 from time to time introduced by the legislature, and the present 
 state of the law, both of descent and purchase. 
 
 The first changes which were introduced after the revolution 
 were the converting of estates tail into estates in fee simple, and 
 abolishing the law of primogeniture. These led to subordinate 
 changes, which have been noticed in the foregoing work. But still 
 greater changes in our legal polity were wrought by the revised 
 statutes of 1830; some of which were merely formal, and others 
 radical in their character. Many principles in the law of trusts, for 
 example, which were well settled, have been entirely subverted; 
 and new rules have been adopted, the practical operation of which 
 has not yet been fully settled by the courts. In the preceding chap- 
 ters we have endeavored to state the existing law of this state, as it 
 was enacted by our legislature and expounded by our judicial decis- 
 ions. A competent knowledge of the law in these respects is indis- 
 pensable to the theory of conveyancing. 
 
 But conveyancing is not only a theory but an art. The art con- 
 sists in the proper application of the principles to the actual affiiirs 
 of life. When a man is about to convey a farm to another, or to 
 mortgage it as security for a loan or a debt, the natural inquiry 
 which will first be made is as to the quantity and quality of interest 
 which he has in the property which he proposes to alien. The first, 
 
 * The Livingston and the Van Rensselaer manors, the Hardenbergh and the Kaya- 
 derosseras patents, have each, in turn, furnished examples of the various points which 
 may arise in deducing titles from the remote patentees. These patents embraced 
 large tracts of land, and were issued by the colonial government in the early part of 
 the last century. Numerous other of the old colonial patents have not been less pro- 
 lific in affording subjects of litigation. {The People v. Van Rensselaer, b Seld,2^\, 
 will show the deduction of title in the defendants as against the state. Papers in relor- 
 iion to the Livingston patent will be found in 3 vol. Doc. His. N. F., 611 et seq. Jack- 
 son V. France, 10 John. 428, as to a title under the Hardenbergh patent.')
 
 OBJECT OF ABSTRACT. 555 
 
 that is, the quantity of interest, has reference to the time of its con- 
 tinuance; as whether it is an estate in fee simple, for life or for years; 
 an estate at will, or only at sufferance. The second, that is, the quality 
 of the estate, has reference to the time when the right of enjoyment 
 will commence, or rather whether it is an estate in possession, or in 
 expectancy, as a remainder or reversion; and to the number and 
 connection of the tenants, as whether it is an estate in severalty, 
 joint tenancy or in common. These subjects have been treated in 
 their proper place. It is obvious that these points must be settled 
 before the conveyancer can determine on the appropriate form of 
 conveyance, and the proper covenants to be insisted on by a pur- 
 chaser, or to be granted by the vendor. 
 
 For example, if the grantor has not alone the right of alienation 
 but only in conjunction with others, who are co-tenants with him; 
 if he has only an estate for life or years, and another has the re- 
 mainder or reversion in fee; if a husband is seised only in right of 
 his wife; in all these cases, it will readily occur to the counsel that 
 the proposed grantor can only transfer to another such estate as he 
 has in himself individually; and that to alien the fee simple, he 
 must procure the concurrence of his co-tenants, the remainderman 
 or reversioner, and in the»last case of his wife, to unite with him in 
 the conveyance. Indeed, in all cases where a man parts with an 
 estate of inheritance, intending to give a fee simple absolute, with- 
 out incumbrances, his wife should be a party with him to the con- 
 veyance, and should make the requisite acknowledgment, (Gillef 
 V. Stanley, 1 Hill, 121.) 
 
 If the tenant for life sells to a stranger in point of estate, the 
 deed can operate only to pass his own interest, and will make his 
 grantee a tenant j^ur auter vie. Although the grantor thus trans- 
 fers to another an estate for the life of the grantor, it becomes, in 
 the hands of the grantee, by operation of law, an estate, not for 
 the life of the grantee, but of the grantor. It is of less value to 
 the grantee, in point of interest, than it was to the grantor. But 
 if the conveyance of tenant for life be to him who has the imme- 
 diate estate in remainder or reversion, the operation of the deed is 
 a surrender, and thus the whole fee simple is vested in the grantee. 
 
 Suppose an estate for years be desired to be created by a party 
 who has only an estate for his own life. A lease for years by the 
 tenant for life does not give a certain continuance of the estate, 
 since it must be determined by the death of the lessor. But if he
 
 556 nUTY OF COUNSEL AS TO ABSTRACT. 
 
 who owns the remainder in fee joins in the lease to the tenant for 
 years, this lease becomes during the continuance of the life estate, 
 the lease of the tenant for life and tlie confirmation of the remain- 
 deniian. But after the determination of the life estate, the lease 
 becomes, in construction of law, tlie lease of the remainderman, and 
 the confirmation of the tenant for life. 
 
 If the estate is derived by devise or descent, and the will, in the 
 first case, does not charge the estate with the payment of debts or 
 legacies, still in both cases, under the operation of our laws, the 
 real estate of the testator or intestate may be reached through the 
 intervention of the surrogate's court, for the payment of the debts 
 of the testator or intestate, on the insufficiency of the personal as- 
 sets, if the application be made within three years from the date of 
 the letters testamentary or of administration. (See Will, on Ez'rSj 
 306 et seq. 2 R. S. 100. 3 id. 186 ct seq. 5fh cd.) The effect of 
 this statute regulation is to create a quasi lien on the real estate 
 of the deceased, in favor of creditors at large, for a certain defined 
 period. The existence of such power will suggest to the purchaser 
 of estates derived by inheritance or by devise, the necessity of ascer- 
 taining from the surrogate's office, or other sources of information, 
 whether the accounts of the administration of the estate have been 
 closed or not; and whether any and what debts exist against the es- 
 tate. The covenant against incumbrances should, in the case of a 
 title so derived, be drawn in such a manner as to protect the pur- 
 chaser against the claims of the creditors of the estate, which may 
 be enforced against the real estate of the deceased. 
 
 It is the duty of the counsel of the purchaser to examine the ab- 
 stract, and compare it with the several documents referred to in it. 
 He should see not only that the abstract has been truly made from 
 the deeds or wills, under which the title is derived, but should as- 
 certain by an examination of the whole instrument that there is no 
 proviso, or limitation over, which qualifies or restricts the portion 
 of the instrument abstracted. And the description of the parties, 
 or an exception in the operative part of the deed, or frequently in 
 the covenants for title, sometimes points to incumbrances or settle- 
 ments which have not been disclosed. In the case of wills, partic- 
 ularly, the counsel is bound to read through the whole will. Upon 
 him devolves the duty of seeing that the evidence is what it pur- 
 ports to be, and that the deeds and wills are duly executed and re- 
 corded. (1 Sugd. Ven. 505, 506, Perkins' ed.)
 
 NOTICE TO THE ATTOENET. 557 
 
 Lord Hardwicke, at an early day, laid it down, "that even if an 
 attorney of a vendor of an estate, knowing of incumbrances thereon, 
 treat for his chent in the sale thereof, without disclosing them to 
 the purchaser or contractor, knowing him a stranger thereto, but 
 represents ,t so as to induce a buyer to trust his money upon it a 
 remedy lies against him in equity; to which principle it is necessary 
 for the court adhere, to preserve integrity and fair dealing be- 
 tween man and man; most transactions being by the intervention 
 of an attorney or solicitor." Lord St. Leonards, adopting the above, 
 adds, that It seems clear that relief may now be obtained at law 
 And he says that the same observation applies, and indeed «-ith 
 much greater force, to the attorney or agent of the purchaser It 
 can seldom happen that the attorney or agent of the purchaser is 
 conusant of any incumbrance on the estate intended to be pur- 
 chased unless he be employed by both parties; which the same 
 person frequently is to avoid expense. (1 Sugd. Ven. 8, Perk ed ) 
 This practice prevails to a great extent in this state; and in small 
 transactions in the country is almost unavoidable. It is a practice 
 discountenaneed by the courts in England; and is often prodncfe 
 ot the most serious consequences. (Id. 6 Ves. 631, note.) U 
 would doubtless be discountenanced here. It often happens, that 
 ^ e are incumbrances on an estate which can be sustained in 
 
 legal estate, unless he had notice of them previously to completing 
 his purchase. _ Now, notice to an agent, although one concerned for 
 bo h parties, is treated in equity as notice to the purchaser himself; 
 and therefore, if the attorney knows of any equitable incumbrance 
 
 tZ l^f«-'f/«"Je, 203. Gr,:ffitk v. OriffUk, 9 Paige, 315. 
 »^f-fi-J^r. 240, etseq, and cases there cited) 
 
 As the pnncipal is civilly responsible for the acts of his agents 
 (Doe V. Martin, 4 D <f: G M 40 ^ If ti,„ j ^ "bcuw, 
 
 crmJw r.e f J • 'Iv , ' '■' ™* ™'"''"' °f an estate is 
 guilty of fraud m the sale of the estate to which his attorney ia 
 pnyy the purchaser, if he has employed the same attorney in ne- 
 gotating the purchase though innocent of the fraud, will be affect- 
 
 diffll' f' *' '^^""'i"^ ^"'^ P'^rti''^ that they be represented by 
 different counsel, m aU transactions of the nature we are eonsiderl
 
 558 THE PARTY TO TREPARE TUE DEED. 
 
 ing. In England, whenever in a proceeding before a master the 
 same solicitor is employed for two or more parties, such master 
 may, in his discretion, require that any of the said parties shall be 
 represented before him, by a distinct "solicitor, and may refuse to 
 proceed until such party is so represented. {Gen. orders, 23 Nov. 
 1831, 77) This rule was dictated by a knowledge of the inconve- 
 nience and hazard of the contrary practice. 
 
 Section VII. 
 
 0/ the Party hy whom the Deed or Mortgage is to he prepared, 
 and at lohose expense. 
 
 When the property of an individual is taken under the exercise 
 of the right of eminent domain, for public use, by virtue of the sove- 
 reign authority as permitted by the constitution — that private prop- 
 erty shall not be taken for public use without just compensation — 
 the expense of the proceeding is borne exclusively by the party for 
 whose benefit the property is taken. The party whose title is forci- 
 bly wrested from him is required to be recompensed in money for its 
 value, without any deduction for supposed benefits, and without 
 any liability for costs. This is the principle on which our laws 
 with respect to public and private ways are founded. (2 B. S. 394 
 et seq. 5th ed.) The like principle applies when land is taken for a 
 turnpike, (Id. 480 et seq.) or for a plank road, (7c?. 495 et seq.) 
 
 The general act to authorize the formation of rail road corpora- 
 tions (L. of 1850, ch. 140, § 16, 17, 18, dc.) is founded on the same 
 principle; and we have seen, in a former part of this work, that 
 compensation must precede the vesting of the title in the company 
 or the individual for whose benefit it is obtained. The same rule 
 has invariably been pursued by the state in awarding damages for 
 property taken for our canals. The state defrays the expenses of 
 the tribunal by whom the damages are awarded. 
 
 In the foregoing provisions it is assumed that the parties taking 
 the land of others for public use have been unable to make an ami- 
 cable purchase; and the property is therefore taken against the will 
 of its owner. But it often happens that the owner is willing to 
 part with his title for a fair equivalent. In such a case it is usual 
 for the purchaser to bear the whole expense of the conveyances. 
 The rule in England, in this class of cases, seems to be the same. 
 (Matter of London and Greemvich Railiuay Co. 3 Hare, 22.)
 
 WHO TO PAY EXPENSES. 559 
 
 In transactions between buyer and seller, when no statute inter- 
 venes, the parties may make such stipulations as they please with 
 respect to the expense of investigating the title, and preparing the 
 instruments of conveyance. The expense may be equally divided, 
 or be borne by either party, as they shall have agreed. When there 
 is no previous agreement between the parties on this point, the 
 matter of expense attending the conveyances is to be settled by the 
 general usage of the country. 
 
 With respect to a mortgage given , as the security for a loan, it 
 was said by the master of the rolls, in Kennedy v. Greene, (3 Mylne 
 & Keene, 699,) that the solicitor of the mortgagee is the person 
 who is to prepare the security. The money advanced is that of the 
 mortgagee, and it is his interest that is to be protected. The ex- 
 pense of preparing the security and of making the requisite searches 
 and abstracts when necessary, must be borne by the mortgagor. 
 This it is believed is the usage in this state, where sums of money 
 are loaned out by corporations or individuals on mortgage security. 
 The lender is entitled to his money loaned and the legal interest, 
 which he would not get if he had to bear the expenses of the searches, 
 examination of titles and preparation of the securities. 
 
 When a mortgage is given for the consideration money, on the 
 same land which is sold, no abstract of title or search for incum- 
 brances against the mortgagor are necessary. No incumbrance 
 against the vendee will attach upon an instantaneous seisin which 
 is immediately conveyed back to the vendor by way of mortgage. 
 {See ante, p. 124.) In this class of cases it is usual for the parties 
 to share the expense; the vendor paying for the preparation of the 
 deed and for the search for incumbrances on the estate, and the 
 vendee for the bond and mortgage given for the whole, or some part 
 of the purchase money. In transactions of this kind in the coun- 
 try, the same person usually acts as counsel for both parties. The 
 purchaser should, for his own safety, require a search for incum- 
 brances against his vendor, and those under whom he holds, and 
 not rely solely on the covenants for title in his deed. 
 
 In other cases between vendor and vendee, the duty of preparing 
 the title papers, and of paying the expenses incidental to their prep- 
 aration depends on the express contract of the parties ; and if that 
 is silent, on the general usage on the subject. It is competent for 
 the parties, in the preliminary contract for the sale and purchase 
 of an estate, to stipulate by which of the parties the expenses shall
 
 560 OF THE PARTY TO PAY EXPENSES. 
 
 he borne. If the articles of agreement be judiciously framed, and 
 the parties have thereby provided as to subsequent expenses, no 
 controversy in that respect will probably arise. 
 
 But in many cases a sale takes place without any preliminary 
 articles of agreement, or if one be made, it may fail to contain any 
 certain disposition of this question. In such -cases resort must be 
 had to the usage on the subject, or the construction of the defective 
 provisions contained in the contract. 
 
 The former practice in England was to require the vendor to 
 prepare and tender a conveyance of the premises to be sold, when 
 there had been no express stipulations to the contrary. The mod- 
 em rule is admitted at this time, says Lord St. Leonards, to be that 
 the expense of the conveyance must be borne by the purchaser, un- 
 less there has been some different express stipulation on the sub- 
 ject. (1 Sucjd. Vend. 309, Ferk. ed.) Therefore, when there is 
 no such stipulation, the purchaser is bound to tender the convey- 
 ance. (Id.) 
 
 The usage in this state is believed to be more nearly like the 
 former rule in England, than that which is said now to prevail 
 there. In Connelly v. Ple7xe, (7 IVend. 131,) Savage, Ch. J. af- 
 ter admitting that in England the purchaser is bound to have the 
 deed drawn and presented to the vendor for execution, says we have 
 not gone so far. " The party who is to give the deed, should have 
 it drawn at his own expense." On this point it is believed the su- 
 preme court in the fifth district, agreed \nth the former chief jus- 
 tice. {Carpenter v. Brown, 6 Barb. 149.) 
 
 In most of the cases in this state, the question as to who is bound 
 to prepare the deed, has arisen in a collateral action. In Connelly 
 V. Pierce, (supra,) it arose in an action of covenant upon a con- 
 tract for the sqile of land, alleging as a breach that the defendant 
 refused to convey, although requested, &c. There were several 
 pleas to this breach. In the course of the case it was held that the 
 vendor who has covenanted to convey by a certain day, is not in de- 
 fault until the party who is to receive the conveyance, being enti- 
 tled thereto, has demanded it, and having waited a reasonable time 
 to have it drawn and executed, has made a second demand. The 
 purchaser, it was conceded, might avoid the necessity of a second 
 demand by tendering, on the first demand, a deed prepared for ex- 
 ecution. It was said that the vendor was to be at the expense of 
 having it drawn, but was not, in such a contract as that was, to
 
 WHO TO TENDER DEED. 561 
 
 have it prepared until demanded. The supreme court, in Carpen- 
 ter V. Brown, {supra,) question the necessity of a second demand. 
 They thought that if the party was entitled to the deed when the 
 demand was made, no second demand was necessary. 
 
 In Fuller v. Hubbard, (6 Cowen, 13,) the question arose in an 
 action of assumpsit by the purchaser to recover back the money 
 paid, the conveyance not having been given. The plaintiff having 
 recovered, a motion was made for a new trial, first, on the ground 
 that the plaintiff could not sue on the common counts, but should 
 have brought his action on the contract; and second, that he could 
 not sustain an action, without having first tendered a deed for exe- 
 cution; or at least having demanded it. On this point the court, 
 after alluding to the English rule as laid down in Sugden, both the 
 old rule and the modern one, said, that to put the vendor in default, 
 and to entitle the vendee to recover back the purchase money, which 
 he had paid in advance, he must tender the residue, and demand a 
 conveyance. In such a case, when a part of the purchase money 
 was due and tendered, a reasonable time should be allowed to the 
 vendor to prepare the conveyance. It was admitted that the pur- 
 chaser might prepare the conveyance himself, and tender it for exe- 
 cution at the time he made the payment or tender, but he was not 
 bound to do so. 
 
 The case of Eackett v. Huson, (3 Wend. 249,) was covenant by 
 the vendee against the vendor, on a covenant of the latter to deliver 
 to the former by a certain day a good and sufficient warranty deed, 
 &c. The case is imperfectly made as reported, but the supreme 
 court assumed that the circuit judge had decided that when the 
 vendee brings covenant on such an instrument, he must prepare and 
 tender a deed for the vendor to execute. This they admitted was 
 the English rule, but was not adopted in this state. They said that 
 if the deed tendered by the vendor was objectionable in point of 
 form, the vendee should have prepared one that did conform to the 
 agreement, and present it for execution; and if the vendor refused 
 he would then be in default. 
 
 In Hudson v. Jewett, (20 John. 24,) the action was to recover 
 back part of the purchase money, on the ground that the contract 
 was rescinded. The court held that to enable the purchaser to 
 maintain the action, he must show that he has tendered the residue 
 of the purchase money and demanded a deed. The chief justice 
 Baid he would not decide that the purchaser must prepare the deed, 
 
 Will.— 36
 
 562 RULE IN THIS STATE. 
 
 as is required in England, it not being necessary bo to decide in that 
 case. In that case the vendor had prepared and tendered the deed, 
 which the vendee refused to accept. 
 
 The rule in Massachusetts and in Maine is the same as that in 
 this state. In some of the states the modern English practice pre- 
 vails. {See note to Perk. ed. 1 Sugd. 310.) 
 
 The rule in this state may be summed up as follows: 
 
 1. It is competent for the parties to stipulate in the preliminary 
 contract of sale by whom and at whose expense the conveyance shall 
 be prepared. 
 
 2. If no such special agreement be made, then it is the duty of 
 the vendor to prepare the title deeds, at his own expense, and cause 
 the requisite searches to be made for incumbrances. 
 
 3. The purchaser, to put the vendor in default, must demand the 
 conveyance and wait a reasonable time for its preparation; or he 
 may himself prepare the requisite deed and present it to the ven- 
 dor for execution. In this latter case, the vendor should have a 
 reasonable time to examine the deed before he is required to execute 
 it. If the purchaser thus voluntarily prepares the deed himself, to 
 which he is entitled, it must be at his own expense.
 
 APPENDIX OF FORMS. 
 
 ACKNOWLEDGMENTS, PflOOPS, ETC. 
 
 No. 1. 
 CERTIFICATE OF ACKNOWLEDGMENT BY A PARTY KNOWN TO THE OFFICER. 
 
 State of New York, County, ss: On this day of , I860, 
 
 before me the undersigned, one of the justices of the supreme court, [or county 
 
 judge of the county of , counsellor, &c., or one of the justices of the peace 
 
 of the said county,] personally appeared A. B., whom I know to be the person 
 described in the within deed, and acknowledged that he executed the same.t 
 
 [Signature of the officer.] 
 
 No. 2. 
 THE LIKE, WITH NOTICE OF ERASURES, ETC. 
 AbiheUdd: I have examined the said deed, and find no material alterations or 
 erasures, except that in the fifth line from the top, the name of James Jachson was 
 written on an erasure, and between the 10th and 11th line, the words ''acres of 
 land," were interlined. If the alterations and erasures are noticed by the subscrib- 
 ing witness before his attestation, as they should be, the officer who takes the 
 acknowledgment, need not refer to them. 
 
 • ^''''''V, '^^^ acknowledgment need not be in the precise words of the act, but it 
 is desirable to conform to it. (Jackson v. Gumaer, 2 Cowen, 552. DuvaU v. Co- 
 venhooven, 4 Wend. 561.) A^uva,u c. ^^u- 
 
 No. 3. 
 
 CERTIFICATE OF ACKNOWLEDGMENT, WHEN THE IDENTITY IS PROVED BY 
 
 A WITNESS. 
 
 State of New York, Coun^, ss : On this day of September, 
 
 1860, before me the undersigned, one of ihe justices, &c., [as in No. 1,] person- 
 ally appeared A B., purporting to be the grantor in the within deed mentioned, 
 and at the same time 0. D., who is personaUy known to me, who being by me 
 [563.]
 
 564 APPENDIX OF FORMS. 
 
 duly sworn, testified that he is acquainted with the said A. B., and knows him to 
 be the person described in, and who executed the said deed, which is to me satis- 
 factory evidence of the identity of the said A. B., and thereupon the said A. B. 
 acknowledged that he executed the said deed. 
 
 [Signature of officer.] 
 
 (I R. S. 758, § 9. Dibble v. Rogers, 13 Wend. 536, 541.) 
 
 No. 4. 
 
 CERTIFICATE OF PROOF OF A DEED BY THE SUBSCRIBING WITNESS, "WHEN 
 
 THE OFFICER KNOWS THE SUBSCRIBING WITNESS. 
 
 (1 R. S. 758, § 12. Dibble v. Rogers, 13 Wend. 541. Norman v. Wells, 17 id. 136.) 
 
 State of New York, County, ss : On this day of September, 
 
 1860, before me the undersigned, one of the justices, &c., [as in No. 1,] personally 
 appeared E. F. t with whom I am personally acquainted, who being by me duly 
 
 sworn, testified that his place of residence is in in said county, that he 
 
 was present and saw the said A. B. execute the within deed, that he knew him 
 the said A. B. to be the person described in the said deed, and who executed the 
 same, and that he the said E. F. thereupon then and there subscribed his name 
 thereto as a witness to the execution thereof! 
 
 [Signature of officer.] 
 
 No. 5. 
 
 THE LIKE, WHEN THE SUBSCRIBING WITNESS IS NOT KNOWN TO THE OF- 
 FICER, BUT HIS IDENTITY IS PROVED BY A THIRD PERSON. 
 
 77)6 like, as in the last, to the t, and then proceed as follows: 
 
 Who purports to be the subscribing witness to the within deed, [or one of the 
 &c.,] and at the same time C. D., who is personally known to me, who being by 
 me duly sworn, said that he is acquainted with the said E. F., and knows him to 
 be the person who is the subscribing witness to the said deed, which is to me sat- 
 isfactory evidence of his identity ; and thereupon the said E. F., being first duly 
 
 sworn by me, testified that his place of residence is in , in said county, 
 
 that he was present and saw the said A. B. execute the within deed, that he knew 
 him, the said A. B., to be the person described in the said deed, and who executed 
 the same, and that he the said E. F. thereupon then and there subscribed his name 
 thereto as a witness to the execution thereof. 
 
 ' [Signature, &c.] 
 
 NoTK. If the instrument proved or acknowledged be a "mortgage," "assign- 
 ment," " bond," &c., describe it according to the fact. 
 
 No. 6. 
 
 CERTIFICATE OF ACKNOWLEDGMENT BY HUSBAND AND WIFE, WHEN BOTH 
 
 ARE KNOWN TO THE OFFICER. 
 
 State of New York, County, ss : On this day of September, 
 
 1860, before me the undersigned, one of the justices of the supreme court, [or
 
 APPENDIX OF FORMS. 565 
 
 county judge &c. as in No. 1,J personally appeared A. B., and C. his wife, whom I 
 know to be the persons described in and who executed the within deed, and ac- 
 knowledged that they severally executed the same ; and the said C. on a private 
 examination apart from her said husband, acknowledged that she executed the 
 same freely and without any fear or compulsion of her said husband. 
 
 [Signature, &c.] 
 
 (1 R. S. 758, § 10. Gillett v. Stanley, 1 Hill, 121.) 
 
 No. 7. 
 
 THE LIKE, WHEN NEITHER HUSBAND OR WIFE IS KNOWN TO THE OFFICER, 
 AND THEIR IDENTITY IS PROVED BY A WITNESS. 
 
 State of New York, County, ss : On this day of September, 
 
 1860, before me the undersigned, one of the justices &c., [as in No. 1,] personally 
 appeared A. B. and C. his wife, purporting to be the grantors named in the within 
 deed, and also E. F. to me well known ; and the said E. F. being by me duly 
 sworn, testified that he is acquainted with A. B. and C. his wife, and knows them 
 to be the persons described in and who executed the within deed, which is to me 
 satisfactory evidence of the identity of the said A. B. and C. his wife. And there- 
 upon the said A. B. acknowledged that he executed the said deed ; and the said 
 C. on a private examination apart from her said husband, acknowledged that she 
 executed the same freely, without any fear or compulsion of her said nusband. 
 
 [Signature, &c.] 
 (1 R. S. 758, § 9. Dibble v. Rogers, 13 Wend. 536, 541.) 
 
 No. 8. 
 
 THE LIKE, WHEN THE HUSBAJSTD IS KNOWN, AND THE IDENTITY OF THE 
 WIFE PROVEN TO THE OFFICER. 
 
 State of New York, County, ss : On this day of September, 
 
 1860, before me the undersigned, one of the justices, [as in No. 1,] personally ap- 
 peared A. B., and C. his wife, the said A. B. being known to me to be the person 
 described in and who executed the within deed ; and the said 0. being proved by 
 the oath of E. F. to be the wife of A. B. and the person described in and who ex- 
 ecuted the within deed, which is to me satisfactory evidence of her identity ; 
 whereupon the said A. B. and C. his wife, severally acknowledged that they exe- 
 cuted the same. And the said C, on a private examination apart from her said 
 husband, acknowledged that she executed the same freely, and without any fear 
 or compulsion of her said husband. 
 
 [Signature, &c.] 
 (1 R. S. 758, § 10. Dibble v. Rogers, 13 Wend. 541.) 
 
 Tie officer need not certify that he knew the witness who identified the sub- 
 scribing witness. 
 
 (Jackson v. Harrow, 11 John. 434. Same v. Vickory, 1 Wend. 406.)
 
 566 APPENDIX OF FORMS. 
 
 No. 9. 
 
 CERTII'ICATE OF ACKNOWLEDaMENT BY TWO HUSBANDS AND THEIR WIVES, 
 KNOWN TO THE OFFICER. 
 
 StaU of New York, County, ss: On this day of 1860, 
 
 before me the undersigned, one of the justices, [as in No. 1,] personally appeared 
 A. B., and 0. his wife, and E. F., and G. his wife, all of whom are known to me 
 to be the persons described in and who executed the within deed, and severally 
 acknowledged that they executed the same. And the said C. and G. severally, 
 each for herself, on a private examination apart from her husband, acknowledged 
 that she executed the same freely, and without any fear or compulsion of her said 
 
 husband. 
 
 [Signature, &c.] 
 
 No. 10. 
 
 CERTIFICATE OF ACKNOWLEDGMENT BY WIFE ALONE. 
 
 State of New York, County, ss : On this day of , 1860, 
 
 before me the undersigned, one of the justices, [as in No. 1,] personally appeared 
 C. B., wife of A. B., whom I know to be the person described in and who executed 
 the within deed, and acknowledged, on a private examination apart from her hus- 
 band, that she executed the same freely, without any fear or compulsion of her 
 said husband. 
 
 [Signature, &c.] 
 
 No. 11. 
 CERTIFICATE OF ACKNOWLEDGMENT BY AN ATTORNEY IN FACT. 
 
 State of New York, County, ss: On this day of , 1860, 
 
 before me the undersigned, one of the justices, [as in No. 1,] personally appeared 
 A. B. whom I know to be the person described in and who executed the within 
 deed, and acknowledged that he executed the same as the act and deed of C. D. 
 therein described, by virtue of a power of attorney duly executed by the said 
 
 C. D., bearing date the day of , 1860, recorded in the clerk's 
 
 office of the county of , in Book M. of Powers of Attorney, page 68, on 
 
 the day of , 1860. 
 
 [Signature, &c.] 
 
 No. 12. 
 CERTIFICATE OF ACKNOWLEDGMENT BY AN EXECUTOR, OR TRUSTEE. 
 
 State of New York, County, ss : On this day of , 1860, 
 
 before me the undersigned, one of the justices, [as in No. 1,] personally appeared 
 A. B. whom I know to be the person described in the within deed, as executor 
 of the last will and testament of C. D., late of , deceased, and acknowl- 
 edged that he executed the same as such executor. 
 
 [Signature, &c.]
 
 APPENDIX OF FORMS. 567 
 
 No. 13. 
 CERTIFICATE OF ACKNOWLEDGMENT BY A SHERIFF. 
 
 State of New York, County, ss : On this day of , 1860, 
 
 before me the undersigned, oneof the justices, [as in No. 1,] personally appeared f 
 A. B. Esquire, sheriff of the county of Saratoga, [or late sheriff,] whom I know to 
 be the person described in and who executed the within deed, and acknowledged 
 that he executed the same. 
 
 [Signature, &c.] 
 
 No. 14. 
 
 THE LIKE, WHEN EXECUTED BY UNDER SHERIFF, OR DEPUTY SHERIFF. 
 
 [A deputy sheriff may execute a deed in the name of the sheriff. Jackson v. Bush, 
 10 John. 223. Same v. Davis, 18 id. 7.] 
 
 Same as No. 13 to f, and then as follows : C. D. Esq., whom I know to be the 
 person described in and who executed the within deed, as the general deputy of 
 A. B. Esq., sheriff of said county, and acknowledged that he executed the said 
 deed in the name of the said sheriff by virtue of his authority as such general dep- 
 uty as aforesaid. 
 
 [Signature, &e.] 
 
 No. 15. 
 
 CERTIFICATE OF THE ACKNOWLEDGMENT OF A DEED EXECUTED DURING 
 
 INFANCY, BY WAY OF CONFIRMATION. 
 
 Sta^ of New York, County, ss: On this day of , 1860, 
 
 before me the undersigned, one of the justices, &c., [as in No. 1,] personally ap- 
 peared A. B. whom I know to be the person described in and who executed the 
 within deed, and thereupon acknowledged that the same was formerly executed 
 by him when he was an infant under the age of twenty-one years ; that he has 
 since arrived at full age, and is desirous of confirming his former execution thereof; 
 and that he now acknowledges that he executed the same as and for his act and 
 deed. 
 
 [Signature, &c.] 
 The deed of an infant is voidable only, except when it delegates a naked author- 
 ity, when it is void. (Bool v. Mix, 17 Wend. 119. Gillett v. Stanley, 1 Hill, 121.] 
 
 No. 16. 
 CERTIFICATE OF PROOF OF DEED EXECUTED BY A MONEYED CORPORATION. 
 
 State of New York, County, ss : On this day of September, 
 
 1860, before me the undersigned, one of the justices, &c., [as in No. 1,] personally 
 appeared S. F. whom I know to be the person described in and who executed the 
 within deed, as president of the Bank of Saratoga Springs, who being by me duly 
 sworn, testified that he resides in the village of Saratoga Springs, in the said county 
 that he is the president of the Bank of Saratoga Springs ; that he knows the cor- 
 porate seal of the said bank; that the seal affixed to the within deed is such cor-
 
 568 APPENDIX OF FORMS. 
 
 porate seal ; that it was so affixed by order of the board of directors of the said 
 bank, and that he signed his name as such president to the said deed by the hke 
 order. 
 
 [Signature, &c.] 
 
 (Leavitt v. The Steam Sawmill Association, 6 Paige, 57, 59, 60. Johnson v. 
 Bush, 3 Barb. Ch. 207.) 
 
 If the deed be executed by the cashier, secretary, or any other officer or person, 
 the certificate will be modified accordingly. 
 
 No. 17. 
 THE LIKE BY A RELIGIOUS CORPORATION. 
 
 State of New York, County, ss: On this day of , 1860, 
 
 before me the undersigned, one of the justices, [as in No. 1,] personally appeared 
 A. B. to me well known, who being by me duly sworn, said that he resides in the 
 town of Saratoga Springs, in said county, and is the clerk of the corporation of 
 The Trustees of the Presbyterian Congregation of said town ; that the seal affixed 
 to the within deed is the corporate seal of the said corporation ; and that it was so 
 affixed by order of the said corporation ; and that he the said A. B. subscribed his 
 name thereto by the like order of the said corporation. 
 
 [Signature, &c.] 
 
 AGREEMENTS. 
 
 No. 18. 
 CONTRACT TO CONVEY PROPERTY. 
 
 Articles of agreement, made and entered into the day of , 
 
 one thousand eight hundred and sixty- , between , of the first 
 
 part, and , of the second part, witnesseth, as follows: *• 
 
 The said party of the first part hereby agrees to sell unto the said party of the 
 second part, all that certain piece or parcel of land, situate and being in the town 
 
 of and county of , and bounded as follows : [here describe the 
 
 premises intended to be sold.] for the sum of to be paid by the said party 
 
 of the second part, in manner and at the times hereinafter mentioned and cove- 
 nanted, on the part of the said party of the second part. And the said party of 
 
 the first part further agrees, that on the day of on receiving 
 
 from the said party of the second part the sum of the said party of the 
 
 first part shall and will, at at own proper cost and expense, 
 
 execute and deliver to the said party of the second part, or to assigns, 
 
 a proper deed of conveyance, duly acknowledged, for the conveying and assuring 
 
 to them the fee simple of the said premises, fi-ee from all incumbrances, 
 
 which deed of conveyance ^all contain a general warranty, and the 
 
 usual full covenants. 
 
 And the said party of the second part hereby agrees to purchase of the said party 
 of the fij8t part, the premises above mentioned, at and for the price and sum above
 
 APPENDIX OF FORMS. 569 
 
 mentioned, and to pay to the said party of the first part the purchase money there- 
 for, in manner and at the times following, to wit : 
 
 And it is further agreed by and between the parties to these presents, that the 
 said party of the first part shall have and retain the possession of said premises, 
 
 and be entitled to the rents and profits thereof, until the day 
 
 of , when full possession of the same shall be delivered to the said party 
 
 of the second part by the said party of the first part. And it is understood and 
 agreed that the stipulations aforesaid are to apply to and bind the heirs, executors, 
 administrators and assigns of the respective parties. 
 
 And it is further hereby agreed, that in case the said party of the first part shall 
 fail or refuse to execute and deliver a proper deed of conveyance in manner and at 
 the time and place above specified for that purpose, provided the party of the se- 
 cond part shall be ready to fulfill and perform the covenants then to be fulfilled on 
 
 part : or in case the said party of the second part shall fail or refuse to 
 
 pay the said sum of at that time and place as above agreed upon, pro- 
 vided the party of the first part shall be ready to deliver such deed of conveyance, 
 as aforesaid ; then the party so failing shall and will pay to the other party, or 
 
 assigns, the sum of dollars, which sum is hereby declared, fixed 
 
 and agreed upon, as the liquidated amount of damages to be paid by the party so 
 failing as aforesaid, for non-performance. 
 
 In witness whereof the parties to these presents have hereto set their hands 
 and seals, the day and year first above written. 
 
 Sealed and delivered 
 in presence of 
 
 No. 19. 
 For a brief form of an agreement for the sale of a building, see McWhorter v, 
 McMahan, 10 Paige, 386, and the remarks of the chancellor on it. Also see Town- 
 send V. Hubbard, 4 Hill, 351, and the chancellor's criticism thereon. 
 
 No. 20. 
 
 ARTICLES OP AGREEMENT FOR THE PURCHASE OF A FREEHOLD ESTATE, 
 WITH DIVERS COVENANTS BETWEEN THE PARTIES. 
 
 Articles of agreement made, concluded and agreed upon this day of 
 
 , 1860, between John Doe, of the town of Saratoga Springs, in the county 
 
 of Saratoga, of the first part, and Richard Roe, of the same place, of the second 
 part, in manner following, to wit : [*] 
 
 First. The said party of the first part, for and in consideration of the sum of 
 money to be therefor paid by the said party of the second part, and of the cove- 
 nants and agreements hereinafter mentioned and contained on the part of the said 
 party of the second part, doth for himself and his heirs covenant and agree to. and 
 with the said party of the second part, his heirs and assigns, that the said party of 
 the first part shall' and will, at his own proper costs and charges, [or at the proper 
 costs and charges of the said party of the second part, his heirs or assigns,] on or 
 
 before the day of , next ensuing the date hereof, by a good 
 
 and sufficient grant or conveyance in the law, as the said party of the second part, 
 his heirs and assigns, or his or their counsel learned in the law shall reasonably de-
 
 570 APPENDIX OF FORMS. 
 
 vise, advise or require, well and sufficiently grant, bargain and sell unto the said 
 party of the second part, his heirs and assigns, forever, all that certain piece or 
 parcel of land &c., [here describe the premises fully and accurately,] situate in the 
 
 town of , in the county of , and state of New York, and all the 
 
 estate, right, title, property, claim and demand of the said party of the first part, 
 of, in and to the same, and every part thereof; and which said deed is to contain 
 proper and apt covenants that the said party of the first part is, at the time of such 
 conveyance, seised of the same premises, and every part thereof, of an indefeasable 
 estate of inheritance therein ; that he has good right and lawful authority to grant, 
 bargain and sell the same ; that the same and every part thereof are free from all 
 and all manner of incumbrances ; that the said party of the second part shall quietly 
 enjoy the same and every part thereof, free and clear of all incumbrances of every 
 name or nature ; and that the said party of the first part will forever warrant 
 and defend the same in the quiet and peaceable possession of the said party of the 
 second part, his heirs and assigns, [or it may say, and which said deed is to contain 
 the usual covenants of warranty and against incumbrances — or the usual full cov- 
 enants.] 
 
 Secondly. In consideration whereof the said party of the second part, for himself, 
 his heirs, executors, administrators and assigns, doth hereby covenant, promise and 
 agree to and with the said party of the first part, his heirs, executors, administra- 
 tors and assigns,t that he, the said party of the second part, shall and will well and 
 truly pay or cause to be paid to the said party of the first part, his heirs, execu- 
 tors, administrators or assigns, the just and full sum of dollars, at the time 
 
 of executing the said conveyance, which said sum is agreed to be in full for the 
 purchase of the said premises. 
 
 If it he agreed that instead of a cash payment, the purchaser is to give a mortgage 
 on the premises, for the whole, or some part of the purchase money, proceed from t 
 as follows : 
 
 That he, the said party of the second part, will pay dollars, part of the 
 
 said purchase money, and will execute his bond and mortgage on the said premises 
 to the said party of the second part, his executors, administrators and assigns, for 
 
 the sum of , being the balance of the said purchase money, payable in 
 
 manner following, to wit : one hundred dollars on the day of 
 
 next, [set out the different payments with interest according to the agreement.] 
 
 If the vendor is to continue in the possession of the premises until the completion of 
 the purchase, a covenant like this should he inserted : 
 
 And the said party of the first part doth covenant to and with the said party of 
 the second part, his heirs, executors, administrators and assigns, that in the mean- 
 time he, the said party of the first part, will not cut down any timber or trees, or 
 commit any waste or spoil whatsoever upon the said premises, or any part thereof, 
 nor will he grant any lease of the said premises, or any part thereof, without the 
 privity or consent of the said party of the second part, or his he.irs or assigns. 
 
 If the parties agree to divide the expenses incident to the conveyance and the sectirity 
 of the purchase money, a clause like the following may he inserted : 
 
 And it is hereby mutually agreed by and between the said parties to these pres- 
 ents, that the expense of examining the title and preparing and recording the con-
 
 APPENDIX OF FORMS. 571 
 
 veyance on the part of the party of the first part shall be borne by him, and the 
 expense of preparing the securities for the payment of the purchase money and of 
 the recording of the same, shall be borne by the said party of the second part, his 
 executors, administrators or assigns. 
 
 If it he intended to provide against the destruction of the said premises iyfire, be- 
 tween the acceptance of the title under the executory contract of sale and the delivery of 
 the deed of said premises, a clause to this effect should he inserted: 
 
 And it is stipulated and agreed, that until the delivery of the deed of the said 
 premises by the said party of the first part to the said party of the second part, the 
 said premises shall be at the risk of the said party of the first part, his heirs or 
 assigns ; and in case the buildings thereon shall be burned by fire, or destroyed by 
 lightning, between the day when the said title is accepted by the said party of the 
 second part, and the day appointed for the delivery of the deed thereof, and the 
 actual delivery of the said deed, then and in that case the said party of the second 
 part, his heirs and assigns, shall be at liberty, at his option, to abandon the said 
 purchase, or to complete the same ; and if he elects to complete the said purchase, 
 no deduction shall be made in the consideration money on account of such damage 
 by fire or by Hghtning; but the insurance money, if the same premises be insured, 
 shall belong to the said party of the second part, his heirs or assigns. 
 
 (See Paine v. Meller, 6 Ves. 350. 1 Sugd, on Vend, and Purchasers, 191. Kidd 
 V. Dennison, 6 Barb. 9, 17. Swartout v. Burr, 1 id. 499. 2 Story's Eq. Jur. § 1212. 
 Champion v. Brown, 6 John. Ch. 402. Livingston v. Newkirk, 3 id. 317. Van 
 Wyck V. Alliger, 6 Barb. 511.) 
 
 If it he intended that the purchaser shall enter before the deed be given, but that he 
 shall forfeit all previous payments, and deliver up the possession if he fails to make the 
 subsequent payments as they fall due, this clause should be added : 
 
 And it is hereby further covenanted and agreed by and between the said parties, 
 that the said party of the second part shall be permitted to enter into the immedi- 
 ate possession of the said premises, after the execution of this agreement ; and in 
 case he shall make default in either of the payments above mentioned in this con- 
 tract, then the said party of the first part is to be discharged from this agreement 
 to sell and convey the said premises, and the same shall become void and of none 
 effect ; and the said party of the second part is to forfeit to the said party of the 
 first part all the previous payments, and give peaceable possession of the said prem- 
 ises to the said party of the first part. 
 
 (See Edgerton v. Peckham, 11 Paige, 352, as to the effect of such agreement in 
 equity. Wells v. Smith, 7 id. 22.) 
 
 No. 21. 
 AGREEMENT FOR THE SALE OP A CITY LOT, THE DEED TO BE GIVEN- AT A 
 FUTURE DAY, THE PURCHASER TO ENTER IMMEDIATELY, TO PAY RENT 
 AND TAXES, AND TO ERECT BUILDINGS ON THE LOT, AS PART PAYMENT 
 OF THE CONSIDERATION, AND FORFEITURE ON NON-FULFILLMENT. 
 
 Commencement as in No. 20, to the *. 
 
 The said party of the first part, in consideration of the premises hereinafter men- 
 tioned, and upon the performance by the said party of the second part of the cov-
 
 572 APPENDIX OF FORMS. 
 
 enants on his part to be kept and performed, doth covenant and agree to convey 
 to the said party of the eecond part, his heirs and assigns, by a good and sufficient 
 deed in the law, free from all incumbrances, except such taxes and as.«cssment3 as 
 may hereafter become due thereon, that certain lot of land situate and being in 
 
 Broadway, in the ward of the city of New York, and known as lot No. 
 
 , bounded as follows : [set out the same.] 
 
 And the said party of the second part doth, for himself, his heirs, executors, ad- 
 ministrators and assigns, covenant and agree to and with the said party of the first 
 part, his heirs and assigns, that he, the said party of the first part, will (1.) Enter 
 immediately into the possession of the said premises, and on or before the first day 
 of March, 1861, build a carpenter's shop on the rear part of said lot, and not re- 
 move the same therefrom until this agreement is carried into ftill and complete 
 effeet. (2.) He agrees to build and enclose upon the front of the lot a substantial 
 brick house, of three stories in height, on or before the first day of August, 1861, 
 or in lieu thereof, and on the same day, to pay to the said party of the first part, or 
 his legal representatives, the sura of one thousand dollars on account of the consid- 
 eration money. (3.) To execute and deliver to the said party of the first part, on 
 the same day, a bond and mortgage of the same house and lot for two thousand 
 seven hundred dollars, payable with interest. And if the said party of the second 
 part fails to pay the said one thousand dollars on the said first day of August, 1861, 
 then the said bond and mortgage are to be made out for three thousand seven hun- 
 dred dollars with interest; this being the full amount of consideration money for 
 the purchase. (4.) The said party of the second part is to pay interest at the rate 
 
 of per cent per annum, upon the sura of ?3700, to the said party of the 
 
 first part, from the date of this agreement to the first day of August, 1861, the 
 first half year's interest in advance, and all taxes and assessments on the same 
 premises. 
 
 And the said party of the first part doth, on his part, covenant, promise and 
 agree to and with the said party of the second part, his heirs and assigns, to exe- 
 cute and deliver to the said party of the second part a good and sufficient deed for 
 the said lot on the first day of August, 1861, free from all incumbrances, except 
 taxes and assessments, which may become due after the making of this agreement 
 [Here state what covenants are to be contained in the deed.] 
 But upon this express condition, and the agreement between the parties is such 
 that if the said party of the second part fails or neglects to perform all or any one 
 of the covenants hereinbefore contained on his part, at the time or times herein- 
 before limited, then and in such case all and singular the covenants and agree- 
 ments on the part of the said party of tlie first part, shall cease and be absolutely 
 void ; and all the right, title and interest of the said party of the second part, in 
 law or equity, in the premises, shall also cease ; and thereupon the said party of 
 the first part, his heirs and assigns, may immediately enter upon the premises and 
 have and hold the same, with the carpenter shop, free and discharged from any 
 claims of the said party of the second part, his heirs or assigns. 
 Dated 1 May, 1860. A. B. [l. s.] 
 
 Sealed and delivered the day and year C. D. [l. s.] 
 
 above written, in presence of 
 
 (See Wells v. Smith, 2 Edw. Ch. R. 78; S. C. on appeal, 11 Paige, 22.)
 
 APPENDIX OF FORMS. 573 
 
 No. 22. 
 ANOTHER FORM OF AGREEMENT FOR THE SALE OF A FARM, OR A CITY LOT, 
 THE AQREExMENT TO BE VOID, IF THE PURCHASER FAILS TO MAKE PAY- 
 MENTS PROMPTLY, AND THE VENDOR AT LIBERTY TO SELL TO OTHER 
 PARTIES. 
 
 Articles of agreement, made the day of , one thousand eight 
 
 hundred and , between of the first part and of the 
 
 second part, witnesseth, that the said part. . of the first part, for and in considera- 
 tion of the sum of dollars, to in hand paid, ha . . contracted and 
 
 agreed to sell to the said part. . of the second part, all that certain piece or parcel 
 
 of land, situate in the town of , in , county and state of 
 
 known and distinguished on a map made by as lot No And 
 
 on the payment by the said party of the second part, to the said party of the first 
 part, of the several sums of money hereinafter mentioned, the said part. . of the 
 first part, agree to execute and deliver to the said part . . of the second part, a war- 
 ranty deed, for the said land : provided, and upon condition nevertheless, that the 
 
 said part. . of tlie second part, heirs or assigns, pay to the said part. . 
 
 of the first part, heirs or assigns, for the same land, the sum of , 
 
 lawful money of the United States of America, payable as follows : the sum of 
 
 , together with lawful interest on the same, from the date hereof; and 
 
 the said part. . of the second part, for heirs, executors and administrators, 
 
 do. . covenant and agree, to and with the said part. . of the first part, 
 
 heirs and assigns, that the said part. . of the second part, will pay the said several 
 sums as they severally become due, with the interest thereof, without deduction 
 of any taxes or assessments whatever. And it is further agreed between the par- 
 ties to these presents, that if default be made in fulfilling this agreement, or any 
 part thereof, on the part of the said part. . of the second part, then, and in such 
 
 case, the said part. . of the first part, heirs and assigns, shall be at liberty 
 
 to consider this contract as forfeited and annulled, and to dispose of the said land 
 to any other person, in the same manner as if this contract had never been made. 
 
 In witness whereof, have hereunto set hand. . and seal. . 
 
 the day and year above written. 
 
 Sealed and delivered in 
 presence of 
 
 (See WeUs v. Smith, 2 Edw. Ch. R. 78 ; S. C, 11 Paige. 22.) 
 
 No. 23. 
 
 AGREEMENT FOR THE SALE OF REAL ESTATE, EXECUTED ON THE PART OF 
 
 THE VENDOR, BY ATTORNEY DItLY AUTHORIZED. 
 
 Articles of agreement, made and concluded this day of , I860, 
 
 between James Jackson, of the town of , county of , and state 
 
 of New York, by John Doe, his attorney duly authorized for this purpose, of the 
 first part, and John Stiles, of the same place, of the second part, as follows, to wit : 
 
 The said party of the first part, for and in consideration of the sum of , 
 
 and of the covenants and agreement, on the part of the said party of the second 
 part, hereinafter contained, on his part to be kept and performed, doth covenant
 
 574 APPENDIX OF FORMS. 
 
 and agree to and with the said party of the second part, his heirs and assigns, to 
 grant, bargain and sell unto the said party of the second part, his heirs and assigns, 
 by a good and sufficient deed, with covenants of title and against incumbrances, 
 the following described piece or parcel of land, to wit, [here describe it,] the said 
 deed to be prepared at the expense of the said first party, and ready to be deliv- 
 ered to the party of the second part, on or before the day of 
 
 next. 
 
 And the said party of the second part, for himself, his heirs and assigns, doth 
 covenant and agree to and with the said party of the first part, and his legal rep- 
 resentatives, to pay to him the sum of on the delivery of the said deed, 
 
 and to execute and deliver, at his own expense, a bond and mortgage of the same 
 
 premises, for the sum of , being the residue of the consideration money 
 
 for said purchase, payable in two years from the said day of the delivery thereof, 
 with lawful interest till paid, to the said party of the first part, his executors and 
 administrators. 
 
 And it is further covenanted and agreed by and between the said parties, that 
 the said party of the second part shall be at liberty to enter immediately into the 
 possession of the said premises, and cultivate and improve the same in a good hus- 
 bandhke manner, and commit no waste or other destruction thereon, and that from 
 the time of such entry, the said party of the second part shall pay unto the said 
 party of the first part the sum of annually, being the interest of the pur- 
 chase money for the said premises, and also pay all taxes and assessments thereon ; 
 and in default of payment of principal or interest that shall become due before the 
 deUvery of the said deed, or which shall be due at that time, the said party of the 
 first part shall be at liberty to avoid this contract, and re-enter upon the said prem- 
 ises, without notice to quit ; and in such case the said party of the second part 
 shall immediately give up possession of said premises. 
 
 In witness whereof, the said party of the first part, by his said attorney, and the 
 said party of the second part have hereunto set their bands and seals the day and 
 year first above written. 
 
 Sealed and deUvered in James Jackson, [l. s.] 
 
 presence of by John Doe, his Att'y. 
 
 John Stiles, [l. s.] 
 
 Note. — An agreement entered into under seal, by one as attorney for another, 
 must be executed by the attorney in the name of his principal, and must purport 
 to be sealed with the seal of the principal, and not with that of the attorney. 
 
 (Townsend v. Hubbard, 4 HiU, 351. Wilks v. Back, 2 East, 142. Berkley v. 
 Hardy, 5 Barn, & Ores. 355.) 
 
 No. 24. 
 
 AGREEMENT TO BE INSERTED IN AN EXECUTORY CONTRACT OF A VACANT 
 LOT, OR OTHER PREMISES, NOT TO ERECT OR SUFFER NUISANCES TO BE 
 ERECTED THEREON. 
 
 And the said party of the second part, for himself, his heirs and assigns, doth 
 hereby covenant to and with the said party of the first part, his heirs, executors 
 and administrators, that neither the said party of the second part, nor his heirs or 
 assigns, shall or will at any time hereafter erect any building within forty feet of
 
 APPENDIX OF FOKMS. 575 
 
 the front of said lot, except of brick or stone, with roofs of slate or metal ; and will 
 not erect or permit upon any part of said lot any slaughter house, smith shop, forge, 
 furnace, steam engine, brass foundry, nail or other iron factory, or any manufactory 
 of gunpowder, glue, varnish, vitriol, ink or turpentine ; or for the tanning, dressing 
 or preparing skins, hides or leather, or any brewery, distillery, or any other nox- 
 ious or dangerous trade or business. 
 
 No. 25. 
 
 AGREEMENT BY A TRUSTEE TO CONVEY LANDS HELD IN TRUST, IN A CASE 
 WHERE THE TRUSTEE WAS AUTHORIZED TO SELL LAND, AND REINVEST 
 THE PROCEEDS. 
 
 Articles of agreement, made, concluded and agreed upon this '. day of 
 
 , 1860, between John Doe, named as trustee in certain articles of marriage 
 
 settlement hereafter mentioned, of the first part, and Richard Roe, of , 
 
 &c., of the second part, as follows : 
 
 Whereas, James Jackson, of , did by an instrument in writing under 
 
 his hand and seal, bearing date the day of , 1860, in contem- 
 plation of the marriage of his daughter A. B. to one C. D., then about to be sol- 
 emnized, and in consideration thereof, and as a settlement upon his said daugh- 
 ter of the lands therein described, did grant, bargain and sell unto the said John 
 
 Doe the following described piece or parcel of land, situate and being (&c ,) 
 
 in trust, to receive the rents and profits of the said land, and apply them to the 
 separate use of the said A. B. during her coverture with her intended husband, free 
 from the control of her said husband, the same as if she were a /erne sole, her re- 
 ceipt therefor to be a sufficient voucher. And it was thereby, in and by the said 
 marriage articles, further agreed, that the said party of the first part should be au- 
 thorized and empowered, during the continuance of the said trust, to lease and de- 
 mise the granted premises for such lawful term or terras, and at such rents and 
 upon such covenants as to renewals as to them should seem proper ; and that he 
 should be, and was thereby, authorized and empowered to grant, bargain, sell and 
 convey in fee simple absolute, at public or private sale, for cash or upon credit, or 
 partly for cash and partly upon credit, all or any part or parcel of the said trust 
 premises, or of any other premises in which the proceeds thereof might be rein- 
 vested, and to invest the proceeds of such sale or sales in other real estate or upon 
 bonds and mortgages within the state of New York, or in the public stocks of the 
 United States, or of the city of New York, or in improving other parts of the said 
 real estate, and to alter and change such investments from time to time as he may 
 think proper, as by the in part recited agreement more fully and at large appears. 
 And whereas, the said party of the first part, as such trustee, and in pursuance of 
 the power therein vested in him, hath agreed to grant, bargain and sell to the said 
 party of the second part the premises above described for the sum of 1000 dollars, 
 with a view to reinvest the proceeds thereof in the public stocks of the United 
 States for the purposes of the said trust. 
 
 Now, therefore, it is agreed by the said parties to these presents, that on or be- 
 fore the day of next, the said party of the first part will, by a 
 
 good and sufficient deed in the law, grant, bargain and sell unto the said party of 
 the second part, his heirs and assigns, the above described premises, on the pay-
 
 576 APPENDIX OF FORMS. 
 
 ment by him of the said sum of one thousand dollars, and which said deed shall 
 contain a covenant that the said party of the first part, as such trustee, has good 
 right and lawful authority to convey the said premises in manner aforesaid, and 
 that he has neither done or suffered any act whereby his right to convey the said 
 premises can be impaired. And the said party of the second part covenants and 
 agrees to accept such deed, and on the delivery thereof to pay to the said first 
 party the said sum of one thousand dollars. 
 
 In witness whereof, the said parties have hereto set their hands and seals, the 
 day and year first above written. 
 
 Sealed and delivered in John Doe. [l. s.] 
 
 presence of Richard Roe. [l. s.] 
 
 KoTE. See Belmont v. O'Brien, 2 Kern. 394. Noyes v. Blakeman, 2 Seld. 567. 
 If the trustee be an executor, and his authority derived from the will of the testa- 
 tor, recite enough of it to confer the authority. 
 
 ANNUITIES. 
 
 For the form of an annuity under the English laws, see 1 Newnam's Conveyan- 
 cer, 146 ef seq. An annuity charged upon land, is a rent charge, and the form 
 will be given under the head of Rent, post. 
 
 ASSIGNMENTS. 
 
 No. 26. 
 ASSIGNMENT OF MORTGAGE. 
 
 Know all men by these presents, that of the first part, for and in 
 
 consideration of the sum of lawful money of the United States of 
 
 America, to in hand paid by of the second part, at or be- 
 fore the enseahng and delivery of these presents, the receipt whereof is hereby ac- 
 knowledged, have granted, bargained, sold, assigned, transferred and set over, and 
 by these presents do grant, bargain, sell, assign, transfer and set over unto the said 
 
 part. . of the second part, a certain indenture of mortgage bearing date the 
 
 day of , one thousand eight hundred and made by 
 
 and recorded in the office of the clerk of the county of in book 
 
 No of mortgages, page , on the day of , in 
 
 the year of our Lord one thousand eight hundred and , together with the 
 
 bond or obligation therein%escribed, and the money due and to grow due thereon, 
 
 with the interest. To have and to hold the same unto the said part of the 
 
 second part, and assigns forever, \ . . subject only to the pro- 
 viso in the said indenture of mortgage mentioned. And do hereby au- 
 thorize and appoint the said part. . of the second part true and lawful 
 
 attorney, irrevocable, in name or otherwise, but at proper costs 
 
 and charges, to have, use, and take all lawful ways and means, for the recovery of
 
 APPENDED OF FORMS. 577 
 
 the said sum of money, and interest secured to be paid in and by the said bond and 
 mortgage ; and in case of payment, to discharge and satisfy the same as fully as 
 
 might or could do if these presents were not made. And do 
 
 hereby covenant, promise and agree, to and with the said part. . of the second 
 part, that there is now secured to be paid by the said bond and mortgage the sum 
 of 
 
 In witness whereof, have hereunto set hand . . and seal . . , 
 
 the day of one thousand eight hundred and 
 
 Sealed and dehvered in 
 presence of 
 
 No. 27. 
 A SHORTER FORM INDORSED ON THE MORTGAGE. 
 In consideration of to me in hand paid, by , of , 1 
 
 do hereby grant, bargain, sell, assign, transfer and set over to him, the within 
 mortgage and the bond accompanying the same, for his use and benefit, together 
 with all the remedies to enforce the collection of the same. 
 
 Witness my hand and seal this day of , 1860. 
 
 Note. Assignments of mortgages should be acknowledged or proved and re- 
 corded. 1 R. S. 762, § 38. 2 id. 134, § 6. The assignee cannot otherwise give 
 the requisite discharge, on payment, so as to have the mortgage canceled of record. 
 The recording of the assignment will not dispense with the necessity of proof of 
 notice of such assignment to the mortgagor. (1 R. S. 763, § 41. Vanderkempt v. 
 Shelton, 11 Paige, 37. Trust Co. v. Smith, 2 Barb. Ch. 84.) A bond and mortgage 
 may be assigned by parol, so as to pass the title to the assignee. (Runyan v. Mer- 
 sereau, 11 John. 534.) But a written assignment, under seal, duly proved or ac- 
 knowledged, is recommended in all cases. 
 
 No. 28. 
 ASSIGNMENT OF A LEASE BY THE LESSOR TO A THIRD PERSON. 
 
 Know all men by these presents, that I, John Doe, of , for and in con- 
 sideration of the sum of , to me in hand paid by Richard Roe, of , 
 
 the receipt whereof is hereby confessed and acknowledged, have granted, bargained, 
 sold, assigned, transferred and set over, and by these presents do grant, bargain, 
 sell, assign, transfer and set over to the said Richard Roe, his executors, adminis- 
 trators and assigns, a certain indenture of lease, bearing date the day of 
 
 * , made by me, the said John Doe, to James Jackson, his executors, ad- 
 ministrators and assigns, for the term of years from the date thereof, at 
 
 the annual rent of , payable , and which said lease granted and 
 
 demised certain premises therein described ; to have and to hold the said lease and 
 the rents thereby secured to the said Richard Roe, his executors, administrators 
 and assigns ; and I do covenant and agree to and with the said Richard Roe, that 
 I have good right and lawful authority to assign the said lease, and the rents to 
 
 become due thereon, and that the rent from the I. . . day of , 1860, 
 
 is unpaid, and is payable as the same becomes due, according to the terms of the 
 said lease. 
 
 In witness whereof I have hereto set my hand and seal this day of 
 
 , 1860. 
 
 Sealed and delivered in John Doe. [l. s.] 
 
 presence of 
 
 Will.— 37
 
 578 APPENDIX OF FORMS. 
 
 Note. The above assignment only transfers the rent, but not the reversion. 
 The rent may be severed from the reversion. (Demarest v. Will.inJ, 8 Cowen, 2U6.) 
 A grant of the reversion by the lessor, to a third person, would pass not only the 
 reversion, but the rent also, as an incident to the reversion. A common bargaia 
 and sale, or a grant under the statute, is sufficient for this purpose. See post. 
 
 For a shorter form of an assignment of the rent, see Demarest v. Willard, supr* 
 
 No. 29. 
 
 ASSIGNMENT OF A LEASE BY THE LESSEE TO A THIRD PERSON, AND THB 
 COVENANT OP THE LATTER TO SAVE THE FORMER HARMLESS FROM THK 
 RENT, ETC. 
 
 It is agreed between A. B., of , lessee named in the lease hereinafter 
 
 named, and C. D., of , as follows : 
 
 The said A. B., for and in consideration of the sura of , to him in hand 
 
 paid by the said C. D., and of the covenants and agreements of the said C. D. here- 
 inafter contained, hereby grants, bargains, assigns, transfers and sets over to the 
 said C. D., his executors, administrators and assigns, a certain indenture of lease, 
 
 bearing date the day of , made by James Jackson to the said 
 
 A. B., his executors, administrators and assigns, for the term of years 
 
 from the date thereof, for a certain house and lot therein described, at the rent of 
 
 , payable , subject, nevertheless, to the payment by the said 0. 
 
 D., his executors, administrators and assigns, of the rent therein mentioned, and the 
 performance of the covenants therein contained. 
 
 And the said C. D., on his part, doth covenant and agree to and with the said 
 A. B., that he, the said C. D., will well and truly pay the said rent to the party 
 entitled thereto, and perform the several covenants on the part of the lessee of the 
 said premises, to be performed and kept ; and will indemnify and save harmless 
 the said A. B., of and from all damages, costs and charges, which he may be sub- 
 jected to by reason of any neglect or default of him, the said C. D., or his assigns, 
 in the premises. 
 
 In witness whereof, the said parties have hereto set their hands and seals, the 
 day and year first above written. 
 
 Sealed and delivered in A. B. [l. s.] 
 
 presence of C. D. [l. s.] 
 
 No. 30. 
 
 A SHORT FORM OF ASSIGNMENT, BY LESSEE TO A THIRD PERSON, BY IN- 
 DORSEMENT. 
 
 In consideration of to me in hand paid, I do hereby assign and trans* 
 
 fer to C. D., his executors, administrators and assigns, the within lease and all my 
 estate, right, title and interest in the same, and to the lands therein mentioned, 
 subject to the rents and covenants therein contained. In witness whereot &c. 
 
 Sealed and delivered in 
 presence of
 
 APPENDIX OF FORMS. 579 
 
 No. 31. 
 
 ASSIGNMENT OP A CONTRACT FOR THE PURCHASE OF A FARM, BY THE PUR- 
 CHASER TO A THIRD PERSON, AND THE AGREEMENT OF THE LATTER TO 
 INDEMNIFY THE FORMER. 
 
 This agreement, made and concluded this day of , 1860, be- 
 tween A. B. of , of the first part, and C. D. of , of the second 
 
 part, witnesseth ; 
 
 That the said party of the first part, for and in consideration of the sum of 
 
 , dollars, to him in hand paid by the said C. D., and of the covenants and 
 
 agreements on the part of the said C. D., hereinafter mentioned, to be performed 
 by him, hath granted, bargained, sold, assigned, transferred and set over, and by 
 these presents doth grant, bargain, sell, assign, transfer and set over to the said 
 
 0. D., his heirs and assigns, a contract for the purchase of lot No , in the 
 
 town of , described as follows : : which said contract was 
 
 made and executed by James Jackson, of , to the said A. B., his heirs and 
 
 assigns, and bears date the day of , 1860, and all the estate, 
 
 right, title, property, claim and demand of, in and to the same, and the premises 
 therein agreed to be sold by the said James Jackson to the said party of the first 
 part; subject, nevertheless, to the covenants, conditions and payments tlaerein 
 mentioned. 
 
 And the said party of the second part, for himself, his heirs, executors and ad- 
 ministrators, doth covenant and agree to and with the said party of the first part, 
 his heirs, executors, administrators and assigns, that he will perform the conditions 
 and make the payments in the said contract required to be kept, performed and 
 made, and indemnify and save harmless the said party of the first part of and from 
 all and all manner of damages, costs and charges which may be occasioned by rea- 
 son of the neglect or default of the said party of the second part, his heirs, execu- 
 tors or administrators, in the premises. 
 
 In witness whereof, the said parties have hereto set their hands and seals, the 
 day and year first above written. 
 
 Sealed and delivered A. B. [l. s.] 
 
 in presence of C. D. [l. s.] 
 
 No. 32. 
 ASSIGNMENT IN TRUST FOR THE BENEFIT OF CREDITORS. 
 
 This indenture made the day of , in the year of our Lord one 
 
 thousand eight hundred and sixty- , between A. B. of the town of 
 
 in the county of , of the first part, and C. D. of the town of , in 
 
 the county of , of the second part, : 
 
 Whereas the said A. B. is justly indebted in divers suras of money to divers 
 persons, and from varions unfortunate circumstances has become unable to pay the 
 eame in full, and is desirous of making a fair and equitable distribution of all his 
 property, real and persoual, among his creditors: Now therefore, this indenture 
 witnesseth, that the said party of the first part, in consideration of the premises, 
 and of the sum of one dollar to him in hand paid by the said party of the second
 
 580 APPENDIX OF FORMS. 
 
 part, the receipt whereof is hereby confessed and acknowledged, hath granted, bar- 
 gained, sold, released, assigned, transferred and set over, and by these presents 
 doth grant, bargain, sell, release, assign, transfer and set over unto the said party 
 of the second part, and to hia heirs and assigns forever, all and singular the lands, 
 tenements and hereditaments of the said party of the first part, wheresoever the 
 same may be situated, and which lands are intended to be correctly described in 
 schedule (A.) hereto annexed, and to pass to the said assignee, under tliis assign- 
 ment, whether correctly described or not ; and also, all the goods, chattels, rights 
 and credits, judgments, bonds, choses in action, evidences of debt, and properly 
 of every name and nature whatever of the said party of the first part, and the 
 books, vouchers and securities relating to the same, and which are intended to be 
 particularly described and enumerated in the schedule hereto annexed marked (B.) 
 and to pass to the said assignee, whether correctly described or not, except such 
 articles of property as are by law exempt from execution. 
 
 To have and to hold the same, and every part and parcel thereof, with the ap- 
 purtenances, to the said party of the second part, his heirs, executors, administra- 
 tors and assigns ; in trust, nevertheless, and to and for the following uses, intents 
 and purposes, that is to say : the said party of the second part shall take pos- 
 session of all and singular the lands, tenements and hereditaments, property and 
 effects, hereby assigned, and sell and dispose of the same, and convert them into 
 money ; and also collect all and singular the said debts, dues, bills, bonds, notes, 
 accounts, claims, demands and choses in action ; and thereupon execute, acknowl- 
 edge and deliver all necessary conveyances and instruments for the purpose of 
 passing the title thereof to the respective purchaser or purchasers; And by and with 
 the proceeds of such sales and collections, the said party of the second part shall 
 first pay and disburse all the just and reasonable expenses, costs, charges and com- 
 missions of executing and carrying into effect this assignment, and all rents, taxes 
 and assessments due or to become due on the lands, tenements and hereditaments 
 aforesaid, until the same shall be sold and disposed of; and by and with the residue 
 or net proceeds and avails of such sales and collections, the said party of the second 
 part shall — 
 
 First. Pay and discharge in full the several and respective debts, bonds, notes 
 and sums of money due or to grow due from the said party of the first part, to the 
 several persons designated in the schedule hereto annexed, marked schedule (C.,) 
 together with all interest due or to grow due thereon ; and if said net proceeds and 
 avails shall not be sufficient to pay and discharge the same in full, then such net 
 proceeds and avails shall be distributed pro rata, share and share alike, among the 
 said several persons named in said schedule (C.,) according to the amount of their 
 respective claims : and 
 
 Secondly. By and with the residue and remainder of said net proceeds and avails, 
 if any there shall be, the said party of the second part shall pay and discharge all 
 the other individual debts, demands and liabilities whatsoever, now existing, 
 whether due or hereafter to become due, except such individual habilities of the 
 said party of the first part as may have been incurred by him as surety or indorser 
 or guarantor for others, provided such remainder shall be sufficient for that ptir- 
 pose ; and if insufficient, then the same shall be applied pro rata, share and share
 
 APPENDIX OF FORMS. ggj 
 
 alike, to the payment of the said debts, demands and habiHties, according to their 
 respective amounts, as in schedule (D.,) hereto annexed. And— 
 
 Thirdly. By and with the residue and remainder of the said net proceeds and 
 avails, if any there shaU be, the said party of the second part shall pay and dischar-e 
 all the debts and liabilities of the said party of the first part, incurred by him "as 
 surety or indorser, or guarantor or bail, for any other person or persons, whether 
 due or to grow due; and aU such indebtedness as he may have incurred as a mem- 
 ber of any copartnership, or as a joint debtor with any other person or persons- 
 and if msufficient, then the same shall be applied pro rata, to the payment of the 
 said debts and liabUities, share and share ahke, according to their respective amounts, 
 and which are mentioned in schedule (E.) 
 
 It is the intention of the said party of the first part to make, hereby, a full and 
 unconditional surrender of his property to the payment of his debts and UabiUties 
 except such articles of wearing apparel and personal property as are exempt by 
 law from execution; and it is his design that all his debte and liabilities shall be 
 paid in one or the other of the above classes, in the manner therein specified to the 
 extent of the property hereby assigned, whether such debts are therein mentioned 
 or not. 
 
 In witness whereof, the said party of the first part has hereto set his hand and 
 seal, the day and year first above written. 
 
 Sealed and dehvered in k -n r i 
 
 A. ±5. [l. s.l 
 presence of 
 
 Schedule K— referred to in the foregoiyig assignment. 
 
 The following is a description of the real estate of the said A. B., intended to be 
 assigned m trust for the benefit of creditors, and being all the real estate of which 
 he is seised or possessed : 
 
 1. A house and lot situate, &c. ; describe the different pieces of land, &c. 
 
 Schedule B— re/errei to in the foregoing assignment 
 
 A bond against John Doe, conditioned to pay $1000, dated $1000 
 
 A note against '' 
 
 [Set forth, as far as practicable, an inventory of the personal property intended 
 to be assigned; and set forth the excepted articles by themselves.] 
 
 Schedule C— referred to in the foregoing assignment. 
 The first class of debts :— 
 
 A promissory note, dated , payable to A B. or order, now due, about $500 
 
 [Set out all the preferred debts.] 
 
 Schedule H-^-eferred to in the foregoing assignment. 
 
 AnaccountduetoO. P. for wood purchased of him, . . . «ioO 
 
 [Set out the other debts.] 
 
 Schedule E-^eferred to in the foregoing assignment 
 [Here set out the de.bte for which the assignor is surety, &c. &c., if any.]
 
 582 APPENDIX OF FORMS. 
 
 Notes. 1. An assignment should not authorize the assignee to sell on credit 
 (Barney v. Griffin, 2 Comst. 365. Nicholson v. Leavitt, 2 Sel.l. 510, I'orter v. Clark, 
 5 How. Pr. Rep. 445. S. C, 5 Seld. 142. Willard's Eq. Jur. 246.) 
 
 2. Assignment may provide for the payment of the costs and commissions of 
 the trustee. (Meacham v. Sternes, 9 Paige, 398. Baniey v. Griffin, supra.) 
 
 3. An assignment may give preference amongst creditors. (Boardman v. llalli- 
 day, 10 Paige, 223. Griffin v. Barney, 2 Comst. 371.) 
 
 4. But an assignment cannot vest the assignee with power to gWe future prefer- 
 ences. (S. Cases.) They must be declared by the a.ssignor at the time. _ 
 
 5. A clause requiring the assignee to return the surplus to the a.<.sipnor, after 
 paying debts and charges, is useless and unnecessary, though it would not probably 
 invalidate the assignment. The law would return the surplus. (Bogert v. Ilaight, 
 9 Paige, 297, 303. Beck v. Burdett, 1 id. 305.) 
 
 6. It is probably unnecessary to have a schedule annexed to the as.signment, 
 giving a full description of the real estate of the assignor. The general descriptioa 
 in the assignment is enough to pass the title. But it will be found convenient, 
 ■where there are different pieces of land assigned, to have them s}x.'cified, so that 
 tlie purchaser from the assignee can more easily trace back his title. 
 
 7. A clause, excepting such articles as are exempt by law from execution, is 
 valid, and does not tend to defraud the creditors. It takes nothing from them 
 •whicli the law has made applicable to debts. The exemption is a personal privi- 
 lege, which the debtor may insist on or waive. (Mickles v. Tousely, 1 Cowen, 
 114. Eari V. Camp, 16 Wend. 571. 3 R. S. 450, 646, 647, 5th ed. Carpenter v. 
 Herrington, 25 Wend. 370. Hall v. Penny, 11 id. 44.) 
 
 8. The assignor may empower the assignee to compromise such of the debts as- 
 signed as are doubtful, by receiving a part of the sum due, and discharging the 
 residue. (Dow v. Plainer, 16 N. Y. R. 562.) If this is intended, a clause to that 
 effect should be added in the assignment. 
 
 9. By the act of April 13, 1860, (L. of 1860, p. 594,) the debtor is required to 
 annex an inventory of his estate to the assignment, and within twenty days there- 
 after deliver it to the county judge of the county in which such debtor resides. 
 (See the act for various other matters.) 
 
 CONVEYANCES BY DEED AND MORTGAGE. 
 
 No. 33. 
 BARGAIN AND SALE WITHOUT COVENANTS OF WARRANTY. 
 
 (1 R. S. 739, § 142.) 
 
 This indenture, made the day of , in the year one thousand 
 
 eight hundred and between of the first part, and 
 
 of the second part, witnesseth, that the said part. ... of the first part, for and in 
 
 consideration of the sum of lawful money of the United States of .iVjrier- 
 
 ica, to in hand paid, by the said part .... of the second part, at or before 
 
 the ensealing and delivery of tfiese presents, the receipt whereof is hereby acknowl- 
 edged, ha.... granted, bargained, sold, aliened, remised, released, conveyed and 
 confirmed, and by these presents do. . . . grant, bargain, sell, alien, remise, release, 
 
 convey and confirm unto the said part. ... of the second part, and to 
 
 and assigns forever, all Together with all and singular the tenements. 
 
 hereditaments and appurtenances thereunto belonging or in anywise appertaining, 
 and the reversion and reversions, remainder and remainders, rents, issues and prof-
 
 APPENDIX OF FORMS. 583 
 
 its thereof. And also, all the estate, right, title, interest, property, pos- 
 session, claim and demand whatsoever, as well in law as in equity, of the said 
 
 part of the first part, of, in or to the above described premises, and every part 
 
 and parcel thereof, with the appurtenances. To have and to hold all and singular 
 Uie above mentioned and described premises, together with the appurtenances, unto 
 
 tlae said part of the second part, and assigns forever. 
 
 In witness whereof, the said part of the first part ha hereunto set 
 
 hand. . and seal. . the day and year first above written. 
 
 Sealed and delivered in 
 presence of 
 
 No. 34. 
 BARGAIN AND SALE, WITH THE COVENANT OF WARRANTY. 
 This is the common warranty deed used in this state. (1 R. S. 739, § 142.) 
 
 This indenture, made the day of , in the year one thousand 
 
 eight hundred and , between , of the town of , in 
 
 the county of , of the first part, and of the town of 
 
 in the county of , of the second part, witnesseth, that the said part 
 
 of the first part, for and in consideration of the sum of lawful money of 
 
 the United States of America, to in hand paid by the said part. . of the 
 
 Becond part, at or before the ensealing and delivery of these presents, the receipt 
 whereof is hereby acknowledged, ha. . granted, bargained, sold, aliened, remised, 
 released, conveyed and confirmed, and by these presents do. . grant, bargain, sell, 
 alien, remise, release, convey and confirm unto the said part. . of the second part, 
 
 and to heirs and assigns forever, all Together with all 
 
 and singular the tenements, hereditaments and appurtenances thereunto belonging, 
 or in anywise appertaining, and the reversion and reversions, remainder and re- 
 mainders, rents, issues and profits thereof; and also, all the estate, right, title, 
 
 interest, property, possession, claim and demand whatsoever, as well in 
 
 law as in equity, of the said part. . of the first part, of, in or to the above described 
 premises, and every part and parcel thereof, with the appurtenances ; to have and 
 to hold all and singular the above mentioned and described premises, together with 
 
 the appurtenances, unto the said part. . of the second part, heirs and 
 
 assigns forever. 
 
 And the said heirs, the said premises, in the quiet and peaceable 
 
 possession of the said part of the second part, heirs and assigns, 
 
 against the said part. . of the first part, heirs, and against all and every 
 
 person and persons whomsoever, lavirfuUy claiming or to claim the same, shall and 
 will warrant, and by these presents forever defend. 
 
 In witness whereof, the said part. . . of the first part, ha. . hereunto set 
 
 hand. . and seal. ., the day and year first above written. 
 
 Sealed and delivered in 
 presence of
 
 ^C54 APPENDIX OF FORMS. 
 
 No. 35. 
 QUIT-CLAIM DEED. 
 
 To all to whom these presents shall come, greeting : Know ye, that 
 
 for and in consideration of the sum of dollars, lawful money of the Uni- 
 ted States of America, to in hand paid by , at or before the 
 
 ensealing and delivery of these presents, the receipt whereof is hereby aaknowl- 
 edged, have remised, released and forever quit-claimed, and by these presents do 
 
 remise, release and forever quit-claim unto , and to heirs 
 
 and assigns forever, all To have and to hold the said released prem- 
 ises unto the said , heirs and assigns to own proper use and 
 
 behoof forever. 
 
 * In testimony whereof, the said ha ... . hereunto set hand . , 
 
 aad seal. . this day of , in the year of our Lord one thousand 
 
 eiglit hundred and 
 
 Sefded and delivered in 
 presence of 
 
 No. 36. 
 
 QUIT-CLAIM DEED, WITH A COVENANT AGAINST THE ACTS OF THE 
 
 GRANTOR. 
 
 The same as No. 35 to *, and then proceed — And the said doth covenant 
 
 with the said , his heirs and assigns, that he hath not done or suffered 
 
 any act or thing whereby the estate hereby released may be impeached, charged 
 or incumbered, in any manner whatsoever. 
 
 ITo. 37. 
 
 A GRANT OF AN ESTATE IN TEE, UNDER THE STATUTE, WITHOUT COVE- 
 NANTS OF TITLE. 
 
 (1 R. S. 738, § 137.) 
 
 This indenture, made the day of ., in the year one thousand 
 
 eight hundred and sixty- , between A. B. of :, of the first part, and 
 
 0. D. of , of the second pait, witnesseth : That the said party of the 
 
 first part, for and in consideration of the sum of , to him in hand 
 
 paid by the said party of the second part, the receipt whereof is hereby confessed 
 and acknowledged, hath granted, and by these presents doth grant, unto the said 
 party of the second part, and to his heirs and assigns forever — all that certain, &c., 
 [here describe the premises,] together with all and singular the hereditaments and 
 appurtenances thereunto belonging or in anywise appertaining, and the reversion 
 and reversions, remainder and remainders, rents, iflsues and profits thereof; and 
 also, all the estate, right, title, interest, property, claim and demand whatsoever of 
 him the said party of the first part, either in law or equity, of, in and to the same, 
 and every part thereof t 
 
 In witness whereof, &c. [as in No. 33.]
 
 APPENDIX OF FORMS. 585 
 
 No. 38. 
 A GRANT UNDER THE STATUTE WITH COVENANTS OF WARRANTY. 
 The saroe as in No. 37 to t,-and then add the covenants intended to be given, 
 as in a full covenant deed, or such of them as are required. 
 
 Note. A statute grant maybe drawn still shorter than the above; but most 
 parties prefer the form of conveyances to which they have been accustomed. 
 
 No. 39. 
 FULL COVENANT DEED— A SHORT FORM. 
 
 This indenture, made the day of one thousand eight hundred 
 
 and , between , of the first part, and , of the 
 
 second part, witnesseth: That the said part. ... of the first part, in consideration 
 
 of dollars to duly paid, ha ... . sold, and by these presents 
 
 do ... . grant and convey, to the said part .... of the second part, and to 
 
 heirs and assigns, forever, all with the appurtenances, and all the 
 
 estate, right, title and interest of the said part . of the first part therein.* And 
 
 the said do ... . hereby covenant and agree to and with the said 
 
 part. . . . of the second part, that at the time of making this conveyance 
 
 the lawful owner. . of the premises above granted and seised of a good 
 
 and indefeasible estate of inheritance therein, and that they are free aud clear of 
 
 inchoate dower rights, and of all incumbrances whatsoever, , and the 
 
 above granted premises in the quiet and peaceable possession of the said part. . . . 
 
 of the second part, heirs and assigns, against every person whomsoever, 
 
 will warrant and forever defend. 
 
 In witness whereof, the said part. ... of the first part, ha. . . . hereunto set 
 hand. . and seal. . the day and year first above written. 
 
 Sealed and delivered in presence of 
 
 No. 40. 
 FULL COVENANT DEED— USUAL FORM. 
 
 The same as in No. 39 to the *, and then as follows: To have and to hold the 
 above granted, bargained and described premises, with the appurtenances, unto 
 the said party of the second part, his heirs and assigns, to his and their own proper 
 use, benefit and behoof, forever. And the said party of the first part, for himself, 
 his heirs, executors and administrators, doth covenant, grant and agree to and 
 with the said party of the second part, his heirs and assigns, that the covenant of 
 said party of the first part, at the time of the sealing and delivery of seisin, 
 these presents, is lawfully seised, in his own right, of a good, absolute and inde- 
 feasible estate of inheritance, in fee simple, of and in all and singular, the above 
 granted and described premises, with the appurtenances, and hath good right, full 
 power and lawful authority, to grant, bargain, sell and convey the same in manner 
 aforesaid. And that the said party of the second part, his heirs and assigns, shall 
 and may, at all times hereafter, peaceably and quietly have, hold, use, 
 occupy, possess and enjoy the above granted premises, and every part quiet enjo7- 
 and parcel thereof, with the appurtenances, without any let, hindrance, '°^°'"
 
 |r86 APPENDIX OF FORMS. 
 
 molestation or disturbance of the said party of the flrst part, his heirs or assigns, 
 or of any other person or persons lawfully claiming or to claim the same ; and that 
 the same and every part tliereof are now free, clear and discharged of 
 against incum- and from all former and other grants, titles, charges, estates, judgments, 
 brance.s. taxes, assessments and incumbrances of what nature or kind soever. 
 
 And also, that the said party of the first part, and his heirs, and all and every 
 person or persons vrhomsoever, lawfully or equitably deriving any estate, right, 
 P J f. title or interest, of, in or to the herein granted premises, by, from, un- 
 ftirther assur- der OF in trust for him or them, shall and will at all time or times here- 
 *""*• after, upon the reasonable request, and at the proper costs and charges 
 
 in the law, of the said party of the second part, his heirs and assigns, make and 
 execute, or cause to be made and executed, all and every such further and other 
 lawful and reasonablo acts, conveyances and assurances in the law, for the better 
 and more effectually vesting and confirming the premises hereby granted, or so 
 intended to be, in and to the said party of the second part, his heirs and assigns 
 forever, as by the said party of the second part, his heirs and assigns, or his or 
 their counsel, learned in the law, shall be reasonably advised, devised or required. 
 
 And the said party of the first part, for himself and his heirs, the above described 
 Covenant of ^.ud hereby granted and released premises, and every part and parcel 
 warranty. thereof, with the appurtenances, unto the said party of the second part, 
 his heirs and assigns, against the said party of the first part and his heirs, and 
 against all and every person and persons whomsoever, lawfully claiming or to claim 
 the same, shall and will warrant and by these presents forever defend. 
 
 In witness, &c. (as before in No. 39.) 
 
 Sealed and delivered in 
 
 presence of Acknowledgment, or proof, &c. 
 
 As to the form of deeds and their effect, see 1 R. S. 738 et seq. 
 
 A conveyance is good to pass the title without any covenants. (Nixon v. Hy- 
 serott, 5 John. 58. Jackson v. Fish, 10 id. 456. Beddoe v. Wadsworth, 21 "Wen- 
 dell, 120.) 
 
 No. 41. 
 
 If the deed he given, suhjed to the payment by the purchaser, of a mortgage or other 
 incumbrance, insert a clause like the folloioing, before the habendum clause at the * in 
 No. 39, to wit: 
 
 Subject, however, to the payment and performance by the party of the second 
 part, his executors and assigns, of the conditions contained in a certain inden- 
 ture of mortgage, executed by , on the day of , to 
 
 , and recorded in the clerk's office, of the county of , in book of 
 
 mortgages , pages , on the day of , at o'clock 
 
 A. M., and which said mortgage was given to secure the payment of the sum of 
 
 , at the time and in the manner therein mentioned, and upon which there 
 
 is now due and payable, [or to become due and payable,] the sum of , 
 
 •with interest from the day of 
 
 And at the close of the several covenants respectively, add "except as against 
 the incumbrance above mentioned." 
 
 (See post, under " Covenants.")
 
 APPENDIX OF FORMS. 587 
 
 No. 42. 
 DEED TO A CORPORATION. 
 
 This indenture, made the day of , 186 . . , between A. B., of the town 
 
 of , in the county of , of the first part, and the Saratoga and Whitehall 
 
 Eail Road Company, of the second part, witnesseth : That the said party of the 
 
 first part, for and in consideration of the sum of , to him in hand paid, by 
 
 the said party of the second part, the receipt whereof is hereby confessed and ac- 
 knowledged, hath granted, bargained, sold, remised, released and confirmed, and 
 by these presents doth grant, bargain, sell, remise, release and confirm unto the 
 said party of the second part, their successors and assigns forever, all that certain 
 piece or parcel of land, [describe the same,] together with all and singular the ten- 
 ements, hereditaments and appurtenances thereunto belonging, or in any wise ap- 
 pertaining ; and the reversion and reversions, remainder and remainders, rents, 
 issues and profits thereof, and all the estate, right, title, interest, property, posses- 
 sion, claim and demand whatsoever, as well at law as in equity, of the said party 
 of the first part, of, in or to the above described premises, and every part and par- 
 cel thereof, with the appurtenances. 
 
 To have and to hold, all and singular, the above mentioned and described prem- 
 ises, together with the appurtenances unto the said party of the second part, and 
 their successors and assigns forever, t 
 
 The covenants, &c., as in No. 39 or 40, according to the agreement. 
 
 No. 43. 
 
 THE LIKE, UPON A CONDITION THAT THE COMPANY SHALL BUILD THEIR 
 ROAD WITHIN A CERTAIN TIME. 
 
 Same as in No. 42 to the t, and then add: Provided always, and these presents 
 are upon this express condition, that the said party of the second part shall con- 
 struct their rail road and put it in operation within the time prescribed by the act 
 incorporating the same, [or any other time to be agreed on by the parties.] 
 
 Then proceed as in the last precedent. 
 
 Note. This is a condition subsequent. The title vests in fee in the corporation, 
 and is subject to be devested, on failure to perform the condition, on an entry by 
 the grantor, or its equivalent. (Nicoll v. The New York and Erie R. R. Co , 2 
 Kern. 121. S. C, 12 Barb. 460.) 
 
 No. 44. 
 DEED BY A CORPORATION. 
 
 This indenture, made the day of , 186. ., between the Saratoga 
 
 and Whitehall Rail Road Company, [or The Bank of Saratoga Springs,] of the first 
 part, and C. D., of, &c. &c., of the second part. 
 
 And then proceed as in the case of a deed by an individual, to the covenants, which 
 wiU he in this form: 
 
 And the said party of the first part doth covenant, &c., or, as in the foregoing 
 precedents.
 
 588 APPENDIX OF FORMS. 
 
 In witness whereof^ the said party of the first part hath hereunto caused their 
 corporate seal to be affixed, and these presents to be subscribed by their president 
 and secretary, [or cashier, as the case may be,] the day and year first above written. 
 
 Sealed and delivered in Signed, , President. 
 
 presence of , Secretary. 
 
 E. F. Acknowledged as in No. 16. 
 
 No. 45. 
 
 DEED BY HUSBAND AND WIFE, WITH A VIEW TO EXTINQUISH HER INCHO- 
 ATE RIQUT OF DOWER. 
 
 The same as in other cases, except that the wife is made a grantor with her hus- 
 band, and is therein so described — as " A. B. of , and C. his wife," <kc. 
 
 The acknowledgment, as in No. 6, or some of the other forms applicable to the 
 case. 
 
 No. 46. 
 DEED BY THE WIFE ALONE, WHERE SHE HAS OMITTED TO JOIN WITH HER 
 HUSBAND, THE OBJECT BEING MERELY TO RELEASE HER INCHOATE RIGHT 
 OF DOWER. 
 
 This indenture, made the day of 186. ., between A. B., the 
 
 wife of C. D., of , of , of the first part, and E. F., of of 
 
 the second part, witnesseth : That the said party of the first part, for and in con- 
 sideration of the sum of to her in hand paid by the said party of the 
 
 second part, the receipt whereof is hereby confessed and acknowledged, hath 
 granted, bargained, sold, remised, released and confirmed, and by these presents 
 doth grant, bargain, sell, remise, release -and confirm unto the said party of the 
 second part, his heirs and assigns forever, all the right, title, interest, estate, claim 
 and demand, both at law and in equity, as well present as in expectancy, and all 
 claim of dower therein, of^ in and to all that certain piece or parcel of land situate, 
 [describe the premises.] 
 
 In witness whereof, &c. 
 
 Sealed and delivered in A. B. [l. s.] 
 
 presence of 
 E. F. 
 Certificate of acknowledgment, aa in No. 10. 
 
 Note. It is most usual for the wife to join with her husband in the deed ; but 
 if this has been omitted, she can execute a separate release of her dower, without 
 her husband being joined with her. The Albany Ins. Co. v. Bay, 4 Comst. 9. 
 
 But she cannot bind herself by covenants, and they are not inserted in a deed 
 when she executes it alone without her husband. 
 
 No. 47. 
 
 ANOTHER FORM 01" A DEED WITH FULL COVENANTS, AND ALSO A COVENAlfT 
 AGAINST THE ERECTION OF NUISANCES ON THE SAID PREMISES. 
 
 This indenture, made the day of , in the year one thousand eight 
 
 hundred and . ., between , of the first part, and , of the second part,
 
 APPENDIX OF FORMS. 589 
 
 witnesseth: That the said part. . of the first part, for and in consideration of the 
 
 Bum of , lawful money of the United States, to in hand paid, by the 
 
 said part. . of the second part, at or before the ensealing and delivery of these pres- 
 ents, the receipt whereof is hereby acknowledged, and the said part. . of the second 
 
 part, heirs, executors and administrators, forever released and discharged 
 
 from the same, by these presents, ha. . granted, bargained, sold, aliened, remised, 
 released, conveyed and confirmed, and by these presents do . . grant, bargain, sell, 
 alien, remise, release, convey and confirm unto the said part. . of the second part, 
 
 and to heirs and assigns forever, all , together with all and 
 
 singular the tenements, hereditaments and appurtenances thereunto belonging or 
 in any wise appertaining, and the reversion and reversions, remainder and remain- 
 ders, rents, issues and profits thereof; and also all the estate, right, title, interest, 
 
 property, possession, claim and demand whatsoever, as well in law as in 
 
 equity, of the said part. . of the first part, of, in and to the same, and every part 
 and parcel thereof with the appurtenances: To have and to hold the above granted, 
 bargained and described premises, with the appurtenances, unto the said part. . of 
 
 the second part, heirs and assigns, to their own proper use, 
 
 btpefit and behoof, forever. 
 
 And the said , for heirs, executors and administrators, do . . 
 
 hereby covenant, grant and agree to and with the said part, . of the 
 
 second part, ieirs and assigns, that the said , at the time of the 
 
 sealing and delivery of these presents, lawfully seised in of a 
 
 good, absolute and indefeasible estate of inheritance, in fee simple, of and in all and 
 
 singular tlie above granted and described premises, with the appurtenances, 
 
 and ha. . good right, full power and lawful authority, to grant, bargain, sell and 
 convey the same, in manner aforesaid ; and that the said part. . of the second part, 
 
 heirs and assigns, shall and may, at all times hereafter, peacefully and 
 
 quietly have, hold, use, occupy, possess and enjoy the above granted premises, and 
 every part and parcel thereof, with the appurtenances, without any let, suit, trouble, 
 
 molestation, eviction or disturbance of the said part . . of the first part, 
 
 heirs or assigns, or of any other person or persons lawfully claiming or to claim the 
 same ; and that the same now are free, clear, discharged and unencumbered, of 
 and from all former and other grants, titles, charges, estates, judgments, taxes, as- 
 sessments and incumbrances, of what nature or kind soever. 
 
 And also, that the said part. . of the first part and heirs, and all and 
 
 every person or persons whomsoever, lawfully or equitably deriving any estate, 
 right, title or interest, of, in or to the hereinbefore granted premises, by, from, un- 
 der or in trust for them, shall and will, at any time or times hereafter, 
 
 upon the reasonable request, and at the proper costs and charges in the law, of the 
 
 said part. . of the second part, heirs and assigns, make, do and execute, 
 
 or cause to be made, done and executed, all and every such further and other law- 
 ful and reasonable acts, conveyances and assurances in the law, for the better and 
 more effectually vesting and confirming the premises hereby granted, or so intend- 
 ed to be, "in and to the said part. . of the second part, heirs and assigns 
 
 forever, as by the said part. . of the second part, heirs or assigns or 
 
 their counsel learned in the law, shall be reasonably advised or required : and the 
 eaid heirs, the above described and hereby granted and released premises,
 
 590 APPENDIX OP FORMa 
 
 and evei'y part and parcel thereof, with the appurtenances, unto the said part. . of 
 
 the second part, heirs and assigns, against the said part. . of the first 
 
 part, and heirs, and against all and every person and persons whomso- 
 ever, lawfully claiming or to claim the same, shall and will warrant and by these 
 presents forever defend. 
 
 And the said part. . of the second part, for heirs and assigns, do. . 
 
 hereby covenant to and with the said , heirs, executors and administra- 
 tors, that neither the said part. . of the second part, nor heirs or assigns, 
 
 shall or will at any time hereafter, erect any buildings within forty feet of the front 
 of said lot, except of bri^-k or stone, with roofs of slate or metal, and will not erect 
 or permit upon any part of the said lot, any slaughter house, smith shop, forge, 
 ftirnace, steam engine, brass foundry, nail or other iron factory, or any manufactory 
 of gun powder, glue, varnish, vitriol, ink or turpentine, or for the tanning, dressing 
 or preparing skins, hides or leather, or any brewery, distillery or any other noxious 
 or dangerous trade or business. 
 
 In witness whereof, the parties to these presents have hereunto interchangeably 
 set their hands and seals, the day and year first above written. 
 
 Sealed and delivered in 
 presence of 
 
 No. 48. 
 DEED BY A MARRIED WOMAN OF HER REAL ESTATE, TINDER THE ACT OP 
 
 1860, CHAPTER 90. 
 
 This indenture, made the day of , in the year of our Lord 
 
 one thousand eight hundred and sixty, between A. B., wife of C. D., of , 
 
 of the first part, and , of , of the second part, witnesseth : that 
 
 the said party of the first part, hy and with the assent in writing, of her hvsland, 
 
 above named, and for and in consideration of the sum of , to her in hand 
 
 paid by the said party of the second part, the receipt whereof is hereby acknowl- 
 edged, hath granted, bargained, sold, remised, released, conveyed and confirmed, 
 and by these presents doth grant, bargain, sell, remise, release, convey and confirm 
 unto the said party of the second part, and to his heirs and assigns forever, all 
 that certain piece or parcel, &c., [set out the description,] together with all the 
 tenements, hereditaments and appurtenances thereunto belonging, or in anywise 
 appertaining, and the reversion and reversions, remainder and remainders, rents, 
 issues and profits thereof; and also, all the estate, right, title, interest, property, 
 possession, claim and demand whatsoever, as well in law as in equity, of the said 
 party of the first part, of, in or to the above described premises, and every part and 
 parcel thereof, with the appurtenances ; to have and to hold the same and every 
 part thereof, together with the appurtenances, unto the said party of the second 
 part, his heirs and assigns forever. 
 
 In witness whereof, the said party of the first part has hereto set her hand and 
 
 seal, the day of , in the year of our Lord, one thousand eight 
 
 hundred and sixty. 
 
 Sealed and delivered in A. B. [l. s.] 
 
 presence of 
 E. F.
 
 APPENDIX OF FORMS. 591 
 
 Acknowledgment as in No. 10. If the identity of the wife be proved to" the of- 
 ficer, the certificate will be modified accordingly, as in No. 8, or some other form. 
 (Gillet V. Stanly, 1 Hill, 121 ; 10 Paige, 342.) 
 
 Subjoined or endorsed on the deed should be the assent, in writing, of the hus- 
 band, which may be in this form : 
 
 I, C. D., husband of A. B., the grantor in the above [or the within] deed, do. . 
 by these presents, assent thereto. 
 
 In witness whereof, I have hereto set my hand and seal this day of 
 
 , 1860. 
 
 In presence of C D. [l. s.] 
 
 E. F. 
 
 Acknowledgment as in No. 1, if the party be known to the officer ; and if not^ 
 let his identity be proved. 
 
 Note. (1.) Although the act of 1860, p. 157, authorizes a married woman to bar- 
 gain, sell, assign and transfer her separate property, with the assent in writing of 
 her husband, it does not empower her to bind herself by any covenants or war- 
 ranty. (Whitbeckv. Cook, 15 John. 483. Jackson v. Vanderheyden, 17 id. 167. 
 Grout V. Townsend, 2 Hill, 554. Teal v. Woodworth, 3 Paige, 470. Carpenter v. 
 Schermerhorn, 2 Barb. Ch. 314.) 
 
 (2.) The conveyance, by a married woman, under the acts of 1848 and 1849, 
 (L. of 1848, p. 307 ; L. of 1849, p. 528,) does not require the assent of the husband, 
 and will, in other respects, be Hke the above. No. 47, and must be duly acknowl- 
 edged. 
 
 (3.) The act of 1860 does not require the assent of the husband to the convey- 
 ance of his wife to be under seal, or to be acknowledged, or proved, or recorded; 
 but it is recommended, as a matter of prudent precaution, that it should be under 
 seal, and be acknowledged or proved, and recorded with the deed. 
 
 No. 49. 
 THE LIKE, WHEN THE ASSENT OF THE HUSBAND CANNOT BE PROCURED BY 
 REASON OP HIS REFUSAL, ABSENCE, INSANITY, ETC., AND LEAVE HAS 
 BEEN GIVEN TO THE WIFE BY THE COUNTY COURT TO MAKE THE CON- 
 VEYANCE, WITHOUT THE ASSENT OF THE HUSBAND. 
 
 This indenture, &c., same as in No. 48, except instead of the words in italics hy 
 and with the assent of her husband, insert, in pursuance of the order of the county 
 court of the county of , a copy whereof is hereto annexed, and in consid- 
 eration of the sum of [the same as in the last precedent.] 
 
 CONVEYANCES BY PERSONS ACTING IN AN OFFICIAL OR FIDU- 
 CIARY CAPACITY. 
 
 No. 50. 
 SHERIFF'S DEED ON FORECLOSURE OP A MORTGAGE. 
 
 This indenture, made the day of in the year one thousand 
 
 eight hundred and , between sheriff of the county 
 
 of of the first part, and , of the second part : Whereas, at a
 
 592 APPENDIX OF FORMS. 
 
 term of the at the on the day of 
 
 one thousand eight hundred and , it was, among other tliinga, 
 
 ordered and adjudged by the said court, in a certain action then pending in the 
 
 said court between : That all and singular the mortgaged premises 
 
 mentioned in the complaint in said action, and in said judgment described, or so 
 much thereof as might be sufficient to raise the amount due to the plaintiflf. . for 
 principal, interest and costs in said action, and which might be sold separately 
 "without material injury to the parties interested, be sold at public auction accord- 
 ing to the course and practice of said court, by or under the direction of the sherifif 
 
 of the county of , that the said sale be made that 
 
 the said sheriff give public notice of the time and place of such sale, according to 
 the course and practice of said court, and that any of the parties in said action 
 might become a purchaser or purchasers on such sale : that the said sheriff execute 
 to the purchaser or purchasers of the said mortgaged premises, or such part or 
 parts thereof as should be so sold, a good and sufficient deed or deeds of convey- 
 ance for the same : 
 
 And whereas, the said sheriff, in pursuance of the said judgment of the said court, 
 
 did, on the day of sell at public auction, at the 
 
 premises in the said judgment mentioned, due notice of the time and place of such 
 sale being first given, agreeably to the said judgment ; at which sale the premises 
 hereinafter described were struck oil' to the said part ... of the second part, for 
 the sum of , that being the highest sum bidden for the same. 
 
 • Now this indenture witnesseth : That the said sheriff of the county of 
 
 , the party of the first part to these presents, in order to carry into effect 
 
 the sale so made by him as aforesaid, in pursuance of the judgment of the said 
 court, and in conformity to the statute in such case made and provided, and also 
 in consideration of the premises, and of the said sum of money so bidden as afore- 
 said, being first duly paid by the said part of the second part, the receipt 
 
 whereof is hereby acknowledged, hath bargained and sold, and by these presents 
 
 doth grant and convey, unto the said part. ... of the second part, 
 
 To have and to hold, all and singular the premises above mentioned and described, 
 and hereby conveyed, or intended so to be, unto the said part .... of the second 
 
 part, and assigns, to their only proper use, benefit and behoof, 
 
 for 
 
 In witness whereof, the said sheriff, as aforesaid, hath hereunto .set 
 
 bis hand and seal, the day and year first above written. 
 
 Sealed and delivered in 
 presence of • 
 
 State of New York, County, ss. On the day of 
 
 one thousand eight hundred and , before me came known 
 
 to me to be the individual described in, and who executed the above conveyance, 
 and acknowledged that he executed the same. 
 
 2 R. S. 191, 192, for practice in the former court of chancery. (Laws of 1847, 
 ch. 280, § 77, page 344.)
 
 APPENDIX OF FORMS. 593 
 
 No. 51. 
 THE LIKE, BY REFEREE ON FORECLOSURR 
 
 This indenture, made the day of in the year one thousand 
 
 eight hundred and , between a referee duly appointed as 
 
 hereinafter mentioned, of the first part, and , of the second part : 
 
 Whereas, at a term of the on the day of 
 
 one thousand eight hundred and , it was, among other things, 
 
 ordered and adjudged by the said court, in a certain action then pending in the 
 
 said court between : That all and singular the mortgaged premises 
 
 mentioned in the complaint in said action, and in said judgment described, or so 
 much thereof as might be sufficient to raise the amount due to the plaintiff". . for 
 i^principal, interest and costs in said action, and which might be sold separately 
 ■without material injury to the parties interested, be sold at public auction accord- 
 ing to the course and practice of said court, by or under the direction of the said 
 party of the first part, as referee thereby duly appointed for that purpose : that the 
 
 said sale be made that the said referee give public notice of the 
 
 time and place of such sale, according to the course and practice of said court, 
 and that any of the parties in said action might become a purchaser or pur- 
 chasers on such sale : that the said referee execute to the purchaser or purchasers 
 of the said mortgaged premises, or such part or parts thereof as should be sold, 
 a good and sufficient deed or deeds of conveyance for the same : 
 
 And whereaa, the said referee, in pursuance of the said judgment of the said court, 
 
 did, on the day of one thousand eight hundred and 
 
 sell at public auction, at the premises in the said judgment men- 
 tioned, due notice of the time and place of such sale being first given, agreeably 
 to the said judgment ; at which sale the premises hereinafter described were struck 
 
 off to the said part. ... of the second part, for the sum of , that being the 
 
 highest sum bidden for the same. 
 
 Now this indenture witnesseth: That the said referee, the party of the first part 
 to these presents, in order to carry into efilect the sale so made by him as afore- 
 said, in pursuance of the judgment of the said court, and in conformity to the 
 statute in such case made and provided, and also in consideration of the prem- 
 ises, and of the said sura of money so bidden as aforesaid, being first duly paid 
 by the said part of the second part, the receipt whereof is hereby acknowl- 
 edged, hath bargained and sold, and by these presents doth grant and convey, 
 tmto the said part .... of the second part, 
 
 To have and to hold, all and singular the premises above mentioned and described, 
 
 and hereby conveyed, or intended so to be, unto the said part of the second 
 
 part, and assigns, to their only proper use, benefit and behoof, 
 
 for 
 
 In witness whereof, the said referee, as aforesaid, hath hereunto set 
 
 his hand and seal, the day and year first above written. 
 
 Sealed and delivered in 
 presence of 
 
 Will.— 38
 
 594 APPENDIX OF FORMS. 
 
 State of New York, County, as. On the day of 
 
 one thousand eight hundred and , before me came known 
 
 to me to be the individual described in, and who executed the above conveyance, 
 and acknowledged that he executed the same. 
 
 No. 52. 
 
 DEED OF SPECIAL GUARDIAN, ON THE SALE OF INFANT'S ESTATE, IN PUH- 
 
 SUANCE OF THE ORDER OF THE COURT. 
 
 This indenture made the day of , in the year one thousand 
 
 eight hundred and between by special guardian, 
 
 , infant . . under the age of , of the first part, and 
 
 of the second part, witnesseth : 
 
 Whereas, the above mentioned infant. . by heretofore presented to 
 
 the court, a petition praying for a sale of the right, title and interest of 
 
 the said infant. . in the premises in said petition mentioned, and hereinafter de- 
 scribed : Upon which petition, an order of the court was made, at a spe- 
 cial term of said court, held at in the county of 
 
 bearing date the day of 18. ... , appointing above 
 
 named, the special guardian of such infant. . for the purposes of the said applica- 
 tion, and directing that it be referred to , a referee to ascertain the truth 
 
 of the facts in such petition alleged ; and thereupon, after the said special guardian 
 bad given the security by law required, such proceedings were afterwards had, 
 
 that by an order of the said court, made at a special term thereof, held at 
 
 in the county of , bearing date the day of 
 
 in the year 18 , it was, among other things, in substance ordered, that the 
 
 above named , special guardian of such infant. . ., be authorized to con- 
 tract for the sale and conveyance of the right, title and interest of the said infant. . 
 in such real estate, for a sum not less than that specified in the referee's report in 
 said order mentioned ; and that such sale, with the name of the purchaser, and the 
 terms thereof, be reported to the said court, before the conveyance of such prem- 
 ises should be executed. 
 
 And whereas, the said special guardian, upon terms approved of by the said re- 
 feree, contracted for the sale of the said premises with , for the sum 
 
 of dollars, that being the highest sum ofiered for the same ; and there- 
 upon, the said guardian made his report on oath of such agreement to this court, 
 pursuant to the requisitions of the last recited order, upon which an order was 
 
 made, at a special term of said court, held at the in the county of 
 
 bearing date the day of 18 , confirming such re- 
 port, approving and confirming such sale, and directing the same to be carried into 
 effect, and ordering the said guardian to execute, acknowledge and deliver a deed 
 of said premises to said party of the second part, on his complying with the terms 
 on which by said agreement the same was to be delivered. 
 
 And whereas, the said party of the second part has comphed with the said terms, 
 now therefore, this indenture witnesseth, that the said part. ... of the first part, 
 
 by special guardian, for and in consideration of dollars, to . . . 
 
 in hand paid, before the enseahng and delivery of these presents, ha bargained, 
 
 sold, granted, released and conveyed, and by these presents do ... . bargain, sell,
 
 APPENDIX OF FORMS. 595 
 
 grant, release and convey unto the said party of the second part, 
 
 heirs and assigns forever all with the possession and claim of the 
 
 pa,rt of the first part, of in and to the same, and every part and parcel thereof, 
 
 with the appurtenances ; to have and to hold the same, unto the said party of the 
 
 second part, heirs and assigns, to his and their only benefit and behoof! 
 
 forever. 
 
 In witness whereof, the said part of the first part, by guardian 
 
 aforesaid, ha. . . . hereunto set hand. ... and seal .... the day and year 
 
 first above written. 
 
 Sealed and delivered 
 in presence of 
 
 No. 53. , 
 
 SHERIFFS DEED ON THE SALE OF REAL ESTATE, BY VIRTITE OF AN EXE- 
 CUTION, TO THE PURCHASER. 
 
 This indenture, made the day of , in the year of our Lord 
 
 one thousand eight hundred and ... ., between , BheriflF of the county of 
 
 7 of the first part, and , of the second part: 
 
 Whereas, by virtue of certain execution. ., issued out of the 
 
 at the suit of , defendant. ., directed and delivered to the said sheriff' 
 
 commanding him that of the goods and chattels of the said defendant. ., he should 
 cause to be made, certain moneys in the said execution specified, and if sufficient 
 goods and chattels could not be found, that then he should cause the amount st» 
 specified to be made of the lands, tenements, real estate and chattels real, which 
 the said defendant. . had on a 'day in the said execution. . mentioned, or 'at any 
 
 time afterwards, in whose hands soever the same might be ; and the said 
 
 in obedience to the command of the said execution. ., did levy on and seize alVthe 
 estate, right, title and interest which the said defendant. . so had, of, in and to the 
 
 premises hereinafter conveyed and described, and on the day of 
 
 one thousand eight hundred and ... ., sold the said premises at puWic vendue, at 
 
 , in the said , having first given public notice of the time and 
 
 place of such sale, by advertising the same according to law, at which sale the said 
 
 premises were struck off to , for the sum of , being the highest 
 
 bidder, and that being the highest sum bidden for the same. * 
 _ And whereas, the said premises, after the expiration of fifteen months from the 
 
 time of the said sale, remained ujiredeemed, and no creditor of the said 
 
 hath acquired the right and title of the said purchaser, according to the statute in 
 Buch case made and provided, (t) 
 
 Now this indenture witnesseth: That the said party of the first part, as sheriff 
 as aforesaid, by virtue of the said execution. ., and in pursuance of the statute in 
 such case made and provided, and in consideration of the sum of money so bidden 
 as aforesaid, to him duly paid, hath sold, and by these presents doth grant and 
 convey unto the said part. . of the second part, all the estate, right, title and inter- 
 est, which the said defendant. . had on the day of , one thou- 
 sand eight hundred and , or any time afterwards, of, in and to aU '. 
 
 To have and to hold the said above mentioned and conveyed premises, with the
 
 596 APPENDIX OF FORMS. 
 
 appurtenances, unto the said part. . of the second part, and assigns, for- 
 ever, as fully and absolutely as the said party of the first part, as sheriff as afore- 
 said, can or ought to sell and convey the same, by virtue of the said execution. ., 
 and the law relating thereto. 
 
 In "witness whereof, the said party of the first part hath hereunto set his hand 
 and seal, the day and year first above written. 
 
 Sealed and dehvered in 
 presence of 
 
 No. 54. 
 THE LIKE, TO A REDEEMING CREDITOR. 
 
 The same as above, striking out the words between * and t, aiid substituting the name 
 of the creditor for the grfintee, in the deed, and the following recital for the words 
 struck out : 
 
 And whereas the said premises, after the expiration of one year from the time 
 of said sale, remained unredeemed by any person entitled to make such redemp- 
 tion, within that time ; and whereas, 0. P., a creditor of the said judgment debtor, 
 having, in his own name, [or as assignee, or representative, or trustee,] a judgment 
 
 in the supreme court, &c., against the said judgment debtor, for the sum of , 
 
 in a civil action rendered before the expiration of fifteen months from the time of 
 such sale, and which is a lien and charge on the premises so sold, hath acquired all 
 
 the right of the said , [the original purchaser,] to said premises, within the 
 
 time and in the manner and form prescribed by the statute in such case made and 
 
 provided ; and no other creditor of the said hath acquired the said rights 
 
 from or against the said purchaser. 
 
 Now this indenture witnesseth ; as in the last precedent. 
 
 No. 55. 
 
 SHERIFF'S CERTIFICATE, ON THE SALE OP REAL ESTATE, GIVEN TO THE 
 
 PURCHASER. 
 Supreme Court. 
 
 s. V- 
 
 1_) I, 
 
 A. 
 
 vs. 
 
 ^- -^- ) I, A. B., sheriff of the county of , do certify that, 
 
 by virtue of an execution in the above cause, tested the day of , 
 
 186. ., by which I was commanded to make, of the goods and chattels of C. D., in 
 
 my bailiwick, dollars, which A. B. had recovered against him 
 
 in said court, for his damages which he had sustained as well by reason of the not 
 performing certain promises, [or for the conversion of certain property, as the case 
 may be,] as for his costs and charges ; and if suflScient goods and chattels could not 
 be found, that then I should cause the said damages to be made of the real estate 
 
 which the said C. D. had, on the day of , in the year 186. ., or 
 
 at any time since, in whose hands soever the same might be, as by the said vn-it 
 of execution, reference being thereafter had, more fully appears, I have levied on 
 and this day sold at public auction, according to the statute in such case made and
 
 APPENDIX OF FORMS. 597 
 
 provided, to J. K, who was the highest bidder, for the sum of . . .• , which 
 
 was the whole consideration of such sale, the real estate described as follows, to 
 wit : [here set it out ;] and that the said sale will become absolute at the expiration 
 
 of fifteen months from tliis day, to wit, the day of , 186. ., and 
 
 the said purchaser or his assigns be errtitled to a conveyance pursuant to law, un- 
 less the said land shall be redeemed. 
 
 Given under my hand, this day of , 186 . . . 
 
 , Sheriff of 
 
 (2 R. S. 370. 3 R. S. 651, 652, 5th ed.) A deputy sheriff can sell and give a 
 deed in the name of the sheriff. (Jackson v. Bush, 10 John. 223. Jackson v. Da- 
 vis, 18 id. 7.) If the sheriff dies, resigns or is removed from office, the duties of 
 the office devolve on the under sheriff, but the deputies of the late sheriff do not 
 continue in office. (1 R. S. 379, § 72. Boardman v. Halliday, 10 Paige, 223.) A 
 deputy who has levied while his principal was in office, may complete the sale af- 
 ter his successor has qualified. (Jackson v. Collins, 3 Cowen, 89. Same v. Tuttle, 
 9 id. 233 ; approved 6 Wend. 213.) 
 
 No. 56. 
 
 DEED OF EXECUTORS UNDER POWER, CONTAINED IN THE WILL OF THEIR 
 
 TESTATOR, WITH COVENANT AGAINST THEIR OWN ACTS. 
 
 This indenture, made the day of , one thousand eight hundred 
 
 and , between , of the first part, and , of the second 
 
 part, witnesseth : Whereas, , late of the of , in the 
 
 county of , deceased, in Ufetime, made and executed 
 
 last will and testament, bearing date the day of » 18. . ; where- 
 by, among other things, . . he . . constituted and appointed the said , 
 
 execut of said last will and testament; and did thereby empower 
 
 the said execut to sell and dispose of the real estate belonging to the said tes- 
 
 tat at the time of death. 
 
 Now, therefore, this indenture witnesseth: That the said part of the first 
 
 part, by virtue of the power and authority to given in and by the said 
 
 last will and testament, and for and in consideration of the sum of lawful 
 
 money of the United States of America, to them in hand paid, at or before the en- 
 sealing and delivery of these presents, by the said part of the second part, the 
 
 receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, 
 released, conveyed and confirmed, and by these presents do . . grant, bargain, sell, 
 
 alien, release, convey and confirm unto the said part. ... of the second part, 
 
 heirs and assigns forever, aU Together with all and singular the 
 
 hereditaments and appurtenances to the same belonging, or in anywise appertain- 
 ing ; and the reversion and reversions, remainder and remainders, rents, issues and 
 profits thereof And also, all the estate, right, title, interest, claim and demand 
 
 whatsoever, both in law and equity, which the said testat .... had in 
 
 lifetime, and at the time of decease, and which the said parties of the 
 
 first part, or either of them, have or hath by virtue of the said last will and testa- 
 ment, or otherwise, of, in and to the same, and every part or parcel thereof, with 
 the appurtenances : to have and to hold the said premises hereby granted and con- 
 veyed, with the appurtenances unto the said part of the second part,
 
 598 APPENDIX OF FORMS. 
 
 heirs and assigns, to their only proper use, benefit and behoof forever. 
 
 And the said parties of the first part, for themselves severally and respectively, and 
 for their several and respective heirs, executors and administrators, do severally, 
 and not jointly, nor the one for the other or others of them, nor for the heirs, ex- 
 ecutors, administrators, or acts or deeds of the other or others of them, but each 
 
 tind every of them, for . .self. . only, and for and their heirs, executors and 
 
 administrators, and and their several and separate acts and deeds only, cove- 
 nant, grant, promise and agree to and with the said part of the second part, 
 
 heirs and assigns, that the said part of the second part, 
 
 heirs and assigns, shall and lawfully may from time to time, and at all times for- 
 ever hereafter, peaceably and quietly have, hold, use, occupy, possess and enjoy, 
 all and singular the said hereditaments and premises hereby granted and conveyed, 
 
 to and for own use and benefit, free and clear, of and from all former and 
 
 other gifts, grants, bargains, sales, mortgages, judgments, and all other charges and 
 incumbrances whatsoever, had, made, committed, executed or done by them, the 
 said parties of the first part, or by, through, or with their or either of their acts, 
 deeds, means, consent, procurement or privity. 
 
 In witness whereof, the said parties of the first part to these presents have here- 
 unto set their hands and seals, the day and year first above written. 
 
 No. 57. 
 REFEREE'S DEED IN PARTITION, UNDER AN ORDER OF SALE BY THE COURT. 
 
 This indenture, made the day of , in the year one thousand 
 
 eio-ht hundred and between referee in the action hereinafter 
 
 mentioned, of the first part, and of the second part. 
 
 Whereas, at a special term of the court of held at 
 
 on the day of one thousand eight hundred and it 
 
 was, among other things, ordered, adjudged and decreed by the said court, in a 
 
 certain action then pending in the said court, between , that all and 
 
 singular the premises mentioned in the complaint in said action, and hereinafter 
 described, be sold at public auction, according to the course and practice of said 
 
 court, by or under the direction of the said , who was appointed a referee 
 
 in said action, and to whom it was referred by the said order and judgment of the 
 said court, among other things, to make such sale ; that the said sale be made in 
 the county where the said premises, or the greater part thereof, are situated ; that 
 the referee give public notice of the time and place of such sale, according to law 
 and the course and practice of said court, and that any of the parties in said action 
 might become a purchaser or purchasers on such sale ; that the said referee, after 
 said sale, make report thereof to said court, and after his report of sale shall have 
 been duly confirmed, then that he execute to the purchaser or purchasers of the 
 said premises, or such part or parts thereof as should be so sold, a good and suffi- 
 cient deed or deeds of conveyance for the same. 
 
 And whereas, the said referee, in pursuance of the order and judgment of the 
 
 said court, did on the day of one thousand eight hundred and 
 
 sell at public auction, at , the premises in the said order 
 
 and judgment mentioned, due notice of the time and place of such sale being first
 
 APPENDIX OF FORMS. 599 
 
 given, agreeably to the said order ; at which sale the premises hereinafter described 
 were struck off to the said part. ... of the second part, for the sum of 
 doUars that being the highest sum bidden for the same, and the said referee's re^ 
 port of said sale having been duly confirmed. 
 
 Now this indenture witnesseth, that the said referee, the party of the first part 
 to these presents, in order to carry into efl^ect the sale so made by him as afore- 
 said, m pursuance of the order and judgment of the said court, and in conformity 
 to the statute in such case made and provided, and also in consideration of the 
 premises, and of the said sum of money so bidden as aforesaid, being first duly 
 paid by the said part. ... of the second part, the receipt whereof is hereby ac- 
 knowledged, hath bargained and sold, and by these presents doth grant and con- 
 vey, unto the said part of the second part 
 
 To have and to hold, aU and singular the premises above mentioned and de- 
 scribed, and hereby conveyed, or intended so to be, unto the said part of the 
 
 rnrbehq-f;;-;;;;:.^:' "''°^' " '''' ^^^^ ''''- -^' ^-^^* 
 
 In witness whereof, the said party of the first part, referee as aforesaid, hath 
 hereunto set his hand and seal, the day and year first above written. 
 Sealed and delivered iu 
 presence of 
 
 No. 58. 
 DEED OP A RIGHT OF WAY ACROSS THE LANDS OP GRANTOR, FOREVER 
 This indenture, made &c., between A. B., of &c, of the first part, and C. D of 
 &c., of the second part, witnesseth : That the said party of the first part for and in 
 
 consideration of the sum of to him in hand paid by the said party of the 
 
 second part, the receipt whereof is hereby confessed and acknowledged, hath 
 granted bargained, sold and confirmed, and by these presents doth grant^bar^ain 
 seU and confirm unto the said party of the second part, his heirs and ass^i-^ns 
 forever, a right of way in and over a certain strip of land of the said party of the 
 firs part, leading from the highway to the lands of the said party of the second 
 
 part, situate and being in the town of in the county of ... . for the 
 
 said party of the second part, his heirs and assigns, and his and their servants and 
 tenants, at all times freely to pass and repass, on foot or with horses, oxen, cattle 
 sheep, swine, beasts of burden, wagons, carts, sleighs or other vehicle or carria<.e' 
 whatever from the highway to the lands of the said party of the second part, and 
 from the lands of the said party of the second part to the said highway, the said 
 strip of and, hereby granted as a way, being in width twenty feet, and beginning. 
 at a stake and stones in the west side of the highway which passes through the 
 lands of the said party of the first part, in the town afores^d, twenty feet from the 
 northeast corner of the land of the said first party, and running thence westerly 
 parallel to the north hne of the said land of the said party of the first part, at the 
 distance of twenty feet therefrom, until it strikes the land of the said party of the 
 second part, a distance of sixty rods from the said highway ; the said way being 
 in length sixty rods, and in breadth: twenty feet. 
 To have and to hold the said easement and privilege to the said party of the
 
 goo APPENDIX OF FORMS. 
 
 second part, his heirs and assigns forever, as an appurtenance to the land of the 
 said party of the second part. And the said party of the second part, for himself, 
 his heirs and assigns, hereby agrees to make and keep up the fence on the exterior 
 lines of the said way, at his and their own proper costs and charges, forever. [In- 
 sert such covenants as are agreed upon, &c.] 
 
 In witness whereof, &c., (as in other cases of deeds. It should be acknowledged 
 and recorded.) 
 
 No. 59. 
 CONVEYANCE BY LEASE AND RELEASE. 
 
 This indenture, made &c., between A. B., of &c., of the first part, and C. D., 
 of &c., of the second part, witnesseth : That the said A. B., for and in considera- 
 tion of the sura of one dollar to him in hand paid by the said party of the se- 
 cond part, at or before the ensealing and delivery of these presents, the receipt 
 whereof is hereby confessed and acknowledged, hath granted, bargained and 
 sold, and by these presents doth grant, bargain and sell unto the said C. D., his 
 executors, administrators and assigns, all that certain piece or parcel of land, [set 
 out the description fully,] and the reversion and reversions, remainder and re- 
 mainders, rents, issues and profits thereof, with the appurtenances. 
 
 To have and to hold the said lands, tenements and hereditaments, and premises 
 above granted, bargained and sold, and every part and parcel thereof, with the 
 appurtenances, unto the said C. D., his executors, administrators and assigns, from 
 and including the day of the date hereof, for and during and unto the full end and 
 term of one year, and fully to be complete and ended, yielding and paying thereof 
 at the expiration of the said year, one cent, if the same shall be lawfully demanded ; 
 to the intent, that by virtue of these presents, and by force of the statute made for 
 transferring uses into possession, he the said C. D. may be in the actual possessioa 
 of all and singular the said premises above bargained and sold, with the appurte- 
 nances, and be thereby enabled to take and accept of a grant and release of the 
 reversion and inheritance thereof to him and his heirs, to, for and upon such uses, 
 interests and purposes as in and by the said grant or release shall be thereof di- 
 rected or declared. 
 
 In witness whereof, &c., as in No. 33. 
 
 RELEASE, DATED THE NEXT DAT. 
 
 This indenture, made &c., between A. B., of &c., of the first part, and C. D., of 
 &c., of the second part, witnesseth : That the said party of the first part, for and 
 in consideration of the sum of , to him in hand paid, at or before the en- 
 sealing and delivery of these presents, the receipt whereof is hereby confessed and 
 acknowledged, hath granted, bargained, sold, aliened, released and confirmed, and 
 by these presents doth grant, bargain, sell, alien, release and confirm unto the said 
 party of the second part, (in his actual possession now being by virtue of a bar- 
 gain and sale to him thereof made for one whole year, by indenture bearing date 
 the day next before the enseaUng of these presents, and by force of the statute 
 made for transferring uses into possession,) and to his heirs and assigns forever, 
 all piere set out the description,] and the reversion and reversions, remainder and
 
 APPENDIX OF FORMS. 601 
 
 remainders, rents, issues and profits thereof, and every part thereof with the ap- 
 purtenances; and also all the estate, right, title, interest, property, claim and de- 
 mand whatsoever, in law or equity, of him the said party of the first part, of, in 
 and to the same, and every part and parcel thereof, with the appurtenances : To 
 have and to hold all and singular the said premises above in and by these presents 
 released and confirmed, and every part and parcel thereof with the appurtenances, 
 unto the said party of the second part, his heirs and assigns, to his and their own 
 proper use and behoof, forever : [or to and for such uses, intents and purposes as 
 are hereinafter mentioned, to wit : &c.] 
 
 The covenants may be set out here as in a full covenant deed, or such of them 
 as are required, No. 40. 
 
 Note. 1 R. S. 739, § 142. Id. 727. Of Uses and Trusts. 
 
 It is only necessary to have the acknowledgment or proof of the release, and 
 that alone is recorded. The admission of the lease in the release estops parties 
 from denying it. (Carver v. Jackson, 4 Peters, 1, 88.) 
 
 The lease and release were considered as one instrument in all the New York 
 fee bills. (2 R. S. 637, § 28. 2 R. L. 14. 2 Greenl. 246.) 
 
 For form of lease and release, see 2 Black. Com. Appendix, No. 2, §§ 1 and 2, 
 where that mode of conveyance is adopted for a marriage settlement. 
 
 No. 60. 
 DEED OF EXCHANGE OF LANDS, OF AN ESTATE IN FEE SIMPLE, FOR A LI^E 
 
 ESTATE. 
 
 This indenture, made the day of , 186. ., between A. B., of 
 
 &c., of the first part, and C. D., of &c., of the second part : Whereas the said party 
 of the first part is seised in fee simple of lot No. 10, in Turner's patent, in the town 
 of Salem, in the county of Washington ; and whereas, the said C. D. is seised in 
 fee simple of lot No. 11, in the same patent, adjoining said lot No. 10 ; and whereas, 
 the said A. B. and C. D. have agreed to exchange with each other the aforesaid 
 premises in fee simple : Now therefore, for the end and purpose aforesaid, this 
 indenture witnesseth, that for and in consideration of the grant and conveyance 
 hereinafter made by the said C. D. to the said A. B., his heirs and assigns ; and in 
 consideration of one dollar in hand paid by the said C. D. at or before the sealing 
 and delivery of these presents, the receipt whereof is hereby confessed and ac- 
 knowledged, the said party of the first part hath granted, bargained and sold, and 
 by these presents doth grant, bargain and sell unto the said party of the second 
 part, his heirs and assigns, the said lot No. 10, in Turner's patent aforesaid, together 
 with the appurtenances. To have and to hold the said lot No. 10, to him the said 
 party of the second part, his heirs and assigns forever. And the said party of the 
 first part doth for himself, his heirs, executors and administrators, covenant and 
 agree to and with the said party of the second part, his heirs, executors and ad- 
 ministrators, [here insert such covenants as the party of the first part is to give.] 
 And this indenture further witnesseth : That for and in consideration of the said 
 grant and conveyance of the said lot No. 10, by the said party of the first part to 
 the said party of the second part ; and also for and in consideration of one dollar 
 to him the said party of the second part paid by the said party of the first part, at 
 or before the seaUng and dehvery of these presents, the receipt whereof is hereby 
 confessed and acknowledged, the said party of the second part hath granted, bar-
 
 602 APPENDIX OF FORMS. 
 
 gained and sold, and by these presents doth grant, bargain and sell unto the said 
 party of the first part, his heirs and assigns forever, the said lot No. 11 iu the said 
 patent liereinbeforo mentioned. To have and to hold tlie same, with the appurte- 
 nances, to the said party of the first part, his heirs and assigns forever. And the 
 said party of the second part doth for himself, his heirs, executors and administra- 
 tors, covenant and agree to and with the said party of the first part, his heirs, ex- 
 ecutors and administrators, [here insert such covenants as are agreed upon.] 
 
 In witness whereof the said parties have hereto interchangeably set their 
 hands and seals, the day and year first above written. 
 
 Sealed and dehvered in A. B. [l. s.] 
 
 presence of C. D. [l. s.] 
 
 E. F. Acknowledged or proved. 
 
 Note. See 3 Newnam's Conveyancer, 63 et seq. 
 
 No. 61. 
 
 A SHORT MORTGAGE, WITH A COVENANT TO PAY, BUT WITHOUT ANY POWER 
 
 OF SALE. 
 
 This indenture, made the day of , in the year one thousand 
 
 eight hundred and , between , of the first part, and , 
 
 of the second part : 
 
 Whereas, the said , justly indebted to the said part of the second 
 
 part, in the sum of , lawful money of the United States, secured to be 
 
 paid by certain bond or obligation bearing even date with these presents. 
 
 in the penal sum of , lawful money as aforesaid, conditioned for the pay- 
 ment of the said first mentioned sum, , as by the said bond may appear. 
 
 Now this indenture witnesseth : That the said part of the first part, for the 
 
 better securing the payment of the said sum of money according to the condition 
 
 of the said bond, and in consideration of one dollar, to in hand paid, the 
 
 receipt whereof is hereby acknowledged, ha. . . . granted, bargained, sold, aliened, 
 released, conveyed and confirmed, and by these presents do ... . grant, bargain, sell, 
 
 alien, release, convey and confirm unto the said part of the second part, 
 
 heirs and assigns forever, all Together with the tenements, heredita- 
 ments and appurtenances thereunto belonging or in anywise appertaining. And 
 
 also, all the estate, right, title, interest, property, possession, claim and 
 
 demand whatsoever, of the said part .... of the first part, of, in and to the same, 
 and the reversion and reversions, remainder and remainders, rents, issues and 
 profits thereof: to have and to hold the hereinbefore granted, bargained and de- 
 scribed premises, with the appurtenances unto the said part. . . . of the second part, 
 
 heirs and assigns, to their only proper use, benefit and behoof 
 
 forever. Provided always, that if the said part. ... of the first part, heirs, 
 
 executors or administrators, shall pay unto the said part .... of the second part, 
 executors, administrators or assigns, the money mentioned in the condi- 
 tion of the said bond, with the interest as therein specified, then these presents and 
 the said bond shall cease, determine, and be null and void. 
 
 And the said , heirs, executors and administrators, do. . . . covenant
 
 APPENDIX OF FORMS. 603 
 
 and agree to pay unto the said part .... of the second part, executors, 
 
 administrators or assigns, the said sum of money, and interest as mentioned above, 
 and expressed in the condition of the said bond. 
 
 In witness whereof, the parties to these presents have hereunto interchangeably 
 set their hands and seals, the day and year first above written. 
 
 Sealed and delivered in 
 presence of 
 
 Note. If the mortgage be given for the whole or any part of the purchase 
 money, it is desirable to insert immediately after the description of the premises, 
 something like the following : Being the same premises this day conveyed by the 
 
 Raid to the said , and these presents are given to secure the 
 
 payment of the whole [or part] of the consideration money of said premises — [then 
 proceed as in other cases.] 
 
 Note (1.) A mortgage, given for the whole or part of the purchase money, has 
 priority over all other liens, whether precedent or subsequent. (Willard's Eq. Jur. 
 437. 1 R. S. 749, § 5.) The fact that it was given for the consideration money, 
 or a part of it, may be proved by parol ; but still, it is advisable to insert the fact 
 in the instrument, to prevent subsequent dispute. 
 
 (2.) A mortgage may be given to secure future advances or responsibilities ; and 
 in such case the consideration clause should be so modified as to express the fact 
 truly. (Willard's Eq. Jur. 437. Shirvaa v. Caig, 7 Cranch, 34.) It may be stated 
 thus : " For and in consideration of one hundred dollars, to the party of the first 
 part in hand paid, at or before the ensealing and delivery of these presents, by the 
 party of the second part, and also to secure the payment of one thousand dollars, 
 which tlie party of the second part has agreed to advance hereafter to and for the 
 use of the said party of the first part, in annual installments of one hundred dollars 
 each, hath granted, bargained," &c. 
 
 If the fact be stated any where in the mortgage, it is notice to subsequent incum- 
 brancers ; and if not so stated, it is good against suVjsequent incumbrancers, with 
 notice. 
 
 No. 62. 
 COMMON BOND, USUALLY ACCOxMPANTING A MORTGAaE. 
 
 Know all men by these presents, that I, A. B., of the town of , in the 
 
 county of , and state of New York, am held and firmly bound unto C. D., 
 
 of, (fee, in the penal sum of five hundred dollars, lawful money of the United States, 
 to be paid to the said C. D., his executors, administrators or assigns ; for which 
 payment, well and truly to be made, I bind myself, my heirs, executors and ad- 
 ministrators, firmly by these presents. 
 
 Sealed with my seal, and dated this, day of September, 186. .. 
 
 The condition of this obligation is such that if the above bounden A. B., his heirs, 
 executors or administrators, shall well and truly pay, or cause to be paid, unto the 
 above named C. D., his executors, administrators or assigns, the just and full sum 
 of two hundred and fifty dollars, in one year from date, with interest, then the 
 above obHgation to be void ; otherwise, to remain in full force and virtue. 
 
 Sealed and deHvered in A. B. [l. s,] 
 
 presence of 
 0. D. Acknowledgment as in No. 1.
 
 604 APPENDIX OF FORMS. 
 
 Note (1.) A bond is required to be under the hand and seal of the obhgor; and 
 a seal is an impression on wax, or wafer, or some adhesive substance, except it be 
 the seal of a court, a public officer or a corporation. (Bank of Rochester v. Gray, 
 2 Hill, 227. 3 R. S. 687, 5th ed. L. of 1848, ch. 1'j7, § 1.) But this does not 
 extend to private seals, which must be made as heretofore, on wafer, wax or some 
 similar substance. (Id.) 
 
 (2.) The penalty of a bond is usually in double the amount of the condition ; but 
 a bond is good and can be enforced if the condition and penalty are for the same 
 sum. Interest can be recovered beyond the penalty. (Lyon v. Clark, 4 Seld. 148.) 
 
 (3.) The above form of bond is the one in general use. But the executors or 
 administrators, though not named, can, on the death of the obligee, enforce pay- 
 ment; and the heirs, executors or administrators, are liable to pay it. on the death 
 of the obligor, if the}' have assets, whether they are named in the bond or not. 
 (1 R. S. 739, § 141. 3 R. S. 30, 5th ed. Id. 197, 174.) 
 
 (4.) A mortgage which does not contain a power of sale cannot be foreclosed at 
 law, by advertisement, under the statute ; but can only be foreclosed in a court of 
 equity. (2 R. S. 545, § 1. 3 id. 859, 5th ed. Doolittle t-. Lewis, 7 John. Ch. 45. 
 Jackson v. Lockwood, 7 Wend. 458. Benedict v. Oilman, 4 Paige, 58. Cox v. 
 Wheeler, 7 id. 248. Ingraham v. Baldwin, 5 Seld. 45 ; 1 Barb. 9, 8. C.) 
 
 No. 63. 
 MORTGAGE WITHOUT BOND, BUT CONTAINING A POWER OF SALE AND COV- 
 ENANT TO PAY THE DEBT. 
 
 This indenture, made the day of , in the year one thousand 
 
 eight hundred and , between , of the first part, and , 
 
 of the second part; 
 
 Whereas, 
 
 Now this indenture witnesseth : That the said part of the first part, for the 
 
 better securing the , according to the true intent and meaning thereof, 
 
 and also for and in consideration of the sum of one dollar, to in hand 
 
 paid, by the said part .... of the second part, at or before the ensealing and de- 
 livery of these presents, the receipt whereof is hereby acknowledged, ha. . . granted, 
 bargained, "sold, aliened, remised, released, conveyed and confirmed, and by these 
 
 presents do grant, bargain, sell, alien, remise, release, convey and confirm unto 
 
 the said part of the second part, and to heirs and assigns forever, all 
 
 Together with all and singular the tenements, hereditaments and 
 
 appurtenances thereunto belonging, or in anywise appertaining, and the reversion 
 and reversions, remainder and remainders, rents, issues and profits thereof. And 
 
 also, all the estate, right, title, interest, property, possession, claim and 
 
 demand whatsoever, as well in law as in equity, of the said part. ... of the first 
 part, of, in and to the same, and every part and parcel thereof, with the appurte- 
 nances ; to have and to hold the above granted, bargained and described premises, 
 
 with the appurtenances, unto the said part. ... of the second part, heirs 
 
 and assigns, to their own proper use, benefit and behoof forever. Pro- 
 vided always, and these presents are upon this express condition, that if 
 
 And if default shall be made in the payment of the said sum of money above 
 mentioned, or the interest that may grow due thereon, or of any part thereof, that 
 then and from thenceforth it shall be lawful for the said part .... of the second 
 
 part, executors, administrators and assigns, to enter into and upon all 
 
 and singular the premises hereby granted, or intended so to be, and to sell and 
 dispose of the same, and all benefit and equity of redemption of the said part ....
 
 APPENDIX OF FORMS. gQg 
 
 of the first part, heirs, executors, administrators or assigns therein at 
 
 pubhc auction according to the act in such case made and provided. And as 'the 
 attorney of the said part of the first part, for that purpose by these presents 
 
 duly authorized, constituted and appointed, to make and dehver to the purchaser 
 or purchasers thereof, a good and sufficient deed or deeds of conveyance in the law 
 for the same, m fee simple, and out of the money arising from such sale, to retain 
 the principal and interest which shall then be due on the said . . together 
 
 with the costs and charges of advertisement and sale of the said premises render- 
 mg the overplus of the purchase money, (if any there shall be,) unto the said 
 .... heirs, executors, administrators or assigns; which sale, so to be made 
 
 Shall forever be a perpetual bar, both in law and equity, against the said part ' 
 
 of tne first part, heirs and assigns, and all other persons claiming or to 
 
 claim the premises or any part thereof, by, from or under them or either 
 
 of them. ' 
 
 In witness whereof, the parties to these presents have hereunto set their hands 
 and seals, the day and year first above written. 
 
 Sealed and delivered in 
 presence of 
 
 No. 64. 
 
 MOBTGAQE WITH BOND AND POWER OF SALE, PROVIDINO THAT THE WHOLE 
 SHALL BECOME DUE ON FAILURE TO PAY AN INSTALLMENT. 
 
 This indenture, made the day of , in the year one thousand 
 
 eight hundred and between of the first part, and 
 
 of the second part: Whereas, the said justly indebted to the said part ' ' 
 
 Of the second part, in the sum of lawful money of the United States! 
 
 ^cured to be paid by certain bond or obligation bearing even date with 
 
 these presents, in the penal sum of lawful money as aforesaid,' condition- 
 ed for the payment of the said first mentioned sum of lawful money aa 
 
 aforesaid, to the said part .... of the second part, or assigns, on the 
 
 ^^l"^ ^^"^^ ^i" be in the year of our Lord one thousand eight hundred 
 
 *°^ *°<^ the interest thereon, to be computed from . . at and 
 
 after the rate of .... per cent, per annum, and to be paid * And it 
 
 IS thereby expressly agreed, that should any default be made in the payment of the 
 said interest, or of any part thereof, on any day whereon the same is made paya- 
 ble, as above expressed, and should the same remain unpaid and in arrear for the 
 
 'fr ".■ ^T' ^^''^ ^"^ ^'■°°' thenceforth, that is to say, after the lapse 
 
 °^*^^,'**^ ^^y'' the aforesaid principal sum of with all arrear 
 
 age of mterest thereon, shaU, at the option of the said part. . . of the second part 
 ^i;;*' ';';;.''' *'.^'f\b^«7« ^^^ ^e due and payable immediately thereafter,' 
 although the period above hmited for the payment thereof may not then have 
 expired, any thing therein before contained to the contrary thereof in any wise 
 
 T7!t'"fl' • • • ■ V : ' '' ^^ *' '''^ ^^°^ ""' ^^%^^'°-. -°d ti^e -ndi- 
 
 tion thereof, reference being thereunto had, may more fully appear 
 
 Now this indenture witnesseth, that the said part. . . of the fii^st part, for the 
 better securing the payment of the said sum of money mentioned in the condition
 
 GOG APPENDIX OF FORMS. 
 
 of the said bond or obligation, with interest thereon, according to the true intent 
 and meaning thereof, and also, for and in consideration of the sum of one dollar to 
 in hand paid by the said part. . of the second part, at or before the en- 
 sealing and delivery of these presents, the receipt whereof is hereby acknowledged, 
 ha. . . . granted, bargained, sold, aliened, released, conveyed and confirmed, and by 
 these presents do. . . . grant, bargain, sell, alien, release, convey and confirm unto 
 
 the said part .... of the second part, and to and assigns forever, all 
 
 Together with all and singular the tenements, hereditaments and appurtenances 
 thereunto belonging or in any wise appertaining, and the reversion and reversions, 
 remainder and remainders, rents, issues and profits thereof. And also, all the es- 
 tate, right, title, interest, , property, possession, claim and demand what- 
 soever, as well in law as in equity, of the said part of the first part, of, in and 
 
 to the same, and every part and parcel thereof, with the appurtenances. To have 
 and to hold the above granted and described premises, with the appurtenances, 
 
 unto the said part. ... of the second part, and assigns, to their 
 
 own proper use, benefit and behoof, forever. 
 
 Provided always, and these presents are upon this express condition, that if the 
 
 paid part. ... of the first part shall well and truly pay unto the said 
 
 part. . . of the second part, or assigns, the said sum of money mentioned 
 
 in the condition of the said bond or obligation, and the interest thereon, at the 
 time and in the manner mentioned in the said condition, according to the true in- 
 tent and meaning thereof, that then these presents, and the estate hereby granted, 
 
 shall cease, determine and be void. And the said for do. . . . 
 
 covenant and agree to pay unto the said part .... of the second part, or 
 
 assigns, the said sum of money and interest, as mentioned above, and expressed 
 in the condition of the said bond. And if default shall be made in the payment of 
 the said sum of money above mentioned, or the interest that may grow due there- 
 on, or of any part thereof, that then and from thenceforth, it shall be lawful for the 
 
 said part. ... of the second part and assigns, to enter into and upon all 
 
 and singular the premises hereby granted, or intended so to be, and to sell and 
 dispose of the same, and all benefit and equity of redemption of the said part. . . . 
 
 of the first part or assigns therein, at public auction, accordmg to the 
 
 act in such case made and provided. And as the attorney of the said part .... of 
 the first part, for that purpose by these presents duly authorized, constituted and 
 appointed, to make and deliver to the purchaser or purchasers thereof, a good and 
 sufficient deed or deeds of conveyance in the law for the same, in fee simple, 
 and out of the money arising from such sale to retain the principal and interest 
 which shall then be due on the said bond or obligation, together with the costs 
 and charges of advertisement and sale of the same premises, rendering the overplus 
 
 of the purchase money, (if any there shall be,) unto the said of the first 
 
 part, or assigns ; which sale, so to be made, shall forever be a perpetual 
 
 bar, both in law and equity, against the said part .... of the first part, 
 
 and assigns, and all other persons claiming or to claim the premises, or any part 
 thereof, by, from or under them, or either of them. 
 
 In witness. &c.
 
 APPENDIX OF FORMS. 6O7 
 
 No. 65. 
 
 MORTGAGE WITH BOND AND POWER OF SALE, WITH COVENANT TO INSURE 
 
 AGAINST FIRE, AND TO ASSIGN THE POLICY TO MORTGAGEE. 
 
 This indenture, made the day of , in the year one thousand 
 
 eight hundred and , between , of the first part, and , 
 
 of the second part : 
 
 Whereas, the said , justly indebted to the said part of the second 
 
 part, in the sum of , lawful money of the United States, secured 
 
 to be paid by certain bond or obligation, bearing even date with these pres- 
 ents, in the penal sum of lawful money as aforesaid, conditioned for the 
 
 payment of the said first mentioned sum, , as by the said bond or obhga- 
 
 tion, and the condition thereof, reference being thereunto had, may more fully 
 appear. 
 
 Now this indenture witnesseth : That the said part of the first part, for the 
 
 better securing the payment of the said sum of money mentioned in the condition 
 of the said bond or obligation, with interest thereon, according to the true intent 
 and meaning thereof, and also, for and in consideration of the sum of one dollar, to 
 
 in hand paid by the said part of the second part, at or before the 
 
 ensealing and dehvery of these presents, the receipt whereof is hereby acknowl- 
 edged, ha granted, bargained, sold, aliened, released, conveyed and confirmed, 
 
 and by these presents do grant, bargain, sell, alien, release, convey and con- 
 firm unto the said part of the second part, and to and assigns for- 
 ever, all 
 
 Together with all and singular the tenements, hereditaments and appurtenances 
 thereunto belonging or in anywise appertaining, and the reversion and reversions, 
 remainder and remainders, rents, issues and profits thereof; and also, all the estate, 
 
 right, title, interest, property, possession, claim and demand whatsoever, 
 
 as well in law as in equity, of the said part of the first part, of, in and to the 
 
 same, and every part and parcel thereof, with the appurtenances : to have and to 
 hold the above granted and described premises, with the appurtenances, unto the 
 
 said part of the second part, and assigns, to their own 
 
 proper use, benefit and behoof, forever. 
 
 Provided always, and these presents are upon this express condition, that if the 
 
 said part of the first part, , shall well and truly pay unto the said 
 
 part of the second part, or assigns, the said sum of money mentioned 
 
 in the condition of the said bond or obligation, and the interest thereon, at the 
 time and in the manner mentioned in the said condition, according to the true in- 
 tent and meaning thereof, that then these presents, and the estate hereby granted 
 
 shall cease, determine and be void. And the said , for do ... . 
 
 covenant and agree to pay unto the said part of the second part, 
 
 or assigns, the said sum of money, and interest, as mentioned above, and expressed 
 in the condition of the said bond. And if default shall be made in the payment of 
 the said sum of money above mentioned, or the interest that may grow due thereon 
 or of any part thereof, that then and from thenceforth, it shall be lawful for the 
 
 paid part of the second part, and assigns, to enter into and upon all 
 
 and singular the premises hereby granted, or intended so to be, and to sell and dis-
 
 608 APPENDIX OF FORMS. 
 
 pose of the same, and all benefit and equity of redemption of the said part of 
 
 the first part, or assigns, therein, at public auction, according to the act 
 
 in such case made and provided : and as the attorney of the said part of the 
 
 first part, for that purpose by these presents duly authorized, constituted and ap- 
 pointed, to make and deliver to the purchaser or purchasers thereof, a good and 
 sufficient deed or deeds of conveyance in the law for the same, in fee simple, and 
 out of the money arising from such sale, to retain the principal and interest which 
 ehall then be due on the said bond or obligation, together with the costs and charges 
 of advertisement and sale of the same premises, rendering the overplus of the pur- 
 chase money, (if any there shall be,) unto the said , of the first part, 
 
 or assigns ; which sale, so to be made, shall forever be a perpetual bar, 
 
 both in law and equity, against the said part of the first part, and 
 
 assigns, and all other persons claiming or to claim the premises, or any part thereof, 
 
 by, from or under them, or either of them. 
 
 And it is also agreed by and between the parties to these presents, that the said 
 
 part of the first part, shall and will keep the buildings, erected and to to be 
 
 erected upon the lands above conveyed, insured against loss and damage by fire, 
 
 by insurers, and in an amount approved by the said part of the second part, 
 
 and assign the policy and certificates thereof to the said part of the second 
 
 part ; and in defiiult thereof, it shall be lawful for the said part of the second 
 
 part, to effect such insurance, and the premium and premiums paid for eflecting the 
 same shall be a lien on the said mortgaged premises, added to the amount of the 
 said bond or obligation, and secured by these presents, and payable on demand, 
 with interest at the rate of per cent per annum. 
 
 In witness, &c. 
 
 • Note. If this be made to a corporation, the blanks for the mortgagee should be 
 filled with "successors." 
 
 No. 66. 
 
 MOKTGAQE TO EXECUTORS, WITH BOND AND POWER OF SALE, AND COVE- 
 NANT TO PAY THE DEBT. 
 
 This indenture, made the day of , in the year one thousand 
 
 eight hundred and , between , of the first part, and , 
 
 execut. ... of the last will and testament of , deceased, of the second 
 
 part 
 
 Whereas the said justly indebted to the said part of the second 
 
 part, in the sum of lawful money of the United States of America, secured 
 
 to be paid by certain bond or obligation bearing even date with these 
 
 presents, in the penal sum of lawtul money as aforesaid, conditioned for 
 
 the payment of the said first mentioned sum , as by the said bond or 
 
 obligation, and the condition thereof, reference being thereunto had, may more 
 
 fiilly appear. 
 
 Now this indenture witnesseth : That the said part of the first part, for the 
 
 better securing the payment of the said sum of money mentioned in the condition 
 of the said bond or obligation, with interest thereon, according to the true intent
 
 APPENDIX OF FORMS. 609 
 
 and meaning thereof, and also for and in consideration of the sum of one dollar, 
 
 to in hand paid, by the said part of the second part, at or before the 
 
 ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, 
 ha. . . granted, bargained, sold, aliened, released, conveyed and confirmed, and by 
 
 these presents do grant, bargain, sell, alien, release, convey and confirm unto 
 
 the said part of the second part, and the survivors and survivor, and 
 
 their assigns forever, all 
 
 Together with all and singular the tenements, hereditaments and appurtenances 
 thereunto belonging, or in anywise appertaining, and the reversion and reversions, 
 remainder and remainders, rents, issues and profits thereof. And also, all the 
 
 estate, right, title, interest, property, possession, claim and demand 
 
 whatsoever, as well in law as in equity, of the said part of the first part, of, 
 
 in and to the same, and every part and parcel thereof, with the appurtenances; 
 to have and to hold the above granted, bargained and described premises, with the 
 appurtenances, unto the said part. . . of the second part, the survivors and survivor, 
 and their assigns, to their only proper use, benefit apd behoof forever. 
 
 Provided always, and these presents are upon this express condition, that if the 
 
 said part of the first part, heirs, executors or administrators, shall 
 
 well and truly pay unto the said part, . of the second part, the survivors or survivor, 
 
 or their assigns, the said sura of money mentioned in the condition of the 
 
 said bond or obligation, and the interest thereon, at the time, and in the manner 
 mentioned in the said condition, according to the true intent and meaning thereof, 
 that then these presents, and the estate hereby granted, shall cease, determine and 
 be null and void. And the said , for , heirs, executors and ad- 
 ministrators, do ... . covenant and agree to pay unto the said part.... of the 
 
 second part, the survivors or survivor, or assigns, the said sum 
 
 of money, and interest, as mentioned above, and expressed in the condition of the 
 said bond. 
 
 And if default shall be made in the payment of the said sura of money above 
 mentioned, or the interest that may grow due thereon, or of any part thereof, that 
 
 then and from thenceforth it shall be lawful for the said part of the second 
 
 part, the survivors or survivor, and their assigns, to enter into and upon all 
 
 and singular the premises hereby granted, or intended so to be, and to sell and 
 dispose of the same, and all benefit and equity of redemption of the said part .... 
 
 of the fiist part, heirs, executors, administrators or assigns therein, at 
 
 public auction, according to the act in such case made and provided. And as the 
 attorney or attorneys of the said part. ... of the first part, for that purpose by 
 these presents duly authorized, constituted and appointed, to make and deliver to 
 the purchaser or purchasers thereof, a good and sufficient deed or deeds of convey- 
 ance in the law for the same, in fee simple, and out of the money arising from such 
 sale, to retain the principal and interest which shall then be due on the said bond 
 or obligation, together with the costs and charges of advertisement and sale of the 
 said premises, rendering the overplus of the purchase money, (if any there shall 
 be,) unto the said , of the first part, heirs, executors, adminis- 
 trators or assigns ; which sale, so to be made, shall forever be a perpetual bar, both 
 in law and equity, against the said part. ... of the fi.rst part, heirs and 
 
 Will.— 39
 
 610 APPENDIX OF FORMS. 
 
 assigns, and all other persons claiming or to claim the premises or any part thereof 
 by, from or under them, or any of them. 
 
 In witness whereof, the parties to these presents have hereunto set their hands 
 and seals, the day and year first above written. 
 
 Sealed and delivered in 
 presence of 
 
 No. 67. 
 
 MORTGAGE BY^AND TO A CORPORATION, WITH BOND, POWER OF SALE AND 
 COVENANT TO PAY THE DEBT. 
 
 This indenture, made the day of , in the year one thousand 
 
 eight hundred and , between The Albany City Bank, of the city of 
 
 Albany, of the first part, and The Commercial Bank of Saratoga Springs, of the 
 second part: 
 
 Whereas, the said Albany City Bank is justly indebted to the said party of the 
 
 second part, in the sum of , lawful money of the United States, secured 
 
 to be paid by certain bond or obligation bearing even date with these 
 
 presents, in the penal sum of lawful money as aforesaid, conditioned for 
 
 the payment of the said first mentioned sum of , as by the said bond or 
 
 obligation, and the condition thereof, reference being thereunto had, may more 
 fully appear. 
 
 Now this indenture witnesseth : That the said party of the first part, for the 
 better securing the payment of the said sum of money mentioned in the conditioa 
 of the said bond or obligation, with interest thereon, according to the true intent 
 and meaning thereof, and also, for and in consideration of the -sum of one dollar to 
 it in hand paid by the said party of the second part, at or before the ensealing and 
 delivery of these presents, the receipt whereof is hereby acknowledged, hath 
 granted, bargained, sold, aliened, released^ conveyed and confirmed, and by these 
 presents doth grant, bargain, sell, alien, release, convey and confirm unto the said 
 party of the second, and to its successors in office, and assigns forever, all 
 
 Together with all and singular the tenements, hereditaments and appurtenances 
 thereunto belonging or in anywise appertaining, and the reversion and reversions, 
 remainder and remainders, rents, issues and profits thereof; and also, all the estate, 
 
 right, title, interest, property, possession, claim and demand whatsoever, 
 
 as well in law as in equity, of the said party of the first part, of, in and to the 
 same, and every part and parcel thereof, with the appurtenances : to have and to 
 hold the above granted and described premises, with the appurtenances, unto the 
 said party of the second part, its successors and assigns, to its and their own proper 
 use, benefit and behoof forever. 
 
 Provided always, and these presents are upon this express condition, that if the 
 said party of the first part, or its successors in office, shall well and truly pay unto 
 the said party of the second part, its successors in office or assigns, the said sum of 
 money mentioned in the condition of the said bond or obligation, and the interest 
 thereon, at the time and in the manner mentioned in the said condition, according 
 to the true intent and meaning thereof, that then these presents, and the estate 
 hereby granted, shall cease, determine and be void. And the said party of the
 
 APPENDIX OF FORMS. 611 
 
 first part, for itself and its successors in office doth covenant and agree to pay unto 
 the said party of the second part, its successors in office, or assigns, the said sum 
 of money and interest, as mentioned above, and expressed in the condition of the 
 said bond. And if default shall be made in the payment of the said sum of money 
 above mentioned, or the interest that may grow due thereon, or of any part there- 
 of, that then and from thenceforth, it shall be lawful for the said party of the second 
 part, its successors in office and assigns, to enter into and upon all and singular the 
 premises hereby granted, or intended so to be, and to sell and dispose of the same, 
 and all benefit and equity of redemption of the said party of the first part, its 
 successors in office or assigns therein, at public auction, according to the act in 
 such case made and provided. And as the attorney of the said party of the first 
 part, for that purpose by these presents duly authorized, constituted and ap- 
 pointed, to make and deliver to the purchaser or purchasers thereof, a good and 
 sufficient deed or deeds of conveyance in the law for the same, in fee simple, 
 and out of the money arising from such sale to retain the principal and interest 
 which shall then be due on the said bond or obligation, together with the costs 
 and charges of advertisement and sale of the same premises, rendering the overplus 
 of the purchase money, (if any there shall be,) unto the said party of the first part, 
 its successors in office or assigns ; which sale, so to be made, shall forever be a 
 perpetual bar, both in law and equity, against the said party of the first part, its 
 successors in office and assigns, and all other persons claiming or to claim the 
 premises, or any part thereof, by, from or under them, or either of them. 
 
 In witness whereof, the said party of the first part, by a resolution of its board 
 of directors, granted the day of , 186. ., hath caused its corpo- 
 rate seal to be hereunto affixed, and these presents to be subscribed by their presi- 
 dent and cashier, the day and year first above written. 
 
 Corporate seal. 
 
 C. D., Cashier. A. B., President 
 
 No. 68. 
 
 DEED OF MORTGAGED PREMISES, ON FORECLOSURE BY ADVERTISEMENT 
 UNDER THE STATUTE, WHEN THE PURCHASE IS MADE BY A STRANGER 
 TO THE MORTGAGE. 
 
 This indenture, made the day of , in the year one thousand 
 
 eight hundred and , between A. B., of , of the first part, and 
 
 (^■'D.,o{ , of the second part : Whereas, E. F. by a certain indenture of 
 
 mortgage bearing date the day of , in order to secure the pay- 
 ment to the said A. B. of the sum of in the manner therein speci- 
 fied, and for and in consideration of the sum of one dollar to him, the said E. F. 
 well and truly paid by the said A. B., did grant, bargain, sell, alien, release, convey 
 and confirm to the said A. B., his executors, administrators and assigns, all that 
 certain piece or parcel of land, [describe the premises,] wath the appurtenances; 
 subject to a proviso, in the said mortgage contained, that the same should be void 
 on the payment by the said E. F., his executors, administrators or assigns, of the 
 ^^^ of in the manner particularly specified in the condition of a certain
 
 612 APPENDIX OF FORMS. 
 
 bond, or writing obligatory, bearing even date with the said mortgage, reference 
 being thereto had will more fully and at large appear; and which said indenture 
 of mortgage contained a special power, authorizing the said A. B., his heirs, exec- 
 utors, administrators or assigns, if default should be made in the payment of the 
 said sum of money mentioned in the condition of the said bond or obhgation, with 
 ihe interest, or of any part thereof, to sell and dispose of the said mortgaged prem- 
 ises, or any part thereof, at public auction ; and to make and deliver to tlie pur- 
 chaser or purchasers thereof good and sufficient deed or deeds of conveyance in the 
 law for the same, in fee simple; and whereas the said indenture of mortgage has 
 been duly recorded, according to law, as by the said indenture of mortgage, and 
 the record thereof, and of the power therein contained, reference being thereto 
 had more fully and at large appears. 
 
 \_Ifit has been assigned, say : and the same has been duly assigned to the said 
 party of the first part by the said party to whom the said bond and mortgage were 
 given, and which said assignment has been duly recorded, as by ihe record thereof 
 more fully and at large appears.] 
 
 And whereas, default was made in the payment of the said sum of money in- 
 tended to be secured by the said indenture of mortgage, whereupon the said mort- 
 gaged premises hereinafter particularly described, were, on the day of 
 
 , sold at public auction, to the said party of the second part, for the sum 
 
 of , being the highest sum bid for the same, public notice having been 
 
 previously given of such sale by advertisement, inserted and published for twelve 
 
 weeks, once in each week, successively, in a public newspaper entitled the 
 
 printed in the town of in the county in which the mortgaged premises 
 
 are situated, a copy of which was, for twelve weeks prior to the time therein spe- 
 cified for such sale, duly affixed on the outward door of the court house in the 
 
 town of being the building in which the county courts of said county 
 
 are directed to be held ; and the said party of the first part has caused a copy of 
 said printed notice or advertisement, to be duly served on all persons having any 
 claim upon the said premises, as required by the act of May 7, 1844. 
 
 Now therefore, this indenture witnesseth : That the said party of the first part, 
 for and in consideration of the sum so bid as aforesaid, to him in hand paid by the 
 said party of the second part, at or before the ensealing and delivery of these pres- 
 ents, the receipt whereof is hereby confessed and acknowledged, hath granted, 
 bargained, sold, aliened, released and confirmed, and by these presents doth grant, 
 bargain, sell, alien, release and confirm unto the said party of the second part, and 
 to his heirs and assigns forever, all ; [here describe the premises sold ;] together 
 with all and singular the tenements, hereditaments and appurtenances thereunto 
 belonging or in any wise appertaining, as the same are described and conveyed in 
 and by the said indenture of mortgage ; and also, all the estate, right, title, inter- 
 est property, claim and demand whatsoever, both in law and equity, of the said 
 E. F. the mortgagor, as well as of the said party of the first part, of, in and to the 
 above described premises, with the appurtenances, as fully to all intents and pur- 
 poses as the said party of the first part hath power and authority to grant and sell 
 the same, by virtue of the said indenture of mortgage, and of the statute in such 
 case made and provided, or otherwise. To have and to hold the said above men- 
 tioned and described premises, with the appurtenances thereof, unto the said
 
 APPENDIX OF FORMS. $13 
 
 party of the second part, his heirs and assigns, to the sole and only proper use, 
 benefit and behoof of the said party of the second part, his heirs and assigns 
 forever. 
 
 In witness, &c. 
 
 Sealed and delivered in 
 presence of 
 
 Notes. (1.) The recitals of the mortgage in the deed should be according to 
 the language in the mortgage ; which may diflfer from the above. 
 
 (2.) See 2 R. S. 545 ; L. of 1844, ch. 346, p. 529. ; 3 R. S. 859, 5th ed., as to 
 mode of foreclosure at law. 
 
 (3.) The power of sale contained in a mortgage is a power coupled with an in- 
 terest, and does not die with the mortgagor ; nor can it be revoked by him, as a 
 mere naked power may be. (Bergen v. Bennett, 1 Gaines' Cas. in Error, 13, 16 
 et seq. Knapp v. Alvord, 10 Paige, 209. Osgood v. Franklin, 2 John. Ch. 19. 
 S. C. 14 John. 527.) 
 
 (4.) The mortgagee, or his assigns, may bid in the premises on a statute foreclo- 
 sure, and in such case no deed is required to be given. (3 R. S. 861, 862, 5th ed. 
 Jackson v. Golden, 4 Go wen, 266. Slee v. Manhattan Co. 1 Paige, 48. L. of 1838, 
 ch. 266, § 8.) The documental evidence of the sale and purchase, as well as of tha 
 publication and service of notice, must be recorded with the county clerk of tha 
 county where the lands lie. (Id.) 
 
 No. 69. 
 
 SATISFACTION OF MORTGAGE. 
 
 A mortgage, bearing date the day of eighteen hundred and 
 
 executed by recorded in the clerk's office of the 
 
 county of in book of mortgages, page , on the 
 
 day of , and the bond accompanying said mortgage have been paid, or 
 
 otherwise satisfied and discharged. 
 
 Dated the day of , 18 
 
 In presence of Acknowledgment or proof, as in other oases. 
 
 Note. See 1 R. S. 761, § 28 ; 3 id. 57, § 60, 5th ed. The certificate need not 
 be under seal, nor need there be a subscribing witness, if it be acknowledged ; but 
 if not acknowledged at the time, there must be a subscribing witness, by whom it 
 must be proved. It must be recorded at length by the clerk, and a minute of dis- 
 charge entered on the page of the book containing the record of the mortgage. It 
 may be given by the mortgagee, his personal representatives or assigns. If given 
 by the assignee, the assignment should be recorded also. If by executors or ad- 
 ministrators, a certificate by the surrogate that the party discharging the mortgaga 
 is such executor or administrator, may be insisted on by the clerk. 
 
 COVENANTS. 
 
 For the covenants usually inserted in a full covenant deed, see No. 40 ; for a 
 covenant against grantor's own act, see No. 36 ; and for various other covenants, 
 see Agreements, passim.
 
 gl4 APPENDIX OF FORMS. 
 
 No. 70. 
 GENERAL FORM OF A COVENANT IN A DEED. 
 And the said party of the part, for himself, his heirs, executors and ad- 
 ministrators, doth hereby covenant to and with the said party of the part, 
 
 his heirs and assigns, [or his executors, administrators and assigns, aa the case re- 
 quires,} that &c. 
 
 No. 71. 
 FROM SEVERAL PERSONS TO ONE. 
 And the said A. B., C. D., and E. F., for themselves severally and respectively, 
 and for their several and respective heirs, executors and administrators, and not 
 jointly, nor the one for the other or others of them, nor for the heirs, executors, 
 administrators, nor for the acts or deeds of the other or others of them, do and each 
 and every of them doth hereby covenant, promise and grant to and with the said 
 L. M., his heirs and assigns, [or his heirs, executors and administrators,] by these 
 presents in manner following. 
 
 No. 72. 
 COVENANT BY LESSEE TO PAY ALL TAXES AND ASSESSMENTS ON THE DE- 
 MISED PREMISES. 
 
 And the said party of the second part, for himself, his executors, administrators 
 and assigns, hereby covenants to and with the said party of the first part, his heirs 
 and assigns, that he, the said party of the second part, shall and will at his and 
 their proper costs and charges, bear, pay and discharge all such taxes, duties and 
 assessments whatsoever as shall or may, during the said term hereby granted, be 
 charged, assessed or imposed upon the said demised premises. 
 
 Notes. (1.) The executors and administrators, as well as heirs and devisees, are 
 liable for the debts of the deceased, whether they are named in the obligation or not. 
 The executors or administrators are primarily liable, and after them the heirs and 
 devisees, if lands come to them by descent or devise. (Butts v. Genung, 5 Paige, 
 254. Schermerhorn v. Barhydt, 9 id. 28. Wambaugh v. Gates, 11 id. 505. 2 R. S. 
 447 et seq. 3 id. 746, 753, 5th ed.) 
 
 (2.) No particular technical words are necessary to make a covenant ; but any 
 words which import an agreement between the parties to a deed, will suffice for 
 that purpose. (Hallet v. Wylie, 3 John. 48. Bull v. Follett, 5 Cowen, 170.) The 
 word " Covenant" is always the appropriate and expressive term, and is most fre- 
 quently used. 
 
 (3.) In conveyances made since 1830, no covenant is implied, whether such con- 
 veyance contains special covenants or not. (1 R. S. 738, § 140. Hone v. Fisher, 
 2 Barb. Ch^ 569. Kinney v. Watts, 14 Wend. 38.) 
 
 No. 73. 
 
 COVENANT TO REPAIR, DURING THE TERM. 
 
 And it is further covenanted that the said party of the second part, his executors, 
 
 administrators and assigns, or some or one of them, at their own proper costs and 
 
 charges, shall and will from time to time, and all time during the continuance of the
 
 APPENDIX OF FORMS. ' 615 
 
 term hereby demised, when, where and as often as need or occasion shall be or 
 require, cause the buildings and fences on the said premises to be well and suffi- 
 ciently repaired and amended. 
 
 No. 74. 
 
 COVENANT TO CONDUCT A FARM IN A GOOD HUSBANDLIKB MANNER. 
 
 ■ And it is further covenanted, that the said party of the second part, his execu- 
 tors, administrators and assigns, shall and will at all times during the continuance 
 of the said term, manage and conduct the said farm in a good husbandlike manner, 
 and according to the usual course of husbandry in the neighborhood ; that he will 
 not commit any waste or damage, or suffer any to be done ; that he will keep the 
 fences and buildings on the premises in good repair, reasonable wear thereof and 
 damage by the elements excepted. 
 
 No. 75. 
 COVENANT TO RENEW THE LEASE AT THE EXPIRATION OF THE TERM. 
 
 And the said party of the first part, for himself his heirs and assigns, covenants 
 to and with the said party of the second part, his executors, administrators or as- 
 signs, that if the said party of the second part shall well and truly keep and per- 
 form the agreements herein contained, he, the said party of the first part, his heirs 
 and assigns, will make and execute unto the said party of the second part a new 
 lease, similar in all respects to this, and to run for the same period, of the premises 
 aforesaid, upon due request and apphcation of the said party of the second part made 
 within ihirty days prior to the expiration of the said term granted by these pres- 
 ents, [except, here state exceptions, if there be any,] 
 
 No. 76. 
 
 COVENANT THAT LESSEE MAY HAVE A RIGHT OF WAT, THROUGH LESSOR'S 
 LAND TO THE PUBLIC ROAD. 
 
 And inasmuch as the premises hereby demised do not adjoin any pubhc high- 
 way, but are wholly surrounded by the lands of the said party of the first part, or 
 of strangers, the said party of the first part, for himself and his heirs and assigns, 
 doth hereby grant to the said party of the second part, his executors, administra- 
 tors and assigns, during the said term, a right of way in and over a certain strip of 
 land of the said party of the first part, leading fi-om the highway to the lands here- 
 by demised, and which is described as follows: [here set out the description of the 
 land intended as the private way :] over which way the- said party of the second 
 part, his servants and tenants, may freely pass and repass, on foot or with horses 
 oxen, cattle, sheep, swine, beasts of burden, wagons, carts, sleighs or other vehi- 
 cles or carriages whatever, from the said highway to the said demised premises, at 
 all times during the said term.
 
 616 APPENDIX OF FORMS. 
 
 EMINENT DOMAIN. 
 
 No. 77. 
 
 FORM OF A RECORD OF THE ASSESSMENT OF DAMAGES. 
 
 (Adams v. Saratoga and Washington Rail Road Company, 11 Barb. 414-417.) 
 
 " In the matter of the Saratoga and Washington Rail Road Company, and cer- 
 tain owners of lands on the line of their rail road, for appraisement of damages. 
 
 Washington county, ss. Whereas by virtue of the act entitled ' An act to incoi> 
 porate the Saratoga and Washington Rail Road Company,' passed May 2, 1834, 
 the said company were empowered, amongst other things, to purchase, receive and 
 hold such real estate as might be necessary in accomphshing the objects for which 
 the said incorporation was granted, and by their agents, surveyors and engineers, 
 to enter upon and take possession of, and use all such land and real estate as might 
 be necessary for the construction and maintenance of the single or double rail road 
 or way, and the accommodation requisite and appertaining thereto, and to receive, 
 hold and take all such voluntary grants and donations of land and real estate, for 
 the purpose of said road, as should be made to the said corporation to aid in the 
 construction, maintenance and accommodation of the said single and double rail 
 road or way. But, all lands or real estate thus entered upon which were not do- 
 nations, were required to be purchased by the said corporation -of the owner or 
 owners of the same, at a price to be mutually agreed upon between them. And 
 in case of disagreement as to price, and before making any portion of said road oa 
 said land, the said corporation, or the owner of said land, might apply by petitioa 
 to the first judge of the court of common pleas of the county in which said land is 
 situated, who was authorized to proceed to appraise the said lands and damages, 
 in the manner and form directed in and by the act aforesaid. And in case of the 
 inability of said judge to conduct the said proceedings, any other judge of the same 
 court, to whom no reasonable objections were made, was thereby empowered to 
 conduct the same, as by the said act to which reference is hereby made, will more 
 fully appear. And whereas, the lands and real estate, hereinafter described, are 
 necessary for the construction and maintenance of the rail road of said company, 
 and the accommodations requisite and appurtenant thereto. And the said com- 
 pany and John P. Adams, who is the owner of the same, disagree as to the prica 
 of the same. And whereas, the said corporation, before making any portion of 
 said road on said land, in and by virtue of the said act, and the several acts amend- 
 ing the same, did, on the 2l6t day of April, 1847, apply by petition in the manner 
 directed by said act of incorporation, to John McLean, Esq., first judge of the court 
 of common pleas in the county of Washington, in which said lands are situated; 
 •who thereupon the same day directed the sheriff of the said county to give public 
 notice in at least one newspaper printed in said county, that at some future day, 
 not less than thirty days from the first publication of said notice, the clerk of said 
 county, and the said judge, would proceed to draw at the clerk's office in said 
 county, the names of twelve persons to serve as a jury between the said rail road 
 company and the owners of lands along and adjoining the line of the rail road of 
 said company, as then located in the county of Washington, with whom a disagree-
 
 APPENDIX OP FORMS. 617 
 
 ment as to the price of such lands then existed, in appraising said lands and the 
 damages the said owners thereof should individually sustain by reason of their ap- 
 propriation to the use of said company, in the same manner as the names of the 
 persons were then drawn for juries in courts of recoid. And whereas, the said 
 sheriff, in pursuance of such directions, on the 21st day of April, did give such pub- 
 lic notice for more than thirty days, in manner and form as therein directed, in one 
 of the newsoapers printed in said county, called the Washington County Post, and 
 therein appointed the 24th day of May, 1847, at ten o'clock in the forenoon, at the 
 clerk's office of said county, as the time and place of drawing such jury ; at which 
 time and place, the said judge and Henry Shepherd, then being the clerk of said 
 county, attended ; and in pursuance of such notice, drew the names of twelve per- 
 sons as such jury, in the same manner as the names of persons were then author- 
 ized by law to be drawn for jurors in courts of record, who were duly qualified, 
 and to whom no objections were made, and neither of them resided in any town 
 through which the said rail road passes, or was of kin to any of the said owners 
 claiming damages, or interested in the said rail road, or of kin to those who were 
 interested in said rail road, or said damages. And whereas the said judge, on the 
 6th day of July, 1847, in pursuance of the act entitled 'an act in relation to the ju- 
 diciary,' passed May 12th, 1847, did order that the said matter, and all proceedings 
 to be had therein, be transferred to Martin Lee, Esq., who was elected to discharge 
 the duties of county judge of said county, on giving one day's notice of said order • 
 which notice was duly given as therein required. And whereas, the said Martin 
 Lee having taken jurisdiction of said matter, did on the 15th day of July, 1847, by 
 his warrant in writing, duly issued for that purpose, direct said sheriff to summon 
 said jury, and appoint the 10th day of August, 1847, at the hotel kept by Mr. 
 Washburn at Fort Edward, in said county, at 11 o'clock in the forenoon, as the 
 time and place for said twelve persons to be summoned by the said sheriff, to ap- 
 pear as such jury ; at which time and place, the undersigned judge appeared, and 
 Daniel T. Payn, Esq., sheriff of the said county, and the said jury wno had been 
 duly summoned by the said sheriff also appeared, and in the presence of the parties 
 the said judge duly drew by lot from the said names of the said twelve persons six, 
 who were quaUfied, and were free from all exceptions, and who were then and 
 there duly sworn well and truly to appraise the lands of certain owners situate 
 along and adjoining the line of the rail road of said company, as then located in the 
 county of Washington, with whom a disagreement as to the price of such lands 
 then existed, and the damages the said owners should sustain by reason of the ap- 
 propriation of said lands to the use of said company, and a true verdict therein 
 give according to evidence ; the names of such jurors so sworn as aforesaid, are 
 hereinafter mentioned. 
 
 And thereupon the said matter and proceedings were duly adjourned until the 
 22d day of September then next, at 2 o'clock p. u. at Bordwell's tavern, near Com- 
 stock's landing, in the town of Fort Ann, in said county; at which last mentioned 
 time and place, the undersigned judge appeared, and the said jurors and parties also 
 appeared, and such proceedings were thereupon had that the said matter and pro- 
 ceedings were further adjourned until the 16th day of November then next, at 9 
 o'clock in the forenoon, at the Phoenix hotel in the town of Whitehall, in the said 
 county ; at which last mentioned time and place, the undersigned judge appeared,
 
 618 APPENDIX OF FORMS. 
 
 and the said jurors and parties also appeared ; and the said jurors were then and there 
 duly sworn well and truly to appraise the lands of the said John P. Adams, situate 
 along and adjoining the line of tlie rail road of said company, as then located in the 
 town of Whitehall in said county, and the damages the said John P. Adams should 
 sustain by reason of the appropriation of tlie said lands to the use of the said company, 
 and a true verdict therein give according to evidence. And the said jurors ha\'ing 
 heard the proofs and allegations of the parties, which were delivered in open court, 
 and in the presence of said parties, a majority of said jurors so sworn as aforesaid, 
 did then and there on the 17th day of November, 1847, duly make up and deliver 
 to the said judge their verdict and award in writing, appraising the said lands and 
 damages aforesaid of the said John P. Adams, at the sum of $350,00 ; which ver- 
 dict is in the words and figures following, viz : ' In the matter of the Saratoga and 
 "Washington Rail Road Company and John P. Adams. We whose names are 
 hereunto subscribed, and seals affixed, being a jury duly elected, tried and sworn 
 before the Hon. Martin Lee, judge of the county courts in and for the county of 
 Washington, in pursuance of the act entitled ' an act to incorporate the Saratoga 
 and Washington Rail Road Company,' to appraise the lands of the said John P. 
 Adams, situate along and adjoining the line of the rail road of said company, as at 
 present located in the town of Whitehall, in said county, and the damages the said 
 John P. Adams shall sustain by reason of the appropriation of said lands to the use 
 of said company, having heard the proofs and allegations of the parties, do, upon 
 our oaths, appraise the same at $350,00 ; which said lands are described as follows, 
 viz : All that certain piece of land situate on the farm now occupied by the said 
 Adams, in the town of Whitehall, in said county, and being that part included 
 •within the two outward lines of the rail road of the Saratoga and Washington Rail 
 Road Company, as surveyed by James B. Sargent, engineer, in 1847, being a strip 
 two rods in width on each side of the central line of said road, and containing 
 ninety-nine one hundredths of an acre of land. Witness our hands and seals this 
 17th day of November, 1847. Le Roy Morey, [l. s.] C. V. K. Woodworth, [l. s.] 
 Archibald Moore, [l. a.] Ansell Roberson, [l. s.] John J. Launouth, [l. s.] Par- 
 don Bassett, [l. s.]' And the same was duly certified by the said judge, and filed 
 in the office of the clerk of the said county. And whereas, due proof has been 
 given to the said judge within thirty days after such assessment, that the amount 
 of the same has been deposited to the credit of the said John P. Adams, by said 
 company, in the Bank of Whitehall, being the place directed by said judge for such 
 deposit; and that all expenses have been fully paid, and at least fourteen days' no- 
 tice of the time and place of such assessment, was duly given to said John P. Ad- 
 ams ; and all the requirements of the said acts having been fully complied with on 
 the jiart of said company. Now, therefore, I, the said judge, in compliance with 
 said acts, do order and decree, that the said assessments and proceedings be, and 
 the same are in all respects, hereby ratified and confirmed. To the end that after 
 this decree is recorded in the clerk's office of the said county, the said corporation 
 shall be possessed of the premises and real estate above described in the verdict of 
 said jury, and may enter upon and take possession and use the same for the pur- 
 poses of said rail road, agreeably to the provisions of the several acts aforesaid. In 
 •witness whereof, I have hereunto put my hand and seal this 11th day of December, 
 A. D. 1847. Martin Lee, county judge of Washington county."
 
 APPENDIX OP FORMS. 619 
 
 Ko. 78. 
 
 EXCEPTION OF A RIGHT OF WAY RESERVED TO THE LESSOR THROUGH THE 
 
 DEMISED PREMISES, TO ANOTHER LOT OF THE LESSOR. 
 
 Excepting and reserving in and out of the hereby demised premises, to the said 
 party of the first part, his heirs and assigns, a right of way, as well a foot way as a 
 horse way, and a way for his and their carts, carriages and servants, in, out and 
 through the hereby demised premises, during the said term, and which said way is 
 aescribed as follows : [here set out the description of it.] 
 
 Note to No. 76 and 78. If the lessor demises premises which do not touch a 
 public road, but are surrounded in whole by his own land, the law grants a way 
 of necessity through the lessor's land. The proper way, in such a case, is for the 
 lessor, at the time he makes the lease, to designate a way to the lessee. The same 
 principle applies when the piece of land is surrounded in part by the lands of the 
 grantor, and in part by lands of a third person. (Holmes v. Seeley, 19 Wend. 507. 
 N. y. Trust Co. V. Milnor, 1 Barb. Ch. 354.) 
 
 For an exception and reservation of a right of way, see Jackson v. Allen, 3 
 Cowen, 221. 
 
 LANDLORD AND TENANT. 
 
 No. 79. 
 LEASE WITH SPECIAL COVENANTS. 
 
 This indenture, made the day of , in the year of our Lord one 
 
 thousand eight hundred and , between , of the first part, and 
 
 , of the second part. Witnesseth : that the said part of the first part, for 
 
 and in consideration of the rents, covenants and agreements hereinafter mentioned, 
 
 reserved and contained, on the part and behalf of the said part of the second 
 
 P^^^ executors, administrators and assigns, to be paid, kept and per- 
 formed, ha granted, demised and to farm letten, and by these presents do 
 
 grant, demise and to farm let, unto the said part of the second part, 
 
 executors, administrators and assigns, all 
 
 To have and to hold the said above mentioned and described premises, with the 
 appurtenances, unto the said part. ... of the second part, executors, ad- 
 ministrators and assigns, from the day of , one thousand eight 
 
 hundred and , for and during, and until the full end and term of 
 
 thence next ensuing, and fully to be complete and ended, yielding and paying 
 
 therefor unto the said part. ... of the first part, heirs or assigns, yearly" 
 
 and every year during the said term hereby granted, the yearly rent or sum of 
 
 lawful money of the United States of America, in equal yearly 
 
 payments, to wit: on the first day of , in each and every of the said years. 
 
 Provided always, nevertheless, that if the yearly rent aboved reserved, or any part 
 thereof, shall be behind or unpaid on any day of payment whereon the same ought 
 to be paid as aforesaid; or if default shall be made'in any of the covenants herein 
 
 contained, on the part and behalf of the said part. ... of tiie second part, 
 
 executors, administrators and assigns, to be paid, kept and performed,' then and
 
 620 APPENDIX OF FORMS. 
 
 from thenceforth it shall and may be lawful for the said part. ... of the first part, 
 
 or assigns, into and upon the said demised premises, and every part 
 
 thereof, wholly to re-enter and remove all persons therefrom, and the same to have 
 
 again, re-possess and enjoy, as in their first and former estate, any thing 
 
 hereinbefore contained to the contrary thereof in anywise notwithstanding. And 
 the said part. . . . of the second part, for heirs, executors and administra- 
 tors, do covenant and agree to and with the said part of the first part, 
 
 heirs and assigns, by these presents, that the said part. ... of the second 
 
 part, executors, administrators or assigns, shall and will yearly and every 
 
 year during the said term hereby granted, well and truly pay, or cause to be paid, 
 
 unto the said part .... of the first part, heirs or assigns, the said yearly 
 
 rent above reserved, on the days and in manner limited and prescribed as aforesaid, 
 for the payment thereof, without any deduction, fraud or delay, according to the 
 
 true intent and meaning of these presents. And also, that will not, at 
 
 any time during the tfirm hereby granted, use or suffer to be used, the said prem- 
 ises or any part thereof, for any business or purpose other than that hereinbefore 
 mentioned, without the consent in writing of the said part. ... of the first part, 
 
 heirs or assigns, first had and obtained ; also, that will not let or 
 
 underlet the said premises or any part thereof, nor assign these presents without 
 the like written consent. 
 
 And also, that if the yearly rent above reserved, or any part thereof, shall be 
 behind or unpaid on any day whereon the same ought to be paid as aforesaid, or 
 if default shall be made in any or either of the covenants or agreements herein con- 
 tained on their part, then or in either of such cases it shall and may be lawful for 
 the said part. ... of the first part, heirs or assigns, to re-enter said de- 
 mised premises, without process of law, using all necessary force therefor without 
 hability to prosecution, and may thereupon, as the agent or attorney of the parties 
 of the second part, their executors, administrators or assigns, hereby for that pur- 
 pose irrevocably constituted and appointed, rent the same, applying the avails first 
 to the payment of the expenses of re-entry, and then to the payment of the rent 
 and other moneys due by these presents, and the balance, if any, to pay over to 
 the said part .... of the second part, executors, administrators or as- 
 signs ; and also, that on and after the day of next, previous to 
 
 the expiration of the term hereby granted, shall and will permit a bill or 
 
 notice to be put up on the said premises, and there remain ; and shall and will at 
 all reasonable times in the day, freely permit persons to see and examine the said 
 premises, in order to the selling or renting of the same, imtil the same be sold or 
 rented. 
 
 And it is hereby further covenanted and agreed, by and between the said par- 
 ties, that the said party of the first part shall, during the said term, use and em- 
 ploy on the said demised premises, all the dung and compost made on the same 
 premises, and carry it out and spread it on the land in a good husbandlike 
 manner, on such parts of the said premises where it is most needed ; and after the 
 
 expiration of the said term, and until the day of , it shall be 
 
 lawful for the said party of the second part, his executors, administrators and 
 assigns, shall continue to hold and enjoy such arable land on the said premises as 
 is sowed to winter crops of wheat or rye, for the purpose of having the going off 
 crop of wheat or rye therefrom ; and the said party of the second part may use
 
 APPENDIX OF FORMS. 621 
 
 such part of the barn on the said premises as may be necessary to secure and thrash 
 out said crops, [or such other agreement with respect to the outgoing crop as shaU 
 be made, but be sure and provide for it] 
 
 And that on the last day of the said term, or other sooner determination of the 
 
 estate hereby granted, the said part. . . .of the second part, executors, 
 
 administrators or assigns, shall and will peaceably and quietly leave, surrender and 
 
 yield up unto the said part .... of the first part, heirs or assigns, all and 
 
 singular the said demised premises. 
 
 And the said part. ... of the first part, for heirs, executors and ad- 
 ministrators, do. . . . covenant and agree to and with the said part. ... of the sec- 
 ond part, executors, administrators and assigns, by these presents, that 
 
 the said part. ... of the second part, executors, administrators or assigns, 
 
 paying the said yearly rent above reserved, and performing the covenants and 
 
 agreements aforesaid on their part, the said part. . . . of the second part, 
 
 executors, administrators and assigns, shall and may at all times durmg 
 
 the said term hereby granted, peaceably and quietly have, hold and enjoy the said 
 demised premises, without any manner of let, suit, trouble or hinderance of or from 
 
 the said part. ... of the first part, heirs or assigns, or any other person 
 
 or persons whomsoever. 
 
 [Here insert such other special covenants as may be agreed on. and insert a pro- 
 vision in case of the buildings being destroyed by fire, or the elements.] 
 
 (See Covenants.) 
 
 In witness whereof, &c. 
 
 Notes (1 ) Previous to 1846 it was usual in leases to reserve a right of re-entry 
 to the landlord, in case no sufficient distress could be found on the premises to sat- 
 isfy the rent due. The act of 1846, p. 369, abolished distress for rent, and substi- 
 tuted a fifteen days' notice from the landlord, of his intention to re-enter, for proot 
 of a want of sufficient distress. In leases made since the abolishing of the remedy 
 by distress, the clause with respect to distress is omitted. (See Van Rensselaer v. 
 Snyder, 3 Kernan, 299; Williams v. Porter, 2 Barb. S. C. R. 316.) _ 
 
 (2 ) If the lease or grant be of agricultural land, and reserve a rent or service ot 
 any kind, it is void if it be for a longer period than twelve years. (Constitution, 
 
 (3 )'ln lieu of the remedy by distress, leases now frequently contain a chattel 
 mortgage of specified articles, as in No. 79. To be valid against creditors and sub- 
 sequent purchasers, it should be filed as required by law. (L. ot 1833, ch. 2<9, H, 
 
 2, 3. 3 R. S. 233, 5th ed.) • v , ^ •. • va 
 
 (4 ) A parol lease, for a term not exceeding one year, is valid ; and it is valid 
 though made to take efi^ect at a future day. (2 R. S. 134, § 6. Young v. Dake, 1 
 Seld. 463. Taggard v. Roosevelt, 2 Smith's Com. PI. R. 100, overruling Croswell 
 
 V. Crane, 7 Barb. 191.) • .r -x r xr 
 
 (5) Amercements for the occupation of lands or tenements in the city ot JNew 
 York which do not particularly specify the duration of such occupation, are deemed 
 valid 'until the 1st day of May next after the possession under the agreement and 
 the rent unless otherwise expressed, is payable at the usual quarter days. (L. ot 
 1820, p.' 178, § 4. 1 R. S. 744, § 1. 3 id. 34, 5th ed.) 
 
 (6 ) Gas fixtures and sitting stools, when placed by a tenant in a shop or store, 
 although fastened to the building, are not fixtures, as between the tenant and his 
 landlorii (Lawrence v. Kemp, 1 Duer, 363.) , ^ ^ r 
 
 (7 ) The landlord is in no case bound to repair unless by force ot an express 
 covenant or contract. (Howard v. Doolittle, 3 Duer, 464.) Hence the necessity 
 '• for providing for all contingencies by appropriate covenants. _ _ 
 
 The lease should contain a provision in relation to fixtures, if the parties wish to 
 have a rule different from that established by law.
 
 622 APPENDIX OF FORMS. 
 
 No. 80. 
 
 A SHORTER FORM OF A LEASE, CONTAINING A CHATTEL MORTGAGE AS SE- 
 CURITY FOR THE RENT. 
 
 A lease, made and executed between , of the first part, and , 
 
 of the second part, the day of , in tlie year of our Lord one 
 
 thousand eight hundred and h 
 
 In consideration of the rents and covenants hereinafter expressed, the said party 
 of the first part ha. . . . demised and leased, and do. . . . hereby demise and lease to 
 the said party of the second part, the following premises, viz : [here in- 
 sert a description of the premises,] with the privileges and appurtenances, for and 
 
 during the term of , from the , which term will end 
 
 And the said party of the second part, covenant. . that . .he. . will pay to the 
 party of the first part, for the use of said premises, rent of dol- 
 lars, to be paid 
 
 And it is hereby agreed, that the said party of the first part shall have a lien as 
 security for the rent aforesaid upon the following goods and chattels, to wit: [here 
 insert the property intended to be mortgaged,] and also upon all the goods, wares, 
 chattels, implements, fixtures, tools and other personal property which are or may 
 be put on the said demised premises, and such lien may be enforced on the non- 
 payment of any the rent aforesaid, by the taking and sale of such property in the 
 same manner as in cases of chattel mortgage on default thereof; said sale to be 
 made upon six days' notice, posted upon the demised premises, and served upon 
 the party of the second part, or left at place of residence. 
 
 And provided said party of the second part shall fail to pay said rent, or any 
 part thereof, when it becomes due, it is agreed that said party of the first part may 
 sue for the same, or re-enter said premises, or resort to any legal remedy. 
 
 The party of the part agree . . to pay all taxes to be assessed 
 
 on said premises during said term. [Here insert such covenants as are agreed 
 upon.] 
 
 The party of the second part covenants that at the expiration of said term, he 
 will surrender up said premises to the party of the first part, in as good conditiou 
 as now, necessary wear and damage by the elements excepted. 
 
 Witness the hands and seals of the said parties the day and year first above 
 written. 
 
 (See notes under No. 79.) 
 
 No. 81. 
 A SHORT FORM OP A TENANT'S AGREEMENT, WITH THE CORRESPONDING 
 ONE OF THE LANDLORD, USED IN NEW YORK, CONTAINING THE CROTON 
 WATER, AND FIRE CLAUSE, AND VARIOUS OTHER COVENANTS— ALSO THE 
 AGREEMENT OF THE SURETY FOR THE TENANT. 
 
 landlord's agreement. 
 
 This is to certify that have let and rented unto, [here insert the name 
 
 of the tenant and a description of the premises rented,] for the term of 
 
 from the day of , 18. ., at the rent of dol- 
 lars, payable, [here insert the terms of payment.]
 
 APPENDIX OP FORMS. 623 
 
 The teuant. . promise. . to make punctual payment of the rent in manner afore* 
 said, and to quit and surrender the premises, at the expiration of said term, in as 
 good state and condition as reasonable use and wear thereof will permit, damages 
 by the elements excepted, and engage . . not to let or underlet the whole or any part 
 of the said premises, without the written consent of the landlord, under the penalty 
 of forfeiture and damages ; and also not to use or oecupy the said premises for any 
 business deemed extra hazardous, on account of fire, without the hke consent, un- 
 der the like penalty. 
 
 And also to pay the regular annual rent or charge, which is or may be assessed 
 or imposed according to law, upon the said premises, for the Croton water ; on or 
 before the first day of August in each year during the term, and if not so paid, the 
 same to be added to the quarter's rent then due. 
 
 And the said tenant also agrees to permit the landlord or agent, to 
 
 show the said premises to persons wishing to hire or purchase, and on and after 
 the first day of February next preceding the expiration of the term, to place the 
 usual notice of " to let" or " for sale," upon the walls or doors of said premises, and 
 remain thereon without hinderance or molestation. And also that if the said prem- 
 ises, or any part thereof, shall become vacant during the said term, the said land- 
 lord or representative may re-enter the same, either by force or otherwise, 
 
 without being liable to any prosecution therefor ; and re-let the said premises as the 
 agent of the said tenant, and receive the rent thereof, applying the same, first to 
 
 the payment of such expense as may be put to in re-entering, and then 
 
 to the payment of the rent due by these presents; and the balance (if any) to be 
 paid over to the said tenant, who shall remain Hable for any deficiency. 
 
 And it is further agreed between the parties to these presents, that in case the 
 premises above mentioned shall be partially damaged by fire, the same shall be re- 
 paired as speedily as possible at the expense of the said landlord ; that in case the 
 damage shall be so extensive as to render the premises untenantable, the rent shall 
 cease until such time as the same shall be put in complete repair; but in case of 
 the total destruction of the premises by fire or otherwise, the rent shall be paid up 
 to the time of such destruction, and then and fi-om thenceforth, this agreement shall, 
 at the option of the said tenant, cease and come to an end. 
 
 [Here insert any other covenants which may be desired.] 
 
 Given under hand. . and seal. . the day of 18. .. 
 
 tenant's agreement. 
 
 This is to certify that have hired and taken from, [here insert the aame 
 
 of the landlord and the description of the premises,] for the term of from 
 
 *^« <iay of , 18. ., at the rent of dollars, 
 
 P^y^^'® ^^^ hereby promise. . to make punctual payment 
 
 of the rent in manner aforesaid, and to quit and surrender the premises at the ex- 
 piration of the said term, in as good state and condition as reasonable use and wear 
 thereof will permit, damages by the elements excepted, and engage not to let or 
 underlet the whole or any part of the said premises, without the written consent 
 of the landlord, under the penalty of forfeiture and damages ; and also not tc use 
 or occupy the said premises for any business deemed extra hazardous, on account 
 of fixe, without the like consent, under the like penalty. 
 
 And also to pay the regular annual rent or charge, which is or may be assessed
 
 624 APPENDIX OF FORMS. 
 
 or imposed according to law, upon the said premises, for the Croton water ; on or 
 before the first day of August, in each year during the term, and if not so paid, the 
 same shall be added to the quarter's rent then due. 
 
 And also agree to permit the landlord or agent, to show the 
 
 8aid premises to persons wishing to hire or purchase, and on and after the first day 
 of February next preceding the expiration of the term, to place the usual notice 
 gf "to let" or "for sale," upon the walls or doors of said premises, and remain 
 thereon without hinderance or molestation. And also, that if the said premises or 
 any part thereof, shall become vacant during the said term, the said landlord, or 
 
 representatives may re-enter the same, either by force or otherwise, 
 
 without being liable to any prosecution therefor ; and re-let the said premises as 
 the agent of the said tenant, and receive the rent thereof, applying the same, first 
 
 to the payment of such expenses as may be put to in re-entering, and 
 
 then to the payment of tlie rent due by these presents; and the balance (if any) 
 to be paid over to the tenant, who shall remain liable for any deficiency. 
 
 And it is further agreed between the parties to these presents, that in case the 
 premises above mentioned shall be partially damaged by fire, the same shall be 
 repaired as speedily as possible, at the expense of the said landlord ; that in case 
 the damage shall be so extensive as to render the premises untenantable, the rent 
 shall cease until such time as the same shall be put in complete repair ; but in case 
 of the total destruction of the premises by fire or otherwise, the rent shall be paid 
 up to the time of such destruction, and then and from thenceforth this agreement 
 shall, at the option of the said tenant, cease and come to an end. 
 
 [Here insert the same covenant as is contained in the counterpart.] 
 
 Given under my hand and seal &c. 
 
 In consideration of the letting of the premises above described, and for the sum 
 
 of one dollar hereby become surety for the punctual payment of the 
 
 rent, and performance of the covenants, in the above written agreement mentioned, 
 
 to be paid and performed by , and if any default shall be made therein, 
 
 hereby promise and agree to pay unto , such sum or sums of 
 
 money as will be sufficient to make up such deficiency, and fially satisfy the con- 
 ditions of the said agreement, without requiring any notice of non-payment, or 
 proof of demand being made. 
 
 Given under ........ hand. . and seal. . the day of , 18. .. 
 
 (See notes under No. 79.) 
 
 No. 82. 
 
 A SHORT FORM OF A LANDLORD'S AGREEMENT FOR A LEASE OF A SINGLE 
 
 ROOM, IN A TENEMENT OF THE LANDLORD. 
 
 This is to certify that I have this day let and rented unto E. F., room No. 3, on 
 
 the second floor of my tenement or house known as No in street, 
 
 in the city of [or village of] , with the privileges of using the front and 
 
 rear stairs for ingress and egress, and of using the privy in the rear, for one year, 
 
 to commence on the day of , at the yearly rent of dollars, 
 
 payable quarterly. 
 
 Witness my hand and seal this day of 18 
 
 In presence of A. B. [l. s.] 
 
 (See notes under No. 790
 
 APPENDIX OF FORMS. 
 
 625 
 
 TENANT'S AGREEMENT ON ACCEPTING THE SAME. 
 This is to certify, that I have hired and taken from A. B. room No. 3, on the 
 
 second floor of his tenement or house known as No , in street in the 
 
 city of [or village of ] , with the appurtenances, with the privilege of 
 
 using the front and rear stairs for ingress and egress, and of using the privy in the 
 
 rear, for the term of one year, to commence the day of , at the yearly 
 
 ^^°* °^ payable quarterly. And I do hereby covenant and promise to 
 
 make punctual payment of the rent in manner aforesaid, except the premises be- 
 come untenantable from fire or any other cause, when the rent is to cease. And 
 I do further promise to quit and surrender the premises at the expiration of the 
 term in as good state and condition as reasonable use and wear thereof will permit, 
 damage by the elements excepted, t 
 
 Given under my hand sad seal the day of 186 . .. 
 
 In presence of jj_ jp j-^^^ g j 
 
 Note. If other covenants are desired, they can be inserted at the t. the form 
 of the most usual of which will be found in the preceding forms. 
 
 MAREIAGE SETTLEMENTS. 
 
 No. 83. 
 ANTE-NUPTIAL SETTLEMENT OF PERSONAL PROPERTY. 
 
 This indenture of three parts, made and concluded this day of 
 
 1860, between Jane Doe, of the town of , in the county of and 
 
 state of New York, of the first part, John Doe, of the same place, of the second 
 
 part, and James Jackson, of the town of , in the county of , and 
 
 state aforesaid, of the third part, witnesseth : That whereas, a marriage is intend- 
 ed, by the permission of God, to be shortly had and solemnized between the said 
 parties of the first and third part, and the said party of the first part is possessed of 
 certain personal estate, to wit : the sum of five thousand dollars, secured by the bond 
 and mortgage of one L. M., [here describe it.] Now therefore, in consideration 
 of the premises, and of one dollar paid by the said John Doe to the said party of 
 the first part, the receipt whereof is hereby confessed and acknowledged, the said 
 party of the first part doth hereby assign, transfer and set over to the said party 
 of the second part the aforesaid bond and mortgage, and the moneys due and to 
 become due thereon, to hold by him upon the special trusts, and the uses and pur- 
 poses hereinafter expressed, to wit : 
 
 First That until the solemnization of the said marriage, the said party of the 
 second part shaU pay over to the said party of the first part, for her own use, all 
 the interest that shall arise and be due on the said bond and mortgage, and such 
 of the principal as shall be paid to him, and fi-om any other estate which may be 
 substituted therefor, as is hereinafter provided. 
 
 Will.— 40
 
 626 ' APPENDIX OF FORMS. 
 
 Second. That from and after the solemnization of the said marriage, and during 
 the coverture of the said party of the first part, the said party of the second part 
 shall receive and collect the interest due and to become due on the said bond and 
 mortgage, and such installments of the principal as shall become payable and be 
 paid, and aft«r deducting all individual expenses, shall pay over the same, or so 
 much thereof as she shall not direct to be invested for accumulation, to the said 
 party of the first part, upon her sole and separate receipt therefor, and free from 
 the control or interference of her husband, or any other person whomsoever. 
 
 Third. Should the said party of the first part depart this life after the solemni- 
 zation of the said marriage, and during the life of her said husband, the party of 
 the third pait, the said bond and mortgage and any other money or effects groov- 
 ing out of this trust, shall be transferred and set over by the said trustee, the party 
 of the second part, to such person or persons as she, the said party of the first 
 part, by an instrument in writing, in the nature of a last will and testament, duly 
 executed as wills of personal estate are by law required to be executed, shall order 
 and appoint to receive the same ; and in default of making such appointment the 
 same shall be transferred and paid to her husband, the said party of the third part ; 
 and in case of his decease before the said property shall be actually transferred and 
 paid over to him, then to such person or persons as would be the legal representa- 
 tives of the said party of the first part, by the statute for the distribution of the 
 estates of intestates. 
 
 Fourth. That in case of the decease of the said party of the third part (the hus- 
 band) during the lifetime of the said party of the first part, all the property then 
 held in trust under this indenture shall be transferred and conveyed to the said 
 party of the first part ; and until so transferred, the whole income thereof shall be 
 paid to her for her own use. 
 
 Fifth. That the said party of the second part, the trustee, shall have power at 
 the request of the said party of the first part, expressed in writing, subscribed by 
 her or by her authority, to sell and assign the said bond and mortgage ; or to re- 
 ceive any portion of the principal and invest the same in other securities, according 
 to such written direction of the said party of the first part ; and the property so 
 purchased, and the investment so made, shall be had and held by the trustee upon 
 the same trusts, and for the same purposes as aforesaid. 
 
 Siicth. That in case of the termination of the authority of the said trustee by 
 his death, resignation or removal, the whole trust fund held by him shall be deliv- 
 ered over to such person or persons as may be appointed, in writing, by the party 
 of the first part, to be the trustee under this indenture, or by any court having ju- 
 risdiction thereof; and the receipt of such new trustee, for the trust property, shall 
 be a sufficient discharge of the said party of the second part, his executors and ad- 
 ministrators ; and in like manner other new trustees may be appointed from time 
 to time, as occasion may require. 
 
 And the said party of the second part hereby accepts the said bond and mort- 
 gage, and engages to hold and manage the same upon the trusts herein mentioned. 
 And the said party of the third part doth hereby signify his assent to the pro- 
 visions of this indenture, and hereby covenants with the party of the second part, 
 and his successors in the said trust, to permit the said party of the first part, after 
 the solemnization of the said marriage, to receive the aforesaid interest and princi- 
 pal of the said bond and mortgage to her sole and separate use, and freel to disposey
 
 APPENDIX OF FORMS. g27 
 
 of the trust estate by her will, or testamentary appointment at her death, and not 
 to interfere with the said trust estate, otherwise than in conformity to the provis- 
 ions of this indenture. 
 
 In witness whereof, the said parties have hereto set their hands and seals, the 
 day and year above written. 
 
 Sealed and dehvered in j^ne Doe. [l. s J 
 
 presence of John Doe. [l. s.] 
 
 James Jackson, [l. s.] 
 [Acknowledgment] 
 
 Notes. (1.) As upon the death of a sole surviving trustee of an express trust 
 the trust estate does not descend to his heirs, or pass to his personal representa- 
 ^ves It seems improper m conveying the trust property to the trustee, to add 
 words of hmitation. (I R. S. 730, § 68.) ^ ^ j > «■" "■^^^ 
 
 (2.) There should be triplicates of the above instrument, executed bv all the 
 parties, one of which should be kept by each. As a matter of prudence, it should 
 be recorded by the clerk of the county among miscellaneous records. 
 
 No. 84. 
 ANTE-NUPTIAL SETTLEMENT OF REAL ESTATE BELONGING TO THE INTEND 
 ED WIFE, RESERVING A GENERAL POWER OF DISPOSITION IN HER THE 
 ENTIRE LEGAL ESTATE BEING VESTED IN THE TRUSTEES. 
 
 This indenture of three parts, made and concluded this day of . 
 
 186. ., between H. A. W., of the town of, &c., of the first part,' [the'intended'hus- 
 band,] L. A., of; &c., [the intended wife,] of the second part, and T. L., of, &c., of 
 the third part, [the trustee.] Witnesseth: That whereas, a marriage is intended 
 by the permission of God, to be shortly had and solemnized between the said par- 
 ties of the first and second part, and the said party of the second part is seised and 
 possessed of a large estate, situate and being, &c., and it is agreed by and between 
 her and the said party of the first part, that the said estate should be settled upon 
 the trusts and for the purposes hereinafter declared. Now, therefore, in consider- 
 ation of the said intended marriage, and of the sum of one dollar to the said party 
 of the second part paid, by the said party of the third part, the receipt whereof is 
 hereby confessed and acknowledged, the said party of the second part hath granted, 
 bargained and sold, and by these presents doth grant, bargain and sell unto the 
 said party of the third part, his successors and assigns, all that, [here describe the 
 property,] to have and to hold the said tenements and hereditaments, with their 
 appurtenances, unto the said party of the third part, his successors and assigns, to 
 such uses and purposes as are hereinafter mentioned, to wit: For the use and ben- 
 efit of the said party of the second part, until her said intended marriage shall take 
 place, and from and after the solemnization thereof, then upon trust, from time to 
 time to apply to the use of the said party of the second part, all the interest divi- 
 dends and annual produce thereof during the joint lives of the said parties of the 
 first and second part, to her own proper use and benefit, and upon her own proper 
 receipt for the same, notwithstanding her coverture, to the intent that the same 
 may not be at the disposal or under the control of the said party of the first part 
 or in any manner subject to his debts and engagements ; and from and immediately 
 after the decea..e of the said party of the first part, [the husband,] in case the said 
 party of the second part, [the wife,] shall survive him, then upon trust for the use
 
 628 APPENDIX OF FORMS. 
 
 and benefit of the said party of the second part, her executors, administrators and 
 assigns, and upon trust in such case to grant and convey the trust estate and every 
 part thereof to the said party of the second part absolutely, or to grant and convey 
 the same to such person or persons as she, by any writing to be by her duly ex- 
 ecuted, may limit, direct and appoint. But in case the said party of the first part 
 shall survive the said party of the second part, then upon trust, from and imme- 
 diately after her decease, to apply to the use of the said party of the first part, all 
 the interest, dividends and annual produce thereof, from time to time, during his 
 natural life, to and for his own use and benefit ; and on the decease of the said 
 party of the first part, to pay and divide the capital or principal of the said trust 
 fund, and to grant and convey all her real estate to and among the lawful children 
 of the said party of the second part, and their issue, in such proportions, shares, 
 manner and form as she, by any writing under her hand subscribed in the presence 
 of two or more witnesses, shall direct and appoint; and for want of such appoint- 
 ment, to and among the said children of the said party of the second part, and the 
 lawful issue of such of them as may be deceased, according to the rules of descent 
 and of distribution in cases of intestacy. But if there be no issue of the said party 
 of the second part then surviving, then, upon trust, to pay and dispose of the said 
 capital or principal, and grant and convey the said real estate according to the di- 
 rection and appointment of the said party of the second part, and for want of such 
 appointment, to and among her then surviving nephews and nieces, children of her 
 sisters and the lawful issue of such of them as may be deceased, according to the 
 like rule of descent and distribution, t 
 In witness whereof, &c., as in No. 83. 
 
 Note. The above is taken from the case of Wright v. Talmadge, (15 N. T. Rep.) 
 308 and 309, which was held by the court of appeals to be a valid marriage settle- 
 ment under the revised statutes. See remarks of Denio, J., on the same. 
 
 No. 85. 
 A POWER TO TRUSTEES TO SELL AND REINVEST THE SAME. 
 Add, at the + in Xo. 84, as follows: And the said party of the second part doth 
 hereby grant and agree that the said party of the third part, upon the written re- 
 quest of her the said party of the second part, may grant and convey the whole or 
 any designated portion of the said estate upon such terms as she shall direct, and 
 receive the consideration money therefor, and invest the same for the like uses and 
 purposes hereinbefore declared with respect to the original trust. 
 
 No. 86. 
 CLAUSE IN WHICH THE REAL ESTATE COMES FROM THE HUSBAND, AND IS 
 INTENDED, AFTER HIS DEATH, TO GO TO THE WIFE FOR A JOINTURE. 
 To the use of the said party of the first part, [the intended husband,] for and 
 during the term of his natural life, without impeachment of waste, and from and 
 after his decease, then to the use and behoof of the said party of the second part 
 [the intended wife] for and during the term of her natural Ufe, in name of her 
 jointure, and in full recompense and satisfaction of her dower, which she the said 
 party of the second part should or ought to have in or out of the lands, tenements
 
 APPENDIX OF FORMS. 629 
 
 or hereditaments of the said party of the first part, whereof the said party of the 
 first part hath, or hereafter shaU have, during the coverture between him and her, 
 any estate of inheritance. 
 
 Note. 3 Newnam's Conveyancer, 230. 1 R. S. 741, §§ 9, 10, 11. A pecunmry 
 provision for the benefit of the intended wife, in heu of dower, is equally effective, 
 if assented to by her. 
 
 No. 87. 
 
 ANTE-NUPTIAL SETTLEMENT OF THE REAL ESTATE OF THE INTENDED WIFE 
 TO THE USE OF HERSELF AND HER INTENDED HUSBAND FOR LIFE, WITH 
 CONTINGENT REMAINDERS TO THEIR ISSUE, WHICH OPEN TO LET IN AF- 
 TER-BORN CHILDREN. 
 
 This indenture, made the day of 1860, between M. P., of &c. of 
 
 the first part, [the intended wife,] R. M., [the intended husband,] of &c., of the 
 second part, and I. P. and B. R., of &c. [the trustees,] of the third part, witnesseth: 
 That in consideration of a marriage intended to be had and solemnized between 
 the said parties of the first and second part, and the settlement hereafter made by 
 the said party of the second part on the said party of the first part, and for and in 
 consideration of the sura of one dollar by the said parties of the third part, at or 
 before the ensealing and delivery of these presents, well and truly paid, the receipt 
 whereof is hereby acknowledged ; and for divers other good causes and considera- 
 tions her the said party of the first part thereunto moving, she the said party of 
 the first part hath granted, bargained and sold, and by these presents doth grant, 
 bargain and sell unto the said parties of the third part, [the trustees,] and to their 
 heirs, all and singular, [here describe the estate t^onveyed.] 
 
 To have and to hold the above granted and bargained premises, and every part 
 thereof, unto the said parties of the third part, and their heirs, to and for the sev- 
 eral uses, intents and purposes hereinafter declared, expressed, limited and appoint- 
 ed, and to and for no other use, intent and purpose whatsoever ; that is to say, to 
 and for the use and behoof of the party of the first part, until the solemnization 
 of the intended marriage, and to the use and behoof of the said parties of the first 
 and second part; and the survivor of them, for and during the term of their natural 
 lives, without impeachment of waste; and from and after the determination of that 
 estate, then to the use and behoof of such child or children as shall or may be 
 procreated between them, and to his, her or their heirs and assigns forever : but 
 in case the said parties of the first and second part shall have no child or children 
 begotten between them, or that such child or children shall happen to die during 
 the hfetime of the said parties of the first and second part, and the said party of 
 the first part should survive the said party of the second part without issue, then 
 to the use and behoof of her the said party of the first part, and her heirs and as- 
 signs forever: and in case the said party of the second part should survive the said 
 party of the first part, without any issue by her, or that such issue is then dead 
 without leaving issue, then, after the decease of the said party of the second part, 
 to the only use and behoof of such person or persons, and in such manner and 
 form, as she, the said party of the first part, shall at any time during the said in- 
 tended marriage, devise the same by her last will and testament; which last will 
 and testament, for that purpose, it is hereby agreed by all the parties to these
 
 630 APPENDIX OF FORMS. 
 
 presents, that it shall be lawful for her, at any time during the said marriage, to 
 make, publish and declare, the said marriage or anything herein contained to the 
 contrary thereof in anywise notwithstanding: provided nevertheless, and it is the 
 true intent and meaning of the parties to these presents, that it shall and may be 
 lawful to and for the said parties of the first and second part, jointly at any time 
 or times during the said marriage, to sell and dispose of any part of the said sev- 
 eral lots or parcels of land, or of any other her lands, tenements, hereditaments 
 
 and real estate to the value of ; and in case the said sum of ba 
 
 not raised by such sale or sales, during their joint lives, and they have issue be- 
 tween them, that then it shall be lawful for the survivor of them to raise the said 
 Bum, by the sale of any part of the said lands, or such deficiency thereof as shall 
 not then have been already raised thereout, so as to make up the said full sum of 
 anything hereinbefore contained to the contrary thereof in anywise not- 
 withstanding. 
 
 [Here insert the settlement of the husband upon the wife as agreed.] 
 
 In witness whereof, &c. 
 
 Sealed and delivered in 
 presence of 
 
 The above is taken, with a slight variation, from the marriage settlement be- 
 tween Mary PhiUipse and Roger Morris, made in 1758, which was held to be vahd 
 by all the courts. (4 Peters' U. S. Rep. 1-7.) See remarks of Story, J. thereon at 
 page 90 et seq. 
 
 No. 88. 
 ANTE-NUPTIAL AGREEMENT, WITHOUT THE INTERVENTION OF TRUSTEES, 
 
 RESERVING A POWER OF DISPOSITION BY WILL AND OTHERWISE IN THE 
 
 WIFE, DURING COVERTURE. 
 
 This indenture, made the day of , 186. ., between John 
 
 Doe, of, &c., of the first part, and Ehzabeth Jackson, of, &c., of the second part. 
 Whereas, a marriage is intended to be shortly had and solemnized between the 
 said parties, and whereas the said parties are respectively seised and possessed of a 
 very considerable real and personal estate, and it has been mutually agreed by and 
 between the said parties that their respective property, both real and personal, 
 which they shall have and be entitled to at the time of the consummation of their 
 said intended marriage, shall be and remain after the said marriage as it was before, 
 the individual and separate property of the party to whom it belonged, at the time 
 of the said marriage. Now, therefore, this indenture witnesseth, that the said 
 parties, in consideration of the said intended marriage, and of the premises here- 
 inafter mentioned, have granted, covenanted and agreed to and with each other 
 and their respective heirs, executors and administrators, and by these presents do 
 grant, covenant and agree to and with each other, their respective heirs, executors 
 and administrators, that the respective property of each of the said parties, both 
 real and personal, of every kind, character and description, which either of the said 
 parties shall have or be entitled to at the time of the said intended marriage, shall 
 be and remain after the said marriage, as it was before, the individual and separate 
 property of that party to whom it belonged at the time of the marriage, and not
 
 APPENDIX OP FORMS. 631 
 
 m any manner to be affected thereby ; and that all the property, both real and 
 personal, acquired by either party, by gift, devise, legacy, by his or her earnings, 
 or by any other means whatever, after the said marriage, shall be and remain the 
 individual and separate estate and property of the party so acquiring it, in the same 
 manner and to the same extent as if such marriage had riot taken place ; that the 
 said party of the first part shall not be entitled to an estate by the curtesy in any 
 real estate of which the said party of the second part is now or may hereafter be 
 seised ; and the said party of the second part, if she survives the said party of the 
 first part, shall not be entitled to be endowed in any of the estate of which he may 
 be seised at any time during the coverture. 
 
 And the Said parties do further mutually agree that they shall respectively have 
 the right and liberty of disposing of their individual and separate property, both 
 real and personal, and to purchase other property at their discretion, without the 
 assent of the other, as fully as they might do if sole and unmarried ; and that neither 
 party shall, by virtue of the said marriage, acquire any right or title in the property 
 or estate, or earnings of the other. And it is further agreed that the said party of 
 the second part shall, at all times during the said coverture, have full power effect- 
 ually to dispose of according to her pleasure, by will or by an instrument in writing 
 in the nature of a will, all such real or personal estate as she may be seised or pos- 
 sessed of in her own right, or in conjunction with others, in the same way as if 
 she was a feme sole. 
 
 And it is fiirther mutually agreed by and between the said parties, that if either 
 of the said parties dies intestate, the whole real and personal property of the party 
 80 dying shall pass to the survivor, his or her heirs and assigns, [or shall descend to 
 the heirs and next of kin of such party, according to tht law of descents, and for the 
 distribution of estates in cases of intestacy.] 
 
 In witness whereof, the said parties have hereto set their hands and seals the 
 day and year above written. 
 
 Sealed and delivered in Johu Doe. [l. s.] 
 
 presence of Elizabeth Jackson, [l. s.] 
 
 It should be acknowledged and recorded. 
 
 The validity of such a settlement was declared, by Chancellor Kent, in Bradish 
 V. Gibbs, (3 John. Ch. R. 623,) and by the supreme court, in Strong v. Skinner, (4 
 Barb. 546, 554. L. of 1849, ch. 375, § 3.) " Contracts, made between persons in 
 contemplation of marriage, shall remaim in full force after such marriage takes 
 place." (Id.) L. 1860, ch. 90, p. 157. 
 
 The foregoing ante-nuptial agreement gives to the woman, after marriage, greater 
 power of disposition than the act of 1860. 
 
 It is generally deemed advisable to vest the estate in a trustee, in the case of 
 marriage settlements ; but it is not indispensable. (Blanchard v. Blood, 2 Barb. S. 
 C. R. 354; 2 Story's Eq. Jur. 607, § 1380; 2 Kent's Com. 162.) 
 
 An executory contract of a wife, made under such a power as is given by this 
 settlement, can be enforced against the wife. (Van Allen v. Humphrey, 15 Bar- 
 bour, 555.) 
 
 For form of an ante-nuptial settlement, by French law^ see Le Breton v. Miles, 
 (8 Paige, 262,) et seq. where one is set out at lengths
 
 632 APPENDIX OF FORMS. 
 
 No. 89. 
 POST-NUPTIAL SETTLEMENT OP THE ESTATE OF THE WIFE, CONVEYED BY 
 
 HER AND HER HUSBAND TO A TRUSTEE, FOR CERTAIN TRUSTS IN WHICH 
 
 HER INTEREST IS INALIENABLE. 
 
 The usual deed from the husband and wife to H. F. B., the trustee, of certain 
 real estate of which the wife is seised in fee, [describing it,] and then proceed : 
 
 " To and for the several uses, intents and purposes, and upon the trusts herein- 
 after mentioned and expressed concerning the same ; that is to say, in trust, in the 
 first place, to pay out of the rents, income and profits of the said premises, the in- 
 terest accruing and to accrue upon the aforesaid mortgages and other incumbrances ; 
 in the next place, to pay thereout all necessary taxes and assessments upon the said 
 premises ; and in the next place,^ to pay thereout all necessary expenses incurred in 
 the needful repairs and insurance of the buildings erected on the said premises, and 
 after the payment of the said interest and assessments, and expenses thereto, to 
 pay the remainder of the said rents, income, profits and proceeds, to the said Ann 
 Maria, [the wife,] upon her own separate receipt, notwithstanding her coverture, 
 to the intent and purpose that the same, or any part thereof, may not be at the 
 disposal of, or subject to the control, debts, liabilities or engagements of the said 
 H. B., [the husband,] or of any future husband she may have, but at her sole and 
 separate use and disposal ; and upon this further trust, upon the decease of the said 
 Maria during her coverture with the said H. B., or any other future husband she 
 may marry, to appropriate the said proceeds, (after deducting the outgoings afore- 
 said,) and to apply and dispose of the same in such manner as the said Ann Maria, 
 [the wife,] shall, by her last will and testament duly executed, direct and appoint, 
 and in default of such appointment, then to apply the said proceeds towards the 
 maintenance and education of the child or children of them, the said H. B. and Ann 
 Maria, until they shall arrive at age or, if females, be married, if any such children 
 there be living at her decease ; and if no child or children shall be then living, then 
 to pay the same to the said H. B., [the husband,] during his hfe ; and it is hereby 
 declared and agreed by and between all the said parties to these presents, that the 
 said Ann Maria shall have power, during her coverture with the said H. B., or 
 ■with any other future husband she may marry, to devise the said pieces or parcels, 
 or lots, of ground and premises, by her last will and testament, in the same manner 
 as though she were a feme sole and unmarried ; and the said party hereto of the 
 second part, [the trustee,] is hereby empowered to use all necessary ways and 
 means for the recovery of the rents and profits of the said premises, and to reim- 
 burse himself all necessary expenses in the execution of the trust hereby reposed 
 in him ; and it is hereby further declared and agreed, that upon the death of the 
 said H. F. B., [the trustee,] the party of the second part, if the same should happen 
 before the decease of the said Ann Maria, she, the said Ann Maria, shall be and 
 is hereby empowered to appoint one or more trustees in the place and stead of the 
 said H. F. B., party hereto of the second part, and also shall be and hereby is em- 
 powered to appoint any new trustees in the place and stead of those, at any time 
 60 to be appointed, such newly appointed trustees to be invested with the same 
 powers, and to hold the same premises upon the same trust as hereinbefore set 
 fortL" 
 
 The above is taken from Noyes v. Blakeman, 3 Sandf. S. C. R. 532, et seq., which
 
 APPENDIX OF FORMS. 633 
 
 •was finally passed upon by the court of appeals, in 2 Seld. 567. See remarks of 
 the judges on the same, showing that the trust estate of the wife was inalienable, 
 under the r .^sed statutes. 
 
 (1 R. S. 729, § 60, 63.) 
 
 No. 90. 
 
 POWEi t I ATTORNEY TO CONVEY REAL ESTATE, WITH A POWER OF SUB- 
 STITUTION. 
 
 Know all men by these presents, that I, A. B., of , have made, consti- 
 tuted and appointed, and by these presents do make, constitute and appoint C. D.,' 
 
 of , . .' , my true and lawful attorney for me and in my name, place and stead> 
 
 to enter upon and take possession of all such lands, tenements, hereditaments and 
 real estate whereof I am seised or possessed, or entitled unto, in the state of New 
 York, or in which I have any interest ; and to grant, bargain and sell the same, or 
 any part or parcel thereof, for such sum or price, and on such terms as to him shall 
 seem proper ; and for me and in my name to make, execute and acknowledge, and 
 deliver good and sufficient deeds and conveyances for the same, either with or with- 
 out covenants and warranty ; and until the sale thereof, to let and demise the said 
 real estate, or any part thereof, for the best rent that can be procured for the same ; 
 and to ask, demand, collect, recover and receive all sums of money which shall be- 
 come due and owing to me by means of such bargain and sale, or lease and de- 
 mise; hereby giving and granting unto my said attorney full power and authority 
 to do and perform all and every act and thing whatever, requisite and necessary to 
 be done in and about the premises, as fiilly to all intents and purposes as I might 
 or could do if personally present, with full power of substitution and revocation, 
 hereby ratifying and confirming all that my said attorney or his substitute shall 
 lawfully do or cause to be done, by virtue hereof. 
 
 In witness whereof, I have hereunto set my hand and seal, the .... day of ... . 
 in the year 1860. 
 
 Sealed and delivered in A. B, [l. s.] 
 
 presence of 
 E. F. 
 
 Note. It should be acknowledged or proved, and recorded, as is required in the 
 case of deeds. 
 
 No. 91. 
 
 SUBSTITUTION OF AN ATTORNEY. 
 
 Know all men by these presents, that I, C. D., of , by virtue of the 
 
 power and authority to me given in and by the letter of attorney of A. B., of 
 
 which is hereto annexed, do substitute and appoint L. M., of , to do, per- 
 form and execute every act and thing which I might or could do, in, by and under 
 the same, as well for me, as being the true and lawful attorney and substitute of 
 the said A. B., as for the said A. B., hereby ratifying and confirming all the said
 
 634 APPENDIX OF FORMS. 
 
 attorney and substitute hereby made and appointed, shall do in the premises by 
 virtue hereof, and of the said letter of attorney. 
 
 In witness whereof, I have hereunto set my hand and seal, the .... day of . . . . 
 in the year 1860. 
 
 Sealed, &c. C. D. [l. s.] 
 
 To be acknowledged and recorded. 
 
 No. 92. 
 
 REVOCATION OF A POWER OF ATTORNEY. 
 
 • Know all men by these presents : That whereas I, A. B., of , in and by 
 
 my letter of attorney, bearing date the day of , 1860, did make, 
 
 constitute and appoint C. D., of &c. my true and lawful attorney, for me and in 
 my name to &c., [here copy the language of the letter of attorney, or state the 
 substance of it,] as by the said in part recited letter of attorney will more fully and 
 at large appear : Now know ye, that I, the said A. B., have revoked, counter- 
 manded, annulled and made void, and by these presents do revoke, countermand, 
 annul and make void the said letter of attorney, and all power and authority there- 
 by given, or intended to be given, to the said C. D. 
 
 In witness, &c. A. B. [l. s.] 
 
 Sealed and delivered, &c. 
 
 It should be acknowledged or proved, and recorded. It should be served on 
 the attorney, by delivering it to him. And notice should be given of the revoca- 
 tion by pubHcation in the newspapers, or otherwise. 
 
 "When a power of attorney forms a part of the security for a loan of money, as 
 for instance, the power of sale in a mortgage, it is irrevocable. 
 
 (See ante, page 267.) 
 
 No. 93. 
 
 POWER OF REVOCATION AND APPOINTMENT, IN MARRIAGE SETTLEMENT ; 
 AND OF APPOINTING A NEW TRUSTEE IN CASE OF DEATH. 
 
 And it is hereby covenanted and agreed by and between the parties to these 
 presents, that the parties of the second part [the intended husband who makes the 
 settlement] and third part [the trustees] shall be, and they are hereby authorized, 
 during the continuance of the trust, to lease and demise the granted premises for 
 such lawful term or terms, and at such rents and upon such covenants as to re- 
 newals, as to them shall seem proper ; and that they shall be and hereby are au- 
 thorized and empowered to grant, bargain, sell and convey in fee simple absolute, 
 at public or private sale, for cash or upon credit, or partly for cash and partly upon 
 credit, all or any part or parcel of the said trust or premises, or of any other prem- 
 ises in which the proceeds thereof may be reinvested, and to invest the proceeds 
 of such sale or sales in other real estate, or upon bonds and mortgages within the 
 state of New York, or in the public stocks of the United States or of the city of 
 New York, or in improving other parts of the said real estate, and to alter and
 
 APPENDIX OF FORMS. 635 
 
 change such investments from time to time as they may think proper ; and that 
 the rents, profits, interests, dividends and other income thereof, shall be held and 
 applied by the parties of the second and third part, upon the same trusts with the 
 like powers and upon the same conditions, covenants and agreements as herein ex- 
 pressed and declared. 
 
 And it is further agreed, that upon the death of either of the trustees, the survi- 
 vor or survivors may, with the consent in writing of the said party of the fourth 
 part, [the intended wife, the cestui que trust,] nominate and appoint another trustee 
 in his place, and thereupon the trust premises shall be held by the substituted trus- 
 tee and the survivors, with the same powers and upon the same conditions herein- 
 before expressed and declared. 
 
 Note. See Belmont v. O'Brien, 2 Kernan, 394, from which the above was taken 
 ■with some variations, and remarks on it by Judge Hand at page 404, in same case. 
 He says, the powers of charging, selling, exchanging, jointuring and leasing, usu- 
 ally inserted in marriage settlements, are in effect powers of revocation and ap- 
 pointment; and postpone, abridge or defeat, in a greater or less degree, the previ- 
 ous uses and estates, and appoint new uses in their stead. 
 
 No. 94. 
 
 POWER IN TRUST UNDER THE REVISED STATUTES, WHICH MAY BE CRE- 
 ATED EITHER BY DEED OR WILL. 
 
 " I give and devise all my property and estate, both real and personal, whereso- 
 ever the same may be, to S. G., of &c., in trust, nevertheless to answer the intent 
 and meaning of this will, viz : It is my will that the said S. G. shall, within a reas- 
 onable time after my decease, and within sufficient time to pay the legacies here- 
 inafter mentioned and bequeathed, sell, dispose of and convey all my estate, both real 
 and personal, at pubUc auction or private sale, as he may deem proper, and out of 
 the moneys arising fi-om such sale of my said real and personal estate, first, to pay 
 all my just debts, funeral charges and the expense of settling my estate." 
 
 Note. Germond v. Jones, 2 Hill, 570; remarks of Bronson, J. at page 574. 
 
 No. 95. 
 
 A POWER, AND NOT A TRUST, IN A WILL. 
 
 " I do authorize and empower my executors to exchange, sell and convey to and 
 
 with adjoining owners or others, such gores, strips or pieces of land as they may 
 
 deem advantageous to my estate, by straightening and equahzing boundary hues, 
 
 and to execute, deUver and receive sufficient deeds therefor." 
 
 (Tucker v. Tucker, 1 Seld. 410 ; remarks of Buggies, J. thereon at page 422, and 
 by Foot, J. at page 413.) 
 
 TRUSTS. 
 See Assignments No. 32, and post under Wills.
 
 636 APPENDIX OF FORMS. 
 
 WILLS. 
 
 No. 96. 
 WILL OF REAL AND PERSONAL PROPERTY. 
 
 In the name of God, amen. I, A. B., of the town of , in the county 
 
 of , and state of New York, aged years and upwards, and be- 
 ing of sound disposing mind and memory, do make and publish this my last will 
 and testament, in manner following, to wit : 
 
 First. I give, devise and bequeath to 0. D., of &c., all the real and personal 
 property of which I may die seised and possessed, and to his heirs and assigns, 
 forever. 
 
 Lastly. I appoint E. F., of , executor of this my last will and testa- 
 ment, hereby revoking all former wills by me made. 
 
 In witness whereof, I have hereto subscribed my name this day of 
 
 ,1860. A. B. 
 
 Note. It is not necessary that a will should be under seal It is good, with or 
 without a seal. 
 
 ATTESTATION. 
 
 We, whose names are hereto subscribed, do certify, that A. B., the testator, sub- 
 scribed his name to this instrument in our presence, and in the presence of each of 
 us, and at the same time he declared in our presence and hearing that the same 
 was his last will and testament, and requested us, and each of us, to sign our names 
 thereto as witnesses to the execution thereof, and which we have done accord- 
 ingly, in the presence of the testator and of each other, the day of the date of the 
 said will. 
 
 J. K., of the town of , county of 
 
 L. M., of the town of , county of 
 
 Note. For form of will containing various provisions, see Willard on Executors, 
 473 et seq. 4 Newnam's Conveyancer, 738 et seq. And see the will of Wil- 
 ham James, in Hawley v. James, 16 Wend. 61 et seq., and the remarks thereon by 
 the counsel and court. S. C. before the chancellor, 5 Paige, 318 et seq. Coster v. 
 Lorillard, 5 id. 172 et seq.; and S. C. on appeal, 14 Wend. 265 et seq., and re- 
 marks of the judges. The will in both of those cases was drawn with great abil- 
 ity, shortly after the revised statutes took eflect. The criticisms on the various 
 contested items will enable the draftsman to avoid the errors which crept into 
 them. Also, see Harris v. Clark, 3 Seld. 242 et seq. 
 
 No. 97. 
 CODICIL. 
 
 This is a codicil to my last will and testament, bearing date the day of 
 
 ,1860. 
 
 I give and bequeath to L. M. one hundred dollars. 
 
 In witness, &c. 
 
 (To be executed and attested, like the original will.)
 
 APPENDIX OF FORMS. 637 
 
 No. 98. 
 CLAUSE DEVISING TO A MARRIED WOMAN REAL ESTATE IN FEE, WITH A 
 
 GENERAL AND BENEFICIAL POWER TO DISPOSE OF IT DURING HER MAR- 
 
 RIAGE, WITHOUT THE CONCURRENCE OF HER HUSBAND, UNDER 8 80 OP 
 
 THE ACT " OF POWERS." 1 R. S. 732. 
 
 " I give and devise to A. B., wife of C. D., of , the house and lot which 
 
 I own in 14th street, in the city of New York, known as No in said 
 
 street, being 25 feet in front and rear, and 120 deep, to her and her heirs in fee ; 
 and I empower her to dispose of the same, during her marriage, without the con- 
 currence of her husband, to any one whom she may choose, for her own benefit, 
 either by a deed or by an instrument in writing in the nature of a will, and exe- 
 cuted in the manner of executing wills by the revised statutes." 
 
 Note. See Strong v. White, 1 Barb. Ch. 13, 14; Frazer v. Western, Id. 240; 
 Wright V. Talmadge, 1 Smith, 313 ; Jackson v. Edwards, 22 Wend. 498. 
 
 Under a devise with a power, like the above, the husband, if he survives his 
 wife, will have no estate by the curtesy. She may devise it to her husband or any 
 one else. 
 
 No. 99. 
 CLAUSE CONTAINING PROVISION FOR THE ACCUMULATION OF THE INCOME 
 OF REAL ESTATE, FOR THE BENEFIT OF INFANTS WHO ARE IN ESSE AT 
 THE TIME SUCH ACCUMULATIONS ARE DIRECTED TO COMMENCE, AND 
 WHICH ARE TO TERMINATE WITH THE MINORITIES OF THE INFANTS. 
 
 " I order and direct that one fourth part of my real and personal estate, or the 
 avails thereof, be placed at interest, and the interest or income thereof, during the 
 life of my son B. C, be applied, at the discretion of my executors, towards the 
 support of the family of the said B. C, and the education of his children born and 
 to be born ; and that the principal of the said one fourth, and what may remain of 
 the interest or income thereof, be distributed and divided, as soon after his decease 
 as can conveniently be done, unto and among the then living children of my said 
 son B. C, and the issue of such of them, if any, as shall then have deceased leaving 
 lawful issue then living ; each child of his then hving taking one equal share there- 
 of, and the issue of such of them as shall have then deceased leaving lawful issue 
 then living, if one, solely ; if more than one, jointly and equally ; taking by repre- 
 sentation, the share or shares which his, her or their parent or parents would have 
 taken if living." 
 
 See Haxtun v. Corse, (2 Barb. Ch. 509,) and the remarks of the chancellor on 
 the above, at page 517, holding it to be valid. (1 R S. 728, § 55, sub. 3.) It sus- 
 pends the power of alienation only during the life of B. C. It is subject to open 
 and let others into the class, from time to time. See also Savage v. Burnham, (17 
 N. Y. Eep. 561.) 
 
 No. 100. 
 
 CLAUSE, CHARGING THE TESTATOR'S REAL ESTATE AS THE PRIMARY FUND 
 
 FOR THE PAYMENT OF DEBTS, IN EXONERATION OF THE PERSONALTY. 
 
 " I give and devise all my real estate, [or, as the case may be, a certain farm, 
 situate in , known as the farm,] to A. B., and to his heirs and
 
 638 APPENDIX OF FORMS. 
 
 assigns forever, subject to the payment of two hundred dollars a year, in half yearly 
 payments, to my widow during her life, in lieu of her right of dower in my estate, 
 [or in said farm,] and subject also to the payment by the said A. B. of a bond given 
 by me to H. 0. for 1500 dollars, money loaned for my use, and subject to the pay- 
 ment of all the debts which I may owe at the time of my death." 
 
 (Smith V. Wyckoff, 11 Paige, 50, and the remarks of the chancellor, at page 
 57, et seq.) »>, 
 
 No. 101. 
 CLAUSE IN A WILL, DIRECTING TRUSTEES TO RECEIVE THE RENTS AND 
 PROFITS OP LANDS, AND APPLY THEM TO THE USE OF THE BENEFI- 
 CIARY, ETC. 
 
 " I hereby appoint my executors, hereinafter named, trustees of the estate of my 
 two daughters, hereby authorizing and desiring my executors, as such trustees, to 
 take charge of all such portion of my estate as is herein given to them respectively, 
 and to pay over to them respectively, from time to time, the rents, interests or net 
 income thereof; and in case of the marriage of both or either of them, it shall be 
 sufficient in making such payments, from time to time, to take the receipt of my 
 said daughters respectively, without the signature or consent of their respective 
 husbands, and in the same manner and with the like effect as if they were sole and 
 unmarried." 
 
 Note the language of § 55, 1 R. S. 728, sub. 3, is : To receive the rents and 
 profits of lands and apply them to the %Lse of any person, &c. In general, it is desira- 
 ble to follow the language of the statute in creating a trust, but it has been held 
 that a trust to pay over, &c., is a valid trust within the above section. (Gott v. 
 Cook, 7 Paige, 523. Leggett v. Perkins, 2 Comst. 297, 306. Mason v. Jones, 2 
 Barb. S. C. R. 229 ; affirmed on appeal, 3 Comst. 3'^5.) 
 
 No. 102. 
 ANOTHER FORM OF CHARGING REAL ESTATE WITH DEBTS OR LEGACIES. 
 
 I expressly charge the payment of my debts and of the legacies herein bequeathed 
 upon my real estate as the primary fund, and I authorize and empower my execu- 
 tors, hereinafter named, to sell the whole, or any part thereof, in fee simple, at 
 
 public or private sale, for cash or a reasonable credit, not exceeding years, 
 
 and to execute proper conveyances of the same to the purchaser or purchasers 
 thereof, and to apply the avails in the payment of debts and legacies. 
 
 The above is a general power in trust. (1 R. S, 732, 734, § 77, 94. Selden v. 
 Vermilyea, 1 Barb. S. C. R. 58.) See remarks of Edmonds, J. 
 
 No. 103. 
 ANOTHER FORM OP CHARGING REAL ESTATE, BY CREATING A TRUST. 
 I give and devise my farm in A., [describing it,] to my executor, hereinafter 
 named, in fee simple, in trust, to sell the same fcr the benefit of my creditors. 
 
 (1 R. S. 728, § 55.)
 
 APPENDIX OF FORMS. 639 
 
 No. 104. 
 ANOTHER FORM OF DEVISE, WHEN THE EXECUTORS TAKE THE FEE BY IM- 
 PLICATION. 
 
 I give unto my two daughters, S. and M., the remaining two fifths of my estate, 
 so that each may have and enjoy the interest or income of the one fifth part thereof, 
 during their several natural lives, and at their deaths, respectively, I will the share 
 to their respective lawful issue, their heirs and assigns forever. 
 
 Item : I hereby appoint my executors hereinafter named, trustees to the estate 
 of my two daughters, hereby authorizing and desiring my executors, as such trus- 
 tees, to take charge of all such portion of my estate as is herein given to them respect- 
 ively, and to take care of, manage and improve the same to the best advantage, 
 and to pay over to them, respectively, from time to time, the rents, interests or net 
 income thereof, &c. &c., as in No. 101, supra. 
 
 (Leggett V. Perkins, 2 Comst. 298; remarks of Gardiner, J., at page 305, 306.) 
 
 No. 105. 
 
 A DEVISE DIRECTING AN ACCUMULATION OF RENTS AND PROFITS FOR THE 
 
 BENEFIT OF INFANT CHILDREN OF THE TESTATOR. 
 
 I give and devise all the residue of my estate, real and personal, to my execu- 
 tors in trust, to receive the rents and profits of the land, and the interest of the 
 personal estate, and to pay and appropriate such sums as may be necQssary for the 
 respectable support and education of my minor children, until they shall severally 
 arrive at the age of twenty-one years, and that the surplus, if any, be accumulated 
 for the benefit of the said minors, until the expiration of their minority. 
 
 (See Vail v. Vail, 4 Paige, 328 ; Hunter v. Hunter, 17 Barb. 25 ; Haxtun v. Corse, 
 2 Barb. Ch. 506; 1 R. S. 726, § 37; Id. 728, § 55, sub. 4.) 
 
 No. 106. 
 
 CLAUSE IN A WILL CONTAINING A DEVISE OR BEQUEST TO A RELIGIOUS OR 
 CHARITABLE SOCIETY. 
 
 I give and devise to the trustees of the Presbyterian Church in the 
 
 house and lot in which I now live, in the village of , for a parsonage. 
 
 And I also bequeath to the said trustees the sum of one thousand dollars for the 
 uses and purposes for which the said trustees are authorized by law to take and 
 hold property ; and I authorise my executor to pay the same to the order in writ- 
 ing of the said trustees. Or — 
 
 I give and bequeath to *' The American Board of Commissioners for Foreign 
 Missions," one thousand dollars, to be paid to the person who shall be at the time 
 of such payment the treasurer of the said board, or be otherwise authorized by the 
 said board to receive it. 
 
 Note. (1.) By the general law, a corporation is not authorized to take a devise 
 of real estate, unless it is expressly so authorized by its charter. (2 R. S. 57, § 3.) 
 
 (2.) The corporate name should be so expressed as to leave no doubt of the in- 
 tention of the testator, as to the object of his bounty. A misnomer does not vi-
 
 640 APPENDIX OF FORMS. 
 
 tiate, provided the corporation intended is apparent. (Angel & A met on Corpora- 
 tions, 78, 150.) 
 
 (3.) If the devise or bequest be to a benevolent, charitable, literary, scientific, re- 
 ligious or missionary society, association or corporation, in trust or otherwise, by 
 a person having a husband, wife, child or parent, it shall not pass more than one 
 half part of his or her estate, after the payment of his debts. (L. of 1860, p. 607, 
 oh. 360.) 
 
 (4.) By the laws of 1848, p. 447, such bequest to a corporation formed under said 
 act, is not valid unless made and executed at least two months before the death 
 of the testator. (§ 6.) 
 
 (5.) For the purposes for which a religious society may hold property, see the 
 general act, 3 R. S. 292 et seq., and § 4, p. 395. 2 R. S. 604, 621. 5th ed. 
 
 No interest to vest in s%iccessors of ecclesiastics. (2 R. S. 622, 5th ed. L. of 
 1855, ch. 230.) 
 
 (6.) For the general doctrine of charitable bequests, see Williams v. Williams, 
 (4 Seld, 525 et seq.,) and the cases in Willard's Eq. Jur. 569 to 598. (2 Smith's 
 Kep. 83.) Trustees of Auburn Th. Sera. v. Kellogg, (4 Kernan, 380.) 
 
 No. 107. 
 CLAUSE IN A WILL DIRECTING THE ACCUMULATION OF MONET DLTIINO 
 THE LIFE OF THE TESTATOR'S DAUGHTER, AND ON HER DEATH, THAT IT 
 BE PAID TO THE MINOR CHILDREN OF THE SAID DAUGHTER, WHO ARB 
 SUCH AT THE DEATH OF THE TESTATOR. 
 
 I direct that my executor, hereinafter named, loan out, on bond and mortgage, 
 one thousand dollars of my estate on interest, to be paid semi-annually to himself, 
 in trust to pay such portion of it as may be necessary for the support of my daugh- 
 ter E., in case of the inability of her husband to support her, and to accumulate 
 such as is not needed for her support ; and on the death of my said daughter E., 
 all the said principal and the interest thereon, and the accumulations thereof, shall 
 be divided among the minor children of the said E. who are in being at the time 
 of my death. 
 
 (See 1 R. S. 773, § 1, 3, sub. 1. Kilpatrick v. Johnson, 1 Smith's Rep. 322, 
 325, 326.) 
 
 EXTRACTS FROM THE EXISTING STATUTES OF THE STATE OP NEW YORK, 
 WITH RESPECT TO THE PROOF AND RECORDING OF DEEDS, SHOWING BE- 
 FORE WHAT OFFICERS SUCH PROOF OR ACKNOWLEDGMENT MAY BE TAK- 
 EN, IN DIFFERENT PARTS OF THE WORLD. 
 
 (3 Revised Statutes, 5th ed. p. 46 et seq.) 
 § 4. To entitle any conveyance hereafler made, to be recorded by any county 
 clerk, it shall be acknowledged by the party or parties executing the same, or shall 
 be proved by a subscribing witness thereto, before any one of the following 
 officers : 
 
 If acknowledged or proved within this state ; the justices of the supreme 
 court, judges qf county courts, mayors and recorders of cities, or commissioners of 
 deeds [justices of the peace in towns]; but no county judge or commissioner of 
 deeds for a county or city, shall take any such proof or acknowledgment, out of 
 the city or county, for which he was appointed. 
 
 If acknowledged or proved out of this state, and within the United States ; the 
 chief justice and associate justices of the supreme court of the United States, dis-
 
 APPENDIX OF FORMS. 641 
 
 trict judges of the Uoited States, the judges or justices of the supreme, superior or 
 circuit court, of any state or territory within the United States, and the chief judge 
 or any associate judge of the circuit court of the United States, in the District of 
 Columbia ; but no proof or acknowledgment, taken by any such officer, shall enti- 
 tle a conveyance to be recorded unless taken within some place or territory, to 
 which the jurisdiction of the court to which he belongs shall extend. 
 
 Every acknowledgment or proof of a deed or mortgage made or taken before 
 the mayor of either of the cities of Philadelphia or Baltimore, or before any consul 
 of the United States resident in any foreign port or country, or before a judge of 
 the highest court in Upper Canada or Lower Canada, and certified by them re- 
 spectively, shall be as valid and effectual as if taken before one of the justices of 
 the supreme court of this state. (1829, ch. 222.) . 
 
 Every acknowledgment or proof of a deed or mortgage, made or taken before 
 the mayor of any city in the United States, and certified by him, shall be as valid 
 and effectual as if taken before one of the justices of the supreme court of this 
 state. (1845, ch. 109.) 
 
 § 5. The proof or acknowledgment of any deed or other written instrument re- 
 quired to be proved or acknowledged in order to entitle the same to be recorded 
 or read in evidence, when made by any person residing out of this state, and within 
 any other state or territory of the United States, may be made before any officer 
 of such state or territory authorized by the laws thereof to take the proof and ac- 
 knowledgment of deeds ; and when so taken and CQrtified as herein provided, shall 
 be entitled to be recorded in any county in this etate, and may be read in evidence 
 in any court in this state, in the same manner and with like effect as proofs and 
 acknowledgments taken before any of the officers now authorized by law to take 
 such proofs and acknowledgments : Provided that no such acknowledgment shall 
 be vaUd unless the officer taking the same shall know or have satisfactory evidence 
 that the person making such acknowledgment is the individual described in and 
 who executed the said deed or instrument. (1848, ch. 195, § 1.) 
 
 § 6. To entitle any conveyance or written instrument, acknowledged or proved 
 under the preceding section, to be read in evidence or recorded in this state, there 
 shall be subjoined or attached to the certificate of proof or acknowledgment, signed 
 by such officer, a certificate under the name and official seal of the clerk, register, 
 recorder or a prothonotary of the county in which such officer resides, or of the 
 county or district court, or court of common pleas thereof, specifying that such offi^ 
 cer was at the time of taking such proof or acknowledgment duly authorized to 
 take the same, and that such clerk, register, recorder or prothonotary is well ac- 
 quainted with the handwriting of such officer, and verily believes that the signa- 
 ture to said certificate of proof or acknowledgment is genuine. (Same ch. § 2 as 
 amended 1856, cL 61, § 2.) 
 
 § 7. The acknowledgment of any deed, mortgage or other conveyance of any 
 real estate within this state, and of any contract in relation to such real estate, and 
 of any power of attorney authorizing the conveying, mortgaging or otherwise dis- 
 posing of such real estate, or of making any contract in relation thereto which has 
 been or shall be executed by an officer or soldier of the army of the United States 
 employed at the time of making such acknowledgment within the territory of the 
 republic of Mexico, may be taken within such territory before and certified by any 
 major-general, brigadier-general or colonel of the said army, to whom the persoa 
 
 Will.— 41
 
 642 APPENDIX OF FORMS. 
 
 making such acknowledgment shall be personally known at the time of making the 
 same. The certificate of any acknowledgment taken and certified by virtue of this 
 act, shall state the place at which it was taken, and the fact that the person mak- 
 ing the same is an officer or soldier of the said army, of which facta such acknowl- 
 edgment shall be presumptive evidence. Every acknowledgment so taken and 
 certified shall have the same force and eff"ect in all respects as if the same were 
 taken and certified within this state by an officer authorized by law to take and 
 certify the same. (1847, ch. 170.) 
 
 § 8. The governor of this state is hereby authorized to name, appoint and com- 
 mission so many commissioners in such of the other states and territories of the 
 United States, or in the District of Columbia, or in Canada, as he may deem ex- 
 pedient, provided that the number of commissioners shall at no time exceed five in 
 any one city or county; the said commissioners shall continue in office for four 
 years, and shall have authority to take the acknowledgment and proof of the ex- 
 ecution of any deed, mortgage, lease or other conveyance of any lands, tenements 
 or hereditaments, lying and being in this state, or of any contract, assignment, 
 transfer, letter of attorney, satisfaction of a judgment or of a mortgage, or of any 
 other writing or instrument under seal to be used or recorded in this state, also to 
 administer an oath or affirmation, to any person or persons who may desire to make 
 such oath or affirmation. (1850, ch. 270, § 1, as amended 1857, ch. 788, § 1.) 
 
 § 9. Any acknowledgment or proof taken in pursuance of the powers and under 
 the directions and limitations conferred by and mentioned in this act, in manner 
 directed by the laws of this state, with respect to the acknowledgment or proof of 
 deeds, taken by any officer authorized to take such acknowledgment, residing 
 within this state, and certified by any one of said commissioners, whose appoint- 
 ment is authorized by this act, before whom the same shall be taken or made under 
 his hand and official seal ; which certificate shall be indorsed on said deed or other 
 instrument mentioned in the first section of this act, shall when authenticated iu 
 the manner hereinafter provided, be entitled to be recorded in any county in this 
 state, and shall have the same force and effect, and be as good and available in law 
 for all purposes, as if the same had been taken or made before any officer author- 
 ized to take such proof or acknowledgment, residing in this state : and any affidavit 
 or affirmation made before any such commissioner, certified and authenticated as 
 aforesaid, may be read in evidence, and shall be as good and effectual to all intents 
 and purposes, as if taken and certified by an officer authoiized to administer oaths, 
 residing in this state. (1850, ch. 270, § 2.) 
 
 § 10. Every commissioner appointed by virtue of this act, shall before he per- 
 forms any duty under and by virtue of his said appointment, and of this law, take 
 Bnd subscribe an oath or affirmation before a justice of the peace, or some other 
 magistrate in the city or county in which he shall reside, well and faithfully to ex- 
 ecute and perform all the duties of such commissioner, under and by virtue of the 
 laws of the State of New York, which oath or affirmation shall be filed in the of- 
 fice of the secretary of this state, and every such commissioner shall also before he 
 enters upon the duties of his office, cause to be prepared an official seal, in which 
 p Viati be designated his name, and the words " a commissioner of deeds for the state 
 of New York," together with the name of the state or territory, (or country if in 
 Canada,) and also of the city or county in which he shall reside, and for which he 
 shall have been appointed, and shall transmit to and cause to be filed in the office
 
 APPENDIX OF FORMS. 543 
 
 of the secretary of state, a distinct impression of such seal, taken upon wax or some 
 other substance capable of receiving and retaining a clear impression, together with 
 his signature in his own proper writing. (Same ch. § 3, as amended 1857, ch; 
 V88, § 2.) 
 
 § 11. When any deed or other instrument shall be proved or acknowledged, or 
 any oath or aflSrmation shall be taken before any commissioner appointed by vir- 
 tue of this act, before it shall be entitled to be used, recorded or read in evidence, 
 in addition to the preceding requisites there shall be subjoined or aflBxed to the 
 certificate, signed and sealed by such commissioner as aforesaid, a certificate under 
 the hand and official seal of the secretary of state of this state, certifying that such 
 commissioner was at the time of taking such proof or acknowledgment, or of ad- 
 ministering such oath or affirmation, duly authorized to take the same, and that 
 the secretary is acquainted with the handwriting of such commissioner, or has 
 compared the signature to such certificate with the signature of such commissioner 
 deposited in his office, and has also compared the impression of the seal affixed to 
 such certificate with the impression of the seal of such commissioner deposited in 
 his office, and that he verily believes the signature and the impression of the seal 
 of the said certificate to be genuine. (1850, ch. 270, § 4.) 
 
 § 12. No commissioner appointed under or by virtue ofthis law, shall be author- 
 ized to take the proof or acknowledgment of any deed or instrument, or to admin- 
 ister any oath or affirmation at any place other than within the city or county within 
 which he shall reside at the time of his appointment, and every certificate of any 
 such commissioner to any proof or acknowledgment taken before him, or to any 
 oath or affirmation administered by him, shall specify the day on which, or the city 
 or town and county within which the same was taken or administered ; and with- 
 out such specification the said certificate shall be wholly invaUd, inoperative and 
 void. (Same ch. § 5.) 
 * * * * * 
 
 § 17. Any deed or conveyance or other written instrument, affecting real estate 
 within this state, proved or acknowledged in any other state or territory of the 
 United States, according to the laws of such state or territory, where the grantor 
 or grantors of such deed or conveyance and the officer before whom the same shall 
 be proved or acknowledged shall be dead ; and when such proof or acknowledg- 
 .rnent shall be certified as herein provided, may be recorded in any county of the 
 Btate, and may be read in evidence in any court of this state, in the same manner 
 and with the like effect as though the same had been proved or acknowledged as 
 required by the laws of this state, provided that the death of the grantor or grant- 
 ors, and of the officer before whom the same shall be proved or acknowledged, 
 shall be proved by the affidavit of one or more persons, sworn to before some offi- 
 cer authorized by law to administer oaths in such state or territory, and certified 
 as herein provided. (1858, ch. 259, § 1.) 
 
 § 18, To entitle such deed or conveyance, or other written instrument, to be 
 read in evidence or recorded in this state, there shall be annexed to the certificate 
 of proof or acknowledgment, signed by such officer, a certificate under the name 
 and official seal of the clerk or register of the county in which such officer resided, 
 BpecifyLng that such officer was, at the time of taking such proof or acknowledg- 
 ment, duly authorized to take the same, and that such clerk or register is well 
 acquainted with the handwriting of such officer, and verily believes that the signa-
 
 C44 APPENDIX OF FORMS. 
 
 ture to said certificate of proof or acknowledgment is genuine, and that such deed 
 or conveyance or written instrument, is proved or acknowledged in all respects, as 
 required by the laws of such state or territory. There shall also be a like certificate 
 of such clerk or register, attached to the jurat or affidavit, proving the death of the 
 grantor or grantors, and of the officer before whom the deed or written instrument 
 was proved or acknowledged, certifying that such officer was, at the time of taking 
 such affidavit or affidavits, duly authorized to take the same, and that such clerk 
 or register is well acquainted with the handwriting of such officer, and verily be- 
 lieves that the signature to such jurat or affidavit is genuine. Such affidavit or 
 affidavits .shall be recorded with such deed or other written instrument, and be 
 presumptive evidence of the facts therein stated. (Same ch. § 2.) 
 
 § 19. [Sec. 5,] If the party or parties executing such conveyance, shall be, or 
 reside, in any state or kingdom in Europe, or in North or South America, the same 
 may be acknowledged or proved before any minister plenipotentiary, or any min- 
 ister extraordinary, or any charge des affaires of the United States, resident and 
 accredited within such state or kingdom. If such parties be or reside in France, 
 such conveyance may be acknowledged or proved before the consul of the United 
 States, appointed to reside at Paris ; and if such parties be or reside in Russia, such 
 conveyance may be acknowledged or proved before the consul of the United States, 
 appointed to reside at St. Petersburgh. 
 
 § 20. [Sec. 6.] If the party to such conveyance be or reside within the United 
 Kingdom of Great Britain and Ireland, or the dominions thereunto belonging, the 
 same may be acknowledged or proved before the mayor of the city of London, the 
 mayor or chief magistrate of the city of Dublin, or the provost or chief magistrate 
 of the city of Edinburgh, or before the mayor or chief magistrate of Liverpool, or 
 before the consul of the United States, appointed to reside at London. 
 
 § 21. [Sec. 7.] Such proof or acknowledgment, duly certified under the hand and 
 seal of office of such consuls, or of the said mayors or chief magistrates respectively, 
 or of such minister or charge des affaires, shall have the like force and vahdity, as 
 if the same were taken before ft justice of the supreme court of this state. 
 
 § 22. The officers authorized by the fifth and sixth sections of chapter three, part 
 second, of the revised statutes, to take the proof and acknowledgment of deeds 
 conveying real estate, and also any other consul or vice-consul or minister resident 
 of the United States, appointed to reside at any foreign port or place, are hereby ' 
 authorized to administer oaths or affirmations to any person or persons who may 
 desire to make such oath or affirmation ; and any affidavit or affirmation made be- 
 fore any such officer, and certified and authenticated as provided in the seventh 
 section of said chapter in respect to the proof and acknowledgment of a deed con- 
 veying real estate, may be read in evidence and shall be as good and effectual to 
 all intents and purposes as if taken and certified by an officer authorized to admin- 
 ister oaths, residing in this state, and no other proof of the official character of such 
 officer than the certificate annexed to such affidavit or affirmation shall be required. 
 (1854, ch. 206.) 
 
 § 23. [Sec. 8.] Every such conveyance heretofore made, or hereafter to be made, 
 may be acknowledged or proved, without the United States, before any person 
 specially authorized for that particular purpose, by a commission under the seal of 
 the supreme court of this state, to be issued to any reputable person residing in or 
 going to the country where such proof or acknowledgment is to be taken ; and the
 
 APPENDIX OF FORMS. 645 
 
 acknowledgment or proof so taken shall be of the like force and validity as if the 
 same were taken before a justice of the supreme court of this state. 
 
 § 24 The governor of this state is hereby authorized t^ appoint and commission 
 one or more, and not exceeding three commissioners, in each of the following cit- 
 ies- London, Liverpool and Glasgow in Great Britain, and Paris and Marseilles in 
 France who shall continue in office for four years, and untilasuccessor shall be ap- 
 pointed, and shall have authority to take the acknowledgment or proof of the exe- 
 cution of any deed or written instrument to be recorded or read in evidence m this 
 state, except bills of exchange, promissory notes, and last wills and testaments; 
 and also to administer an oath or affirmation to any person or persons who may 
 desire to take the same, and to certify the taking of such oath or affirmation, and 
 also to certify the existence of any patent, record or other document, remaming of ^ 
 record in any public office or official custody in Great Britain or France, and the 
 correctness of a copy of any such patent, record or other documerit. The certifi- 
 cate of any one of such commissioners, under his official seal, and subscribed by 
 him in regard to the acknowledgment or proof of the execution of any such deed 
 or written instrument, or the taking of such oath or affirmation, or the existence or 
 correctness of a copy of such patent, record or document, when authenticated by 
 the secretary of state, as hereinafter mentioned, shall have the same effect to au- 
 thorize the recording or reading in evidence of such deed or written instrument, 
 oath or affidavit, patent, record or document, as is given by law to like certificatea 
 made by justices of the supreme court of this state, or to any certificate or exem- 
 plification by any office of this state of any patent, record or other document. 
 
 (1858, ch. 308, § 1.) ^ , . . . j 
 
 § 25 Before any such deed or other instrument, oath or affidavit, patent, record 
 or document, shall be entitle.l to be used, recorded or read in evidence, in addition 
 to the preceding requisites, there shall be subjoined or affixed to the certificate 
 signed and sealed by such commissioner as aforesaid, a certificate under the hand 
 and official seal of the secretary of state of this state, certifying that such commis- 
 sioner was, at the time of taking such proof or acknowledgment or of administer- 
 ing such oath or affirmation, duly authorized to take the same, and that the secre- 
 tary is acquainted with the handwriting of such commissioner, or has compared 
 the signature to such certificate with the signature of such commissioner deposited 
 . in his^office, and has also compared the impression of the seal affixed to such certi- 
 ficate with the impression of the seal of such commissioner deposited in his office, 
 and that he believes the signature and the impression of the seal of the said certi- 
 ficate to be genuine. (Same ch. § 2.) 
 
 § 26 Every commissioner appointed by virtue of this act, before performing any 
 duty or exercising any power in virtue of his appointment, shall take and subscribe 
 an oath or affirmation before a person authorized to administer such oath or affirm- 
 ation by the laws of this state, or before a judge or clerk of one of the courts of 
 record of the kingdom or empire in which such commissioner shall reside, well and 
 faithfully to execute and perform all the duties of such commissioner under and by 
 virtue of the laws of the state of New York ; and shall also cause to be prepared an 
 official seal, on which shall be designated his name, and the words "commissioner 
 of deeds for the state of New York," with the name of the city for which he shall 
 be appointed ; and shall cause a distinct impression of such seal, taken upon wax
 
 646 APPENDIX OF FORMS. 
 
 or some other substance capable of receiving and retaining a clear impression, to- 
 gether with his signature in his own proper writing, and the oath or aflQrmation 
 above in this section mentioned, duly certified by the person before whom it may 
 be taken, to be filed in the office of the secretary of this state. (Same ch. § 3.) 
 ******* 
 § 30. The fees of such commissioner for services under this act shall be as fol- 
 lows : In Great Britain, for administering each oath and certifying the same, and 
 for making each certificate attached to a patent, record or other document, one 
 shilling sterhng ; in France, one franc and twenty-five centimes. In Great Britain, 
 for taking each acknowledgment or proof of any deed or written instrument to be 
 recorded or read in evidence, four shillings sterling ; in France, five francs. (Same 
 ch. § 7.)
 
 INDEX 
 
 TO APPENDIX OF FORMS. 
 
 [The flgores In the margin refer to the number of the form, and those on the right hand 
 
 to the page.] 
 
 A 
 
 ACKNOWLEDGMENTS, PROOFS, &c., 563, 565. 
 No. 1 — where party is known to the officer, 563. 
 
 2 — the like, with notice of erasures, 563. 
 
 3 — when the identity of the party is proved by a witness, 563L 
 
 4 — when proved by a known subscribing witness, 564. 
 
 5 — the like, when subscribing witness is not known, 564. 
 
 6 — by husband and wife, both known to the officer, 564. 
 
 7 — the like, when both are unknown, 565. 
 
 8 — the like, when husband is known and wife is not,, 565. 
 
 9 — the like, by two husbands and their wives, known, 566. 
 1 — the like, by wife alone, 566. 
 11 — when, executed by an attorney in fact, 566. 
 12 — by an executor or trustee, 566. 
 13 — by a sheriflf, or late sheriff, 567. 
 14 — by under sheriff or deputy, 567. 
 
 15 — by an infant, after he comes of age, to confirm his deed, 567. 
 16 — by a moneyed corporation, 567. 
 17 — by a religious corporation, 568. 
 
 statute as to acknowledgments, 640, et seq^ 
 AGREEMENTS, 568 to 575. 
 
 18 — contract to convey property, 568. 
 19— the like, 569. 
 
 20— the like, for the purchase of a freehold estate, with covenants, 569. 
 21 — the like, for sale of a city lot, and to erect buildings, 571. 
 22 — the like, for sale of a farm, with clause of forfeiture,^ 573. 
 23 — the like, for sale of real estate, by attorney, 573. 
 [647]
 
 648 INDEX TO APPENDIX OF FORMS. 
 
 AGREEMENTS— con^mt/e^Z. 
 No. 24 — contract not to erect nuisances, 574. 
 
 25— the like, by a trustee, to convey lands, 575. 
 ANNUITIES, 576. 
 
 ANTE-NUPTIAL SETTLEMENT. See Marriage Settlements, 625. 
 ASSIGNMENTS, 
 
 26 — of a mortgage, 576. , 
 
 27 — a short form of do. 577. 
 
 28 — of a lease, by the lessor, to a third person, 577. 
 
 29 — of a lease by the lessee, 578. 
 
 30 — a iihort form of same, 578. 
 
 31 — of a contract for the purchase of a farm, the assignee agreeing to per- 
 form, 579. 
 
 :52-— in .trust for benefit of creditors, giving preferences, 579. 
 
 B 
 
 BARGAIN AND SALE. See Cohtbtances, 582. 
 BOND, 
 
 62 — usual ibrmotfi accompanying a mortgage, 603. 
 
 c 
 
 CODICILS. See Wills, No. 97, p. 636. 
 CONVEYANCES BT DEED AND MORTGAGE, 582. 
 
 33 — bargain and «de without covenants, 582. 
 
 34 — the like, w'lih covenant of warranty, 582. 
 
 35 — ^quit-claim deed, &84. 
 
 36 — the like, with covenants against grantor's own acts, 584. 
 
 37 — grant of an estate in fee, under the statute, 584. 
 
 38 — the like, with coveDaE^s, 585. 
 
 39 — full covenant deed, a «bort form, 585. 
 
 40 — the like, the usual form, S85, 586. 
 
 41 — the like, subject to incunabraaeee, 586. 
 
 42— deed to a corporation, 587. 
 
 43 — the like, upon condition, 587. 
 
 44 — deed by a corporation, 587^ 
 
 45 — by husband and wife, 588. 
 
 46 — by wife alone, 588. 
 
 47^-deed with full covenants, and oevenant against the erection of a nui- 
 sance, 588. 
 
 48 — by married woman, of her real estate, =under the act of 1860, with as- 
 Bent of her husband, 590. 
 
 49 — the. like, without his assent, by order -cf county court, 591. 
 CONVEYANCES, 
 
 by persons acting in official or fiduciary eapacity, 591 et seq. 
 
 50 — sheriff's deed on foreclosure of a mortgage, 591, 592. 
 
 51 — referee's deed on foreclosure of a mortgage, 593. 
 
 52 — deed of special guardian, on the sale of an infant's red estate, by oraer 
 af£0urtj594.
 
 INDEX TO APPENDIX OF FORMS. 549 
 
 CONVEYANCES— cowimwed 
 No. 53— sheriff 's deed on sale of real estate, by virtue of an execution, to the 
 
 purchaser, 595. 
 54 — the like, to a redeeming creditor, 596. 
 
 65— sheriff's certificate, on sale of real estate, given to the purchaser, 596. 
 56 — deed of executors, under a power in a vtrill, 597. 
 57— referee's deed in partition, by order of court, 69a 
 58— deed of a right of way, 599. 
 59 — conveyance by lease and release, 600. 
 60 — deed of exchange, 601. 
 
 61— short mortgage, without power of sale, and with covenant, 602. 
 62 — usual form of bond accompanying mortgage, 603. 
 63— mortgage without bond, with power of sale' and covenant to pay, 604. 
 64-the hke, with bond, providing that the whole shall become due on any 
 
 default, 605. ' 
 
 65— mortgage with bond and power of sale, with covenant to insure against 
 fire, 607, 60S. ^ 
 
 66-mortgage to executors, with bond, power of sale, and covenant to 
 
 pay, 608. 
 67— mortgage by and to a corporation, with bond and covenant, 610. 
 68— deed of mortgaged premises, on foreclosure by advertisement, under 
 
 the statute, 611, 612. 
 69— satisfaction piece, of a mortgage, 613. 
 
 Covenants, 613 et seq. 
 70— general form of covenant in a deed, 614. 
 ' ^ from several persons to one, 614. 
 
 72— covenant by lessee to pay taxes, 614. 
 '^~ to repair during the term, 614. 
 
 covenants in a full covenant deed. No. 40, 585, 586. 
 
 1, covenant of seisin, 585. 
 
 2, for quiet enjoyment, 585. 
 
 3, against incumbrances, 586. 
 
 4, for further assurance, 586. 
 
 5, of warranty, 586. 
 
 74— covenant to conduct a farm in a good husbandlike manner, 615. 
 to renew the lease, 615. 
 to grant a right of way to lessee, 615. 
 special ones, in a lease, 619 et seq. 
 
 D 
 
 DEED. See Conveyances, supra, 582 et seq. 
 bargain and sale without covenants, 582. 
 
 with covenants, 582. 
 quit-claim, 584. 
 
 with covenants against grantor's own acts, 584. 
 grant under the statute, 584. 
 with covenants, 585.
 
 650 INDEX TO APPENDIX OF FORMS. 
 
 DEED — continued. 
 
 with full covenants, 585, 586. 
 subject to incumbrances, 586. 
 to a corporation, 587. 
 
 upon condition, 587. 
 by a corporation, 587. 
 
 husband and wife, 588. 
 wife alone, 588. 
 with full covenants, and a covenant not to erect a nuisance, 588. 
 by married woman of her real estate, under the act of 1860, with assent of 
 
 her husband, 590. 
 the like, without his assent, by order of court, 591. 
 sheriff's deed, 591, 592, 594. 
 referee's deed on foreclosure, 593. 
 of special guardian, of infants' estate, 594. 
 of sheriff under execution, 595, 596. 
 of executors under a power, 597. 
 of referees in partition, 598. 
 of right of way, 599. 
 of lease and release, 600. 
 of exchange, 601. 
 of mortgage, short form, 602. 
 usual form, 603. 
 without bond, 604. 
 
 with bond, providing that the whole shall become due, on de- 
 fault, 605. 
 mortgages, various forms, 607-610. 
 on foreclosure of mortgages, 611-613. 
 DEVISES. SeeWiLza. 
 
 E 
 
 EMINENT DOMAIN, 616. 
 
 77 — form of record of assessment of damages, 616. 
 EXCEPTION, 
 
 78 — of right of way in a deed or lease, 619. 
 
 F 
 
 FIXTURES. See note, 621. 
 
 Q 
 
 GRANT, 
 
 of an estate in fee, under the statute, without covenants, 584. 
 
 with covenants, 585. 
 
 HfFANTS, 
 
 various devises in favor of, 639, 640.
 
 INDEX TO APPENDIX OP FORMS. 651 
 
 J 
 
 jomTHRE, 
 
 provided for in a maxriage settlement, 628. 
 
 LANDLORD AND TENANT, 619. 
 No. 79 — lease with special covenants, 619 et seq. 
 80 — short lease, with chattel mortgage, 622. 
 81 — short agreement between landlord and tenant, 622, 623. 
 82 — short agreement for lease of a single room, 624. 
 tenant's agreement accepting the same, 625. 
 LEASE. See Landlord akd Tenant, 619. 
 
 M 
 
 MARRLiGE SETTLEMENTS, 625 et seq. 
 
 83 — ante-nuptial settlement of personal property, 625, 626, 627. 
 
 84 — the like of real property belonging to the intended wife, reserving a 
 
 power, 627, 628. 
 85 — power to trustees to sell and reinvest, 628. 
 86— clause, when the real estate comes from the hnsband, and is intended 
 
 as a jointure, 628, 629. 
 87 — ante-nuptial settlement of the real estate of the intended wife, to the 
 
 use of herself for life, with contingent remainders to their issue, which 
 
 open to let in after-born children, 629, 630. 
 88 — ante-nuptial agreement, without the intervention of trustees, reserving 
 
 a power to make a will, 630, 631. 
 89 — post-nuptial settlement of the estate of the wife, 632, 633. 
 MORTGAGES, 
 
 61 — short mortgage, without power of sale, and with covenants, 602. 
 62 — usual form of bond accompanying a mortgage, 603. 
 63 — mortgage without bond, with power of sale and covenants to pay, 604. 
 64 — the like with bond, providing that the whole shall become due on any 
 
 default, 605. 
 65 — the like, with bond and power of sale, with covenant to insure against 
 fire, 607, 608. 
 
 66 — to executors, with bond and power of sale, 608. 
 
 67 — by and to a corporation, with bond and covenant, 610. 
 
 68 — deed of mortgaged premises, on foreclosure by advertisement, under 
 
 the statute, 611, 612. 
 69 — certificate of discharge of a mortgage, or satisfaction piece, 613. 
 80 — mortgage of chattels in a lease, 622, and notes, 621.
 
 INDEX TO APPENDIX OF FORMS. 
 
 POST-NUPTIAL SETTLEMENT, No. 89, pages 632, 633. 
 POWER OP ATTORNEY, 
 
 90 — to convey real estate, with a power of substitution, 633. 
 
 92 — of revocation of power of attorney, 634. 
 
 93 — and appointment, 634. 
 
 94 — in trust in a will or deed, 635. 
 
 95 — not in trust, in a will, 635. 
 
 R 
 
 RENT, 
 
 79 — form of reserving, in a lease, 619, 620. 
 See Landlord and Tenant. 
 REFEREE'S 
 
 51 — deed on foreclosure, 593. 
 
 57 — on partition, 593. 
 BEVOCATION, 
 
 92 — of a power of attorney, 634. 
 
 93 — of, and appointment in a marriage settlement, 634. 
 
 s 
 
 SATISFACTION PIECE 
 
 69 — of a mortgage, 613. 
 SHERIFF'S DEED, 
 
 53 — on a sale by execution, 594. 
 
 50 — on foreclosure of a mortgage, 591, 592. 
 
 55 — certificate on sale by execution, 596. 
 SPECIAL GUARDIAN'S 
 
 52 — deed of infant's estate, 594. 
 SUBSTITUTION, 
 
 91 — of an attorney, 633. 
 STATUTE, 
 
 as to acknowledgment and proof of deeds, showing before whom to be 
 taken, 640. 
 
 T 
 
 TRUSTS. See Assignments, No. 32, p. 579. Marmage Skttlements, 625 etseq. 
 
 w 
 
 WAY, 
 
 58— deed of right of, through grantor's land, 599. 
 78 — reservation of right of, in a lease or deed, 619.
 
 INDEX TO APPENDIX OF FORMS. 653 
 
 WILL, 
 
 No. 96 — of real and. personal property, 636. 
 97 — codicil to a will, 636. 
 98 — devising to a married woman an estate in fee, with a beneficial power 
 
 of disposition, 637. 
 99 — providing for the accumulation of the income of real estate for the ben- 
 efit of infant, &c., 637. 
 100 — charging the testator's real estate as the primary fund to pay debts and 
 
 legacies, 637. 
 101 — directing trustees to receive the rents &c., and apply them to the use 
 
 of the beneficiary, 638. 
 102 — another form of charging real estate with the payment of debts and 
 
 legacies, 638. 
 103 — another form of charging by creating a trust, 638. 
 95 — a power and not a trust, in a will, 635. 
 104 — devise when the executors take the fee by implication, 639. 
 105 — directing the accumulation of rents for infants, 639. 
 106 — containing a devise to a religious corporation, 639. 
 107 — directing an accumulation for a child, and on its death to its issue, 640
 
 INDEX. 
 
 ABATEMENT 
 
 of the freehold, a mode of ouster, 313. 
 
 in favor of post testamentary children, 497, 498. 
 ABEYANCE, 
 
 freehold not to be in at common law, 327. 
 ABSTRACTS, 
 
 nature and object of, 527, 528. 
 
 Bearching for incumbrances, 529. 
 
 judgments and other liens, considered, 529, 530. 
 
 how long a lien on land, 529, 530. 
 
 judgment docketed is notice, 531. 
 
 when entered up against a dead person, 532. 
 
 when and how discharged of record, 533, 534. 
 
 satisfaction piece, to be filed, 534. 
 
 town collector's bonds, 535. 
 
 tax assessments, when a lien, 536. 
 
 specific liens, by mortgage, 537. 
 
 of title by descent, 539 et seq. 
 by devise, 541 ei seq. 
 
 when estate divided among many, 542. 
 
 when specific performance denied, 543. 
 
 of titles under judicial sales, and under powers, 544, 545. 
 
 of right of purchaser to the original deeds, 546. 
 
 when deeds should be recorded, 548. 
 
 when wills should be recorded, 549. 
 
 when title is acquired by adverse holding, 550. 
 
 farm and arrangement of abstracts, 551 et seq. 
 
 duty of counsel with respect to, 556, 557. 
 
 of the party by whom deed should be prepared and paid for, 558-562. 
 [655]
 
 656 INDEX. 
 
 ACCOUNT 
 
 between mortgagor and mortgagee, 128. 
 
 tenants in common and joint tenants, 188. 
 in what cases allowed, 188. 
 ACKNOWLEDGMENT, 
 
 how taken, and before what officers, 122, 388, 389, 390; and see Appendix 
 
 for statute, and various forms, 
 by a married woman, 123, 390, 391. 
 when proof may be taken, 123. 
 required as to execution of deeds, 123, 373, 
 what fact the officer must certify, 390. 
 when feme covert may make, without her husband, 391. 
 how made by a corporation, or by an attorney, 393. 
 
 non-residents, 393. 
 officer taking, must know party, 394. 
 or the subscribing witness, when proved, 394. 
 need not know the identifying witness, 394. 
 what facts witness must state, 394. 
 
 taking proofs or acknowledgments is a ministerial act, 399. 
 alterations should be noted by the officer, 401. 
 ACTIONS, 
 
 all real and possessory, abolished by the code of procedure, 351, 352. 
 other remedy substituted, 351, 352. 
 for use and occupation, 99, 214. 
 for rent, 212-214. 
 ADMINISTRATORS. See Executors and Administkatoks, 261, 316, 340, 362. 
 ADVANCEMENT, 
 
 rule as to in law of descents, 338. 
 what constitutes such, 338. 
 how value thereof to be ascertained, 338. 
 mere support of child, not such, 338. 
 ADVERSE ENJOYMENT, 
 
 how it differs from a prescription, 351. 
 statute of limitations as to real property, 351, 352. 
 what is an entry to avoid it, 352. 
 
 as against the people, limitation is 40 years, in other cases 20 years, 351. 
 extinguishes right of former owner, 351. ^ee Adverse Possession. Lim- 
 itations, Statute of. 
 ADVERSE POSSESSION, 
 doctrine of, stated, 353. 
 object of the statutes, 353. 
 two classes of cases, 353, 354. 
 constructive, excluded as to large tracts, 354. 
 occupation not under judgments or writings, 354. 
 actual occupancy, 354. 
 color of title, what it is, 354, 355. 
 defendant not bound to produce deed, 356»
 
 INDEX 557 
 
 ADVERSE TOSS'ESSIO'N— continued. 
 
 caimot be founded on a void one, 356. 
 
 nor upon one founded in fraud, 356. 
 possession of one tenant in common the possession of both, 356. 
 must be an ouster to enable one to sue his companion, 357. 
 benefit of, lost by a recognition of the owner's title, 357. 
 rule as between landlord and tenant, 357. 
 effect of statute of limitations upon rights, 351, 358. 
 disabilities which prevent the statute from running, 358, 359. 
 ■when statute begins to run, 359. 
 successive disabilities not allowed, 359, 360. 
 when feme covert entitled to 10 years extra, 360. 
 
 conveyance of land, held adversely, void against the party so holding, 360. 
 good as to all the world besides, 360. 
 purchase of lands held adversely, void, 371. 
 when a misdemeanor, 371. 
 AIR, 
 
 man who erects a building on his own land entitled to, 218, 219. 
 not subject of grant, 219. 
 remedy for obstructing, 219. 
 AGREEMENTS, EXECUTORY, 
 
 when extinguished, 304, 305, 306. 
 
 must, for sale of land, be in writing and subscribed by party or his attcrney, 
 375, 376. 
 ALIEN, 
 
 his right at common law, 45. 
 
 by statute, on filing affidavit, 45, 46. 
 under law of descent, 318, 319, 320. See Descent. 
 as devisee, 477, 602. See Devise. 
 ALIENATION, V 
 
 an inseparable incident of an estate in fee simple, 51. 
 power of, when suspended, void, 164, 279, 280. 
 mode of. Part IIL, 312 et seq. 
 title by, 369 etseq. 
 ALLODIAL, 
 
 mode of holding land in this state, 42. 
 ALTERNATE ESTATES, 
 
 definition of the term, 169. 
 AMBIGUITY, 
 
 of two kinds, patent and latent, 402. 
 how explained and defined, 402. 
 if patent, cannot be explained, 402. 
 latent, may be removed by proof, 402. 
 maxims with respect to, 402. 
 ANCESTOR, 
 
 may bind the heir for debts, 339. 
 ANCIENT LIGHTS, 
 
 not allowed by prescription here, 349. 
 
 Will.— 42
 
 ^58 INDEX 
 
 ANNUITIES, 
 
 meaning of the term, 203. 
 wherein it differs from rent, 203. 
 ANTE-NUPTIAL AGREEMENTS, 
 by what rule governed, 286. 
 lex loci considered, and cases referred to, 286, 287. 
 husband and wife should join in the articles, 288. 
 so should the trustee, 288. 
 how made without a trustee, 289. 
 
 what constitutes a general and beneficial power in the wife, 289. 
 trusts in, may be so created as to render property inalienable, 290. 
 policy of, doubted, 290. 
 
 should be made by parties able to contract, 291. 
 objection of infancy cannot be made by trustee, 291. 
 husband bound to support his wife, notwithstanding the settlement, 291. 
 See Marriage Settlements. Post-Nuptial Agreements. 
 ANTICIPATION, 
 
 provided against in marriage articles, 283. 
 provision with respect to, in the Revised Statutes, 283, 284. 
 APPOINTMENT. See Powers, 265. 
 APPORTIONMENT 
 
 of rent, how and when made, 210, 211. 
 of commons, when, 191. 
 of incumbrances, 301. 
 ATTAINTED, 
 
 of treason, &c. cannot inherit, 322. 
 ATTESTATION, 
 
 of deed when required, 386, 387. 
 
 of wills, and the clause to be added, 485, &c. ^ee Devise. 
 ATTORNEY, 
 
 deed executed by, how acknowledged, 393. See Powers of Attornet. 
 ATTORNMENT, 
 
 of tenant to a stranger, void, 82. 
 ARTICLES OF AGREEMENT, 
 
 for sale of land, must be in writing, contain the consideration, and be sub- 
 scribed by the party or his attorney, 375. 
 will be enforced in equity, 375. 
 should contain the contract truly, 375. 
 need not be under seal, 376. 
 authority of the agent may be by parol, 37fl. 
 may be written with a lead pencil, 380. 
 ASSIGNMENT, 
 
 of a mortgage, good by parol, 113. 
 
 assignee takes subject to all the equities of mortgagor, 113. 
 
 assignee of a mortgage, a purchaser, 122. 
 
 for benefit of creditors, valid, as trusts, 236, 237.
 
 INDEX. 659 
 
 ASSIGtNMENT— conimwei, 
 
 how defined, and operative words of, 439. 
 
 must be in writing when it relates to lands, 439. 
 
 what may be assigned, 439, 440. 
 AUNTS 
 
 of intestate, when to inherit, 333. 
 AWARD, 
 
 when an extinguishment of cause of action, 304. 
 
 B 
 
 BANKS 
 
 are a franchise, 200. 
 
 rights of, 200. See Franchise. 
 BARGAIN AND SALE, 
 
 still used as a deed, 423, 441. See Deed. 
 BASE OR QUALIFIED OR CONDITIONAL FEES, 51, 54. 
 
 how conditional, may become absolute, 54. 
 BASTARDS, 
 
 how defined, when cannot inherit, 318. 
 
 may take by devise, 474. 
 BEASTS, 
 
 what are commonable on highways, 192. 
 BOUNDARY 
 
 of land on a stream or highway, how far it extends, 220, 221, 405, 405. 
 BUILDING, 
 
 60 as to overlook adjoining owner's privacy, remedy for, 219. 
 
 
 
 CATTLE, 
 
 when allowed to depasture the highway, 192. 
 
 horses, cattle and sheep, but not swine, 192. 
 CESTUI QUE TRUST, 
 
 meaning of, and his power, 237. 
 CESTUI QUE USE, 
 
 meaning of, and his power, 229. See Uses and Trusts. 
 CESTUI QUE VIE, 
 
 when absent seven years, presumed to be dead, 99. 
 CHARGE, 
 
 upon real estate, by will, 343, 521, 522, 556. See Devise. 
 
 the residuary clause in a will not alone sufficient to create a charge, 522, 523. 
 
 an incumbrance in the hands of devisees, 343. 
 CHARITIES, 
 
 when devises to, by a party having a husband, wife, parent or child, void, 
 501. 
 CHILDREN, 
 
 posthumous, provided for, 171. 
 
 when to inherit, 318, 327. 
 
 who are included in a devise, 512.
 
 660 INDEX. 
 
 CITIZEN, , 
 
 every natural born, entitled to inherit, &c. 44. See Naturalization. Alibn. 
 
 Descent. 
 difference between, and a denizen, 321. 
 
 CODICIL, , .^. ,^, 
 
 included in term wills, and to be executed with the same solemmties, 491. 
 it need not be annexed to the will, 499. ^ee Devise. 
 to be construed as part of the will, 504, 
 COLLECTOR'S BONDS, 
 
 a hen on the lands of the collector and his sureties, 154, 155, 535. 
 
 COMPUTATION 
 
 of time, by Gregorian style, 81. 
 from and to a particular day, 81. 
 when extlusive and when inclusive. 81. 
 CONDITION, 
 
 estates upon, 100 et seq. 
 
 meaning of the term, 100. 
 
 by what words created, 101, 102, 520. 
 
 may be express or implied, 100, 101. 
 
 distinction between condition and Umitation, 102, 520. 
 
 between condition and covenant, 102, 
 cannot be reserved to a stranger, 103. 
 when void, 103. 
 
 repugnant, impossible, and illegal, 103, 431. 
 against alienation of the estate, when void, 104. 
 precedent, and subsequent, by what words created, 105, 520, 542. 
 conditions subsequent, not favored, 105. 
 courts lean against forfeitures, 106. 
 performance, and what will excuse it, 106. 
 
 condition in lease against assigning, when good, 107. See Mortgages. 
 conditional hmitations, 170. 
 CONFIRMATION, 
 
 how defined, and by what words created, 437. 
 COMMONS, 
 
 nature of the right, 190. 
 
 common, appendant, and appurtenant, and in gross, 190. 
 of pasture, and of estovers, 190, 191. 
 of turbary and piscary, 190, 191. 
 grantee of common in gross, may alien it, 191. 
 in public highways, 192, 
 extends only to cattle, horses and sheep, 192. 
 how extinguished, 193. 
 how revived, 193. 
 remedy for disturbance, 193. 
 when apportioned, 191. 
 CONSANGUINITY, 
 
 lineal and collateral, defined, 317. 
 mode of computing degrees, 317.
 
 INDEX. 661 
 
 CONSIDERATION 
 
 to create a resulting trust, 236. 
 
 must be expressed in articles of agreement for the sale of land. by the 
 
 statute of frauds, 375. 
 of two kinds, good and valuable, 379. 
 definition thereof, 379, 380. 
 advisable to insert it in the deed, though not indispensable between the 
 
 parties, 379. 
 necessary for a deed of bargain and sale, 441. 
 
 need not be expressed in the deed, though usual and advisable to do so, 442. 
 CONSTRUCTION 
 
 of deeds, 401 et seq. See Deed. 
 CONTINGENT REMAINDER, 168. See Remainders. 
 CONTRIBUTION, 
 
 among co-tenants for repairs, 188. 
 CONVERSION 
 
 of land into money, 261. 
 of money into land, 261. 
 CONVEYANCES. See Deed. Lease. Assignment et seq. 
 should be acknowledged, &c., 122. 
 can transfer no more than grantor has, 54. 
 when void, 360. 
 different kinds of, 371, 372. 
 CONVEYANCER, 
 
 should insert in lease covenants in relation to the destruction of buildings 
 
 by fire &c., 83, 210. 
 so as to fixtures, 83, 84, 89. 
 
 to manure, 84. 
 his duty in framing trusts in marriage settlements, 281. 
 should follow the language of the statute, 281. 
 
 provide for various contingencies, 281, 282. 
 how far back title, should be deduced, 314, 315. 
 in determining value of estate descended, should inquire for incumbrances, 
 
 charges, advancements &c., 337, 338. 
 duty as to searches, 339, 343. 
 should be familiar with the doctrine of adverse possession, and reasons for 
 
 it, 360. 
 his duty, when grantor is deaf, dumb or blind, 376, 377, 382. See Deed. 
 as to subscribing witnesses, 388. 
 alterations, erasures &c., 401. 
 words of hmitation in deed, 408. 
 duty as to covenants, 412, 418, 419, 427, 430. 
 correct forms should be followed, 423. 
 what covenants are usually inserted, 429 et seq. 
 form of deeds on sale of intestate's estate, by order of surrogate, 450. 
 duty in investigating a title under sheriff's sale, 458. 
 in drawing a will, 483, 484, 486, 487, 488, 490, 491.
 
 662 INDEX. 
 
 CONVEYANCER— confonweti. 
 
 with reference to drawing wills, 508, 511, 525. 
 as to abstracts. See AbstbactSj passim. 
 CONVICTS, 
 
 when and for what crime excluded from inheriting, 322. 
 COPARCENARY, 
 
 in what cases at common law, 177. 
 
 does not exist in this state, 177. 
 CORPORATION, 
 
 when allowed to hold land, 46. 
 
 when it takes a fee, 46. 
 
 by what words, 46. 
 
 not dissolved ipso facto by sale of its property, 149. 
 
 some decree of court necessary, 149. 
 
 rehgious, how created, 240, 241. 
 
 power to convey land, 377. 
 
 may be grantees, when their charter permits, but not otherwise, 378. 
 
 deed, how executed by, 383, 384. 
 
 how proved or acknowledged, 393. 
 
 how permitted to alien their lands, 445, 446. 
 
 when permitted to hold by devise, 475, 476. /Sfee Devise. 
 COUNTY COURT, 
 
 its jurisdiction on sale of lands by married women, under act of 1860, 453. 
 
 when it may assign dower, 75. 
 COURT OF CHANCERY 
 
 abolished, and supreme court takes it place, 248. 
 COVENANTS, 
 
 which run with the land, 205, 207, 415, 416. 
 
 how defined, 411. 
 
 of two kifids, express and implied, 411. 
 
 implied, how far abrogated by R. S. 411, 412. 
 
 usual ones inserted in deeds, 412. 
 
 what run with the land and what do not, 412, 416. 
 
 of seisin, broke when made, 412. 
 
 measure of damages for breach of it, 413. 
 
 against incumbrances, when broke, 413. 
 
 for quiet enjoyment, 413, 414, 415. 
 
 goes to the possession, 414, 415. 
 
 rule with respect to covenants running with the land, 414. 
 
 which run with the land, 416. 
 
 list of them stated by Cowen, J. 416. 
 
 such covenants relate to the land, 416. 
 
 for further assurance, duty of parties with respect to, 417. 
 
 who can enforce sucli, 418. 
 
 in leases, usual covenants, 426, 427, 428. 
 
 effect of destruction of buildings by fire, 428. 
 
 for rebuilding &c., run with the land, 428. 
 
 no implied covenant that landlord should repair, 427.
 
 INDEX. 663 
 
 COVENANTS— c<m«mMe<f. 
 
 with respect to repairs, should be inserted, 429. 
 
 also to surrender up at the end of term, 430. 
 
 to pay taxes &c., quiet enjoyment, 430. 
 
 not to assign or underlet, 430, 431. 
 
 when in restraint of alienation, void, 431. 
 
 quarter sales when void, 431. 
 
 right of re-entry for non-payment of rent, 431. • 
 
 to stand seised to uses, obsolete, 440. 
 COVERTURE, 
 
 disability of, as to devising land, 473. See Married Women, 
 CREDITOR, 
 
 may compel executors, and administrators to apply to the surrogate for or- 
 der to sell land to pay debts of the deceased, 342, 343i 
 
 his right to redeem land sold by execution, 460. 
 
 mode of such redemption, and effect of deed, 460. 
 CROSS REMAINDERS, 
 
 how defined, 173. 
 
 do not exist now by that name, 173. 
 CURTESY, 
 
 an estate for life, how defined, 58. 
 
 requsites to create the estate, 58. 
 
 what seisin in the wife necessary, 58. 
 
 marriage, a legal one necessary, 58. 
 
 persons capable of enjoying the estate, 59. 
 
 effect of the laws of 1848, 1849 and 1860, 59, 60. 
 
 conflicting decisions on, 59, 60. 
 
 may be in a rent charge, 209. 
 
 party may make a lease for his own life, 432. 
 
 D 
 
 DEATH 
 
 of cestui que vie, when presumed, 99. 
 
 of principal, when a revocation of a power of attorney, 270. 
 DEBTOR, 
 
 by judgment, how-long entitled to redeem his lands, sold under execution, 
 458. 
 DEBTS 
 
 of ancestor, an equitable lien on his realty, 339. 
 
 personal estate the primary fund to pay them, 339. 
 
 heirs, when and how far liable for, 339. 
 DEDICATION, 
 
 meaning of the term, 223. 
 
 extends to streets, highways, public squares, burying grounds, 223, 226. 
 
 may be express or implied, 223. 
 
 by grant, estoppel, or adverse enjoyment, 223, 224. 
 
 laying out lots bounded on streets or alleys, amounts to, 224.
 
 664 INDEX. 
 
 DEmCATlOliJ— continued. 
 
 must be adopted by the public, by user or otherwise, to be effectual, 224, 
 225. 
 
 a user of twenty years evidence of acceptance and of a grant, 225. 
 
 applies to rivers, as public highways, 225. 
 
 need not be by deed or grant, 227. 
 
 how it differs from prescription, 349. 
 DEED, 
 
 recitals in, estop parties, 366, 367. 
 
 general recitals cannot control plain words, 366, 367. ^See Estoppel. 
 
 how defined, and the different kinds at common law, 372. 
 
 by statute, 375. 
 
 poll, and indented, 372. 
 
 modern practice with respect to, 372. 
 
 must be acknowledged before the proper officer, 373. See Ackowlbdq- 
 
 MENT. 
 
 can convey no more than grantor has, 374, 421, 422. 
 
 devests title of grantor and vests it in grantee, 375. 
 
 ten requirements essential to a deed, 376. 
 First: parties to it, must be natural persons, 376. 
 
 or artificial, as corporations, 376. 
 
 grantors must be of full age, 376. 
 
 of sound mind, 376. 
 
 not under disability, 376. 
 
 how made by persons born deaf and dumb. 376. 
 persons blind, 377. 
 
 not by idiots or lunatics, 377. 
 
 definition of idiocy and lunacy, 373. ^See Idiot. Lunatic. 
 Second : consideration, not indispensable at common law, 378. 
 
 advisable to have one and to express it in deed, 378. 
 
 •voluntary deed, when void, 378. 
 
 consideration of two kinds, good and valuable^ 379. 
 
 definition of them, 379, 380. 
 Third : writing on paper or parchment, 380. 
 
 with pen and ink, 380, 381. 
 Fourth : must contain proper words, legally and orderly set forth, 381. 
 
 there are seven, 381, 382. 
 Fifth : reading, if it be desired, 382. 
 
 if party blind or illiterate, 382. 
 Sixth : subscribed and sealed, 382. 
 
 meaning of the word sealing, 382. 
 
 must be an impression on wax or wafer, 382. 
 
 in what cases an impression on the paper alone is sufficient, 383. 
 
 how executed by corporation, 383. 
 Seventh-: must be delivered by party or his attorney, 384. 
 
 mode of delivery explained, 384. 
 
 need not be delivered, if by a corporation, 384. 
 
 should be delivered to grantee, 385.
 
 index: 665 
 
 DEED — continued. ' 
 
 or to a stranger for his benefit, 385. 
 how delivered as an escrow, 385, 386. 
 when such deed takes effect, 385. 
 form of delivery as an escrow, 386. 
 Eighth : attestation hy witnesses, 386. 
 good between the parties without, 386. 
 when witnesses are required, 386. 
 must have been present at the execution, 387. 
 where no subscribing witness, how proved, 387. 
 should be credible persons, 388. 
 Ninth : should be acknowledged before a proper officer, 388. 
 who are the officers, and their duties, 389, 390, 391. 
 how acknowledged by a corporation, 393. 
 by an attorney, 393. 
 by non-residents, 393. 
 certificate of officer requires no proof of its genuineness, 395. 
 when subscribing witness is dead, how proved, 395. 
 Tenth : must be recorded in the county where the lands lie, 395, 548. 
 effect of omitting to record deed or mortgage, 396. 
 when certificate of county clerk to acknowledgment necessary, 396. 
 must be recorded in the proper books, 397, 398. 
 the defeasance also in same book, 398. 
 
 when doubtful as to which book, it may be recorded in both, 399. 
 taking the acknowledgment is a ministerial act, 399. 
 how avoided by matter ex post facto, 399. « 
 
 when by erasure, alteration, &c. 400. 
 alteration, &c. should be noted by the witness or the acknowledgmg 
 
 officer, 401. 
 rules as to construction, 401, 402, etseq. 
 intention to be sought, 402. 
 ambiguity, patent and latent, explained, 402, 403. 
 which bears more than one construction will be construed most strongly 
 
 against grantor, 403. 
 when equivocal, grantee to elect, 403. 
 construction of grant is matter of law, 404. 
 when void for uncertainty, 404. * 
 
 how land may be described, 405. 
 with respect to boundaries on rivers and highways — the center is the line, 
 
 405, 406. 
 practical location, effect of, 406. 
 how far acquiescence in an erroneous line binds, 407. 
 by what words different estates are created, 407. 
 the word " heirs" not indispensable to create a fee, 407, 408. 
 as to words necessary to create an estate for years or at will, or an estate in 
 
 common, 409, 410. 
 usual covenants in deeds, 415, 416. See Covenant. 
 the several kinds of deeds, 419 et seq.
 
 666 INDEX. 
 
 DEED — continued. 
 
 feoffmeut, 420. 
 gift, 420. 
 grant, 421. 
 
 difference between feoffment and grant, 420^22. 
 bargain and sale, and lease and release are grants, 423. 
 conveyances good without covenants, 423. 
 bargain and sale, tlie usual mode of assurance, 441. 
 must have a consideration, and void without, 441. 
 need not be expressed, but advisable to have it so, 442. 
 no precise words necessary to raise a use, 442. 
 rent may be reserved in a bargain and sale in fee, 442. 
 such rent is a sufficient consideration, 442. 
 deed to lead uses, or revoke them, 444. 
 
 on sale of infant's estates should recite the proceedings, &c., 449. 
 by sheriff, at the expiration of fifteen months from the sale, 460. 
 relates back to the time of sale, 460. 
 
 of the party by whom the deed should be made, and who should pay the 
 expei^ses, 558, 562. 
 DEFEASANCE, 
 
 defined, and how it differs from a condition, 440. 
 need not be executed at the same time as the deed, 440. 
 if it relate to a deed, it must be under seal, 440. 
 DEFEASIBLE ESTATES 
 
 described, 54. 
 DELIVERY 
 
 of a deed, 385, 386. ^ee Deed. 
 DESCENT, 
 
 title by, defined, 316. 
 
 who capable of taking by, 317, 318. 
 
 and who not, 318. 
 
 not essential that the heir should be born during lifetime of the parents, 318. 
 */Sfee Alien. Bastard. Illegitimates. Heirs. Children, posthumous. 
 
 persons convicted of felony, when excluded, 322. 
 
 law of descent before 1830, 323, 324. 
 
 possessio fratris, rule with respect to, 324, 325. 
 
 who has such an estate as to constitute a stock or stirps of descent, 325. 
 
 ;?rs< rule of descent, 326, 327. 
 
 persons embraced in the rule, 326. 
 
 alterations from the former rule, 326. 
 
 not necessary that the ancestor should have been the person last seised, 326. 
 
 rule at common law excluded parents, 327. 
 
 rule changed so as to include them, 327. 
 
 when immediate descent to children is suspended, 327, 328. 
 
 effect of act of 1860, see note, 328. 
 
 second rule of descent, 328, 329. 
 the like at common law, 328.
 
 INDEX. §$7 
 
 DESCENT— continued. 
 
 third rule, in case of no descendants, it goes to parents — first, to the father; 
 
 second, to the mother, 330, 331. 
 fourth rule, when it goes to collaterals, 332. 
 old rule on the same subject, 332. 
 reason of the old rule, 332. 
 how modified by the revised statuteSj 332, 333. 
 descendants take per capita when in equal degree of consanguinity to the 
 intestate, 333. 
 
 per stirpes, when in different degrees, 333. 
 fifth rule, in default of lineal descendants, parents, brothers and sisters, who 
 to take, 333. 
 brothers and sisters of the father of intestate, 333. 
 if any be dead, to their descendants, 333. 
 sixth rule, if inheritance came to intestate on the part of his father, who 
 preferred, 334. 
 
 if on the part of the mother, 334. 
 how this was at common law, 334. 
 the sixth and seventh canons at common law abrogated by the revised 
 
 statutes, 334. 
 provision as to illegitimates, 318, 335. 
 
 in all other cases, descent according to the common law, 335, 336. 
 as to dignity of blood at common law, 336. 
 
 rules of descent apply to estates in remainder and reversion, 336. 
 doctrine of advancement considered, 338. 
 
 liability of heirs and devisees for debts of ancestor and devisor, 339. 
 DETERMINABLE FEES, 
 
 how become absolute, 54. 
 DENIZEN, 
 
 how defined, 321, note. 
 not known in our law, 321. 
 DEVISE, 
 
 nature of it defined, 470. 
 
 is governed by the lex rei sitae, 471. 
 
 a will of personal property, by the lex domicilii, 472. , 
 
 parties to a devisee ; all persons except idiots, lunatics, married women and 
 
 infants, 472. See Idiot. Lunatic. Married Women. Infant. 
 all nattiral persons may take by devise, 474. 
 posthumous children may take, 474. ' 
 
 married women and illegitimates, 474. 
 corporations, can only take when authorized by their charter, or by special 
 
 laws, 475, 476. 
 policy of the laws, with respect to, 476, 
 to aUens, how far valid, 477, 478. 
 real estate, the proper subject of, 478. 
 after-acquired lands, pass by, 478, 479. 
 but not at common law, 478, 479. 
 trust estates, not devisable. 479, 480.
 
 668 INDEX. 
 
 DEVISE — continued, 
 
 equitable freeholds may be devised, 480. 
 
 so also, a possibility coupled with an interest, 480. 
 
 estates held adversely may be devised, 480. 
 
 but not estates held in joint tenancy, 480. 
 
 mortgagor, before foreclosure, may devise, 481. 
 
 rent charge is devisable, 481. 
 
 formalities necessary to a valid devise^ 481. 
 
 must be made by parties of full age, and not under disability, 481. 
 
 must be subscribed by testator, at end of the will, 482, 484. 
 
 will must be in writing, written with pen and ink, 483. 
 
 not material in what language, 483. 
 
 may subscribe by his mark, 484. 
 
 must be subscribed in the presence of ttvo witnesses, 485. 
 
 must be declared by testator to be his will, 486. 
 
 attestation clause, not indispensable, but it is advisable to do it, 487. 
 
 each witness must sign his name at the end of the will, 488. 
 
 and subjoin his place of abode, 488. 
 
 must sign at the request of the testator, 488, 489, 490. 
 
 attestation clause should be read over to the witnesses, 491. 
 
 if testator is blind or illiterate, the will should be read over in the presence 
 
 of the witnesses, 491. 
 codicils are executed with -the same formalities, 491. 
 revocation and republication of wills, 492. 
 revocation by subsequent will, expressly so declaring, 492. 
 implied, by marriage and birth of a child, 493. 
 effect of marriage by a feme soU on her will, 494. 
 by sale of the lands devised, 495, 496. 
 to post testamentary children, 497. 
 effect of a partition, or a conveyance of land upon, 498. 
 how far and when it lapses, and when not, 498. 
 revocation of a will, not to revive a former one, 498. 
 when devises are void, 500 et seq. 
 to corporations not authorized to take, 500, 501. 
 • to charities, by a party having a husband, wife, parent or child, qualified, 
 501. 
 object of the law, 501. 
 to an alien, when void, 502. 
 when void for uncertainty, 502, 503. 
 general maxims of construction of wills, 504, 505. 
 will and codicil to be construed together, 504. 
 how words are to be understood, 504. 
 construction with reference to the estate, 506, 507. 
 when some devises good and some bad, effect of, 508. 
 as to ihe description of the property, 509, 510. 
 effect of the word estate in, 510. 
 as to description of devisee, 511, 512. 
 executory devises, 513, 523.
 
 INDEX 669 
 
 DEVISE — continued. 
 
 when void for uncertainty, 514, 515. 
 
 when a blank is left for the legatee's name, it cannot be supplied by parol, 
 516. 
 
 examples of void legacies, 514—519. 
 
 by what words particular estates are created, 519. 
 
 distinctions between a wiU and a deed, 520. 
 
 what words create a condition, 520. 
 
 distinction between condition and limitation, 520, 521. 
 
 mode of charging real estate by will, 521. 
 
 charge may be express or implied, 522, 523. 
 
 residuary clause not enough alone, 522. 
 
 executory devises, how defined, 523. 
 
 distinction between them and remainders, 524. 
 
 effect on suspending power of alienation, 525. 
 
 object of residuary clause in will, 526. 
 
 will should be proved as a will of land, 542. 
 
 and be recorded, 549. 
 DEVISEE, 
 
 when liable for debts of testator, 339. 
 
 may oppose sale of real estate, 341. 
 
 allowance of claims against the estate, 341. 
 
 who may be devisee. See Devise, 
 DIGNITY 
 
 of blood, rules with respect to, at common law, 336. 
 DISABILITY, 
 
 what sufficient to prevent the statute of Hmitations from commencing to run, 
 358, 359. See Insane. Infants. Married Women. Imprisoned. 
 DISCONTINUANCE, 
 
 how defined, 298, 
 DIVORCE, 
 
 its effect on dower, 65, 66, 70. 
 
 as to decree of nullity, 66. 
 
 a mensa et ihoro, effect of, 66. 
 DOMIOIL , 
 
 of origin, retained till another is acquired, 472. * 
 
 the change defeats an intention, 472. 
 
 a temporary change, effect of, 472. 
 DOWER, 
 
 definition of the estate, 61. 
 
 what circumstances requisite to the estate, 62. 
 
 marriage, seisin of the husband and his death, 62. 
 
 not of an instantaneous seisin, 62. 
 
 as to mines, how dowable, 62, 63, 
 
 in general not dowable of an estate in dower, 63, 
 
 two widows not dowable of the same estate at the same time, 63. 
 
 wife of mortgagor, how far dowable, 63, 64. 
 
 object of wife joining in deed of her husband, 64.
 
 670 INDEX. 
 
 DOWER-— continued. 
 
 if wife an infant, not barred by her deed, 64. 
 
 in exchange of lands, how endowed, 64, 65. 
 
 exchange, how defined, 65. 
 ■ marrriage, must be legal, 65. 
 
 effect of dower on the estate, 65, 66. 
 
 may be barred by a jointure, 66. 
 
 meaning of the terms, 66, 67. 
 
 mode of assenting to it by the wife, 67. 
 
 barred by a testamentary provision, 68. 
 
 by what words effected, 68. 
 
 when the wife put to her election, 69. 
 
 of what seisin of the husband dower is predicable, 69 
 
 when forfeited by divorce or elopement, 70. 
 
 effect of adultery on jointure, 71. 
 
 not barred by alienation of the husband, 71, 72. 
 
 unless the wife joins in the deed, 72. 
 
 how recovered when husband did not die seised, 72 
 
 favored in law, 72. 
 
 rule in equity, 72. 
 
 rule where permanent improvements have been put on by the heir, 73. • 
 
 rights of widow, on death of her husband, as to Wrrying in the mansion 
 house, 73. 
 
 her right before assignment not transferable, 73. 
 
 who can assign dower, 73. 
 
 must be demanded within 20 years, 74. 
 
 mode of assigning by metes and bounds, 74. 
 
 when remedy to recover dower is only in equity, 74. 
 
 may be set off by snrrogate, county court or supreme court, on petition, 75i 
 
 when damages are to be allowed, 75. 
 
 rule by which damages are assessed, 75. 
 
 incidents to the estate in dower, 76. 
 
 may make leases and have estovers, 76. 
 
 may be granted in a rent charge, 209. 
 DURABLE LEASES, 
 
 create a rent charge, 207, 425. See Rent, Leabk. 
 
 E 
 
 EJECT^CENT, 
 
 cannot be brought on a mortgage, before foreclosure, 142. 
 
 former action to recover possession of land, 352. 
 
 superseded by the code of procedure, 352. 
 
 party having legal title, may bring an action, 352. 
 
 but one form of remedy provided by the code, 352. See Adveese Pob- 
 
 SK8S10N. 
 
 ELECTION, 
 
 title by, reason and ground of the rule, 363. 
 
 the party claiming under a wiU, must give effect to it, 363.
 
 INDEX. 67i 
 
 ELOPEMENT, 
 
 its effect on the right to dower, 70. 
 
 rule with respect to, at common law, 70. 
 EMBLEMENTS, 
 
 what understood to be, 77. 
 
 extend only to annual growth &c. 77. 
 
 do not extend to grass, 77. 
 
 founded on the clearest equity, 77. 
 
 applies to roots, &c. 77. 
 
 tenant for years not entitled to, 83. 
 
 unless stipulated for in the lease, 83. 
 EMINENT DOMAIN, 
 
 right of, defined, 464. 
 
 application of the right, to roads and bridges, 465, 466. 
 to corporations, 147, 467. 
 
 Hmitation of the right, 467, 468. 
 
 title of lands in fee, though granted to a corporation, 469. 
 
 rail road company may sell their lands in fee, 469. 
 
 proceedings on taking land for a rail road company, against the will of the 
 owner, 470. See Appendix. 
 ENTRY, 
 
 what sufficient to avoid the statute of limitations, 352, 358. 
 
 right of, of a reversioner, or remainderman, not affected by the statute, 360. 
 
 what constitutes an entry, 352. 
 EQUITY, 
 
 when it will aid a defective execution of powers, 266, 267. 
 EQUITABLE CONVERSION, 
 
 in what cases it takes place, and what it is, 261. 
 EQUITABLE ESTATES, Part II, page 226 et seq. 
 
 subject divided, 226. 
 EQUITY OF REDEMPTION, 
 
 hke a trust estate, 143, 144. See Moetgagb. Foeholostjee. 
 
 is subject to curtesy of husband, 144. 
 to dower of wife, when, 144. 
 
 subsequent incumbrancers may redeem, 144. 
 
 may be sold by order of surrogate to pay debts, 144, 145. 
 
 when premises incapable of division, 145. 
 
 to be sold in inverse order of alienation, 146. 
 
 mode of computing interest on the security, 147. 
 
 interest upon interest not allowed, 147. 
 ESCHEAT, 
 
 meaning of, at common law, 344. 
 
 as modified by revised statutes, 344, 345. 
 
 liable to previous trusts. 345. 
 ESCROW, 
 
 meaning of the term, 385. 
 
 must be delivered to a stranger, 386.
 
 672 INDEX. 
 
 ESCROW— ^onfmwed 
 
 and not to the party himself, 386. 
 
 apt words must be used, 386. See Dbko. 
 ESTATE, REAL, 
 
 definition of, 47, 50, 510. 
 
 technical meaning of the term, 47. 
 
 quality and quantity of, how defined, 48. 
 
 of freehold and less than freehold, 49. 
 of inheritance, absolute, 49. 
 of inheritance, defeasible, 52. 
 not of inheritance, 65, 56. 
 
 upon condition, 100. 
 
 may be charged with debts and legacies in. a will, 343. 
 
 effect of the word in a devise^ 510. 
 ESTATES PUR AUTER VIE, 
 
 devisable by will, 362. 
 
 when not devised, go to executors or administrators, 362. 
 ESTATES IN EXPECTANCY, 156 et seq. See REMAUfDEB. Revebsion. 
 ESTATE FOR LIFE, 
 
 different kinds of, 56 et seq. 
 
 for one's own life, the most valuable, 56. 
 
 may be aliened, 57. 
 
 for life of another, an estate pur auter vie, 57. 
 
 to whom it goes on death of the tenant, 57. 
 
 when devisable, and rights of devisee, 58. 
 
 by the curtesy, 58. See Ctjbtesy. 
 
 in dower, 61. See Do web. 
 
 incidents of, 76 et seq. 
 
 subject to merger, 76. 
 
 entitled to emblements, 77. 
 
 must keep down the interest of debts, 77. 
 
 tenant for life entitled to deeds, 78. 
 
 cannot dig gravel, nor open a mine, 78, 
 
 cannot cut timber or commit waste, 78. 
 
 maj l36 limited as a remainder, on a term of years, 164. 
 ESTATES LESS THAN FREEHOLD, 
 
 what they are, 80. 
 ESTATE TAIL, 
 
 how defined, 52, 53, 
 
 when turned into estates in fee, 53, 54, 336, 337. 
 
 rule of descents under, 336, 337. 
 ESTATES AT WILL, 
 
 how defined, 93. 
 
 how created, 94, 
 
 cannot be assigned, 94. 
 
 how terminated, 94, 95. 
 
 when entitled to notice to quit, 96. 
 
 by what words the estate is created, 409.
 
 INDEX. 673 
 
 ESTATE FOR YEARS, 
 how defined, 80. 
 
 must have a certain beginning and end, 80. 
 created by act of the parties, 80. 
 usually by a written lease, 80. 
 but may be by parol, 80. 
 is denominated a chattel interest, 81. 
 the term seisin not applicable to, 81. 
 estate of freehold cannot be created out of, 82. 
 incidents of, 82. See Estovees. 
 liable for waste, 82. 
 
 when tenant liable, if building destroyed by fire, 83, 428. 
 may be surrendered, 91. 
 effect of the surrender, 91. 
 subject of merger, 92. 
 meaning of merger, 92. See Mekgkk. 
 requisites of merger, 92, 93, 296, 297. 
 a contingent remainder may be created in a term of years, 164. ike Rb- 
 
 MAINDEB. 
 
 ijo implied covenant for lessor to repair, 427. 
 
 nor that premises are tenantable, 427. 
 
 except as to furnished lodgings, 427. 
 
 usual covenants in leases, 427, 428. See Appendix of Foems. 
 
 statute of 1860, as to destruction of the premises, 428. 
 ESTOPPEL, 
 
 title by, how defined, 364. 
 
 three kinds, by record, writing, in pais, 364-368. 
 
 what necessary to make a record conclusive, 364. 
 
 reversal of the judgment destroys it, 365. 
 
 by matter in writing, 1, under wills, 365. 
 2, under deeds, 366. 
 
 not estopped by the admission of a conclusion in law, 366. 
 
 general recital not enough to control the plain words of deed, 366, 
 
 its effect on claim for dower, 367. 
 
 as between landlord and tenant, 368. 
 
 3, by matter in pais, 368. 
 
 object of the rule to prevent injustice, 368. 
 
 must, by reciprocal, 369. 
 
 certain to every intent, 369. 
 ESTOVERS, 
 
 an incident of life estate, defined, 76. 
 
 no right to cut down ornamental trees, 76. 
 
 for fuel, to take dry wood, 76. 
 
 tenant must do as little damage as possible, 76. 
 
 tenant for years entitled to, 82. 
 EXECUTORS, 
 
 when they have a power to sell land by implication, 261. 
 
 Will.— 43
 
 674 INDEX. 
 
 EXECUTORS AND ADMINISTRATORS, 
 
 take the personal estate on death of the owner, 316. 
 
 what goes to executors, rather than heirs, 317. See FiXTXTiutfl. 
 ■ when to apply to surrogate for lease to sell land, 340. 
 estates pur auter vie go to, 362. 
 EXECUTORY CONTRACT, 
 
 when extinguished, 304. 
 
 not unless a higher security is taken, 305. 
 
 payment extinguishes it, 305. 
 
 performance of a contract extinguishes it, 305. 
 
 parties may, by consent, deviate from it, 306. 
 EXECUTORY DEVISES, 
 
 could not be defeated by destruction of the particular estate, 172. 
 
 how defined, and how they differed from a remainder, 174. 
 
 how limited by law, 513. 
 EXECUTION, 
 
 may be issued, after the docketing, at any time within five years, 455. 
 
 form of, and its requirements, 455. 
 
 returnable within sixty days, 455. 
 
 sheriff's sale by virtue of, and title by, 454, 455. 
 EXCHANGE, 
 
 its effect on estates in dower, 64, 65. 
 
 defined, not used in this state, 433, 434. 
 
 requisites to a valid exchange, 434. 
 
 at common law, implies a warranty, 434. 
 
 how made in modern practice, 435. 
 EXTINGUISHMENT, 
 
 of rent, when and when not, 218. 
 
 when by judgment or bond, 218, 305. 
 
 meaning of the term, 297, 300. 
 
 union of legal and equitable estates, 300, 301, 302. 
 
 exemplified in mortgages, 302. 
 
 how qualified in equity, 302, 303. 
 
 by giving a higher security for a debt, 304, 305. 
 EVICTION, 
 
 when a bar to rent, 209. 
 
 what constitutes such eviction, 209. 
 
 a physical one not necessary, 209. 
 
 an injurious disturbance of the beneficial enjoyment by the tenant, consti- 
 tutes, 209. 
 
 F 
 
 FAMILY ARRANGEMENTS. See Marriage Settlements, 272 d sej. 
 FATHER, 
 
 when to inherit from a child, 331, 332. See Descent.
 
 IXDEX. 675 
 
 FEES, 
 
 determinable, may become absolute, 55. 
 
 conditional, when abolished, and by what succeeded, 55. 
 
 what still exist, 54. 
 FEE SIMPLE, 
 
 estate o^ defined. 49, 50. 
 
 words necessary to create it by the common law, 50. 
 
 incidents of the estate, 51. 
 FEE TAIL, 
 
 how defined, 52, 53, 167. 
 
 when turned into estates in fee, 53, 54, 167. 
 FEME COVERT. See Married Woman. 
 FENCES, 
 
 are in general fixtures, not to be removed, 84, 85. 
 FENCma MATERIALS, 
 
 temporarily detached, are still treated as fixtures, 85. 
 
 unless there is an agreement to the contrary, 85. 
 FEOFFMENT, 
 
 former mode of conveyance abolished in New York, and grants substi- 
 tuted, 373. 
 
 operation of a feoffment, 420. See Deed. 
 FEUDAL SYSTEM, 
 
 origin of our tenures, 41. 
 
 its oppressive features never adopted here, 43. 
 FINES AND RECOVERIES, 
 
 abolished, 373. 
 FIRE, 
 
 when destruction of a building by fire will absolve the tenant, 83, 210. 
 
 usual and safe course to guard against it, by stipulations in the lease, 83, 210. 
 See form of Leases with the fire clause, in the Appendix. Landlord and 
 Tenant. 
 FIXTURES, 
 
 rule as between landlord and tenant, 83. 
 
 when affixed for manufacturing purposes, 84. 
 
 fences and trees are real estate, 84. 
 
 right to remove fixtures may depend on covenant, 84. 
 
 nursery men may reniove shrubs, &c. 84. 
 
 the manure made on the farm belongs to the farm, 84. 
 
 it cannot be sold off by tenant, 85. 
 
 different kind of fixtures considered, 85. 
 
 hop poles are fixtures and belong to the land, 85. 
 , continue so, though piled up in the yard, 85. 
 
 right between heirs and executors, 86. 
 
 as between landlord and tenant, 86. 
 
 tenant should make the removal during his term, 86. 
 
 as regulated by the revised statutes, 86. 
 stoves put up for use, 87. 
 
 annexation by tenant for his own convenience, 87.
 
 676 INDEX. 
 
 TIXTTJRES— continued. 
 
 as between mortgagor and mortgagee, 88. 
 vendor and vendee, 88, 89. 
 
 physical annexation not necessary, 89. 
 
 charter and deeds, heir looms, &c. 89. 
 
 as between executors of tenant for life and the remainderman, 90. 
 
 remarks on, in note, 621. 
 FOOT-PATH. See \y AYS. IMetseq. 
 FORECLOSURE, 
 
 of mortgages in equity, 141. 
 
 strict foreclosure, and decree of sale, 141. 
 
 no bar to action on the bond, 141. 
 
 former practice referred to, 142. 
 
 present practice indicated, 142. 
 
 all persons having a lien on the premises to be made parties, 142. 
 
 if creditor proceed in equity, he cannot proceed at law without leave, 142. 
 
 if he proceeds at law first, he cannot sell mortgaged premises on the exe- 
 cution, 142. 
 
 ejectment cannot be brought on a mortgage, 142. 
 
 if the deed be absolute on its face, and shown by parol to be meant as a 
 security for a debt, only remedy is in equity, 143. 
 
 if a third person not a party to the mortgage be liable, he xa&j be joined in 
 the action, 143. 
 
 if mortgage given to perform covenants, remedy is in equity, 143. 
 
 if no power of sale in the mortgage, the remedy is in equity only, 143. 
 
 a subsequent mortgagee may file bill to redeem, 143. 
 
 equity of redemption, is like a trust estate, 143, 144. 
 
 the legal seisin is in mortgagor, 143. , 
 
 owner of the equity of redemption a necessary party, 144. 
 
 equity of redemption is subject to curtesy, 144. 
 also to dower, 144. 
 
 a subsequent incumbrancer by judgment or other lien, may file a bill to 
 redeem, 144. 
 
 the purchaser under a junior lien takes it subject to prior incumbrances, 145. 
 
 mortgage payable by installments, should be foreclosed in equity, 145. 
 
 so also when premises incapable of division, 145. 
 
 when nothing is due but the interest, 145. 
 
 decree will stand for future payments, 145. 
 
 sometimes the land is the primary fund, 146. 
 
 equity will in such cases so enforce it, 146. 
 
 order in which successive mortgages are to be paid, 146. 
 
 in the inverse order of their alienation, 146. 
 
 when parts of premises have been sold at different times, same rule applies, 
 146. 
 
 same as to general liens, 146. 
 
 mode of computing interest, 147. 
 
 compound interest not recoverable, 147.
 
 INDEX. 677 
 
 FORECLOSURE— cojifi/med 
 
 agreement to pay interest upon interest not usurious, but will not be en- 
 forced, 1 17. 
 
 such interest, if voluntarily paid, cannot be recovered back, 147. 
 
 otherwise if paid by mistake, 147. v 
 
 a rail road and its franchises may be mortgaged, 147. 
 
 mode of doing so, 148. 
 
 mortgage must be proved, and recorded in all the counties through which 
 it passes, 148. 
 
 nature of the franchise, 148. 
 
 road may be mortgaged without the franchise, 148. 
 
 sale on foreclosure, must be in the county where the lands ,are, 454. See 
 Mortgage. 
 FORFEITURE, 
 
 courts lean against, 104. 
 
 how alienation of tenant will work it out, 104. 
 
 it must be voluntary, 104. 
 
 when once waived cannot be again claimed, 104. 
 
 mode of taking advantage of, 108. 
 
 consequences of a recovery, 109. 
 
 as a source of title, how it arises, 346. 
 
 for what crimes and how enforced, 346. 
 FRACTIONAL PARTS 
 
 of a year, how computed, 81. 
 
 a whole year 365 days, 81. 
 
 half year, 182 days, 81. 
 
 a quarter year, 91 days, 81. 
 
 the added day of leap year, and the day preceding, reckoned as one 
 day, 81. 
 FRANCHISE, 
 
 meaning of the term, 148, 200, 202. 
 
 may be mortgaged by rail road companies, 148. 
 
 with or without the track of road, 148. 
 
 purchaser may organize a new company, 148. 
 
 banking institutions, 200. 
 
 right to erect a wharf or a dam, 200. 
 
 grant of, construed strictly, 201. 
 
 legislature not restricted by one grant from making another similar one, 
 201, 
 
 cases on the subject, 201, 202. 
 FRAUDS, 
 
 relief granted in case of, by supreme court, 248. 
 
 limitations of the action, six years, 248. 
 FRAUDS, STATUTE OF, 
 
 requires a lease, for a longer term than one year, to be in writing, 80, 
 81, 426. 
 
 oral lease, though void for more than a year, is good for one year, 426.
 
 678 INDEX. 
 
 PRAUDS, STATUTE OF— continued. 
 
 requires a contract for the sale of land to be in writing, and subscribed, &c. 
 375, 376. 
 
 the authority of the agent not required*tobein writing, 376. 
 FREEHOLD ESTATE, 
 
 of inheritance, 49. 
 
 when absolute, and when conditional, 49. 
 
 subject to dower and curtesy, 51. 
 
 hable to be charged with the debts of the owner, 51. 
 
 not of inheritance, what, 52. 
 
 how created, 55. 
 
 different kinds of, 55, 58. 
 FUTURE ESTATE, 157. See Remaixdee. Reversion, Executory Devises. 
 
 GARDENERS AND NURSERYMEN, 
 
 may remove trees «&c. 84. 
 
 when it is in the course of their business, 84. 
 
 such things as plants, shrubs &c., are not treated as fixtures, 84. 
 
 the right to remove them usually provided for in the lease, 84. 
 GRADATION OP ESTATES, 
 
 stated in order, 310, 311. 
 GRANDCHILDREN, 
 
 their rights under the statute of descents, 329. 
 GRANDPARENTS, 
 
 when they inherit, 329, 330, 332. 
 GRANT, 
 
 of right of way over grantor's land, 194. 
 
 adopted as the mode of assurance in this state, 373. 
 
 applies to corporeal as well as incorporeal hereditaments, 873. See Deed. 
 
 is conclusive against grantor, 374. 
 
 can convey no more than grantor has, 374. 
 
 recitals in, estop parties and privies, 366. 
 
 operation of a grant at common law, 421, 422. See Deed. 
 GRASS, 
 
 produced annually, without labor of man, not an emblement, 77. 
 GROWING CROPS, 
 
 go to the heir, rather than the executor, 89, 90. 
 GUARDIAN, special, deed of, by order of the court, 448. 
 
 sales by, how conducted, 448. See Infant. 
 
 H 
 
 HALF-BLOOD, 
 
 relatives of, inherit equally with those of the whole blood, 334. 
 HEIRS, 
 
 necessary word to pass a fee at common law, 50. 
 
 liot indispensable now, 50, 407, 408.
 
 INDEX gyg 
 
 HEIRS — continued, 
 
 the persons on whom the law casts the estate, on the death of the ancestor 
 intestate, 316. ' 
 
 what passes to heirs with the land, 316, 317. 
 liability of, for debts of ancestor, 339, 
 
 may oppose the allowance of claims against the estate of their ancestor, 
 341, 342. 
 HEIR LOOMS, 
 
 what they are, 89, 316. 
 
 to whom they go on decease of owner, 316. 
 HEREDITAMENT, 
 
 meaning of the term, 47. 
 
 diflferent kinds of, 47. 
 
 incorporeal discussed, 189. 
 
 different kinds of, 189. 
 HIGHWAYS, 
 
 public and private, 197. 
 
 how opened and maintained, 197. 
 
 when may be depastured, 192. 
 
 and by what animals, 192. 
 
 width of highways, 197, 198. 
 
 the fee of, in the contiguous owners, 221 
 HOP POLES, 
 
 belong to the farm as fixtures, 85. ;• 
 
 they continue so, though piled up in the yard 85 
 HORSE-PATH. See Ways, m et sea. 
 HOTCHPOT, 
 
 doctrine of, applied to the law of descent, 338. 
 
 borrowed from statute of distributions, 338. 
 
 first adopted in 1830, 338. 
 HOUSE, 
 
 owned by the owner of the fee, 50. 
 HUSBAND AND WIFE, 
 
 cannot convey to each other, 181, 265. 
 
 in what manner it is done circuitously, 181, 265. 
 
 nature of the tenancy on a deed to them, 180, 182. 
 
 survivor takes, 182. See Marriage Settlement. 
 
 husband's right to chattels personal of wife, at common law, 272. 
 
 his right to her choses in action, and chattels real, 272. 
 
 rights under act of 1860, 327, 328 and note. 
 
 in what cases the wife may convey her land without joining her husband. 
 391. 
 HYDRAULIC WORKS, 
 
 rights of the proprietor of, to the flowing water, 221» 
 occupation by one does not exclude others, 221.
 
 680 INDEX. 
 
 IDIOT, 
 
 defined as a total want of understanding from nativity, 377. 
 
 such persons cannot make a deed, 377. 
 
 may be grantee, in a grant, 377. 
 
 how their lands may be sold, 448, 449. 
 
 unable to devise lands, 472. 
 
 may take by devise, 474. 
 ILLEGITIMATES, 
 
 when cannot inherit, 318, 335. 
 
 when they can from the mother, 318, 335. 
 
 rule under act of 1855, 318, 335. 
 
 may take by devise, 474. 
 IMPRISONED, 
 
 rights of, under statute of limitations, 358, 359. 
 
 for life, deemed civilly dead, 359. 
 
 for debt, not within the exception, 359. 
 IMPRISONMENT FOR LIFE, 
 
 a civil death, 359. 
 INDIANS, 
 
 their right to hold land regulated, 44, 45. 
 INCUMBRANCES, 
 
 search for, necessary, 527. 
 
 against what parties, 528. 
 
 nature of, considered, 151, 152, 529. 
 
 judgments, how made, and from what time a lien, 152, 529. 
 
 bow long the lien continues, 153, 154, 529. 
 
 by what courts rendered, 152, 529, 530. 
 
 how discharged of record, 534, 
 
 judgment for future advances, how far a lien and incumbrance, 534, 535. 
 
 town collector's bond, when a lien, 535, 536. 
 
 taxes when a lien, 536. 
 
 bow discharged, 537. 
 
 by mortgage, how removed, 538. See Mortgage. 
 
 by whom discharge to be given, 538. See Abstracts. 
 INFANT, 
 
 rights of, under statute of hmitations, 358, 359. 
 
 feme covert, cannot make a deed, 392. 
 
 what deeds executed by, void, and what not, 446. 
 
 how their real estate may be aliened, 446, 447. 
 
 power is derived from the statute, 447. 
 
 unable to devise lands, 472. 
 
 may take by devise, 474. 
 INJUNCTION, 
 
 when granted to protect a franchise, 201. 
 
 4ind when not, 202.
 
 INDEX. ggj 
 
 INSANE, 
 
 rights of, under statute of limitations, 358, 359. See Idiots. Ltoatio. 
 
 how their lands may be aliened, 448, 449 
 INSURANCE, 
 
 by wife, of life of her husband fbr her benefit allowed, 296. 
 
 how large a premium may be paid out of husband's estate. 296. 
 INTEREST, * 
 
 mode of computing on foreclosure, 147. 
 
 upon interest, not recoverable, 147. 
 
 if voluntarily paid, it cannot be recovered back, 147. 
 
 such agreement is not usurious, 147. 
 
 recoverable on rent in arrear, 214. 
 ISSUE, 
 
 meaning of the term, as declared by statute, 168. 
 
 dying without, means at the time of tlie ancestor's death, 168. 
 
 J 
 
 JOINT ESTATES, 
 
 join/ TENANCY ' """P^'''"^'^' J^''^* '^^^^^^y and tenancy in common, 176. 
 created by purchase, 177. 
 in what cases it now exists, 177, 178. 
 properties and incidents of it, 178. 
 can compel partition, 179. 
 provisions relative to, 179. 
 trustees and executors hold in joint tenancy, 182. 
 right of survivorship, 182. 
 words by which it is created, 410. See Deed. 
 estates held in, not devisable, 480. 
 JOINTURE, 
 
 what it is and how made, 67. 
 by testamentary provision, 68, 69. 
 when widow to elect, 69. 
 when forfeited by adultery, 71. 
 
 provided for in a marriage settlement, 628. See Appendix of Forms 
 JUDICIAL SALES, 
 
 not affected by statutes against selling titles to lands held adversely, 371. 
 how conducted by sheriff, 455. See Sheriff. Judgment. 
 titles under judicial sales, how examined, 544. See Abstracts 
 JUDGMENTS, 
 
 lien of, on real estate, 151, 152. 
 
 must be filed and docketed, 152, 153. 
 
 lien not lost by delay, 153. 
 
 continues ten years from the day of the docket, 153, 154. 
 
 of U. S. courts, are also liens, 154. 
 
 when an extinguishment of simple contract, 304. 
 
 sale under judgments and executions, 454 et seq. 
 
 judgment must be a lien, 455.
 
 682 INDEX. 
 
 JUDGMENTS— con/mwed 
 
 what title may be sold, 456. 
 
 binds only corporeal hereditaments, 456. 
 
 distinction between void and erroneous, 461. 
 
 searching for, against vendor, 529, 530. ^See Abstracts, 531, 532. 
 
 ■when entered up against a dead man, 532. 
 
 lien of, extinguished by sale of the land, 532. 
 
 KIN, 
 
 K 
 
 nest of, the persona to whom the undisposed of personalty is distributed by 
 
 statute, 316. 
 may be the same persons as the heirs, and may be different, 316. 
 mode of computing the degrees of relationship, 317. 
 
 L 
 
 LAND, 
 
 who may hold, 44. 
 
 the people the ultimate source of title, 42, 344. 
 
 meaning of the term, 47. 
 
 when it is the primary fund to pay a mortgage, 146, 
 
 comprehends the water passing over it, 222. 
 
 mide of granting it, is of land covered with water, 222. 
 
 and not the water itself, 222. 
 
 action is never brought to recover water itself, but the land covered with 
 it, 222. 
 
 when treated as money, 261. See Equitable Conyersion. Descent. 
 Purchase. Sale under Judgment and Execution, 455-457. 
 LANDLORD AND TENANT, 
 
 when destruction of building by fire absolves the tenant, 210. 
 
 what eviction excuses from payment, 209. 
 
 when rent may be apportioned, 210. 
 
 interest recoverable for rent in arrear, 214. 
 
 when rent suspended or extinguished, 217, 218. 
 
 effect of the relation on adverse possession, 357. 
 
 when the possession of the tenant is the possession of the landlord, 358. 
 See Lease, infra. Landlord and Tenant, in the appendix. 
 LAPSE 
 
 of a devise, when prevented, 498. See Devise. 
 LEAP YEAR, 
 
 the added day and day preceding are reckoned as one day, 81. 
 
 statute on the subject referred to, 81. 
 LEASE, 
 
 usually in writing', 80. 
 
 a parol lease for one year good, 80. 
 
 computation of time in, 81. 
 
 may be created to commence in futuro, 81.
 
 INDEX. 683, 
 
 LEASE — continued. 
 
 is denominated a chattel interest, 81. 
 
 may be assigned by lessor or lessee, 82. 
 
 attornment by tenant to a stranger, void, 82. 
 
 assignment of reversion, effect of, 82. 
 
 tenant must pay rent, though premises destroyed by fire, 83. 
 
 statute of 1860 on the same subject, 428. 
 
 right to fixtures and to emblements, 83, 
 
 letting land on shares not a lease, 90. 
 
 limitation of terra by constitution of New York, 90, 91. 
 
 conditions in, against right of lessee to assign, 107. 
 
 ■when license to assign will discharge condition, 107. 
 
 assent to assign, express or implied, 108. 
 
 forfeiture once waived cannot be claimed, 108. 
 
 rent reserved by, to lessor or his heirs, 208. 
 
 usually reserved in leases, 208. 
 
 may be reserved in grants in fee, 208. 
 
 by what words different estates are created, 409, 410. See Deed. 
 
 its proper definition, and words by which made, 423. 
 
 letting land upon shares not a lease, 424. 
 
 grants in fee, reserving rent, are called leases, 425. 
 
 usually called durable leases, 425. 
 
 iisual form of leases, 425. See Appendix. 
 
 oral lease, for more than a year, void by statute of frauds, 426. 
 
 covenants in leases, express and implied, 426, 411. 
 
 advisable that they should be express, 427. 
 
 covenants usually inserted in leases, 429-431. See Covenakts. 
 
 who may make leases, 432. 
 
 of agricultural land, limited to 12 years, 432. 
 
 by tenant by curtesy, or in dower, 432. 
 
 by religious corporation, 432. 
 
 by guardian in socage, 432, 433. 
 
 by testamentary and other guardians, 433. 
 
 by executors &c. joint tenants, 433. 
 
 all persons may be lessees, 433. See Appendes. 
 LEASE AND RELEASE, 
 
 allowed to be used and called a grant, 443. 
 
 origin and object of it, 444. 
 LEASEHOLD ESTATES, 
 
 are such as are less than freehold, 80. 
 the estate is often called a term, 80. 
 
 must have a certain beginning and certain end, 80. 
 
 there is a privity between lessor and lessee, 80. 
 
 are created by the act of the parties, 80. 
 
 an estate for a month, or a week, is called an estate for years, 80, 
 
 usually created by a written lease 80, 423. See Lkase, 423 et sej.
 
 684 INDEX. 
 
 LEGACY, 
 
 when and bow charf^ed on real estate, 343. 
 
 what language creates a charge, 343. 
 LEGAL ESTATE, 
 
 vested in feoffee to uses, 229. 
 
 the same rule applies to trusts, 231, 232. 
 
 vests in trustee, if it be a legal trust, 232, 237. 
 
 if the trusts be invalid, the legal estate does not vest in trustee, 236. 
 
 it vests in the party beneficially interested, 236. 
 
 person seised of in trust, compellable to execute the trust, 237. See 
 Trusts. 
 LEGISLATURE, 
 
 not estopped by one grant from making another to other parties, 201, 202. 
 LEGITIMACY, 
 
 necessary at common law to inherit from ancestor, 318. 
 
 bow the rule is under the statute, 318. 
 
 what constitutes legitimacy, 818. See Bastaeds. Descent. 
 LESSEE, 
 
 form of his covenant to pay rent, 427, 
 
 usual covenants in leases, 426, 427. See Covenants. 
 
 if premises destroyed by fire, without tenant's fault, not liable to pay rent, 
 unless otherwise agreed, 428. 
 
 should protect himself by covenants for such contingency, 428. 
 
 covenants to repair &c. by tenant, 429. 
 
 to yield up at the end of the term, 429. 
 
 to pay taxes, 429. 
 
 not to assign without leave, 430. 
 
 what constitutes such assignment, 431. 
 
 all persons, natural or artificial, may be lessees, 433. 
 LESSOR, 
 
 covenants by, in leases, are express or implied, 426. See Covenants. 
 
 usual covenants by, 427, 428 et seq. 
 
 covenant to rebuild, 428. 
 
 this covenant runs with the land, 428. 
 
 sometimes covenants to renew the lease, 430. 
 
 also for quiet enjoyment, 430. 
 LIEN, 
 
 of vendor for the purchase money, 114. 
 
 analogous to an equitable mortgage, 114. 
 
 so also is the deposit of titles as security for a loan, 114. 
 
 for purchase money, not affected by taking the note of a third person, 114. 
 
 it exists against subsequent purchasers who have not advanced a new con- 
 sideration, 114. 
 
 principle on which the doctrine rests, 114, 115. See Vendor and Vendee. 
 
 a subsequent purchaser without notice, who advances a full consideration, 
 not bound by it, 115. 
 
 remedy to enforce it, in equity, 115. 
 
 of mechanics on buildings, 150, 151. >S'ee Mortgage. Judgments. Vendor.
 
 INDEX. 685 
 
 LIEN — continued. 
 
 of collector's bonds, 154, 
 
 taxes how far a lien, 155. 
 
 of docketed judgments, continues ten years, 455. 
 
 searching for liens against vendor, 529, 530. See Abstracts. 
 
 instantaneous seisin, not bound, 124. 
 LIFE ESTATE. See Estates for Life. 
 
 party imprisoned for, civilly dead, 359. 
 LIGHT, 
 
 the right to, on what it depends, 218. 
 
 remedy for obstructing, 219. 
 
 not the subject of grant, 219. 
 
 protected by covenant or condition, 219. See Ancient Lights. 
 LIMITATION, 
 
 contingent upon a fee, when allowed, 167. 
 
 distinction between limitation and condition, 102, 520. 
 
 limitations of chattel interest, allowed, 167. 
 
 conditional one, 170. 
 
 determine the estate, without entry, 520. 
 LIMITATIONS, STATUTE OF, 
 
 not applicable between tenants in common as to equitable rights, 187. 
 
 when applicable to trusts and when not, 247, 248. 
 
 how ftir affected by acts of 1849 and 1860, 279. 
 
 as to real property in this state, 351, 352. 
 
 an entry avoids the statute, 352. 
 
 as against the people, 40 years, in other cases, 20, 351. 
 
 extinguishes right of former owner, 351, 358. 
 
 disabilities which prevent statute from running, 358, 359. 
 
 nature of these disabilities when the claim relates to land, 358, 359. 
 
 1. infancy, 358. 
 
 2. insanity, 358. 
 
 3. imprisonment on a criminal charge, 358. 
 
 4. coverture, 358, 359. 
 
 ten years allowed after the removal of the disability, 359. 
 
 a party imprisoned for debt only, not within the exception, 359. 
 imprisoned for life, is civilly dead, 359. 
 
 statute, with respect to real property, begins to run from the time the ad- 
 verse holding begins, 354. 
 
 does not run in favor of one entering without claim of right, 359. 
 
 does not allow of successive disabilities, 359. 
 
 right of entry of remainderman, not affected if the particular estate existed 
 when the right accrued, 360. 
 
 the same as to a reversioner, 360. 
 
 if owner be a feme covert when the adverse possession begins, she is en- 
 titled to ten years after her disability ceases, 360. 
 
 and to twenty years in all, 360. 
 
 the time of her coverture is not to be deducted from the twenty years, 360. 
 
 policy of the statute, 361.
 
 686 INDEX. 
 
 LIMITATIONS, STATUTE OF— continued. 
 
 statute against selling lands held adversely does not apply to judicial sales, 
 361. 
 
 court of equity acts upon the principles of the statute, 362. See Adveesb 
 Possession. Adverse Enjoyment. 
 LINEAL DESCENDANTS, 
 
 how defined, 317. See Descent. 
 LIVERY OF SEISIN, 
 
 required in case of a feoffment, 373. 
 
 unnecessary under the laws of this state, 373. 
 LOCATION, 
 
 practical, how far binding on parties, 406. 
 
 ground on which it rests, 406. 
 LUNATIC, 
 
 defined as a person destitute of understanding, at the time of the act, 377. 
 
 it need not have existed from birth, 377. 
 
 may be grantee in a grant. 377. 
 
 how his lands may be sold, 448, 449. 
 
 unable to devise lands, 472* 
 
 may take by devise, 474. 
 
 M 
 
 MAINTENANCE, 
 
 how treated by the statutes, 371. 
 MANURE, 
 
 of a farm let for agricultural purposes, 84. 
 
 if no stipulation or custom to the contrary, cannot be removed by the 
 tenant, 85. 
 
 it belongs to the farm, 85. 
 
 MAP, 
 
 may be referred to in a deed to describe the premises, 405. 
 
 number of the lot in a certain map is a good reference, 405. 
 MARBLE CHIMNEY PIECES, 
 
 put up by the tenant may be removed by him during his term^ 86. 
 
 leaving them till after his term ends affords a presumption of his abandon- 
 ing them, 86. 
 
 he is then a trespasser if he enters, 86. See Fixtures. 
 MARRIAG-E SETTLEMENTS, 
 
 origin, policy and effect of, 272. 
 
 property of the wife, how affected by the marriage at common law, 272. 
 
 husband's right at common law, 1. to her chattels personal, 272. 
 
 2. choses in action, 272. 
 
 3. chattels real, 272. 
 design of marriage settlements, 273. 
 
 policy of, 273, 274. 
 
 remarks on statutes of 1848, 1849 and 1860, 274, 277, 282. 
 deed by married woman under act of 1849 does not require the joinder of 
 her husband, 277. "
 
 INDEX. 687 
 
 MARRIAGE SETTLEMENTS— con imwed 
 
 must be acknowledged on private examination, 277. 
 
 she cannot bind hei self 1 y covenants, 277. 
 
 nor is she estopped by her vrarranty, 277. 
 
 those statutes intended to supersede marriage settlements, 248. 
 
 ■when husband not hable for contracts of vrife, 278. 
 
 not a necessary party to her action, 278. 
 
 how far her right to sue affects the exception in the statute of limitations, 
 
 279. 
 trustee should be appointed in marriage settlements, 279. 
 
 but not indispensable, 279. 
 trust in, should not suspend the power of alienation, beyond what the statute 
 
 allows, 280. 
 nor in relation to personal property, 280. 
 rule with respect to suspension stated, 280. 
 . cases on the subject referred to, 280, 281 et seq. 
 trusts to pay over to the beneficiary, good, 281, 282. 
 should provide for the wife's receiving the income, 282. 
 wife must execute power in, as directed, 282. 
 clause against anticipation, when necessary, 283. 
 provided for in revised statutes, 283. 
 equity aids defects in marriage settlements, 286. 
 
 different kinds of, considered, 286 et sej. See Ante-Nuptial Agreements. 
 Post Nuptial Agreements. 
 MARRIED WOMAN, 
 
 if residing in this state, how her deed is to be acknowledged, 123. 
 when a non-resident, how done, 123. 
 
 before what officers, and the form of the acknowledgment. See Appendix. 
 laws with respect to their rights and property, 1848, 1849, 1860—140, 258, 
 
 269, 274, 277, 327, 328, 391. See Marriage Settlements. 
 effect as to curtesy, 59, 60. 
 
 a legal marriage essential to dower, 65. 
 
 effect of divorce on dower, 65, 66. 
 
 cannot convey directly to her husband, and how it is done circuitously, 265^ 
 292, 392. 
 
 may insure life of her husband for her benefit, 296. 
 
 her rights under statute of hmitations, 358. 
 
 disability at common law to alien land, 377. 
 
 may be grantee, 377. 
 
 her rights under act of 1860, 327, and note, 328. 
 
 remarks on said statute, 452 et seq. 
 
 her rights at common law, 392. 
 
 sale of lands by, 451. 
 
 when trusts for, surrendered to, 451, 452. 
 
 when husband will not consent, 453. 
 
 how his assent may be made, 453. 
 
 unable to devise land except by late laws, 472. 
 
 may take by devise, 474.
 
 688 INDEX. 
 
 MAXIMS, 
 
 with respect to title in land, 46, 218. 
 to merger, 50, 299. 
 to dower, 63. 
 to priority of time, 115. 
 to inheritance, 163, 168. 
 to joint tenancy, 179. 
 to delegation of powers, 270. 
 to construction of deeds, 396, 402, 403. 
 to quality and condition of thiilgs bought, 427. 
 
 generaJ, in the construction of wills, 604, 505, 506. 
 
 with respect to wills, 509. 
 MINES 
 
 of gold and silver, to whom belong, 50, '51. 
 MISTAKES, 
 
 in execution of powers, when aided in equity, 266, 267. See Powhbs. 
 MERGER, 
 
 how defined, 50, 296, 297. 
 
 is the act of the law, 297. 
 
 object of it, 297. 
 
 acts of the law analogous to it, 297, 298. 
 
 extinguishment, suspension, discontinuance, remitter, 297, 298. 
 
 what is indispensable to merger, 306. 
 
 must be two or more estates, 306. 
 
 applies to leases, 307. 
 
 must unite in the same person, in the same right, without intervening 
 right, 307, 308. 
 
 when equity will keep both estates alive, 308, 309. 
 
 merger pro tanto, when it occurs, 309. 
 
 cases to illustrate, 309, 316. 
 
 gradation of estates, showing which is the highest, 310, 311. 
 MONEY, 
 
 when treated as land, 261. 
 MONTH, 
 
 when used in a contract, is treated as a calendar month, 81. 
 
 unless otherwise expressed, 81. 
 MONUMENTS, 
 
 in a deed, control courses and distances, 405. 
 
 what is most material, has the greatest influence, 405. 
 
 thus, a river, a marked tree, and the Uke, 405. See Boundaby. 
 MOHTGAQE, 
 
 nature and form of, 109. 
 
 power of sale in, 110, 253. 
 
 may be in fee, or for years, 110. 
 
 no covenant implied to pay the mortgage money, 110. 
 
 usually, has an express covenant or a bond or note accompanying, 110. 
 
 not essential to have such covenant, 110. 
 
 or a power of sale, 110.
 
 INDEX. 689 
 
 MORTGAGE— c<?nfinM«f. 
 
 no remedy by ejectment till foreclosure, 110. 
 
 when remedy in equity only, 110. 
 
 difference between conditional sales and a mortgage, 111. 
 
 defeasance usually inserted in same instrument, 111. 
 
 may be in a different one, 111. 
 a deed absolute in terms may be shown to be a mortgage by parol, 112, 113. 
 assignment of mortgage may be by parol, 113. 
 assignee of, takes subject to equities of the other parties, 113. 
 lien of vendor for purchase money analogous to mortgage, 114, 124. 
 several equities attach, according to priority, 115. 
 mortgagor deemed seised of the land, 116. 
 and may devise it before foreclosure, 481. 
 statute makes no difference between a mortgage in fee and for a term of 
 
 years, 116. 
 mortgage is a mere security for the debt, 116. 
 outstanding mortgage not a breach of the covenant of seisin, 117. 
 may be for future advances, 117. 
 mode of taking such security, 117, 118. 
 recording and priority of, 119, 396. 
 object of recording, 120, 396, 397. 
 danger of omitting to record, 120. 
 
 as to deeds absolute in terms, converted into mortgage by parol, 120, 398. 
 effect of notice to the party, when not recorded, 120. 
 to entitle it to be recorded, must be acknowledged or proved, 122. 
 manner of doing it, 122, 338-398. For forms of, see Appendix, 
 by married woman, how taken, 123. 
 how proved by the witnesses, 123. 
 
 mortgage not registered preferred to subsequent docketed judgment, 124, 
 instantaneous seisin, effect of, 124. 
 when two or more deeds are executed and recorded simultaneously, effect 
 
 of, 124, 129. 
 rights and interests of parties at law and equity, 125. 
 difference of the American and English doctrine, 125. 
 no reconveyance necessary on payment, 126, 128, 130. 
 remedies of the mortgagee, 126, 127. 
 what mortgagor in possession may do, 127. 
 when he may cut timber, 127. 
 
 when mortgagee will be restrained from selling, 127. 
 as to accounting between the parties, 128. 
 what expenses allowed mortgagee in possession, 128. 
 how discharged on payment, 129. 
 form of certificate, &c. 129. 
 
 effect of tender, of the amount due on the lien of the mortgage, 130. 
 as to mortgages to loan officers, 130, 131. 
 a sale by one commissioner not good, 131. 
 power of sale and statutory foreclosure, 132 et seq. 
 proceedings, how conducted, 133, 134. 
 
 WiLL.~44
 
 690 INDEX. 
 
 UORTGAG'Er— continued. 
 
 how long a notice to be given, and on whom served, 134. 
 
 proceedings, when debt payable by installments, 135. 
 
 how, when condition for performance of covenants, 136. 
 
 sale must be at public auction, 136. 
 
 proceedings when different tracts are contained in the mortgage, 136. 
 
 order to sell in parcels, when, 136. 
 
 not necessary that a deed should be given on sale, 137. 
 
 what is the substitute therefor, 137. 
 
 effect of statute foreclosure, 137, 138. 
 
 no provision as to infancy, usury, &c. 139, 
 
 remedy in such cases in equity, 139. 
 
 with respect to non-residents, 139. 
 
 wife, when an infant, cannot execute a deed, 140. 
 
 effect of laws of 1849 and 1860, 140. 
 
 foreclosure of mortgages in equity, 141. See Foreclosctbe. Eqcttt or 
 Redemption. 
 
 different parts to be charged in the inverse order of alienation, 146. 
 
 of franchise of rail road, 147, 148, 
 
 usual practice in such cases, 149. 
 
 power to mortgage includes right to grant power of sale to mortgagee, 253. 
 See Powers. 
 
 power of sale in mortgage a part of the security, and passes to assignee, 267. 
 
 it is a power coupled with an interest, and survives the grantor of the 
 power, 267. 
 
 it is irrevocable, 267. 
 
 extinguishment of, by uniting the legal and equitable estates, 304, 305. 
 
 merger by uniting legal and equitable estates, 301, 302. See Deed. Ac- 
 knowledgment. 
 
 lien of mortgage considered, 537, 538. 
 
 how discharged, 537, 538. 
 
 if mortgagee dead, his executors or administrators to discharge it, 538. 
 
 of the party by whom it should be made and paid for, 558-562. 
 MORE OR LESS, 
 
 in a deed, is matter of description, and not conclusive, 405. 
 MOTHER, 
 
 when to inherit from her child, 331, 332. See Descent. 
 
 N 
 
 NATURAL BORN 
 
 citizens, capable of inheriting, 44. 
 
 difference between, and denizen, 321, note. 
 NATURALIZATION, 
 
 effect o^ 45, 46, 318, 319, 320, 477, 502. See Alien. Descent. 
 NEGRO, 
 
 free, may hold and convey real estate, 44.
 
 INDEX. 691 
 
 NEXT OF KIN, 
 
 persons to whom the statute of distributions gives the undisposed of person- 
 alty of the deceased, 316. 
 
 may be the same persons as heirs, 316. 
 NON COMPOS MENTIS, 
 
 incapacity of, to make deed, 376, 377. 
 
 to make a will, 472, 473. See Insane. Idiot. Lunatic. 
 NON-USER, 
 
 evidence of a relinquishment of a right, 219. 
 
 if such right was acquired by user, 196. 
 NOTARY PUBLIC, 
 
 may use a stamp for a seal, 383. 
 NOTICE y 
 
 of unrecorded mortgage, effect of 120. 
 
 to agent or attorney, sufficient, 120. 
 
 to supply defect of recording, must be full and clear, 121. 
 
 hoTia fide purchaser, without notice, holds the land discharged of the lien, 
 121. 
 
 meaning of the terms, 121, 122. 
 
 of intention to re-enter for non-payment of rent, when to be given, 212, 
 213. 
 
 when chargeable with notice of attorney's power, 271. 
 NUISANCE, 
 
 in obstructing air, light, or water courses, remedy for, 219, 220. 
 NUMBER OF LOT, 
 
 land may be described by, 405. 
 
 whole land embraced in it- passes, 405. 
 
 number of acres in a grant, is mere matter of description, 405. 
 NURSERYMEN AND GARDENERS 
 
 may remove plants, 84. 
 
 when it is in the course of their business, 84. 
 
 such removal belongs to their trade, 84. 
 
 right is sometimes provided for in the lease, 84. 
 
 
 
 OCCUPANCY, 
 
 actual, when necessary to create an adverse possession, 355. 
 
 what constitutes such, 355. 
 
 title by, defined, 362. 
 
 how regulated by statute, 362. 
 ORNAMENTAL 
 
 fixtures, removable by tenant, 86. 
 
 such as chimney pieces, pier glasses &c. put up by him^ 86. 
 OUSTER, 
 
 of co-tenant, when necessary to entitle him to sue. 357. 
 
 what constitutes it, 357.
 
 692 INDEX. 
 
 OUTLAWRY, 
 
 for treason, its effect on law of descent, 322. 
 OWNER OF LAND,, 
 
 may quiet his title by buying in adverse claims, 357. 
 OWNERSHIP, 
 
 acts of, their effect on adverse possession, 356. 
 
 PARENTS, 
 
 when allowed to inherit from children, 327. 
 
 how under act of 1860, 327, 328. 
 
 defect of that law pointed out in note, 328. 
 
 bound to support child, 338. See Advancesient. 
 PARTITION, 
 
 may be compelled between joint tenants, 18L 
 and tenants in common, 181. 
 by statute and the common law, 185. 
 
 when it cannot be made by metes and bounds, 185. 
 
 in what cases a sale ordered, 185, 186. 
 
 in what way of a mill, 186. 
 
 when any of the parties are absentees, 186. 
 
 not indispensable that all shares should be equal, 186. 
 
 how equity proceeds in such cases, 187. 
 
 when one tenant makes improvements, 187. 
 
 limitation of actions, how affected by, 187. 
 
 account lies between co-tenants, 188. 
 
 evils of joint ownership, 188. 
 
 contribution as to repairs, 188. 
 
 danger of allowing one tenant to make repairs, without request of his co- 
 tenant, 189. 
 
 remedy in equity, 189. 
 
 how made by the parties, 435, 436. 
 PARTIES AND PRIVIES, 
 
 estopped by recitals in deed, 366. Set Estoppel. Deed. 
 PEDIGREE, 
 
 when necessary to examine. See Abstracts, 528. 
 PEOPLE OF THE STATE, 
 
 deemed the ultimate proprietor of all land within it, 42, 344. 
 
 escheated lands, held by, subject to trusts, 345. 
 
 evidence by, to entitle them to recover, 346. 
 
 their advantage over individuals, 346. 
 PERSONAL ESTATE, 
 
 the primary fund to pay debts of intestate, 339, 340. 
 PERMISSIVE WASTE, 
 
 how defined, 79. 
 
 nature and extent of tenant's liability for, 79.
 
 INDEX. 693 
 
 POSSESSIO PEDIS, 
 
 application of it to adverse possession, 355. See Adyerse Possessiok. 
 POST-NUPTIAL AGREEMENTS 
 
 considered, 292 et seq. 
 
 in pursuance of agreement before marriage, 292. 
 
 when upheld in equity, 292. 
 
 when good against creditors, and when not, 292, 293. 
 
 what a sufficient consideration, 293. 
 
 no technical words necessary to create a trust for a married woman, 294. 
 
 wife's separate, subject to incidents of ownership, 294. 
 
 she may give it to her husband, 294. 
 
 duty of husband, at common law, as to debts of wife before covertufe, 294, 
 295. 
 
 how modified by act of 1853, 295. 
 
 wife may insure life of husband, 295. 
 
 how modified by act of 1858, 296. ^ee Makriage Settlemekts. Ante- 
 Nuptial Agreements. 
 POSTHUMOUS CHILDREN, 
 how provided for, 171. 
 when to inherit, 318, 327. 
 may take by devise, 474. 
 POWER 
 
 of sale in mortgages, 132. 
 
 is part of the security, and assignable, 110. 
 form and efiect thereof, 132. 
 how executed, 1^7. 
 sale under, must be at auction, 136. 
 and in the day time, 136. 
 premises when to be sold in parcels, 136. 
 power by feme covert, in general, void, 139. 
 with respect to non-residents, 139. 
 of alienation, when suspended, 164. 
 future estates void which suspend it, 164. 
 POWERS, 
 
 of two sorts, at common law and by statute, 248. 
 under the statute, how defined, 249, 250. 
 how at common law, 249. 
 distinction between trusts and powers, 250. 
 
 married woman may execute a power reserved in an ante-nuptial contract, 251. 
 in all cases under act of 1860, 251. 
 
 distinction between a nalced power and a power coupled with an inter- 
 est, 251, 252. 
 different kinds of powers under the statute, 252. 
 who the grantor, and who the grantee of, 252. 
 restraining and enabling powers defined, 252. 
 appendant, collateral or in gross, defined, 252. 
 by what words created, 253. 
 when construed with reference to intent, 253.
 
 (J94 INDEX. 
 
 TOWERS— cmtinued. 
 
 power to mortgage includes authority to grant a power of sale to mort- 
 gagee, 253. ^ 
 
 naked power, to sell, must be strictly pursued, 254. 
 
 to sell land for a certain price, means for cash, 254. 
 
 must be executed as directed by the will, 254. 
 
 a general and beneficial power may be given to a married woman, 255. 
 
 if she be an infant, it cannot be executed till she becomes of age, 255. 
 
 when given to several, all must unite, 255. 
 
 if one or more die, survivors may execute it, 255. 
 
 applies to executors, 255. 
 
 when consent of third person required, how such consent must be indi- 
 cated, 256. 
 
 may be vested in any person capable of holding an estate, 256, 259. 
 
 power of revocation reserved to grantor, is the same as to creditors, as 
 ownership, 257. 
 
 power granted to married women, 258. 
 
 instrument containing power, must be recorded to protect the estate, 258. 
 
 acts of 1848 and 1849, as to married women, 258. 
 
 when general power is in trust, 259. 
 
 when special power is in trust, 259. 
 
 every trust power is imperative 259. 
 
 when disposition is to be made to a class, all persons entitled to an equal 
 share, 260. 
 
 when power in trusts is created by will, and testator has failed to specify 
 by whom it is to be executed, the supreme court appoints, 259. 
 
 when testator directs his land to be sold to pay debts or legacies, executors 
 have the power, 261. 
 
 when by implication, 261. 
 
 party paying in good faith to one having a power to receive, not responsible 
 for application of the money, 262. 
 
 by what instruments power created, 262. 
 
 time of executing a power, 262. 
 
 formalities and incidents of powers, 263, 264. 
 
 grantee of a power need not recite the instrument creating it, in his convey- 
 ance under the power, 264. 
 
 wife must execute power, in her marriage settlement, as directed therein, 282. 
 
 how they must be executed, 265, 266. 
 
 defective execution decreed in equity, 266. 
 
 when coupled with an interest, irrevocable, 267. 
 
 may be extinguished, released or suspended, according to their nature, 268. 
 POWERS OF ATTORNEY, 
 
 to convey lands, defined, 268. 
 
 must be under seal, 268. 
 
 merely to contract to sell land need not be under seal, 268. 
 
 may be given by party having a right to sell, 268. 
 
 by married woman under act of 1848, 1849, 269. 
 
 >>v uon-resident married females, under the act of 1853, ch. 275, 269.
 
 INDEX 695 
 
 POWERS OF ATTORKEY-^onUnued. 
 
 may be revoked by principal, 269, 270. 
 
 when and where revocation must be recorded, 269. 
 
 notice of revocation, how given, 269. 
 
 attorney cannot bind his principal by covenants, 270. 
 
 nor delegate his authority, 270. 
 
 unless a power of substitution is given, 270. 
 
 power to two or more cannot be executed by one, 270. 
 
 except in matters of public concern, 270. 
 
 death of principal a revocation, 270. , 
 
 except in powers coupled with an interest, 270. 
 
 must be executed in the name and as the act of the principal, 271. 
 
 if attorney affix his own name and seal only, it is void, 271. 
 
 if executed for several, one seal sufficient, 271. 
 
 should be duly acknowledged or proved and recorded, 271. 
 
 receives a strict interpretation, 271. 
 
 a party dealing with an attorney chargeable with notice of the contents of 
 the power, 271. 
 
 coupled with an interest, irrevocable, 267. 
 PRE-EMPTIVE 
 
 right of purchase by grantor repugnant to estates in fee, 165, 431. 
 PREFERENCE 
 
 of males to females in the law of descent, modified or abolished, 323. 
 PRESCRIPTION, 
 
 is predicated only of incorporeal things, 347. 
 
 cannot prescribe for a nuisance, 347. 
 
 two kinds of prescription, 347, 348. 
 
 in a que estate how to be laid, 348. 
 
 cannot be of a user, less than 20 years, 348. 
 
 may be of an easement, 348. 
 
 how it differs from a dedication, 349. 
 
 not extended to ancient lights, 344. 
 
 principles of the statute of limitations govern as to timCj 350. 
 
 must be certain and peaceable, 350. 
 
 not lost by a temporary relinquishment, 350. 
 
 adverse enjoyment and kind of, 351. See Adverse Enjoyment. 
 PRESUMPTION, 
 
 of grant to air, light, &c., 219. 
 
 twenty years adverse enjoyment, 219. 
 
 the like as to water courses, 222. 
 PRIMOGENITURE, 
 
 abolished in this state, in the law of descent, 32J. 
 PRINCIPAL, 
 
 may act by attorney in making a deed, 393. 
 
 in making contract for sale of land under the statute 
 of frauds, 375, 376. 
 PRIORITY 
 
 of incumbrances, 115, 119, 396. See Mobtgase.
 
 696 INDEX. 
 
 PRIVITY, 
 
 between ancestor and heir, devisor and devisee, grantor and grantee, 366, 
 412, 416. 
 PROFITS. See Rent. 
 PURCHASE, 
 
 title by, 315, 343-345. 
 
 of land held adversely, void, 360, 371, 
 
 unless purchaser is in possession, 360, 357. 
 
 of lands in suit, scienter, 371. 
 
 by public officers, of persons out of possession, 371. 
 PURCHASE MONEY, 
 
 a lien upon the land, 114. 
 
 against vendee, his heirs, 114. 
 
 volunteers and purchasers with notice, 114. 
 
 principles on which it rests, 114, 115. Set Lien. Trusts. 
 PURCHASER, 
 
 meaning of the term, 122. 
 
 wiiat is a valuable consideration, 121. 
 
 of the franchise of rail roads, may form a new company, 148. 
 
 may contest validity of creditor's claims against the estate purchased of 
 heirs, &c., 341. 
 
 may quiet his title by buying in adverse claims, 357, 360. 
 
 what title he acquires on a sheriflTs sale, 462. 
 
 wben entitled to the original deeds, 546, 547. 
 
 Q 
 
 QUALIFIED OR BASE FEES, No. 51, 54. 
 QUALITY 
 
 of an estate has reference to the manner of its enjoyment, 47. 
 QUANTITY 
 
 of an estate, signifies the degree of interest the owner has in it, 47. 
 QUARTER SALES, 
 
 invalid in estates in fee, 165, 431. 
 
 valid in life estates, or estates for years, 165. 
 QUIA EMPTORES, 
 
 object of it, 296. 
 
 statute of, in force in this state, 207. 
 QUIET ENJOYMENT, 
 
 covenant for, in a deed, 414. 
 
 it goes to the possession, and not to the title, 414. 
 
 it runs with the land, 415, 416. 
 QUO ANIMO, 
 
 its effect to characterize a possession of real estate, 356. 
 
 an ingredient in adverse possession, 355, 356.
 
 INDEX. 697 
 
 RAIL ROADS, 
 
 have a right to borrow money, 147. 
 
 to mortgage their estate and franchises, 148. 
 not dissolved, ipso facto, by sale of its property, 149. 
 their right to take land, 149. 
 RATES, TAXES AND ASSESSMENTS. See Taxes, 430. 
 REAL ESTATE, 
 
 its nature, quality, &c. 47. 
 when the primary fund, 146. 
 
 mode of alienation of, 312 cise J. 5ee Descent. PurchaSB. 
 charge made upon, by will, 343, 521, 522. 
 lien upon by judgments, 455. 
 is the subject of a devise, 478. 
 REBUILD, 
 
 covenant to, sometimes inserted in leases. 429. 
 RECEIVERS, 
 
 may take certain trusts, 239, 240. 
 RECITALS, 
 
 in a deed, estop parties, 366, 367. 
 of a particular fact may estop, 367. 
 of a lease, in a release, conclusive, 367. 
 RECOGNITION, 
 
 of title of the owner, when a bar to an adverse holding, 357. 
 RECORD, 
 
 when it is an estoppel, 364. See Estoppel. 
 RECOVERIES 
 
 and fines, aboUshed, 373. 
 RELEASE, 
 
 how defined, and the different kinds, 436. 
 the requisites of, 436. 
 operative words in, 437. 
 RELIGIOUS CORPORATIONS, 
 how created, 240. 
 what trusts they may execute, 242. 
 how permitted to alien lands, 445, 446. 
 when devises to, void, 500, 501. 
 REMAINDER, 
 
 how defined, 156, 157. 
 
 needs no precedent estate, 157. 
 
 otherwise at common law, 158. 
 
 vested and contingent, 158. 
 
 meaning of those terms, 158, 159. 
 
 contingent remainder may be created by will or deed, 160. 
 
 cases to illustrate the rule, 160, 161, 162. 
 
 may be created in a term of years, 164.
 
 698 INDEX. 
 
 REilAINDER— c6n<m«cd 
 
 an estate for life may be limited on a term of years, 164. 
 
 contingent remainder in fee may be limited on a prior remainder in fee, 164 
 
 void when it suspends power of alienation, 164. 
 
 cannot be suspended by condition or limitation, 164, 165, 
 
 limited on chattel interests, 167, IfiS. 
 
 freehold may be created in futuro, 168. 
 
 the like as to chattel interests, 168. 
 
 contingent, limited to persons not in being, 168. 
 
 limited on a condition subsequent, 170. 
 
 conditional limitations, 170. 
 
 to posthumous children, good, 171. 
 
 how defeated at common law, 172. 
 
 cannot be so defeated now. 172, 173. 
 
 same rule in deeds as wills, 172. 
 
 cross-remainders, how defined, 173. 
 
 do not exist now, 173. 
 REMITTER, 
 
 defined and distinguished from merger, 298. ^See ilEEGER. 
 REMOVAL OF TRUSTEES, 
 
 by supreme court, 246. 
 
 for what causes, 246. 
 RENEW, 
 
 covenant to, sometimes inserted in lease, 430. 
 
 it runs with the land, 430. 
 
 does not imply that the same covenants should be inserted in the new lease 
 as in the old, 430. 
 
 it should be provided for, 430. 
 RENT, 
 
 meaning of the term, 203. 
 
 three kinds at common law — rent service and rent charge, 204. 
 
 covenant to pay runs with the land, 205. 
 
 whether the lease be for years, for life or in fee, 205, 206. 
 
 effect of statute quia emptores, 206. 
 
 whether ever in force in this state, 207. 
 
 under a durable lease or grant in fee, runs with the land, 207. 
 
 usually reserved on leases, but may be on grants in fee, 208. 
 
 cannot be reserved to a stranger, 208. 
 
 rent charge subject to dower and curtesy, 209. 
 lost by eviction, 209. 
 
 what amounts to an eviction, 209. 
 
 reserved to the deceased, and which has accrued at his death, belongs to 
 the personalty, 209. 
 
 a physical eviction by the landlord not indispensable to reUeve the tenant 
 from liability for rent, 209. 
 
 constructive eviction explained, 210. 
 
 when destruction of the building by fire, absolves the tenant, 210. 
 
 apportionment, when and how made, 210.
 
 INDEX. 699 
 
 RENT — continued. 
 
 remedies for non-payment, 212, 213, 217. 
 
 how re-entry is effected, 2l3, 214. 
 
 interest recoverable for rent in arrear, 214. 
 
 use and occupation, 214. 
 
 when rent suspended, or extinguished, 217, 218. 
 
 may be reserved in a bargain and sale in fee, 442. 
 
 is devisable, 481. 
 KENT CHARGE, 
 
 how defined, 207. 
 
 may be reserved in a deed in fee, 207, 425. 
 
 such deed usually called a durable lease, 425. 
 
 subject to dower and curtesy, 209. See Rent. 
 REPAIR, 
 
 covenant to, inserted in leases, 429. 
 RESIGNATION 
 
 of trustee, when allowed, 245. 
 
 when permitted by statute, i245, 246. 
 
 not allowed by the common law, 245. 
 
 by whom accepted, 246. 
 
 consequences of, 246. 
 
 what circumstances sufficient to authorize a resignation, 246, 247. 
 REPUBLICATION 
 
 of wills, how made, 493, 499. See Devise. 
 
 of two kinds, express and constructive, 499. 
 
 may be, by a codicil, 500. 
 RESERVATION 
 
 of rent, in leases and in deeds, 208, 442. 
 
 when in deeds in fee, called durable leases, 208. 
 RESIGNATION 
 
 of trustee, when allowed, 245. 
 
 pj:sulting trusts, 
 
 how defined, and when allowed, 234, 235. See Trusts. 
 REVERSAL OF A JUDGMENT, 
 
 destroys it as an estoppel, 365. 
 REVERSIONS, 
 
 arise from construction of law, 174. 
 
 how defined, 174. 
 
 how they may lose their qualities, 175. 
 
 incidents of fealty and rent, 175. 
 
 rent may be separated from, 175. 
 
 grant of, carries the rent, 175. 
 
 expectant on a freehold not subject to dower or curtesy, 176. 
 
 remedies for injury to, 176. 
 
 owner of, may defend suits, 176. 
 REVIVAL 
 
 of revoked will, rule at common law, 498. 
 
 how changed by statute, 498, 499.
 
 700 INDEX. 
 
 REVOCATION 
 
 of power of attorney, when may be made and when not, 267, 269. 
 
 how revoked, and by whom, 267, 269. 
 
 when, by death of the principal, 270. 
 
 of devises. See Devise, 492. 
 
 not to revive a former will, 498, 499. 
 EIGHT OF COMMON. See Common. 
 EIGHT OF ENTRY, 
 
 meaning of, 352. 
 
 of reversioner, not affected by the statute of limitations, 360. 
 
 nor of the remainderman, 360. 
 EIGHT OF WAY, 
 
 may be claimed by grant 194. 
 
 prescription, 194. 
 reservation, 194. • 
 necessity, 194. See Ways. 
 EIPARIAN OWNER, 
 
 rights of, considered, 220. 
 EIVERS, 
 
 right to private ones, to the center of the stream, 220, 221, 404, 405. 
 
 rule as to boundary on, 220, 221, 404, 405. 
 
 s 
 
 SALE, 
 
 of real estate, makes the vendee a trustee of the vendor for the unpaid pur- 
 chase money, 114, 115. 
 
 by sheriff, under a judgment and execution, 454, 455. 
 SEAL, 
 
 a deed executed by several, need have but one seal for all, 271. 
 
 if it is adopted as the seal of all, 271. 
 
 meaning of the word sealing, 382. 
 
 must be wax or wafer, and an impression, 382. 
 
 in what cases an impression is sufficient, 383. 
 
 how by corporation and public officers, 383. 
 SEARCHES, 
 
 for incumbrances, how far back to be made, 527. 
 
 against whom to be made, 528, 529. 
 
 the kind of incumbrances, 529, 530, 536, 544. 
 
 expenses of, by whom to be borne, 558-562. 
 SEISIN, 
 
 a term not applicable to estates for years, 81. 
 
 not necessary for ancestor in case of descents, 326. 
 
 covenant of, broken as soon as made, if at all, 414. 
 does not run with the land, 416. 
 SETTLEMENT. See Marriage Settlements, 272 et sej.
 
 INPEX 701 
 
 SHELLEY'S CASE, 
 
 rule of, formerly law in this state, 166. 
 
 abolished by the revised statutes in 1830, 167. 
 
 applies to wills as well as deeds, 167. 
 SHERIFF, 
 
 the ofl&cer to sell under executions, 455. 
 
 personal property the primary fund, 457. 
 
 mode of conducting the sale, 457, 458. 
 
 evidence to sustain a title under such sale, 458. 
 
 an irregularity of the sheriff will not prejudice the title, 458. 
 
 his duty on the sale to give certificates, 458. 
 
 redemption by judgment debtor, 458. 
 by a creditor, 460. 
 
 when sheriff to give deed, and its contents, 460, 462. See Appendix. 
 
 his duty as to description of the property, 462. 
 SIGNATURE, 
 
 to a deed, 382. See Deed. 
 
 to a will, 482, 484. See Will. 
 
 when by a mark sufficient, 484, 485. 
 SIXTY YEARS' TITLE, 
 
 purchaser entitled to, by the old English practice, 527. 
 
 a shorter period in this state, 527, 528. 
 SPECIAL OCCUPAI^T, 
 
 who might be, at common law, 57. 
 
 how changed by statute, 57. 
 * SPECIFIC PERFORMANCE, 
 
 of contracts, doctrine of, 543. 
 
 practice of courts of equity, 543, 544. 
 
 courts never enforce a gratuitous bargain, 544. 
 STAMP, * 
 
 on the paper, when used for a seal, 383. 
 
 by what oflficerg, 383. 
 STATUTE RELATIVE TO DEEDS. 
 
 1 R. S. 738, § 136 e« sej. 
 
 considered, 369 et seq. See Deed. Lbasb. 
 STATUTE OF DESCENTS. 
 
 1 R. S. 750 et seq, considered and treated of, 326 et «ey. 
 STATUTE AS TO DEVISES. 
 
 2 R. S. 56 et seq. considered and treated of, 472 et seq. 
 STATUTE RELATIVE TO DOWER. 
 
 1 R. S. 740 et seq. considered and treated of, 61 et seq. 
 STATUTE OP FRAUDS, 
 
 requires a lease for a longer term than a year to be in writing, 80, 81. 
 such lease is good for a year, and void for the excess, 426. 
 contract for sale of land to be in writing, and subscribed by party or his 
 agent, 375, 376.
 
 702 INDEX. 
 
 STATUTE OF YRATTDS—<^ntinited. 
 
 the authority to the agent need not be in writing, 376. 
 
 when specific performance of an agreement within the statute will be de- 
 creed, 544. 
 STATUTE A3 TO Estates for tears, and rights of Landlord and Tenant. 
 
 1 R. S. 743 et seq ; 2 R. S. 505, as to remedies. Subject treated under va- 
 rious heads. See Landlord and Tenant. Lease. Estate fob Years. 
 STATUTE OF LIMITATIONS, 
 
 for the recovery of real property, differs in different states, 350. 
 
 it does not transfer an estate from one person to another, 351. 
 
 it quiets the possession of the actual occupant, 351. 
 
 the several revisions referred to, 351. 
 
 limits the people to forty years, 351. 
 
 and others to twenty years, 351. 
 
 as to a writ of right, formerly twenty-five years, 851. 
 
 now reduced to twenty years, 351. 
 
 is now regulated by the code, 352. 
 
 defines an entry, 352. 
 
 regulates the rule as to adverse possession, 353. ^ee Adverse Possession. 
 
 effect of the statute to mature a wrong into a right, 355, 358. 
 
 when it begins to run, 359. 
 
 exception in favor of persons under disability, 358, 359. 
 
 nature and kinds of disability, 359. 
 
 successive disabilities not allowed, 859, 360. 
 
 right of entry of a reversioner not affected, 360. 
 . the like of a remainderman, 360. , 
 
 in what cases conveyance of land held adversely, void, 360, 361, 370. 
 STATUTES AS TO MARRIED WOMEN. 
 
 L. of 1848, ch. 200, p. 307 ; L. of 1849, ch. 375, p. 528 ; L. of 1860, ch. 90, 
 p. 157 ; remarks on the above, 274, 277, 282. See Married Women. 
 Marriage Settlements. 
 STATUTE AS TO TRUSTS. 
 
 1 R. S. 727 et seq. altered as to charities. L. of 1860, p. 607, considered 
 and treated, 232 et seq. 
 
 STATUTE OF WILLS, 
 
 2 R. S. 56 et seq. 
 
 considered and treated of, 472 et seq. 
 STOVES, 
 
 put up for use, may be removed by tenant, if put up by him, 86. 
 
 should be removed before or at the expiration of his term, 86. 
 
 effect of his omission to do so, 86. 
 SUBSCRIBING WITNESSES, 
 
 to a deed, 386, 387. See Deed. Will. 
 SUPREME COURT, 
 
 jurisdiction over trustees, 246. 
 
 in cases of dower, 75. 
 
 in all matters of equity, 248.
 
 INDEX. 703 
 
 SURRENDER, 
 
 meaning of the term, 91, 300, 437. 
 
 between what parties, 91. 
 
 diflference between it and a release, 437. 
 
 operative words to create it, 437. 
 
 requisites to create it, 438, 489. 
 SURROGATE, 
 
 his jurisdiction to assign dower, 75. 
 
 to sell real estate for payment of debts, 340, 349, 350, 342. 
 within what time after date of letters, 342. 
 
 wills proved before him, 482. 
 SUSPENDED, 
 
 when descent to children, by act of 1860, 327. 
 SUSPENSION, 
 
 when right to rent suspended, 217, 218. 
 
 a partial extinguishment, 298. 
 SUSPENSION OP POWER OF ALIENATION, 
 
 when void, 279, 280. 
 
 of ownership of personal property, 280. 
 
 cases on the subject referred to, 279, 280 et seq. 
 
 in reference to real property, 525. See Dkvise. 
 
 T 
 
 TAXES, 
 
 how far a lien on land, 155, 536. 
 
 payment of, should be provided for in the lease, 430. 
 
 usually assumed by the tenant, 430. 
 TAX SALES, 
 
 by comptroller, how made, 463. 
 
 how far his deed conclusive, 463, 464. 
 
 at common law, the purchaser buys at his peril, 464. 
 
 the recitals in the deed not evidence, 464. 
 TENANT FOR LIFE, 
 
 entitled to custody of title deeds, 78. 
 
 cannot dig for gravel or lime, except for repairs, 78. 
 
 nor open a new mine, 78. 
 
 his hability as to waste, 78. 
 
 to whom Uable, 79. 
 
 right of, as to emblements, 77. 
 TENANT FOR HIS OWN LIFE, 
 
 and for that of another, a freeholder during his own life, 362. 
 
 his right to emblements, 77. 
 TENANCY IN COMMON, 
 
 nature of the estate, 182. 
 
 incidents of the estate, 183. 
 
 may make partition, 183. 
 
 no survivorship in, 183.
 
 704 INDEX. 
 
 TENANCY IN COUMO^— continued. 
 
 widow of one entitled to dower, 183. 
 
 acts which one may do to bind his companions, 184. 
 
 liable to account to each other, 184. 
 
 may exist in chattels, 184. 
 
 in growing crops, 184. 
 
 what act of one tenant in common is a conversion, 185. See Pabtitioij, 
 185 et seq. 
 
 possession of one tenant is possession of both, 356. 
 
 must be an ouster to enable one to sue his co-tenant, 357. See Adverse 
 Possession. 
 
 by what words created, 409, 410. See Dkbd. 
 TENANT AT SUFFERANCE, 
 
 how defined, 97. 
 
 when entitled to notice to quit, 96. 
 
 and when not, 98. 
 TENANCY FRO'M YEAR TO YEAR, 
 
 less frail than an estate at will, 95. 
 
 can only be ended when the year closes, 95. 
 
 entitled to notice to quit, 96. 
 TENEMENT, 
 
 meaning of the term, 47. 
 TENURE, 
 
 meaning of the term, 42. 
 
 difference between feudal and allodial^ 41. 
 
 effect of the act abolishing same, 43. 
 TIME, 
 
 computation of, by Gregorian style, 81. 
 
 from and to a particular day, 81, 424. 
 TITLE TO THINGS REAL, 
 
 meaning of the term, 312. 
 
 requisites to a perfect title, 313, 814. 
 
 possession, right of possession, right of property, 313, 314. 
 
 from what period title to be deduced, 314. 
 
 in England ^ot sixty years, 315. 
 
 in this country, the period of statute of limitations, 315. 
 
 mode of acquiring title, by descent or pwrchase, 315. 
 
 by purchase, eight modes, 343, 345. 
 
 by sale undet judgment and execution, 454, 455. 
 TREASON, 
 
 a conviction for, a ground of forfeiture, 346. 
 TREES, 
 
 the spontaneous growth of the soil belongs to landlord, 77. 
 such trees are not emblements, 77. 
 TRUSTEE, 
 
 when vendee is trustee for vendor of the unpaid purchase money, 114. 
 when vendor is trustee for vendee of the land, 115.
 
 INDEX 705 
 
 IB.JJSTE'E— continued. 
 
 resignation of, when allowed, 245. 
 
 when liable to be removed, 246, 247. 
 
 grounds of removal, or resignation, 247. 
 
 when trust estate ceases, 247. 
 
 effect of death of trustee upon the trust, 245. 
 
 what quantity of interest, trustee takes in active trusts, 245. See Trusts. 
 
 should be appointed in marriage settlement, 279, 285. 
 
 but not indispensable, 279. 
 TEUSTS, 
 
 the legal estate vested in trustee, 232. 
 
 may be created by will or grant, 233, 242. 
 
 resulting trusts, how defined, 234. 
 
 how modified by revised statutes, 235, 236. 
 
 may be shown by parol, 236. 
 
 policy of the law to vest the estate in the party beneficially interested, 236, 
 
 express, retained in cases of assignment for benefit of creditors, 236, 237. 
 
 trust estate, how defined, 237. 
 
 express trusts, when retained, 237. 
 
 extended to various objects by later statutes, 238 etseq. 
 
 of receivers appointed by order of court, 239. 
 
 for religious corporations, 240. 
 
 trusts under revised statutes relate only to real estate, 242. 
 
 trusts in personal property may be created, 242. 
 
 when valid as a power, 242. 
 
 power, a lien upon the land, 242. 
 
 for education and support of children, 243. 
 
 formal trusts abohshed, 243. 
 
 estate vested in trustee, 243. 
 
 party beneficially interested cannot assign it, 243. 
 
 when valid as a power, 244, 
 
 purchaser of trust estate with notice, bound by it, 244. 
 
 in good faith, not liable for the application of the proceeds, 245, 
 
 on death of sole trustee, new one to be appointed, 245. 
 
 resignation of trustee, when allowed, 245. 
 
 effect of death of trustee upon the trust estate, 245. 
 
 when court can remove trustee, 246, 247. 
 
 grounds of removal, or resignation, 247. 
 
 when trust ceases, 247. 
 
 when the legal and equitable estates unite in the same person, 247. 
 
 when statute of limitations apphes, 247, 248. 
 
 trusts now executed by the supreme court, 248. 
 
 no lapse of time a bar between trustee and cestui que trust, 248. 
 
 in marriage settlements, should follow the language of the statute, 281. 
 
 to pay over to the beneficiary, good, 281, 282. 
 
 estates held in, not devisable, 479, 480. 
 W1LL.--45
 
 706 INDEX. 
 
 U 
 
 UNCLES, 
 
 of intestate, when to take by descent, 333. 
 USAGE, 
 
 of at least twenty years, when it gives a right to an incorporeal heredita- 
 ment, 347. 
 
 how it diflfers from a custom, 347, 348. 
 USE AND OCCUPATION, 
 
 when it hes for rent, 99. 
 
 not when the entry is under a contract to purchase, 99. 
 
 only when the relation of landlord and tenant exists, 99. 
 
 is founded on contract express or implied, 100. 
 
 statute on the subject, 214, 215, 216. 
 
 will lie when tenant holds over, 216. 
 USER, K 
 
 evidence of a right, 196, 209. 
 USES AND TRUSTS, 
 
 general view of the old doctrine, 230. 
 
 provisions of the revised statutes, 232. See Trusts. 
 USURIOUS INTEREST 
 
 not recoverable on a mortgage, 147. 
 
 an agreement in advance to pay interest upon interest is not usurious, 147. 
 
 but such agreement will not be enforced, 147. I 
 
 V 
 
 VALUABLE CONSIDERATION, 
 
 wherein it differs from a good consideration, 379, 380. 
 VENDEE, 
 
 trustee of vendor for unpaid purchase money, 114, 115. 
 VENDOR, 
 
 when he has a lien for purchase money, 114, 124. 
 
 how far upheld in equity, 114, 124. 
 
 deposit of title deeds, how far a hen, 114. 
 
 without restriction, cannot prevent his vendee from building on his own 
 land, 219. 
 
 sale of real estate, makes the vendee the trustee of the vendor for the un- 
 paid purchase money, 114, 115. 
 VOLUNTARY CONVEYANCES, 
 
 not aided in equity, 379. 
 
 difference between voluntary consideration and valuable one, 379. 
 VOLUNTARY WASTE, 
 
 tenant Uable for, 78. 
 
 digging gravel, Ume, &c., except for repairs, is such waste, 78.
 
 INDEX. ■ 707 
 
 WAINSCOTS, 
 
 WASTE, 
 
 English doctrine of, not applicable to our unsettled land 78 
 English rule as to, 78. 
 voluntary or permissive, 79. 
 who may bring the action, 79. 
 and against whom, 79. 
 
 how as to joint tenants and tenants in common, 79. 
 when heir may have the action, 79. 
 by mortgagee against mortgagor, 126. ^ 
 WATER, " ^ ' 
 
 right to the flow of, 220, 222. 
 
 extends to thread of the stream, 220. 
 
 boundary on a stream, how far it extends, 220 221. 
 
 remedy for diverting, 222. ' 
 
 rule as to subterranean streams, 222. 
 
 prescriptive right to, when obtained. 222 
 
 WATER-TUBBS, 
 
 put in by tenant, may be removed by him 86 
 WAYS, J' ,oo. 
 
 a privilege of going over another's land, 193. 
 may be claimed, 1. by grant, 194. 
 
 2. by exception, and reservation to the grantee, 194. 
 
 3. by prescription, 194. 
 
 4. from necessity, 194. 
 how to be used, 194. 
 
 grantor of the land may designate it, 194. 
 it continues so long as the necessity lasts, 195. 
 owner of the road to build and repair it, 195. 
 
 when out of repair, the owner cannot go on the adjoining close, without 
 bemg a trespasser, 195. •'6 , uuu 
 
 private way granted without designation may be located by usage 196 
 
 the grantee of the road must keep it in repair, 196. 
 
 If the way be acquired by deed, it cannot be lost by non-user 196 
 
 It acquired by vser, it may be lost by non-user, 196. 
 
 It may be extinguished by unity of seisin and possession, 196 199 
 
 private roads, allowed by the constitution, 197. 
 
 such road can only be used by the applicant, 197. 
 
 damages how assessed, 197. 
 
 must not exceed three rods in width, 198. 
 
 cases in which highway labor may be given to it, 19t. 
 
 rule as to fencing it is not uniform, 199,
 
 708 INDEX 
 
 WAYS — am tinned. 
 
 there are three kinds of ways, 199. 
 
 1. a footway, 199. 
 
 2. a foot and horse way, 199. 
 
 3. embracing both the others, a cart way, 199. 
 WIDOW, 
 
 her rights as to dower. See Dower, 61 et seq. 
 
 not bound to support minor children of her deceased husband by a former 
 wife, 328, note. 
 WIFE 
 
 may convey her land acquired under act of 1849, without joining her hus- 
 band, 391. See Doweb. Husband and Wife. Acknowledgment. 
 WILL, 
 
 requisites to the execution of, 482. 
 
 should be proved before surrogate, 482. 
 
 but not necessary to its validity, 482. 
 
 parties capable of making a will of lands, 472. 
 
 who are disabled from making it, 472 et seq. See Idiots. Lunatics. Mas- 
 KiED Women. Infants. 
 
 all natural persons may take under a will, 474. 
 
 so may posthumous children, 474. 
 
 may married women and illegitimates, 474. 
 
 corporations can only take when authorized by their charter or special 
 statutes, 475, 476. 
 
 policy of the law with respect to, 476. 
 
 aliens may take under a will, 477, 478. 
 
 real estate may be devised, 478. 
 
 after-acquired, lands pass by a will, 478, 479. 
 
 but not at common law, 478, 479. 
 
 trust estates cannot be disposed of bywill, 479, 480. 
 
 equitable freeholds may be, 480. 
 
 so also, a possibility coupled with an interest, 480. 
 estates held adversely, 480. 
 
 but not estates held in joint tenancy, 480. 
 
 mortgagor, before foreclosure, may devise, 481. 
 
 rent charge is devisable by will, 481. 
 
 formalities necessary to a valid ivill, 481. 
 
 parties must be of full age, and not under disability, 481. 
 
 must be subscribed by testator at the end of the will, 482, 484. 
 
 must be in writing, written with pen and ink, and not with a pencil, 483. 
 
 not material in what language, 483. 
 
 may be subscribed by a mark, 484. 
 
 subscription must be in the presence of two witnesses, 485. 
 
 must be declared by testator to be his will, 486. 
 
 attestation clause not indispensable, but is strongly recommended, 487. 
 
 each witness must sign his name at the end of the will, 488. 
 
 and subjoin his place of abode, 488. 
 
 must sign at the request of the testator, 488-490. '
 
 INDEX. 709 
 
 WILL — continued. 
 
 attestation clause should be read over to witnesses, 491. 
 
 if testator be blind or illiterate, the whole will should be read over in the 
 
 presence of the witnesses, 491. 
 codicils are to be executed by the same formalities, 491. 
 
 need not be annexed to will, 499. 
 will and codicil construed together as one instrument, 504. 
 revocation and republication of wills, 492. 
 revocation express, by subsequent will declaring it, 492. 
 implied, by marriage and birth of a child, 493. 
 by marriage of a feme sole, 494. 
 by sale of the lands devised, 495, 496. 
 effect of will as to post testamentary children, 497. 
 
 when a partition is made, 498. 
 revocation not to revive a former will, 498. 
 in what cases devises by will are void, 500 et seq. 
 to charities, by parties having certain kindred, 501. 
 corporations not authorized to take, 500, 501. 
 an alien, 502. 
 when void for uncertainty, 502, 503, 514, 515. 
 general maxims of construction of wills, 504, 505. 
 as to construction of words, 506, 507. 
 when some devises good and some bad, 508. 
 as to description of the estate, 510. 
 effect of the word estate in, 510. 
 as to description of devisee, 511, 512. 
 executory devises in a will, 513, 523. 
 when blank is left for devisee's name, 516. 
 examples of void legacies, 514-519. 
 by what particular words estates are created by a will, 519. 
 
 a condition or hmitation, 520, 521. 
 distinction between condition and limitation, 520, 521. 
 mode of charging real estate by will, 521. 
 
 charge may be express or implied, 522, 523. ' 
 
 executory devises defined, 523. 
 distinction between them and a remainder, 524. 
 effect of suspending power of ahenation, 525. 
 object of residuary clause in a will, 526. 
 
 will should be proved as a will of real estate, and be recorded by surrogate, 
 549. See Devise. 
 WITNESSES 
 
 to a deed, 386, 387. See Deed. 
 will, 485, 488. See Devise. 
 WORDS, 
 
 by which particular estates are created, 407 et seq. 
 of limitation, 409, 410. 
 WEIT OF RIGHT, 
 
 abolished by the code of procedure, 317.
 
 710 INDEX- 
 
 YEAR, 
 
 tenancy from year to year, 93, 95, 96, 97. 
 
 mode of computation of fractional parts of, 81. 
 
 the added day of leap year, and the day preceding, reckoned together as 
 one day, 81. 
 
 the term month is a calendar month, 81. 
 YIELDING AND PAYING, 
 
 the proper form of a covenant to pay rent in a lease, 427. 
 
 this covenant runs with the land, 427. 
 
 effect of it as a covenant, 427. 
 YIELD UP, 
 
 covenant for tlae tenant to, at the end of his term, usually inserted in 
 leases, 429. 
 
 THE END.
 
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